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!

Before getting started on the second blog entry of the week, as mentioned in the first blog entry of the week, a few housekeeping matters are in order. First, it is that time of year again to vote for the ABA 100. I have been thrilled to be part of that for the last four years running and would love to make it five. I know I have lots of loyal readers, and I would greatly appreciate your vote. You can vote here. I have received reports from those seeking to vote on their mobile phone, that you may have a hard time finding the submit button. It is a little arrow in a blue box at the bottom of the screen. People tell me that the problem does not occur if you are voting on a laptop or a PC. Second, leaving for a family vacation to California Sunday. This week my daughter is still home from school, and Saturday, we are going to see the Book of Mormon. So, do not expect a blog entry from me for the week of July 23. Also, since my daughter starts school August 1, it may be the middle of that week before I get a blog entry up. Finally, July 26 is the 28th anniversary of the ADA. Congratulations! It has helped people with disabilities come a long way, but there is still a long way to go.

Turning to the subject of our blog entry, on more than one occasion, I have consulted on behalf of professionals who had licensing’s boards go after them on the basis of their disability. It is a real problem, especially among medical professionals, but not exclusively so. The case of the day, Hobbs v. Florida Board of Bar Examiners, should serve as a wake-up call for licensing boards to reevaluate their behavior or face discovery and possible liability in ADA lawsuits. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning standing; court’s reasoning ripeness; court’s reasoning mootness; court’s reasoning Florida Supreme Court as improper party; court’s reasoning sovereign immunity; court’s reasoning with respect to failure to state a claim; and takeaways. Of course, the reader is free to concentrate on any or all of the categories.

I

Facts

As a first year student at a Florida law school, plaintiff submitted to the Florida Board of Bar Examiners a Florida Registrant Bar Application. The Board allows and encourages first-year student to do this if they intend to apply for membership in the Florida Bar upon graduation.

One of the questions on the application form is whether the applicant had been treated for any severe thought or mood disorder substance-use disorder within the prior five years. Plaintiff truthfully answered yes because he had been treated at a Veterans Administration Medical Center by a Doctor Michael Stewart, a clinical psychologist. He had diagnosed an adjustment disorder with mixed anxiety and depressed mood as well as alcohol-use disorder. Plaintiff also disclosed that he had been arrested twice for driving under the influence of alcohol.

Plaintiff attributed his conditions to his service in Afghanistan and Iraq where, as an Army captain, he had the responsibility for 175 soldiers while working to counter improvised explosive devices. He submitted the application with the letter from Dr. Stewart, which said that plaintiff had undergone treatment and has made significant progress. It also said that plaintiff would suffer no deleterious effects in the legal profession.

In response to the disclosed information, the Florida Board of Bar Examiners asked for ALL of plaintiff’s medical records. They also insisted that plaintiff submit to a full evaluation, including: a complete medical history and physical examination; a psychiatric evaluation with psychological testing and psycho-social testing; biological drug and alcohol screening on at least two occasions; and a substance use disorder evaluation. The Florida Board of Bar Examiners insisted that these procedures be conducted by one of 11 doctors specified by the Board, only six of whom had offices in Florida and only one of whom had an office in Tampa where the plaintiff was a student. Further, the Florida Board of Bar Examiners said that the plaintiff would have to pay for these procedures at an estimated cost of up to $5000. Finally, the Florida Board of Bar Examiners said that the doctor might also need to conduct inpatient evaluation, but if that was necessary, the doctor would explain the reasons and seek the Florida Board of Bar Examiners permission.

The Florida Board of Bar Examiners did not explain its demand for a complete physical examination even though in the ordinary understanding of the term that would encompass medical information wholly unrelated to anxiety or alcohol-use disorders or fitness to practice law. Also, the Florida Board of Bar Examiners did not explain its demand for a complete medical history back to birth, which would also include information unrelated to anxiety or alcohol-use disorders or fitness to practice law. The Board did tell the plaintiff that he could have an investigative hearing before it. Anybody seeking an investigative hearing must pay a $250 fee.

As a result of all this, plaintiff withdrew his application. However, he still intends to practice law in Florida upon law school graduation, May 2019, and intends to apply for admission to the Florida Bar at that time.

II

Court’s Reasoning That Plaintiff Has Standing

  1. In order to have standing, a plaintiff must meet the following criteria: 1) plaintiff must have suffered an injury in fact. That is, an invasion of a legally protected interest that is concrete and particularized, and actual or imminent (not conjectural or hypothetical); 2) there must be a causal connection between the injury and the conduct complained of; and 3) it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
  2. Plaintiff applied to the Florida Bar, paid the fee, and was required to disclose extensive private information allegedly in violation of the ADA and the Rehabilitation Act.
  3. Plaintiff was told that his application would be processed only if he submitted to further invasive procedures at substantial cost-procedures plaintiff asserted were unnecessary, violated his privacy, and violated the ADA and Rehabilitation Act.
  4. Plaintiff has already suffered a past injury by paying the fee, having his privacy interests affected, and having to abandon his application rather than suffer further invasive procedures that he alleged would have violated federal law.
  5. Plaintiff alleged that if he applied began, he will suffer the same injury and will be required to pay for and undergo invasive physical and mental examinations. Plaintiff reapplying for readmission is not speculative as he is a law student at a Florida law school and has already tried once to apply to the Florida bar.
  6. Plaintiff is suffering an actual ongoing injury because the only way to avoid giving a yes answer to the mental health treatment question is to wait five years until he was last treated for the mental health condition. Accordingly, since she was last treated in 2016, he would have to wait until 2021 to apply without answering the mental health question in the affirmative, and, in the meantime, would have to forgo treatment until then.
  7. The Florida Board of Bar Examiners procedures force the plaintiff to immediately choose one of three options: foregoing treatment; delaying his application; or submitting to an invasive examination that is alleged to violate federal law. Plaintiff argued “with some force,” (court’s actual words), that providing applicants an incentive to forgo treatment is the wrong approach to mental-health or substance-abuse issues.
  8. Since the Board’s procedures caused the plaintiff’s injury and will cause the same injury again if they are not enjoined or abandoned, there is a clear causal connection between the Board’s procedures and the injuries complained of.
  9. It is certain that the injury can be redressed by a favorable decision because if the court orders discontinuation of the practices in violation of the ADA or Rehabilitation Act, the Board would discontinue the practice.

II

Court’s Reasoning Plaintiff’s Claim Is Ripe

  1. Damages to the plaintiff have already occurred.
  2. Plaintiff is a rising third-year student ranking high in his class and expects to graduate in about 12 months, which is not much longer than it sometimes takes to adjudicate a claim of this kind.
  3. Plaintiff’s prior application and the Florida Board of Bar Examiners response to that application frame the issue sufficiently to make them fit for a judicial decision.
  4. Withholding court consideration not only causes considerable hardship to the plaintiff but to the Florida Board of Bar Examiners and the court as well. That is, it benefits nobody to require the claims addressed on an emergency basis later rather than in an orderly fashion now.
  5. Plaintiff filed a lawsuit in time to allow full and fair consideration of the positions and issues certain to come to a head soon.

III

Court’s Reasoning Plaintiff’s Claim Is Not Moot

  1. Plaintiff’s claim for past damages is not moot because he has asserted the claim and the defendants have not paid it.
  2. Plaintiff seeks an injunction to prevent future violations. That is, he has not abandoned his intention to apply for Florida Bar membership and the Florida Board of Bar Examiners has not abandoned its position that he must submit to the procedures they demanded.

IV

Court’s Reasoning That the Florida Supreme Court Is Not a Proper Party

  1. Plaintiff did not allege that the Florida Supreme Court had any role in processing plaintiff’s application.
  2. Based upon a rule adopted by the Florida Supreme Court, the proper defendant in a lawsuit challenging action taken by the Board of Bar Examiners is the Board of Bar Examiners and not the Florida Supreme Court.
  3. Effective relief can be granted against the Florida Board of Bar Examiners and its executive director regardless of whether the Florida Supreme Court is named.

V

Court’s Reasoning Denying Motion to Dismiss ADA and Rehabilitation Act Claims on the Grounds of Sovereign Immunity

  1. A State waives its 11th amendment immunity from a Rehabilitation Act claim when it accepts federal funds because such a waiver is an unambiguous condition for accepting the funds in the first place.
  2. The Rehabilitation Act waiver only extends to claims based on conduct of the department receiving the federal funds.
  3. While the Florida Board of Bar Examiners itself does not receive federal funds, other entities within the Florida court system do receive federal funds. Accordingly, whether the Florida Board of Bar Examiners has 11th amendment immunity depends upon whether the Florida Board of Bar Examiners is part of the same department as a court system entity receiving federal funds.
  4. A bright line test for determining what constitutes a department doesn’t exist. However, the following matter, but none of them are necessarily dispositive standing alone: how a state organizes offices and personnel; whether units share a budget; whether units are headed by the same person or board; whether employees can be hired and fired or otherwise managed by the same person or board; whether a unit has its own separate budget or its own ranking officer or governing board; and whether units have similar functions or unrelated functions.
  5. The Florida Board of Bar Examiners has repeatedly and successfully in the past insisted that it is an arm of the Florida Supreme Court fully protected from federal lawsuits on that basis. As a result, those decisions combined with the Florida Board of Bar Examiners relationship to the Florida Supreme Court, suggest that for Rehabilitation Act purposes, the Board is part of the same department as the Florida Supreme Court, and therefore, a motion to dismiss the Rehabilitation Act claim fails at this time.
  6. In short, if the Florida Supreme Court receives federal funds, the Rehabilitation Act applies to the Florida Board of Bar Examiners since it is an arm of the Florida Supreme Court. However, if the Florida Supreme Court, like the Florida Board of Bar Examiners itself, does not receive federal funds, then the Rehabilitation Act does not apply to the Florida Board of Bar Examiners. If it is later determined that the Florida Supreme Court does not receive any federal funds, a motion to dismiss the Rehabilitation Act claim on the basis of sovereign immunity can be filed later.

VI

Court’s Reasoning That Plaintiff Has Not Failed to State a Claim

  1. If, as plaintiff alleged, the Florida Board of Bar Examiners required him to submit to invasive procedures and to expend funds not because those requirements serve a purpose in determining his fitness to practice law but only because he has a disability, then the Florida Board of Bar Examiners violated the ADA.
  2. Placing unnecessary hurdles in the path of a person with a disability is exactly is an ADA violation as described in the findings section of the ADA, 42 U.S.C. §12101(a)(1).
  3. The Board does have every right to fully inquire about an applicant’s fitness to practice law. Some mental health conditions are indeed proper subject of inquiry. Driving under the influence in the past is a proper subject of inquiry. After all, an attorney must be able to remain focused and sober in order to handle a client’s business under stressful conditions.
  4. Plaintiff was treated by a well-qualified clinical psychologist at a Veterans Administration facility. Even so, the Florida Board of Bar Examiners refused to rely on that evaluation, which was formed after multiple therapy sessions, and instead insisted that plaintiff undergo an extremely broad evaluation by one of 11 doctors chosen by the Florida Board of Bar Examiners.
  5. No evidence exists that any of the 11 doctors chosen by the Florida Board of Bar Examiners could match plaintiff’s Doctor’s expertise in dealing with conditions secondary to participation in war.
  6. While the Florida Board of Bar Examiners may believe that a patient’s own treating professional may be unduly supportive of the patient or even that a Veterans Administration professional may be unduly supportive of the veteran, it is also possible to believe that a professional who routinely accept referrals from the Florida Board of Bar Examiners may be overly demanding of an applicant with a disability.
  7. Plaintiff’s complaint plausibly alleges that the scope of the evaluation the Board demanded was not reasonably related to plaintiff’s fitness to practice law.

VII

Takeaways

  1. As I mentioned above, the actions of licensing boards against persons with disabilities because of their disability is a real problem across a variety of disciplines and throughout the country. This case means that there is now a decision saying licensing boards need to be aware that the ADA and the Rehabilitation Act need to be dealt with. Accordingly, many of their practices will need to be reevaluated.
  2. Sovereign immunity arguments may actually come back to bite a defendant with respect to whether sovereign immunity is waived when it comes to the Rehabilitation Act claims. That is a bit counter-intuitive, but the reasoning of the court makes sense.
  3. As the system is set up now, people trying to get into the profession, whatever that profession may be, have a disincentive to deal with their MH problems before they get into the profession. That doesn’t make a lot of sense. This case may help change that.
  4. Plaintiff here was a very sympathetic figure having served in Afghanistan and Iraq as an Army captain and having had the responsibility for 175 soldiers working to counter IED’s.
  5. As I have said elsewhere in this blog, especially in the employment context, it is one thing to ask for documentation to see how to deal with an accommodation request, but that request must be reasonable. Same is true with respect to licensing boards, which are a public entity under title II of the ADA.
  6. If you are licensing entity, make sure in addition to asking for narrowly focused documentation, that you do an individualized analysis so that you are not insisting on a resolution that doesn’t match the applicant’s disability.
  7. Don’t forget about direct threat, which we have discussed numerous times in this blog entry, such as here.
  8. Placing unnecessary hurdles in the path of a person with a disability is exactly what the ADA and for that matter the Rehabilitation Act were designed to prevent against.
  9. The five year window for mental health as by the Board has been held to be permissible in litigation around the country. The problem was not the question per se, but rather the Board’s reaction to the affirmative response.
  10. The Rehabilitation Act, with some exceptions such as hospitals and places of education (29 U.S.C. §794), only extends to departments taking federal funds and not to all of the operations of the entity.
  11. Licensing boards may want to reconsider automatic evaluations of applicants regardless of the evidence. Further, when such evaluations are called for, licensing boards will want to make sure that the evaluator is qualified for the particular set of conditions the applicant is faced with.
  12. ADA cases do have to deal with sovereign immunity and that can get complicated. A nice workaround is where the end of the accept federal funds, then you can go with a Rehabilitation Act claim. Keep in mind, two things. First, with some exceptions, as noted above, the federal funds must track the offending department. Second, causation is different under the Rehabilitation Act (solely by reason of), than it is under the ADA (by reason of), but that, such as in this case, may not matter.
  13. Training, training, training, and more training on the ADA/Rehabilitation Act is needed for licensing boards.

Before getting started on the first blog entry of the week, a few housekeeping matters are in order. First, it is that time of year again to vote for the ABA 100. I have been thrilled to be part of that for the last four years running and would love to make it five. I know I have lots of loyal readers, and I would greatly appreciate your vote. You can vote here. I have received reports from those seeking to vote on their mobile phone, that you may have a hard time finding the submit button. It is a little blue arrow at the bottom of the screen. The problem does not occur if you are voting on a laptop or a PC. Second, leaving for a family vacation to California next Sunday. This week my daughter is still home from school, and Saturday, we are going to see the Book of Mormon. So, do not expect a blog entry from me for the week of July 23. Also, since my daughter starts school August 1, it may be the middle of that week before I get a blog entry up. To make up for it, I am posting this blog entry and anticipate getting another blog entry up as well. Finally, it is still my plan to get an ADA version of what the recent Supreme Court nominee has done. However, that will take me some time to sift through the cases. It appears that there are about 21 cases that he has been involved with involving disability rights, but I don’t know that for sure yet. In any event, I have some time on that.

 

Turning to the blog entry, this blog entry discusses statistics on the ADA that the U.S. Courts just put out, which can be found here. Here are the highlights:

  1. For the year 2017, 10,773 filings in the federal court system were ADA cases. That amounted to 4% of the total civil docket and 27% of civil rights cases.
  2. From 2005 to 2017, employment ADA cases rose 196% to 2,494. Nonemployment ADA cases grew even more rapidly increasing 521% to 8,279 cases.
  3. In 2017, more than half of ADA cases were filed in California, Florida, and New York.
  4. The U.S. Courts said that the California filings may be related to the fact that California has a very strong disability discrimination law that links to the ADA. I should point out that recently, California amended that law to make architectural claims under the California law a bit more difficult.
  5. U.S. Courts said that in Florida testers may be contributing to the growth in ADA filings. It notes that Florida recently passed a law aimed at curbing ADA related lawsuits, which, of course, would only apply under Florida law.
  6. In New York, the age of many public buildings and infrastructure across New York City may be contributing to the increase filings. The U.S. Courts notes that the Metropolitan Transportation Authority of New York City had a class action approved against it for the lack of elevators at many subway stops.
  7. The U.S. population is getting older.
  8. It notes the Winn-Dixie case, which we discussed here. It says this case is the first ADA case raising a public accommodation claim related to website accessibility and speculates that the decision could open the door to filings of similar suits. I should point out that the phrasing is a bit weird because as we have discussed numerous times in the blog, this is not the first case discussing online sites as a place of public accommodation. It is the first case that went to verdict, but strangely the U.S. Courts doesn’t phrase it that way. A much larger issue to me than Winn-Dixie are the cases we discussed in this blog entry.
  9. Looking at the map of numeric changes in filing the ADA cases from 2016-2017, filings are way down in Arizona, Texas, and even Florida. Filings were way up in New York, California, Nevada, and Utah. It will be interesting to see whether the filings continue to go up in California and Florida in light of the recent State laws that were passed.
  10. After Utah, Colorado comes in with the fifth highest increase in filings for 2016-2017. After Colorado, comes Pennsylvania and then it drops off considerably after that. Both Colorado and Pennsylvania have disability discrimination laws that plaintiff may be what plaintiffs are turning to in addition to the ADA.

In all the years I have been blogging, the number of times I have blogged more than once a week is about three I believe. So, why am I making an exception now? Well, my next few weeks are going to be really weird. My daughter comes home from camp on Monday after four weeks. She then has two weeks at home before we all go on a family vacation to California for a week. Once we get back from that, she starts school August 1. Also, I have a bit of give in my schedule at the moment, and so I figured why not. Finally, there is a Supreme Court nominee decision coming up next Monday, and I am figuring that my next blog will be analyzing the nominee’s record when it comes to understanding the rights of persons with disabilities. It may take some time to go through all the relevant opinions. So, with that in mind, our case of the day is Pfendler v. Liberty Dialysis-Hawaii, LLC out of the Ninth Circuit decided July 2, 2018. It is a really short case, but it contains a lot of useful information about dealing with essential functions. As usual, blog entry is divided into categories and they are: facts; court’s reasoning reversing summary judgment for the employer; and takeaways. Since the blog entry is so short, I can’t imagine the reader will not read the whole thing. In any event, the reader is free to focus on any or all of the categories.

I

Facts

Plaintiff suffered a non-work-related shoulder injury and was granted a medical leave in January 2012. Between March and December 2012, he asked to return to work with a lifting restriction that started at 30 pounds and then went up to 50 pounds. The employer rejected those proposals relying on a written job description that lifting 75 to 100 pounds was an essential job function. At the District Court level, the court held that he was not qualified because he could not perform the essential function of the job as listed by the employer, and he appealed.

II

Court’s Reasoning Reversing District Court’s Summary Judgment in Favor of the Employer

  1. The employer bears the burden of production for establishing what are the essential functions of the job.
  2. A job’s essential functions are fundamental duties not the marginal functions of the position.
  3. Plaintiff testified that he only had to tilt the dialysis recliners and never had to lift one up. Further, evidence in the record existed from another person in the same position that the most weight lifted on a regular basis would be about 40 pounds, a figure within the doctor’s restrictions. So, a question of fact existed as to whether the 75 to 100 pounds was an essential function of the job. Therefore, summary judgment for the employer was not appropriate.
  4. If the lifting requirement was an essential function, plaintiff may have been entitled to an accommodation that the employer waive the formal lifting condition.

III

Takeaways

  1. I have said for years that the best way to think of essential functions of a particular job is in terms of fundamental duties of the position. It is always best if you keep it simple.
  2. This decision notes that the burden of production is on the employer with respect to what are the essential functions of the job.
  3. Just because the employer says something is essential in a job description does not mean that the employer automatically wins. What is happening on the ground is critical. So, make sure your job descriptions reflect the reality of what is actually happening. It is a good idea to periodically review job descriptions just to make sure they are accurate. Job descriptions always go out of date over time.
  4. The court statement that “If the lifting requirement was an essential function, plaintiff may have been entitled to an accommodation that the employer waive the formal lifting condition,” is simply not correct. That is, an employer is under no obligation under the ADA waive an essential function of the job. However, the employer does have to determine whether the essential functions of the job can be performed with or without reasonable accommodations.
  5. With respect to essential functions of the job, focusing on fundamental duties is the most simple way to go about it. However, for complicated situations, take a look at the EEOC seven factors test and three situation test, which can be found here, to flesh things out. In the vast majority of situations, the fundamental duties approach will solve your problems, but not always.
  6. Case law exists saying that a function can be essential even if it is not done very often. A fellow blogger, Eric Meyer, whose blog The Employer Handbook appears in my blogroll, discussed such a case here.
  7. Whether a person has a disability under the ADA does not depend upon how that person incurs that disability.

Happy Fourth of July holiday everyone!

 

Today’s case, National Association of the Deaf et. al. v. State of Florida et. al., comes to me from Courtney Cunningham who has been working this case for some time. The National Association of the Deaf (by way of disclosure, I have known the Executive Director of NAD for years), also stepped in. As usual, the blog entry is divided in the categories and they are: facts; issues presented; holdings; court’s reasoning sovereign immunity; court’s reasoning failure to state a claim; and takeaways. Of course, the reader is free to focus on any or all of the categories.

Also, a heads up with respect to the following two weeks. My daughter comes back from camp on Monday after being away for four weeks. So, next week could be really interesting. With respect to the following week, my daughter starts school August 1 (I know we start really early here), and so a blog entry might not go up until the middle of that week. Now, turning to our case of the day…

 

I

Facts

The Florida Senate and Florida House livestream their legislative proceedings through a website and maintain archives of those videos. Florida State University also owns or operates a website that livestreams legislative proceedings and maintains archived recordings of such videos. The videos are not captioned. Videos are also posted on social media and those are not captioned either. In July, 2017, Sierra, a Deaf individual and a member of NAD sent a letter to the Florida Senate and to the Florida House requesting that they provide captions on the videos of their legislative proceedings. Neither responded to his letter or provided captions. NAD then filed a complaint against the Florida Senate and the Florida House with the Federal Communications Commission, probably because of this blog entry, different case involving the same plaintiff. That complaint was closed in March, 2018. NAD brought suit on behalf of its members, which included the complaining party, seeking monitory and injunctive relief. Defendants through the Florida Channel (a public affairs programming service wholly funded by the Florida legislature and produce and operated by Florida State University’s PBS station), responded to the FCC complaint by saying the Florida Channel produces a 24 hour television programming feed that is closed captioned. Any segment of legislative videos aired on that program are captioned. It also livestreams legislative proceedings, which is separate from the 24 hour television program. Those videos, which come from a different source than the captioned video displayed on the 24 hour television program, are put up on the Internet and made available to the public but do not include captions.

 

II

Issues Presented

  1. Is sovereign immunity applicable?
  2. Did plaintiffs fail to state a claim?

III

Holdings

  1. No
  2. No

IV

Court’s Reasoning regarding Sovereign Immunity

  1. A trend in the courts exists stating that absent the need to vindicate a fundamental right or protect a suspect class, Congress may not abrogate a State’s sovereign immunity.
  2. Relying on a decision from the Western District of Oklahoma, the court said that the plaintiff had a fundamental right of access to publicly available information needed to participate in the democratic process. Also, the Western District of Oklahoma noted that in enacting the ADA, Congress found pervasive discrimination by State governments against persons with disabilities, including the deaf and hard of hearing with respect to judicial resources.
  3. Plaintiffs are not seeking just any public information, but information going to the very heart of the democratic process-the text of legislative proceedings. Accordingly, the fundamental right to participate in the democratic process is involved.
  4. Even if the fundamental right to participate in the democratic process is not involved, sovereign immunity is still forcibly waived because Congress found pervasive discrimination by State governments with respect to those with hearing loss.
  5. Justice Breyer in his dissent in the Board of Trustees of the University of Alabama v. Garrett documented more than a thousand instances of State discrimination against those with hearing loss in a variety of contexts.
  6. In the ADA’s findings section, 42 U.S.C. §12101(a)(3), Congress noted discrimination against individuals with disabilities in a variety of critical areas, including access to public services.
  7. Adding captions to legislative videos removes a barrier to access for a service already provided to those who do not have a hearing loss. Further, the ADA allows defendants certain affirmative defenses. Accordingly, title II of the ADA is a congruent and proportional application of the 14th amendment and sovereign immunity is forcibly waived.
  8. Sovereign immunity does not apply where the plaintiff seeks prospective injunctive relief against individuals heading State entities, which is the case here.
  9. Where a State receive federal funds, sovereign immunity is waived. It is simply too early in the case absent discovery to reach the conclusion that the State does not take federal funds.

V

Court’s Reasoning Failure to State a Claim

 

  1. Stating a claim under title II of the ADA or §504 to Rehabilitation Act means showing: 1) plaintiff is a qualified individual; 2) plaintiff was excluded from participating in a public entity’s services, program, or activities; and 3) plaintiff was discriminated against because of his disability.
  2. Citing to the case we discussed here, the court said whether plaintiff was excluded from the public service turns on whether he had an equal opportunity as someone without a disability.
  3. Florida Channel’s response to plaintiff’s FCC complaint indicated that some legislative proceedings are broadcast with close captioned but not all. A person without a hearing loss gets to watch all legislative proceedings online, but a person with a hearing loss may watch only those legislative proceeding that the Florida Channel chooses to broadcast. That does not constitute an equal opportunity.
  4. Proving deliberate indifference as we have discussed previously, means showing that the defendant knew that harm to a Federal protected right was substantially likely and failed to act on that likelihood. Here, allegations in the complaint are that the plaintiff gave defendant notice of the alleged violations of title II of the ADA and §504. Further, NAD filed a complaint with the FCC prompting a response from defendants. Also, Sierra sent letters to the Florida House and to the Florida Senate, which the defendants never responded to. Finally, defendants response to the FCC complaint indicates no intent to change their current practices.

VI

Takeaways

  1. If you are a State legislature streaming legislative proceedings live, you better be sure they are captioned.
  2. Accessing publicly available information needed to participate in the democratic process is a fundamental right and therefore, any discrimination is subject to strict scrutiny.
  3. Language in the opinion suggests that with respect to discrimination against people with hearing loss, title II may be across-the-board, a permissible use of the equal protection enforcement clause.
  4. Sovereign immunity does not apply to injunctive relief.
  5. If you are representing a State agency and claim that you do not receive federal funds, that by itself, will not get you a motion to dismiss165
  6. .
  7. Whether a person is excluded from a program, service, or activity turns on whether that person has an equal opportunity as someone without a disability.
  8. As we discussed in the blog entry noted above, deliberate indifference but not mean the same thing as deliberate indifference in tort law.
  9. Due to what deliberate indifference means, it makes a great deal of sense for a plaintiff to issue a demand letter before filing suit under title II of the ADA. Such a letter would put the defendant on notice that a Federal protected right was involved and that they may be failing to act on that likelihood.

 

Have a safe and happy Fourth of July everyone!

I hope everyone is enjoying the summer. Here in  the Atlanta area, it has gotten really hot, which is to be expected this time of year down here. I just recently got back from Savannah from training municipal judges throughout Georgia on some hot issues they face with respect to the ADA. They were a great audience, and I had a blast.

Turning to today’s blog entry, website accessibility is back in the news. In particular, just how successful can a company be in fending off website accessibility litigation. Also, we will discuss why website accessibility litigation is here to stay, and we will try to read some tea leaves as to how the Supreme Court will deal with the issue. Before proceeding further, my colleague, Richard Hunt, and also blogger has an excellent blog entry this week talking about how it when it comes to website accessibility, your best choice is to fix it rather than contest it. Do you really want to be the Supreme Court test case? That blog entry also mentions a recent case from the 11th Circuit, Haynes v. Hooters of America LLC, where the 11th Circuit allowed a website accessibility case to proceed. As usual, the blog entry is divided into categories and they are: why you don’t want to be a test case; Haynes v. Hooters of America, LLC; and lessons learned from Haynes and takeaways. The reader is free to focus on any or all of the categories.

I

Why You Don’t Want to Be the Test Case: South Dakota v. Wayfair, Inc.

As most of you know by now, the Supreme Court on June 21, 2018, held that States could tax Internet only businesses consistent with the U.S. Constitution. Several statements from that decision strongly suggest that the Supreme Court would likely hold that businesses that are only on the web are places of accommodation under the ADA. Let’s explore those statements.

  1. “The physical presence rule has been the target of criticism over many years from many quarters.” I have not done a law review survey of whether the few cases holding that the ADA title III provisions only applies to physical spaces have been the target of large-scale criticism. I have certainly criticized it in this blog. It would not surprise me if others have as well.
  2. “And while Nexus rules are clearly necessary, the Court should focus on rules that are appropriate to the 21st-century, not the 19th [citation omitted]. Each year, the physical presence rule becomes further removed from economic reality…” As the Court notes, “it is an inescapable fact of modern commercial life that a substantial amount of business is transacted with no need for physical presence within the State in which business is conducted.”
  3. Paraphrasing, a physical presence rule creates rather than resolves market distortions. Certainly, that is true in the case of website accessibility litigation. That is, a holding that website only businesses do not have to comply with the ADA distorts the market because businesses with a physical presence do have to comply with an elaborate set of architectural guidelines. Such a policy creates a subsidy for Internet only business.
  4. “But the administrative costs of compliance, especially in the modern economy with its Internet technology, are largely unrelated to whether companies happen to have a physical presence in the State… In other words, …, A small company with diverse physical presence might be equally or more burdened by compliance costs than a large remote seller.” This is especially so when it come to the ADA Architectural Guidelines for physical spaces, which can be quite involved.
  5. “And it is certainly not the purpose of the commerce clause to permit the judiciary to create market distortions.” Certainly, a get out of jail free card to website only businesses creates market distortions.
  6. Paraphrasing, worse still, [a physical presence]… rule produces an incentive to avoid physical presence in multiple States. That means the market might currently lack storefronts, distribution points, and employment centers that otherwise would be efficient or desirable. True, the Supreme Court was referencing tax collection here, but the incentive is exactly the same when it comes to website accessibility.
  7. “… When the day-to-day functions of marketing and distribution in the modern economy are considered, it is all the more evident that the physical presence rule is artificial in its entirety.” Also, paraphrasing here, modern e-commerce does not align analytically with a strict physical presence test. Again, the Supreme Court was referring to tax collection here, but the same analysis applies to website accessibility.
  8. “But it is not clear why a single employee or a single warehouse creates a substantial nexus while physical aspects of pervasive modern technology should not. For example, a company with the website accessible in South Dakota may be said to have a physical presence in the State via the customer’s computers. A website may leave cookies saved to the customers hard drives, or customers may download the company’s app onto their phones.” The impact of this paragraph on whether website only businesses must be accessible to persons with disability can’t be overstated. This particular paragraph strongly suggests that a customer when accessing a business on the web is actually in that place.
  9. “The dramatic technological and social changes of our increasingly interconnected economy means that buyers are closer to most major retailers than ever before-regardless of how close or far the nearest storefront.” Absent websites being accessible, this would not apply to persons with disabilities.
  10. A business may be present in the State in a meaningful way without that present being physical in the traditional sense of the term. A virtual showroom can show far more inventory, in far more detail and with greater opportunities for consumer and seller interaction than might be possible for local stores.” Further, “this Court should not maintain a rule that ignores the substantial virtual connection to the State.” Another indication that the Supreme Court recognizes that a person accessing an Internet only business is really in fact accessing that place in a way that may even be superior to being in the store itself.
  11. “Yet the physical presence rule undermines that necessary confidence by giving some online retailers and arbitrary advantage over their competitors….” That is, as mentioned above, website only businesses would not have to worry about accessibility for persons with disabilities but physical stores do.
  12. “Further, the real world implementation of commerce clause doctrines now makes it manifest that the physical presence rule… Must give way to the far-reaching systemic and structural changes in the economy and many other societal dimensions caused by the cyber age.”.
  13. 89% of the American public has Internet access.
  14. “The Internet’s prevalence and power have changed the dynamics of the national economy.” Why should people with disabilities be excluded from that?
  15. “Last year, e-commerce grew up four times the rate of traditional retail, and it shows no signs of any slower pace.”

In short, there is much language in this decision that plaintiffs can use to counter defense arguments that websites do not have to be accessible to persons with disability.

II

Haynes v. Hooters of America, LLC

On June 19, 2018, the 11th Circuit in a published decision dealt with the issue of whether a company sued once before for website inaccessibility can fight off a nearly identical lawsuit with someone else on the grounds that they previously settled a nearly identical lawsuit. The 11th Circuit said a company can’t do it that way. That is, the company had to fight the second lawsuit. In its reasoning, the 11th Circuit also gives a roadmap as to how a company can fend off numerous website accessibility lawsuits. Let’s look at the reasoning of the court first.

  1. While the prior settlement agreement is in effect, the only person who can enforce any rights under it, is the plaintiff in that case. Once that agreement expires, no one has any rights under it. That is, plaintiff was not a party to the prior settlement agreement. Therefore, if Hooters does not remediate its website in accordance with that settlement agreement, the plaintiff has no way of enforcing the remediation plan.
  2. Nothing in that prior settlement agreement requires Hooters, either before or after it expires, to continuously update and maintain its website to ensure it remains accessible to the blind. Further, because the parties in the prior case voluntarily dismissed the case and the District Court did not retain jurisdiction to enforce the settlement agreement, the court could not order Hooters to abide by it.
  3. While Hooters may be in the process of updating the accessibility of its website, nothing in the record demonstrates that Hooters has successfully done so.
  4. Plaintiff requested an injunction against Hooters if it does not bring its website into compliance with the ADA. Plaintiff also requested in his complaint that the District Court direct Hooters to continually update and maintain its website to ensure that it remain fully accessible.

III

Lessons Learned from Haynes and Takeaways

  1. Web content accessibility guidelines 2.0, which has now been amended to 2.1, continues to be the gold standard for accessibility of websites. Keep in mind, the ADA requires meaningful access. Accordingly, flexibility exists as to what meaningful access is. Nevertheless, web content accessibility guidelines 2.0 et al remains the gold standard.
  2. This case makes it in the interest of both a plaintiff and a defendant to put in a clause in when settling saying that the defendant will continuously update and maintain its website to remain accessible to persons with disabilities. It also might make a great deal of sense to go with a consent decree rather than a settlement so that the court can retain continuing jurisdiction.
  3. Once you enter into any kind of settlement agreement, get cracking on it.
  4. Reading tea leaves with respect to what the United States Supreme Court will do is always dangerous business. However, the South Dakota v. Wayfair decision sends a pretty clear message that this Supreme Court recognizes how the universe has changed with technology, and that it may be a thin reed indeed to say that the ADA only applies to a physical space. Also, the Supreme Court has been very favorable to people with disabilities outside of the employment context.
  5. As my colleague Richard Hunt points out in his last blog entry, credit unions have had some success in dismissing cases based on standing saying that the person who could not access its website could not possibly be a member and therefore, a credit union had no obligation to that person. That may work, but it won’t work once a person with a disability eligible for membership in that credit union runs into trouble with accessing its website.
  6. The language in the Supreme Court opinion discussed in this blog entry combined with the Department of Justice Amicus brief in the case we discussed here, strongly suggests that the courts now have license to move to the ScribD line of cases when deciding whether an Internet site is a place of public accommodation. That is, if the Internet site engaged in any one of the categories laid out in 42 U.S.C. §12181(7) then it is a place of public accommodation and subject to the ADA. Wayfair’s gateway language is so broad that one wonders whether the gateway theory would not just fall by the wayside in favor of whether one of the categories of a place of public accommodation is involved.

One of the topics that we have discussed before (see here for example), is transgender individuals alleging that they have been the victims of disability discrimination. Recently, transgender plaintiffs have also had success in alleging that they are the victims of sex discrimination as sex discrimination includes stereotyping based on gender, which by definition discrimination against a transgender person is. The case of the day is Doe v. Massachusetts Department of Corrections decided by United States District Court of Massachusetts on June 14, 2018. As usual, the blog entry is divided into categories and they are: facts; issues presented; holdings; court’s reasoning; and takeaways/thoughts. The reader is free to focus on any or all of the categories.

I

Facts

A transgender woman was assigned to a men’s prison as a result of her birth being a man even though since her teenage years, she has identified as a woman, including hormone treatments etc. As you might expect, being transgender in a men’s prison created all kinds of problems. If you are a fan of Orange Is the New Black, the problems arising are easily imagined and are amply detailed in the case itself. As an aside, Massachusetts recently passed a Criminal Justice Reform Act mandating respecting the gender identity of a prisoner, but that law comes too late for this particular plaintiff. Since she was unable to get a transfer to a woman’s prison, she brought suit alleging violations of the ADA, the Rehabilitation Act, and §1983 vis-à-vis the 14th amendment to the U.S. Constitution. She sought injunctive relief seeking the following:

(1) transfer Doe to MCI-Framingham [a DOC facility for women]; (2) enjoin Defendants from using male correctional officers to conduct strip searches of Jane Doe, except in exigent circumstances; (3) enjoin Defendants from forcing Jane Doe to shower in the presence of men and with a shower curtain that does not adequately cover her; (4) enjoin Defendants from treating Jane Doe differently than other women held by the DOC; (5) train all staff on how to appropriately accommodate, treat and communicate with individuals with Gender Dysphoria within 60 days of this order; (6) enjoin Defendants from using male pronouns when speaking to or about Jane Does; (7) enjoin Defendants from referring to Jane Doe by her former male name (or any abbreviated version thereof); (8) refer to Jane Doe by her chosen female name; and (9) award such other relief as is just and proper.

The Department of Corrections filed a motion to dismiss for failure to state a claim.

II

Issue Presented

  1. Is gender dysphoria a disability under the ADA/Rehabilitation Act?
  2. Does the ADA’s exclusion for gender identity disorders apply to this case?
  3. Is the ADA’s exclusion of gender identity disorders not resulting from physical impairments unconstitutional under the 14th amendment to the U.S. Constitution?
  4. Are services, programs or activities involved?
  5. For equal protection purposes, what level of scrutiny does a transgender individual get?
  6. Have there been sufficient allegations for the plaintiff to allege due process violations?

III

Holdings

  1. Yes
  2. No
  3. Probably
  4. Yes
  5. Intermediate scrutiny
  6. Yes

IV

Court’s Reasoning

  1. A person born with gender dysphoria is born with circulating hormones inconsistent with their gender identity and, in the plaintiff’s case, requires lifelong treatment for gender dysphoria, including the administration of female hormones. As such, she is incapable of reproduction. So, the major life activities that are substantially limited are both endocrine and reproductive functions.
  2. 42 U.S.C. §12211(b)(1) removes from the protection of ADA the following: transvestism; transsexualism; pedophilia; and gender identity disorders not resulting from physical impairments, or other sexual behavior disorders.
  3. As medicine has evolved over the years, gender dysphoria has come to mean something different than gender identity disorder. That in and of itself is sufficient to raise a disputed question of fact as to whether gender dysphoria falls outside of the ADA’s exclusion of gender identity based disorders as Congress understood it 28 years ago.
  4. It is possible that gender dysphoria results from physical causes, and plaintiff raised a disputed question of fact with respect to herself on that score.
  5. The current diagnosis of gender dysphoria in the DSM-V requires attendant disabling physical symptoms, in addition to manifestations of clinically significant emotional distress.
  6. Where the government draws a distinction against a historically disadvantaged group and where that distinction has no other basis, that is a reason to undermine the discriminatory classification rather than uphold it.
  7. If you look at the list that “gender identity disorders not resulting from physical impairments,” is contained within, it is paired with conduct viewed by society as criminal or immoral or even lewd. That raises a serious question as to the perspective the drafters of this particular provision had when enacting it. Also, included in that list are: compulsive gambling; kleptomania; pyromania; and psychoactive substance use disorders resulting from current illegal use of drugs. All of those are activities are illegal, dangerous to society, or the result of harmful vices.
  8. Squaring the exclusion of otherwise bona fide disabilities without remedial purpose of the ADA simply can’t be done. That is, the remedial purpose of the ADA is addressing discrimination against individuals with disabilities based on antiquated or prejudicial conceptions of how they came to their station in life. Accordingly, to the extent the ADA can be read as excluding an entire category of people from its protection because of their gender status, that reading is best avoided.
  9. Although the language of the ADA talks about services, programs, or activities, in reality that phrasing refers to prohibiting all discrimination by a public entity (check out this blog entry as well). As such, the ADA’s broad language brings within its scope anything a public entity does.
  10. Plaintiff also sufficiently alleged a disparate impact claim because she had been put into a prison environment contrary to a critical aspect of her prescribed treatment of being allowed to live as a woman.
  11. Where a state creates a classification based on transgender status, that is a classification based on sex and therefore, gets heightened judicial scrutiny above the rational basis test i.e. intermediate scrutiny.
  12. For discrimination against the member of a group subject to intermediate scrutiny to survive, that discrimination must serve important governmental objectives and be substantially related to the achievement of those objectives.
  13. The Department of Corrections did not meet its burden of demonstrating that housing her and other similarly situated transgender prisoners in facilities corresponding to their birth sex serves important governmental interest.
  14. Generalized concerns for prison security are insufficient to meet the burden of proof imposed by intermediate scrutiny. In particular, the allegations of the complaint are that the Department of Corrections houses inmates according to the biological sex without regards to particularized considerations. For example, disciplinary problems or security risks, neither of which were applicable to the plaintiff.
  15. For a due process claim to survive, a prisoner has to show that: 1) the state, through the duration and conditions of confinement, imposed atypical and significant hardship on the prisoner giving rise to a protected liberty interest; and 2) the state deprived the prisoner of the process the prisoner was due to protect that interest. The plaintiff alleged more than sufficient facts to show that she had to deal with atypical and significant hardships in relation to the normal incidents of prison life as compared to other inmates in the Massachusetts prison system.

V

Takeaways and Thoughts

  1. Early on in the opinion, the court states this: “in addition to demonstrating that she has a physical or mental impairment that substantially limits one or more major life activities, Doe must also establish a record of such an impairment, or being regarded as having such an impairment by representatives of the public entity in question, generally in the form of an adverse action or actions.” This statement is simply not correct. It is true that every ADA or Rehabilitation Act claim requires an adverse action. However, that is quite a different kettle of fish than saying of the three prongs of what it means to have a disability, two of them must be satisfied. That is simply not the case. Satisfying an actual disability, or a record of a disability, or being regarded as having a disability all get you coverage under the ADA. You don’t need to have more than one of them.
  2. I have now seen the movie RBG twice (once, while visiting a buddy in Columbia, Missouri, and once, with my wife), and am hoping to see it a third time with my daughter when she returns back from camp. From that movie, I learned that RBG, then attorney for the plaintiff, tried to get the Supreme Court to buy off on sex-based discrimination being put in a suspect class, but ultimately proved unsuccessful by one vote. As we have discussed before, equal protection jurisprudence all turns on what category the individual falls within: strict scrutiny-race; intermediate scrutiny-sex-based discrimination; or rational basis-everyone else. Here, once the court decided that intermediate scrutiny applied, the game was over for the defendant. It is extremely difficult for a defendant to justify discrimination once the intermediate scrutiny or higher level is applied.
  3. My concern with the equal protection jurisprudence is that it’s incredibly divisive. For example, this decision put transgender in the intermediate scrutiny category. However, unless you are talking about access to the courts, we know it is extremely unclear where persons with disabilities fall into. For example, persons with disabilities per this case are in the rational basis class when it comes to employment. Everything else depends upon the facts.
  4. With this decision, you have an individual that gets protection under the ADA and the Rehabilitation Act but then even though that is a disability, receives higher equal protection clause protection because transgender is sex-based discrimination. If a prisoner has a different disability other than transgender, it is entirely possible that person would get a lower level of scrutiny than intermediate scrutiny. Hard to believe that this is where equal protection jurisprudence takes us, but it does.
  5. Blanket policies are never a good idea when it comes to the world of the ADA. See this blog entry for example.

I am a little bit late with an entry this week. However, I have a good excuse. My 14-year-old daughter went off to overnight camp for the first time. She will be gone 4 weeks! That leaves my wife and I empty nesters. This is going to take some getting used to.

The blog entry of the week is actually an Office of Civil Rights Letter dated July 15, 2016, that appeared in the Disability Compliance for Higher Education publication by Wiley, which I highly recommend for anyone dealing with disability compliance issues in higher education. There are lots of lesson to be learned from that letter. Also, there is a statement made in there that has everyone hopping, and we will discuss that. As usual, the blog entry is divided into categories and they are: true or false; answers; how well did you do; and explanations. While there are a bunch of categories, I can’t see why you wouldn’t read the whole thing.

I

True or False

  1. If a student refers to her dog as a pet even though she says it is needed to accommodate a disability, one can automatically deem it a pet.
  2. Only two questions are allowed if it is not obvious that the dog is a service dog.
  3. An emotional support animal can never be a service dog.
  4. Reasonable documentation can be obtained to assess whether an animal is an emotional support animal.
  5. Reasonable documentation cannot be asked for in order to assess whether a dog is a service dog outside of the employment context.
  6. A person with a service dog or an emotional support animal must carry an ID card certifying that the animal is a service animal or an emotional support animal.
  7. A College or University can take action if the dog is behaving in an out-of-control manner.
  8. A dog that fends off impending anxiety attacks of a student by licking her face and pawing at her to let her know that an anxiety attack is likely to occur is a service dog.
  9. A college may not require an individual to register a service animal.
  10. Emotional support animals are only applicable to residential facilities in campus housing pursuant to the Fair Housing Act.
  11. A) While comfort animals are not considered service animals under the ADA, they may be considered a necessary accommodation under §504; B) an institution has the obligation to engage in the interactive process… C) to assess an individual’s need for this accommodation. This is the statement referenced above.
  12. Emotional support animals can include other animals besides dogs.

II

Answers

  1. False
  2. Unclear
  3. False
  4. True
  5. True
  6. False
  7. True
  8. True
  9. True
  10. True
  11. A) not buying; B) true; C) not buying with respect to emotional support animal throughout campus.
  12. True

III

How well did you do?

If you got all 12 right, consider yourself best in show.

If you got 10 right, consider yourself as winning best in your group, but you want to move up to best in show certainly.

If you got 7-9 right, consider yourself as winning best in breed, but you certainly want to move up to winning your group and eventually best in show.

If you got below seven right, you need to have a trainer come in and/or consult knowledgeable legal counsel.

 

III

Explanations

  1. A student may not realize the difference between a pet and a service dog under the ADA. To the student, they may think of their service animal as a pet. When it comes to determining whether it is a service dog, what they think is not dispositive. The question is whether the dog has been trained to engage in recognition and response.
  2. We have discussed this issue in this blog entry. As I mentioned in that blog entry, my original understanding was that only two questions are allowed. If you look at the Department of Justice frequently asked questions publication, it uses the term, “only,” as does the OCR letter. On the other hand, how can you engage in the interactive process, which you are required to do under titles I-III, if you are so limited in the question you can ask even when narrowly focused follow-up questions can be posed if the answers are unclear?
  3. If a person is using a dog as an emotional support animal, it’s entirely possible that it also could be a service dog if it is acting in recognition and response mode and has been trained to do that.
  4. The Fair Housing Act does allow for reasonable documentation to be obtained to assess whether an animal is an emotional support animal.
  5. The ADA final implementing regulation do not allow for documentation to assess whether a dog is a service dog outside of the employment context.
  6. A person with a service dog or an emotional support animal cannot be required to carry documentation stating that the animal is a service animal or an emotional support animal.
  7. If a dog is behaving in an out-of-control manner, then action to exclude the service dog can be taken. The owner of the service dog is responsible for its care and handling.
  8. This dog is engaging in recognition and response and clearly has been trained to do that. Keep in mind, professional training is not necessary for the dog to be a service dog.
  9. Nothing wrong with a voluntary registration process. The problem with that approach is that voluntary often turns into mandatory. Also, since the questions for service dogs are so limited, a voluntary registration process may lead to people asking questions they are not allowed to ask.
  10. The Fair Housing Act applies to dormitories as we discussed here. It does not apply to the rest of the College and University. For the rest of the College and University, it would be the ADA (title II or title III), and §504 of the Rehabilitation Act. Accordingly, emotional support animals can be limited to residential facilities in campus housing. See also ¶ 11 below
  11. A) comfort animals are not considered service animals under the ADA; B) institution to have the obligation to engage in interactive process with respect to a student with a disability; and C) an institution does not have the obligation to engage in the interactive process with respect to allowing the emotional support animal throughout its campus despite what this letter from the Office of Civil Rights says. In particular, nothing in title II or title III DOJ’s final implementing regulations suggest emotional support animals must be allowed everywhere. In fact, the inference is exactly the opposite. Also, nothing in the §504 regulations suggest that emotional support animal should be allowed everywhere. Finally, since there are no regulations that have gone through the proper commenting process dealing with §504 and emotional support animals, I don’t see how a court would give deference to the interpretation of this regional office of OCR with respect to emotional support animals possibly being allowed everywhere. In short, to my mind, a College or University is on very solid ground in restricting an emotional support animal to the dormitories/living facilities.
  12. The Fair Housing Act allows for animals besides dogs to be emotional support animals. Colleges and universities are given latitude with respect to animals that pose a health or safety risk to others. You also want to make sure you check your local and state laws regarding animals that are permissible in dwellings.