Yesterday, I celebrated my birthday. It turns out that both my wife and my daughter had the day off. So, I got some time with the family and some alone time, including watching the Braves lose unfortunately. Still, a great season for the Braves. If you still have a team in the hunt, good luck!

One of the things that I do is a great deal of legal consulting. That includes this blog and training. It also includes serving as an expert witness, consulting expert, or consultant on litigation when it comes to ADA compliance. The Expert Institute is running a best legal blog contest, and I would appreciate your vote if you have the time to do so. Of course, I so much appreciate you voting for me with respect to the ABA 100. I should find out about that around Thanksgiving. Thanks again for all your support and your readership. I wouldn’t do this otherwise.

Today’s blog entry explores whether curiosity is sufficient to get you pass a motion to dismiss when it comes to website accessibility. The Middle District of Florida in Price v. Everglades College Inc. says it is not. I fully expect this case to be appealed in light of how progressive the 11th Circuit has been lately when it come to the rights of persons with disabilities. Also, I note that last week the 11th Circuit heard argument in the Winn-Dixie case (the lower court decision we discussed here).

As usual, the blog entry is divided into categories and they are facts; court’s reasoning granting the motion to dismiss; deep dive into court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.

I

Facts Taken Directly from the Court Opinion

“The Complaint states that the Plaintiff, who is visually impaired, “is a prospective student who is interested in attending the Keiser University by taking classes at its Daytona Beach campus location.”122 Doc. 1 ¶ 24. The Plaintiff allegedly called the Defendant223 in order “to inquire about Admission to the Keiser University, requirements for admissions, available courses, and accommodations for his disability.” Id. ¶ 25. The Plaintiff claims that the “Defendant’s representative failed to fully assist Plaintiff and referred him to its Website.” Id. The Plaintiff apparently attempted to utilize the Defendant’s website using screen reader software, but because the software was unable to access various electronic documents on the website, the Plaintiff states that he could not find out information necessary to apply to Keiser; research available degree types, pre-requisites, and course descriptions; view the course catalog; and view available accommodations that Keiser could offer him for his disability. Id. ¶ 29.”

The defendant filed a motion to dismiss.

II

Court’s Reasoning Granting the Motion to Dismiss

  1. Citing to a Middle District of Florida case, the court says that a website itself is not a public accommodation for purposes of the ADA.
  2. Citing to Rendon v. ValleyCrest Productions, Limited, an 11th Circuit case from 2002, the court says that the ADA covers both tangible and intangible barriers to enjoyment of public accommodations.
  3. The court notes disagreement among the district courts with respect to website accessibility, but goes on to say that it appears to it that the majority of courts agree that websites are not covered by the ADA unless some function on the website hinders the full use and enjoyment of a physical space. In particular, the court cites to Gomez v. Bang and Olufsen Am., Inc., which we discussed in this blog entry.
  4. A plaintiff alleging an inaccessible website impedes access to a physical location must establish some nexus between the website and the physical place of public accommodation.
  5. All the ADA requires is if a public accommodation chooses to have a website, the website cannot impede a disabled person’s full use and enjoyment of the brick and mortar place of public accommodation.
  6. While a nexus is obviously a requirement, alleging the mere existence of some connection or link between the website and the physical location is not sufficient to survive a motion to dismiss.
  7. District Courts in the 11th Circuit distinguish between the inability to use a website to gain information about a physical location and the inability to use a website that impedes access to enjoy a physical location by holding, that the inability to use a website to gain information is not sufficient to state a claim under the ADA.
  8. To hold otherwise, would mean that all websites with any nexus to a physical public accommodation must be formatted in such a way that they are accessible to screen reader software. District courts have been unwilling to take such a leap and neither will this court.
  9. Plaintiff alleged only facts indicating his inability to gain information about the location, rather than his access to enjoyment of the University itself. The plaintiff did not make any allegation that he was unable to apply to the University, pay tuition, or use the student portal on the website.
  10. The court dismissed the complaint without prejudice. Therefore, the plaintiff has 21 days from the date of the order to file an amended complaint.

 

III

Deep Dive

  1. It is absolutely true that the 11th Circuit has held that the ADA covers both tangible and intangible barriers to enjoyment of public accommodations. However, reading Rendon v. Valleycrest Productions, Limited reveals that what they were referring to with respect to intangible barriers was practices, policies, and procedures. In that case, they held that the practices, policies, and procedures screened out persons with disability from being able to participate in the game show. Rendon at its core is really a screen out case. As such, Rendon could be used to support the plaintiff on appeal.
  2. Interestingly enough, there is no mention of Haynes v. Dunkin’ Donuts LLC in the decision. Admittedly, Haynes is unpublished, but in the 11th Circuit, citing to unpublished decisions is permissible when that decision is very much on point, which is the case here.
  3. The court doesn’t quite get it right how Internet accessibility jurisprudence is evolving. As we have talked about in our blog, there are several possibilities when it comes to website accessibility litigation and they are: 1) a place of public accommodation must be a physical space; 2) the Internet is always subject to the ADA; 3) an Internet site is subject to the ADA if it acts as a gateway to a brick-and-mortar store; and 4) the Internet site is subject to the ADA if one of the activities and 42 U.S.C. §12181(7) is involved. As we have discussed here and here, the trend is headed towards #4.
  4. The Bang and Olufsen case, which we discussed here, is a real outlier. There is a difference between that holding and between the cases holding that a gateway to the physical place of public accommodation must exist for the ADA to apply to the Internet site. There is also a difference between the holding in Bang and Olufsen and the 11th Circuit holding in Haynes v. Dunkin’ Donuts, LLC, discussed here, which focuses on whether the website was facilitating the use of the place of public accommodation.
  5. The inability to use a website to gain information about a physical location being insufficient for coverage under the ADA does in fact screen out people with disabilities in that how are they going to find out about something they are curious about if the site is inaccessible?

IV

Takeaways

  1. I fully expect the plaintiff to either appeal this decision to the 11th Circuit or to take advantage of amending the complaint within 21 days of the order in order to satisfy the concerns of the court. If an amended complaint does not satisfy the court, I definitely would expect an appeal.
  2. As I mentioned above, Winn-Dixie was argued last week and the decision there will very much impact this particular case.
  3. The Southern and Middle District of Florida and other District Courts in the 11th Circuit are clearly lagging behind the 11th Circuit jurisprudence.
  4. If there is a moral of the story, setting forth enough facts to give the court a very specific idea as to what is going on is always a good approach. That is, pure notice pleading is not recommended. The closer you get to fact-based pleadings, the better off you are going to be.
  5. A close read of Rendon reveals that that case can be used to support the plaintiff as well as the defendant.
  6. The court’s reliance on Bang and Olufsen is interesting in light of the fact that particular case is very much an outlier.
  7. Richard Hunt, who blog can be found in my blog roll, in one of his recent blog entries, discussed why the lack of regulations for website accessibility even if it offers businesses more flexibility, is a disaster. I commend readers to its reading.

For you baseball fans out there, yesterday was a big day. Both the NL Central and the NL West had a one game play in to decide whether they are going to be the division winner or the wildcard. I’m lucky because my native team, the Chicago Cubs, are assured of a playoff spot (wildcard it turns out). My hometown team, the Atlanta Braves, is a division winner. So, I have two teams in the hunt. If you have a team in the playoffs, good luck!

Today’s blog entry is a two-for-one. That is, we will be discussing two cases from the 11th Circuit that came down recently. One we have blogged on already here, and this is the appellate decision. The other is exhaustively analyzed by my colleague Richard Hunt in his blog entry, which can be found here. However, I do want to add a few words beyond what Richard says in his entry. As usual, the blog entry is divided into categories, and they are: court’s reasoning Sierra v. City of Hallandale Beach, Florida-exhaustion; court’s reasoning Sierra v. City of Hallandale Beach, Florida-primary jurisdiction; Sierra takeaways; Kennedy v. OmegaGas and Oil LLC; and Kennedy takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Court’s Reasoning in Sierra v. City of Hallandale Beach, Florida-Exhaustion.

  1. We discussed the lower court decision here. So, I refer you to that blog entry for a more complete recitation of the facts. Also, the 11th Circuit decision is published.
  2. Before determining an administrative remedy bars federal court’s jurisdiction, there must be clear and unequivocal terms that the judiciary is barred from hearing an action until the administrative agency has come to a decision.
  3. Plaintiff has not brought a complaint under the 21st Century Communications and Video Accessibility Act of 2010 (CVAA). Rather, the complaint was brought under the Rehabilitation Act and title II of the ADA.
  4. Under the well pleaded complaint rule, a litigant gets to choose under what cause of action to sue.
  5. Congress granted the Federal Communications Commission exclusive jurisdiction with respect to any complaint filed under the CVAA.
  6. Issues concerning closed captioning of video content delivered over the Internet can arise in a variety of ways, including in the context of disability discrimination, while issues concerning complaints under the CVAA arise only in one place. In short, the relevant section of the CVAA does nothing more than prevent someone wanting to bring the complaint under that section from doing so anywhere else other than before the FCC. Both the Ninth Circuit and the District Court in Massachusetts, in a case we discussed here, have reached the same conclusions. Cases to the contrary are not persuasive.
  7. Not all plaintiffs are able to sue under the Rehabilitation Act or the ADA.

II

Court’s Reasoning in Sierra v. City of Hallandale Beach, Florida-Primary Jurisdiction

  1. Two factors are utilized for deciding whether primary jurisdiction is an appropriate doctrine to apply and they are: the expertise of the agency deferred to and the need for a uniform interpretation of a statute or regulation.
  2. The FCC itself has indicated a plaintiff is not required to exhaust remedies under the CVAA. That indication comes in two different places. First, when they issued regulations in 1997, the FCC recognized that the statute operated in parallel to other federal statutes on the same subject. Second, the plaintiff in this case when he exhausted his administrative remedies with the FCC, received a reply from the FCC explicitly noting that he had ADA remedies apart from the CVAA.
  3. Since the primary jurisdiction doctrine is prudential and not jurisdictional, the court saw no reason why deference to an agency is appropriate when the agency itself feels that no deference is warranted.
  4. The FCC has no expertise on whether the Rehabilitation Act and the ADA recognizes a cause of action for failure to provide closed captioning.
  5. The FCC’s charge under the CVAA has nothing to do with what constitutes a violation under the Rehabilitation Act or the ADA.
  6. Courts do not automatically grant primary jurisdiction to an agency in interpreting its own statute, let alone a statute over which the agency has no authority.
  7. The statutory interpretation task presented by this case presents no issue demanding the FCC’s expertise.
  8. The case presents no special need for uniformity apart from the general search for uniformity that the law requires. That is, just because you may have divergent interpretation of the ADA and Rehabilitation Act, that does not defeat the statutes themselves.
  9. One plaintiff benefiting from a more favorable interpretation of the Rehabilitation Act or the ADA will not benefit that plaintiff at some other plaintiff’s expense.
  10. Just because it is possible that the plaintiff has filed a claim against the wrong party, that does not defeat the court’s jurisdiction to hear the case.

III

Sierra Takeaways

  1. The decision is published.
  2. One of the things we have seen about this blog, is that many times the various laws bump into each other. This case is a reminder that the plaintiff gets to choose what laws to proceed under. There are a variety of reasons as to why a plaintiff chooses to proceed under one law or the other.
  3. I am not exactly sure I understand the court’s reference that not all plaintiffs are able to sue under Rehabilitation Act or the ADA in the context that the statement arises in the opinion. It is, of course, a true statement especially where the plaintiff does not have a disability. However, if the plaintiff does have a disability and cannot meaningfully access the programs and activities of the public entity or the place of public accommodations, it would seem they could bring suit under the ADA or the Rehabilitation Act in many situations.
  4. An important consideration here, is that the FCC explicitly noted that their jurisdiction over disability discrimination was not exclusive.
  5. There is a difference between plaintiff benefiting from divergent interpretation of statutes v. a plaintiff benefiting at the expense of another plaintiff, which is the case in ratemaking situations.
  6. Assuming a claim is filed against the wrong party, that doesn’t prevent the court from hearing the case in the first place.

IV

Kennedy v. OmegaGas and Oil, LLC

  1. This decision is not published.
  2. For an analysis of this decision, you are not going to do better than Richard Hunt’s exhaustive analysis of this case, which can be found here.
  3. This case should be read with my blog entry discussing how to defend against the serial plaintiff, the defense of which I have been involved with numerous times. That blog entry can be found here.
  4. The critical piece of the decision is the part of the opinion talking about the burden of proof when it comes to readily achievable. The court said that the burden of proof works as follows. First, the plaintiff has the initial burden of production to show that an architectural barrier exists and that the proposed method of architectural barrier removal is readily achievable. That is, easily accomplishable and able to be carried out with much difficulty or expense under the particular circumstances of the case. Second, if the plaintiff meet this burden, then the defendant bears the ultimate burden of persuasion that the barrier removal is not readily achievable. However, the court goes even further when it says: “The plaintiff’s initial burden is not light. Rather, a plaintiff must present sufficient evidence so that a defendant can evaluate the proposed solution to a barrier, the difficulty of accomplishing it, the cost implementation, and the economic operation of the facility. Without evidence of these issues, a defendant cannot determine if it can meet its subsequent burden of persuasion.”

V

Kennedy Takeaways

  1. The decision is not published.
  2. This decision should be used in conjunction with the case discussed in my defending against the serial plaintiff blog entry, which can be found here.
  3. The critical piece of this decision is the court specifically saying that the plaintiff initial burden of production, “is not light.” So, this gives the defense the ability to use the two-step approach discussed in my defending against the serial plaintiff blog entry, and should it continue to go into litigation, then be able to buttress its decisions as to what to fix and when to fix them by forcing the plaintiff to present a significant amount of evidence that the defendant’s determination as to readily achievable is not correct.

I did not blog last week, but I have a good excuse. Last week, was the Jewish day of atonement, Yom Kippur, and my daughter was also on fall break. For those who were celebrating last week, I hope your holidays went well. My daughter is now back in school, and so I am ready to get back to it.

Today’s blog entry is actually a two-for-one. We will explore the issue of medical exams both in terms of when they can be done and whether you can ask the employee to pay the cost of the medical exams. In our first case, EEOC v. BNSF Railway Company,250222 we visit the question of whether a prospective employer can force a person with a disability to pay for the cost of a medical exam, in this case an MRI. In the second case, In the Matter of Paul Williams, Township of Lakewood273, we visit the question of whether an anonymous tip is sufficient to require an employee to undergo a medical exam. As usual, the blog entry is divided into categories and they are facts, court’s reasoning, and takeaways for each case (a total of six different categories). Of course, the reader is free to read any or all of the categories.

I

BNSF Railway Company Facts

Holt received a conditional job offer from BNSF Railway Company for the position of Senior Patrol Officer contingent on his satisfactory completion of a post-offer medical review. During that medical review, he disclosed that he had injured his back four years before when he suffered a two-level spinal disc expiration. His primary care doctor, his chiropractor, and BNSF’s subcontractor doctor hired to examine him all determined that he had no current limitations with his back and found no need for follow-up testing. Even so, BNSF demanded that he submit an MRI of his back at his own cost, which would have run him $2500 since insurance would not cover it, or it would treat him as having declined the offer. Since he was in bankruptcy at the time, he did not obtain an MRI. As a result, BNSF revoked the job offer.

At the District Court level, the court held that the EEOC had shown that BNSF had regarded Holt as having a disability due to his back injury, that he was qualified for the job, and that BNSF had discriminated against him by requiring an MRI because it regarded him as having a disability. It also held that there wasn’t sufficient evidence to support any affirmative defense and granted partial summary judgment to the EEOC. The parties then reached an agreement on the amount to be awarded for damages, but BNSF did not waive its appellate rights and did in fact appeal. The District Court also entered a nationwide injunction against BNSF mandating that BNSF bear the cost of procuring any additional information it deemed necessary to complete a medical qualification evaluation. The injunction also required BNSF if they chose not to procure additional information, to complete the medical examination process using medical information it had in order to make a determination about whether the applicant was medically qualified for the job for which he received the conditional job offer.

II

BNSF Railway Company Court’s Reasoning

  1. Proving a prima facie case a means showing that Holt: 1) had a disability as defined by the ADA; 2) was qualified for the position as defined by the ADA; and 3) that BNSF discriminated against Holt because of his disability.
  2. 42 U.S.C. §12102118224(1)(C) provides that a person is regarded as having a disability where he or she can establish that an adverse action occurred because of an actual or perceived physical or mental impairment regardless of whether or not the impairment limited or is perceived to limit a major life activity.
  3. It is no longer necessary to show that the impairment had to be perceived to substantially limit a major life activity for discrimination to be actionable under the regarded as definition. So, all the EEOC had to show is that Holt had an impairment and not that the impairment was substantially limited.
  4. A plaintiff must show that the employer knew that the employee had an actual impairment or perceived the employee to have an impairment and that the impairment was not transitory or minor.
  5. While physical or mental impairment does not appear in the ADA itself, the EEOC at 29 C.F.R. §1630.2119225(h)(1) has defined an impairment as any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems.
  6. By requesting an MRI because of his back condition and conditioning the job offer on the completion of the MRI at Holt’s own cost, BNSF assumed that he had a back condition disqualifying him from the job unless he could disprove that proposition. Further, in rejecting his application because it lacked a recent MRI, BNSF treated him as it would an applicant whose medical exam had turned up a back impairment or disability. Therefore, BNSF chose to perceive him as having an impairment at the time it asked for the MRI and at the time it revoked the job offer.
  7. Interpreting the ADA so that the definition of perceived impairment includes situations where an employer assumes an employee has an impairment or disability is consistent with the ADA as amended mandate that the definition of disability is construed broadly in favor of persons with disabilities.
  8. Requiring an applicant pay for an MRI or lose his or her job offer because the applicant has a perceived back impairment is a condition of employment that imposes discriminatory conditions on a person with a perceived impairment. Further, considering the cost of MRIs, requiring an MRI as a condition of employment will for many individuals mean disqualifying them from participating in the process.
  9. 42 U.S.C. §12112120226(d)(3) does not authorize an employer to further burden a prospective employee with the cost of the testing regardless of how necessary the testing may be.
  10. Where an employer requested an MRI at the applicant’s cost only from person with a perceived or actual impairment or disability, the employer is imposing an additional financial burden on a person with a disability because of that person’s disability. Such a requirement effectively precludes many applicants and directly contradicts the ADA’s aim to increase opportunities for persons with disabilities.
  11. While there is nothing wrong with requiring additional follow-up testing, it is quite a different kettle of fish to require that the additional follow-up testing be done at the applicant’s expense. Imposing such a requirement limits the general protections of the ADA far beyond the necessary implications of what is allowed the ADA medical testing scheme.
  12. The ADA already puts financial burdens on the employer by requiring them to pay for reasonable accommodations in the absence of an undue hardship. So, allowing employers to force people with disabilities or perceived impairments to pay for follow-up test subverts the goal of the ADA to ensure that those with disabilities have equality of opportunity and would force them to face costly barriers to employment.
  13. If employers are not required to pay for the additional medical tests they require of people with disabilities, they very well might use that medical testing as a way to screen out applicant with disabilities. Putting the burden to pay on employers, helps to ensure that employer do not abuse their power to require testing at the post-offer, pre-employment stage.
  14. While the EEOC did not show that BNSF acted with the discriminatory motive, it didn’t have to since it was clear that action was taken because of an impairment or perception of an impairment.
  15. BNSF did not contest the issue of whether Holt was qualified under the ADA but even so, they decided to impose an MRI on him because of its perception that he had an underlying back problem.
  16. With respect to the nationwide injunction, the court noted that there are customarily four factors a court considers when granting a nationwide injunction and they are: 1) whether plaintiff has suffered an irreparable injury; 2) whether remedies available at law are inadequate to compensate for that inquiry; 3) the balance of hardships; and 4) the public interest. While the District Court did not engage in this analysis, the Ninth Circuit holds that the factors were met in this particular case. Even so, the Ninth Circuit said that the injunction had to be vacated and remanded because the District Court failed to make adequate factual findings to support the scope of the injunction.

III

BNSF Takeaways

  1. The ADA has a complicated scheme when it comes to medical exams and disability related inquiries, and we discussed that in this blog entry121227.
  2. It is a bit mind-boggling to me that an employer would try to impose the costs of such exams on the applicant because doing so undoubtedly screens out people with disabilities and directly contravenes the whole idea behind the ADA in the first place.
  3. There is a big debate going on right now about the utility of nationwide injunctions, and the four factor test provides a useful guideposts for trying to figure that out.
  4. Interesting that the Ninth Circuit says that the final prong of a prima facie case is showing that the applicant was discriminated against, “because of his disability.” As we discussed in this blog entry122228, that is not what the ADA as amended requires.
  5. Also interesting, is that the court with respect to regarded as says the ADA as amended provides for an exception from regarded as coverage if the impairment is transitory OR minor. However, 42 U.S.C. §12102123229(3)(B) requires that the impairment to be excluded must be transitory AND minor. Also, the court says that the plaintiff has the burden to show that the impairment is not transitory or minor.
  6. While it is true that physical or mental impairment is not defined in the ADA itself, 29 C.F.R. §1630.2124230(h) does state what a physical or mental impairment is. It is a rather sparse definition, but in fleshing that out, it is helpful to remember how the ADA as amended defines major life activities125231.
  7. Don’t forget about the screen out provisions of the ADA.

IV

In the Matter of Paul Williams, Township of Lakewood Facts

The Township of Lakewood received an anonymous letter purportedly from a very concerned employee at Lakewood Public Works saying that Williams had mental issues and was a time bomb waiting to explode. For over eight months, the Township took no action concerning the letter. Then, the Township advised Williams that he would be sent for psychological fitness for duty examination and that if he did not attend such an examination he would face disciplinary action. Williams believe the examinations were not job-related and consistent with business necessity as required by the ADA at 42 U.S.C. §12112126232(d)(4)(A), and so he did not attend the evaluations. Accordingly, the Township sought to remove him from employment. It first went through the ALJ, which found in favor of Williams. They then appealed it to the Commission, which found in favor of the Township. Williams then appealed it into the court system.

V

In the Matter of Paul Williams, Township of Lakewood Court’s Reasoning

  1. The ADA at 42 U.S.C. §12112(d)(4)(A) prohibits employers from requiring a medical exam or making inquiries on employee at the whether such employee is a person with a disability unless such examination or inquiry is shown to be job-related and consistent with business necessity. Citing to a case (Kroll), discussed in this blog entry127233, the court notes that there is very little discussion of this particular section in the ADA’s legislative history.
  2. EEOC regulations make clear that an employer cannot require an employee to undergo medical test that do not serve a legitimate business purpose.
  3. In an EEOC enforcement guidance, the EEOC says that a disability-related inquiry or medical examination of an employee may be job-related and consistent with business necessity when the employer has a reasonable belief, based upon objective evidence, that either: 1) an employee’s ability to perform essential job functions is impaired by a medical condition; or 2) an employee poses a direct threat due to a medical condition.
  4. With respect to direct threat, which we have discussed many times in our blog, such as here128234, pursuant to 29 C.F.R. 1630.2129235(r), the term refers to a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodations.
  5. An employer has to reasonably believe either through direct observation or through reliable information obtained from credible sources that the employee’s perceived medical condition is affecting his or her work performance or that the employee poses a direct threat before it can require a medical examination of a current employee.
  6. EEOC enforcement guidelines says that an employer cannot act on information learned from another person to impose a medical exam unless the information learned is reliable and gives rise to a reasonable belief that the employee’s ability to perform essential job functions is impaired by a medical condition or poses a direct threat due to a medical condition. The guidance goes on to list five factors for an employer to consider for determining whether the information an employer receives is reliable and those factors are: 1) the relationship of the person providing the information; 2) the seriousness of the medical condition at issue; 3) the possible motivation of the person providing the information; 4) how the person learned of the information (whether directly from the employee whose medical condition is in question or from someone else); and 5) other evidence that the employer has bearing on the reliability of the information provided.
  7. The employer’s belief requires an assessment of the employee and his or her job and cannot be based on general assumptions.
  8. The Township did not meet its burden to demonstrate that requiring a physical exam was job-related and consistent with business necessity because the evidence was not there: 1) Williams work performance was satisfactory; 2) while Williams was confrontational at times, he didn’t behave differently than any other employee; 3) the Township failed to prove that Williams was a direct threat to either himself, others, or property; 4) prior employees of the Township were not required to undergo psychological evaluations, and the Township did not present any documentary evidence concerning any other disciplinary actions involving Williams; 5) the Township failed to take action for eight months; 6) the Township could have but did not solicit information from the Department of Public Works Director and any other supervisors concerning Williams job performance; and 7) the Township could have contacted the three union stewards specifically named in the letter for information about the alleged outbursts that Williams had but did not. Instead, they failed to investigate for over eight months, and then sought to rely on the letter as the sole basis for requiring the medical exam.

VI

In the Matter of Paul William Township of Lakewood Takeaways

  1. I am generally not a big fan of enforcement guidances. I think lawyers use them as a crutch. I am much happier sticking to statutory provisions and final implementing regulations that have gone through the rulemaking process. That said, as we discussed in this blog entry130236, enforcement guidances do prove useful at times. I believe using the enforcement guidance’s five factor test to figure out whether information you receive that might justify a medical exam makes a lot of sense and is good preventive law. I suppose whether it makes sense is a personal call, but hard to argue that the enforcement guidance five factor test is great preventive law.
  2. The case cited to in the opinion, Kroll, we discussed here131237.
  3. In many ways, the decision to require a medical exam of the current employee blends into whether a direct threat exists.
  4. You can never go wrong with individual analysis.
  5. If you receive information suggesting that a medical examination may be in order, in addition to the five factor test, be sure to look into it promptly and not wait eight months.
  6. This court says transitory and minor is an affirmative defense, which is different from what the Ninth Circuit says in BNSF, our first case. So, when it comes to transitory and minor, check your jurisdiction on who has the burden of proof. Also, on the plaintiff side, be sure to monitor the defense so that a court is not convinced that it is transitory or minor rather than transitory and minor as stated in the ADA itself.

Before starting the blog entry of the week, I want to wish all my Jewish brethren a happy new year. Here is hoping that it is a healthy, happy, and successful new year for you and your families.

It seems in Georgia that there is an epidemic of police shootings. In fact, I read the other day in the Atlanta Journal-Constitution, that police shootings in Georgia are way above the pace in previous years. That article also mentioned that Graham v. Connor was the seminal case for training police forces on whether force is excessive. So, I pulled Graham v. Connor. When I did that, it became pretty obvious to me that if this particular case is the one being used for training police on excessive force, then people doing the training really need to reconsider. This blog entry will talk about that case, explain why it is not a good idea for trainers to be using this case as the vehicle for training police forces on excessive force, and then will talk about a case that trainers may want to use instead. As usual, the blog entry is divided into categories, and they are: Graham v. Connor; Graham v. Connor looked familiar; Graham v. Connor thoughts; Vos v. City of Newport Beach introduction and facts; Vos court’s reasoning-excessive force; Vos court’s reasoning-ADA; and takeaways. Of course, the reader is free to focus on any or all of the sections of the blog entry.

I

Graham v. Connor

In Graham v. Connor, the petitioner, a type I diabetic, asked his friend to drive him to a convenience store to purchase orange juice to counteract the onset of insulin reaction. Upon entering the store and seeing the number of people ahead of them, he hurried out and asked his friend to drive him to a friend’s house instead. A police officer became suspicious after seeing Graham hastily enter and leave the store, and so he followed the car. He made an investigative stop, ordering Graham to wait while he found out what had happened in the store. Backup police officers arrived on the scene, handcuffed Graham, and ignored or rebuffed attempts to explain and treat Graham’s condition. During the encounter, Graham sustained multiple injuries. Once the police officer learned that nothing that happened in the store, he was released.

As the court put it:

On November 12, 1984, Graham, a diabetic, felt the onset of an insulin reaction. He asked a friend, William Berry, to drive him to a nearby convenience store so he could purchase some orange juice to counteract the reaction. Berry agreed, but when Graham entered the store, he saw a number of people ahead of him in the checkout 3899*38910 line. Concerned about the delay, he hurried out of the store and asked Berry to drive him to a friend’s house instead.

Respondent Connor, an officer of the Charlotte, North Carolina, Police Department, saw Graham hastily enter and leave the store. The officer became suspicious that something was amiss and followed Berry’s car. About one-half mile from the store, he made an investigative stop. Although Berry told Connor that Graham was simply suffering from a “sugar reaction,” the officer ordered Berry and Graham to wait while he found out what, if anything, had happened at the convenience store. When Officer Connor returned to his patrol car to call for backup assistance, Graham got out of the car, ran around it twice, and finally sat down on the curb, where he passed out briefly.

In the ensuing confusion, a number of other Charlotte police officers arrived on the scene in response to Officer Connor’s request for backup. One of the officers rolled Graham over on the sidewalk and cuffed his hands tightly behind his back, ignoring Berry’s pleas to get him some sugar. Another officer said: “I’ve seen a lot of people with sugar diabetes that never acted like this. Ain’t nothing wrong with the M. F. but drunk. Lock the S. B. up.” App. 42. Several officers then lifted Graham up from behind, carried him over to Berry’s car, and placed him face down on its hood. Regaining consciousness, Graham asked the officers to check in his wallet for a diabetic decal that he carried. In response, one of the officers told him to “shut up” and shoved his face down against the hood of the car. Four officers grabbed Graham and threw him headfirst into the police car. A friend of Graham’s brought some orange juice to the car, but the officers refused to let him have it. Finally, Officer Connor received a report that Graham had done nothing wrong at the convenience store, and the officers drove him home and released him.

39011*39012 At some point during his encounter with the police, Graham sustained a broken foot, cuts on his wrists, a bruised forehead, and an injured shoulder; he also claims to have developed a loud ringing in his right ear that continues to this day. He commenced this action under 42 U. S. C. § 1983 against the individual officers involved in the incident, all of whom are respondents here,[1]13 alleging that they had used excessive force in making the investigatory stop, in violation of “rights secured to him under the Fourteenth Amendment to the United States Constitution and 42 U. S. C. § 1983.” Complaint ¶ 10, App. 5.[2]14 The case was tried before a jury. At the close of petitioner’s evidence, respondents moved for a directed verdict. In ruling on that motion, the District Court considered the following four factors, which it identified as “[t]he factors to be considered in determining when the excessive use of force gives rise to a cause of action under § 1983”: (1) the need for the application of force; (2) the relationship between that need and the amount of force that was used; (3) the extent of the injury inflicted; and (4) “[w]hether the force was applied in a good faith effort to maintain and restore discipline or maliciously and sadistically for the very purpose of causing harm.” 644 F. Supp. 246, 248 (WDNC 1986). Finding that the amount of force used by the officers was “appropriate under the circumstances,” that “[t]here was no discernable injury inflicted,” and that the force used “was not applied maliciously or sadistically for the very purpose of causing harm,” but in “a good faith effort to maintain or restore order in the face of a potentially explosive 39115*39116 situation.” id., at 248-249, the District Court granted respondents’ motion for a directed verdict.

Graham brought suit alleging they had used excessive force in making the stop. The court held that the standard for evaluating whether force was excessive was, “objective reasonableness,” and vacated and remanded the decision.

II

Graham v. Connor looked familiar?

I could not believe it when I read the facts of Graham v. Connor because just recently the Sixth Circuit affirmed a jury verdict in favor of the EEOC for $277,565 where Dollar General terminated a diabetic employee left with very little choice under company policies and decisions made by its employees to drink a $1.69 bottle of orange choose to deal with a diabetic attack and then was promptly terminated for violating company policies. You can see Jon’s write up of the Sixth Circuit affirming the jury verdict here, and the Sixth Circuit’s affirmance of the jury verdict here.

III

Graham v. Connor Thoughts

  1. Graham v. Connor was a 1989 US Supreme Court case. Of course, that means the case was decided prior to the advent of the ADA (signed on July 26, 1990).
  2. Absolutely no doubt in my mind that under the case we discussed here, the police force would be on the hook for damages for violating title II of the ADA.
  3. This case was almost 30 years ago and things have changed considerably, especially with respect to the rights of persons with disabilities. Graham facts may well be excessive today even under an objective reasonableness standard. Even assuming no excessive force claim, if this happened today there undoubtedly would be a successful title II claim as well as a successful Rehabilitation Act claim.

IV

Vos v. City of Newport Beach Introduction and Facts

A much better case that trainers may want to consider using when it comes to excessive force and ADA compliance would be Vos v. City of Newport Beach decided by the Ninth Circuit on June 11, 2018. Here are the facts.

At approximately 8:15 PM on May 29, 2014, plaintiff entered a 711 convenience store. He became very agitated and ran around the store shouting things like, “shoot me already, dog.” A person called 911. For the next six minutes, plaintiff ran around the store cursing at people. Meanwhile, video footage showed other customers going about their business of shopping and checking out at the cash register. The Newport Beach Police Department dispatch stated that the reporting party was advising that the subject was holding a pair of scissors inside the store and there were still people inside. At one point, plaintiff grabbed and immediately released a 711 employee, yelling, “I’ve got a hostage!” An Officer Kresge arrived on the scene and saw the plaintiff behind 7-Eleven’s glass doors yelling, screaming, and pretending to have a gun. He then broadcasted on the police radio that the subject is simulating having a handgun behind his back and is asking me to shoot him. He then asked for backup and specifically asked for a 40 mm less-lethal projectile launcher. As other officers arrived, he informed them that the plaintiff was agitated and likely under the influence of narcotics.

By 8:30 PM, several more officers had arrived. Immediately before the fatal shooting, at least eight officers were present. A trainee armed himself with the requested less-lethal device. The others readied themselves with lethal weapons. There was also a K-9 unit on the scene. Everybody knew that the plaintiff had been simulating having a gun, was agitated, appeared angry, and was potentially mentally unstable and under the influence of drugs. They also heard the plaintiff yell “shoot me,” and other similar cries. The police on site discussed using non-lethal force to subdue the plaintiff both over the radio and among themselves at the scene.

At about 8:43 PM plaintiff open the door of the 711’s back room. As he did so, some officers shouted doors opening. Plaintiff then ran around the front check out counter and towards the open doors holding an object over his head in his hand. At that point, there was about 30 feet in distance between the plaintiff and the officers. One officer shouted that the plaintiff had scissors. Over the public address system, Officer Preasmyer twice told the plaintiff to drop the weapon. When he did not drop the weapon that kept charging toward the officers, Officer Preasmyer then shouted shoot him. All the officers then opened up fire shooting the plaintiff four times whereupon he died from his wounds. During the 20 minutes from when the officers arrived until the plaintiff ran at them, the officer did not communicate with the plaintiff. The officers who fired the lethal weaponry did not know that another officer had fired non-lethal weaponry. Testimony also said that they saw a metallic object, which they believed to be scissors. When the plaintiff’s blood was later tested, it came up positive for both amphetamine and methamphetamine. His medical history later revealed that he was a schizophrenic. Plaintiff’s parents sued the City of Newport for violating §1983 (excessive force), and for violating title II of the ADA and for violating the Rehabilitation Act of 1973. They also filed claims under California State law as well. The District Court granted summary judgment to the City of Newport and the plaintiff appealed.

V

Vos Court’s Reasoning Excessive Force

  1. The standard for determining whether the force was excessive is Graham v. Connor’s objectively reasonable standard.
  2. Whether force is objectively reasonable involves balancing the nature and quality of the intrusion on the individual’s fourth amendment interests against the governmental interests at stake.
  3. Use of deadly force implicates the highest level of fourth amendment interests because the suspect has a fundamental interest in his own life and because that kind of force frustrates the interests of the individual and of society in having the judiciary determine guilt and punishment.
  4. Assessing the government’s interest means looking to: the severity of the crime at issue; whether the suspect posed an immediate threat to the safety of the officers or others; and whether the suspect was actively resisting arrest or attempting to evade arrest by flight.
  5. The officers were not responding to the report of a crime, rather they were there because of plaintiff’s erratic behavior.
  6. Once the officers were at the scene, plaintiff had little opportunity to flee.
  7. There were simply not reasonable grounds to suggest that the police officers could have perceived an immediate threat from the plaintiff to themselves requiring deadly force. More particularly: the officers had surrounded the front door to the 711; they had established positions behind cover their police vehicles, they outnumbered the plaintiff 8 to 1; even though plaintiff charged the officers, the officer did not believe he had a gun, and they had less-lethal methods available to stop the plaintiff from charging; and the plaintiff was within the range of a less-lethal weapon, a Taser, or a K-9 when he was shot.
  8. Other relevant factors in deciding whether deadly force is warranted include the availability of less intrusive force, whether proper warnings were given, and whether it should have been apparent to the officer that the subject of the force used was mentally disturbed. Here, the officers had upwards of 15 minutes to create a perimeter, assemble less-lethal means, coordinate a plan for the use of force, establish cover, and, arguably, attempt to communicate with the plaintiff. Also, it was really clear that the plaintiff was mentally unstable, acting out, and at times even inviting officer to use deadly force on him. Those indications of mental illness diminished the government’s interest in using deadly force. Indeed, six of the officers were aware and prepared to respond by using only non-lethal weapons.
  9. Since existing precedent was not beyond debate that the officers acted unreasonably, the officers get qualified immunity for their actions (of course, that doesn’t help the City of Newport at all).

VI

Court’s Reasoning ADA

  1. The ADA and the Rehabilitation Act applies to arrests. See this blog entry.
  2. The officers had time and opportunity to assess the situation and employ accommodations identified by the parents, such as de-escalation, communication, or get specialized help.
  3. The facts show that further accommodation was possible.
  4. The same factual questions preventing the determination of whether the police officers engaged reasonably with respect to excessive force also informed the question of whether they provided reasonable accommodations. Those concerns also undercut the City of Newport’s argument that the plaintiff posed an immediate threat, i.e. a direct threat, and was not entitled to accommodation.
  5. For the reasons discussed in the court’s discussion of excessive force as well as for the reasons discussed in this section of the blog entry, VI, the defendants were not entitled to summary judgment on the ADA and Rehabilitation Act claims.

VII

Takeaways

  1. For trainers that are using Graham v. Connor as the basis for training police on excessive force, reconsider, especially in light of the Sixth Circuit affirmance of the jury verdict in the Dollar General case. By using Graham, trainers are communicating to the police that they have wide latitude with excessive force and implicitly suggesting that they are off the hook otherwise. That is simply not the case. Graham v. Connor is a clear violation of title II of the ADA and the Rehabilitation Act.
  2. A much better case to use than Graham v. Connor is Vos v. City of Newport Beach.
  3. While the police officers were given qualified immunity so that they did not face individual liability. That is a one off because now the case law is clear beyond debate that officers simply can’t behave the way they did in Graham v. Connor, let alone in Vos v. City of Newport Beach.
  4. It is clear that whenever you have an excessive force case combined with a person with a disability being subject to that force, you will have both excessive force claims and title II/Rehabilitation Act claims to deal with simultaneously. Whether the employer of the police officers will face damages, will depend upon this blog entry.
  5. Qualified immunity is a one off. That is, an individual officer might get qualified immunity, but if the case goes against the officer’s employer, then it can be said that the precedent may be beyond debate and the next officer will not be so lucky. Also, civil cases may inform that analysis. Certainly, Graham v. Connor if it came up today would not only subject the police force to title II liability, Rehabilitation Act liability, and excessive force liability, it would also be unlikely that the police officers would get qualified immunity.
  6. With respect to excessive force, the police should not limit themselves to the factors in Graham v. Connor. They should also consider the other relevant factors mentioned in Vos as well.

Before getting started on the blog entry of the week, next week is the Jewish new year. I want to take the opportunity to wish all of my Jewish brethren a happy and healthy new year for them and their families. It also means that no one should be surprise if the blog entry for next week goes up on Wednesday since Monday and Tuesday are the Jewish new year.

As I write this, Judge Kavanaugh is appearing before the United States Senate. Previously, I wrote about how then Judge Gorsuch might deal with persons with disabilities on the Supreme Court, and I promised I would do the same for Judge Kavanaugh. So, I did a search for the cases involving the ADA and the Rehabilitation Act to see how he went about dealing with the rights of persons with disabilities. I also looked into Chevron and Auer deference as well. The blog entry will be divided into two categories. First, the cases and a brief description of what Judge Kavanaugh decided either by joining an opinion, concurring, or dissenting. Second, overall themes of his jurisprudence. I will say that unlike Judge Gorsuch I don’t see an overriding judicial philosophy from the opinions, though there are certain themes that emerge.

I

The Cases

  1. In Adams v. Rice, Judge Kavanaugh joined an opinion written by Judge Tatel with Judge Henderson dissenting reversing summary judgment for the United States Foreign Service. The case involved a candidate for the United States Foreign Service being discriminated against on the basis of her had breast cancer. There are several things that are interesting about the case. First, the majority opinion held that cancer in remission is not a physical impairment. Second, the majority held that sexual relations is a major life activity. Third, a person with cancer in remission does have a record of an impairment. Finally, the majority opinion held that the employer’s knowledge of a physical or mental impairment is sufficient to trigger ADA coverage. That is, to trigger the ADA the employer did not need to know just how the physical impairment substantially limited a major life activity to have ADA obligations.
  2. In Johnson v. Interstate Management Company, LLC, Judge Kavanaugh wrote the opinion where he said: 1) he was not going to find a cause of action if the authority for that was not explicitly laid out in the statute; and 2) the plaintiff did not produce enough evidence to overcome the legitimate nondiscriminatory reason offered by the employer for termination as part of the McDonnell-Douglas process.
  3. In Koch v. Cox, Judge Kavanaugh joined an opinion with Judge Ginsburg and Judge Brown holding an acknowledgment of depression is not the same as putting a person’s mental health at issue where no emotional distress claim existed. The issue in the case was whether to quash a subpoena for the plaintiff’s therapist records. Also, in that case the court noted that it did consider the motivation of the litigant in revoking his consent that his therapist record be disclosed. The court believed that the motivations were not nefarious.
  4. In United States Department of State v. Coombs, Judge Kavanaugh joined an opinion with Judge Garland and Judge Silberman writing in reversing the District Court’s award for summary judgment on behalf of the United States Department of State. The holding of the case was the Foreign Service Board needed to consider the Rehabilitation Act as it goes about its business and had not properly done so.
  5. In Baloch v. Kempthorne, Judge Kavanaugh wrote the majority opinion holding that the plaintiff could not show any adverse action. Also, the plaintiff did not present sufficient evidence to show the employer’s reason for termination was not discriminatory under the McDonnell-Douglas scheme.
  6. In Stuart v. St. Elizabeth’s Hospital, Judge Kavanaugh wrote an opinion holding that a request for reasonable accommodation must be clear before the employer has an obligation to engage in the interactive process. He was part of a per curiam opinion in Thompson v. Rice, holding the same thing as well.
  7. In Long v. Howard University, Judge Kavanaugh wrote the opinion for the court in a §504 case holding that the statute of limitation could begin to run at the time of the request made or at the time of the denial. For a blog entry on this subject, see this one.
  8. In Northeast Hospital Corporation v. Sibelius, Judge Kavanaugh filed a concurring opinion saying that the relevant inquiry was a narrow reading of statutory text.
  9. In Sims v. Johnson, involving a dispute over a settlement agreement, Judge Kavanaugh dissented essentially on the grounds that the motive of the plaintiff in contesting the settlement cut against the claim that the settlement terms should be figured out by the lower court.
  10. In Allen v. Johnson, Judge Kavanaugh joined a unanimous opinion by Judge Rogers giving latitude to the employer with respect to whether the employer held an honest belief. Further, to find that the employer was culpable more evidence was needed than just proximity of the adverse action. Finally, there was no material dispute of fact over the reason offered by the employer as a legitimate basis for the termination.
  11. In Doe by her next friend Tarlow v. District of Columbia, Judge Kavanaugh wrote the opinion holding that he was not inclined to expand statutes as they were written. This is a case that has disability rights advocates concerned. This case involved persons with disabilities in the District of Columbia who could not consent for healthcare and never could consent for healthcare. Further, they had no particular individual whom could exercise such consent. So, the issue is whether the statutory scheme was inconsistent with District of Columbia statutes and the due process clause of the Fifth Amendment. I can see where disability rights advocates are coming from in this case as the opinion is written in a way that some might construe as paternalistic, which is a real sensitive spot for people with disabilities.
  12. In Carter v. Carson, Judge Kavanaugh joined a per curiam opinion holding that the complaint did not satisfy Iqbal/Twombly standards, which we discussed here.
  13. In Hester v. District of Columbia, a special education case, Judge Kavanaugh wrote the opinion where he decided the case based upon a literal reading of the four corners of the critical document.
  14. In Redman v. Graham, Judge Kavanaugh dissented saying that he was not inclined to expand the statute as written.
  15. In Hill v. Associates for Renewal in Education, Inc., Judge Kavanaugh joined an opinion by Judge Wilkins in an absolutely fascinating case. In this case, the court held a request for reasonable accommodation must be related to the limitation rendering the person disabled. The court affirmed the District Court’s conclusion that the plaintiff did not bring forth sufficient facts to establish a hostile work environment claim. However, the court reversed the summary judgment and remanded for trial on the failure to accommodate claim. The case is also fascinating because it came down July 27 of 2018. The related piece is interesting. In just about all cases, I don’t see how the related piece is going to be much of an issue. A big exception would be dealing with the situation where an employee needs a service dog with them because of his or her disability. I could see in that situation a dispute over “relatedness,” assuming that is the standard a court wants to use. See also this blog entry for a similar discussion.
  16. In City of Anaheim, California v. FERC, Judge Kavanaugh said that Chevron deference was not applicable because the statute was clear that what California did was not permissible.

II

Themes

Unlike my review of Justice Gorsuch, I don’t see an overriding judicial philosophy in these opinions. However, I do see certain pillars and they are:

  1. In city of Anaheim, California v. FERC Judge Kavanaugh said, “The precise words of the statutory text matter.” Judge Kavanaugh clearly will look to what the statute literally says and interpret those statutes whenever possible before looking to other matters to explain what the statute might mean.
  2. In a couple of cases, the motivation of plaintiffs with respect to their litigation strategy are a factor in his conclusions.
  3. Chevron deference is not something he is against. However, he doesn’t like to go there unless he has to. With respect to agency interpretations of their regulations, Auer deference, he does not have a judicial opinion on that. However, when I did a Google search on the Internet, I did come across a speech where he praises Justice Scalia’s opinion, which we discussed here, saying that Auer deference should be thrown out.
  4. He seems to be quite comfortable with the McDonnell-Douglas scheme, which we discussed here. Further, he expect plaintiff’s to meet their burden of proof to overcome nondiscriminatory reasons offered by the employer.
  5. We have often said that magic words are not required to trigger the interactive process. Just what words are required depends. With respect to Judge Kavanaugh, the closer a plaintiff comes to magic words, the better off a plaintiff will be in arguing that the interactive process should have been triggered.
  6. Judge Kavanaugh seem to be quite willing to give employers latitude with respect to the honestly held belief rule.
  7. With respect to the rights of persons with disabilities, the two most interesting cases I find are Hill and Long. In the former, Judge Kavanaugh says that the statute of limitations with respect to a reasonable accommodation request can start either at the time of the request made or at the time of denial. In the latter, Judge Kavanaugh joined an opinion saying that the accommodation sought must be related to the disability. Both of those decisions could have a significant impact on ADA jurisprudence if they become the law of the land.

Happy new year y’all!

Today’s blog entry comes from the 11th Circuit. It involves severely autistic individuals suing Walt Disney Parks and Resorts over their system of accommodating individuals, particularly when it comes to the severely autistic. The case is A.L. v. Walt Disney Parks and Resorts US, Inc., which can be found here. The decision is published, and so its persuasive authority is high. 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 facts of the case are actually quite involved, but this is one of those cases where the key facts can be shortened considerably. The plaintiffs are severely autistic individuals who love going to Walt Disney Parks and Resorts. The severely autistic individuals due to the nature of their disability simply do not function in a way that enables them to defer gratification as other people do. Also, the individuals have to utilize the rides in a very routine way. If either is not the case, then the plaintiffs will have a meltdown. Disney has always had a system for accommodating people with disabilities and they have tweaked it over time. On appeal, the plaintiff claimed that their complaints also contained an intentional or disparate impact discrimination claim that the District Court was wrong to grant summary judgment on.

The District Court granted summary judgment to Walt Disney on all claims, and the parents appealed.

42 U.S.C. §12182(b)(2)(A)(ii) provides:

[Discrimination includes] a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facility, privileges, advantages, or accommodations.

 

II

Court’s Reasoning Reversing Summary Judgment and Remanding for Further Proceedings

The 11th Circuit found that the plaintiff’s had standing, the District Court was correct in granting summary judgment on the intentional and disparate impact discrimination claims (the 11th Circuit said that the complaint simply did not contain a cause of action for intentional or disparate impact discrimination), but the District Court’s summary judgment on the necessary modification claims had to be reversed, vacated, and remanded. The blog entry is going to focus on the court’s reasoning with respect to when modifications are necessary.

  1. For persons with autism (the autism community I have been told may actually prefer autistic), the need for sameness and consistency often leads to high levels of anxiety even when there are minor changes in their routines.
  2. 42 U.S.C. §12182(b)(2)(A)(ii) provides: [Discrimination includes] a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facility, privileges, advantages, or accommodations.
  3. The plaintiff bears the burden of proof to show that he or she is disabled and that his or her requested modification is both reasonable and necessary.
  4. The place of public accommodation bears the burden of proof on the fundamental alteration inquiry.
  5. In PGA Tour, Inc. v. Martin, (the case better known for holding that the ADA applies to professional sports, which we mentioned here, U.S. Supreme Court set forth a three part inquiry for figuring out when modifications to a place of public accommodation procedures were required. Those inquiries are: 1) whether the requested modification is reasonable; 2) whether the requested modification is necessary for the individual with a disability; and 3) whether the requested modification would fundamentally alter the nature of the public accommodation.
  6. Citing to a decision from the Eighth Circuit, which we discussed here, and a decision from the Ninth Circuit, the 11th Circuit said that public accommodations must start by considering how their facilities are used by nondisabled guest and then take reasonable steps to provide guests with disabilities with a like experience. Public accommodations have to provide patrons with disabilities an experience comparable to that of able-bodied patrons.
  7. Again citing to the Eighth Circuit decision, the 11th Circuit holds that title III, like §504 of the Rehabilitation Act, requires a place of public accommodation to provide an individual with a disability with meaningful access or an equal opportunity to gain the same benefit as his nondisabled peers.
  8. Citing to an 11th Circuit decision that I have yet to blog on, but which is a must include on any presentation I make dealing with the effective communication rules, the court said that the ADA and the Rehabilitation Act both focused on equal opportunity to participate in or benefit from the defendant’s goods and services. Further, such a question is an inherently fact intensive inquiry.
  9. The District Court correctly considered how nondisabled guests use Disney’s facilities and whether its system for accommodating guests with disabilities, DAS Card, provided guests with disabilities with a like experience and equal enjoyment.
  10. Meaningful access mean giving plaintiff the opportunity to have something akin or similar to the experience other people enjoy at Disney Parks.
  11. The specific neurologically-based manifestations of an autistic individual is: 1) they have no concept of time, cannot defer gratification, and cannot wait for rides; and 2) they must adhere to routine, must the ride the same rides repeatedly, and visit rides in the same order as in prior park visits.
  12. The claimed disability is waiting at all. Disney’s program for accommodating persons with disabilities accommodates the need to avoid physical lines, but not the need to avoid waits.
  13. To determine what is necessary requires multiple fact-finding regarding the disputed behavioral characteristics of autistic individuals. Until the findings are made in a bench trial, it cannot be determined what is or is not necessary under the ADA.
  14. The question of whether the accommodation is reasonable and/or fundamentally alters the park experience are inquiries needing to be addressed by the District Court, and the 11th Circuit specifically leaves it up to the District Court to decide both how best to approach those issues on remand and whether further record development is needed. The District Court will need to determine whether any material issues of fact exist in that regards and the 11th Circuit if the District Court has free reign in that respect.
  15. In a footnote, the court also reversed the summary judgment grant with respect to the California antidiscrimination law (Unruh Act), claims for the plaintiffs from California since those claims are intricately connected to the ADA claims.

III

Takeaways

  1. The 11th Circuit of late is proving to be one of the most pro-disability Circuits in the country.
  2. The fundamental alteration defense is going to be very interesting as to how it plays out. Anybody visiting a Walt Disney Park knows that deferred gratification is a fundamental part of experiencing those parks. Also, if an individual analysis is required, how could Walt Disney Parks accomplish that without a fundamental alteration? That question may be the answer as to why Walt Disney Parks currently takes it on face value that an individual has a disability rather than perform an individual analysis. On the other hand, excluding a whole group of people with disabilities is not right either.
  3. What often gets overlooked in fundamental alteration cases is that the modifications have to be necessary. There are very few cases discussing how to go about figuring out whether the modifications are necessary. This case offers guidance in that respect.
  4. The quality of experts can matter a great deal in litigation of this type.
  5. About the burden of proof, really confusing. That is, the plaintiff bears the burden of proof with respect to whether the requested modification is both reasonable and necessary, but the place of public accommodation bears the burden of proof on the fundamental alteration inquiry. Here is the problem. If reasonable means whatever does not constitute an undue burden, which can either be financial or logistical i.e. resulting in a fundamental alteration, it is hard to figure out how a plaintiff can have the burden of proof to show something is reasonable when doing so means they are also showing no fundamental alteration is involved, which burden is on the defense. This remains to be worked out and has always driven me crazy.
  6. I expect the case to have a huge impact on the lodging industry. For example, applying my own experience to staying in high end hotels when I am attending a convention, consulting, or doing training, I can tell you that hotels have a major issue with respect to providing disabled guests with a like experience.
  7. It isn’t the first time we have seen Argenyi (the Eighth Circuit decision talked about by the 11th Circuit in the case we are discussing here). That case, discussed in this blog entry, serves as the basis for my ADA compliance auditing in higher education blog entry.
  8. Silva v. Baptist Health South Florida, Inc., is a game changer for the culturally deaf community. It is a decision that I have not blogged on before because until recently I was involved with co-counsel in representing culturally deaf individuals in an effective communication case against a doctor and a hospital and did not feel comfortable about blogging about the case before that case settled. That said, Silva is a must read for both lawyers with respect to the legal profession and with respect to anybody in the healthcare profession. It is also a must slide in any training that I do talking about effective communications.
  9. When it comes to reasonable accommodations or reasonable modifications, places of public accommodations are not required to make the preferred accommodation of a plaintiff choice.
  10. Whether an accommodation or modification is reasonable and whether a fundamental alteration exists is an inherently fact intensive inquiry as the court notes. Therefore, the ability of the defense to obtain summary judgment on whether a modification is reasonable or whether a fundamental alteration exist may become more difficult after this case.
  11. Interesting that it appears the plaintiff requested a bench trial and not a jury trial. That is unusual.
  12. Be advised that language when referring to persons with disabilities is in a considerable state of flux. For example, should you use “person with a disability,” or, “disabled?” This is a very individual call and depends upon the person involved as well as the type of disability a person has. I am told that the movement is very much heading towards, “disabled.” That said, be careful because using the term “disabled,” can be very offensive to many, including myself. I thought that it was only the older generation that might be offended, but I have raised this question with teenagers and have gotten their view that people first is preferred. So, be sure to ask and/or immediately correct. You can’t go wrong with people first language with respect to, “person with a disability.” People first language may also depend upon the particular disability. For example, I have been told that “people with autism,” is out and, “autistic” is in. It seems really weird to refer to a person with hard of hearing or deafness rather than a person as hard of hearing or deaf. On the other hand, many disabilities come off as offensive when referred to in identity language terms.

Today’s blog entry deals with the question of whether the DOJ final regulations on service dogs are applicable to a case arising under the Rehabilitation Act and not the ADA. The case is Berardelli v. Allied Services Institute of Rehabilitation Medicine, a published decision from the Third Circuit decided August 14, 2018. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and takeaways. The reader, of course, is free to read any or all of the sections. As a heads up, the court’s reasoning is quite detailed.

I

Facts

The facts are pretty egregious. What you have is an elementary school student with dyslexia and epilepsy where the school consistently turned away efforts for her to be accompanied by her service dog to school. The school was subject to title III of the ADA and the Rehabilitation Act but not title II of the ADA. As the child grew older and became more independent, her pediatric neurologist recommended that she obtain a service dog so that the dog could monitor her with respect to any seizures and take action when those seizures occurred. She was okay in second grade with the service dog, but when she switched in third grade to the dePaul school, which had a specialized program for dyslexic students, things went downhill fast even though her mother had served notice that a service dog would be coming to school. In the end, things got so bad that she had to repeat an earlier grade when she transferred to a public school some two years later. In particular, the things that happened included: 1) principal consistently denied the use of a service dog; 2) principal repeatedly denied, citing distraction to others, the use of a service dog even though it was made clear that the service dog would alert during seizures and also could predict and alert to them minutes before they even began; 3) principal denied use of service dog based upon worry about allergic reaction to others and made the dog wear a vest to prevent allergies. The vest overheated the dog and prevented the dog from doing his job; 4) when mother came with the child and the service dog to school, the principal stopped them at the entrance of the school and refused to allow the service dog to enter; and 5) the resistance to the dog continued even when a teacher furnished the principal an article on what seizure alert dogs do, and the family of the student allergic to dogs said that they would get their child allergy shots rather than deny a service dog for a child that needs it. Of course, all this made for an impossible situation for the child since it created a great deal of stress and anxiety and it also caused her to fall behind her peers by a year when she transferred back to public schools.

At trial, the District Court proceeded as if the DOJ service regulations applied to a Rehabilitation Act matter, but in midstream reversed course and said that the DOJ regulations did not apply. Further, it rejected a proposed jury instruction tracking DOJ regulations on service dogs. Instead, the jury instruction it wound up giving instructed the jury that:

To prevail on a claim for failure to accommodate, the plaintiff had to prove by a preponderance of the evidence that the requested accommodation was reasonable. If further defined that term as meaning necessary to avoid discrimination on the basis of disability or, in other words, necessary to permit meaningful participation. Only if the plaintiff prove the accommodation was necessary to avoid discrimination on the basis of disability, the burden then shift the school to prove by a preponderance of the evidence that the requested accommodation were unreasonable.

Understandably, this jury instruction really confused the jurors (I can’t understand it either), but when the jury sought clarification, the court refused to clarify. The jury returned a verdict for the school, and the child’s parent timely appealed seeking reversal of their State law claim as well as a new trial on the Rehabilitation Act claim because the District Court did not properly instruct the jury on the applicable law.

II

Court’s Reasoning Reversing the State Law Claim and Awarding a New Trial

  1. Since substantive standards for liability under the Rehabilitation Act and the ADA are the same, the service animal regulations interpreting reasonable modifications under the ADA apply equally to reasonable accommodations under the Rehabilitation Act.
  2. The Rehabilitation Act was the first broad federal statute aimed at eradicating discrimination against individuals with disabilities.
  3. §504 of the Rehabilitation Act established that no otherwise qualified individual with a disability shall solely by reason of his or her disability be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance. The Supreme Court has interpreted this to mean that an individual with a disability must be provided with meaningful access and that federally funded programs were required to make reasonable accommodations or reasonable modifications, but not fundamental or substantial one when necessary to assure such meaningful access.
  4. After two decades of experience with the Rehabilitation Act, Congress acknowledged the limited extent of its coverage impeded its effectiveness in eliminating disability discrimination and enacted the ADA.
  5. Congress designed the ADA to fit hand in glove with the Rehabilitation Act leaving intact the scope of protection under the Rehabilitation Act, but extending its reach beyond federally funded programs to three major areas of public life [i.e. title I, II, and III of the ADA].
  6. The most far-reaching portion of the ADA was extending the Rehabilitation Act concepts to places of public accommodations as title III prohibit discrimination on the basis of the disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.
  7. Title III of the ADA also codified the concept of reasonable accommodations recognized by the Supreme Court when interpreting the Rehabilitation Act when it adopted 42 U.S.C. §12182(b)(2)(A)(ii). That particular provision says discrimination occurs when there is a failure to make reasonable modifications in policies, practices or procedures where such modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodation to individuals with disabilities unless a fundamental alteration exists.
  8. While title III and title II of the ADA the use term “reasonable modification,” and title I uses the term “reasonable accommodation,” it is pretty clear that the two terms are interchangeable.
  9. Both the Rehabilitation Act and the ADA recognize that disabilities do not diminish the right to full inclusion in American society. Both statutes also target the same critical areas, including education. Finally, history teaches that both statutes aim to root out disability-based discrimination thereby enabling a person with a disability to participate equally to all others.
  10. As a general rule, repetition of the same language in a new statute indicates the intent to incorporate those provisions and the judicial interpretations of that language as well. Case law interpreting the Rehabilitation Act have used the terms reasonable accommodations and reasonable modifications interchangeably.
  11. Although the Rehabilitation Act and the ADA diverge with respect to the entities they cover and the remedy they provide (I might add they diverge on causation as well), they impose the same substantive liability standards, and therefore, require a unified approach to the reasonableness of accommodations and modifications.
  12. Case law invariably says that the Rehabilitation Act and the ADA are to be interpreted in the same way.
  13. The Third Circuit has assumed that the term reasonable accommodations and reasonable modifications are synonymous. For that matter, the Supreme Court has done the same. Finally, other Courts of Appeals have also recognized that while title III of the ADA uses “reasonable modification,” rather than “reasonable accommodations,” the term did not differ in the standards they create.
  14. The reasonableness of an accommodation or modification is the same under Rehabilitation Act as it is under the ADA. Therefore, while the Rehabilitation Act does not explicitly resolve whether accommodating the use of service animals by individuals with disability is generally reasonable, it is appropriate to consider the DOJ regulations and guidance applicable to the ADA’s reasonable modification requirements when answering that question.
  15. Citing to a case that we discussed in this blog entry, the court said that the service animal regulations are consistent with and a specific application of the reasonable modification requirement of the ADA. More specifically, those regulations present DOJ’s holistic view in enforcing the ADA when it is reasonable and unreasonable to require accommodating service animals.
  16. Defendants do not always have to allow service animals if to do so would fundamentally alter the nature of the program, pose a direct threat to the health or safety of others, or if the animal is either out of control or not housebroken. Further, in a footnote, the court notes that service animal under 28 C.F.R. §§104, 36.104 has a very precise definition namely, any dog individually trained to do work or perform tasks for the benefit of an individual with a disability.
  17. Under the DOJ final regulations on service dogs, a person with a disability proposed accommodation of her service animal is reasonable as a matter of law in the absence of direct threat, fundamental alteration, dog out of control, or the dog is not housebroken.
  18. The DOJ regulations are entitled to Chevron deference.
  19. The DOJ interpretation of its regulations must be deferred to as well because such an interpretation is not plainly erroneous or inconsistent with the regulation.
  20. The DOJ regulations on service dogs fulfill Congress’s intent to provide the broadest feasible access to service animals in all places of public accommodations, with few exceptions.
  21. Considering all of the above, logic dictates that the service animal regulations are no less relevant to the interpretation of the Rehabilitation Act even though they technically are only interpreting the ADA. Accordingly, where no exception for the allowance of a service dog applies per the applicable DOJ regulations, the use of a service animal by a person with a disability is per se reasonable.
  22. Numerous agencies have indicated in one form or another that a person’s request to be accompanied by a service animal is generally reasonable.
  23. HUD has even indicated that the Rehabilitation Act might go even further than the ADA when it comes to service animals. As we have discussed previously, HUD has interpreted the Fair Housing Act as going further than the ADA.
  24. While responsibility for administering the Rehabilitation Act was not delegated to a single agency, the body of work of the agencies implementing the Rehabilitation Act does constitute a body of work that courts and litigants can resort to for guidance.
  25. Congress has given no indication that service animals should be less accommodated in the school setting then in another setting covered by the Rehabilitation Act or the ADA. In fact, the Rehabilitation Act specifically notes that individuals with disability continually to encounter discrimination in education. Further, the Rehabilitation Act at 29 U.S.C. §701 has an integration and inclusion requirement built into it.
  26. Claims alleging failure to accommodate under the Rehabilitation Act involve the same inquiry as those alleging failure to accommodate under the ADA, namely: 1) was the requested accommodation reasonable?; 2) Whether the requested accommodation was necessary; and 3) would the requested accommodation fundamentally alter the nature of the program?
  27. The jury instructions were flawed for two reasons. First, the accommodations were reasonable as a matter of law in light of the facts as applied to the DOJ final implementing regulations. Second, the jury instructions confused the reasonable accommodation with the separate requirement that the accommodation be necessary. Accordingly, the jury wasn’t instructed properly.
  28. Compelling evidence existed that the dog accompanying the child was indeed necessary for providing meaningful access to the school’s programs and activities.
  29. The alternatives offered by the school simply did not cut the mustard (the court uses the term, “woefully short.)” In particular, the child was subjected to additional safety risk, increased anxiety leading to more seizures, and a gaping educational deficit causing her to regress to a prior year when she transferred to a public school. Further, forcing the dog to wear a vest prevented the dog from doing the job it was supposed to do.
  30. The facts and the law are such that a reasonable jury would award a verdict for the plaintiff.
  31. In a footnote, the court notes that where a trial judge rules early in litigation that a rule of law applies to the facts and that ruling shape the course of the trial and strategy, but then the judge reverses course, the parties may be prejudiced under a doctrine called law of the case.
  32. Dismissing the state law claim was improper because while the liability standards for the Pennsylvania Human Rights Act and the ADA are the same, the remedies are not. More specifically, the Pennsylvania Human Rights Act expressly permits damages. Further, the Pennsylvania Human Rights Act specifically has a provision that prohibits places of public accommodation from denying any person the use of a guide or support animal in order to access accommodations, advantages, facilities, or privileges of a place of public accommodations. Accordingly, the dismissal of the Pennsylvania Human Rights Act claim has to be reversed.

III

Takeaways

  1. Absolutely mind-boggling to me the efforts that the mom went through to get the school to do the right thing. Few people would have stayed with it that long. Curious, as to why the board of the school was never contacted. At least, nothing in the opinion indicates as much.
  2. Also, mind-boggling to me is the school’s behavior with respect to service dogs. Certainly, not good preventive law at all. I can only imagine how much money was spent on the defense in this case and the appeal only to see it all go up in smoke. Further, liability is certain as is damages. So, the defense is going to have to pay for its attorneys fees, plaintiffs attorneys fees, and whatever damages are awarded. Hard to believe this case won’t settle for a substantial sum and a substantial award of attorney’s fees.
  3. The court’s reasoning is exhaustive. Hard to argue that the Rehabilitation Act and the ADA should not be interpreted in the same way.
  4. I find it interesting that the Administrative Procedure Act did not come up. Ordinarily, the way that it works is that the agency responsible for implementing the regulations goes through a rule making effort. Once that effort has been completed, those regulations become final and are binding upon the courts. So, each agency could through the rulemaking system have its own spin on service dogs. The problem here is, as the court noted, the Rehabilitation Act does not designate a single agency for carrying out the law. That is not the case with the ADA (it’s either the EEOC or the DOJ). The lack of a single agency being given implementing authority may be another reason why the DOJ regulations could be imposed upon the Rehabilitation Act.
  5. Considering the United States Supreme Court decision in the case we discussed here with respect to service dogs, I don’t see how an appeal by the school to the Supreme Court will be successful.
  6. The decision is published and is thereby likely to be cited frequently around the country.
  7. The DOJ service dog implementing regulations are entitled to deference. That shouldn’t surprise readers of this blog as we discussed that issue many moons ago here.
  8. One does not have to look further than this case to realize that jury instructions are a big deal.
  9. Who is educating the judges? I had the privilege of doing an education training session on service dogs and effective communication to municipal judges in Georgia. This case does raise the issue that District Court judges when they are getting trained should revisit the ADA as part of that training. It would make a difference with respect to service dog issues as well as accommodating people with disabilities in the court system generally (the latter issue we discussed previously in our blog, such as here).
  10. Schools need to be aware that the world does not end with IDEA, but rather they have to consider the ADA and the Rehabilitation Act as well.
  11. While title III of the ADA does not contain a right to damages, applicable state law might. Further, applicable state law may have a much lower threshold for coverage than the ADA does.
  12. What this case says is that interpretation differences between the Rehabilitation Act and the ADA are going to be few and far between, if ever. The biggest difference out there now is that causation and damages (damages would be different if a title III matter was involved), are different between the two laws.

I know I am late with a blog entry for this week, but I have a good excuse. Here in Atlanta, school starts August 1, and I have been dealing with some of those issues. Also, I had an expert witness report due yesterday and that consumed all the oxygen in the room. At any rate, ready to go. The blogosphere has lit up with a very novel case alleging that a class action should be certified against Steak ‘N Shake because they do not have policies and procedures in place to proactively deal with inaccessibility of restaurants. My colleague Richard Hunt brought the case to my attention in his excellent blog entry on the case (which can be found here). I also saw another firm talk about it in my Lexology feed. I thought I could add a different perspective, and so here goes. Before moving on to that, the necessity of adopting an ADA compliance policy is not a new one on this blog, as we discussed in this blog entry. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning standing; court’s reasoning Rule 23(A); and takeaways. The reader is free to read any or all of the sections. The whole blog entry is pretty short and not as complicated as usual. So, you’re probably going to want to read the whole thing.

I

Facts

The facts are pretty straightforward. You have two individuals with disabilities who claim they personally experienced difficulty in moving through steeply graded parking facilities at one Steak ‘N Shake location each. Here’s where it gets interesting. The two plaintiffs sought to enjoin the defendant on a national basis by requiring the company to adopt corporate policies relating to ADA compliance. That is, plaintiff sought to have the court mandate the adoption of centralized corporate policies crafted to ensure potentially discriminatory access violations were actively sought out and corrected. At the lower court level, the District Court certified an extremely broad class and defendant appealed. Also interesting, is that despite the novelty of this cause of action, the defendant prior to appealing the decision to the Third Circuit, had yet to file a motion to dismiss or a motion for summary judgment.

II

Court’s Reasoning Standing

  1. The plaintiffs present a colorable argument that the ADA does require the defendant to adopt new policies requiring them to actively seek out and correct access violations.
  2. While the lack of a policy by itself is not sufficient to confer standing, both plaintiffs allege that they had actual physical difficulty in moving through parking facilities that were not ADA compliant, and they both personally experienced those injuries.
  3. Since they personally experienced those injuries, the injuries were not hypothetical or conjectural.
  4. The injury in fact is fairly traceable to the challenged conduct of the defendant. That is, the lack of proactive ADA access policies is sufficient to show a traceable connection between alleged injury in fact and the alleged conduct of the defendant. It isn’t simply a matter of but for causation.
  5. While it is a close call that the injury could be redressed by a favorable decision, the Third Circuit believes the balance falls to the plaintiff. In particular, the District Court could order the defendant to develop training protocols to make sure their maintenance employees are aware of the ADA’s structural requirements and know how to identify access violations for proper repair. They also could be required to conduct annual ADA specific inspections to ensure accessibility is maintained. The District Court could require the defendant to refrain from engaging in the current practice of performing ADA inspections only in response to complaints brought to the company’s attention by patrons. Finally, plaintiffs requested that the District Court retain jurisdiction over the matter to make sure the defendant did what it was supposed to do.

III

Court’s Reasoning Rule 23(A)

  1. It takes a lot under United States Supreme Court case law for a class to be certified and broad classes are not favored. See this blog entry for example.
  2. Mere speculation as to the number of class members cannot support a finding of numerosity. More detail is needed. For example, what portion of individuals with disabilities existing in the United States have actually patronized a relevant restaurant of the defendant, let alone the portion experiencing or will experience an ADA violation at one of those restaurants?
  3. Upon remand, for a class certification to be upheld, plaintiffs will have to provide evidence so that the District Court can conclude a sufficiently numerous group of individuals with disabilities have experienced or will experience ADA violations at relevant restaurants of the defendant. Much of this can be found in census data, but that and something more will be required to satisfy the numerosity burden.
  4. The class is simply too broad to be able to withstand recent Supreme Court decisions on when a class can be certified. In particular, class members claims must depend upon a common contention capable of class wide resolution in one stroke, which is not the case with the current class definition. Solving that problem is doable. For example, the class might be limited to slope related injuries occurring within the defendant’s parking facility.

IV

Takeaways

  1. Here is what I don’t get about this decision at all. The final implementing regulations for the Rehabilitation Act require a disability discrimination grievance procedure if the employer has over 15 employees. For the ADA, a grievance procedure is required if the employer has 50 or more employees. Clearly, Steak ‘N Shake has the requisite number of employees. Now, if you are going to have an ADA/Rehabilitation Act grievance procedure, you might as well have a compliance program so that you can head a lot of the problems off at the beginning. A compliance program also makes great preventive law sense. What might such a title III compliance program look like? Well, you can most certainly start with this blog entry and this blog entry. For that matter, with respect to developing a compliance program for title III of the ADA, any of my blog entries discussing title III issues will be helpful.
  2. I just don’t understand why the attorneys for the plaintiffs did not bring up that the final implementing regulations for both the Rehabilitation Act and the ADA require an ADA grievance procedure for Steak ‘N Shake since having an ADA/Rehabilitation Act grievance procedure invariably leads to a compliance program.
  3. With respect to the rest of it, my colleague Richard Hunt makes a great deal of sense in his blog entry, noted above, as to why title III policy focused litigation doesn’t make a lot of sense under the parameters of title III.
  4. Not sure what happens next. Does the defendant appeal to the United States Supreme Court? Do they request a rehearing en banc? How does the whole thing change once you rope in that the defendant is already required to have an ADA grievance procedure?
  5. Bottom line: Regardless of this kind of litigation, good preventive law demands an ADA/rehabilitation act grievance procedure and a compliance program. A grievance procedure might head off more expensive litigation. A compliance program most certainly would. Of course, the other option is to just pay lots of money to both attorneys for the plaintiff and the defendant since it is a fee shifting statute.

Previously, I had mentioned that I was going to explore how some States are reacting to the increasing use of dogs being misrepresented as service dogs. I also previously covered here the approach Texas took with respect to service dogs in general. So, today, I want to explore how Hawaii and Washington are reacting to the problem. Hawaii gets it right, but Washington, effective January 1, 2019, goes way too far. Finally, if you have not voted yet for understanding the ADA’s inclusion in the ABA 100 for this year, please do so as the deadline for voting is tomorrow. The link for voting can be found here, and you have until August 7 to vote. As usual, the blog entry is divided into categories and they are: Hawaii’s reaction to the service dog problem; Washington’s reaction to the service dog problem; and my thoughts on the Washington approach. As usual, the reader is free to concentrate on any or all of the categories, but probably will want to read the whole thing.

I

Hawaii’s Reaction to the Service Dog Problem

Hawaii recently enacted legislation without the Governor’s signature in response to the service dog backlash. It isn’t easy to find the engrossed bill on their website, but the site where you can find it would be located here. The important provisions are as follows:

  1. The definition of a service animal tracks the definition of a service animal under DOJ’s title II and title III final regulations.
  2. Hawaii believes that a penalty for misrepresentation of a dog or other animal as a service animal would discourage people from fraudulently representing their pets as service animals.
  3. Imposes a civil penalty for a person to knowingly misrepresent as a service animal any animal not meeting the requirements of the service animal statute.
  4. Clear and convincing evidence is the burden of proof in order to find that a person is subject to a civil penalty for misrepresenting an animal as a service animal.
  5. Hawaii previously had a section of the statute making it a penalty for someone to intentionally interfere with the use of a service dog and that section has not changed in any substantive way.

II

Washington’s Reaction to the Service Dog Problem

The Washington Attorney General leads the charge against many of President Trump’s actions. So, I was a little bit surprised that the Governor of Washington actually signed this legislation. Let’s explore how this legislation goes too far. Particularly, if you are working on behalf of enforcement officers in the state of Washington, I would check your ability to respond to the inevitable increase in both §1983 claims and ADA interference claims, as those claims are about to go through the roof. Let’s see why. Here are the key provisions of the Washington law:

  1. As in the case of Hawaii, Washington also finds that too many people are misrepresenting their animals as service animals. Such misrepresentation is a disservice to both persons relying on the use of legitimate service animals as well as the places of public accommodations and their patrons.
  2. The definition of a service animal tracks the definition of the service animal in DOJ’s title II and title III final implementing regulations.
  3. Makes it a civil infraction for any person to misrepresent an animal as a service animal.
  4. A violation of the misrepresentation provision occurs whenever: A) a person expressly or impliedly (emphasis added), represents an animal as a service animal for the purpose of securing the rights or privileges afforded disabled persons accompanied by service animals set forth in Washington or federal law; or B) a person knew or should have known (emphasis added), that the animal in question did not meet the definition of the service animal.
  5. Allows an enforcement officer to investigate and enforce the statute by making an inquiry of the person accompanied by the animal in question and issuing a civil infraction. Further, any refusal to answer the questions allowable creates a presumption that the animal was not a service animal and the enforcement officer may issue a civil infraction and require the person to remove the animal from the place of public accommodation.
  6. The two inquiries an enforcement officer can make of an individual with an alleged service animal are whether the animal is required because of a disability and what work or task the animal has been trained to perform. Generally speaking, an enforcement officer or place of public accommodation may not make those inquiries about a service animal when it is readily apparent that an animal is trained to do work or perform tasks for a person with a disability.
  7. Miniature horses are allowed if they are used in the same way as a service animal.
  8. The maximum penalty is $250 but increases to $500 where a person refuses to answer the enforcement officer’s questions.

III

My Thoughts on the Washington Approach

  1. Like many States, the definition of disability is different than the ADA. With respect to Washington, the definition of disability includes a record of an impairment as well as regarded as. However, the first prong of a disability under Washington law is different than the ADA. Under Washington law, disability means the presence of a sensory, mental, or physical impairment that is medically cognizable or diagnosable. That prong is quite a bit different than the first prong under the ADA. Also, Washington essentially takes the ADA’s definition of major life activities and incorporates its into their definition of an impairment. Finally, Washington has some very interesting provisions with respect to disability in the workplace. Did I mention, I am not a Washington lawyer?
  2. Don’t have a problem with the definition of service animal under Washington law as it tracks the DOJ’s title II and title III final implementing regulations.
  3. I very much have a problem with how Washington law imposes a civil penalty where a person either impliedly or should have known that the animal in question does not meet the definition of a service animal. The reason I have a problem with it, is that a person may not actually know whether their animal is a service animal or not. They may honestly think their animal is a service animal when it isn’t. Another thing I have seen is a person honestly thinks their animal is an emotional support animal when it is actually a service animal.
  4. Enforcement officers in the state of Washington now have to worry about added liability under both 42 U.S.C. §1983 as well as under 42 U.S.C. §12203.
  5. 42 U.S.C. §1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

Washington law, RCW 7.80.040, defines an enforcement officer as, “a person authorized to enforce the provisions of the title or ordinance in which the civil infraction is established.” That means police officers are included within that definition. Accordingly, if they implement this law wrongly. For example, ask questions when they are not supposed to, or do not ask the proper questions, or do not make the proper determination after asking the proper questions, then they are depriving the person with a disability the rights and privileges under the ADA. Further, qualified immunity won’t be of help since what enforcement officers are supposed to do is all laid out in Washington statutes.

  1. The knowingly or should have known provisions of the Washington law are so vague as to make the argument that the law and certainly its implementation will interfere with the rights of persons with disabilities thereby violating 42 U.S.C. §12203(b). That is, a person with a disability with a dog or a miniature horse trained to engage in recognition and response (i.e. a true service animal), now has a very strong disincentive not to bring their service animal into a place of public accommodation or into a public entity knowing that he or she is likely to be challenged by both employees and even police officers, and perhaps aggressively so. The vagueness of the law also creates the argument of a substantive due process/equal protection claim as well.
  2. Considering the aggressiveness of the Washington Attorney General with respect to responding to numerous initiatives of President Trump, I wonder if he will even bother defending the inevitable challenges to this law. Also, considering the increased liability under §1983, I am a bit surprised that the enforcement officers in the state of Washington did not mobilize against it (I am assuming they did not mobilize against it because otherwise it is hard to believe the law would have been signed, though I don’t have actual knowledge either way).
  3. When it comes to service dogs, the approaches of the States can vary significantly. You do want to contact knowledgeable legal counsel with respect to your specific jurisdiction’s laws. Many States are basically codifying the final title II and title III implementing regulations of the DOJ. That is okay. The problem is when States overreact, such as in Washington’s case. Washington’s particular problems are that the statute is extraordinarily vague and it imposes obligations on enforcement officers. I do think enforcement officers in the State of Washington need to be checking to make sure they are prepared for the increase in 42 U.S.C. §1983 claims that are likely to occur now. I also look for more interference claims to occur as well.
  4. The problems in the Washington law could be solved by getting rid of “impliedly or should have known language,” in the statute and by not imposing a civil penalty on a person refusing to answer an enforcement officer’s question. Also, the Washington service animals misrepresentation provisions do not mention any burden of proof for finding a violation. Considering the federal rights involved, I like Hawaii’s clear and convincing evidence standard.

Finally, don’t forget to vote for understanding the ADA’s inclusion in the ABA 100, here. Deadline tomorrow.

My daughter started high school today! City Schools of Decatur always start school on August 1. They operate on a six weeks on and one week off system with two months for summer vacation. They also get two weeks for Christmas. It took some getting used to, but I like it, and the kids appreciate a break every six weeks. Also, if you have not voted yet for understanding the ADA’s inclusion in the ABA blog 100 for this year, please do so. The link for voting can be found here, and you have until August 7 to vote. Your vote is much appreciated as is your readership.

 

You never know about a blog entry. Until about a 3 hours ago, I was thinking of blogging on some State developments with respect to the blowback against fake service dogs, and I still may do that at some point this week depending on my schedule. At any rate, I definitely have a discussion of the blowback against fake service dogs in my pipeline to blog about. However, I just saw in my Law 360 feed an unpublished decision from the 11th Circuit came down yesterday on whether the Internet is a place of public accommodation. The case is Haynes v. Dunkin’ Donuts LLC. 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

The plaintiff is blind. In order to use the Internet, he relies on screen reading software, JAWS. One day he attempted to go to the website for Dunkin’ Donuts but the website was not compatible with his or any other screen reading software. In particular, he could not use screen reading software to locate the physical Dunkin’ Donuts store locations or purchase gift cards online. Dunkin’ Donuts filed a motion to dismiss, which was granted by the District Court, and plaintiff appealed.

II

Court’s Reasoning Reversing and Remanding District Court’s Granting of Motion to Dismiss

  1. Per 42 U.S.C. §12182(b)(2)(A)(iii), discrimination includes when a place of public accommodation fails to take steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services.
  2. The prohibition on discrimination is not limited to tangible barriers that persons with disability face but extends to intangible barriers as well.
  3. Previously, the 11th Circuit has held in Rendon v. Valleycrest Productions, Limited that a telephone selection process that discriminated against the Deaf stated a claim for relief under the ADA because the inaccessibility of the telephone selection process prevented the plaintiff from accessing a privilege to be a contestant on the show afforded by the television studio.
  4. The website appears to be a service facilitating the use of Dunkin’ Donuts shops, which are places of public accommodations.
  5. Whatever goods and services Dunkin’ Donuts offers as a part of a place of public accommodation, it cannot discriminate against people on the basis of disability even where those goods and services are intangible.
  6. The alleged inaccessibility of Dunkin’ Donuts’ website denies the plaintiff access to the services of the shops available on Dunkin’ Donuts’ website, which includes information, among other things, about store locations and the ability to buy gift cards online. Such a failure to make those services accessible to the blind can be said to exclude, deny, or otherwise treat blind people differently than other individuals because of the absence of auxiliary aids and services.
  7. Per 28 C.F.R. §36.303(b)(2), screen reader software is given as an example of an auxiliary aid or service.

III

Takeaways

  1. This decision is not published. So, you will need to check your jurisdiction with respect to its citability.
  2. In a footnote, the court specifically leaves for summary judgment Dunkin’ Donuts’ argument that Dunkin’ Donuts website is not a service, privilege, advantage, or accommodation of Dunkin’ Donuts physical places of public accommodation because it is merely the franchisor of Dunkin’ Donuts shops. As this case goes forward, the parties would do well to keep in mind the litigation that has been going on with respect to joint employers and franchisors, such as McDonald’s. Many of my fellow bloggers (including Jon Hyman, Eric Meyer, and Robin Shea), have discussed that area of litigation. You can find all of their blogs in my blog roll.
  3. We have discussed whether Internet sites are places of public accommodations numerous times in this blog. As you may recall, the cases break down typically into: 1) the Internet is never a place of public accommodation; 2) the Internet is always a place of public accommodation; 3) the Internet is a place of public accommodation when it acts as a gateway to a physical place; 4) the Internet is a place of public accommodation if what is happening on that Internet site meets one of the categories laid out in 42 U.S.C. §12181(7); and 5) the Internet is a place of public accommodation only if it can be shown that the person with a disability would actually visit the physical store;. It is interesting that the decision does not mention any of the decisions in categories 1-5 of this paragraph. For that matter, the court does not discuss the recent United States Supreme Court decision in South Dakota v. Wayfair. 
  4. Lawyers love parameters that they can get their hands on. I am not sure this case offers much in that way. That said, in light of the recent Supreme Court decision mentioned in ¶ 3, the best preventive law approach involves asking whether the Internet site is engaged in any of the categories in 42 U.S.C. §12181(7), and if so, getting that website accessible to persons with disabilities. Remember, the standard is meaningful access (WCAG 2.0 AA is the gold standard), and don’t forget about voice dictation technology as well as screen reading technology. Also, don’t forget about making sure that the website works with individuals with multiple disabilities.
  5. The District Courts within the 11 Circuit are a mixed bag for people with disabilities, but as of late, persons with disabilities are faring very well at the 11th
  6. In the case we are discussing here, the court assumed that a place of public accommodation is involved and then proceeds to say a claim exist because a privilege, service, or advantage is involved. Further, that privilege, service, or advantage is treating people with disability differently than people without disabilities. It is going to be really interesting to see how the District Court rules on Dunkin’ Donuts’ future summary judgment motion.
  7. The blog entry where we discussed South Dakota v. Wayfair also has a discussion of Haynes V. Hooters. As far as I can tell, the plaintiff in Haynes v. Hooters and in the case discussed in this blog entry are one and the same.

Lastly, if you haven’t voted yet for understanding the ADA’s inclusion in the ABA 100, please do so!

For those who have children starting school eminently or, like myself, have children already starting school, good luck on the school year!