It is time for the top 10 plus three of 2017. For the most part, the greatest hits, but not of all of their order of popularity stayed the same from 2016 to 2017, except for one entry (negligence per se dropped out of the top 10 and was replaced by the history of ADA and ADA related cases at the United States Supreme Court). In my greatest hits box, you will find two blog entries that I believe are incredibly important, not that all of my blog entries aren’t important:-), and deserve to have special mention even if they are not a greatest hit. Also, you will find an entry that is sure to be a greatest hits in 2018 since it has to be read with another blog entry that is already a greatest hit. In addition, you will find the top 10 for 2017. So, this should be a total of 13 blog entries in my greatest hits box and they are:

+3

I get too many phone calls from students in higher education, particularly graduate schools, where the college or professional school seems to not have a clue about their ADA compliance obligations. So, I always list this blog entry, which discusses an ADA compliance checklist for places of higher education.

A critical principle with the ADA is that the ADA is a duty that cannot be delegated as seen here. But, be sure to read this blog entry as well as it’s complicated.

One of the greatest hits is just what is the statute of limitations for ADA claims. However, an even more important question perhaps, is when does that statute of limitations begin to run, which we discussed just last week in this blog entry.

Turning to the Top 10 of 2017 and they are in reverse order:

10.  Is causation under the ADA “but for,” or something else? This blog entry discusses that question. (907 views and sixth place last year).

9.  Whether public colleges and public university are immune from suit on the grounds of sovereign immunity is discussed here. (1125 views and eighth place last year).

8.  How does the ADA deal with temporary disabilities is discussed in this blog entry. (1246 views and third place last year).

7.  In order to file suit under title I of the ADA, one has to exhaust administrative remedies. This blog entry discusses what that means. (1351 views and 10th place last year).

6.  Just what is the difference between a service dog and a therapy dog? See this blog entry. I should note that the issue of service dogs is something you will find numerous blog entries on. (1430 views and fifth place last year).

5. Suing a state court system for violations of the ADA is extremely difficult, but it can be done as discussed here. (1496 views and seventh place last year).

4. July 2016 blog entry discussing ADA and Related Cases at the Supreme Court and What is Next. (2108 views and new this year).

3.  What do you have to show in order to get compensatory damages under title II of the ADA is discussed in this blog entry. (2144 views and second place last year).

2.  Just what is the applicable statute of limitations for ADA claims is discussed in this blog entry. (2774 views and fourth place last year).

 

AND THE WINNER IS…

It is not even close for the second year in a row. This particular blog entry, which discusses whether you can get compensatory and punitive damages in ADA retaliation cases, has more than 1.5 times the views of the second-place finisher coming in at 4,406 views.

Merry Christmas, Happy Hannukah, Happy Holidays, and Happy New Year to all!

 

See you next year!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

I hope everyone is having a happy holiday season. In Atlanta, we got a few inches of snow. So, my daughter was outside playing in the snow and having snowball fights with her friends. She even got in a couple of snowballs thrown at me. The nice thing about it being in Atlanta was that the snow has all melted, and unlike Chicago, our native city, we never have to worry about shoveling it. We are also fortunate with the timing of the snowstorm happening on a Friday and there being a gap in the weather when the snow came through so that people were not stranded.

Turning to the blog, I am hoping that I have now gotten by the absolutely crazy computer issues I have been dealing with. This will be the second to last blog entry of the year with the next one being the top 10+1 or two. As mentioned previously, about that, every year I put up a top 10+1 or two blog entries for the year as determined by your views over that year. It is always a top 10 and depending upon how close the top 10 are to each other may be slightly more. Then, no matter what, I always keep in the ADA audit: higher education version blog entry as I think that is a critical blog entry for those working with or in the college and University communities.

Turning to today’s blog entry, it builds on a previous blog entry discussing just what is the statute of limitations in ADA cases. That blog entry, which can be found here, has consistently been one of my more popular blog entries over the years. However, what that blog entry doesn’t address is when does the statute of limitations BEGIN to run.

The case of the day is Hamer v. City of Trinidad. As usual, the blog entry is divided into categories, and they are: facts; court’s reasoning; and takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts

Hamer is a resident of the City of Trinidad Colorado and is confined to a motorized wheelchair. As a result, he does not drive or utilize public transportation, rather his primary means of public transportation are the city’s public sidewalks. The city has approximately 154 miles of sidewalks and 1300 curb cuts. In April 2014, he attended a city council meeting where he complained about ADA accessibility throughout the city, and over the next six months, he levied multiple informal grievances at city council meetings. At the time of the decision from the District Court in Colorado, the city had completed several projects aimed at renovating noncompliance sidewalks and curb cuts identified by the plaintiff as well with other compliance projects. In 2014, plaintiff also filed an ADA complaint with the Department of Justice, and at some point following that complaint, the DOJ began an ADA audit of the city. That audit identified at least five newly constructed or altered curb ramps that were noncompliant. In anticipation of the consent decree with the DOJ, the city sought to amass funding for the 2017 city budget of between $500,000-$1,000,000 to address the most critical curb cuts immediately. The city must also set aside $600,000 to mitigate other ADA compliance issues noted by the DOJ. All of this in addition to the $550,000 spent by the city in 2016 to repair major downtown sidewalks and curb cuts as well as $800,000 plan for repairs in 2017. Even so, plaintiff then filed suit on October 12, 2016 seeking declaratory relief as well as compensatory damages and attorneys fees under the ADA. The defendant defended on the grounds that the claims were barred by the statute of limitations and that sidewalks and curb cuts were not a service, program, or activity of the public entity.

II

Court’s Reasoning

The court agreed that the statute of limitations had passed and reasoned as follows:

  1. The court found that the plaintiff’s use of the sidewalks as a means of transportation was sufficient to present an invasion of a legally protected interest that was concrete, particularized, and actual or imminent. Also, there was no dispute that the city’s inaccessible sidewalks and curb cuts were the cause of plaintiff’s injuries and that a favorable decision would redress those injuries. That is, force the city to remediate its noncompliance sidewalks and curb cuts. Accordingly, the plaintiff had standing to proceed with a lawsuit.
  2. With respect to whether sidewalks and curb cuts were a program, activity, or service of a public entity, the court sidestepped that question and chose to focus on the statute of limitations instead. They did note in a footnote that the weight of authority favors a finding that sidewalks and curb cuts are services under title II of the ADA and §504 of the Rehabilitation Act.
  3. With respect to the statute of limitations, the court found that the most analogous statute of limitations in Colorado was a two-year statute of limitations.
  4. Hamer was clearly aware of the ADA and Rehabilitation Act violations throughout the city in April 2014, but failed to bring suit until October, 2016. At the latest, he had knowledge of the exact basis for this lawsuit on April 29, 2014, which was the date he filed his complaint with DOJ.
  5. Plaintiff’s argument that a continuing violation was occurring because many of the problems were not fixed was not persuasive. Continuing violations is a concept more commonly seen in employment matters rather than anywhere else. In those cases, there are a series of separate acts collectively constituting one unlawful employment practice so that the discriminatory conduct cannot be said to occur on any particular day. If that isn’t the case, discrete discriminatory acts each start their own statute of limitation clock for purposes of filing a timely suit.
  6. The 10th Circuit has rejected the continuing violation theory with respect to civil rights claims arising under §1981, and it has never formally adopted that doctrine for §1983 actions either.
  7. The court did note that both the Ninth and Seventh circuits as well as some District Courts have applied the continuing violation theory to title II actions, but the court was not having any of it based on the circumstances of this particular case.
  8. The continuing violation theory is triggered by continual unlawful acts not by continual ill effects from the original violation.
  9. The construction and alleged lack of maintenance of noncompliant sidewalks and curb cuts are discrete acts of discrimination, and any subsequent injury caused by the city’s failure to fix those issues are the continual ill effects of the original violation. The court cited several decisions to back up that point of view. All of those decisions look to whether the condition partook of permanence and therefore triggered an awareness on the part of a qualified plaintiff denied access that he or she should assert his rights.
  10. While state law governs what statute of limitation period exists, federal common law decides when the statute of limitation begins to run. The federal common law rule is that the statute of limitation begins to run when a plaintiff discovers, or by the exercise of due diligence would have discovered, that he or she has been injured and who caused the injury. Accordingly, the statute of limitation begins to run the moment the plaintiff knew or should have known that he was being denied the benefits of the city’s newly built or altered sidewalks and curb cuts regardless of when those sidewalks were actually constructed or altered.
  11. Since the continuing violation theory doesn’t work, the plaintiff failed to identify any violations occurring within the applicable two-year statute of limitations. More particularly, the plaintiff’s ADA and Rehabilitation Act claims accrued on April 29, 2014, or, at the very latest, on August 2014, when he again raised concerns at a city council meeting.
  12. It is not sufficient to rely solely on the continued ill effects of the city’s original acts of discrimination in order to satisfy the plaintiff’s burden on summary judgment.
  13. While a report showing that there are several existing problems remaining confirmed the existence of a case and controversy, it doesn’t change the analysis with respect to the discovery rule under the statute of limitations.
  14. The city with its effort to fix things may have mooted many of the complained of allegations regardless of the statute of limitations issue. With respect to those that were not mooted, that alone does not satisfy the plaintiff’s burden of demonstrating with specificity the existence of a disputed fact within the applicable statute of limitations.

III

Takeaways:

  1. This case is very significant. Common sense would dictate that if the violations are still going on, the statute of limitations would continue to run. This is a big issue with respect to architectural accessibility. Instead, this case holds that regardless of whether architectural violations are going on, the statute of limitation begins to run from the moment the plaintiff is aware of the architectural violations. Such a decision forces a plaintiff into continually rechecking whether the architectural violations still exist. Also, even if those architectural violations still exist, if forces the plaintiff to continually look for new and different architectural violations if the statute of limitations is to be extended.
  2. Keep in mind, there is a definite split in the courts on this issue. It is far from certain whether the ultimate result with respect to continuing architectural accessibility violations will come down to application of a strict discovery rule.
  3. A similar problem exists with respect to the statute of limitations in failure to accommodate cases. There, you see the statute of limitations in terms of when it begins to run breaking down along similar lines: a constructive discharge theory; a discrete act theory but one which allows for the possibility that failure to act could extend the statute of limitations (click on the immediate preceding hyperlink for a blog entry of mine discussing both of those approaches); and a strict discovery rule, the same approach as Hamer. With respect to the failure to accommodate statute of limitations accrual question, the cases are very few and far between (the cases seem to be more numerous with respect to title II in general at least from a reading of this court decision), but I would expect a similar split to occur on failure to accommodate statute of limitations accrual questions.
  4. Since title II and title III do not require exhaustion of administrative remedies, if administrative remedies are pursued, it has to be remembered that the clock is still running. Administrative agencies, whether they be OCR or DOJ can take an incredibly long time to figure things out. So, attorneys on both sides need to be very much aware of whether the plaintiff has pursued or is pursuing administrative remedies before filing suit.
  5. The city certainly helped itself by working with the Department of Justice and devoting considerable resources to fix and plan for future fixes with respect to ADA compliance.
  6. A defense that sidewalks and curb cuts are not a program, activity, or service of a public entity is unlikely to be successful.
  7. Standing and statute of limitations accrual questions are distinct issues.
  8. On the statute of limitations question, it might be worth for the plaintiff to appeal since the law is so uncertain. I am aware of the plaintiff’s law firm (many of their cases wind up as blog entries of mine), and so it wouldn’t surprise me at all to see an appeal here.
  9. In most cases, the statute of limitations winds up being two years, but states can vary. Attorneys need to check the case law in your jurisdiction to find out what is the appropriate statute of limitations being used with respect to disability discrimination claims. Also, at this case makes clear, it is a separate question as to when a statute of limitations begins to run versus how long the statute of limitations is.
  10. Continuing violations is a theory very much frowned upon by the federal courts. However, on the plaintiff side, it is certainly worth trying to reframe it as a failure to fix discrete acts rather than a continuing violation and see if the court goes for that. For example, in Keith-Foust, the Middle District of North Carolina suggested that failure to act on a reasonable accommodation request could extend the statute of limitations.

I hope everyone had a happy Thanksgiving.

Before getting started on our blog of the week, I first want to pass on some great news about the blog. Thanks to our very generous readers, my blog made the ABA 100 once again. It is the fourth year in a row for us. I simply could not have done it without you on two different levels. First, many of you nominated me for the ABA blog 100. Second, it is because I have such great readers that I am motivated to put out a blog every week. It is wonderful to see the impact the blog has on readers. Also, it is especially an honor this year because the ABA 100 is quite a bit different than in years past. Unlike past years, there were only 50 blogs making the cut. The other 50 were divided between 25 Twitter handles and 25 podcasts. So, that means a blog’s chances for making it this year were cut in half from prior years. Again, many thanks!! The 2017 ABA 100 can be found here. Finally, I do want to mention that congratulations are in order for Robin Shea, author of the Employment and Labor Insider Law Blog, who made it once again and to Eric Meyer’s Employer Law Handbook Blog, who made the hall of fame.

 

On another housekeeping matter, within the next few weeks, I will be posting the 10+1 most visited Understanding the ADA blog entries of the year as determined by you. It is always 10+1 because I like to include the ADA audit higher education version blog entry no matter what as that blog entry is so critical to those in higher education. The rest of the blog entries are the 10 most visited blog entries of the calendar year. So, be on the lookout for that.

This week’s blog entry, Gati v. Western Kentucky University, talks about the fundamental alteration defense in academia. As usual, the blog entry is divided into categories: facts; court’s reasoning; and takeaways. The reader is free to concentrate on any or all of the categories.

I

Facts

In this case, you had a veteran with a disability pursuing a Masters degree in mental health counseling. He lived close to Western Kentucky’s Elizabethtown campus but over an hour drive away from its main campus in Bowling Green. His disability renders him unable to sit for longer than one hour at a time. After moving his family to Kentucky, he met with a graduate admission counselor to discuss the graduate program in mental health counseling. There was some dispute as to what was said at that session, but nevertheless, he got himself admitted to the University and pursued a Masters degree in counseling. He completed two semesters without issue. However, when he attempted to register for the fall 2011 semester, he found out that the classes required for his counseling degree were only offered at the main campus. At that point in time, he informed the head of the program that he could not attend classes in Bowling Green due to his disability and requested a variety of accommodations, including: priority registration and class selection; and videoconferencing technology and alternative class delivery. Those requests were denied. More particularly, the Vice President of Student Affairs said he had consulted the head of the department and found out that the particular accommodations requested presented particular problems, including: the inability to determine the student’s mastery of the course content via television; the inappropriateness of using television to deliver a mental health counseling course; the activity conducted in classes and the skills development procedures used in those classes were not appropriate for televised delivering; classes at issue required students to get in small groups and look at each other in the presence of one another so that they could have direct counseling interactions and receive immediate feedback; and counseling students needed to learn about body language, posture, and communication style, which is very difficult to discern when somebody is sitting behind a table pushing a button on a microphone. The General Counsel for the University had other reasons as well, including: University did not have to sufficient faculty to teach the courses in Elizabethtown; accreditation standards limited the number of courses faculty could teach; the limited number of faculty in the department limited the number of courses that could be offered at any one time in any single location; and accreditation standards required part-time instructors to be properly credentialed, and there simply were not enough credentialed instructors due to market demand. After receiving all of this, Gati filed suit alleging violations of the ADA and the Rehabilitation Act and the KCRA. Both sides moved for summary judgment.

II

Court’s Reasoning

In granting summary judgment for the University, the court reasoned as follows:

  1. Making out a claim under the ADA means showing: 1) plaintiff has a disability; 2) plaintiff is otherwise qualified; and 3) plaintiff was excluded from participation in, denied the benefits of, or subjected to discrimination under the program because of his disability.
  2. A person is otherwise qualified to participate in the program if the person with a disability can meet its necessary requirements with reasonable accommodations.
  3. It is up to the plaintiff to propose an accommodation and prove that it is reasonable.
  4. Fundamental alteration is a defense when refusing to make requested accommodations.
  5. The law does not require an educational institution to lower or to affect substantial modifications of standards to accommodate a person with a disability.
  6. While the reasonableness of an accommodation is a fact specific inquiry, courts must also give deference to professional academic judgment when evaluating the reasonable accommodation requirement.
  7. The head of Western Kentucky’s Mental Health Counseling program testified that using alternative delivery for the particular classes the plaintiff needed was inappropriate for several reasons: 1) class interactions among students, and class activities, and skill development procedures could not be delivered by TV; 2) counseling students need to learn body language, posture, and style of communication, which is very difficult to discern when somebody is sitting behind a table pushing a button on a microphone; and 3) the classes at issue required students to have face-to-face counseling interaction so that they could receive immediate feedback from their instructors, which is also not possible in a television format. Accordingly, the testimony shows that delivering the courses in a television format would substantially modify the program standards, and the court has to defer to the professional academic judgment of the head of the program and the other faculty the head of the program consulted.
  8. The law does not require accommodations substantially altering academic standards.
  9. Western Kentucky had insufficient faculty at the Elizabethtown campus and a market shortage of the credentialed part-time instructors existed. Accordingly, increasing the current load of faculty members or hiring noncredentialed part-time instructors would risk its accreditation. The loss of accreditation would constitute a substantial modification of the program standards, which is not required by the law.

III

Takeaways:

  1. What this case shows is the importance of the two-step process discussed in this blog entry. Here, it does not appear that the mental health counseling department had developed its essential eligibility requirements, but when approached with the reasonable accommodation requests, they did do an extensive analysis as to whether the reasonable accommodation requests would fundamentally alter the nature of the program. The department as well as the other departments of Western Kentucky would be well advised now to engage in the two-step process discussed in the blog entry referenced in this paragraph so as to be in a better position to deal with this in the future when it arises again.
  2. In a sense, Western Kentucky did engage in the two-step process sort of because first, the department program came up with the list of bona fide reasons as to why the accommodation wouldn’t work. Then, the General Counsel came up with an additional list of reasons as well, though it isn’t entirely clear what the coordination between the General Counsel and the department was.
  3. A bit strange when the court says that it is up to the plaintiff to propose an accommodation and prove that it is reasonable because whether an accommodation is reasonable depends upon whether it is not an undue burden or a fundamental alteration (see this case for example, which is also mentioned in ¶ 5 below). Further, fundamental alteration is an affirmative defense.
  4. The court gave deference to the decisions of the academics but that was because the academics engaged in an in-depth analysis as to whether the accommodations would work. You very well could get a different result, as discussed here, where such an analysis was not done.
  5. A fundamental alteration defense must be backed up with evidence. For what can happen when the fundamental alteration defense is unsuccessfully used to try to dismiss the case before evidence is brought forth, see this case.
  6. It doesn’t seem like the plaintiff went through disability services immediately and developed a written plan for dealing with his disability. On the plaintiff side of things, it is virtually always better to get on top of it early and get a written plan in place, rather than either wait and rely on informal discussions or getting a plan in place later when people’s perceptions are cemented.
  7. Cross-motions for summary judgment are always dangerous from the plaintiff’s perspectives due to the nature of how summary judgment motions are decided. Plaintiff may have been better off arguing a question of fact existed rather than just giving it to the judge to decide, which is the effect of cross-motions for summary judgment.
  8. The court uses the phrase, “necessary requirements.” I took that to mean “essential eligibility requirements,” which would be the correct title II terminology.
  9. Moral of the story from the defense perspective: The two step works!
The capitol Building
Legislative Branch

 

After a two-month period, where my computer was completely on the fritz, I may have finally fixed it. It turns out that Windows itself had become corrupted and that it needed to reinstall Windows. Once I did, that fixed the problem. You wouldn’t believe what I went through before I finally got to that point. Nevertheless, things are good to go, and I couldn’t be more excited. Next week is Thanksgiving week, and I will be in Chicago doing the family thing. So, I will be taking the week off. Accordingly, this is going to be my last blog entry for the next couple of weeks until the week after Thanksgiving. I do want to wish everybody a happy Thanksgiving and safe travels if you are traveling.

 

Today’s case came to me from Larry Berger, a member of the deaf and hard of hearing Bar Association. If you are a deaf/Deaf/hard of hearing attorney, I highly recommend the Association. It turns out that the attorney for the plaintiff is someone that I know and am quite familiar with her work, Mary Vargas of Stein and Vargas. She was kind enough to send me the decision since I could not find it on Lexis or Google scholar. Congratulations to Mary! The case is Reininger v. State of Oklahoma (CIV-16-1241-D) decided by the Western District of Oklahoma on November 9, 2017. As is usual, the blog entry is divided into categories, and they are: facts; court’s reasoning; and takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts:

The facts are pretty straightforward. The plaintiff is deaf and tracks the status of state legislative bills, particularly ones affecting persons with disabilities. The Oklahoma State Senate, the Oklahoma House of Representatives, and their respective leaders maintain Internet websites showing live feeds of legislative hearings and proceedings. Plaintiff claimed that he did not have meaningful access to this information because the audio content of the online broadcasts is not captioned, and so he cannot understand what is being said. He contacted both legislative bodies about the lack of captioning and asked them to bring the websites into compliance with federal disability discrimination laws. While apparently noncompliance was admitted, captioning was not provided due to budgetary constraints. Allegedly captioning would be cost prohibitive and technologically difficult. As an alternative, interpretive services were offered to the plaintiff if the plaintiff were to give advance notice that he wanted to attend a proceeding. Plaintiff then brought suit alleging violations of title II of the ADA and §504 to Rehabilitation Act and sought declaratory judgment, compensatory damages, and injunctive relief. Defendants defended on the grounds of sovereign immunity under the 11th amendment and also defended under the 10th amendment as well.

II

Court’s Reasoning

In rejecting the defendants 11th and 10th amendment claims, the court reasoned as follows:

  1. No doubt exists that Congress intended to waive sovereign immunity of the States regardless of their consent when it came to the ADA. So, the only question is whether that waiver is consistent with the enforcement clause of the 14th
  2. When it comes to title II and sovereign immunity, three questions must be addressed at the outset: 1) what aspect of the State’s alleged conduct violated title II; 2) to what extent such misconduct also violated the 14th amendment; and 3) if the misconduct violated title II but not the 14th amendment, whether Congress’s purported abrogation of sovereign immunity with respect to that class of conduct is nevertheless valid.
  3. The particular conduct alleged in the complaint was failure to caption streaming video of legislative sessions.
  4. Plaintiff did not allege a violation of the 14th amendment in his complaint.
  5. Once the initial questions with respect to sovereign immunity, mentioned above, are addressed, three other questions have to be considered in order to assess whether the legislation is consistent with the enforcement clause of the 14th amendment and they are: 1) the nature of the constitutional right at issue; 2) the extent to which Congress’s remedial statute was passed in response to a document history of relevant constitutional violations; and 3) whether the Congressional statute is congruent and proportional to the specific class of violations at issue given the nature of the relevant constitutional right and the identified history of violations.
  6. The overarching issue here is the citizen’s right to participate in the political process and to have meaningful access to the tools necessary for such participation.
  7. The fundamental right of access to the courts and participation in court services is analogous to the right to participate in the political process impaired by a lack of access to legislative statements by elected representatives. Physical access to a public forum doesn’t mean anything if the person with the disability is denied access to publicly available information that allows equal participation in the political process.
  8. The right to engage in the political process equally to others is encompassed in the First Amendment right to petition the government for redress of grievances. If a citizen cannot access information about the legislative positions of his or her representative, then the citizen’s ability to adequately petition the government and participate in the political process is severely impaired.
  9. The United States Supreme Court has recognized a First Amendment right of the public to receive suitable access to social, political, aesthetic, moral, and other ideas and experiences through broadcast media. Any restrictions on the broadcasting industry has been for the purpose of securing the public’s First Amendment interest in receiving a balanced presentation of views on diverse matters of public concern. By analogy, the same thing applies to the Oklahoma legislature when they are engaged in Internet broadcasting of proceedings to the public, thereby, creating an analogous right of access to the information about state legislative matters.
  10. The right to meaningful participation in the political process and the right of access to publicly available information needed to participate in that process is a fundamental right and therefore, subject to heightened scrutiny.
  11. A historical record and pattern of constitutional violations existed when it came to enacting title II of the ADA. In particular, discrimination against individuals with hearing loss was explicitly mentioned in a variety of different contexts.
  12. While the ADA does not have a requirement for legislative proceeding to be broadcasted, it does require that a qualified individual with a disability be afforded equal participation and benefits of the services, programs, or activities of a public entity. That was necessary because of discrimination against persons with disabilities persisting in such areas of public accommodation, education, transportation, communication, recreation, voting and access to public services. Here, plaintiff is clearly a qualified person with a disability and legislative proceedings are activities of a public entity with the Internet broadcast of those proceedings being a public service.
  13. In a footnote, the court noted that public accommodations may not be limited to buildings and physical structures, but also noted that courts have gone both ways on the matter.
  14. Since a fundamental right is involved, title II of the ADA is a proportional response to the harm being redressed, and especially so, since title II allows public entity to assert affirmative defenses of undue burden and fundamental alteration so that required accommodations are not overly burdensome.
  15. In a footnote, the court said that even if a citizen’s right to meaningful participation in the political process and to access publicly available information needed to participate in that process was not a fundamental right, sovereign immunity was still properly waived because of pervasive unconstitutional state conduct. That is, you also have here: 1) a persistent pattern of exclusion and irrational treatment of persons with disabilities; 2) gravity of harm from such discrimination; and 3) limited compliance costs.
  16. Finally, the court found that any 10th amendment claim was premature as that went to the relief to be granted rather than whether the case could go forward.

IV

Takeaways:

  1. I have seen over and over again defendants claim that sovereign immunity applies unless a constitutional violation is alleged. That is simply not the law, and this case makes that point clear.
  2. This court does a nice job of laying out the analytical framework for dealing with sovereign immunity questions. It is a two-step process with six different questions.
  3. The right to meaningful participation in the political process and the right of access to publicly available information needed to participate in that process are fundamental rights.
  4. The way sovereign immunity works, as we have discussed previously, is once the equal protection category is determined, the rest of the analysis follows without difficulty. Here, since a fundamental right was found, that means a law could require just about anything and it will be a proportionate response to the harm being redressed.
  5. Very interesting that the court in a footnote saw fit to mention that places of public accommodations very well may extend beyond buildings and physical structures, a point which we have discussed extensively in the blog.
  6. The court also left itself an out if somehow a fundamental right was not found to be by saying that the plaintiff could also win under the pervasive unconstitutional state conduct theory.
  7. I have never seen a 10th amendment claim before. The court doesn’t rule it out, but says that it is premature at the pleading stage.
  8. This case should be a wake-up call for public and even private entities using live video, but not captioning them. It’s a real problem. Just within the last month, I have run into this issue with respect to three webinars that I either eventually attended or wanted to attend. No, I didn’t do anything legally but I could have….

HAPPY THANKSGIVING!

Today’s case, Glueck v. National Conference of Bar Examiners illustrates the perils of proceeding pro se. The case is certainly worth appealing to the Fifth Circuit. However, the plaintiff is now proceeding with a constitutional challenge to various statutes, which I don’t think will go anywhere. At any rate, the case bears discussing and it also bears discussing why I believe the case should be appealed. So, the blog entry as usual is divided into categories and they are: facts; court’s reasoning national conference of bar examiners; court’s reasoning title II; court’s reasoning title III; why the case should be appealed; and takeaways. The reader is free to focus on any or all of the categories.

I

Facts:

The plaintiff is a third-year law student with ADHD, reading and comprehension impairments, and dyslexia. He received accommodations while pursuing a graduate degree and on law school exams. However, when it came time to take the multistate professional responsibility examination, the national conference of bar examiners, which administered the exam, denied his request for time-and-a-half, audio CD, and a non-Scantron answer sheet. Nevertheless, he took the exam anyway and failed. He ran into a similar issue with the Texas bar, which also denied him accommodations. He brought suit under titles III and V against the National Conference Of Bar Examiners and under title II,III, and V against the Texas Board of Law Examiners.

 

II

Court’s Reasoning against National Conference of Bar Examiners

 

With respect to the interference and retaliation claims, the court said that plaintiff made no factual allegations as to how the National Conference Of Bar Examiners retaliated or interfered with his exercise or enjoyment of his rights. For that matter he didn’t state any allegations at the Hollywood discriminated against because he opposed any act or practice of the National Conference Of Bar Examiners. Accordingly, the complaint failed under Iqbal and Twombly. However, the court said that the §12189 (the portion of the ADA that goes to discrimination in standardized examinations), claim survived.

III

Court’s Reasoning Against the Texas Board of Law Examiners

  1. The right to practice law is not a fundamental right and so Tennessee v. Lane does not apply.
  2. Reickenbacker v. Foster, 274 F.3d 974 (5th 2001), is the applicable case. That case said that title II of the ADA outside of fundamental rights, exceeds the enforcement clause of the U.S. Constitution and therefore, does not forcibly abrogate sovereign immunity.
  3. The court acknowledged the issue of sovereign immunity and title III is an open question since title III cases usually involve private entities. Nevertheless, the possibility of sovereign immunity does apply since a governmental entity is administering the exam. Again, since a fundamental right is not involved, title III of the ADA goes beyond the enforcement clause of the 14th amendment, and therefore, sovereign immunity cannot be forcibly waived.
  4. The court allowed the title V claim to proceed saying that it was not aware of any case law saying that Congress invalidly abrogated sovereign immunity in enacting title V of the ADA

IV

Why the Case Should Be Appealed

  1. The court’s reliance on Reickenbacker makes little sense. That case was decided three years before Tennessee v. Lane and five years before United States v. Georgia.
  2. Tennessee v. Lane used a variety of language, fundamental right being just one of them, to talk about how persons with disabilities were in a higher equal protection class when it came to the court system. At no point did it say that the decision only applied to fundamental rights. In fact, it said title II sovereign immunity with respect to persons with disabilities was on a case by case basis.
  3. No mention whatsoever is made in the opinion of United States v. Georgia, which held that if a situation rose to the level of a constitutional violation, then sovereign immunity was waived, but that case specifically did not address the question as to what would happen if there was disability discrimination that did not rise to the level of a constitutional violation. There are many cases out there (see ¶ 1 of takeaways § below), that say sovereign immunity has been validly waived even though fundamental rights are not involved.

V

Takeaways:

  1. The case should definitely be appealed. The court’s analysis of Tennessee v. Lane and its omission of United States v. Georgia are particularly troublesome. Also, sovereign immunity can be forcibly waived even where fundamental rights are not involved, such as in this case: Association for Disabled Americans v. Florida International University, 405 F.3d 954 (11th 2005). Finally, sovereign immunity does not apply to injunctive and declaratory relief actions.
  2. To my mind, this was a case that the plaintiff should have been able to get pass sovereign immunity on, or at least make a solid argument on. What it illustrates is the danger of proceeding pro se. Considering the nature of my practice, I am fully aware of how difficult it is for persons with disabilities to get competent representation considering the resources they often lack. That leaves persons with disabilities having to turn to law schools, non-profit disability rights organizatons, protection and advocacy organizations (which vary widely in what they do and how they do), and pro bono departments of large firms to vindicate their rights.
Happy Halloween!
Happy Halloween!

A few weeks back, I attended a chat seminar put on by the Society for Human Resources Management on reasonable accommodations and the ADA. What happens in that kind of seminar is that people write in their questions online and then knowledge advisors respond. The knowledge advisors are very good about providing resources and not stepping into the realm of legal advice. Since I am an attorney, I thought I could go into more depth on the answers, though of course, what is said here, does not constitute legal advice. For that, an attorney-client relationship is needed. I have made the questions of general applicability so as to make sure it isn’t possible to know the specifics of any question. So, happy Halloween! And here goes:

  1. What does an employer do if an employee can’t or will not get a doctor’s certification for accommodations/ when does an employer have the right to ask for medical documentation?

Answer: The employer has a perfect right to ask for reasonable documentation with respect to any request for accommodation. The key is the interactive process, and failure of an employee to engage in the interactive process means they are no longer otherwise qualified per the ADA. So, I would make it clear that you are attempting to work with the individual and that it is important for them to engage in the interactive process. Let them know that failure to engage in the interactive process may mean that they are no longer qualified under the ADA. Keep the interactive process collaborative rather than adversarial whenever possible.

  1. A person uses up all of their FMLA leave, what does an employer do now?

Answer: A colleague of mine, Jeff Nowak, has a blog, now in my blogroll, focusing entirely on the FMLA. He wrote an excellent piece on this subject, which can be found here. Also, check out my blog entry on Severson, which can be found here.

  1. If a company has a rule that they do not give out vacation time for let’s say six months after starting to work, must the employer grant vacation time anyway to accommodate a person with a disability?

Answer: One of the myths about the ADA is that it doesn’t apply to people on probation. It most certainly does. Further, if the person has just started work at a new employer, then the FMLA won’t apply either regardless of the number of employees the employer has. So, the key here is the interactive process and looking at whether the person can do the essential functions of the job with or without reasonable accommodations. Consider whether attendance is necessary to perform the essential functions of the job per this blog entry. Also, be sure to consider how your jurisdiction deals with mandatory reassignment, such as discussed in this blog entry. Finally, be sure to check out what the Job Accommodation Network says about possible reasonable accommodations.

  1. How important is recruitment and advertisement and documenting physical demands of the job?

Answer: It is important as this is one of the EEOC factors to consider when deciding what is an essential function of the job. The question wouldn’t just apply to physical demands but to other kinds of demands as well, such as mental ones.

  1. A person is out on workers compensation and returned to work with an adjusted modified work schedule being requested, is that a reasonable accommodation?

Answer: The key here is the interactive process. An employer does not have the obligation to create light-duty positions if they don’t generally offer those light-duty positions. Also, definitely want to look at the essential functions of the job and whether they can be performed with or without reasonable accommodations. Hiring a person to do an essential function of an employee’s job is not a reasonable accommodation. That said, don’t forget that the question is whether the employee can perform the essential functions of the job WITH or without reasonable accommodations.

  1. When does a reasonable accommodation become unreasonable?

Answer: A reasonable accommodation is whatever gets the person with a disability to the same starting line as a person without a disability. So, be creative! Under title I of the ADA, an accommodation becomes unreasonable when it constitutes either a financial or logistical undue hardship. A financial undue hardship is very difficult to show since the vast majority of accommodations do not cost the employer anything. Those accommodations costing the employer something are not expensive, generally $500-$1400. Further, it is the entire business that is looked to when deciding undue financial hardship. With respect to logistical undue hardship, the best way to think of it is whether the accommodation would fundamentally alter the nature of the operations of the business.

  1. What does the employer do if it is a third-party informing the employer of an employee’s disability and not the employee?

Answer: Disability related information cannot be kept in regular personnel file, rather it must be kept in a separate confidential file. The question I have is whether there are any work performance issues. If not, keep the information in mind should the situation arise later. If there are work performance issues, then you can ask the employee if there is anything you can do to help as performance seems to be trailing off and see how the employee responds. It is also helpful if you have an ADA/504 coordinator, which you are supposed to have anyway if you have more than 15 employees and take federal funds (Rehabilitation Act), or more than 50 employees (ADA).

  1. Company has allowed an employee to not perform all essential functions of the job for many many years. Now, the company is demanding performance of all duties.

Answer: Under this scenario, it is clearly time to revisit just what the essential functions of the job really are. Remember, it is ultimately what is actually happening on the ground that dictates what the essential functions of the job are. Here, a strong argument exists that the job duties that have not been performed for many years are not essential and could be given to someone else. Finally, develop a system to periodically review the essential functions of the jobs with the focus on how the jobs are actually being performed.

  1. What kind of documentation is needed for a service animal or support dog requested by an employee?

Answer: This one gets complicated. The rules for service dogs and support dogs may be very different depending upon the title of the ADA involved as we discussed here.

  1. Who pays for an ASL interpreter?

Answer: The employer. It is possible that vocational rehabilitation services might be of assistance to a particular employee. Also, check out this blog entry.

  1. If an employee is a minor, must the parents be involved?

Answer: If things are going well, it shouldn’t be an issue. If not, the first step would be to engage in the interactive process with the employee. Don’t forget about contacting the Job Accommodation Network. As a matter of preventive law, it might make sense to involve the parent if need be, but I would get the permission of the employee to do that first.

  1. What happens if an employee refuses an employer’s reasonable accommodation offer?

Answer: Assuming an interactive process has occurred, the rejection of the reasonable accommodation offer would mean that the employee is no longer qualified under the ADA and loses his or her protection. Remember, the employee is not entitled to the reasonable accommodation they want, rather it is a negotiation process between the employer and the employee.

  1. How much documentation can be requested to establish a disability?

Answer: Ask for reasonable documentation and do not make it overly intrusive. Using common sense will help here.

  1. What if an employee in need of an accommodation cannot afford to pay for a doctor to assess his or her condition?

Answer: Use common sense and the interactive process. Are there free clinics the employee can go to?

  1. When asking for a doctor’s certification, should the job description be attached every time?

Answer: As a matter of preventive law, I generally would as jobs can change over time.

  1. Is teleworking a reasonable accommodation?

Answer: Check out this blog entry.

  1. What are the rules for alcoholics and drug addicts?

Answer: They are not the same. Check out: this blog entry (“current” illegal drug user); this blog entry (medical marijuana); and this blog entry– including the comments-  (Sarkisian-alcoholism).

  1. Does ADA think enter into accommodating a person who is pregnant?

Answer: Yes. Check out this blog entry by my friend and colleague Robin Shea. Also, read this case, UPS v. Young.

  1. What kind of doctor needs to offer the medical documentation?

Answer: Best approach would be to make sure the medical professional has knowledge of the individual and substantive knowledge of that disability. Use some common sense here.

  1. How often should employees get trained on ADA issues?

Answer: As often as possible. Make sure, the person doing the training is knowledgeable. Also, I would say in new orientation for sure. After that, yearly for sure. Ideally, twice a year. You could have a roundtable at the six month mark and a more traditional and bigger training at the end of the year.

  1. This entry is not legal advice!!!!!!

Feel free to contact me with any questions or to discuss any training needs that you might have.

 

Happy Halloween!

Happy Halloween!

Today’s case is from the Seventh Circuit, Frakes v. Peoria School District No. 150. This case is the first federal case I am aware of dealing with how do you go about proving a prima facie case for interference under the ADA. The ADA at 42 U.S.C. §12203 contains both retaliation and interference claims. The blog entry is divided into several categories and they are: where do you see interference claims; just how do you prove it; just what is purposeful discrimination under the ADA; aren’t there really just three elements to interference; other issues; and takeaways. The reader of course is free to concentrate on any or all of the categories, but I think you’ll want to read the whole thing.

 

II

Where Do You See Interference Claims

I have seen interference claims come up particularly with respect to higher education. Oftentimes, what happens is disability services comes up with a plan for the person with a disability, and then, either the bureaucracy or individual faculty members interfere with that plan. In those situations, interference claims may arise.

III

Just How Do You Prove It?

Until our case of the week, it was very unclear as to how you would prove it. When I have faced this situation, I have relied on the Fair Housing Act because there were not any ADA cases on point. Now, we have an ADA case on point. The Seventh Circuit said that proving up this kind of case means: 1) the plaintiff was engaged in activity statutorily protected by the ADA; 2) the plaintiff was engaged in, or aided or encouraged others in, the exercise or enjoyment of ADA protected rights; 3) the defendant coerced, threatened, intimidated, or interfered on account of her protected activity; and 4) the defendants were motivated by an intent to discriminate.

In higher education, it typically works like this. The plaintiff requests reasonable accommodations from disability services, disability services comes up with a plan, and then a faculty member or perhaps someone in the bureaucracy blocks the implementation of that plan or blocks the ability of that plan to be carried out effectively. So: requesting a reasonable accommodation is statutorily protected activity under the ADA; plaintiff would then be engaged in the exercise or enjoyment of ADA protected rights; the adverse reaction of the bureaucracy and/or faculty members to the request is then done on account of her protected activity; and then you have to prove intent.

IV

Just What Is Purposeful Discrimination under the ADA?

We have discussed intentional discrimination under the ADA before, such as here (purposeful discrimination), and here (deliberate indifference). In most higher education interference cases, it would seem fairly easy for either of these standards to be met.

V

Aren’t There Really Just Three Elements to Interference?

It seems to me that elements one and two are the same. That is, element number two is automatically satisfied if element one is satisfied.

VI

Other Issues

There are other issues created by interference claims including:

  1. Can you get compensatory and punitive damages in interference claims. The answer to that question will be the same as the answer for retaliation, which we discussed here, considering the layout of 42 U.S.C. §12203.
  2. Just when does the statute of limitations begin to run, especially since the Office of Civil Rights, if the student has elected to pursue that, can take quite a bit of time. The answer to this question very much depends upon the place you are in. I have seen courts go for constructive discharge. I have also seen courts say that each time a request for an accommodation is made, the clock starts to run at that moment in time, such as in the blog entry discussing this case. Similarly, if there is an interference situation, the clock will start to run at the moment interference occurs. I will say that the federal courts do not favor continuing violations.

VII

Takeaways:

  1. Training, training, training by a knowledgeable person is really important. Especially with faculty members, they often feel they have complete control over their classrooms. That isn’t the way it rolls.
  2. If you have different schools at your university, make sure each school has a dedicated 504/ADA person assigned to it so that the ADA/504 person understands the needs of that particular school.
  3. Get lawyers involved when necessary.
  4. On the plaintiff’s side, you want to get an attorney as fast as possible since every time an accommodation request is made or interference occurs, the statute of limitations starts to run unless you are in a constructive discharge jurisdiction, of which there aren’t many. This is particularly the case since administrative processes, whether they are internal or external, can take considerable amount of time and the statute of limitations clock is running in the meantime.
  5. If you are on the University side, make sure you have done the two step, which we have discussed here.
  6. Just what is causation for interference claims? Is it but for or mixed motive (see this blog entry)? We do know that causation for retaliation claims is but for and interference often gets put in the same box as retaliation, but the fact remains that retaliation and interference are separate statutory provisions in 42 U.S.C. §12203. Also, element four of the prima facie case discussed above, seems to leave room for argument that mixed motive could be in play.

Of course, if you have any questions about this and/or are seeking training in this area, feel free to get in touch with me.

Things have been crazy around here lately. The latest thing I am dealing with apparent incompatibility between Dragon NaturallySpeaking and Microsoft Office 365. It makes things incredibly crazy (I can’t dictate in Word for long without having to click the dragon mike on and off and other office 365 products, such as outlook and excel, are even worse), but I am hopeful that somehow there will be a fix soon.

Today’s case comes from the Third Circuit, McGann v. Cinemark USA, Inc., which can be found here. The case has been all over the news, including a piece in Forbes magazine where the case was used to rip the ADA. To me, the case is pretty straightforward. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.

I

Facts

McGann has Usher’s Syndrome type I, a sensory disorder. He was born deaf and began losing his sight at age 5. He has been completely blind for approximately 15 years and is now considered deaf-blind. For such individuals, there is no single universally accepted method of communication. He generally uses ASL to communicate with others. He can expressively communicate by signing in ASL himself. For receiving information, he uses ASL tactile interpreters and the hand over hand method. That method involves the recipient placing his hands lightly upon the hands of an interpreter, who is signing in ASL, and reading those ASL signs from its touch and movement. ASL tactile interpretation of the movie’s content, includes visual, aural, and oral components. It also includes environmental elements, such as contemporaneous reactions. It does not require any changes to the video or audio content of the movie, the auditorium screens or sound systems, or the physical environment-including the lighting- in or around the theater. For many years, McGann has experienced movies in theaters and enjoyed them. In particular, Carmike movie theater provided him with tactile interpretation services for movie presentations at his request. In November 2014, he became interested in experiencing the movie Gone Girl but learned that it was not playing at the cinema he generally went to. So, he looked for another theater to experience it. As of December 2014, Cinemark was the most geographically diverse worldwide exhibitor of movies possessing 335 theaters and 4,499 movie screens in the United States across 41 states, including Pennsylvania. They do have assistive listening devices, close captioning devices, and descriptive narration devices available for patrons with disabilities, but none of those devices help McGann experience a movie. Once he learned of the movie theater offering Gone Girl, he emailed the theater to directly request tactile interpretation services so that he could experience the movie during one of its regular presentations. After receiving no response to his initial inquiry, he contacted the theater again and was directed to a senior paralegal working in Cinemark’s national headquarters in Texas. Cinemark never having received a request for tactile interpretation services investigated his request by contacting the center for hearing and deaf services for a quote for tactile interpretation services. The rates they received ranged between $50 and $65 per hour for a minimum of two hours, and considering the nature of interpreting a movie, would have required two interpreters. On her own authority, the paralegal denied McGann’s request for tactile interpretation services, and McGann thereafter filed suit. The District Court entered judgment for Cinemark and McGann appealed.

II

Court’s Reasoning

In vacating the judgment and remanding for consideration of Cinemark’s available defenses the court reasoned as follows:

  1. A movie theater is undoubtedly a place of public accommodation as it is specifically listed in 42 U.S.C. §12181(7)(C).
  2. The court noted that the civil rights division of the U.S. Department of Justice submitted an amicus brief supporting McGann.
  3. 42 U.S.C. §12182(a) says that a place of public accommodation cannot discriminate on the basis of disability with respect to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation. That necessarily includes denying an individual on the basis of disability the opportunity to participate in or benefit from the goods or services of a public accommodation.
  4. 42 U.S.C. §12182(b)(2)(A)(iii) requires public accommodation to take such steps as necessary in order to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services. Failure to take those steps is prohibited discrimination unless the place of public accommodation shows that providing the auxiliary aid or service fundamentally alters the nature of the good, service, facility, privilege, advantage, or accommodation being offered or it results in an undue burden.
  5. The regulations implementing title III of the ADA, 28 C.F.R. §36.303(c)(1), contains an effective communication requirement stating that places of public accommodation have to furnish auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.
  6. The ADA itself supplies a definition for auxiliary aids and services and includes; 1) qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments; and 2) qualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments; and 3) other similar services and actions. 42 U.S.C. §12103(1)(A)-(B). (D).
  7. In 28 C.F.R. §36.303(b), (c)(1), DOJ offers a non-exhaustive list of auxiliary aids and services that may be required to ensure effective communication with individuals with disabilities.
  8. DOJ’s regulatory guidance on auxiliary aids and services notes that if a deaf and blind individual needs interpreting services, an interpreter qualified to handle those particular interpreting needs may be required.
  9. In DOJ’s technical assistance publication in 2014 that provided guidance on communicating effectively with individuals having vision, hearing, or speech disabilities, they specifically mentioned tactile interpreters as an auxiliary aid or service for communicating with individuals who are both deaf and blind.
  10. A defense that a place of public accommodation has is that they can refuse to provide an auxiliary aid or service if they can show that the accommodation either fundamentally alter the nature of its goods or services or results in an undue burden.
  11. No one disputed that McGann has a disability.
  12. A tactile interpreter falls comfortably, a point made by DOJ in its amicus brief, within the definition of an auxiliary aid since a qualified interpreter is making aurally delivered materials and visually delivered material available to a person who has both hearing and visual impairments.
  13. The District Court focused on the word auxiliary as defined in a dictionary, but the Court of Appeals was having none of it. In particular: 1) such a definition renders the auxiliary aids and service requirement of title III meaningless since all of the products, technologies, and services explicitly listed in the statute and regulations as examples of auxiliary aids and services would constitute new goods or services that would escape title III’s mandate unless they were already provided by a public accommodation voluntarily; 2) the District Court did not have to resort to dictionary definitions of the word “auxiliary,” to understand the meaning auxiliary aids and services in title III of the ADA since the ADA and DOJ in DOJ regulations specifically define the term; 3) the statute has no ambiguity as to whether a qualified interpreter falls within the definition since it was specifically listed as an example of an auxiliary aid or service; 4) the primary dictionary definition provided for the term, “auxiliary” in the very same dictionary cited by the District Court is, “offering or providing help, assistance, or support.” So, the relevance of the primary definition of offering help is self-evident, but the relevance of the secondary definition, something supplementary, is not; and 5) even assuming the District Court’s definition made sense, the nature of the auxiliary aid or service being provided here would still not exclude coverage from the ADA.
  14. Captioning and descriptive narration are auxiliary aids and services under the ADA.
  15. If the special goods and services rule applied , the auxiliary aids and services requirement would be effectively eliminated.
  16. The District Court in looking to cases talking about insurance policies was mistaken because those kinds of cases are very different from the situation where a person is trying to access an entertainment venue, such as a movie theater. Accordingly, a court cannot simply assume that what satisfies title III’s auxiliary aids and services requirement in one context necessarily works in another.
  17. While it is absolutely true that under the special goods exception, a bookstore does not need to offer braille versions of books if doing so would require altering the mix of goods provided, a bookstore does engage in disability discrimination if that customer was forbidden from perusing the store’s existing selection or purchasing whatever book he or she chose. Similarly, with respect to insurance, a company does not have to offer an insurance product tailored to a person with a disability, but the company must have a way to communicate the contents of the policy to a blind customer so that he or she can make an informed purchase.
  18. DOJ has regularly taken the position in litigating and enforcing the ADA that entertainment venues have to provide auxiliary aids and services to make the content of their performances accessible to persons with vision and hearing impairments. In fact, after oral argument occurred, DOJ amended 28 C.F.R. §36.303 to require movies under their existing title III obligations to provide close captioning and audio description for digital movies presented in those theaters auditoriums (we discussed the final rule in this blog entry). Those amendments make clear that the amendment did not change any existing obligations of movie theaters to provide auxiliary aids and services to persons with disabilities.
  19. Entertainment venues, such as concert halls and movie theaters, offered to the public are a very different thing than stores offering goods or product for purchase. They offer an entertainment service. Customers do not pay entertainment venues for tickets to sit in an empty auditorium, but rather they pay for the entertainment being offered.
  20. The provision of this entertainment service continues after a person selects a movie of interest, purchases a ticket to that movie, and walks into the auditorium. So, the obligation to provide auxiliary aids and services continues as well.
  21. The District Court’s reading of what is an auxiliary aid and service goes against the legislative history of the ADA. In particular, that legislative history talks about the isolation and segregation of persons with disabilities in American society. In fact, data and testimony collected by Congress as it developed the ADA painted a sobering picture of an isolated and secluded population of persons with disabilities who did not frequent places of public accommodations. Due to communication barriers, among other reasons, a large majority of people with disabilities simply did not go to see movies, the theater, musical performance, and sporting events. In fact, the legislative history refers to that as alarming. So, Congress concluded that a compelling need to integrate individuals with disabilities into the economic and social mainstream of American life was required.
  22. The legislative history reflects Congress’ recognition that presenting movies in the theater is a component of the social mainstream of American life. In fact, the Supreme Court in the past has specifically commented on the importance of movies in American culture.
  23. With respect to the fundamental alteration defense, since even Cinemark did not dispute that tactile interpretation in no way changes the video audio content of the movie, the screens or sound system presenting the movie, or the physical environment in or around the theater, the defense of fundamental alteration simply doesn’t fly.
  24. With respect to the undue burden defense, in order to show an undue burden, the defense has to show: 1) the nature and cost of the actions needed; 2) the overall financial resources of the site or sites involved in the action; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements necessary for safe operation, including crime prevention measures; or the impact of the action upon the operation of the site; 3) the geographic separateness and the administrative or fiscal relationship of the site or sites in question to any parent Corporation or entity; 4) if applicable, the overall financial resources of any parent Corporation or entity; the overall size of the parent Corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and 5) if applicable, the type of operation or operations of any parent Corporation or entity, including the composition structure and functions of the work force of the parent Corporation or entity. 28 C.F.R. §36.104. Since this is a fact intensive inquiry, the court decided to remand to the District Court to undertake the inquiry of whether the undue burden defense applies.

III

Takeaways

  1. A movie theater is undoubtedly a place of public accommodation, and there is little doubt in my mind that tactile interpretation is both an auxiliary aid and a service for the reason the court mentions.
  2. DOJ filed an Amicus brief on behalf of the plaintiff. I am seeing a surprising amount of DOJ disability related plaintiff filings under a Trump/Sessions administration.
  3. For a fundamental alteration defense to apply, the defense has the burden of proof, and it has to show that the operations of their business gets messed up in a big way to prevail. That case could not be made here.
  4. Very interesting to me that the court didn’t just flat out reverse on the undue burden defense considering, among other things, the overall financial resources of Cinemark surely are not jeopardized by providing a tactile interpreter at a cost of a few hundred dollars.
  5. The court’s analysis of the special goods exception is easy to understand and makes an excellent resource for referring to if the special goods exception comes up. Also helpful, is the court’s discussion of how context matters when it come to auxiliary aids and services.
  6. To my mind, this is a by the numbers decision so to speak, and I would be skeptical of any appeal being successful, including one to the Supreme Court.
  7. Since 1990, I have been involved with the ADA as an attorney in one way or another. Prior to moving to Atlanta, I taught people how to be paralegals full-time for 12 years. The last four of which I ran an ABA approved paralegal program and also was responsible for ensuring that all stakeholders at the College understood what it meant to comply with the ADA. Therefore, I was stunned to read in the decision that the paralegal on her own authority denied McGann’s request for tactile interpretation services. A paralegal is someone who does what a lawyer would otherwise do but under a lawyer’s supervision. They can’t exercise independent legal discretion as that would be, at least in some states if not many, practicing law without a license. So, it completely befuddles me how a company would allow a paralegal on their own authority to deny a reasonable accommodation request from a customer.
  8. The amount of money Cinemark spent in litigating what seems to me to be a very straightforward case after the paralegal on her own authority made the decision is also curious.

For those who are Jewish, I hope you had a nice high holiday season and best wishes on the coming new year.

Sometimes when you start a blog entry, you get all the way through it and realize that what you thought you were going to say turns out to be all crazy. So, you have to start over. That is exactly what happened this week. I thought I was going to blog on Esparza v. University Medical Center Management Corporation. That case contains an interesting discussion about private causes of action, sovereign immunity, and deliberate indifference. I thought I disagreed with the private cause of action and sovereign immunity aspects of the decision, but upon further review, I have changed my mind. The case is still worth a read because it takes a very unusual view of what deliberate indifference is. Esparza says that deliberate indifference is nothing more than purposeful discrimination; a standard way more liberal than deliberate indifference in the 11th Circuit for example, which we discussed in this blog entry. The attorney who sent me this case is part of the firm representing the plaintiff. From what I understand, an appeal on the deliberate indifference claim is likely as the Fifth Circuit, as well as many other courts, are all over the place on it.

So, that left me with wondering what to blog on this week. As everyone knows, the ADA and sports have long been an interest of mine. Every edition of Understanding the ADA, starting with the first edition and continuing through the last edition, contains a chapter on the ADA and sports. In my Google alerts the other day, I came across the case of Erin Henderson v. New York Jets LLC (an article on it can be found here). I was not able to find the complaint itself online easily, and so I am going entirely from the article. Of course, one does not know how the facts will ultimately shape up, but for our purposes let’s assume the facts are what is said in the article. The blog entry is divided into facts and analysis sections. Hard to believe the reader won’t read the whole thing.

I

Facts Taken from the Article and the Actual Facts May Turn out to Be Quite a Bit Different

Henderson suffers from bipolar disorder. He began last season as the New York Jets starting inside linebacker. He played in five games, with four starts, before the Jets placed him on the NFL list October 22, effectively ending his season. Henderson did not find out why he was placed on the list until a grievance hearing in June when the Jets said they believed he was not fit to play football. In the two games before the New York Jets placed Henderson on the NFL list, he was tied for the team lead in tackles. He finished 2016 with 21 tackles in five games. In the off-season, the Jets declined his option, and Henderson has not signed with a team since. He originally began his career with the Minnesota Vikings, where he struggled with alcohol abuse. He served a four-game suspension in 2009 for violating the NFL’s banned substance policy, and was released by the Vikings in 2014 after two DUI arrests. He sat out the entire 2014 season, cleaned up his life, and signed with the Jets in 2015 where he played well as a backup. His agent said in the article that Henderson never failed a drug test nor got in trouble with alcohol during his time with the Jets. He did occasionally go to the bar at the team’s training camp hotel, but that was to pick up dinner and not to drink. Henderson struggled with team prescribed medication, Seroquel, which was used to treat his bipolar disorder. The drug made Henderson sleepy and occasionally late to meetings. His agent reports that defensive coaches and teammates regularly berated Henderson for being hung over and still drunk when he showed up. New York Jets personnel never checked Henderson for possible side effects of the medication. When the 2016 season ended, the Jets  cut off Henderson’s medication and did not refer him to another doctor.

II

Analysis

  1. This is not the first time that I have talked about the ADA and the NFL. For example, see this blog entry. My only surprise is that these kind of suits don’t happen more often.
  2. According to the article and the letter embedded within it, the case turns entirely under the New Jersey law against discrimination and does not contain any ADA claims. That makes sense because the New Jersey law from what I have read over the years in the case law, is quite progressive and often goes further than the ADA.
  3. It still is informative to talk about how this might play out under the ADA, again, assuming the facts are as alleged in the article, and so, see the rest of this blog entry.
  4. The ADA does apply to labor unions. It also applies to employers of 15 or more employees. The Jets most certainly have 15 or more employees, and, there is also a collective bargaining agreement as well.
  5. So, the question is whether Henderson could perform the essential functions of the job with or without reasonable accommodations. In terms of his on-field performance, it certainly seems he could.
  6. We previously talked about alcoholism and employment with respect to the ADA in this blog entry, involving the now offensive coordinator for the University of Georgia football team.
  7. Based upon the facts as contained in this article, it would seem that Henderson may have an argument that he was perceived as having a disability, alcoholism. He also quite logically can say that he had a record of a disability, alcoholism, as well. My favorite case for perceiving alcoholism as a disability is Miners v. Cargill Communications Inc., 113 F.3d 820 (8th 1997). In that case, the employer got in trouble for perceiving signs of alcoholism when such may not have been the case.
  8. As discussed in the comment to the Sarkisian blog entry, the current user exception in the ADA only applies to illegal drugs and not to alcohol.
  9. There doesn’t seem to have been an interactive process even though the team would seem to be on notice of a disability in need of accommodations.
  10. The article doesn’t say whether Henderson communicated with anyone regarding the effect of the drug used to treat his bipolar disorder.
  11. Remain to be seen what defenses the New York Jets may offer. Direct threat perhaps per this case? That defense is not easy to show as it requires an individual analysis and objective scientific evidence.
  12. Did I mention that these are facts from the perspective of the perspective of the plaintiff, not even from the complaint, and the defendant has yet to answer?

Today’s case is Severson v. Heartland Woodcraft, Inc., a case from the Seventh Circuit decided September 20, 2017. The blogosphere has lit up with it, and I thought I could add my own spin to it even though several bloggers have done a real nice job talking about it. As is usual, the case is divided into categories and they are: facts; court’s reasoning; and takeaways. Of course, the reader is free to focus on any or all of the sections. Before moving on, for Jewish readers, I want to wish them a happy and healthy new year, and if they are fasting, a good fast on Yom Kippur this Saturday.

I

Facts

From 2006 to 2013, the plaintiff worked for the defendant, a fabricator of retail display fixtures, in a physically demanding job. In June 2013, the plaintiff took a 12 week medical leave under the FMLA in order to deal with serious back pain. On the last day of his leave, he underwent back surgery, which required that he remain off work for another 2 to 3 months. He asked the defendant to continue his medical leave, but by then had exhausted all of his FMLA entitlement. Critically, the company denied his request and terminated his employment, but invited him to reapply when he was medically cleared to work. About three months later, the plaintiff’s Dr. lifted all restrictions and cleared him to resume work, but the plaintiff did not reapply. Instead, he sued the defendant alleging discrimination for violating the ADA because the defendant did not provide the accommodation of a three month leave of absence beyond his FMLA leave. Plaintiff lost at the lower court level and appealed.

II

Court’s Reasoning

  1. The term, “reasonable accommodation” is expressly limited to those measures enabling the employee to work. An employee needing long-term medical leave cannot work and therefore, is not a qualified individual under the ADA.
  2. A multi-month leave of absence is beyond the scope of reasonable accommodation under the ADA.
  3. Under 42 U.S.C. §12111(9), a reasonable accommodation may include a variety of things. The statute’s use of the phrase “may include,” means that the concept of reasonable accommodation is flexible and the listed examples are illustrative.
  4. A reasonable accommodation is one allowing the employee with a disability to perform the essential functions of the employment position. If the proposed accommodation does not make it possible for the employee to perform a job, then the employee is not a qualified individual as defined by the ADA.
  5. Putting together the definitions of qualified and reasonable accommodation, leads to the conclusion that a long-term leave of absence is not a reasonable accommodation.
  6. Intermittent leave, a couple of days or even a couple of weeks, may, in appropriate circumstances, be similar to a part-time or modified work schedule, which are two of the examples listed in the statute. However, a medical leave spanning multiple months does not permit the employee to perform the essential functions of his job. In fact, the inability to work for multiple months removes a person from the class protected by the ADA, i.e. they are no longer qualified.
  7. Long-term medical leave is the domain of the FMLA, which entitles employee to a total of 12 weeks of leave during any 12 month period for taking care of an individual or family member’s serious health condition, but the ADA applies only to those who can do the essential functions of the job.
  8. The EEOC’s view that a long-term medical leave of absence qualifies as a reasonable accommodation where that leave: is of a definite time-limited duration; requested in advance; and likely to enable the employee to perform the position’s essential job functions when he returns simply doesn’t wash. It doesn’t wash because such an interpretation equates reasonable accommodation with effective accommodation; an approach rejected by the United States Supreme Court in US Airways, Inc. v. Barnett.
  9. Adopting the EEOC approach transforms the ADA into a medical leave statute by in effect becoming an open-ended extension of FMLA. That is not a tenable approach to the term reasonable accommodation.
  10. The plaintiff has the burden to prove that there were in fact vacant positions available at the time of his termination.
  11. An employer is not required to create a new job or strip a current job of its principal duties to accommodate an employee with a disability.
  12. The defendant did not have a policy of providing light-duty positions for employees suffering injuries on the job. While they did have an ad hoc system for temporary light duty assignments, the granting of such assignments were infrequent and generally lasted no longer than two days.

III

Takeaways:

  1. The critical fact here is that the plaintiff was invited to reapply when well but did not do so.
  2. If I am an employer, I would go very slow with respect to adopting this case as policy. It may or may not be the law once the Supreme Court gets a hold of it, but it is certainly bad preventive law. As a matter of preventive law, the interactive process is key. I also would evaluate the situation utilizing the Samper decision, which we discussed here, in order to see whether attendance was an essential function of the job.
  3. On the plaintiff’s side, early communication of leave needs to happen, and engaging in the interactive process is much preferred over waiting until the last possible minute to inform the employer of your leave needs.
  4. Under this decision, the plaintiff has the burden of proof to show that there were vacant positions available at the time of his termination. This also gets into preventive law with respect to how to deal with the mandatory reassignment issue. Interestingly enough, the Seventh Circuit has a very strong policy for mandatory reassignment, which we discussed here. So, especially in the Seventh Circuit, while a multiple leave of absence means that the person with a disability is no longer qualified for that position, you can’t forget about the Seventh Circuit’s view on mandatory reassignment.
  5. This is a specific rejection of the EEOC approach with respect to extending FMLA leave as a reasonable accommodation for a disability. Therefore, one wonders whether the EEOC will not seek an en banc rehearing. One also wonders if that fails if the EEOC would not seek an appeal to the United States Supreme Court. Regarding an appeal to the United States Supreme Court, the EEOC has not faired terribly well there, and the United States Supreme Court in employment matters has not been particularly friendly to persons with disabilities. So, one also wonders whether the EEOC, especially if a rehearing en banc is not successful, might not let the whole thing drop and focus on convincing other Circuits of their point of view.
  6. If you as an employer are going to adopt an inflexible FMLA leave policy, termination after 12 weeks of leave, then you want to be sure that prior to termination you evaluate whether that individual can perform the essential functions of the job with or without reasonable accommodations per the ADA even though the FMLA requires no reasonable accommodation analysis. You also want to make sure that you have fully evaluated any mandatory reassignment obligations existing in your Circuit before terminating.
  7. Inflexible leave policy is just bad preventive law.