It has been a busy week, and so I am a bit late with getting a blog entry up. Also, I am off to North Carolina later today where I will be speaking at the University of North Carolina at Chapel Hill School of Government on hot issues in title I and title II of the ADA to attorneys and HR professionals as well as some others working for public entities in North Carolina. Really excited. I have never been to Chapel Hill before.

Turning to the blog entry for the week. As you know, it isn’t unusual for me to blog on cases by other legal bloggers if I feel I have something to offer. This is one of those situations. This case has been blogged upon by other legal bloggers. For example, Jon Hyman, in his Ohio employer’s Law Blog, which entry can be found here, and Eric Meyer in his Employer Handbook Blog, which can be found here. The case is Sepulveda-Vargas v. Caribbean Restaurants, LLC, which can be found here. 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

Caribbean Restaurants LLC is an operator or Burger King franchises throughout Puerto Rico. Plaintiff was an assistant manager there. In 2011, while he was attempting to make a bank deposit on behalf of Caribbean, he was attacked at gunpoint, hit over the head, and had his car stolen. As a result he suffered from post-traumatic stress disorder and major depressive disorder. He requested Caribbean provide him with a fixed work schedule as opposed to a rotating one and that it move him to a Burger King location in an area not prone to crime. Caribbean initially acquiesced to that request, but eventually informed him that he would have to go back to working rotating shifts. In 2013, plaintiff resigned from his position because he simply could not work the rotating shifts. Caribbean schedules all of its managers in a way so that they rotate among three distinct work shifts.

II

Court’s Reasoning

  1. A handicapped person under the ADA (say what! I actually used a term that has been offensive for over 28 years? No, I didn’t. The court actually uses the term “handicapped,” in its opinion when talking about the prima facie case), is someone who: is handicapped under the ADA; qualified to perform the essential functions of the job with or without reasonable accommodation; and the employer knew of the disability but declined to reasonably accommodate upon request.
  2. An essential function of the job is anything that is fundamental to the position.
  3. The ADA and 42 U.S.C. §12111(8) says two of the things you can look to in determining essential functions are the employer’s judgment as to what functions of the job are essential and the written job description if that job description was prepared before advertising or interviewing applicants for the job.
  4. In its implementing regulations, 29 C.F.R. §1630.2(n)(3), the EEOC talked about other situation to consider in determining essential functions of the job including: the consequences of not requiring the incumbent to perform the function; the work experience of past incumbents in the job; and the current work experience of incumbents in similar jobs.
  5. It was uncontested that from Caribbean’s point of view, working rotating shifts was an essential function of the job.
  6. Accommodating the plaintiff permanently would have had the adverse impact of inconveniencing (the term used by the court), all other assistant managers who would then have to work unattractive shifts and respond to the plaintiff’s fixed schedule.
  7. Plaintiff admitted in a deposition that rotating shifts was a responsibility he had at Caribbean and that all other assistant managers had that responsibility as well.
  8. The job application the plaintiff filled out and signed when he was hired made clear that all Caribbean managerial employees had to be able to work rotating shifts at its restaurants.
  9. The newspaper advertisement for the job listed the need for working rotating shifts as a requirement.
  10. Just because Caribbean initially granted the plaintiff the accommodation on a temporary basis to not work rotating shifts, does not mean that Caribbean conceded a rotating shift was a nonessential function. That is, evidence of a non-required accommodation does not get to be used against the company in determining what is or is an essential job function.
  11. Plaintiff also claimed hostile environment, but the court was having none of it. The court said that simple teasing, offhand comments, and isolated incidents unless they are extremely serious do not amount to an adverse employment action establishing an objectively hostile or abusive work environment.

III

Takeaways

  1. For the life of me, I can’t understand why in 2018, I am seeing the word “handicapped,” in a judicial opinion regarding the ADA. You still find the term occasionally in some statutes. However, that particular term has never been in the ADA since it was enacted in 1990. Bottom line: don’t use this term when dealing with people with disabilities. It is a separate issue as to whether you want to go with a “person with a disability,” or with “disabled.” On that score, people in the disability rights community feel very strongly both ways. You can’t lose by going with, “person with a disability.” While a person preferring “disabled,” may not like that term, it is unlikely he or she would be offended. On the other hand, calling a person “disabled,” when that person prefers “person with a disability,” does not end well. I am in the “person with a disability,” camp myself.
  2. One thing that didn’t come up in this case was whether Caribbean had the obligation to mandatory reassign the plaintiff per this blog entry. The opinion reads as if there was simply no other job that the person could be assigned to. However, that is only implicit. The court simply never addresses the mandatory reassignment question. As a matter of preventive law, you always want to explore whether reassignment is possible.
  3. With respect to determining the essential function of the job, you can take the really complicated approach offered by the EEOC or you can keep it simple. That is, anything fundamental to that position is an essential function.
  4. When the court says that accommodating the plaintiff permanently would have had the adverse impact of inconveniencing all other assistant managers working rotating shifts, that misses the point. The ADA does not use “inconveniencing,” as the standard. Rather, the standard is undue hardship. An undue hardship meaning anything that does not constitute a financial or logistical undue burden. I could see the possibility of the defense here arguing that allowing the particular accommodation requested by the plaintiff, would fundamentally alter the way the business operates. However, that is a completely different kettle of fish than being inconvenienced.
  5. If an employer wants to go beyond what the ADA allows in terms of accommodating the employee with a disability on a temporary basis, this decision gives the employer freedom to do that without being penalized for making that effort.
  6. With respect to hostile environment, it might be a good idea for a plaintiff lawyer to have an expert talking about how a person with a disability is likely to perceive teasing, offhand comments and other isolated incidents. If the jury and/or the judge do not have experience with people with disabilities, they simply may not know how such things are perceived by a person with a disability.
  7. With as many jobs being available at there are people looking for jobs, one wonders if an employer might not want to consider getting rid of rotating shifts altogether. Rotating shifts are very difficult for employees to deal with. I get the increase in personnel costs, but considering how tight it is defined applicants to fill jobs, it may be worth considering since eliminating rotating shifts would likely increase morale as well.

Today’s blog entry, deals with the question of what are the hot issues with respect to the ADA and the lodging industry. As I see it, there are six, but this blog entry will only focus on four of them. Two of those four are encapsulated in 28 C.F.R. §36.302. The four are indemnification agreement, service animals, reservations, and effective communication. The two that are not discussed are wheelchair lifts and the accessibility of hotel Internet sites. Wheelchair lifts we have yet to talk about. The accessibility of Internet sites we have talked about quite a bit in other blog entries. As usual, the blog entry is divided into categories and they are: indemnification agreements; service animals; reservations; thoughts on 28 C.F.R. §36.302(e); effective communication; and conclusions. The reader is free to focus on any or all of the categories.

I

Indemnification/Reimbursement Agreements

Hotels are constantly renovating and building out there facilities. Accordingly, the reader will have to be familiar with whether indemnification agreements are kosher. We discussed that question in this blog entry and in this blog entry as well.

II

Service Animals

Many places of lodging are pet friendly as a service to their customers, but not all are. For those that aren’t, service dogs are a particular hot issue. For places of public accommodation, the service dog rules can be found in 28 C.F.R. §36.302(c). Here are some critical thing to keep in mind.

  1. If the dog is a service animal, the service animal can still be removed from the premises if either the animal is out of control and the animal’s handler does not take effective action to control it, or the animal is not housebroken.
  2. A service animal must be under the control of its handler. A service animal must have a harness, leash, or other tether, unless either the handler is unable because of a disability to use a harness, leash, or other tether, or the use of a harness, leash, or other tether would interfere with the service animal’s safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler’s control (e.g., voice control, signals, or other effective means).
  3. A public accommodation is not responsible for the care or supervision of a service animal.
  4. A place of public accommodation cannot inquire as to the nature or extent of a person’s disability. However, they can ask two questions and only those two questions. Those two questions are: 1) is the animal required because of the person’s disability; and 2) what work or tasks the animal has been trained to perform. Even these two questions are not allowed where it is obvious, “readily apparent,” that the dog is assisting a person with a disability. Finally, the work or tasks the animal has been trained to perform must be related to the disability.
  5. Service animals are dogs, though miniature horses get similar but not exactly the same treatment.
  6. Service animals can go anywhere where members of the public, program participants, clients, customers, patrons, or invitees, as relevant, are allowed to go.
  7. A place of public accommodation is not allowed to impose a surcharge on a service animal, though paying for damages is allowed if the hotel imposes such a fee on people who stay at the hotel without service animals.
  8. While miniature horses get similar treatment, regulations allow for a balancing test. That is, miniature horses get similar treatment after the balancing test is applied. That balancing test involves looking at the following factors: (A) The type, size, and weight of the miniature horse and whether the facility can accommodate these features; (B) Whether the handler has sufficient control of the miniature horse; (C) Whether the miniature horse is housebroken; and (D) Whether the miniature horse’s presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation.
  9. It is all over the media how people are taking their pets into places where they simply do not belong and passing them off as service dogs. This causes a real problem for people with disabilities with actual service dogs as the service dogs and the person with disabilities are pretty much helpless to deal with the situation. As I see it, there are three problems going on here. First, as mentioned above, if the dog is misbehaving, the place of public accommodation has the right to take action and remove it from the premises. Second, businesses are just not asking the two questions they are allowed to ask. I recognize that the two questions get limited information, and then, you are asking people to decide based on that limited information whether the work or task being performed by the service animal is related to the disability. Nevertheless, asking only those two questions regardless of the answers and taking action against misbehaving animals should go a long way toward discouraging people from using their pets as service dogs.

III

Reservations

Reservations and accessibility is governed by 28 C.F.R. §36.302(e), which provides:

1)Reservations made by places of lodging. A public accommodation that owns, leases (or leases to), or operates a place of lodging shall, with respect to reservations made by any means, including by telephone, in-person, or through a third party –

(i) Modify its policies, practices, or procedures to ensure that individuals with disabilities can make reservations for accessible guest rooms during the same hours and in the same manner as individuals who do not need accessible rooms;

(ii) Identify and describe accessible features in the hotels and guest rooms offered through its reservations service in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs;

(iii) Ensure that accessible guest rooms are held for use by individuals with disabilities until all other guest rooms of that type have been rented and the accessible room requested is the only remaining room of that type;

(iv) Reserve, upon request, accessible guest rooms or specific types of guest rooms and ensure that the guest rooms requested are blocked and removed from all reservations systems; and

(v) Guarantee that the specific accessible guest room reserved through its reservations service is held for the reserving customer, regardless of whether a specific room is held in response to reservations made by others.

IV

Thoughts on 28 C.F.R. §36.302(e)

  1. As a deaf individual, I can’t tell you how many times a hotel, and they are generally high-end hotels since that is where conventions are generally staged, doesn’t get deaf accessibility right. Over the last 20 years, I have only found one hotel that got it right when I walked into the room (the St. Paul in St. Paul, Minnesota). Every other hotel is a matter of it taking quite a long time, sometime 2-3 hours, to get it right after I arrive. I always call ahead. I uniformly find out that the reservation people simply do not have a clue as to how to deal with deaf accessibility. So, what I wind up doing is making a reservation with the reservation people, and then I call the hotel directly to discuss my needs. Frequently, the manager simply does not have a clue regarding deaf accessibility. So, I have to explain it to them.
  2. Once I do ¶ 1, it is hit or miss as to whether the hotel room will be accessible to me when I arrive. I go in figuring that it won’t be and that it will take some work to get it accessible. The crazy thing of it is, is that making a hotel room accessible for me is simply a matter of taking things out of a kit and putting it in the room. I don’t need a mobility impaired accessible hotel room (I don’t like the segregation vibe either). In fact, I am a bit clumsy, and putting me in one of those simply can get in my way. I have found over the years that the engineering staff at the hotels are very helpful and very willing to work it through. They also consistently tell me that it is very rare for them to break out the kits. Even if it is rare, the hotel has to be prepared. So, I certainly am not getting enough information to decide whether a room is accessible when I make the reservation. I also have to do a bit of education with the managers as well. Clearly, this is an area that the lodging industry needs to work on.

V

Effective Communication

The effective communication rule for entities covered by title III of the ADA can be found at 28 C.F.R. §36.303.  Here are the things to note:

  1. Unlike the title II effective communication rule, title III’s effective communication rule does not require that primary consideration be given to the person with disabilities preference for communication. Rather, the ultimate decision is the place of public accommodation’s after consultation with the person with a disability. You would be amazed at how little consultation occurs in such situations. Think of this in the same way as the interactive process under title I of the ADA. The greater the interactive process the better the whole experience is going to be for everyone and the less likely litigation will ensue.
  2. Auxiliary aids and services must be provided unless either an undue burden (financial), or a fundamental alteration (logistical), exists.
  3. If the place of lodging is also running a theater (for example, Marriott Lincolnshire has a well-known theater in north suburban Chicago), you want to check out this case.

VI

Conclusions

From dealing with the ADA every day, the hotel and lodging industry has four, and perhaps five or six, critical areas of exposure with respect to the ADA. They are: indemnification/reimbursement agreements; service animals; reservations; effective communication; wheelchair lifts for pools (not discussed); and whether hotel Internet sites are accessible to people with disabilities (such as what we discussed here). There is no substitute for training, which is a large part of my practice, and counsel familiar with the law in this area.

 

Previously, we discussed in this blog entry a case out of the Southern District of Florida holding that DOJ had no authority to enforce on its own title II of the ADA. That decision laid out the case against DOJ having independent title II enforcement. However, I thought it would be interesting to discuss the other side. That is, what are the arguments saying that DOJ has independent title II enforcement powers? Dudek was appealed to the 11th Circuit and took on a different name, A.R. v. Sec., Florida Agency for Healthcare Administration. On March 1, 2018, the Department of Justice filed its reply brief where it argued that DOJ does indeed have independent title II enforcement powers. Also of note, is that the entire disability community, regardless of disabilities, has filed amicus briefs supporting the Department of Justice position. The DOJ reply brief can be found here. As usual, the blog entry is divided into categories, and they are DOJ arguments and thoughts. I can’t imagine the reader wouldn’t focus on both categories, but certainly the reader will want to choose reading the DOJ arguments for sure.

I

DOJ Arguments

  1. The United States has vigorously enforced title II of the ADA in order to prevent and remedy discrimination by State and local governments since 1992.
  2. There are more than 50 years of judicial decisions and administrative interpretations and practice construing title VI of the Civil Rights Act and the Rehabilitation Act as authorizing the federal government to sue violators when voluntary compliance cannot be achieved.
  3. 42 U.S.C. §12133 has substantially identical wording to §505(a)(2) of the Rehabilitation Act, 29 U.S.C. §794a(a)(2), which incorporate the remedies, procedures, and rights of title VI of the Civil Rights Act, 42 U.S.C. §2000d-1.
  4. The Atty. Gen. has long enforced title VI of the Civil Rights Act through lawsuits as an alternative to the more draconian course of terminating federal funding.
  5. Reading federal enforcement authority out of title II would give victims of disability discrimination in public services far less valuable remedies, procedures, and rights then victims have under title VI of the Civil Rights Act and under the Rehabilitation Act. That makes no sense since Congress directed that all three laws have the same enforcement systems.
  6. Title VI of the Civil Rights Act has two alternative federal enforcement mechanism-federal funding termination or a lawsuit by a federal agency. Before a federal agency can exercise either of those options, the agency must determine that compliance cannot be secured by voluntary means, and so, that is where the administrative enforcement process comes in.
  7. In 1977, HEW issued regulations implementing §504 of the Rehabilitation Act incorporating HEW’s title VI complaint and enforcement procedures. Accordingly, those regulations adopted an administrative enforcement process for the Rehabilitation Act that could culminate in a federal agency’s enforcement suit where it was unsuccessful in achieving voluntary compliance.
  8. In 1978, Congress added §505(a)(2) to the Rehabilitation Act, which incorporates title VI’s remedies, procedures, and rights. In enacting §505, Congress intended to make available to victims of disability discrimination the remedies, procedures, and rights of title VI, which includes an administrative enforcement process leading to federal agency enforcement action.
  9. Congress enacted the ADA to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities and to ensure that the federal government plays a central role in enforcing those standards. 42 U.S.C. §12101(b)(2)-(3).
  10. An integral purpose of title II of the ADA was to extend the reach of §504 of the Rehabilitation Act to make any public entity liable for prohibited acts of discrimination, regardless of funding source. Therefore, it makes no sense to construe title II of the ADA to create a feebler enforcement mechanism than what is available in the Rehabilitation Act and title VI of the Civil Rights Act.
  11. Federalism concerns raised by the state of Florida make no sense because the United States does not infringe on state sovereignty in the way suits by individuals do.
  12. Given the accepted interpretation of title VI and §504 at the time of the ADA’s enactment, Congress’s importation of the same remedies, procedures, and rights clearly means that federal enforcement is available under title II of the ADA.
  13. Legislative history of title II of the ADA shows clearly that Congress intended for the Atty. Gen. to file suit in federal district courts in the event that a federal agency is unable to resolve the complaint filed voluntary means.
  14. While it is true that draft legislation of title II was more explicit about DOJ’s enforcement possibilities, the changes that were made to title II were entirely clerical so that the first three titles of the ADA could be on the same page. That is, it is implausible that the House Judiciary Committee would have made a minor word change for the purpose of eliminating the authority that both the Senate Labor and Human Resources Committee and the House Education and Labor Committee explicitly intended the Atty. Gen. to have when it comes to enforcing title II of the ADA.
  15. The United States Supreme Court has acknowledged that a person alleging disability discrimination in violation of title II may seek to enforce a provision by commencing a private lawsuit or by filing a complaint with the federal agency. That administrative process would be seriously undermined if federal agencies had no power to enforce title II against public entities.
  16. DOJ has filed numerous brief with the Supreme Court over the years claiming authority to enforce title II and documenting therein extensive federal enforcement of title II dating back to the 1990s.
  17. DOJ has achieved numerous successes over the years in persuading state and local government enter into pre-suit settlement to resolve alleged title II violations.
  18. Without the possibility of a DOJ lawsuit as a backstop, state and local governmental entities have little incentive to come to the negotiating table and reach a voluntary resolution during the administrative process.
  19. Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it reenacted a statute without change. By 2008; 1) the title II regulations had long provided that the Atty. Gen. has authority to file a lawsuit in the absence of voluntary compliance (28 C.F.R. §35.174); 2) the Atty. Gen. had acted on that authority by undertaking numerous enforcement activity under title II; and 3) courts had construed §12133 is providing the Atty. Gen. authority to enforce title II of the ADA. Therefore, in the absence of a clear expression of congressional intent to overturn the settled administrative and judicial interpretations, §12133 must be read as continuing to authorize the Atty. Gen. to sue under title II.
  20. Since the 1990s, federal agencies routinely secured individualized relief, whether it be monetary or equitable, for complaints through the title II administrative enforcement process in addition to obtaining systemic relief.
  21. As Congress knew well in 1990, courts have construed title VI of the Civil Rights Act as setting forth two alternative federal enforcement mechanism to compel compliance with the nondiscrimination requirements-termination of federal funding or a a lawsuit by the United States. Since title II applies to public entities that do not receive federal financial assistance, it necessarily follows that a federal lawsuit is something allowed by the incorporation of the remedies of the Rehabilitation Act into title II of the ADA.
  22. In enacting the ADA, Congress intended persons alleging discrimination under title II have the same remedies, procedures, and rights as victims under title VI of the Civil Rights Act and under the Rehabilitation Act. Without the prospect of a federal suit under title II, the administrative process for title II violations would be far less meaningful.
  23. In Barnes v. Gorman, which we mentioned here, the Supreme Court said that the remedies, procedures, and rights are the same under title II of the ADA, title VI of the Civil Rights Act, and the Rehabilitation Act.

II

Takeaways

  1. To my mind, it was far from certain that DOJ would take the side that it had the right to enforce title II of the ADA, and so, this is a pleasant surprise.
  2. Without federal agencies having the ability to enforce title II of the ADA through lawsuits, many people with disabilities are simply not going to be able to effectively take on governmental entities for disability discrimination as they will not be able to afford private attorneys (there aren’t many private attorneys doing plaintiff’s side title II work (the high standard for damages and the deep pockets of governmental and state agencies are a particular problem for getting an attorney to take on plaintiff title II cases), and protection and advocacy groups and nonprofits have varying capabilities and priorities.
  3. Several arguments made by DOJ I find particularly strong, including the arguments mentioned in ¶ ¶ 1, 2, 4, 5, 8, 9, 10, 12, 17, 18, 19, 20, 21, and 23.
  4. As far as I can tell, oral argument has not occurred in this case yet.
  5. Regardless of the 11th Circuit decision, this one is headed to the United States Supreme Court at some point. The only question is whether the Supreme Court will wait for a Circuit Court split. The 11th Circuit will be the first Circuit Court to directly address the question, which is likely to happen since strong arguments exist both ways.

 

My colleague, Jon Hyman, has previously written about what can happen when commas are not used when they should be. You can find that blog entry here. Today’s blog entry raises the question as to what happens when a comma is used when perhaps it shouldn’t have been. The case is Haberle v. Troxell, decided by the Third Circuit on March 20, 2018, and it deals with the question of accessibility upon arrests. The case had various issues, but we are only going to focus on the ADA issue. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning allowing amending of ADA portion of complaint; and takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

Timothy Nixon had a variety of mental health problems, including longtime depression. He lived off and on with his longtime partner and their two children. On May 20th, 2013, Nixon had a serious mental health episode involving severe depression and called his longtime partner saying that he was suicidal. He then broke into her friend’s home and took a handgun. He next went to his cousin’s apartment. Fearing for Nixon’s life, Nixon’s partner contacted the Borough of Nazareth Police Department where police officer Troxell obtained a warrant for Nixon’s arrest and then went with other officers to Nixon’s cousin apartment. Upon arriving at the apartment, some of the officers suggested setting up a perimeter and asking the Pennsylvania State police to send in crisis negotiators. Other officers suggested asking Nixon’s partner to help communicate with Nixon. Troxell turned away all those suggestions calling the other officers, “ a bunch of f—ing pussies.” He declared his intention to immediately go to the apartment because that is how they do things in Nazareth. He did exactly that, knocked on the door the apartment, and identified himself as a police officer. Nixon then promptly went into one of the bedrooms of the apartment, turned the stolen gun on himself, and killed himself. According to Nixon’s partner, Nixon was not a danger to anyone and was peacefully drinking beer with his cousin when the police knocked on the door. That said, no allegations were made that Troxell knew what was happening inside the apartment when he knocked. Nixon’s partner then sued alleging a myriad of causes of action, including violation of title II of the ADA.

 

II

Court’s Reasoning Allowing Amendment of ADA Portion of Complaint

  1. The ADA does generally apply when police officers make an arrest.
  2. In order to state a claim under title II of the ADA, a plaintiff has to demonstrate: 1) he or she is a qualified individual; 2) with a disability; 3) who was excluded from participation in or denied the benefits of the services, program, or activities of a public entity, or was subjected to discrimination by any such entity; 4) by reason of his or her disability.
  3. An ADA violation occurs if and when a disabled individual is excluded from participation in or denied the benefits of the services, program, or activities of the public entity, or is subjected to discrimination by any such entity. So, it is the denial giving rise to the claim.
  4. Nothing categorically excludes people who are arrested from the ADA’s broad coverage. So, people who are arrested can be qualified individuals under the ADA, though not always.
  5. Arrestees certainly may have a disability covered by the ADA.
  6. If the arrestee’s disability plays a role in the decision-making process and has a determinative effect on the outcome of that process, i.e., if the arrestee’s disability was a “but for,” cause in the deprivation or harm he suffered, then causation is satisfied.
  7. Police departments fall squarely within the statutory definition of a public entity.
  8. Persuasive precedents indicate that the ADA’s reference to the services, program, and activities of a public entity must be interpreted broadly to encompass virtually everything that a public entity does.
  9. 42 U.S.C. §12132 as phrased makes it unnecessary to figure out whether arrests are a service, program, or activity of a public entity since the very last clause is a catchall phrase prohibiting all discrimination by a public entity regardless of the context.
  10. Discrimination under the ADA includes not only adverse action motivated by prejudice against persons with disabilities, but also includes failing to make reasonable accommodations for plaintiff’s disabilities.
  11. The catchall phrase means that police officers may violate the ADA when making arrests by failing to provide reasonable accommodation for a qualified arrestee’s disability thereby subjecting him to discrimination.
  12. While there is some disagreement in the courts concerning the point during a law enforcement encounter at which the ADA applies to police conduct, no Court of Appeals has held that the ADA does not apply at all.
  13. While plaintiff cannot show deliberate indifference and so the complaint fails with respect to damages, allegations could have been made to show deliberate indifference. Those allegations could have included facts suggesting that existing policy caused the failure to adequately respond to a pattern of past occurrences of injuries like Nixon’s. It might have also included facts indicating that the risk of calculable harm was so great and so obvious that the risk and failure to respond alone supports a finding of deliberate indifference. Accordingly, Nixon’s partner should be given an opportunity to amend her complaint since it could not be definitively said that amendment would be futile.

III

Takeaways:

  1. 42 U.S.C. §12132 actually states: “Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”
  2. As an attorney who has done a lot of contracts work over the years, the biggest issue that a contracts attorney deals with when drafting contracts is the difference between parenthetical and restrictive. That is, if information is parenthetical, it is not something that has to be done but could be. On the other hand, if information is restrictive, then it is something that has to be done. Where a phrase is surrounded by commas, the information is parenthetical. If commas are missing, then the information is restrictive. With respect to the actual wording of 42 U.S.C. §12132 it isn’t clear to my mind whether the very last clause is parenthetical because it is surrounded by a comma and a period. It would be an easier call if it was surrounded by commas, then it would be clearly parenthetical. The phrasing of the statute makes it unclear. If no comma appeared after “public entity,” then clearly, “or be subjected to discrimination by any such entity” would be restrictive and an additional requirement. However, the comma is there, which creates in my mind, the argument that it might be parenthetical. On the other hand, if it is indeed the Oxford comma, which Jon discusses in the above-mentioned blog entry, then you get to the same place as it being an additional requirement. So, in this situation, if it is indeed an additional requirement, the drafters would have been better off leaving out the last comma in the series.
  3. Why am I making such a big deal over this comma? The answer is because until this case, I have not seen a title II case talk about accessibility in any other way besides programs, services, and activities. The issue doesn’t come up that often because as the court mentions, title II has been held to apply to virtually everything that a public entity does. Even so, this case says that there is more to it.
  4. Expect this case to be used by plaintiff’s attorneys to say that even if they cannot show that a program, service, or activity is involved, it doesn’t matter because public entities cannot discriminate against people with disabilities even where there is no program, service, or activity.
  5. If the last phrase is indeed a catchall provision going beyond program, services, and activities, then why is the phrase, “program, services, and activities” in there at all?
  6. We have previously discussed Sheehan here. In that decision, both parties told the Court that the ADA does apply to arrests and so the Court didn’t deal with that issue when it decided that certiorari had been improvidently granted.
  7. This case is going to be very interesting to follow because it takes the ADA to a place I have not seen before. One wonders whether the arrests issue will be appealed to the United States Supreme Court. In that eventuality, I don’t even want to hazard a guess at the how the Court will go.
  8. Preventive law would demand focusing on program, services, and activities first with respect to title II compliance. If somehow the situation does not seem to involve a program, service, or activity, then you do want to think about accommodating the person anyway under the so-called catchall phrase. Remember, title II case law is very clear that the ADA applies to just about everything a public entity does. Alternatively, you could elect as a public entity to stand your ground and claim that the last phrase is parenthetical as described above, but that might be expensive.
  9. It isn’t clear from this decision whether the court is looking at causation in terms of mixed motive or but for. They do use the term “but for,” but they also used the phrase, “disability plays a role in the decision-making process….” The reader may want to review this blog entry of mine discussing causation when it comes to the ADA.
  10. Moral of the story is that you can’t be cavalier about when you use commas. That is, there is the Oxford comma, but maybe sometimes it is better off not following that rule strictly and remembering that commas also deal with the issue of restrictive and parenthetical information.

Uber is back in the news with the filing of this case discussed in this article that came up in my Google alert. I have discussed Uber before as seen in this blog entry. I thought it would be interesting to highlight and discuss some of the features of the complaint and my thoughts. Accordingly, the blog entry is divided into categories of the complaint itself and my thoughts. It’s a pretty short blog entry, and so you probably want to read the whole thing.

I

Complaint Itself

  1. The case involves a person out of Mansfield, Texas, which is about 23 minutes southeast of Fort Worth, Texas.
  2. The lawsuit was filed in the Northern District of California. How did they do that? They can do that because 28 U.S.C. §1391(b)(1) allows a lawsuit to be filed where the defendant is located.
  3. Allegations also include violations of Texas law. In particular, the Texas Human Resources Code, which we discussed in this blog entry.
  4. The suit involved some 25 times where the plaintiff was denied the opportunity to ride an Uber with her service dog, which she uses to provide balance and counter balance as well as stability. The dog is also used to provide the plaintiff with migraine headache alert and to provide grounding for post-traumatic stress disorder.
  5. Allegations include that Uber was contacted and did nothing. I find that interesting in light of the settlement discussed in the above blog entry.
  6. Allegations also include that the system whereby drivers rate the passengers discriminates against persons with disabilities as it allows lower ratings to be given by drivers on the basis of a person using a service dog. That is, the rating system gives drivers a means of screening out passengers with service animals.
  7. The allegations include both violations of the public accommodation provisions as well as the demand responsive system provisions (42 U.S.C. §§12182(a), 12182(b)(2)(c)), and their implementing regulations.
  8. Plaintiffs are looking for both damages and injunctive relief under both title III of the ADA and the Texas Human Resources Code. There are also allegations of the intentional infliction of emotional distress.

 

II

Thoughts

  1. Interesting that the plaintiff only used Uber and that there is no suggestion in the complaint that she tried another service, such as Lyft, which has taken a less adversarial approach to disability advocacy groups.
  2. The questions in this case are whether a place of public accommodation is involved and/or whether a demand responsive system is involved. With respect to a place of public accommodation, the only one that might work is 42 U.S.C. §12181(7)(F), service establishments. After all, both Uber and the Uber driver are providing a service. Then again, while services are most definitely being provided, the listing in that particular provision isn’t really the same kind of thing as to what Uber and the Uber driver are doing.
  3. A demand responsive system may be the better argument. Under 42 U.S.C. §12182(b)(2)(c), for a private entity to be subject to demand responsive system rules, there is nothing to suggest it also must be a place of public accommodation. 42 U.S.C. § 12181(6) defines a private entity as anything that is not a public entity. Further, 42 U.S.C. § 12181(3) defines a demand responsive system as any system of providing transportation of individuals by a vehicle, other than a system which is a fixed route system. The plain language of both terms strongly suggests that both Uber and the Uber driver are a demand responsive system and therefore, are subject to those requirements. Similar language with respect to service animals being required to be allowed by private entities in their vehicles appears in 49 C.F.R. §37.167(d).
  4. With respect to case law involving whether a demand responsive system exists when it comes to Uber and the Uber drivers, I only found this case out of the Western District of Texas holding that whether specified public transportation services are involved per 42 U.S.C. §12184 is a mixed question of law and fact. Perhaps intentionally so, I don’t see any allegations in this complaint involving 42 U.S.C. §12184.
  5. The Texas Human Resources Code is also alleged to be violated per §121.003(c). Under the Texas Human Resources Code §121.002(5) the definition of a public facility is extremely broad so as to most likely include Uber and Uber drivers. A small amount of damages are allowed under §121.004.
  6. I realize that venue is allowed in San Francisco, but it will be interesting to follow whether Uber tries to move the case back to Texas. It would seem more convenient to do that with respect to all of the witnesses and even the plaintiff herself. It would also force the plaintiff’s law firms, which are based on a California, to get local counsel and try it in Texas.
  7. I don’t see anything in the complaint referencing Uber’s settlement mentioned above.
  8. The complaint also asked for damages for intentional infliction of emotional distress, which requires extreme and outrageous conduct. Some of the facts are pretty outrageous.

Hope everyone had or is having a happy holiday. Also, baseball season is underway. The Chicago White Sox are up-and-coming, but their time may not be yet. The Chicago Cubs going into the season are one of the top three to go to the World Series. The Atlanta Braves are not going to be so good. Good luck to your team. Also, if you have Villanova to win it all, congrats! What a great team and a great start to the year for the City of Philadelphia!

Today’s blog entry is analyzing an Amicus brief filed by numerous folks with respect to the decision in Robles, discussed here, and Winn-Dixie, discussed here, where the lower courts disposed of the matter favorably to the plaintiff with respect to accessibility of websites. The Amicus brief was filed by numerous trade associations, including: Restaurant Law Center; American Bankers Association; American Hotel and Lodging Association; American Resort Developers Association; Asian American Hotel Owners Association; Chamber of Commerce of the United States; International Council of Shopping Centers; National Association of Convenience Stores; National Association of Realtors; National Association of Theater Owners; National Federation of Independent Businesses; National Multifamily Housing Council; and the National Retail Federation. The brief I am analyzing is the one filed in the Winn-Dixie case where the lower court said that WCAG 2.0 was the accessibility standard that had to be met. Virtually an identical brief was filed in Robles.

I thought it would be fun to highlight the arguments and then next to the argument explain whether I buy it or not. So, the categories of argument and conclusions are different than our usual ones.

I

Argument

  1. If the court affirmed the lower court’s decision at issue on this appeal the members of the various trade associations will be forced to do the impossible and try to comply with nonexistent, undefined, and potentially ever-changing standards of website accessibility.
  2. I’m buying sort of: I agree that complying with the lower court’s decision means complying with undefined, and potentially ever-changing standards of website accessibility. While I agree that the standards are undefined and potentially ever-changing, I don’t agree that standards are nonexistent. That is, in this particular case, the lower court went with Web Content Accessibility Guidelines 2.0. Also, when it comes to title III accessibility, the standard is meaningful access, a standard that does exist.
  3. Businesses are now subject to repeated lawsuits concerning their related noncompliance with nonstatutory, nonregulatory, nonbinding accessibility standards.
  4. I’m buying. Meaningful access comes from the common law and there are no regulations dealing with website accessibility.
  5. The District Court’s decision is inconsistent with the actual language of title III and its implementing regulations, which limits the term “place of public accommodation,” to physical establishments.
  6. I’m not buying. As we have discussed numerous times in our blog, such as here, whether a physical establishment is necessary for it to be considered a place of public accommodation under title III is very much open to interpretation for the reasons discussed in those blog entries. Also, the ADA itself makes clear that it is supposed to evolve with technology.
  7. Businesses can try in good faith to modify the websites to allow access to persons with disabilities, but the lack of definite regulations and agency guidance means there is no safe haven for compliance. Such uncertainty not only violates basic principles of administrative law, but also contravenes fundamental notions of due process as no definitive guidance instructs businesses how to operate ADA compliant websites.
  8. I’m not buying: Lawyers love certainty, but there is rarely a true safe haven. With respect to it violating administrative law, I don’t see how. True, regulations are proposed, go through a period of commenting, and then are issued in final form. Here regulations were proposed, but then dropped. If the lack of regulations is a problem and the regulations should not have been dropped under the law, why isn’t a writ of mandamus being sought to compel the federal government to issue the regulations it started (more on that later). With respect to due process, this isn’t a criminal situation. The case law is clear that what is required is meaningful access. So, everybody knows exactly what standard needs to be satisfied to comply with the ADA even if there are dozens of different ways to satisfy that standard. If persons with disabilities are involved in the website design process, it should be fairly obvious as to whether the website is meaningfully accessible to persons with disabilities. I do want to add that when it comes to website accessibility, be sure to assess it for voice dictation, screen reader compliance, and accessibility for the deaf/Deaf/hard of hearing.
  9. While the statute does not define the term “place,” the term is best read as referring to, “a physical environment,” according to Merriam-Webster.com
  10. Not buying: “place,” can have different meanings. I went online to the same dictionary cited in the brief, Merriam-Webster.com. It is true that #1a talks about “a physical environment.” However, #1b refers to a, “place” as meaning, “a way for admission or transit.” Using a public accommodation’s website is certainly a way for admission or transit to that particular public accommodation.
  11. Place equates with physical facilities in 42 U.S.C. §12181(7). Further, had Congress intended title III to apply to all businesses offering goods and services to the public, it would not have limited the defined list of public accommodations to only those offered at a place
  12. Not buying: As many decisions have mentioned, travel services are listed as one of the places of public accommodations, and they have never required a person to access a physical facility in order to use those services.
  13. 28 C.F.R. §36.104 defines a place of public accommodation as a facility. Further, facility refers to all or any portion of building, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walk, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located.
  14. I’m not buying necessarily: The reference to this particular Code of Federal Regulations is on the surface appealing. However, it ignores 28 C.F.R. §36.102(b), which makes clear that the requirements for places of public accommodations to comply with the ADA extend beyond the matter of simple physical places.
  15. Websites are not located in any particular physical place or facility, and therefore, are not places of public accommodation under title III. Although a chat room or other online form might be referred to metaphorically as a location or place, a physical presence is necessary to constitute a place.
  16. I’m not buying: As we have discussed numerous times before, this very much depends upon the jurisdiction you are in. It certainly is not a slam dunk that a physical place is necessary in order to be covered by title III of the ADA. Further, as we have discussed earlier, the term “place,” is subject to different definitions.
  17. The Department of Justice at 28 C.F.R. §36, Appendix A, has taken the position that title III covers access to websites of public accommodations. Such informal statements are not entitled to the force and effect of law. Regardless, DOJ has been inconsistent in its own position and has admitted that there is uncertainty regarding the applicability of the ADA to websites.
  18. I’m not buying and I’m buying: It is true that the Department of Justice has taken the position that title III covers access to websites of public accommodations. They also in an Amicus brief took that position as well and we discussed that Amicus brief here. Whether the Appendix and the Amicus brief are entitled to deference is very much an open question. See this blog entry for example. Finally, saying that there is uncertainty regarding the applicability of the ADA to websites does nothing more than acknowledge the reality of the current state of the case law.
  19. While Congress may amend the ADA to define a website as a place of public accommodation, it has not yet done so.
  20. I’m buying: This is the strongest argument against websites being a place of public accommodations. Congress did have the opportunity to amend the ADA when it did the amendments to the ADA that ultimately passed. Congress in passing the amendments, did not eliminate the word “place,” from title III of the ADA nor did they redo the definition so that it was clear that physical facilities did not generally have to be involved. Under our system of government, it is up to Congress to make the laws and here they passed up a chance to redefine things. On the other hand, courts have said that just because Congress doesn’t do something, that doesn’t mean that congressional intent can be inferred from that nonaction. Finally, travel services, as mentioned above, does appear in the list of public accommodations.
  21. Courts analyzing whether websites are subject to title III of the ADA break down into two different approaches: spirit of the law and Nexus.
  22. I’m not buying: I don’t like the names of the categories. I would prefer “focus on public accommodations,” and “gateway.” Also, there are two other categories as well, and they are: physical places only, and an outlier, which we discussed in the Robles blog entry, that a person has to be able to go into the store itself even if the website is a gateway before they can bring a title III suit.
  23. Spirit of the law cases ask whether businesses offer goods or services to the public via any platform and are focused on achieving a particular result, rather than effectuating the clear text of the ADA.
  24. I’m not buying: Again, I don’t like the term “spirit of the law.” I would prefer, “focus on public accommodation.” What this line of cases does is focus on whether a public accommodation is involved i.e. it asks if one of the categories in 42 U.S.C. 12181(7) are in play. If they are, then the website must be meaningfully accessible to persons with disabilities. I also disagree that the cases are focused on results any more than any other decision by any other judge. If you are a judicial realist, you would argue that every decision of a judge is focused on results. I get judicial realism on some level, studied it in college, but as a lawyer that is difficult to square with what you do as a lawyer in the first place or why you continue in the business. If law is so arbitrary, then one has to question the credibility of the whole process.
  25. Under the nexus approach, a business violates title III only when it impedes a disabled individual’s full and equal enjoyment of the goods and services offered at that business physical establishment.
  26. I’m not buying: As mentioned above, I prefer gateway rather than nexus. Gateway is easier to understand and less legalistic. This line of cases is looking to see if there is a connection between the website and what is offered in the stores. If there is, then title III applies. Further, the Amicus brief confuses the categories by referring to the outlier case that says you actually have to be in the store physically in addition to accessing the website in order for the gateway theory to apply. It doesn’t work that way. They are two different theories.
  27. The same defendant may get different results depending upon the jurisdiction the case is litigated in. For example, Netflix had that happen to them in California and in Massachusetts.
  28. I’m buying: This is absolutely true. However, why not have the defendant engage in preventive law so that the problem doesn’t occur. Also, if a lack of regulations is a problem, why not, as mentioned above, seek a writ of mandamus compelling regulation to be issued or bring political pressure so that the regulations get done.
  29. Existing regulations currently contain no provision governing the accessibility of websites or online content.
  30. I’m buying: As mentioned in the brief, in 2010, a notice of proposed rulemaking was issued, but the Trump administration put it all on the inactive list.
  31. Given that no regulations currently impose clearly defined obligations regarding website accessibility, businesses are simply not on notice as to what title III may require of them.
  32. I’m not buying: The case law is clear that what is required is meaningful access. Instead of looking at this as a problem, businesses can look at it as an opportunity. That is, the lack of regulations give businesses all kinds of possibilities to get to meaningful access without being put in the straitjacket of regulations. So, the standard is clear. How you get there is another matter. Since the standard is clear, I’m not buying the due process argument. Again, this is not a criminal situation, which to my mind makes all the difference in the world with respect to the due process concerns.
  33. Web Content Accessibility Guidelines are a set of non-mandatory accessibility guideline developed by the web accessibility initiative, a subgroup of the World Wide Web consortium. It is a private-sector international community member organization where full-time staff and the public work together to develop web standards.
  34. I’m buying: Even so, why not use it as a matter of preventive law?
  35. While the DOJ has referenced the WCAG guidelines, that did not turn them into mandatory rules nor into any rules entitled to deference. Further, WCAG have different categories of compliance, and so, a business would not know what level of compliance to meet. §508 also has its own regulations. So, which one does a business use?
  36. I’m buying but: I can’t argue with this. However, it doesn’t take away from the fact that the standard required by the ADA is meaningful access and that WCAG or §508 can be used as a preventive law matter. As mentioned above, the lack of regulations can be an opportunity for businesses rather than an obstacle. It all depends how you look at it.
  37. The never ending uncertainty underscores the importance of creating website accessibility guidelines through proper notice and comment rulemaking and not through litigation.
  38. I’m buying: But whose fault is that? That is, as court decisions have mentioned the lack of action by the federal government should not give businesses a get out of jail free card to ignore the accessibility of their businesses to persons with disabilities. Again, the standard is there; it’s just how you get there depends.

II

Conclusions:

  1. When I stepped away from drafting this blog entry, I got to thinking why a writ of mandamus wouldn’t work. That is, some kind of motion to compel the Department of Justice to formulate regulations. The reason it won’t work is because you can’t have it both ways. If the ADA does not apply to websites, then the Department of Justice does not have any reason to issue regulations in the first place since it is out of their jurisdiction. However, if the ADA does apply to websites, then the DOJ is mandated to issue regulations carrying out the ADA and they have not done so in this case. You can’t have it both ways. That is, you can’t argue that the ADA does not apply to the web but DOJ has to issue regulations. How can that be if the ADA doesn’t apply to website to begin with?
  2. Meaningful access is the standard. So, businesses and their coders should take this as an opportunity to work with the disability community (make sure you include voice dictation and screen reader users as well as the deaf/hard of hearing), to come up with creative ways to make sure that their websites are accessible to people with disabilities.
  3. The strongest argument industry has against website accessibility is that Congress passed up a chance when it amended the ADA to include the Internet and places of public accommodations. At the time of the amendments, the Internet was around for sure. That said, as courts have said, there can be lots of reasons why Congress doesn’t act. Also, the ADA was specifically intended to evolve with technology.
  4. It isn’t at all clear that title III of the ADA is entirely focused on facilities as the brief claims.
  5. What is a “place,” is the $64,000 question. Even the same dictionary has different definitions that can take you to very different places (pun intended). As mentioned above, DOJ has suggested that there are situations where a place of public accommodation may not be a physical facility. See this blog entry.
  6. I prefer to think of the possible approaches to website accessibility and the courts as being: physical place only; focus on place of public accommodation; gateway; and you have to be able to show that you have been physically in the store before you can go after Internet inaccessibility (the last one being a complete outlier). The trend has been the gateway approach, but that may be changing to a focus on public accommodation approach.
  7. WCAG and even §508 standards are a good place to look at for building a preventive law system for your website.
  8. Interesting that the brief never mentioned the primary jurisdiction doctrine. That may be because in light of the Trump administration withdrawing the regulations, I don’t see how such an argument could be credible. See this blog entry.

 

While this blog is entitled Understanding the ADA, the blog as you know extends into other laws that are related in one way or another to the rights of persons with disabilities. Also, as you know, I spent 12 years in higher education teaching people how to be paralegals, with the last four of that tenure running an ABA approved paralegal program. So, education and persons with disabilities is very much an interest of mine, and numerous blog entries, such as this one, deal with the issue of disability rights in the education context. In going through my list of blog entries, it doesn’t seem that I have ever discussed a pure tort law case, except for here. Tort law involves suing each other for civil wrongs, such as for personal injury, defamation, etc. Today’s case, The Regents of the University of California v. The Superior Court of Los Angeles County (real party in interest- Katherine Rosen), occurs at the intersection of tort law, education law, and disability rights. As usual the blog entry is divided into categories and they are: facts; issues; holdings; court’s reasoning special relationship; court’s reasoning policy considerations and foreseeability; concurrence; and takeaways. The reader is free, as usual, to concentrate on any or all of the categories.

Before proceeding with the blog entry itself, I would be remiss if I didn’t wish everyone a happy Easter and a happy Passover, whichever may be the holiday you are celebrating.

I

Facts:

Damon Thompson transferred to UCLA in the fall of 2008. He soon began experiencing problems with other students in both the classroom and in residence hall settings, including but not limited to:

  1. Emailing his history professor that he was angered by offensive remarks from other students during the final exam and outraged because their comments had affected his performance. He also complained that he had heard the professor calling him troubled and crazy among other things. The professor forwarded his messages on to the department chair where the professor was told to calm him and encourage him to visit the school’s counseling services if he appeared genuinely paranoid or a potential threat.
  2. Complaining about mistreatment by fellow dormitory residents by sending a three-page letter to the Dean of Students. A week later the school moved him to a new dormitory.
  3. Complaining to three professors and a teaching assistant that students have been trying to distract him with offensive comments. The teaching assistant told her supervising professor she had never observed this behavior, but that the student himself acted oddly, including frequently talking to himself. The teaching assistant believed he was displaying signs of schizophrenia and should be referred to the University counseling and psychological services. The teaching assistant and the supervising professor met with Thompson and urged him to use the service, but Thompson denied hearing things or making things up. Another professor forwarded Thompson’s complaint to the Assistant Dean of Students who contacted the University Consultation and Response Team. That team advises campus members having concerns about the well-being of a particular student. The Dean also met with Thompson and encouraged him to seek medical help with the University’s Counseling and Psychological Services.
  4. Thompson told the Resident Director that there were voices coming through the walls calling him an idiot. He heard a clicking noise from above sounding like a gun and believed other residents were planning to shoot him. He also told Resident Director that he had telephoned his father and was told to hurt other residents. While admitting he had thought about it, he said he decided not to hurt anyone. When campus police arrived, they searched the premises but did not find any weapons. Campus police concluded that Thompson needed psychiatric evaluation and escorted him to the emergency room for that purpose. During that examination, he reported a history of depression and complained of auditory hallucinations and paranoid thinking. He also said that for several months he had heard people talking about him and insulting him even when there was no one there though he denied suicidal or homicidal thinking. The examiner diagnosed Thompson with possible schizophrenia and major depressive disorder. Thompson agreed to take a low dose of antipsychotic medication and begin outpatient treatment at the counseling and psychological services of the University. The Dean and the response team were informed about the incident and his mental evaluation. The response team began discussing Thompson at their weekly meetings.
  5. In March 2009, Thompson began sessions with a University psychologist. While he denied wanting to hurt himself or others, he continued to report auditory hallucinations and paranoid thoughts. He also notified the therapist that he had thrown away his prescribed antipsychotic medication. The psychologist diagnosed him with schizophrenia and urged him to see a psychiatrist at the University. Thompson refused to consider medication until he could determine whether the voices were real and expressed frustration that nobody believed him and said he would try to record the voices. Also, around this time the Resident Director notified counseling and psychological services that Thompson was having trouble in the dormitory, and that resulted in the response team deciding to move him to a single room and to consider the possibility for transitioning him into different housing.
  6. Later in March, Thompson told University psychologist that he was still hearing voices and being harassed by other students. He said he was now open to psychiatric evaluation. Later that day, at a session with a University psychiatrist, Thompson admitted to thinking about harming others, although he had no identified victim or plan.
  7. The psychiatrist strongly urged him to submit to voluntary hospitalization. Thompson refused but agreed to take medication. While counseling and psychological services staff agreed that Thompson did not meet the criteria for an involuntary hold, the psychiatrist recommended involuntary hospitalization if his thoughts of harming others worsened. Thompson continued to attend counseling and psychological services sessions and continued to report auditory hallucinations all the while denying he intended to harm others. He eventually withdrew from treatment.
  8. After campus police responded to an incident at Thompson’s dormitory, Thompson was expelled from university housing and ordered to return to counseling and psychological services at the beginning of the fall quarter. After he moved to an apartment, Thompson twice called the police to complain that neighbors were yelling at him through the floor.
  9. Thompson continued to experience auditory hallucinations in the classroom. A campus and psychological services psychologist reported that Thompson displayed a guarded attitude, slow speech, delusional thought processes, and impaired insight.
  10. A teaching assistant emailed her professor about an incident where Thompson accused another student of calling him stupid and insisted on learning the student’s name. The teaching assistant eventually gave Thompson the name and told him to calm down, and Thompson seemed fine after that. However, the teaching assistant remained worried that Thompson’s behavior was becoming a weekly routine. The following day, another teaching assistant told her supervising professor that Thompson had come into the chemistry lab from a different section to accuse a student of verbally harassing him. That email was forwarded to the response team, who expressed concern that Thompson identified a specific student. The campus and psychological service director contacted one of their psychologist suggesting that Thompson may need urgent outreach and members of the response team tried to schedule a meeting to discuss him. He did not appear for a scheduled session with the psychologist that afternoon. The next morning, they decided to investigate whether was having similar difficulties in other classes.
  11. After all this, while he was doing class work in the chemistry laboratory Thompson without warning or provocation stabbed a fellow student in the chest with a kitchen knife. That student had been kneeling down, placing items in her lab door, when Thompson attacked her from behind. She was taken to the hospital with life-threatening injuries but ultimately survived. Thompson ultimately pleaded not guilty by reason of insanity to a charge of attempted murder and was admitted to a state mental hospital and diagnosed with paranoid schizophrenia.
  12. The student stabbed by Thompson sued University of California and several of its employees for negligence saying University owed her a duty of due care to protect her from foreseeable harm, and that the duty was breached by UCLA and its employees. At trial, the trial court concluded a duty existed. That decision was appealed, and a divided Court of Appeals held over dissent that UCLA owed no duty to protect the student who was stabbed.

II

Issue

  1. Does the University owe student a duty of care to protect a student from foreseeable harm?

 

III

Holding: Yes

IV

Court’s Reasoning Special Relationship

  1. A duty to control, warn, or protect may be based upon the defendant’s relationship with either the person whose conduct needs to be controlled or with the foreseeable victim of that conduct. That is, a duty to control may arise if the defendant has a special relationship with the foreseeably dangerous person that entails an ability to control that person’s conduct.
  2. In an appropriate case, that duty, per this case, may be fully discharged if adequate warnings are conveyed to the students at risk.
  3. The restatement third of torts identifies several special relationships that may support a duty to protect against foreseeable risks, including a school with its students.
  4. Special relationships as defined by the law have some common features including: an aspect of dependency where one party relies to some degree on the other for protection; control where one party is dependent. That is, one party has superior control over the means of protection; defined boundaries where a duty of care is owed to a limited community and not to the public at large; and the party charged with a duty of care specially benefits from the arrangement.
  5. When it comes to a university’s duty toward its students, California cases have taken a broader view when the problem is outside of alcohol-related injuries.
  6. As a result of the unique features of the college environment, post-secondary schools have a special relationship with students while they are engaged in activities that are part of the school’s curriculum or are closely related to it delivery of educational services.
  7. Colleges provide academic courses in exchange for a fee, but colleges are far more than just a typical business relationship. Similarly, residential colleges provide living spaces, but are much more than landlords. Along with educational services, colleges provide students with social, athletic, and cultural opportunities. All colleges provided discrete community for their students.
  8. For many students, college is the first time they have lived away from home and while they may no longer be minors under the law, they are still learning how to navigate the world as adults. That is, they are dependent on the college community to provide structure, guidance, and a safe learning environment. In such an environment where students pay tuition and other fees in exchange for using the facilities and where they spend a significant portion of their time and may in fact live, students can reasonably expect that the premises will be free from physical defects, and that school authorities will exercise reasonable care to keep the campus free from conditions that increase the risks of crime.
  9. Colleges have superior control over the environment and the ability to protect students.
  10. Colleges impose a variety of rules and restrictions in the classroom and across campus in order to maintain a safe and orderly environment. For example, they often employ resident advisors, mental health counselors, and campus police. They can monitor and discipline students when necessary.
  11. While the primary function of the college or university is to foster intellectual development through an academic curriculum, the college or university is involved in all aspects of the student’s life and provides a setting in which every aspect of student life is to some degree university guided.
  12. In a broader sense, college administrators and educators have the power to influence student values, their consciousness, their relationship, and their behaviors.
  13. Students are vulnerable and dependent on their colleges for a safe environment. Colleges have a superior ability to provide that safety with respect to activities they sponsor or facilities they control. Their relationship is bounded by enrollment status and so their special relationship is only with enrolled students; a limited population and a relationship of limited duration.
  14. Colleges are in a special relationship with enrolled students only in the context of school sponsored activities over which the college have some measure of control.
  15. Other States have ruled similarly, including Massachusetts, Florida, and Delaware.
  16. The incident giving rise to this case occurred in a chemistry laboratory while class was in session. The core of a college’s mission is education, and the classroom is the classic setting for curricular activities. More than any other place on campus, colleges can be expected to retain a measure of control over the classroom environment. While class attendance is not strictly monitored, any college student hoping to obtain a degree must attend classes and required laboratory sessions. Accordingly, it is reasonable for students to expect that their schools will provide some measure of safety in the classroom.

V

Court’s Reasoning Policy Considerations and Foreseeability

  1. The California Constitution declares that the right to public safety, where students and staff have the right to be safe and secure in their persons, extends to public and private elementary, junior high, senior high, and colleges or universities.
  2. Violence against students in the classroom or during curricular activities while it may be rare, is a foreseeable occurrence and so public policy does not justify categorically barring an injured student’s claims against the University.
  3. A reasonable University could perceive that its negligent failure to control a potentially violent student or to warn students who were foreseeable targets of his or her anger, could result in harm to one of those students, such as the incident at Virginia Tech in April 2007. So, classroom attacks are foreseeable occurrences that colleges have been equipping themselves to address for at least the past decade.
  4. Whether the University was or should have been on notice that a particular student posed a foreseeable risk of violence is a specific question to be examined in light of all the surrounding circumstances. Relevant to that determination are any prior threats or acts of violence by the student, particularly if those acts of violence target an identifiable victim.
  5. Additional relevant facts would be the opinions of examining mental health professionals or observations of students, faculty, family members, and others in the University community.
  6. When circumstances put a school on notice that a student is at risk to commit violence against other students, the school’s failure to take appropriate steps to warn or protect foreseeable victims can be causally connected to injury the victim suffer as a result of that violence. While a criminal act is always shocking, it is not completely unpredictable if a defendant is aware of the risk.
  7. Compared to students, colleges would typically have access to more information about potential threats and a superior ability to control the environment and prevent harm.
  8. The court did not buy the argument of UCLA that imposing a duty of care would discourage colleges from offering comprehensive mental health and crisis management services. That is, UCLA claimed that rather than becoming engaged in the treatment of the mentally ill students, colleges would have an incentive to expel anyone posing a remote threat to others. The court acknowledged that this decision would force schools to balance competing goals, force difficult decisions, and give some schools a marginal incentive to suspend or expel student displaying a potential for violence. It also might make schools reluctant to admit certain students or to offer mental health treatment. That said, decisions like those are circumscribed by laws such as the ADA (California has a very strong State equivalent law as well, the Unruh Act). Further, market forces driving colleges across the country to adopt sophisticated violence prevention protocols after Virginia Tech likely weigh against the dismantling of those protections. Finally, colleges and universities also have options short of expelling or denying admission to deal with potentially violent students and those options will vary from case to case. If such staff can avert violent episodes like the one in this case, recognizing the duty serves the policy of preventing future harm.
  9. UCLA also claimed that this duty will deter student from seeking mental health treatment or being candid with treatment providers for fear that their confidence it would be disclosed. That argument doesn’t wash because that issue has been around since 1976 when the California Supreme Court held in Tarasoff that a psychotherapist had a duty to warn others in certain circumstances. Since that time, no evidence has been produced that patients have been discouraged from coming to therapy or from speaking freely for fear that confidentiality will be breach.
  10. Threat assessment and violence prevention protocols are already prevailing on university campuses.
  11. UCLA like many other colleges across the country has already developed sophisticated strategies for identifying and diffusing potential threats to student safety. For example, the school created multidisciplinary teams of trained staff members and professionals for this very purpose. See also ¶ 1 of the takeaways §.
  12. UCLA expressly marketed itself to prospective students and their parents as one of the safest campuses in the country.
  13. In 2007, schools in the University of California system raised mandatory registration fee 3% in order to improve student mental health services and they planned further increases to implement all the violent prevention measures recommended by the Campus Security Task Force. So, recognition of the legal duty to protect students from foreseeable threats does not pose an unmanageable burden.
  14. The University’s duty is limited to enrolled students who are at foreseeable risk of being harmed in a violent attack while participating in curricular activities at the school. Further, that duty is to take reasonable steps to protect student when it becomes aware of a foreseeable threat to their safety. The reasonableness of those actions is a question of whether that duty has been breached and not whether the duty exists.
  15. UCLA offered no reason to doubt whether colleges could obtain insurance coverage for the negligent liability under consideration.
  16. Colleges are not the ultimate insurers of all student safety. Rather, they have a duty to act with reasonable care when aware of a foreseeable threat of violence in a curricular setting. Reasonable care varies from each case and it is absolutely possible that some assault may be unavoidable despite a college’s best effort to prevent them. So, courts and juries need to be cautioned to avoid judging liability based on hindsight.
  17. The appropriate standard of care for judging the reasonableness of the University’s action is an open question that the parties are free to litigate when it goes back to the lower courts. UCLA’s argument that there was little more it reasonably could have done to prevent the assault may be relevant to this determination.

VI

Concurrence

Justice Chin concurred but said the duty should be limited to the classroom only and not to the University at large.

VII

Takeaways

  1. The sophisticated strategies that universities have to fight mental illness on campuses can be quite sophisticated indeed. In fact, in this week’s Chronicle of Higher Education, there is an article talking about how UCLA is using technology to fight against depression. UCLA aims to cut the burden of depression in half by 2050 and to eliminate it by the end of the century. It uses an online program to measure the anxiety and depression levels of nearly 4000 students. In 12 to 15 minutes, students volunteering to take the screening test are categorized on the basis of mild to severe depression, anxiety, or suicidal thoughts. UCLA then uses those classification to get student to appropriate mental health treatments. The University has found that 20 to 25% of those it has screened since January of 2017, have at least mild levels of depression or anxiety and that 23% of those students received the campus counseling services. The director of the University’s anxiety and depression research Center said that the students are needing more than they can get from the services provided and that UCLA has excellent services. The UCLA study also said that only 50% of people getting treatment respond favorably to it. When the student is flagged as a suicide risk, researchers are alerted and within three hours, a staff member reaches out to discuss intervention. Depending upon the results of the computerized assessment, the student gets placed in different tiers and gets a generic Internet based therapy program. Students classified in the mild to moderate depression level are routed to the UCLA Resilience Peer Network, which is a collective of undergraduate and graduate students who have received training in mental health support or graduate students in clinical psychology. If a student persists being severely depressed, suicidal, or having signs of manic behavior, he or she is then placed into UCLA’s Research Clinic for treatment by psychology and psychiatry fellows under the supervision of licensed professionals. The director of UCLA’s Anxiety and Depression Research Center said, “it becomes a very personalized treatment based on their needs and how they are responding in the moment, and we are keeping track of that data not only to guide in the moment treatment decisions, but also to become a guide for selecting which individual is going to respond to a certain treatment.”
  2. Depending upon which side of the aisle you are on, the article in the Chronicle of Higher Education is fortuitous or not. I certainly expect it to be used by the plaintiff to show that the duty of care established by the California Supreme Court in this case was breached. It isn’t clear what systems UCLA had in place at the time of the occurrence in this case.
  3. Just why did I blog on this case? I blogged on this case for the very reasons suggested by UCLA in its arguments. That is, a reasonable person could foresee that all kinds of things might happen to students with mental health conditions that would not be favorable to them. For example, stereotyping to take adverse action, such as assuming a dangerous propensity when none exists. Another example, would be cutting a student loose rather than exploring all possibilities in a rush to avoid liability.
  4. With respect to the ADA, certainly want to be thinking in terms of direct threat per this blog entry. You also want to be thinking in terms of essential eligibility requirements and whether the student can meet the essential eligibility requirements with or without reasonable modifications.
  5. I received my J.D. degree from the University of San Diego back in 1985. Even then, California was a very policy driven State. It’s hard to believe that when I entered law school and took torts, Tarasoff was only six years old. Since then, that case is one of the all-time classics and contains a principal that is just about everywhere. This decision is a logical extension of that case. It also reflects how society has evolved since 1976 (particularly after 20 years of school shootings ), and what society perceives of the psychological makeup of the college student today. The expectations of the mindset of today’s entering college student and their parents have certainly changed. It will be very interesting to see whether other States adopt this decision. I also found it interesting that even in 2018, the highest court of a State was being explicitly policy driven. That isn’t the case in every State.
  6. The court is absolutely right that the bulwark for persons with disabilities with respect to how colleges and universities treat them, especially after this decision, is going to be the ADA. Remember, direct threat must be based upon the best available and objective scientific evidence after an individualized analysis.
  7. As a preventive law matter, colleges and universities would do well to assume that this case could very well become the law in their jurisdiction for a couple of different reasons. First, California has always led the way with respect to tort law principles. In fact, what constitutes basic principles of tort law all pretty much started in California. Second, the decision does a nice job of encapsulating just where society sees the mindset of both the person entering college and their parents. So, colleges and universities will want to develop comprehensive systems for dealing with the mental health of its students and then ensure that their rights under the ADA are also respected so that students with mental health issues are not pushed out the door when that is not necessary.
  8. Just how far the duty extends outside the classroom is an open question and will be something for each college and university to assess.

The best weekend in sports is no doubt the first and second round of the NCAA basketball tournament. I hope your bracket survived. The UMBC VA game was amazing (even my 14-year-old daughter was into it), and there were plenty of other upsets along the way as well. I am in two pools (brother and brother-in-law), and Cincinnati’s loss did not help me. However, I do have Villanova and Gonzaga in the final game, and so I am okay that way (I have Gonzaga winning in one pool and Villanova winning in the other). Good luck to everyone with their brackets.

As everyone knows, I am not afraid to blog on cases blogged on by others. Today’s case is a first because I don’t think I have ever blogged on a case mentioned here by Eric Meyer of Fisher Broyles in his Employer Handbook blog, an ABA Hall of Fame blog that can be found in my blogroll. So, today is a first. My thanks to Eric for alerting me to the case. The case, Lindstrom v. Bingham County, Idaho, out of the Idaho District Court decided on March 15, 2018, is a combination of FMLA and ADA . As usual, the blog entry is divided into categories and they are: facts; court’s reasoning in denying summary judgment on the FMLA claim; court’s reasoning in denying summary judgment on the ADA and the equivalent Idaho Human Rights Act claim; and takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts

Plaintiff was employed at the Rattlesnake Landfill located outside of Shelley, Idaho as the landfill manager from July 26, 2004, until March 10, 2015. It was a full-time position, and his duties generally included operating the scale house when customers arrived, operating heavy machinery throughout the landfill, and supervising other employees. On September 16, 2014, plaintiff was taken to the hospital because he was ill. Subsequent visit with doctors revealed multiple health issues including blurry vision and low blood sugar. As a result, one doctor told the plaintiff to refrain from operating heavy equipment for a time, and another doctor suggested taking time off work to address the health concerns.

On September 30, 2014, plaintiff signed a request for FMLA leave. That form noted that plaintiff’s FMLA leave started September 24, 2014 and would last for 12 weeks until December 16, 2014. During that time, plaintiff took medications and was able to improve his vision and level out his blood sugar. However, the condition with his feet, which was caused by diabetes, did not get better or worse.

During November and December 2014, plaintiff kept in contact with the County’s Human Resources Director and discussed various work option for him upon his return. Plaintiff indicated that he wanted to try to do some work at Rattlesnake to see how it went. However, that never took place. Plaintiff’s intent was to work mainly in the scale house, which he had done previously when his feet were causing him pain.

Plaintiff did not have a doctor’s note immediately available upon completion of his FMLA leave and did not show up for work on December 17, 2014. Even so, the County continued his time off as a paid leave of absence. On December 31, 2014, plaintiff received a note from a doctor and provided it to the County on January 2, 2015. The County asked the plaintiff to work with medical providers to determine the details of any work limitations and to fill out a fitness for duty form.

Plaintiff complied with that and furnished two fitness for duty forms. With some variations, both doctors recommended that plaintiff not stand or walk for long periods because of the condition with his feet along with other minor restrictions and suggestions.

As a result of the fitness for duty forms, the County determined that Rattlesnake was not a good fit for the plaintiff and instead offered him a position at the central transfer station located in Blackfoot, Idaho. The County gave him few details about that job, but did say that he would have a stool to sit on. While plaintiff initially agreed to attempt that position, when the day for him arrived to start that job, he left a message with the supervisor indicating that he would not be able to make it for medical reasons. He later indicated that he wasn’t comfortable driving the significantly greater distance to that job as opposed to his usual 3-4 mile commute to Rattlesnake. After meeting with his doctors, the doctors about the plaintiff that driving longer distances and a slower paced job close to home, essentially Rattlesnake, would be best for the plaintiff.

On March 5, 2015, the Board of Bingham County’s Commissioners passed a resolution reducing the hours of operation at Rattlesnake for financial reasons. They then implemented a reduction in force and terminated the plaintiff and another part-time employee. After exhausting administrative remedies, plaintiff brought suit and the County eventually moved for summary judgment.

 

II

Court’s Reasoning in Denying Summary Judgment on the FMLA Claim

  1. Under the FMLA, if an employee can’t perform the essential functions of the position because of a physical or mental condition, he is not entitled to restoration of a job upon return. However, he may have rights under the ADA.
  2. What were the essential duties of the job, how those essential duties were defined, and how fieldwork was allocated at Rattlesnake were all facts in hot dispute. Further, the County could not point anything in the record actually showing that plaintiff could not perform the duties as outlined.
  3. In the past, plaintiff had worked internally with his coworkers to switch duties when he was having a difficult time, and the County provided no explanation as to why that type of scenario could not have continued upon his return.
  4. No legal authority exists for the proposition that a person on FMLA leave must return to work at the specific time the FMLA leave ends or risk losing his right to reinstatement. In fact, FMLA regulations say that the timing is not so rigid. In particular, 29 C.F.R. §825.216 provides an employer can delay restoration to an employee who fails to provide a fitness for duty certificate to return to work. Importantly, that provision does not say the employer can fire an employee or that the employee’s right to reinstatement lapses or ends. Rather, it says that the employer can delay reinstatement. That is exactly what happened in this case. That is: plaintiff did not provide the form upon completion of the leave; the County requested it; plaintiff produced it; and then the parties work towards a solution. Further, 29 C.F.R. §825.312 says an employer may not terminate the employment of the employee while awaiting a certification of fitness to return to duty.
  5. While an employee cannot wait around and return to work at his or her convenience, there is nothing indicating that the day after leave expires is the sole date upon which a person can return without forfeiting his or her rights, especially in this case where the County admittedly chose to work with the plaintiff regarding his return and even extended it with paid time off.
  6. Nothing in the C.F.R. puts a timeframe on the required fitness for duty form.
  7. While it is logical to assume that in order to avoid any downtime the employee should provide the form immediately after the 12 weeks, the regulations are silent with respect to timing.
  8. Since federal regulations allow for delay for an employee to get paperwork, that suggest that there is not a strict timing requirement. Further, this case did not involve extreme behavior where the plaintiff put off returning to work: his leave ended on December 16, 2014; he got a note from a doctor on December 31, 2014; and submitted the same to the County on January 2, 2015. The County then asked for the official fitness for duty forms and the plaintiff provided two of those.
  9. No indication exists that the County told the plaintiff he had to submit the form prior to December 16, nor was there any indication that plaintiff was not diligent in getting the requested forms to the County.

III

Court’s Reasoning and Denying Summary Judgment on the ADA and the Equivalent Idaho Human Rights Act Claims

  1. Once an employer becomes aware of the need for accommodation, the employer has a mandatory obligation to engage in an interactive process with the employee in order to identify and implement appropriate reasonable accommodations.
  2. What is a reasonable accommodation is typically a jury question.
  3. Just what were the essential duties of plaintiff’s job were not clear-cut.
  4. There are several questions of fact in dispute that are critical to the case, including: whether plaintiff could do the work; what were the essential functions of the job; and why plaintiff could not trade the functions of the job off with other employees as he had done prior to his FMLA leave.
  5. Whoever breaks down the interactive process bears the liability. In this case, who was responsible for that breakdown of the interactive process is in hot dispute. In particular, both sides interacted with each other but neither side liked the other side’s suggested options. So, whether those communications and ideas were adequate under the ADA is a question the trier of fact must determine, i.e. a jury question.
  6. When trying to determine whether a person is a qualified individual under the ADA, it is absolutely critical to remember that the question is whether the individual can perform the essential functions of the job with or without reasonable accommodations. As mentioned in the above paragraphs, whether plaintiff could perform the essential functions of his job with or without reasonable accommodations is in hot dispute and material to the dispute as well.
  7. With respect to causation, the County’s Human Resources Manager admitted that the plaintiff’s disability played a role in the decision to reduce plaintiff’s hours at Rattlesnake. Accordingly, if the reduction in plaintiff’s hours was the moving factor behind the reduction in force resulting in his losing employment, it is reasonable to infer that plaintiff’s health issues were a consideration in his termination. Since there appears to have been multiple factors with respect to the reduction in force, it all should be presented to the jury for resolution.

 

IV

Takeaways:

  1. Nothing in the FMLA requires that the process of going on FMLA leave and the certification process of coming back from FMLA leave factor in reasonable accommodations. However, since the FMLA applies to employers with 50 or more employees and title I of the ADA applies to employers of 15 or more employees, an employer would have to be out of their mind not to factor in the with or without reasonable accommodation part when it comes to the FMLA certification process. On the plaintiff’s side, the distinction is important for pleading purposes. A defendant would be perfectly justified in getting an FMLA claim dismissed if that claim focused on the reasonable accommodation piece, but that would not be the case if that claim was phrased as an ADA claim.
  2. Make sure your essential duties of the job are current, accurate, and reflect what is actually happening on the ground.
  3. If a reasonable accommodation is working, why mess with it?
  4. Employers want to review their policies and figure out the timing for when paperwork must be in with respect to returning from FMLA leave. You do want to build a least a little bit of flexibility into the process.
  5. What is a reasonable accommodation is typically a question for the jury.
  6. As we have discussed before, whoever breaks down the interactive process bears the liability.
  7. Figuring out who broke down the interactive process is a question for the jury, at least in close calls.
  8. Whether a person is a qualified individual with a disability under the ADA depends upon whether that person can do the essential functions of the job with or without reasonable accommodations. Don’t forget about the, “with or without reasonable accommodation piece.”
  9. Whether a job can be performed with or without reasonable accommodations is a question of fact.
  10. Interesting, that the court talks about the plaintiff’s health issues undoubtedly being a consideration in the termination. The court doesn’t address the issue of whether causation is sole cause analysis or causation is a motivating factor analysis. See this blog entry.
  11. Not addressed in this case, but discussed here, is the important question of whether extending leave beyond FMLA leave is a reasonable accommodation under the ADA.
  12. For another FMLA ADA interaction problem, check out this blog entry, which discusses forcing FMLA leave instead of engaging in the interactive process.
  13. Don’t forget about reassignment as a reasonable accommodation.

Today’s blog entry deals with the question of whether taking adverse action against a person who does not currently not have a disability but where the employer fears will develop a disability in the future is actionable under the ADA. We will discuss two cases going opposite ways. They are: EEOC v. STME, LLC d/b/a/ Massage Envy-South Tampa from the Middle District of Florida decided February 15, 2018, and Shell v. Burlington Northern Santa Fe Railway Company from the Northern District of Illinois Decided March 5, 2018. As usual, the blog entry is divided into categories and they are: Massage Envy facts; Massage Envy reasoning; Shell facts; Shell’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.

I

Massage Envy Facts:

In September 2014, plaintiff requested time off to visit her sister in Ghana, West Africa. Massage Envy’s business manager approved the request. On October 22, 2014, three days prior to her trip, plaintiff was terminated out of concern that she would be infected with Ebola if she traveled to Ghana and would bring it home to infect Massage Envy’s employees and clients upon her return. Plaintiff subsequently did take her trip to Ghana. When she returned, she filed a claim with the EEOC. The EEOC found reasonable cause to believe that plaintiff was regarded as disabled and engaged in informal conciliation effort to reach a resolution. When the resolution effort failed, EEOC filed suit.

II

Massage Envy’s Reasoning in Granting the Motion to Dismiss:

  1. Under 42 U.S.C. §12102(3)(A) an individual is regarded as having a disability when she is subject to a prohibited action because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
  2. In an interpretive guidance, the EEOC said impairment does not include characteristics or predisposition to illness or disease.
  3. The owner did not perceive plaintiff as presently having Ebola. Instead, he perceived her as having the potential to become infected with Ebola in the future. As such, the owner did not believe the plaintiff was presently impaired.
  4. The court declined to expand the regarded as having a disability definition in the ADA to cover cases where the employer perceives an employee to be presently healthy with only the potential to become a person with a disability in the future due to voluntary conduct.
  5. Massage Envy correctly argues that the EEOC failed to state an association discrimination claim because the defendant had not yet had any association with persons in Ghana, or with identified people known by the owner to be a person with a disability as required by the ADA. At the time of her termination, the plaintiff had not yet had any association with persons in Ghana. Further, there is no evidence that the owner knew any individual in Ghana with Ebola.
  6. The plain language of the ADA makes clear that the plaintiff must be known to have [present tense] (brackets appear in the opinion itself), a relationship or association with a person known to have a disability in order for that relationship to serve as a basis for association discrimination.
  7. Citing to an 11th Circuit case, the court noted that one of the prima facie elements is that the employer knew at that time that the plaintiff had a relative or associate with a disability.
  8. The plain language of the ADA and binding case law says that an employer must know of a presently existing or past association with a person with a disability at the time of the adverse action in order to fall under the ADA’s association discrimination provision. The EEOC did not give the court nor was the court aware of any 11th Circuit case where an association discrimination claim was sustained based upon the employer’s knowledge of the potential future association with a person with a disability or persons with disabilities.
  9. No question in this case that the owner was without knowledge of a current association between the plaintiff and individuals in Ghana at the time of the plaintiff’s termination because no such association had occurred yet.
  10. Even if it is assumed that a plaintiff could bring an association discrimination claim for potential future association with a person with a disability, the ADA requires that such an individual have a known disability. In fact, the EEOC in its interpretive guidance says the ADA prohibits an employer from discharging the employee because the employee does volunteer work with people who have AIDS, and the employer fears that the employee may contract the disease.
  11. The ADA does not establish a cause of action for discrimination against an individual associating with people who are merely regarded as having a disability.
  12. The interference claim fails because it could not be reasonably assumed from the charge that such a claim existed.

III

Shell Facts:

Shell was employed by Rail Terminal Services, which was responsible for intermodal operations at Burlington Northern Santa Fe’s Corwith railyard. In July 2010, Burlington Northern Santa Fe announced that it would be taking over the operations at that yard and invited employees to apply for positions with Burlington Northern Santa Fe. Burlington Northern Santa Fe required that intermodal equipment operators act as groundsmen, hostlers, and crane operators. Groundsmen are responsible for climbing on railcars to insert and remove container interlocker devices; hostlers are responsible for operating trucks to move trailers within the yard; and crane operators are responsible for operating overhead cranes that load and unload intermodal containers from trains and truck chassis. While the plaintiff had previously worked for Rail Terminal Services, that position did not require him to fulfill all three functions. Even so, the plaintiff had many years of experience working in a similar capacity and also had experience in operating a broad array of relevant equipment.

Following an interview process, Burlington Northern Santa Fe made the plaintiff a conditional offer of employment with a scheduled start date of January 1, 2011 conditional on his completion of a background check, drug test, physical examination, and medical evaluation. As part of the medical evaluation process, Burlington Northern Santa Fe considered the body mass index of applicants for safety sensitive positions, which included plaintiff’s position. Burlington Northern Santa Fe believes that there are significant risks associated with having individuals of a body mass index of 40 or greater working in safety sensitive roles. In particular, such individuals are at a substantially higher risk of developing a number of medical conditions including sleep apnea, diabetes, and heart disease, all of which can manifest as a sudden incapacitation or serious impairment of alertness or cognitive ability. Accordingly, Burlington Northern Santa Fe does not hire applicants for safety sensitive position if their body mass index is over 40.

Physical exams established that the plaintiff was 5’10” tall and weighed 331 pound with a BMI of 47.5. Accordingly, Burlington Northern Santa Fe withdrew its offer of employment, but did inform the plaintiff that he might be eligible for reconsideration if he lost 10% of his weight, maintained that weight loss for six months, and provided any additional test results that were requested. That decision was based solely on plaintiff’s BMI and not on any existing physiological disorder or functional limitation. For that matter, no further examination was requested to determine if the plaintiff did in fact suffer from sleep apnea, diabetes, or heart disease and no evidence suggested that the plaintiff suffered from these conditions presently. Finally, no evidence suggested that the plaintiff’s weight resulted from the underlying medical condition.

IV

Shell’s Reasoning for Denying Defendant’s Motion for Summary Judgment

  1. In order to prevail on an ADA discrimination claim, plaintiff has to show that: 1) he is a person with a disability; 2) he is otherwise qualified to perform the essential functions of the job; and 3) the employer took an adverse action against him on the basis of his disability.
  2. Under 42 U.S.C. §12112(b)(6), one of the acts constituting discrimination against a qualified individual on the basis of disability is using qualification standards, employment tests, or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities. Further, the use of such qualification standards, tests, or other criteria only flies if it is shown to be job-related for the position in question and consistent with business necessity.
  3. Under 42 U.S.C. §12102(3), a person is regarded as having a disability if he can establish an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
  4. The court agrees with the weight of authority that obesity is not a disability under the ADA unless it results from an underlying physiological condition. Further, plaintiff also failed to establish that Burlington Northern Santa Fe perceived his obesity is a disability.
  5. The court cited to a case from the Southern District of Illinois where that court found in the case of a person who was not hired because of the employer’s fear that he would develop carpal tunnel syndrome in the future, that the plaintiff there was regarded as having a disability and that no reasonable jury could find otherwise.
  6. Burlington Northern Santa Fe readily admitted that it refused to hire the plaintiff based on its fear that he would develop sleep apnea, diabetes, or heart disease, and as a result, he might become suddenly and unexpectedly incapacitated while performing his duties.
  7. A question of fact exists as to whether Burlington Northern Santa Fe is treating the plaintiff as if he does suffer from sleep apnea, diabetes, or heart disease. Burlington Northern Santa Fe apparently views the plaintiff as a ticking time bomb who at any time may be suddenly and unexpectedly incapacitated by one or more of the potential medical conditions that he might develop.
  8. Burlington Northern Santa Fe’s refusal to consider hiring the plaintiff and monitoring him for the conditions it fears will develop suggests that the defendant believes the plaintiff suffers from these conditions or at the very least suffers from the potential effects of those conditions at the present time.
  9. The court sees no reason why Burlington Northern Santa Fe should be held to a lesser standard simply because it is engaging in adverse employment actions before an impairment arises, when there can be no doubt that Burlington Northern Santa Fe is acting based on its belief that plaintiff poses a present safety risk as a result of potential disabilities. Burlington Northern Santa Fe is acting upon the anticipated worst-case scenario derived from precisely the sort of myths, fears, or stereotypes that the ADA is meant to guard against.
  10. The court perceived a clear distinction between being predisposed to illness generally v. being predisposed to developing a disability subject to the ADA.
  11. In its guidance, the EEOC specifically recognizes that obesity can independently give rise to regarded as disability discrimination claims.
  12. In a footnote, the court said that Burlington Northern Santa Fe essentially argues that although it cannot discriminate against individuals who actually have a disability, it can discriminate against those who are likely to have disabilities but have yet to develop them. That argument is facially illogical and antithetical to the protections afforded by the ADA and other antidiscrimination statutes.
  13. With respect to business necessity, the employer’s burden is quite high and is not to be confused with mere expediency.
  14. From the record, it is impossible to determine whether the plaintiff’s health posed so great a safety risk that his exclusion from safety-sensitive positions constituted business necessity. In a footnote, the court noted that while it is true that the plaintiff offered no testimony from a medical expert to controvert Burlington Northern Santa Fe’s assessment of the risks of plaintiff’s obesity, Burlington Northern Santa Fe’s own evidence was based solely on indefinite and vague comparative statements of risks.
  15. Burlington Northern Santa Fe’s willingness to employ the plaintiff providing he lost some weight undermines its claim that the plaintiff was inherently too dangerous to be in a safety sensitive position. Accordingly, a dispute of material fact existed as to whether it was truly necessary to exclude the plaintiff and other individuals like him from safety sensitive positions.

V

Takeaways:

  1. I don’t see how the two cases can be reconciled. I would certainly look for the EEOC to appeal and use Shell in its appeal. The 11th Circuit as of late has often been favorable to persons with disabilities.
  2. Interesting that the same interpretive guidance gets used in both cases to reach opposite conclusions.
  3. As a preventive law matter, assume that Shell is the law and don’t take adverse action against an employee over the fear that the employee will develop a disability in the future.
  4. It isn’t a bad idea to have a lawyer draw up the EEOC charge where possible. Also, whoever draws up the charge should be sure to put in it any and all claims that reasonably stem from the facts in that charge.
  5. For more explanation as to what constitutes business necessity, check out this blog entry.
  6. Burlington Northern Santa Fe made a big mistake by not doing an individual analysis as to whether the plaintiff either had a disability or whether the plaintiff constituted a direct threat per this blog entry.
  7. While Shell goes along with the majority trending that obesity must be based upon an underlying condition to be protected under the ADA, it is significant that this court says that obesity can independently give rise to regarded as disability discrimination claims.
  8. Massage Envy specifically talks about voluntary conduct of plaintiff in the decision, and will be interesting to see how that plays out, if at all.
  9. As a preventive matter, individual analysis is critical.

I was trying to figure out what to blog on this week. I had various possibilities in mind, but for one reason or the other I rejected each of them, though one of them I put back in my pipeline. As everyone knows, the ADA and professional sports has long been an interest of mine. Also, I have previously blogged on how the ADA applies to the NFL here and here.

Shaquem Griffin is a University of Central Florida linebacker who while at University of Central Florida had very impressive statistics, which can be found here. Right now, the NFL combine is going on. With the use of a prosthetic device he was able to bench press 20 225 lb reps, see here. He also just ran a 4.38 in the 40 yard dash, which was faster than any linebacker at the combine since 2003. It is the feel-good story of the year and NFL players, which includes his twin brother, are absolutely ecstatic, see here. For example, Richard Sherman, see here,  said this: “If @Shaquemgriffin doesn’t get drafted in the first two days the system is broken. Productive and performed well at the combine. Played well against high level competition.”

 

There are ADA issues all over the place and they are:

  1. Is what is going on at the NFL combine an impermissible preemployment medical exam? As we have discussed previously in the comment section to this blog entry, I don’t see how all the testing being done at the NFL combine could be anything but a medical exam. Even if a medical exam is not involved, preemployment disability-related medical inquiries certainly are. See here and here, for example.
  2. All this is being done without a conditional offer of employment and labor unions are subject to the ADA. Also, the ADA applies to sports per this case.
  3. What are the essential functions of being an NFL linebacker? Regardless, it is pretty clear he could do the job of an NFL linebacker with or without reasonable accommodations.
  4. Even if somehow a conditional offer was involved, which it isn’t, would the failure to draft be job-related and consistent with business necessity, such as we discussed here. I don’t see how. Also, I don’t see how a direct threat argument works either considering his college record.
  5. The ADA case is very strong with respect to medical exams and medical inquiries at the combine being done outside of the ADA scheme. That said, professional sports being what they are in our culture, it will take just one lawsuit, which very well could be successful considering how outside the scheme of the ADA the system is operating in, and then it wouldn’t surprise me in the least, if Congress comes in with some kind of exception for professional sports. It is another question entirely , whether the ADA scheme could operate within the context of professional sports if it was given a chance.

Depending upon the round Shaquem goes in, a significant money differential exists. This is going to be very interesting to follow because of how the ADA scheme is simply not being followed and because a player’s disability may very well affect the ultimate remuneration that he receives, assuming he is drafted at all (it is likely that he will be drafted; it just isn’t sure what round).

Stay tuned!