Today’s blog entry is a two-for-one. First, we are going to update several other blog entries with recent developments. Then, we have the case of the week, Ashby v. Warrick County School Corporation, a decision from the United States District Court for the Southern District of Indiana that came down on February 7, 2018. My thanks to my colleague Richard Hunt who alerted me to that case in a blog entry of his, which can be found here. As usual, our blog entry can be divided into categories and they are: Hamer update; EEOC v. Ford and the Sixth Circuit; Endrew update; what is a program; Ashby facts; court’s reasoning; and takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Hamer Update

In this blog entry, we discussed the case of Hamer v. City of Trinidad. In that case, the U.S. District Court of Colorado held, among other things, that the statute of limitations begins to run at the moment a person discovers the problem regardless of whether the problem is ever fixed. That case has been appealed. A partner from the firm representing the plaintiff was kind enough to send me their brief appealing the decision. Basically, the brief says that every time a person encounters a barrier in violation of the ADA, the statute of limitations begins to run at that time. So, each and every time a barrier in violation of the ADA is encountered, a separate cause of action ensues because the ADA imposes a continuing duty to comply with that law. That argument is very similar to Keith-Foust v. North Carolina Central University, which we discussed here. What is not addressed in that brief because it was not an issue there, is whether the statute of limitations period stops if the problem is not fixed i.e. the person is not engaged in continually discovering the violation; a situation that has come up in my practice.

II

EEOC v. Ford and the Sixth Circuit

In this blog entry, we discussed the en banc decision from the Sixth Circuit discussing telecommuting and whether it is a reasonable accommodation. Recently, the Sixth Circuit came down with another decision on that topic. As I have mentioned before, many times I blog on what other bloggers have blogged about. However, there are times when the blogger that gets to the case first does such a good job that I don’t see what I can add. This blog entry of Jon Hyman of Meyers Roman is one of those times, and I strongly commend his blog entry, which can be found here, to your reading. It is an excellent analysis with great preventive steps as well.

III

Endrew Update

In this blog entry, we discussed the Supreme Court opinion imposing a much higher standard than what many courts said existed with respect to how far a school had to go to comply with its obligation under IDEA. After the Supreme Court decided the case, it was sent back to the 10th Circuit. In the 10th Circuit, they remanded it to the District Court for further proceedings consistent with the Supreme Court decision. The District Court then got a chance to decide whether the parents were entitled to reimbursement from the school district for their private school placement. The District Court decided that since it was a close call to begin with under the de minimis standard as to whether the parents were entitled to reimbursement for the private school placement, the parents were necessarily entitled to reimbursement now because the Supreme Court created a much higher standard in its decision. Therefore, the school district basically lost automatically because they almost lost on a much lower standard.

IV

What’s a Program?

When it comes to title II of the ADA, program accessibility is a critical concept. You can find a discussion of program accessibility and why it is critical to know a program’s essential requirements in my book on pages 77-78, 80-82. To reiterate the discussion there, an entity subject to title II of the ADA does not have to make an accommodation if it will fundamentally alter the nature of the program. Further, under title II of the ADA, a facility built before January 26, 1992, does not have to be accessible but the program does. Of course, a facility built or altered after the effective date of the ADA does have to be readily accessible to persons with disabilities and built in accordance with the appropriate architectural guidelines. When thinking about what is a program consider the following:

  1. Review the self-evaluation plan. If the entity is a public entity, they should have completed a self-evaluation plan some 24 years ago.
  2. Consider the commonalities in the delivery of the program’s service as programs are often built around a common set of services to a defined set of customers/clientele.
  3. Consider the meaning of the term program to the people running that program since what the program is may be obvious to them.
  4. Consult competent legal counsel to help determine what constitutes a program.
  5. Once you know what the program is, figure out its essential eligibility requirements using perhaps the approach we discussed in this blog entry

V

Ashby Facts (material in quotes taken directly from opinion)

“On December 16, 2014, Mycal L. Ashby showed up to the Warrick County Museum located in Boonville, Indiana to attend a Christmas program in which the Loge Elementary School choir was performing. Ms. Ashby’s son participated in the choir. However, Ms. Ashby, who is confined to a wheelchair due to a disability, was not able to enter the Museum because it was not fully accessible to persons with disabilities. As a result, she did not see her son perform that night. To make matters worse, this scenario occurred the following year in substantially similar circumstances. In December of 2015, Ms. Ashby showed up to the Museum, was informed that it was still not accessible, and was likewise unable to see her son perform in the Christmas program. Since then, the Museum has installed and maintains a fully operational elevator.”

“During the 2014-2015 and 2015-2016 school years, Ms. Ashby’s son participated in the Loge Elementary School choir (the “Choir”). (Id. ¶ 10). The Choir was an extra-curricular activity that was open to students in the fourth and fifth grade and was held after regular school hours. (Id. ¶¶ 10-12); (Filing No. 41-1, Affidavit of Abby Roach [“Roach Aff.”] at 1, ¶ 3). The program was led by Abby Roach, who was employed as a music teacher for Loge Elementary School. (Roach Aff. at 1, ¶¶ 2, 3). Roach was not paid for the time spent leading the choir as it was not a part of her regular teaching duties. (Id. ¶ 3). Once a week, students would practice and rehearse after school. (Ashby Dec. at 2, ¶ 12). Participation in the Choir was strictly voluntary as there were no attendance or performance requirements. (Roach Aff. at 2, ¶ 5). No class credit was offered for participation, and students were not evaluated for skill. (Id.).”

“Though Roach declared that the purpose of the choir was to acquaint students with singing in an informal environment and not to perform for others, the choir indeed performed at a number of events during the school year. (Ashby Dec. at 2, ¶ 13); (Roach Aff. at 1, ¶ 4). The events included a Fine Arts Night performance and a Veteran’s Day program, both of which were held at the elementary school. (Roach Aff. at 2, ¶ 6). Ms. Ashby attended the Veteran’s Day program in 2014. (Ashby Dec. at 2, ¶ 13).”

Other facts include:

  1. The museum is owned and operated by the Warrick County Museum Corporation;
  2. Museum is not in any way affiliated with Warrick Schools, and the museum did not have an operational elevator in the building until September 2016.
  3. The Museum has invited schools to perform at the Museum during the winter holidays since 2010.
  4. The events are organized, advertised, and operated solely by the Museum. At these events, the museum solicits donations, none of which are shared with or paid to Warrick Schools.
  5. The schools invited do not pay a rental fee to utilize the facility, and the museum opened the events up to the public at large.
  6. Transportation to the event was not provided by Warrick Schools.

The actual facts are really quite egregious in terms of what the child’s parents had to go through only to be denied access to the museum, but are not included here because they were not germane to the decision.

VI

Court’s Reasoning

In granting the school’s motion for summary judgment, the court reasoned as follows:

  1. Whether a service, program or activity of the schools was involved is a question of law.
  2. The terms “service, program, or activity,” are not defined in the ADA, though courts have interpreted that phrase to mean anything that a public entity does or to borrow from the Rehabilitation Act, i.e. all operations of the public entity.
  3. Regulations provide that a service, program, or activity is of a particular entity when it is provided or made available by the public entity. There are actually few decisions talking about when a service, program, or activity is provided or made available.
  4. One decision from the Northern District of Indiana talks about whether the city had control and authority over the problem at issue. Another decision from the District of New Jersey talks about where a governmental entity coordinates, schedules, and conducts proceedings on its own premises to benefit the public, then that conduct is necessarily a service to the public. Finally, the Southern District of Indiana in a case which we have discussed in the blog, here, said the key was who had the authority to direct or oversee the decision to comply with the ADA.
  5. Museum is not affiliated in any way with Warrick Schools.
  6. Warrick Schools does not own, operate, maintain, or control the building where the museum is located.
  7. Museum was responsible for coordinating, scheduling, and inviting local schools to the Christmas program and not the school.
  8. The Christmas program was operated solely by the Museum for the benefit of the community, and other than choosing what songs to sing, Warrick Schools did not organize or oversee the program.
  9. Donations were solicited on behalf of the museum, and no funds were shared with the schools.
  10. No rental fee was charged by the museum.
  11. The purpose of the Christmas program was to benefit and raise funds for the museum.
  12. While the choir is an extracurricular activity, the performance was under the direction of a school employee, and the Christmas program was advertised to parents in the school calendar, the choir was nonmandatory nor otherwise a required part of the school curriculum. Further, the employee was not compensated for her time leading the choir and there were no performance requirements nor were the student’s graded or evaluated.
  13. The school did not provide transportation to the museum. Just because the school accepted the invitation and the choir performed at the direction of the school employee after the program had been advertised to the parents on the school calendar, does not transform the program-which was otherwise wholly conceived of, planned, and controlled by the museum-into a service, program, or activity of the schools so that it had responsibility under the ADA.
  14. In a footnote, the court said that while title II of the ADA applies to anything a public entity does, it simply goes too far to conclude that these events are a service, program, or activity of each attending school.
  15. The school did not organize, coordinate, and plan the Christmas program as a requirement to complement its music curriculum.
  16. No allegations existed that the choir intentionally selected an inaccessible location where the choir performs.
  17. In another footnote, the court said plaintiff did not allege that the Warrick Schools engaged in any pattern of planning programs and inaccessible locations or that the choir did not accommodate members after school and practices. Further, while it is true that a public entity may not in determining the site or location of the facility make selections that are discriminatory, that presumes the public entity is selecting a facility for its own service, program, or activity, which is not the case here.

VII

Takeaways:

  1. The court specifically says, “to be fair, this is a close case.”
  2. Could the plaintiff have gone after the schools under 28 C.F.R. § 35.130(b)? True, no money exchanged hands, but to have a contract, money does not have to be involved. For a contract to exist, the critical feature is whether a bargained for exchange exists (the offer and acceptance already occurred). The school’s students are certainly getting a benefit to their education by performing at this concert and the museum is certainly receiving a benefit from the school i.e. providing the vehicle for it to raise funds. So, an argument exists that the court unduly focused on the monetary aspect of most contracts, but a contract doesn’t have to be monetary; all you need is a bargained for exchange.
  3. It will be interesting to see whether this case gets appealed. I will say that the Seventh Circuit of late has not been great with respect to deciding in favor of persons with disabilities (for example, see this recent blog entry), but you never know. Also, Judge Young admitted that it was a close case.
  4. I suppose the reason they didn’t go after the museum was because of the museum was not the deep pocket.
  5. While the choir director was not compensated for directing the choir, the question remains in my mind whether the school expected the choir director to be engaged in extracurricular activities. Such an expectation would not be unusual at all.
  6. As a preventive law matter, I wouldn’t rely on this case because of the myriad of factors that all broke towards the museum. In another situation, the factors may split more evenly. See also ¶VII2 above. Further, since it was a close case, even if all the factors broke the same way, a different judge may come to the opposite conclusion. So, bottom line, if the school district is doing something under the school district’s direction, it would be a good idea to make sure that anyplace it performs is accessible. Engaging in that endeavor, is certainly much cheaper than fighting off a motion for summary judgment.

I have a few cases in my pipeline, but there was never any question as to what this week’s blog entry was going to be on. Considering that the House of Representatives passed HR 620 and the Internet has lit up with it, blogging on HR 620 was the only choice for this week. As usual, the blog entry is divided into categories and they are: what HR 620 provides; how a defense lawyer is going to go about his or her business assuming it passes; and takeaways. The reader is free to look at any or all of the sections.

I

What HR 620 Provides

  1. HR 620, “the ADA Education and Reform Act,” amends the ADA with respect to suing for architectural barriers in the following ways:

“(B) BARRIERS TO ACCESS TO EXISTING PUBLIC ACCOMMODATIONS.—A civil action under section 302 or 303 based on the failure to remove an architectural barrier to access into an existing public accommodation may not be commenced by a person aggrieved by such failure unless—

“(i) that person has provided to the owner or operator of the accommodation a written notice specific enough to allow such owner or operator to identify the barrier; and

“(ii) (I) during the period beginning on the date the notice is received and ending 60 days after that date, the owner or operator fails to provide to that person a written description outlining improvements that will be made to remove the barrier; or

“(II) if the owner or operator provides the written description under subclause (I), the owner or operator fails to remove the barrier or, in the case of a barrier, the removal of which requires additional time as a result of circumstances beyond the control of the owner or operator, fails to make substantial progress in removing the barrier during the period beginning on the date the description is provided and ending 60 days after that date.

“(C) SPECIFICATION OF DETAILS OF ALLEGED VIOLATION.—The written notice required under subparagraph (B) must also specify in detail the circumstances under which an individual was actually denied access to a public accommodation, including the address of property, whether a request for assistance in removing an architectural barrier to access was made, and whether the barrier to access was a permanent or temporary barrier.”

  1. The “education,” piece of the act is that the act requires the Disability Rights Section of the Department of Justice to develop, in consultation with property owners and representative the disability rights community, a program to educate on efficient strategies for promoting access to public accommodations for persons with disabilities. The program may include training for professionals such as certified access specialists, which exists in California and Texas that I know of, to help provide guidance of remediation for potential violations of the ADA.

 

II

How a Defense Lawyer Is Going to Attack This

I have worked as a legal consultant or as co-counsel defending title III lawsuits. If this bill becomes law without being amended, here is how you can expect a defense attorney to attack an architectural barrier lawsuit:

  1. Respond just about every time that the notice wasn’t sufficient. Then, make the argument that the sixty day period doesn’t start until the notice is sufficient.
  2. While engaged in ¶ 1, promptly hire an accessibility consultant (costs for that are highly variable, probably five grand is useful at a minimum, depending upon the person hired and scope of the work).
  3. Once the accessibility report comes in, make the per se readily achievable changes and prioritize the rest, thereby mooting the case. The defense may even want to consider holding off on carrying out the non-readily achievable changes (priority list), until being called on it by a plaintiff since it is almost certain that the readily achievable list in the regulations will get the most attention from a plaintiff. It is entirely possible that the priority list will never be subject of a suit.
  4. Argue that the execution of ¶ ¶ II 1-3 above is substantial progress.
  5. If a plaintiff persists after all this is done, move for attorney fees.

III

Thoughts and Takeaways:

  1. Plaintiff with disabilities and plaintiff lawyers are the big losers here. Also, a big loser are businesses because this gets businesses to think in the short term and to limit the customers they may serve. Businesses also lose because defending these suits is going to get more expensive than it currently is. The big winners are defense lawyers because it enables defense lawyers to drag out the process, and it also enables defense lawyers to get very persnickety about whether the notice is sufficient before their client has to do anything. See also ¶ 6 below.
  2. You want to review this blog entry:
  3. This legislation applies strictly to the removal of architectural barriers under title III of the ADA. Therefore, it doesn’t affect what is going on with web accessibility litigation at all nor does it affect architectural barriers litigation under title II of the ADA.
  4. Sen. Duckworth from Illinois and Sen. Murray from Washington have both come out with guns blazing with respect to stopping this in the Senate. That said, this isn’t the kind of legislation where it can necessarily be assumed that all Democrats are going to be against or for that matter all Republicans are going to support. It is going to come down to whether the Republicans combined with some Democrats can get the 60 votes for cloture.
  5. By putting drop dead deadlines into the legislation, this legislation actually cuts off some flexibility that the defense currently has. Right now, the defense wants to immediately make the per se readily achievable changes, but has flexibility as to when the rest of the changes can be made. This legislation takes that away.
  6. Look for lots and lots of litigation over what substantial progress means (more business for defense lawyers).
  7. With respect to the notice required by a plaintiff to a defendant, think of it in terms of fact based pleadings, which is a difficult burden to meet absent discovery.

Before starting the blog for this week, a couple of preliminary matters. First, about a month ago, I hit 300 blog posts. I simply could not do it without the loyal readership of the people here. Thank you! Also, my last blog entry dealing with animals on planes really took off. The Texas Bar informed me that it was a top 10 blog entry for the week (I had posted a link for it on the animal law section of the Texas Bar listserv). So, again thank you!

The case of the day comes from the Seventh Circuit and is A.H. v. Illinois High School Association. The case contains some strange reasoning and a vigorous dissent as well as being about a topic, ADA and sports, that has long interested me. As usual, the blog entry is divided into categories and they are: facts; majority reasoning causation; majority reasoning fundamental alteration; dissenting opinion; and takeaways/thoughts. The reader is free to focus on any or all of the categories.

I

Facts

Plaintiff is a three sport athlete in Cross-Country, swimming, and track and field at Evanston Township High School (north suburban Chicago) since his freshman year. He is a full member of the track and field team and has never been prevented by his school or the Illinois High School Association from being on the team or participating in individual school meets. For a paralympian, he is considered an elite athlete and competed at the US Paralympic trials in 2016. The Illinois High School Association is a not-for-profit voluntary association that organizes and regulates interscholastic high school athletic events throughout Illinois. It has a Board of Directors as well as an executive director that oversee day-to-day operations. The Executive Director has complete authority to decide accommodation requests, which can be brought by member schools or by an individual. There is no public criteria the Executive Director consults when evaluating such requests. Further, the Executive Director’s ruling on accommodation requests can be appealed to the ten member board, which then holds a hearing with the student athlete and other relevant parties. The Illinois High School Association does have a nondiscrimination policy for students with disabilities and has established a para-ambulatory division for swimming and a wheelchair division at track and field meets, but it does not have a para-ambulatory division for runners like the plaintiff. Qualification for the State tournament is based upon time, which most people, even able-bodied ones, cannot meet. Certainly, the plaintiff cannot meet that time and even the world record holder in the plaintiff’s classification could not meet that time. Plaintiff requested that the Illinois High School Association create a separate division with different time standards for para-ambulatory runners for the Illinois State championship track meets as well at the annual 5K Road race. The Executive Director denied that request relying on a guidance from the US Department of Education Office of Civil Rights that said that schools were under no obligation to create separate or different activities for students with disabilities. At the District Court level the Illinois High School Association won on summary judgment and plaintiff appealed.

II

Majority Reasoning Causation

  1. The standard for causation under the ADA and the Rehabilitation Act is the same and requires but for causation.
  2. In order to establish causation, plaintiff would have to prove that but for his physical disability, the normal operation of the qualifying times would have allowed him to qualify for State, which is something he cannot do.
  3. Plaintiff has not established that were he not disabled, he would be among the 10% of track and field athlete that qualify for State each year.

III

Majority Reasoning Fundamental Alteration

  1. Plaintiff’s requested accommodations are unreasonable as a matter of law.
  2. The creation of a new division would lower the current qualifying times and make it easier for certain runners to qualify for State or medal in the road race.
  3. The essential nature of a track and field race is to run a designated distance in the shortest time possible. The time standards governing which runners qualify for State championship is the essence of the sport, which is that a person must run as fast as possible to achieve the predetermined times. Those standards ensure a certain level of competition and maintain a necessary scarcity of opportunity. Lowering the qualifying time for State by creating a new division of runners fundamentally alters the essential nature of the sectional and State track and field meets as well as the road race.

IV

Dissent by Judge Rovner

Judge Rovner had a vigorous dissent and it goes as follows:

  1. Judge Rovner agrees that but for causation is the standard.
  2. While but for causation is the standard, she disagrees as to what the but for standard is in this case. For Judge Rovner, the question is whether the plaintiff furnished sufficient evidence to create a material dispute of fact as to whether but for his disability, he would have a meaningful opportunity to qualify for the State finals.
  3. The majority gets it wrong when it concludes that what the plaintiff desires is not only the meaningful opportunity to qualify for State finals but to actually qualify for those finals.
  4. Judge Rovner analogizes the whole thing to a female runner seeking to establish a separate classification for girls. Although it is true that qualifying time for female runners might mean that a female runner is very likely to qualify for the State finals, that is not the same thing as asking to automatically qualify for the State finals. A female runner should not be punished merely because of her hard work and good fortune placed her in the top percentage of female runners. In fact, any female would have standing to file a lawsuit asking for a female division so that she might have the opportunity to participate in a Statewide competition.
  5. A female runner would not need to demonstrate that but for the fact she was born female, she would have a chance to make the qualifying time for the State finals, as it is the opportunity to try that she is missing. The same reasoning applies to a student with a disability.
  6. The current set up of the Illinois High School Association denies the plaintiff a meaningful opportunity to try. How could any athlete ever demonstrate that but for his disability he would qualify for State finals. In fact, the pursuit is absurd.
  7. Creating a new division would not be a fundamental alteration since that is exactly what the Illinois High School Association did when it created a separate divisions for female runners, wheelchair athletes, and runners from smaller schools. When it did that, it lowered the qualifying standards for the State finals by creating a new division with different required qualifications. If doing that altered the essential nature of the State finals and the road race, then any of those division should never have been created or the fundamental nature of the program has already been modified.
  8. Running a designated course and distance in the shortest period of time is not the essential nature of a track or road race. Rather, it is running that race in the shortest period of time as compared to one’s peer group (emphasis in Judge Rovner’s dissent). No one would think it fair if Usain Bolt signed up to compete in the Illinois High School Association State final despite the fact that he could surely run the designated course in the shortest period of time.
  9. The argument that lowering the qualifying standards diminishes the competitiveness of the State championship meet and road race makes no sense whatsoever. That would be the same as arguing that allowing separate division for women and students with disabilities somehow undermines the competitiveness of a sporting event or diminishes the accomplishments of elite male athletes. That would be the same as saying that allowing women to run Olympic track events, where the qualifying times are lower, undermines the competitiveness of the men’s events. It would also be like arguing that Serena Williams playing tennis at Wimbledon or Katie Ledecky swimming at the Olympics somehow strips those competitions of their identity and prestige thereby devaluing the achievement of Roger Federer and Michael Phelps.
  10. The Illinois High School Association created a separate division for smaller high schools, which is particularly good evidence that creating new categories does not fundamentally alter the nature of the program or undermine the competitiveness of the championship. In that situation, there is no physical or genetic reason a runner from a small school could not be able to run just as fast as a runner from a larger school. Instead, a separate division for smaller schools was created for reasons other than just allowing the fastest runners in the State to complete -most likely to allow greater access to the finals for runners who might not otherwise have a meaningful chance to compete in a State finals.
  11. The Illinois High School Association allows only its two top runners to compete in each event at the sectional tournaments, which is the tournament through which runners qualify for the State finals. If they were truly interested in the fastest times, then the Illinois High School Association would only open the finals to the top 10% of runners in the State regardless of gender, ability, school site or sectional results.
  12. The cases cited by the majority only speak to whether a person was otherwise qualified. Here, the plaintiff is otherwise qualified to run in the track event and the reasonable accommodation he requests will not change the nature of any other event or the competition as a whole. The success of any para-ambulatory athlete in no way diminishes the success of any other athlete or alters the fundamental nature of the competition and the majority offers no explanation why that would be the case.
  13. Plaintiff has more than earned the opportunity to compete at the highest levels.

V

Takeaways/Thoughts

  1. It wouldn’t surprise me in the least if an en banc hearing was sought or if it was appealed to the United States Supreme Court. Remember, at the United States Supreme Court level, persons with disabilities have been very successful outside of the employment context.
  2. I find the majority reasoning of but for causation absurd. It reminds me of the time back in 1989 when I published my thesis on wrongful life in the Journal of Health and Hospital Law while getting my LL.M. in Health Law. The problem with that tort is assessing damages. That is how could you say that a person could receive damages for being born? In fact, that is the reason why courts have just about always rejected the tort. In my thesis, I tried to construct an argument as to how damages for wrongful life could be assessed consistent with legal principles (using the mathematical concept of zero is another approach I proposed, but that didn’t make it into my thesis).
  3. It is indeed a futile gesture and an absurd pursuit to ask an athlete to demonstrate that but for his disability he would qualify for State finals. Such a causation requirement means that an athlete with a disability never has the right to have a separate division set up for athletes like him or her absent the good graces of the State High School Association regardless of whether sufficient membership or demand exists for such a division.
  4. Judge Rovner makes a lot of excellent points with respect to fundamental alteration. She notes that the Illinois High School Association has already created numerous other separate divisions and none of those divisions fundamentally altered the nature of their programming.
  5. The majority and dissent both get it wrong when they say that causation under title II of the ADA is the same as under the Rehabilitation Act. Under the Rehabilitation Act, causation is “solely by reason of,” (29 U.S.C. §794(a), while under title II of the ADA, causation is, “by reason of.” (42 U.S.C. §12132).  The term “solely,” is completely missing from the causation standard under title II of the ADA.
  6. Congress when it amended the ADA left the causation standard under title II the same while leaving the Rehabilitation Act causation standard the way it was. The presumption is that Congress knew what it was doing when it did that.
  7. In this blog entry, we discussed that the Supreme Court has held status-based discrimination is subject to a mixed motive standard.
  8. The Illinois High School Association has said that it doesn’t mind creating separate divisions, but it wants it to come from its members rather than the courts. If the majority decision stands, then it is entirely up to the Illinois High School Association good graces to establish subdivisions as a person could never prove causation.
  9. With respect to the fundamental alteration analysis, my view is that Judge Rovner probably got it right. I do think the Illinois High School Association would be in a better position if it could show that the number of paralympians that would be the plaintiff’s peers would be extremely small so that the selectivity of the division would be compromised.
  10. An appeal may resolve the issue of causation when it comes to cases before and after the amendments to the ADA. Also, it would cement causation being different between the Rehabilitation Act and the ADA. Again, if I am on the plaintiff side, I would most certainly go for an en banc hearing and/or an appeal to the Supremes. If it were to go to the Supreme Court, I am not sure how it would turn out. However, it is definitely worth a shot if I am the plaintiff even with the current configuration of this Court.
  11. A guidance from a federal agency, which the majority opinion relied on, may not be entitled to deference. See this blog entry.
peacock
On a plane?

Airplane

What birds fly in?

A couple of weeks ago or so, a dog brought on a plane as an emotional support animal mauled a fellow passenger trying to get to his seat. Then, a New York artist tried to bring a peacock on the plane as her emotional support animal. The peacock situation went viral both in the legal blogosphere and on the Internet, including on LinkedIn. That created a lot of misperceptions about the applicable laws, what the laws require, and the reaction of airlines to that law. This blog entry will discuss all of that. As usual, it is divided into categories and they are: the Air Carrier Access Act; thoughts on Air Carrier Access Act regulations; airline reaction United and thoughts; airline reaction Delta and thoughts; what do title I of the ADA and the Fair Housing Act have to say; what about state laws and preemption; and takeaways. Of course, the reader is free to focus on any or all of the categories.

I

The Air Carrier Access Act

The situation of the dog and the peacock on the plane have absolutely zero to do with the ADA. The only applicable law is the Air Carrier Access Act and its implementing regulations. Let’s look at some of the key provisions.

  1. The Air Carrier Access Act by itself is not much of a law. As we have mentioned previously, it basically just sets forth what a disability is and leaves the rest to regulations issued by the Department of Transportation.
  2. 14 C.F.R. §382.25 prevents a carrier from requiring advanced notice that a person with a disability is taking an airplane flight.
  3. 14 C.F.R. §382.27(c)(8) allows for 48 hours advance notice for emotional support/psychiatric service animals.
  4. 14 C.F.R. §382.27(c)(9) allows for 48 hours advance notice for a service animal if a more than eight hour flight is involved.
  5. 14 C.F.R. §382.117(e) says that for emotional support or psychiatric service animals, an airline is not required to accept the animal for transportation in the cabin unless the passenger provides current documentation that is no older than one year from the date of the passenger’s scheduled initial flight on the letterhead of a licensed mental health professional stating that: the passenger has a mental or emotional disability recognized in DSM-IV; the passenger’s emotional support or psychiatric service animal is an accommodation for air travel and/or for activity at the passenger’s destination; the individual providing the assessment is a licensed mental health professional and the passenger is under his or her professional care; and the date and type of the mental health professional’s license and the State or other jurisdiction in which it was issued.
  6. 14 C.F.R. 382.117(f) says that airlines are never required, the regs actually uses the word “never,”, to accommodate certain unusual service animals such as, “snakes, other reptiles, ferrets, rodents, and spiders.” With respect to all other animals including unusual or exotic animals presented as service animals- such as miniature horses, pigs, or monkeys-, the airline has to determine whether any factors preclude their traveling in the cabin as service animals. Those factors include whether the animal is too large or heavy to be accommodated in the cabin, whether the animal poses a direct threat to the health or safety of others, whether it would cause a significant disruption of services, and whether it would be prohibited from entering a foreign country that is the flight’s destination. If there are no such factors precluding the animal from traveling in the cabin, the airline has to allow it. Finally, foreign carriers are not required to carry service animals other than dogs.

II

Thoughts on ACAA Regulations

  1. What immediately strikes me about these regulations is that the regulations equate psychiatric service animals with emotional support animals. There are also very different documentation requirements for service animals dealing with physical disabilities and for service animals dealing with mental health disabilities. At any rate, to say that emotional support animals and psychiatric service animals are equivalent is false; a point made clear by the ADA DOJ regulations. That has me wondering since the regulations make a not supportable distinction between different types of service dogs, whether this regulation is arbitrary or violates the equal protection clause as incorporated into the due process clause. If that is the case, then the question becomes what equal protection category, as discussed in this blog entry, persons with disabilities fall into with respect to this situation. Even assuming a rational basis category, could there be a rational basis for distinguishing between service dogs for physical disabilities and service dogs for mental health? I do get how a rational basis exists for emotional support animals, but not sure I follow how the distinction is rational with respect to service animals for people with MH conditions. For more analysis, check out this blog entry where I discuss whether the title II and title III DOJ service dog regulations could be subject to challenge.
  2. The Department of Transportation regulations do not define what a service animal is. As a preventive matter, adopting the DOJ version of service animal makes sense. That is, as discussed in this blog entry, is the animal engaged in recognition and response?
  3. The Department of Transportation regulations doesn’t say what are all of the unusual service animals an airline is never required to accommodate. The regulation specifically uses the phrase, “(example, snakes, other reptiles, ferrets, rodents, and spiders).” So, what else would be on the list? A turkey, a peacock?
  4. Same problem for unusual or exotic animals that an airline has to accommodate unless certain factors apply. The regulations uses the term, “(example, miniature horses, pigs, and monkeys).” Again, you are left wondering what else might be considered an unusual or exotic animal presented as a service animal that an airline would have to go through various factors before excluding. Also, miniature horses may be a different kettle of fish since miniature horses under the ADA DOJ regulations get very similar treatment as service animals.
  5. Direct threat is a term of art in the ADA world. So, as a matter of preventive law, when analyzing direct threat, it would be wise to go about it as if you were dealing with direct threat under the ADA. See this blog entry for example.

III

Airline Reaction: United Airlines and Thoughts

  1. For travel on or after March 1, for passengers traveling with an emotional support animal, passengers will need also to provide a veterinary health form documenting the health and vaccination record for the animal as well as confirming that the animal has appropriate behavioral training. Here is what is interesting, in the box on United’s website talking about the changes effective March 1, 2018, the term used by United is, “emotional support animal.” However, in the body of the document itself, the airline uses the term, “emotional support and psychiatric assist animals.” Therefore, you are left wondering whether United Airlines is engaged in the false equivalency of service dogs and emotional support animals, which as described above is wrong but currently permitted by DOT regulations. Paragraphs III2,3 below represent a continuation of existing United policy and are not changes.
  2. With respect to submitting and notifying United Airlines that you are traveling with an emotional support or psychiatric assist animal, United does allow for calling an 800 number or the United customer contact center and asking to be connected to the accessibility desk. With respect to documentation, there is a link to click on to get the required documentation and that documentation can either be emailed or faxed. United seems to be allowing for multiple different ways for persons with disabilities to do what they have to do with respect to being able to fly with their service animals; a step I highly recommend.
  3. United only recognizes trained and certified service animals. That is a bit odd as service animals are not certified in this country. They certainly go through extensive training and can receive a certificate at the end of that training, but that isn’t the same thing as certification. Service animals can also be trained by anybody.
  4. For therapy animals, standard pet-related regulations and restrictions apply.

IV

Airline Reaction: Delta Airlines and Thoughts

  1. For travel with a trained service animal or an emotional support/psychiatric service animal, Delta requires certain forms to be downloaded and uploaded to their website. They better make sure that this whole process is accessible to persons with disabilities. Otherwise, they are going to be dealing with a title III of the ADA lawsuit.
  2. If you run into trouble filling out the forms, Delta does have an accessibility assistance line, but the process is still entirely form driven.
  3. Service dogs or support animals in training are allowed if the service or support animal in training is traveling with a professional trainer on route to the owner or the animal in training is already a trained service or support animal traveling with a certified trainer for additional training
  4. With respect to the sky club, the policy for service and support animals is the same as the policy for those animals on a Delta aircraft.
  5. Delta is making the policy for service and support animals with respect to the sky clubs the same as for dealing with animals on the aircraft. That is interesting as the sky club at the airport would be governed by title III of the ADA and not the Air Carrier Access Act. In a way, it could be argued that Delta’s policy while not called for by the applicable laws, is a greater benefit to persons with disabilities than might otherwise be the case because by making the policy the same for aircraft and the sky club, a greater number of passengers can use the sky club.

V

What Does Title I of the ADA and the FHA Have to Say about All of This?

  1. As mentioned here, when it comes to employment, the EEOC is silent on service dogs/emotional support animals. Check out this blog entry for thoughts on how to handle that situation.
  2. With respect to the Fair Housing Act, check out this blog entry.

VI

What about State Laws and Preemption?

  1. States have their own approaches for dealing with service dogs. We discussed the Texas approach
  2. We discussed here just how far ACAA goes with respect to preempting state laws and remedies.

VII

Takeaways:

  1. The DOT regulations treat service animal for people with physical disabilities differently than service animals for people with MH issues, doesn’t make a lot of sense to me. It wouldn’t surprise me to see a challenge filed saying that those regulations allowing for such a distinction are arbitrary and/or violate the equal protection clause through the due process clause.
  2. As we have discussed numerous times in this blog entry, the Internet is frequently not accessible to people with disabilities. Airlines would do well to have a multiple variety of ways to allow persons with disabilities to go through the process of being able to bring their animal on the plane.
  3. Different rules from the Air Carrier Access Act apply to airline sky clubs located at the airport as sky clubs are covered by title III of the ADA. Since the ADA is a floor, there isn’t any problem with an airline saying they will go with the same rules as the Air Carrier Access Act in the sky clubs, but the airlines aren’t required to do so, though that approach would raise practical problems.
  4. The Air Carrier Access Act regulations leave a lot of room for interpretation when it comes to certain unusual service animals that are never allowed and certain unusual or exotic animal that are allowed absent any factors.
  5. The Air Carrier Access Act also leaves a lot of room for interpretation with respect to the certain unusual or exotic animals that are permitted absent factors precluding the animal from traveling in the cabin. That would seem to suggest that if any factors do allow the animal to travel in the cabin, the animal must be allowed even if other factors wouldn’t allow for the animal. Of course, the “no such factors,” language could also be read in the opposite. That is, an animal is not allowed to fly on the plane if any of the factors, whatever they may be since the list isn’t exclusive, prohibiting it does apply. I don’t envy airline attorneys trying to figure this one out.
  6. I have been surprised at the lack of empathy on LinkedIn, with respect to emotional support animals and people with disabilities on airplanes. Remember, empathy is always a good thing. This is not to say that fraud is not occurring with respect to emotional support animals, it most certainly is. Even so, for people with disabilities who truly need emotional support animals, they can be of great help.

As I have mentioned previously, I am not afraid to blog on cases blogged on by others. Today, is such a situation. Richard Hunt in his Access Defense blog, which you can find in my blogroll, has blogged on a couple of cases recently, and I thought that I could add my own perspective to them. I will also throw in a third case as well in the process.

The topic for this week is website accessibility both in terms of standing and in terms of whether Internet only businesses are subject to title III of the ADA at all. The cases we will be discussing are: Carrolll v. Northwest Federal Credit Union from the Eastern District of Virginia; Del-Orden v. Bonobos Inc.  from the Southern District of New York; and Nanni v. Aberdeen Marketplace Inc, from the Fourth Circuit. As usual, the blog is divided into categories and they are: Carroll; Not so Fast Says Nanni v. Aberdeen Marketplace Inc.; Not so Fast Says Del-Orden v. Bonobos Inc.; and takeaways. The reader is free to read any or all of the categories, but probably will want to read the whole thing since all the categories are interrelated.

I

Carroll

Carroll is a serial plaintiff who went after the Northwest Federal Credit Union when he found out that the website was not accessible to the blind and visually impaired. Northwest Federal Credit Union is a credit union chartered by the federal government whose membership is current or former employees of the Central Intelligence Agency or their immediate family or household members. Plaintiff is not included in that membership field nor did he allege any facts in his complaint suggesting he is a CIA agent or otherwise eligible to become a member of the credit union.

The court reasoned that any planned visit to the website in the future was immaterial unless the plaintiff could show that he was eligible to use the services offered on that website. Since the defendant could not demonstrate he was entitled to participate in any of the services, he could not show any redressable injury. Accordingly, he did not have standing to pursue the case.

The court also reasoned that a website cannot be a place of public accommodation because in the list of public accommodations, websites are not included. Further, the court said that not only are websites not found on the list, but the statute only lists brick-and-mortar places. Finally, Congress has amended the ADA, and at no point, did they choose to add websites as a public accommodation.

II

Not so Fast Says Nanni v. Aberdeen Marketplace Inc.

Carroll’s standing discussion arguably is saying that a tester cannot have standing. If that is the argument, the Fourth Circuit, which is the same Circuit that Carroll would be appealed to, may well have a different take on it. In Nanni, the Fourth Circuit held that a person’s status as an ADA tester- and for that matter, his litigation history as well-, does not strip a person of standing to sue. According to the Fourth Circuit, a citizen’s right to sue and defend in the courts is one of the highest and most essential privileges of citizenship and is granted and protected by the federal Constitution. So, a person’s motivation for pursuing ADA claims does not deprive him or her standing to sue.

 

III

Not so Fast Says Del-Orden v. Bonobos Inc.

Del-Orden is the tour de force as to why Carroll arguably gets it wrong with respect to the public accommodation piece and that analysis, taken from Del-Orden, goes as follows:

  1. Carroll is simply wrong when it says that ALL of the places listed in 42 U.S.C. §12181(7) our strictly physical spaces. 42 U.S.C. §12181(7)(F) specifically lists travel services among the services defined as public accommodations and travel services have never required the existence of a physical structure for the services to be utilized.
  2. Congress intended that the ADA be read broadly in light of its remedial aims and that it be construed to keep pace with changing technology. Accordingly, the term “other sales or rental establishment,” can be fairly read in today’s world dominated by e-commerce to include a commercial website and therefore, has a textual basis in the statute.
  3. Congress’s purpose in enacting the ADA was broad. That is, to remedy widespread discrimination against individuals with disabilities.
  4. Congress found physical or mental disabilities in no way diminish a person’s right to fully participate in all aspects of society, yet many people with physical or mental disabilities are precluded from doing so because of discrimination.
  5. Congress found that historically, society intended to isolate and segregate persons with disabilities, and, despite some improvement, the discrimination against individuals with disabilities continues to be a serious and pervasive social problem.
  6. After thoroughly investigating the problem, Congress concluded that there was a compelling need for a clear and comprehensive national mandate to eliminate discrimination against individuals with disabilities and to integrate them into the economic and social mainstream of American life.
  7. Congress’s purposes in adopting the ADA would be frustrated if the term public accommodation was given a narrow application where access to the vast world of Internet commerce falls outside the statute’s protection. Today, few areas are more integral to the economic and social mainstream of American life than Internet websites.
  8. Computers and Internet access have become virtually indispensable in the modern world of communications and information gathering.
  9. A House Committee Report specifically stated that the types of accommodation and services provided to individuals with disabilities under all titles of the bill should keep pace with the rapidly changing technology of the times.
  10. Limiting title III’s scope to brick-and-mortar venues would be inconsistent with Congress’s intention that the ADA keep pace with rapidly changing technology of the times. Such a holding renders title III effectively impotent to broad swaths of social and economic life. That would be a result contrary to the broad remedial purpose of the ADA, which has been described as a milestone on the path to a more decent, tolerant, progressive society.
  11. Congress need not perpetually refresh and update legislation where a broad but textually fair construction achieves the statute’s explicit aims, which is the providing of a comprehensive national mandate for the elimination of discrimination against individuals with disabilities. Accordingly, the ADA must be read, like other broadly worded statutes, in a way reflecting an intentional effort to give the flexibility necessary to forestall obsolescence.

 

IV

Thoughts and Takeaways:

  1. Del-Orden also has a couple of other points well worth mentioning. First, it also adopted the gateway theory. In particular, it noted that the ADA prohibits an owner or operator of such a place from discriminating in the provision of the goods or services of that place of public accommodation. It is “of’ and not “at” or “in” that is the critical distinction. The two terms simply do not mean the same thing and to suggest otherwise does not make much sense. There is no indication that Congress intended such unorthodoxy. Further, it makes little sense to limit title III’s goal to discrimination in the provision of goods or services literally consumed in a place of public accommodation.
  2. Del-Orden also says that when it comes to mootness, the case still continues if what has not been fixed with respect to the website still denies a person with a disability meaningful access to that website.
  3. It is clear in the Fourth Circuit that testers have standing. What is not clear is whether the tester must also be capable of using the premises or the website. On that, there may be some room for argument with respect to the Northwest Federal Credit Union. Of course, different story if the plaintiff is someone eligible for the Northwest Federal Credit Union.
  4. It is absolutely true that Congress did not factor the Internet into the ADA when it was amended. It is possible that was unintentional or it is possible the votes were not there. The lack of the Internet being added to the ADA when the ADA was amended is the best argument against places of public accommodation being Internet only sites. On the other hand, you do have the congressional report that says the ADA is meant to evolve with technology. You also have the fact that the Internet has come to dominate society and that the ADA is very much about integration of people with disabilities into mainstream society. In today’s world that would be a very difficult thing to do if the Internet is left outside of the equation. Further, there are many good policy reasons, discussed above, why the ADA should be construed broadly so as to allow Internet only sites or sites that are gateways to brick-and-mortar stores to be considered a place of public accommodation.
  5. If you are a trade association or a credit union and your website is not accessible, Carroll may give you some flexibility as to cutting down on the number of people that might have standing to sue you. Keep in mind, all you are doing is cutting down on the number of people likely to sue because this case would not prevent a person who could be a member and who cannot access the website from suing under title III of the ADA. Also, this is just one court, the Eastern District of Virginia, and may not be persuasive in other courts. Finally, there is the argument that testers do have standing to sue under the ADA just as they do under the Fair Housing Act.
  6. Predicting the Supreme Court is impossible (a case like this will definitely make it to the Supreme Court someday), but if I were a plaintiff, I would take my chances with respect to tester standing and the Internet being a place of public accommodation. As discussed and mentioned numerous times before, persons with disabilities have fared very well at the Supreme Court outside of the employment context (speaking of which, the plaintiffs in Sevorson have requested cert.). It isn’t clear to me whether in the unusual fact pattern of Northwest Federal Credit Union whether the tester counter argument will prevail. Even so, all it would take would be for a person with a disability who is eligible for that particular website’s services to sue in order to get around that problem. Considering that this federal credit union focuses on the CIA and that a person in the CIA could get injured, it seems only a matter of time before someone who could be a member of this website will sue because he or she could not meaningfully access the website. So, failing to fix the website probably only delays the inevitable.
  7. In light of ¶ 6 and the Fourth Circuit becoming more progressive toward persons with disabilities, an appeal might be in order. Also, as we discussed here, the Department of Justice has recently written that it is very receptive to Internet only sites being considered places of public accommodations.
  8. It is always better to design websites with accessibility in mind before they go live, rather than do it later. Consider having your website tested by persons with disabilities. Also, make sure the website is meaningfully accessible to persons with multiple disabilities.

When it comes to blog entries, sometimes, I have a pipeline of cases to discuss. Sometimes, I have to search for a case to discuss. Sometimes, a news item comes up bearing discussing. As of now, cases in my pipeline include: standing under title III of the ADA; a tour de force on why Internet only places are places of public accommodations; and a case from the 11th circuit exploring the issues of what is an actual disability and when a person is regarded as having a disability. I’ve had all of those cases in the pipeline for a bit, but I’m having trouble figuring out which one to blog on first.

Also, news keeps coming up. For example, recently Delta changed its service dogs and emotional support dog policy, and I am still digging into that (we might even have our first guest blogger for that one). That Delta change in policy has been a real hot topic of discussion on the animal law section of the Texas Bar Association listserv. In particular, the concern there is whether Delta change in policy goes beyond the requirements of the Air Carrier Access Act. In the news today, on the front page of the Wall Street Journal, there is an article entitled, “CSX to make CEO’s health its business.” Since I have been on a job-related and business necessity tear of late, I thought this article would win out for today’s blog entry. The article is divided into two categories: the WSJ article and thoughts. The blog entry is so short that you will probably want to read the whole thing. Nevertheless, it is possible to focus on either category or both.

I

WSJ Article

The article reports that CSX Corporation Board will adopt a policy requiring the railroad’s chief executive to submit to an annual physical exam that will be reviewed by the board. That annual physical exam will be conducted by a board selected physician. The rule comes about due to the issue CSX had with the last CEO. That CEO had a history of health issues and required the use of a portable oxygen tank to treat an unspecified medical condition. He declined the board’s request to review his medical records or submit to a physical as part of being named CEO. His hiring included an $84 million payment to cover compensation he left behind when he quit his job at another railroad to leave CSX. Hiring that CEO probably added $10 billion to the company’s market value. After taking medical leave of absence, that CEO died.

This isn’t the first time a company has had to deal with CEO health issues. For example, Apple never disclosed the specific reason for two extended medical leaves by co-founder Steve Jobs who died in 2011 after battling pancreatic cancer. United Continental holdings CEO was hospitalized and the company did not initially disclose that he had suffered a heart attack. He took a medical leave, had a transplant, and returned to work the following year. In 2015, the Goldman Sachs Group CEO  informed his board of his lymphoma diagnosis shortly after receiving the news from his doctor. He continued to work through treatment and returned to work full-time the following year.

The article does note that requiring executives to share their physicals with the board could violate employment laws and at least required waving a right to privacy. I agree on the right to privacy needing to be waived, state laws and HIPPA for example. The article also notes that securities laws don’t explicitly require companies to disclose executive health problems, though companies must share material information that might affect investor decisions to buy or sell stock.

II

My Thoughts

  1. The article doesn’t say if the physical is part of the CEO contract. Rather, it just says that it is a policy adopted by the board. I would be a lot more comfortable if the physical was part of the CEO contract for the reasons discussed in this blog entry. That particular blog entry discusses how in a collective bargaining context it isn’t always necessary to have some kind of cause before doing a post-employment medical exam as a result of the bargained for terms. It certainly helps if the job has a safety angle to it, which the CEO job does not.
  2. CSX has a current CEO, but I could foresee problems if they required a physical exam prior to making a conditional job offer. See this blog entry.
  3. With regards to a postemployment medical exam, an employer has the right to insist on one if it is job-related and consistent with business necessity (not sure why that wasn’t done with respect to its last CEO). Is that the case here? With respect to business necessity, is the exam vital to the business? The article points out that the health of a CEO can dramatically affect a company’s valuation. So, I have to vote yes. However, the harder question is whether the physical exam is no broader and no more intrusive than necessary.
  4. With respect to job-related, from this blog entry, we learned that the Sixth Circuit has said that job-related involves the employer showing any of the following: the employee requested an accommodation; the employee’s ability to perform the essential functions of the job was impaired; or the employee posed a direct threat to himself or others.
  5. With respect to the CEO of a major corporation, the business necessity piece seem to be fairly obvious. Just what is evaluated in the exam much less so. However, especially if you are in the Sixth Circuit, getting by job relatedness may not be so simple where the CEO is doing his or her job and nobody is aware of any problems. Remember, direct threat, which we discussed here and in numerous other blog entries, is a legal standard and a high one at that. The burden is also on the employer to establish direct threat.
  6. Is it just the CEO that is going to have this requirement? What about other high level employees?
  7. While an employee certainly has the right to waive its privacy, an employer cannot insist on waving the employee’s ADA rights.
  8. If the physical does reveal problems, then the company is going to have to assess whether those problems that come up during the physical exam are job-related, consistent with business necessity, and whether there are any reasonable accommodations that can be put in place.
  9. Bottom line: I would be a lot more comfortable if such a requirement was put in the contract with the CEO itself. I’m not sure a board policy will cut it in light of what we have discussed in this blog over time.

I really do have to move off this job-related and business necessity focus don’t I:-). Next week:-)

Hope everyone had a great holiday weekend, assuming you had a chance to have Martin Luther King Day off. Today’s case, United States v. Asare is a decision that came down on December 20, 2017, from the Southern District of New York. The lesson here is never forget about the interactive process and performing an individualized analysis regardless of whether an employment matter is involved. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and takeaways. The reader is free to read any or all of the categories.

I

Facts

The facts of this case are pretty straightforward. There were three plaintiffs in the case. All of them wanted male breast reduction surgery (gynecomastia surgery), with Dr. Asare. The doctor had a blanket policy against operating on individuals with HIV who were also taking antiretroviral medications. At various points in the preoperative process, all three plaintiffs were told that the doctor would not perform the surgery. When the Department of Justice got involved, it brought suit on its own behalf alleging violations of the ADA’s screen out and reasonable modification provisions as well as the New York City Human Rights Law, §8-107. One of the plaintiffs, Milano, intervened in the case. The plaintiffs brought suit against  Dr. Asare and his medical practice. After discovery, plaintiffs moved for summary judgment on their claims, which the defendants opposed, and the defendants, ultimately successfully, cross moved for summary judgment on claims unrelated to HIV. Our discussion will focus strictly on the HIV ADA claims and not on the New York Human Rights claims nor on the non-HIV claims.

II

Court’s Reasoning

In granting the plaintiff’s motion for summary judgment with respect to the HIV claims, the court reasoned as follows:

  1. Everyone agreed that Dr. Asare’s blanket policy of refusing to operate on individuals with HIV taking antiretroviral medications constitutes an eligibility criterion that screens out a class of individuals with disabilities. Accordingly, the question is whether the eligibility criterion was necessary and therefore, permissible under the ADA.
  2. Relying on School Board of Nassau County, Florida v. Arline, the court said that the ADA requires an individualized inquiry into the patient’s health risks.
  3. It is impermissible under Arline, to reject an applicant automatically as a result of his or her disease or symptoms without considering the individual.
  4. Asare testified at his deposition that when a person comes to him and says that he is HIV positive, the doctor then asks him whether the patient is on an antiretroviral cocktail. If the answer is yes, the case is closed and the doctor does not investigate what type of antiretroviral drugs a potential patient is taking or its possible effects. Further, the defendant acknowledged that some antiretroviral drugs are not contraindicated for the drugs in his sedative regimen, but he does not investigate further because he just doesn’t feel comfortable.
  5. A blanket refusal without an individualized inquiry is insufficient to pass muster under the ADA.
  6. Defendant’s own medical expert stated that he would have preferred to have more history and patient information available prior to making decision because without some knowledge of that patient’s medical history, a decision would not be made based upon medical necessity or medical history.
  7. Defendant had the burden to demonstrate that the application of any criteria screening out individuals with HIV was necessary. Such a burden cannot be met when the defendant automatically rejects potential patients without making a determination based upon medical necessity.
  8. Title III of the ADA imposes a fundamental requirement that a person with a disability be evaluated on an individual basis.
  9. The refusal to consider an individual’s personal circumstances in deciding whether to accommodate a disability run counters to the clear language and purpose of the ADA.
  10. An individualized inquiry must be made to determine whether a specific modification for a particular person’s disability is reasonable under the circumstances as well as necessary for that person while not imposing a fundamental alteration on the defendant’s place of business.
  11. The fact Dr. Asare admits that he refuses to perform cosmetic surgery on patients taking antiretroviral medication without making any further inquiry into their medical history or medical regimen is dispositive with respect to the failure to modify policies, practices, and procedures just as it is dispositive with respect to the screen out provisions.

III

Takeaways

  1. With respect to the New York Human Rights Law, the court noted that the ADA sets a floor for the states. Accordingly, a violation of the ADA is automatically a violation of the New York Human Rights Law. The impact of this holding cannot be understated because not every state law explicitly ties into the ADA, though some do.
  2. While the court talks about whether the eligibility criterion was necessary, the court never really reaches the necessary determination because of the lack of an individualized inquiry. In that way, the case resembles what used to be called the irrebuttable presumption line of cases more than it does an analysis of whether the eligibility criterion was necessary.
  3. If this case stands for anything, it is never forget about an individualized inquiry before denying services to a person with a disability. Indeed, you won’t even get to the “necessary,” defense without engaging in that individualized inquiry first.
  4. On the preventive law side, if this case stands for anything, never forget about the interactive process. It is true that interactive process is a title I construct, but how an individualized inquiry and a decision about how to provide or deny services to a person with disability can be made without engaging in the interactive process, is beyond me (case law, such as this one, does exist expanding the interactive process to title II of the ADA). So, be sure to engage in an individualized inquiry as well as an interactive process.
  5. Blanket policies without an individualized analysis are not a good idea. We have previously talked about that one before in this blog entry, which involved 100% return to work policies.
  6. A person with HIV is a person with a disability per this case.
  7. The burden is on the defendant to demonstrate the application of any criteria screening out individuals with HIV is necessary.
  8. Review your policies and practices for policies and practices that unwittingly screen out persons with disabilities. See this case for example.
  9. I am seeing more and more cases where a plaintiff is successful in obtaining summary judgment, though it is still unusual.
  10. Arline is a direct threat case and not whether a screen out provision can be proven necessary or whether a, “necessary” defense exists to a failure to modify practices, policies, and procedures. Nevertheless, this case makes clear that in deciding “necessary,” you also want to look at direct threat concepts, which we discussed in this blog entry.

The blog entry for this week is a follow-up on the blog entry from last week. Last week, I discussed job relatedness and business necessity. This week we discuss medical related inquiries and disability related inquiries in two different cases.  One from the Northern District of Texas and the other from the Fourth Circuit. The case from the Northern District of Texas is Mir v. L-3 Communications Integrated Systems . The case from the Fourth Circuit is Bingman v. Baltimore County. As usual, the blog is divided into categories, and they are: Mir facts; Mir court’s reasoning; Bingman court’s facts; Bingman court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories in the blog entry

I

Mir Facts:

Plaintiff suffered from hip problems throughout his life and had a number of surgeries on his right hip, including multiple hip replacement operations or revisions. In 2005, during his left hip replacement, the sciatic nerve on one side of his hip was crushed causing permanent nerve damage. As a result, plaintiff walks with a pronounced limp and uses a cane to assist him while walking. In 2005, the injury required him to go on long term disability. The long-term disability provider required him to apply for Social Security benefits to offset the long-term disability benefits. He made certain representations on his Social Security Administration application for benefits and was awarded SSA benefits. In 2007, the plaintiff underwent another surgery to correct his hip, and he was physically able to return to work in 2008. In 2011, he applied to work for L-3 Communications at their Greenville, Texas facility. On October 11, 2011, he was contacted by the defendant and an interview was scheduled for October 17 of 2011. The specific job posting for the position was as follows:

Bachelors Degree in Mechanical or Civil Engineering with a minimum of 8 years of experience or Bachelor’s Degree with related experience. The candidate must have a knowledge of manufacturing processes, which include machining, NC programming, sheet metal and assembly. Additional knowledge of HDL Aircraft installation procedures is a plus. He/She should have experience with what constitutes a good engineering design with respect to producibility issues. In additional to these skills, the ability to work simultaneous projects and operate in a dynamic, fast-paced cross-functional environments is required. Strong written and oral communication skills are essential.

On October 17, 2011, a department head at L-3 Communications met the plaintiff at a recruiter’s office and led him to his office, which was located in a separate building to conduct the interview. During the walk to his office, approximately 100 yards away, the department head asked the plaintiff questions regarding his ability to walk. The plaintiff responded that he had a hip replacement surgery, a mistake was made, and his sciatic nerve was crushed. Once the interview started the department head also asked the plaintiff questions regarding the nature and extent of his physical limitations. More specifically, he made inquiries as to his short and long-term prognosis and a timeline of when the injuries occurred. Plaintiff testified that the discussion concerning his injuries lasted approximately 15 minutes. Three weeks later, human resources contacted the plaintiff to inform him that they declined to offer him a position. The plaintiff then filed a complaint with the Office of Federal Contract Compliance Programs, which initially concluded that he had been discriminated against because of his disability, but then issued a revised notification of results stating that there was insufficient evidence to conclude that discrimination occurred because of his disability. OFCCP then issued a notice of to sue, and the plaintiff brought suit in federal court.

II

Mir Court’s Reasoning

  1. Claims of disability discrimination can be established by either presenting direct evidence or by using the indirect method of proof set forth in McDonnell-Douglas. The questions asked by the department head were not direct evidence of discrimination under the ADA.
  2. Plaintiff was not bound by his statement to the Social Security Administration because those statement regarding his inability to work occurred approximately five years prior to his interview for the position at L-3 communications. He established that he underwent corrective surgery to correct the injury. His statement to the Social Security Administration were consistent with his claim that he could perform the duties of the position with reasonable accommodations. Finally, plaintiff offered sufficient explanation to reconcile his sworn assertion to the Social Security Administration regarding his inability to work with his claim that he was qualified for the position under the ADA. Accordingly, he was not judicially estopped from being a qualified individual under the ADA.
  3. Knowledge of HDL aircraft installation procedures was not a necessary minimum qualification under the job posting for the position.
  4. The job posting did state that a candidate for the position must have NC programming knowledge and the plaintiff lacked such knowledge.
  5. The court could not find any authority requiring a prospective employer to accept a person for a position who does not meet all minimum qualifications. Accordingly, since the plaintiff did not have NC programming knowledge, he was unable to establish a prima facie case of discrimination due to his disability. The court was unpersuaded by plaintiff’s claim that a lack of NC programming knowledge was not a bar to the job because he had more advanced programming knowledge than the NC programming.
  6. The ADA provides that an employer shall not conduct a medical examination or make inquiries of the job applicant as to whether such applicant is an individual with a disability or as to the nature or the severity of such a disability. 42 U.S.C. §12112(d)(2)(A). While damages liability must be based on something more than a violation of 42 U.S.C. §12112(d)(2)(A), that doesn’t preclude nominal damages. Accordingly, a genuine dispute of material fact existed with respect to plaintiff’s claim of improper inquiries under the ADA.

III

Bingman Court’s Facts

Plaintiff, formerly employed as a laborer with the Bureau highways of Baltimore County, Maryland, sued Baltimore County alleging he was terminated because of his disability in violation of the ADA. At trial, he received a verdict of $400,000 in damages, of which $298,000 consisted of noneconomic damages. The County argued that the District Court erred when it refused to allow the county to present evidence that the plaintiff applied for and received Social Security Disability Insurance benefits, and when it refused to instruct the jury regarding plaintiff’s obligation to explain the inconsistencies between the disability discrimination claims and his SSDI application. The County also argued that the jury’s noneconomic damages awards were not supported by the evidence.

IV

Bingman Court’s Reasoning

  1. With respect to the SSDI filing, the County was allowed to question the plaintiff regarding statements he made in his SSDI proceedings, and the District Court adequately instructed jury regarding its obligations to consider statements the plaintiff made in those proceedings.
  2. The facts are undisputed that the County used out of date medical authorizations to obtain plaintiff’s cancer related medical records, and then made unlawful inquiries when it sought and received records regarding plaintiff, rather than limiting their request to the plaintiff’s back injury. As a result of those unlawful inquiries, the County received information about plaintiff’s cancer diagnosis and treatment, which it was not allowed to do.
  3. It is also undisputed that the plaintiff was told to undergo a medical examination based solely on speculation that his bones may be brittle because of his cancer treatments.
  4. The inquiries and examination were separate acts for which the jury was justified in awarding damages.

V

Takeaways:

  1. Whether the bifurcation of direct evidence and indirect method when it comes to the burden of proof has continuing validity is debatable, as discussed in this blog entry.
  2. The must read case on judicial estoppel can be found in this blog entry.
  3. As mentioned last week, it is critically important that if you are going to make a disability related inquiry or a medical inquiry, the inquiry be narrowly focused to the issue at hand and not be any broader than necessary.
  4. If you are curious about an applicant’s disability, keep it to yourself. Remember, curiosity killed the cat. The ADA does allow you to ask an applicant how they might perform the essential functions of the job in light of an obvious or self-disclosed disability, but even so, doing so is very very tricky. Training Training Training (see also ¶ 6 below), is always good.
  5. Getting the ADA medical inquiry and disability related inquiry things wrong can lead to substantial liability.
  6. With respect to medical inquiries and disability related inquiries, it really helps if people with disabilities (HR personnel with disabilities and/or attorneys with disabilities), are involved in the process of assessing when such medical inquiries and disability related inquiries may take place or have taken place.
  7. Make sure your essential job functions in your job descriptions reflect how the job is actually performed.
  8. Should you really be interviewing people who don’t meet the essential functions of the job with or without reasonable accommodations? Doesn’t that suggest the function of the job is not essential?

Hope everybody had a great holiday season and happy new year to all! Back to the grind:-)

 

The blog entry for the week explores two different cases dealing with disability related inquiries and medical exams of employees. The cases are from the Seventh Circuit and from the District Court of the District of Columbia. As is usual, the blog entry is divided into categories, and they are: facts of Painter v. Illinois Department of Transportation; court’s reasoning (Painter); facts of Lewis v. Government of the District of Columbia; court’s reasoning in denying summary judgment to the District of Columbia; and takeaways. The reader is free to focus on any or all of the categories.

I

Facts of Painter v. Illinois Department of Transportation

In September of 2010, Painter began working as an office administrator for the Illinois Department of Transportation’s Division of Traffic Safety. When many employees complained about her behavior, the Illinois Department of Transportation put her on paid administrative leave and required that she submit to a fitness for duty examination, which she did. She was examined by an occupational medicine specialist who concluded that she could perform the essential functions of her job without posing a threat to herself or others, but he also noted that she displayed some hypomania and could be bipolar. So, he recommended reevaluation in 45 days. After 45 days, he put the reevaluation off until she could be seen by a mental health specialist. She did see that specialist and retained her for treatment. Despite the inconclusive reevaluation, the Illinois Department of Transportation allowed her to resume working in response to a grievance her union filed. When she resumed work she again engaged in disruptive behavior. Illinois Department of Transportation then asked to have her fitness for duty reevaluated. At that reevaluation, the evaluator suspected that she might suffer from a personality disorder, but nevertheless cleared her to return to work. When she returned, she again engaged in disruptive behavior, was given a reprimand, and placed on paid administrative leave. She then was evaluated again by a psychiatrist who declared her unfit for duty because of her paranoid thinking and the highly disruptive behavior resulting from her paranoia. The suit followed.

II

Court’s Reasoning

  1. Citing to the EEOC Enforcement Guidance on Disability Related Inquiries and Medical Examinations of Employees under the ADA, the court said that a medical examination is job-related and consistent with business necessity if the employer has a reasonable belief based upon objective evidence that a medical condition impairs an employee’s ability to perform essential functions or that the employee poses a threat due to a medical condition.
  2. Preventing employees from endangering their coworkers is a business necessity as a safe workplace is a very foundation of operating a business. To declare otherwise would force an employer to risk a negligence suit to avoid violating the ADA.
  3. Plenty of objective evidence exists to find that the employer properly insisted on the medical examinations.

III

Facts of Lewis v. Government of the District of Columbia

For the better part of a decade, Lewis worked as a human resource advisor management liaison specialist in the District of Columbia’s Office of the Chief Medical Examiner. The duties of that office included autopsies as well as other forensic and medicolegal investigations. Her particular job duties involved classifying positions, writing position descriptions, recruitment activities, timekeeping activities, and interpreting architecture for the reporting requirements of the supervisor to employee matrix. From the time she was hired until October 2012, the office was located in an office building on Massachusetts Ave. in Southeast Washington DC. At some point, the District of Columbia decided to design and construct a consolidated forensic laboratory that would house under one roof a number of city departments including the Office of Chief Medical Examiner, the Department of Forensic Sciences, and several divisions of the Metropolitan Police Department, such as the Firearms and Fingerprint Examination Division, DNA Laboratory, and the Forensic Sciences Service Division. On June 18, 2012, the mayor signed an order directing the director of the human resources department to designate high risk sensitive positions for employees having a duty station at the new location. Those designated employees would be subject to a background check, investigation, mandatory criminal background checks and/or testing for controlled substance use.

On July 18, 2012, the District of Columbia Human Resources General Counsel, and others, held a meeting and distributed letters informing the staff that the office would be moving to the new location. That letter advised that due to the nature of the work performed in the new location, employees occupying positions having a duty station would be subject to mandatory criminal background check and testing for controlled substance use. At that meeting, they also distributed several forms including an individual notification of requirements form for drug and alcohol. The bottom portion of that notice required an acknowledgment of receipt by the employee. The plaintiff voiced her objection to the policy at the meeting and refused to sign the form. The plaintiff questioned why she would need to undergo such testing since her job responsibilities would not change when she moved to the new location. She followed up two days later with a grievance letter saying that she was hired into a nonsensitive position that had not been reclassified nor designated as high risk and so therefore, would not sign the acknowledgment form until the District of Columbia Human Resource Department conducted a reclassification risk assessment.

In October 2012, the District of Columbia Human Resources Director sent the plaintiff two follow up notices requesting that she sign and return the notice and acknowledgment forms but she refused to do so. Those notices further advised that corrective and/or adverse action could result if she did not comply. When the plaintiff attempted to move some of her files into the new location, she was escorted out of the building. When the rest of the staff moved to the new location, she remained alone at the Massachusetts Avenue building in not ideal working conditions. She continued to work there until she received an advance written notice of proposed removal on January 3, 2013 when she was placed on administrative leave. She was eventually terminated on April 9, 2013. Nearly 2 years after her termination, she filed suit alleging violations of the First Amendment, the Fourth Amendment, and the ADA. We are only going to focus on the ADA.

III

Court’s Reasoning in Denying Summary Judgment to the District Of Columbia

  1. Under the ADA, an employer cannot make inquiries of an employee’s disability existence or extent of her disability unless it is shown to be job-related and consistent with business necessity.
  2. Business necessity is a high standard and not to be confused with expediency.
  3. Other Circuits have required employer to show that the asserted business necessity is vital to the business and that the request is no broader nor more intrusive than necessary.
  4. The District of Columbia did not establish beyond dispute that the substance abuse testing was job-related or necessary.
  5. It is the employer that has the burden to show job relatedness or business necessity.
  6. Plaintiff’s complaint clearly alleged that both the alcohol and drug tests violated the ADA.
  7. With respect to ADA prohibited inquiries, it makes little sense to require an employee to demonstrate that he or she has a disability to prevent his employer from inquiring as to whether or not he or she has a disability. Accordingly, many Circuits have held that a plaintiff does not have to prove or allege a disability in order to challenge a medical inquiry under the ADA.

IV

Takeaways

  1. We have previously talked here about the ADA scheme with respect to medical inquiries as well as job-related and business necessity. I still very much like that blog entry for guidance.
  2. Objective evidence that coworkers may be endangered by an employee satisfies the business necessity requirement.
  3. I find the Seventh Circuit decision a bit vague and believe readers are better off referring to the blog entry mentioned in ¶ IV1 for putting meat on the bone so to speak. For example, the issue is not simply one of a “threat,” but rather one of being a direct threat. See this blog entry for example.
  4. The essential functions of the job are related to the job itself and not to where that job is located. You do want to make sure that your job descriptions are current and based upon the actual job. Where the job is located should not as a general rule, drive the essential functions of the specific job.
  5. Job relatedness and business necessity are things that the employer has to show not the plaintiff.
  6. If you are going to do a medical exam, make sure the request for information is not broader nor more intrusive than necessary.
  7. When it comes to ADA prohibited medical inquiries, the person alleging violations of the ADA does not have to prove that they have a disability in order to challenge the inquiry.
  8. If you are having trouble figuring out what is an impermissible medical inquiry or disability-related inquiry, you might find it very helpful to get persons with disabilities (attorneys and/or HR professionals with disabilities), involved in the process as they very well might have heightened sensitivity in this area.
  9. Making an effort to work things out is always a good idea.
  10. Lewis it’s worth a read especially if you are in a state allowing recreational marijuana use. You also may want to look at this blog entry as well, which dealt with medical marijuana use.

I know I said that I would not be blogging until after the new year started. However, my wife and daughter are hanging out with lunch and a trip to Bed Bath & Beyond. Since we are Jewish, one could ask why we would be making a trip to Bed Bath & Beyond two days before Christmas. Well, we do need some stuff…:-) Otherwise, I don’t have a good answer for you… To my Christian brethren, Merry Christmas. For those celebrating Kwanzaa, Happy Kwanzaa. Everyone else, happy holidays!

In the last couple of days there have been some regulatory developments. First, the Department of Justice here has withdrawn several guidances dealing with the ADA. As I have mentioned previously, with rare exceptions, I am not a big fan of guidances. Generally speaking, I think lawyers use them as a crutch and forget to do their own independent analysis. Also, I do think there is some merit to the argument, discussed here, that guidances are an end run around the formal rulemaking process. So, the removal of the guidances puts more of a premium on having an ADA knowledgeable attorney. Thanks to the ABA Commission on Disability Rights for alerting me of this on their listserv.

Even bigger news was made when the Department of Justice decided to withdraw entirely, see here, regulations pertaining to accessible medical equipment and to web accessibility. My thanks to the Seyfarth Shaw blog, which appears in my blogroll, for alerting me to this. I happen to agree with the Seyfarth Shaw blog that having a lack of regulations when it comes to web accessibility is unfortunate. What it means is that we now have a bit of a free-for-all. The critical piece is going to be whether the website allows for meaningful access. What meaningful access means is going to be a very fact by fact situation. That said, it does give defendants a great deal of flexibility for ADA compliance that regulations would not otherwise give. On the other hand, it also gives plaintiff’s a bit of a free hand to allege website inaccessibility. As a preventive measure, the WCAG 2.0 would be a good place to aim for. The withdrawal of the web regulations also means that the primary jurisdiction defense, discussed here, is dead.

The withdrawal of accessible medical equipment regulations will be of great concern to disability advocates. I don’t know how it will change what happens on the ground. I can say that the Department of Justice, even now, remains very concerned about the accessibility of healthcare providers to persons with disabilities. In the absence of regulations, a knowledgeable ADA attorney will need to evaluate whether reasonable modifications at the doctor’s office are/were possible i.e. an undue burden or a fundamental alteration does/did not exist. Again, also a very fact by fact situation.

 

Happy holidays and happy new year y’all!