In looking back over my blog entries, all 274 of them to date, I have never really talked about the private club defense. I did allude to it here when I was talking about fraternities. Today’s case,  Lobel v. Woodland Golf Club of Auburndale , squarely addresses that issue. As is usual, the blog entry is divided into categories: facts; court’s reasoning; and takeaways. The reader is free to read any or all of the categories.

I

Facts:

Plaintiff a retired broadcaster with significant mobility impairments and a golf fanatic was invited to play a round of golf at the Woodland Golf Club of Auburndale by a club member. Plaintiff when golfing uses a Solorider. He tried to negotiate the use of the Solorider before he would play golf at the club but the negotiations failed. He subsequently sued alleging violations of title III of the ADA. The golf club defended on the ground that it was a private club and not covered by the ADA at all.

II

Court’s Reasoning

  1. 42 U.S.C. §12187 says that title III of the ADA does not apply to private clubs or establishments exempt from coverage under title II of the Civil Rights Act of 1964 or to religious organizations or entities controlled by religious organizations, including places of worship.
  2. Defending on the basis of being a private club is an affirmative defense.
  3. The court relying on another case from the Eastern District of Pennsylvania said that determining whether a private club exists involves looking at eight factors and they are: 1) the genuine selectivity of the group in the admission of its members; 2) the membership’s control over the operations of the establishment; 3) the history of the organization; 4) the use of the facility by nonmembers; 5) the purpose of the club’s existence; 6) whether the club advertises for members; 7) whether the club is for profit or nonprofit; and 8) the formalities observed by the club, such as bylaws, meeting, membership cards, etc.
  4. The most important factor in ascertaining private club status is the genuine selectivity of the group in the admission of its members. The characteristics reflecting a genuine selectivity include: the formality of the club’s admission procedure; the standards or criteria for admission; the membership’s control over the selection of new members; the numerical limits on club membership; the substantiality of the membership fee; and the extent to which applicants have been denied admission.
  5. The procedures of Woodland are such that they decide which members of the public are able to access an application for membership. Such a limitation on who gets to apply is a hallmark of selectivity.
  6. Applicants to the golf club follow a set procedure in order to be considered for membership. They have to fill out an application, provide letters of recommendation from current members, and attend at least one interview with a current member.
  7. In the initial application, a prospective member must detail his or her educational and employment history, describe his or her involvement in social and civic activities, and provide three written statements and two letters of recommendations from current members describing why the applicant would be a positive addition to the club and is “strong qualified,” for membership. Such a level of inquiry into the background and character of applicants suggest formality and selectivity.
  8. There is also a required interview, which may involve a round of golf, and that weighs in favor of a finding of selectivity as well.
  9. The club’s existing members exercise control over the selection of new members. After submitting the initial application, obtaining sponsorship, and completing interviews, the Woodland board must then vote to approve any application for membership. Requiring the board to vote to approve or deny all membership applications means the club’s members ultimately have control over the admission of new members.
  10. The club limits the number of golf members and that weighs in favor of a finding of selectivity.
  11. Members must pay a substantial admission fee once admitted. Upon admission, a new member has to pay a nonrefundable $55,000 initiation fee. After that, a family of four must pay approximately $14,000 per year in dues, assessment, and food minimums. Such substantial fees weigh heavily in favor of a selectivity finding.
  12. The club rarely rejects applicant for membership and that cuts against a genuinely selective membership process. However, this factor by itself does not outweigh the other factors. The need for member sponsors, the application process, and the very considerable initiation fee imposes a significant level of self-selection so that few individuals making it through the admission procedure are ultimately denied.
  13. Control of an establishment’s operation by members is another factor that weighs in favor of private club status. Factors indicating sufficient membership control include: members having an ownership stake in the club’s property; members voting on club business; membership control over the admission of new members; and membership control over revenue decisions.
  14. The club has a category of membership called senior resident or honorary life membership. People in that category have an ownership stake in the club’s property and hold proprietary interests in the club and its assets. The senior resident and honorary life members are elected from among all the members of the club. The senior resident and honorary life members vote to elect the club’s officers and directors and also vote on such operational issues as proposed amendments to governing documents, proposed increases in dues or assessment, and they also are responsible for approving unusual expenditures or expenditures of more than $75,000.
  15. While the club has a general manager, a club does not relinquish control over the facility’s operation solely by employing a general manager who is intimately involved with the club’s day-to-day activities and who makes day-to-day management decisions.
  16. Establishments that advertise and solicit members do not fall within the private club exemption. In particular, any advertising designed to increase patronage of the club and the use of their facilities cuts against private club status. So, when considering this factor, the critical question is whether and, if so, to what extent and in what manner an establishment publicly advertises to solicit members or to promote the use of the facilities or services by the general public. In this situation, all Woodland does is provide a membership tab for prospective members to request additional information regarding the club’s membership procedures. Providing such a tab is not the type of expansive effort to draw residents of the local community into the club’s membership. Further, there was no evidence presented that the club actively uses its website or Facebook page to solicit or recruit new members. Therefore, the club cannot be said to be advertising and soliciting members in a way that compromises its private club status.
  17. Even if this online presence does assist in growing membership, selectively attempting to increase membership does not rise to the level advertising and marketing required to weigh against the club being a private club. That is, the medium used does not change the basic requirement that there must be an active effort to solicit new members from the general public in order for advertising to compromise private club status.
  18. A public Facebook page, without more, is not indicative of advertising designed to increase patronage of the club’s facilities because a public website and Facebook page requires less administrative upkeep and allows less technologically sophisticated members to view the online content without having to use a login portal or a request to be added to a private online group.
  19. Regular or indiscriminate use of an establishment’s facilities by nonmembers contradicts private status. Woodland’s guest policy does not permit unfettered use of facility by guests and therefore, weighs in favor of a finding of private club status.
  20. Outside of special events, such as weddings or golf tournament, non-members have no access to the club unless invited and accompanied by a member.
  21. The club’s guest policy requires members to pay a guest fee, cover all charges incurred by the guest, and accompany the guest during his or her time at the club. Courts regularly find that clubs where members have to pay a guest fee and accompany guests within the club are private and exempt from the ADA.
  22. The guest policy of the club also limits how many guests can play golf at any given time, the times and days when guests are allowed to golf, and how often any one guest can golf at the club in a month. Such limits are also indicative of private club status.
  23. While it is true, that the club permits guests, non-members and/or the general public full access to the club during functions, such as weddings and golf tournaments (29 golf events in 2014 and 2015 were open to non-members), occasional use of the club facility by non-members did not convert the club into a place of public accommodation under the ADA. The majority of these events occurred when the course would otherwise normally be closed. All but six of those events were held on a Monday, or a Tuesday following a Monday holiday, when the golf course is usually closed to members. No event including non-members was held on a weekend when the golf courses are at peak use. The six occasions in two years where the golf course was available to non-members during normal operating hours are not sufficient to transform the club into a place of public accommodation.
  24. The club’s policy of allowing members themselves to host events open to non-members, such as weddings and receptions, does not preclude a finding of private club status.
  25. The club’s banquet facilities and golf course are not available for rent to the general public on a first-come, first-served basis. Instead, the general manager has discretion over whether to allow events to be held on the premises.

III

Takeaways:

  1. This case is a tour de force for when a private club exemption applies to the ADA. It appears to be an unpublished case, but that should not stop counsel from using this case as a matter of preventive law. Also, the eight factor test used by the court comes from a published case, United States v. Lansdowne Swim Club, 713 F. Supp. 785 (E.D. Pa. 1989).
  2. The private club exemption is an affirmative defense and must be pleaded, though there may be some slack, which may have happened in this case, as to whether it has been pleaded sufficiently. As a matter of good practice, I would not rely on the court to give any slack and explicitly plead the private club exemption, if applicable.
  3. It is important for a private club to stick to its formal processes.
  4. If a club is serious about keeping the private club exemption, two areas it definitely wants to look at are the use of the facility by nonmembers and how it goes about advertising for members. Both of those areas could quickly turn a private club into a place of public accommodation.
  5. The court by its tone in this case seems to be strongly suggesting that the private club exemption is a narrow one and the application of the eight factors are subject to a rigorous analysis. Accordingly, it isn’t clear to me, in fact it would seem unlikely, whether fraternities would be able to survive the eight factor test and be considered exempt from the ADA as a private club. Of course, this is a District Court decision from Massachusetts and not binding upon the rest of the country. That said, as mentioned above, it is a great tool for preventive law for any attorney advising organizations that might be private clubs.
  6. The private club exemption talks about being controlled by religious organizations. That can be a huge exemption. For example, many healthcare facilities are controlled by religious organizations. Fortunately, for persons with disabilities, if it is a healthcare facility, it is undoubtedly subject to §504 of the Rehabilitation Act, the law the ADA is based upon, as a healthcare facility likely takes federal funds. That said, the Rehabilitation Act and the ADA are not always exactly the same. Also, if a healthcare facility is not involved and it is a religious controlled entity, you do want to be cognizant that this exemption might apply to such an entity.
  7. Since the private club exemption relates back to the civil rights act, this is also an excellent case for figuring out a private club in the context of the Civil Rights Act in a case not involving the ADA.

The case of the week asks the question why a person with gender dysphoria, would bother going with the ADA if he or she could go with title IX of the Civil Rights Act or the equal protection clause of the 14th amendment instead. Recently, the Seventh Circuit Court of Appeals held here that sexual orientation discrimination was sex discrimination. If sexual orientation discrimination is sex discrimination, then it would certainly seem to me that discrimination based on gender dysphoria would also be sex discrimination. The Seventh Circuit in Whitaker v. Kenosha Unified School District No. 1 Board of Education said that is indeed the case. With respect to sexual orientation and gender dysphoria cases, I have always wondered why a plaintiff would seek protection under the ADA. In other words, disability has plenty of stigma associated with it, why would a person with gender dysphoria choose to be labeled as a person with a disability when that person would be facing plenty of stigmas as it is? Their is also the fact that the ADA by statute, 42 U.S.C. 12211,  excludes gender dysphoria from coverage unless it results from a physical impairment. Perhaps, it is because until recently adverse action based upon sexual orientation or gender dysphoria was not considered to be sex discrimination, and the ADA has a reasonable accommodation requirement unless it is a regarded as case. So, while this case is not an ADA case per se, it is related to the ADA because it offers an alternative approach to using the ADA with respect to a person who has gender dysphoria. 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 categories.

I

Facts

Plaintiff in eighth grade came out to his parents as transgender and a boy. When he entered high school as a freshman, he began to openly identify as a boy, cut his hair, wear more masculine clothing, and began to use the name Ashton and male pronouns. In the fall of his sophomore year, he told his teachers and classmates that he is a boy and asked them to refer to him that way and to use male pronouns. While publicly transitioning, he began to see a therapist who diagnosed him with gender dysphoria and subsequently began hormone replacement therapy. He also changed his name to Ashton Walker legally. In the spring of his sophomore year, plaintiff and his mother met with a guidance counselor on several occasions requesting that he be permitted to use the boys restroom at school and at school sponsored events. Plaintiff was later notified that the administration decided he could only use the girls restroom or a gender-neutral restroom in the school’s main office. The gender-neutral restroom was quite a distance from his classrooms. Since plaintiff was the only student permitted to use the gender-neutral bathroom in the school’s office, he feared using it would draw further attention to his transition and status as a transgender student. He also feared he might be disciplined if he tried to use the boys bathroom and that such discipline would hurt his chances of getting into college. For those reasons, he restricted his water intake and attempted to avoid using any restroom at school for the rest of the school year. However, doing that exacerbated his vasovagal syncope (to avoid triggering the condition, plaintiff’s physician advised him to drink 6 to 7 bottles of water and a bottle of Gatorade daily), which meant that he suffered from fainting and dizziness, stress-related migraines, depression, and anxiety. He even began to contemplate suicide.

In his junior year, for the first six months, he used the boys restroom at school without incident. However in February 2016, a teacher caught him washing his hands at the sink in the boys restroom and reported that to the school’s administration. That led to the guidance counselor reiterating the school’s stance that he could only use the girls restrooms or the gender-neutral bathroom in the school’s main office. A meeting with the assistant principal resulted in the same decision with the assistant principal saying that she would need unspecified legal or medical documentation in order to change the decision. When the plaintiff submitted the letters, which identified him as a transgender boy and recommended he be allowed to use male designated facilities, those letters were deemed not to be sufficient. Rather, the school insisted that the plaintiff would have to have a complete surgical transition, which is prohibited for someone under 18 years of age, in order to be permitted to access the boys restroom. Despite all this, plaintiff continued to use the boys restroom for the remainder of his junior year, but due to the stress of doing that, he experienced feelings of anxiousness and depression and once more began to contemplate suicide. The school then instructed its security guard to monitor his bathroom use to ensure that he used the proper facilities. He was also removed from class on several occasions to discuss is violations of the school’s policies. His classmates and teachers often asked him about these meetings and why administrators were removing him from class. In April 2016, the school doubled down by giving him the option of using two single-user gender-neutral bathrooms on the opposite side of the campus from where the classes were held and providing only one student, the plaintiff, with the key. Since the restrooms were on the other side of the campus and using them caused him to miss class time and further stigmatize him, he once again avoided using the bathroom at school, which only aggravated his pre-existing conditions. As if this wasn’t enough, plaintiff also alleged that the school district initially prohibited him from running for prom King, referred to him with female pronouns, and required him to room with female students or alone on school sponsored trips.

In July of 2016, he filed a complaint alleging violations of title IX and the equal protection clause of the 14th amendment. He prevailed in District Court and the school district appealed.

II

Court’s Reasoning

  1. Not all transgender persons opt to complete a surgical transition since such a procedure entails significant risks and costs.
  2. School district never gave an explanation as to why a surgical transition was necessary.
  3. Verbal statements about the surgical transition policy were never reduced to writing.
  4. School district never provided any written documentation detailing when the policy went into effect, what that policy was, or how one could change his status under that policy.
  5. To succeed on a preliminary injunction a person seeking that injunction has to show: 1) he will suffer irreparable harm absent preliminary injunctive relief during the pendency of the action; 2) inadequate remedies at law exists; and 3) he has a reasonable likelihood of success on the merits. If all that can be shown, then the court engages in a balancing analysis in order to determine whether the balance of harms favors the moving party or the party arguing against the injunction.
  6. Plaintiff presented expert opinion supporting his assertion that he would suffer irreparable harm absent preliminary relief. The expert testified that the use of the boys restrooms was an integral part to plaintiff’s transition and emotional well-being. Experts also testified that his suicidal thoughts and depression worsen each time he had to meet with school officials regarding his bathroom usage and that the school district’s actions were directly causing significant psychological distress and placing the plaintiff at risk for lifelong diminished well-being and life functioning.
  7. The school district exacerbated the harm by dismissing him to a separate bathroom where he was the only student who had access thereby further stigmatizing him. These bathrooms gave him the unenviable choice of using a bathroom that would further stigmatize him and cause him to miss class time or to avoid using the bathroom altogether at the expense of his health.
  8. The school district’s bathroom policy actually invited more scrutiny and attention from his peers.
  9. Plaintiff did not delay seeking injunctive relief. The minute he was unable to use the boys bathroom, which he did for months without incident, he filed an administrative complaint, which he withdrew over the summer before his senior year so that he could pursue injunctive relief in time for his senior year.
  10. The harm alleged by the plaintiff, possible suicide, is prospective in nature and cannot be compensated by money damages. For that matter, there is an inadequate legal remedy for the preventable lifelong diminished well-being and life functioning.
  11. When it comes to preliminary injunctive relief, likelihood of success only mean that a plaintiff has to show that his chances to succeed on the claims are better than negligible, a low threshold.
  12. Neither the Title IX statute nor its regulations define the term, “sex.” For that matter, neither defines the term, “biological.”.
  13. Sex stereotyping is sex discrimination. See also this blog entry. Further, by definition, a transgender individual does not conform to the sex based stereotypes of the sex that he or she was assigned at birth. Accordingly, a policy requiring an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender nonconformance in violation of title IX.
  14. The school district’s policy also subjects the plaintiff to different rules, sanctions, and treatment than non-transgender students, which is also in violation of title IX.
  15. Providing a gender-neutral alternative does not relieve the school district from liability as it is the policy itself that violates title IX.
  16. The school district continued to treat the plaintiff differently when it provided him with access to the gender-neutral bathrooms because the plaintiff was the only student given such access.
  17. Plaintiff’s condition was not a unilateral declaration but rather something that was medically diagnosed and documented.
  18. Since gender dysphoria involves people acting upon a stereotype, which is sex discrimination, the equal protection class that such an individual falls into is the sex based class. Sex-based discrimination is subject to heightened scrutiny as sex frequently bears no relation to the ability to perform or contribute to society. Therefore, the burden is on the state to demonstrate that its justification for the policy is exceedingly persuasive. That means showing how the classification serves important governmental objectives and the discriminatory means employed are substantially related to the achievement of those objectives. Finally, that justification cannot be based upon overbroad generalizations about sex.
  19. School district’s policy cannot be stated without referencing sex and is inherently based upon a sex classification subject to heightened review under the equal protection clause.
  20. The argument that the policy is required to protect the privacy rights of each and every student doesn’t wash because the plaintiff used the boys bathroom while at school and for school sponsored events without incident or complaint from another student for nearly 6 months. Further, neither party offered any evidence that the school district received any complaints from other students. Accordingly, the school district’s policy doesn’t do anything to protect the privacy rights of individual students with respect to other students and it ignores how the plaintiff uses the bathroom, which it by entering the stall and closing the door.
  21. A transgender student’s presence in the restroom is no more of a risk to other students’ privacy rights than the presence of an overly curious student of the same biological sex deciding to sneak glances at his or her classmates while using the bathroom.
  22. Common sense said that the communal restroom is a place where individuals act in a discreet manner to protect their privacy and those who have true privacy concerns utilize the stall.
  23. It isn’t clear that the sex marker on a birth certificate can even be used as a true proxy for an individual’s biological sex because that marker does not take into account an individual’s chromosomal makeup.
  24. Other states do not require an individual to have a surgical reassignment before being able to change their birth certificate. Accordingly, under the full faith and credit clause, Kenosha would have to grant a transgender student who has changed his birth certificate in another state the right to use the restroom of his or her identity regardless of the anatomy he or she retains.
  25. The school district doesn’t even require that each new student provide a birth certificate as a passport is also an acceptable alternative.
  26. School district has not demonstrated that it suffers any harm from having to comply with the preliminary injunction order nor did it establish that the public as a whole suffers any harm from such compliance.
  27. Administrators from 21 states and the District of Columbia filed an amicus brief where they explained that they have experience implementing inclusive bathroom policies in their respective schools and in dealing with the same privacy concerns when it comes to transgender students. The administrators uniformly agreed that the frequently raised hypothetical concerns about a transgender student utilizing a bathroom consistent with his or her gender identity have simply not materialized. To the contrary, their experience is that all student needs are best served when students are treated equally. Finally, the same administrators found from their experience that allowing transgender students to use facilities aligning with their gender identity actually reinforces the concept of separate facility for boys and girls.

III

Takeaways

  1. Over the years, I have read many a case talking about preliminary injunctions. This is the first one I can recall saying that the standard for showing a likelihood of success on the merits is one of simply better than negligible. So, when it comes to preliminary injunctions, you might want to check how your own Circuit handles “likelihood of success.”
  2. This case finds title IX protection and equal protection clause protection based upon gender dysphoria being sexual stereotyping. As the court notes, if adverse action is taken against a person with gender dysphoria, it is by definition sex stereotyping. That means taking adverse action against a person with gender dysphoria automatically activates title IX (title IX only applies to educational institution), and, by this court anyway, activates heightened equal protection analysis. I also see no reason why the title IX analysis could not apply to title VII as well.
  3. As a matter of preventive law, where a school has a transgender student, the school is going to be much better off treating that student in a humane way and treating that student according to their identity rather than fighting it the way the defendant did here. One wonders about the humanity and legal expense associated with the the school district’s approach.
  4. After this case, I am struggling to understand why a person with gender dysphoria would bother with the ADA at all. After all, who wants to say that they have a disability if it isn’t necessary to do so?
  5. The Seventh Circuit has now gone on record that sexual orientation discrimination is sex discrimination and gender dysphoria discrimination, which any adverse action would necessarily be based upon stereotyping, is also sex discrimination. I do think that both of these decisions will prove very influential across the country. Of course, it will ultimately be up to the Supreme Court to decide. The Supreme Court decision may very well depend upon whether Justice Kennedy is still on the court at the time the case reaches the Supreme Court.
  6. In some ways, gender dysphoria is an easier case with respect to title IX and the equal protection clause than being lesbian or gay is. That is because adverse action in the gender dysphoria situation is automatically sexual stereotyping, which the United States Supreme Court has said for years is sex discrimination.
  7. Have written policies to deal with these situations.

Here, in Decatur, Georgia, and for that matter in the Atlanta metropolitan area generally, kids start school very early and end very early. In Decatur’s case, they start school the first Monday in August and end right before Memorial Day. So, next week my daughter starts summer vacation. She is in for a pretty busy summer, lots of fun camps and her bat mitzvah. So, I thought I would get ahead of next week, which she has off, and get a blog entry up to cover next week.

Today’s blog entry talks about how much notice from an employee is necessary for triggering the interactive process. I have previously talked about it in some way in this blog entry. As mentioned in that blog entry, preventive law is an excellent way to go about it because getting a handle on the specific notice required is very difficult to do. As usual, the blog entry is divided into categories: Valdivia v. Township High School District 214; Ruggiero v. Mount Nittany Medical Center; and takeaways. The reader is free to focus on any or all of the sections.

 

I

Valdivia v. Township High School District 214

In this case, the plaintiff was subject to a severe pattern of harassment that resulted in her behavior changing and she was forced to resign. She brought suit under title VII as well as the FMLA claiming that her employer should have known she was dealing with a serious health condition because of her behavior changes, and therefore, the defendant interfered with her FMLA rights by failing to provide her with the notice that she had a right to take job protected leave under the FMLA. In agreeing with the plaintiff, Magistrate Judge Sidney Schenkier of the Northern District of Illinois, Eastern Division, held the following:

  1. Where an employee is unaware she suffers from a serious medical condition or is unable to communicate her illness to her employer, the notice requirement may be met indirectly. So, clear abnormalities in the employee’s behavior can constitute constructive notice of a serious health condition.
  2. Observable changes in an employee’s condition or uncharacteristic or unusual conduct at work may provide an employer with adequate notice of a serious medical condition and eliminate the need for an express request for medical leave.
  3. Plaintiff alleged that in July 2016, one month after transferring due to harassment at another school, she became extremely distraught and began crying regularly and uncontrollably at work. She cried uncontrollably multiple times to her supervisor who had known her since 2012. She also told her supervisor that she was overwhelmed, afraid, not sleeping or eating, and unsure if she could continue to work. Further, she also cried uncontrollably to two other employees at the high school telling them she was unsure whether she could continue to work for the defendant. The response of her supervisor was to tell her to decide whether or not to resign. After she resigned, she was hospitalized for four days and diagnosed with depression, anxiety disorder, panic disorder, and insomnia. Accordingly, plaintiff plausibly alleged the defendant was on notice that she may have been suffering from a serious health condition at the time she was asked to decide whether to resign, particularly since the supervisor had known the plaintiff for several years and would/should have realized that her behavior was a dramatic departure from her normal behavior. Regardless of the prior relationship, the behavior of the plaintiff was unusual for any employee.
  4. Relying on a Seventh Circuit case involving depression, The fact that plaintiff did not know of her medical condition at the time of her resignation is not fatal to her FMLA claim. A plaintiff can be excused from giving direct notice where her medical condition prevents her from communicating the nature of her illness.

II

Ruggiero v. Mount Nittany Medical Center

In this case, the plaintiff suffered from both anxiety and eosinophilic esophagitis. On April 22, 2015, the defendant sent a memo to all clinical employees stating that it was instituting a new requirement that all clinical employees had to obtain a tetanus, diphtheria, and pertussis vaccine. When plaintiff tried to remove herself from that requirement through doctors notes and communication with her employer, the employer responded by asking her whether her condition was such that she had one of the conditions making the vaccine medically contraindicated. When that information was not forthcoming, plaintiff was terminated.  In granting the defendant’s motion to dismiss for failure to state a claim, Judge Brann of the Middle District of Pennsylvania reasoned as follows:

 

  1. Just because a plaintiff conveys a healthcare professional’s initial findings of a medical impairment, that does not support an inference that the defendant was aware of a disability.
  2. Simply informing the employer of a particular condition, is not the same thing as providing to the employer knowledge that the employee is substantially limited in some major life activity.
  3. Vague and conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its obligations under the ADA.
  4. It is up to the employee to show that the employer knew of the employee’s substantial physical or mental limitations resulting from the diagnosed impairments.
  5. For purposes of proving ADA discrimination, a distinction must be made between the employer’s knowledge of an employee’s disability versus an employer’s knowledge of any limitations experienced by the employee as a result of that disability. This distinction is critical because the ADA requires employers to reasonably accommodate limitations, not disabilities.
  6. The determination of whether an individual has a disability is not necessarily based upon the name or diagnosis of the impairment the person has, but rather on the effect that impairment has on the life of the individual.
  7. The hospital had good reasons, based upon a large body of medical evidence, for requiring the vaccination of all healthcare personnel.

After deciding that the employer did not have the requisite notice, Judge Brann went on to talk about how the employer still wins even if he were to make the assumption that the employer was on notice as to both her disability and the need for accommodations because the employer acted in good faith in attempting to accommodate plaintiff despite a lack of knowledge of her mental and physical limitations. In reaching that conclusion, he reasoned as follows:

  1. Although the ADA does not explicitly refer to an interactive process, the Third Circuit has endorsed that concept as a means of furthering the ADA’s purposes because the interactive process allows the employee to consider accommodations he or she may not otherwise be aware of while simultaneously allowing the employer to better understand the potential range of jobs the employee can do.
  2. Making out a prima facie case for a breakdown in the interactive process under the ADA involves showing: 1) the employer knew about the employee’s disability; 2) the employee requested accommodations or assistance for his or her disability; 3) the employer did not make a good faith effort to assist the employee in seeking accommodation; and 4) the employee could have been reasonably accommodated but for the employer’s lack of good faith.
  3. In a footnote, the court noted that a claim brought under failure to accommodate does not require any evidence or inference of intentional discrimination. Therefore, McDonnell-Douglas (see this blog entry), is not used to evaluate failure to accommodate claims.
  4. All that is required when it comes to the interactive process is that the employers make a good-faith effort to seek accommodations.
  5. The facts show that the employer was willing to exempt the plaintiff from the vaccination requirement if she had provided evidence her alleged disability precluded her from obtaining the vaccine due to the medical contraindications indicated by the manufacturer. Had she furnished such evidence, the employer would have made an exception to the vaccination requirement.
  6. The law does not mandate an employer or labor organization accommodate what amounts to a purely personal preference.
  7. In a footnote, the court noted that the letter from the plaintiff’s doctor explained the plaintiff was worried about the side effects of the vaccine. That letter did not say that either her anxiety or her eosinophilic esophagitis were the medically-based reasons she could not take the vaccine. So, the court said plaintiff failed to appreciate the nature of the restriction required to qualify as a person with a disability under the ADA. After all, most people in the general population would agree that they feel the same discomfort as plaintiff when it comes to vaccines.
  8. The interactive process does not demand that any particular accommodation be made by the employer.
  9. The ADA was not intended to provide a way for a court to establish conditions of a person’s employment.
  10. Congress intended that persons with disabilities have the same opportunities available to them as are available to persons without disabilities.
  11. If it turns out that there is no existing job that the employee can perform with or without reasonable accommodations, then under the ADA, the company cannot be held liable.

III

Takeaways:

  1. Courts for years have struggled with just what is necessary for an employee to do in order to give the employer notice of his or her disability and trigger the interactive process. The decisions are difficult to get a handle on and are a bit all over the place.
  2. Preventive law is critical. An employer is better off erring on the side that they have been put on notice rather than waiting for something more explicit. After all, magic words, as we have discussed here and here, are not necessary to trigger the interactive process.
  3. Valdivia has not been the rule for courts when dealing with whether a person with a disability has presented sufficient information to trigger the interactive process. I also don’t think Valdivia will be persuasive when it comes to future ADA cases because it goes against the weight of previous ADA authority and because Valdivia involves the FMLA and not the ADA. Also, despite the reasoning of the court, plenty of facts exist so that an employer could reasonably be said to have been aware of a serious health condition/disability.
  4. Interactive process cases break down into different ways. There are Circuits where the interactive process is a separate cause of action, but there are also Circuits where the interactive process is not a separate cause of action. If you are faced with such a case, be sure to check the approach your Circuit uses.
  5. Where a job contains a prerequisite, such as a vaccination requirement, it is always helpful on the employer side if you have bona fide reasons backing up the need for that requirement.
  6. Judge Brann raised a really important point when he said that the ADA requires employees to reasonably accommodate limitations and not disabilities. I must confess I hadn’t thought of it that way before, but it makes a great deal of sense. After all, the definition of a disability is a physical or mental impairment that substantially limits one or more of life’s major activities, and both parts have to be true for a disability to exist under the ADA.
  7. When it comes to interactive process cases, remember it is the party that breaks down the interactive process that bears the consequences.
  8. Personal preferences are not obligations imposed by the ADA.
  9. While the amendment to the ADA have made it much easier to be considered a person with a disability, even those amendments go beyond the realm of simple discomfort/simple anxiety associated with various activities.
  10. An employer must be on notice for both the disability and the substantial limitation on a major life activity before the obligation to start the interactive process is triggered.

The big news from last week was the decision from the Eastern District of Pennsylvania holding that gender dysphoria is a protected disability under the ADA. The opinion can be found here. Also, this blog entry specifically references a blog published elsewhere by Christine Duffy, Esq., whom I have known for over 20 years. She is a leading, if not the leading, commentator on the issue of gender dysphoria and the ADA and has written a treatise on the subject. She has also followed gender dysphoria and ADA litigation closely. Christine is the Senior Staff Attorney at Pro Bono Partnership serving Connecticut, New Jersey, and New York. She also has helped set up other pro bono partnership systems in other cities. Prior to that she was the VP of Compliance and Assistant General Counsel/Chief Compliance Officer at Veolia Water North America and before that a partner at what is now known as McElroy, Deutsch, Mulvaney and Carpenter. The guest blog entry she wrote for WorkPlace Prof Law blog on this case can be found here. You definitely want to read that entry to fully understand the my thoughts section of this blog entry.

Turning to the blog entry itself, it is divided into the categories of: facts; court’s reasoning; and my thoughts. The reader is free to read any or all of the sections.

I

Facts

The facts are pretty straightforward. Plaintiff has gender dysphoria. In her complaint she alleged that she continually reported to her superior the need for accommodations and was subject to degrading discriminatory comments on the basis of her gender dysphoria. She requested a female name tag and female uniform and use of the female restroom as accommodations for her gender dysphoria. As a result of making those requests, she was subjected to a pattern of antagonism and then terminated. She brought suit under title VII of the Civil Rights Act of 1964 as well as under the ADA.

II

Court’s Reasoning

  1. 42 U.S.C. §12211 excludes from ADA coverage approximately one dozen conditions, including gender identity disorders.
  2. The ADA can be read to define gender identity disorders narrowly to refer only to the condition of identifying with a different gender and not encompassing gender dysphoria, which goes beyond mere gender identification to include clinically significant stress and other disabling impairments.
  3. Legislative history of the ADA shows Congress discussed §12211 exclusions in two distinct ways. First, it was discussed in terms of sexual preference and whether it should be considered a disability. Second, there was a separate concern that the ADA would protect individuals from discrimination on the basis of a variety of socially unacceptable, often illegal behavior, if such behavior was considered to be the result of a mental illness.
  4. Gender dysphoria more properly belongs in the first category of §12211, non-disabling conditions concerning sexual orientation or identity.
  5. Any exceptions to ADA coverage, such as those listed in §12211, need to be read narrowly in order to permit the ADA to achieve a broad reach.
  6. Congress was careful to distinguish between excluding certain sexual identities from the ADA’s definition of disability while not including disabling conditions that persons of those identities might have.
  7. Considering the two categories, it is fairly possible to interpret the term gender identity disorder narrowly so as to refer to simply the condition of identifying with a different gender while not excluding from ADA coverage disabling conditions that persons who identify with a different gender may have, such as the case with gender dysphoria.
  8. Gender dysphoria goes beyond simple gender identity as it can, as it does in this case, substantially limit the major life activity of interacting with others, reproducing, and social and occupational functioning.
  9. Senator Harkin noted that while homosexuality, what we would call being gay or lesbian today, is not covered by the ADA, that would not prevent a gay or lesbian person from receiving coverage under the statute if that person has a disability. Similarly, the House Judiciary Committee said homosexual or bisexual individuals discriminated against because they have a disability, such as HIV, are protected under the ADA. Further, the House Judiciary Committee specifically rejected amendments excluding gays and lesbians with certain disabilities from ADA coverage.
  10. In order to state a valid ADA retaliation claim, a plaintiff must allege that: 1) she engaged in a protected activity; 2) she experienced an adverse employment action following the protected activity; and 3) there is a causal link between the protected activity and the adverse employment action. Causal connection can be shown by either temporal proximity or a pattern of antagonism coupled with timing. In this case, plaintiff plausibly alleged she engaged in protected activity by reporting the discrimination and requesting an accommodation for her disability. She was then subjected to a pattern of antagonism as a result of that reporting, including defendant’s allegedly intentional and repeated refusal to provide her with the correct name tag, and then terminated. Accordingly, plaintiff’s claim survives.

III

My Thoughts (Reading Christine’s blog entry, as mentioned above, is helpful to understanding this section. Any references to Christine, unless her treatise is mentioned, refer to the blog entry she posted on Workplace Prof Law Blog, linked to above).

  1. For those interested in gender dysphoria and the ADA, I highly recommend Christine’s treatise on the ADA and gender dysphoria, links above. It is really long but it is extremely comprehensive and not that difficult to read.
  2. I don’t see the EEOC under this administration using the ADA as a tool for protecting individuals discriminated against on the basis of their gender dysphoria, though under a different administration it certainly would be a possibility.
  3. I agree with Christine that Judge Leeson moved the gender identity disorder language from one section of §12211 to another. That bothers me because one would think that would be the job of the legislature to do.
  4. I also agree with Christine that it bears noting that the legislative history of the ADA is replete with derogatory comments towards people who are gay/lesbian/transgender/transvestites and that the exceptions contained in the ADA were a political compromise.
  5. If one reads Christine’s treatise, mentioned above, one sees that the medical data since the time the ADA was originally enacted in 1990 has evolved quite a bit so that medical evidence supports the conclusion gender dysphoria is based upon physical impairments, especially if one considers the very broad definition of disability in the ADA as amended. I wonder why Judge Leeson simply did not take this approach. It would have been a lot easier because that approach would stay within the explicit terms of the statute and would not involve rewriting the statute.
  6. I agree with Christine that another way Judge Leeson could have approached it is to say gender dysphoria as contained in the DSM-5 (2013) is not a gender identity disorder and therefore, is not excluded under the ADA. On this, Christine and I differ in that I believe this case can be read that Judge Leeson did precisely this. My problem with this approach is that the DSM in effect at the time the ADA was written, referenced in Christine’s treatise, clearly contemplated disabilities associated with gender identity disorder. Accordingly, if a judge attacks jurisprudence from the perspective of what the word meant at the time the legislation was enacted, then gender dysphoria at the time of the ADA’s original enactment in 1990 would have included coverage of gender identity disorder and therefore, would fall within the exclusion absent a physical condition.
  7. I agree with Christine that Judge Leeson could have simply held other medical conditions associated with a person with gender dysphoria are protected by the ADA. I also agree that Judge Leeson did in fact do this. Christine notes that the problem with this approach is the major life activities that are substantially limited for a person with gender dysphoria are not the result of the gender dysphoria itself but of the costs of dealing with the stigma that goes along with it. That makes sense to me. However, if such is the case, doesn’t that then turn it into a “regarded as,” case? The problem that presents is a person regarded as having a disability does not have any reasonable accommodation protections under the ADA.
  8. Alluded to in Christine’s comments above and covered extensively in her treatise, is that Judge Leeson could have also gone with an equal protection analysis. An equal protection analysis would draw upon the gay rights decisions of the United States Supreme Court to hold that it is unconstitutional to include persons with gender dysphoria from the ADA. The problem I have with that approach is that the Supreme Court in those decisions has noticeably stayed away from classifying gays and lesbian in an equal protection tier and has focused instead on substantive due process or a liberty interest. The other problem with this approach is that persons with disabilities have not been segmented out as of yet with respect to equal protection analysis depending upon their disabilities. Instead, persons with disabilities equal protection tier classification changes depending upon the facts of the case. See this blog entry for example. That said, I can definitely see the argument behind this approach since I discussed how people can fall into the variety of different equal protection tiers in my book when I discussed the 1971 California Supreme Court case of Sail’er Inn, Inc. v. Kirby.
  9. I think there is another approach that Judge Leeson could have taken. That is, why couldn’t he have decided that discrimination based upon gender dysphoria is sex discrimination? After all, the Seventh Circuit decided here that sexual orientation discrimination is sex discrimination. If sexual orientation discrimination is sex discrimination, then discrimination based upon gender dysphoria would also seem to me to be sex discrimination as well.
  10. If I am the defendant, I would move to certify this for appeal per 28 U.S.C. § 1292(b). On appeal, whether it be from this motion to dismiss or at a later time, it is certainly possible for all the reasons discussed here that the plaintiff may still win even if it is on different grounds.

In searching for a blog entry to do this week and striking out with my Lexis alert, I thought it might be interesting to see how Fry v. Napoleon Community Schools, discussed here, was playing out in the lower courts. When I did that, I came across the case of K.G. v. Bluff-Luton Community School District, decided by Judge Mark Bennett of the United States District Court for the Northern District of Iowa. If you ever have an opportunity to go to a CLE where he speaks, you will not be disappointed. He is extremely knowledgeable, funny, and says what is on his mind. As usual, the blog entry is divided into categories: facts; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.

I

Facts

K.G. had an IEP, a functional behavior assessment, and a behavioral intervention plan (BIP). The latter stating that when behaviors escalated students would be removed and furniture would be repositioned to keep him and others safe. K.G. while in the second semester of first grade refused to cooperate when it came time to switch from drawing to writing sentences. The incident rapidly escalated from there. School personnel tried a variety of techniques to de-escalate the situation, all of which failed. At no time were the students in the classroom removed. Eventually, it got to the point where school personnel physically moved K.G. across the carpet to get him away from a desk. When they did that, K.G. said “ow, my back.” He was then taken to the school nurse and his father came to pick him up. His parents took photographs of his back either that evening or the next morning. They also took him to Mercy Medical Center where a medical professional said that the injuries were consistent with inflicted forceful dragging and consistent with partial thickness skin burn from excessive force in dragging the child on a carpeted surface. Also, it was that person’s opinion the injuries were significant and indicative of injuries beyond the normal care and discipline of a seven-year-old child. The parents offered expert opinions that K.G. now suffered from posttraumatic stress disorder and other psychological and behavioral issues as a result of the incident. Subsequently, they enrolled him in a different school district. They also brought proceedings under IDEA but abandoned them to pursue the following claims: violation of the fourth amendment and 14th amendment for excessive use of force; violation of title II of the ADA; violation of §504 of the Rehabilitation Act; common-law general negligence; battery against one of the defendants; and intentional infliction of severe emotional distress against several defendants. The school district defended on the grounds IDEA was not properly exhausted. Plaintiff claimed exhaustion was not required under Fry v. Napoleon Community Schools.

II

Court’s Reasoning

A.  Judge Bennett’s review of Fry

  1. Judge Bennett turned to Justice Kagan’s opinion in Fry. In particular, Judge Bennett noted her admonition that exhaustion was not necessary where the substance of the complaint was something other than the denial of IDEA’s core guarantee of a free appropriate public education.
  2. Judge Bennett notes that Justice Kagan also said that magic words are not the key, rather the substance of the complaint is the critical focus.
  3. Judge Bennett then goes on to note the two hypothetical question that Justice Kagan asks in trying to figure out whether the situation involves a free appropriate public education or something else. In particular, the two situations are: 1) could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that wasn’t a school?; and 2) could an adult at the school, say an employee or a visitor, have pressed essentially the same grievance? If both questions are answered yes, then a free appropriate public education is probably not involved.
  4. Judge Bennett goes on to note Justice Kagan’s reference to a third factor, the history of the proceedings (where the proceedings started). Did the plaintiff start with an IEP process or elsewhere? If the plaintiff started with the IEP process, a presumption is created that the suit is about a free appropriate public education.
  5. Judge Bennett also references the concurring opinion where Justice Thomas and Justice Alito agreed with the majority except for clues section because they believed those clues will have the opposite effect of providing guidance and instead are likely to confuse and lead courts astray. Justice Thomas and Justice Alito believed the hypothetical questions only made sense if one assumes no overlap between the relief available under IDEA and other federal laws. Justice Alito and Justice Thomas were also particularly bothered by the presumption of a free appropriate public education where a person starts with the IDEA process and then switches. Justice Thomas and Justice Alito were also concerned that these clues would turn into bright line tests and that courts would refuse to undertake a careful examination of the substance of the complaint and use the clues instead.

 

  1. Application of Fry to case

 

  1. While the complaint does identify parties in terms of needing or supplying special education services and having a duty to ensure equal access to a public education, those references are not about the denial of a free appropriate public education. Instead, they are allegations giving notice to the defendant of the conditions putting K.G. at risk.
  2. The IEP and the BIP are not the gravamen of the allegations of wrongfulness of the conduct in any of the six claims for relief in the complaint, and Judge Bennett goes through each of them: 1) allegations of force being contrary to his IEP and BIP are an indication of the unreasonableness of the use of force; 2) allegations of wrongfulness of one of the defendants is not that the IEP or the behavioral intervention plan was violated, but instead that the defendant acted with deliberate indifference because of inadequate training and supervision of faculty and staff in the use of force and restraints when seizing a student in special education; 3) the incident and prior incidents created a hostile educational environment in violation of title II of the ADA; 4) the allegations of negligence are all allegations unrelated and beyond the scope of a free appropriate public education; and 5) the common law claims of battery and intentional infliction of emotional distress are based upon allegations of threats or violence and physical injury and their outrageousness regardless of any requirement in the child’s IEP or BIP.
  3. Judge Bennett then turned to Justice Kagan’s clues and said that the first clue came out in favor of the plaintiff in that a person could have brought the same claim for excessive and unreasonable use of force and discrimination if the conduct had occurred at a different public facility rather than the school. The second clue also comes out in favor of the plaintiff as an employee or visitor could have brought the same grievances.
  4. The third factor, where the proceeding started, isn’t so clear as to which side it comes out on. Judge Bennett notes that the plaintiff started with the the IEP process but then abandoned it. He also notes all of the opinions in Fry mention that it is not unusual for parents to start an IEP process only to abandon it later for a variety of reasons. Accordingly, Judge Bennett notes Fry said it was important to consider whether the abandonment of the administrative proceeding was strategic or because of the realization the grievance had something to do with things other than a free appropriate public education. In Judge Bennett’s view, the claims of this case were independent of a free appropriate public education and therefore involved remedies not available under IDEA.
  5. Having decided that exhaustion was not required, Judge Bennett then proceeded to address whether the defendants were entitled to summary judgment on the various claims. In particular, he winds up: denying defendant’s motion for summary judgment on the fourth amendment claim; granting defendant’s motion for summary judgment on the 14th amendment claim based upon the facts and based upon qualified immunity; denying defendant’s motion for summary judgment on the ADA and §504 claims; denying summary judgment on the negligence claims; denying summary judgment on the battery claim; and granting summary judgment on the intentional infliction of emotional distress claim.

III

Takeaways:

  1. Judge Bennett specifically notes this is a very close case and explicitly says that reasonable jurors could go either way.
  2. Judge Bennett went on to say that he recognized that the circumstances of the case were very difficult and that teachers faced increasing challenges in terms of meeting their obligation to foster learning while keeping all students safe. He goes on to say that he does not envy the job of teachers who operate under such difficult circumstances. Nor does he envy the jurors who will try to figure out what the facts show in this case. It struck me that this kind of statement was a bit unusual coming from a judge. At least, it isn’t something I see a lot of when I read opinions.
  3. I agree with Judge Bennett that Justice Kagan’s clues while well-meaning are problematic because of the tendency of this kind of thing coming from the United States Supreme Court to lead to bright line tests and, as noted by Judge Bennett, because it may well offer an easy way out for the court rather than have the court focus on the substance of the complaint in detail.
  4. I also share Judge Bennett’s concerns about the presumption associated with where does the claim start (IEP process or the courts). The points he makes are valid. Also, IDEA is a terribly complex law and a parent often does not realize that overlapping laws with different standards and different remedies exist. If one looks to the substance of the complaint in detail, I am not sure why the presumption is even necessary. Finally, the other problem with the presumption is figuring out who has the burden of proof of overcoming that presumption. That is, is it up to the defendant, along the lines of an affirmative defense, to show that the presumption of starting with IDEA prevails or is it up to the plaintiff to have to rebut that presumption? The whole presumption thing and the clues create a big mess. Again, I know Justice Kagan was just trying to be helpful.
  5. On the plaintiff’s side, where a child has an IEP, Fry puts a huge premium on really understanding how other disability discrimination laws are different and accomplish different things than IDEA. In that situation, the plaintiff’s attorney must use that knowledge to craft the complaint so as to enable the client to evade any exhaustion requirement of IDEA. Of course, Fry is a non-issue if the child has a §504 plan and not an IEP.
  6. I think it is more helpful to think about exhaustion post Fry not in terms of relief but in terms of the substance of the particular law involved and what that law tries to accomplish.

Before moving to Atlanta (as a result of my wife getting a job here), and devoting myself full-time to my practice of understanding the ADA, I taught people how to be paralegals in higher education for 12 years. The last four of which I ran an ABA approved paralegal program and was the ADA instructional coordinator (akin to the in house ADA educator person). During that time in higher education, I always had the understanding the ADA going on as well. When I was teaching people how to be paralegals, one of my chestnuts so to speak was whether an in-house attorney has a cause of action for wrongful discharge. The answer very much depends upon the state. In Illinois, the answer is unequivocally no and that applies with respect to both in-house and outside counsel. The reasoning of both of those opinions is allowing a cause of action for wrongful termination of in-house counsel, really messes up the attorney-client relationship. The Illinois rule is a minority. Instead, most states follow the California approach, which allows wrongful termination causes of action for in-house attorneys under certain circumstances.

I was reminded of all of this when I read a press release saying that the American Dental Association agreed to pay $1.95 million to resolve an EEOC discrimination finding. The press release said the American Dental Association’s former chief legal counsel and the Director of Human Resources were discharged in retaliation for complaining to the Board of Directors about potential violations of federal antidiscrimination laws including: title VII of the Civil Rights Act; ADEA; and the Americans with Disabilities Act. In addition to monetary relief, the American Dental Association agreed to take proactive measures to prevent discrimination and retaliation in the future. They also agreed to conduct training on title VII, the Americans with Disabilities Act, and the ADEA. They also must post a notice of the EEOC finding and conciliation in a place visible to all employees and make all required records available to EEOC for inspection for the duration of the two year agreement. The American Dental Association denied engaging in unlawful conduct but settled so as to prevent future litigation expense. The EEOC stated that human resources professionals and in-house lawyers advising their employers on antidiscrimination laws are engaged in protected activity, and any retaliation against them for doing so is illegal.

Human Resources do have a critical role to play as we discussed in this blog entry. Having been an in-house attorney, I know full well that this is a very tough issue for the in-house attorney to deal with. In Illinois, the only option an attorney has under Illinois common law would be to go to the Board of Directors and hope the Board deals with the situation appropriately. Then, hope no retaliation occurs as a result of reporting the matter to the Board. As seen here, that hope may not be much of a hope at all. The other choice is for the in-house attorney to just go along in order to keep his or her job. The latter as pointed out in Balla and Jacobson is not what the attorney is supposed to do. Even so, attorneys are human and they need a paycheck as well as anybody else. So, where no wrongful discharge cause of action for in-house attorneys exists, the incentive is for the attorney to go along. Here, the in-house attorney was brave indeed and suffered the consequences for doing so. If she had sued for wrongful termination under Illinois law, she would’ve lost. However, the reason this particular settlement is so important is the EEOC says anti-retaliation provisions of federal laws protect the in-house attorney, and the HR Director for that matter, for blowing the whistle on noncompliance with federal laws such as title VII, ADEA or ADA. Further, the EEOC’s view is that compliance efforts of both in-house attorneys and HR Directors are protected activities. Accordingly, where the company retaliates, the company may pay for that dearly. So, even if you are in a State prohibiting a wrongful discharge cause of action for in-house attorneys, if a federal law is involved, the employer may still be dealing with a “wrongful discharge,” cause of action. Finally, HR folks are in a different kettle of fish than in-house attorneys because they do not have an attorney-client relationship, though admittedly what HR professionals are doing in many ways resembles what an attorney does when it comes to compliance with labor and employment laws.

Moral of the Story: If an in-house attorney or HR professional calls out the company for violating federal laws, be very careful about what proceeds after that. Especially so, if the situation is so extreme that the in-house attorney and/or the HR professional believe they have to go to the Board with their concerns. Also, if federal laws are involved, it doesn’t matter if your particular State does not allow for a cause of action for the wrongful discharge of an in-house attorney.

I bet you didn’t know that in some circumstances title II and §504 may contain an exhaustion requirement. The reason I’m guessing you didn’t know is that until I saw this case, Sierra v. School Board of Broward County, 2017 U.S. Dist. LEXIS 62498 (S.D. Fla. April 20, 2017), it hadn’t occurred to me either. This week’s blog entry discusses this question in the entry is divided into the following categories: facts; court’s reasoning; City of Rancho Palos Verdes v. Abrams; application of City of Rancho Palos Verdes v. Abrams; and takeaways. The reader is free to focus on any or all of the categories.

I

Facts

Plaintiff alleged that the school board denied him, a deaf individual, access to their archived video for streaming on demand and live streaming of their school board meetings on the basis of his disability. Plaintiff, like myself, neither understands nor uses sign language. Therefore, he requires the use of auxiliary aids and services, such as closed captioning, in order to participate in and receive the benefit of the school board’s online videos. The school board provides a video streaming service through its online portal so that any person can watch its meetings in real time and listen to and participate in those legislative decision-making activities. However, as a result of plaintiff’s disability, he can’t observe and participate in those meetings because the streaming services do not provide any auxiliary aids or services for people with hearing disabilities who do not use sign language. In particular, the streaming service does not offer closed captioning. Plaintiff had the same problem with the school board’s social networking sites on Facebook and on Twitter. The meetings plaintiff wanted to participate in are also aired later via web streaming and on the district’s internal broadcast system. That same day, the meetings are also broadcast on a tape delay on WBEC-TV at 4 PM. The following morning, the televised broadcast is then archived online and made available for viewing on the school board’s website. The defendant defended on the grounds that the Telecommunications Act mandates that a plaintiff alleging disability discrimination in this situation must first go through the Federal Communications Commission (FCC), before being able to file a claim of disability discrimination under title II of the ADA or under §504 the Rehabilitation Act.

II

Court’s Reasoning

In holding that exhausting internal remedies with the FCC was required before filing suit under title II of the ADA or §504 of the Rehabilitation Act, the court reasoned as follows:

  1. In 1996, Congress passed the Telecommunications Act in an effort to secure better access the video programming for the hearing impaired (it bears noting that in the disability rights community, the more sensitive term would be hard of hearing and not hearing impaired). That legislation directed the FCC to require closed captioning for video programming broadcast on television.
  2. In 2010, Congress enacted the CVAA (21st Century Communications and Video Accessibility Act of 2010), which amended the Telecommunications Act and directed the FCC to modify it regulations so as to impose closed captioning requirement for certain video programming available over the Internet.
  3. Effective April 30, 2012, the FCC implemented new regulations imposing closed captioning requirements on all nonexempt full-length video programming delivered using Internet protocol if the programming is published or exhibited on television in the United States with captions. Further, those regulations set forth provisions talking about how any complaints regarding same need to be filed with the Federal Communications Commission, what needs to be in that complaint, the process that occurs once that complaint is filed, and a statement that the FCC is vested with the exclusive jurisdiction with respect to any such complaints. 47 C.F.R. §79.4.
  4. The CVAA is Congress’s most recent and specific pronouncement regarding the duties of broadcasters to caption their programming.
  5. Mandating that a plaintiff first file his claim with the FCC accomplishes Congress’s goal of allowing the FCC, which has expertise in this area, the opportunity to address the extent to which a broadcaster must provide close captioning.
  6. By enacting the legislation, Congress called upon the FCC’s expertise and vested the FCC with exclusive jurisdiction to address any complaints involving a video programmer’s compliance with the CVAA’s administrative remedy for pursuing any claim under the ADA or §505 (§504 remedies provision), of the Rehabilitation Act.
  7. The existence of an administrative complaint procedure under the CVAA is entirely consistent with a private right of action under the ADA for the same wrong.
  8. All the court is doing is delaying plaintiff’s prosecution of the claims until such time as the plaintiff has exhausted his administrative remedies under the CVAA thereby providing the FTC an opportunity to address those complaints. Once that process is completed, plaintiff is free to refile claims as necessary. In this way, the CVAA’s intended purpose is accomplished while preserving plaintiff’s rights under the ADA and §505 the Rehabilitation Act.

III

City of Rancho Palos Verdes v. Abrams

Whether Sierra holds up is going to come down to how the courts interpret United States Supreme Court case of City of Rancho Palos Verdes v. Abrams. In that case, a person decided to erect all kinds of communication towers on his land and drew considerable grief from the city for doing so. In fact, things got so bad that he filed a §1983 cause of action against the City. It went all the way to the United States Supreme Court. That decision is critical to understanding whether the case we are discussing today will hold up. In particular, the United States Supreme Court said the following in holding that a §1983 action would not fly.

  1. The critical question is whether Congress intended for the remedies in the Telecommunications Act of 1996 to coexist with an alternative remedy in a §1983 action.
  2. Decisions saying that §1983 action are unavailable to remedy violations of federal statutory rights focus on the existence of a more restrictive remedy provided in the violated statute itself (emphasis added).
  3. In all of the cases where the United States Supreme Court has held that §1983 is available for a violation of federal statute, it has emphasized that the statute (emphasis added), at issue did not provide a private judicial remedy or even, in many cases, a private administrative remedy for the rights violated.
  4. Where §1983 remedies were held not to be available, the statute at issue themselves (emphasis added), provided for private judicial remedies thereby evidencing congressional intent to supplant §1983.
  5. The ordinary inference that the remedy provided in the statute is exclusive can be overcome by express or implicit textual indication that the remedy complements rather than supplants §1983.

 

  1. In a concurrence by Justice Breyer and Justice Stevens, they noted the following:

 

  1. The statute’s text, structure, and history all provide convincing evidence that Congress intended the Telecommunications Act of 1996 with respect to the facts before it, operates as a comprehensive and exclusive remedial scheme. The statute’s structure appears fundamentally incompatible with the private remedy offered by §1983.
  2. Since 1871, §1983 has stood as an independent safeguard against the deprivations of federal constitutional and statutory rights.
  3. Only in an exceptional case, involving unusually comprehensive and exclusive statutory scheme, will the Supreme Court be likely to conclude that a given statute impliedly forecloses a §1983 remedy.
  4. While the heavy burden was met in Sierra, there will be many instances where §1983 will be available even though Congress had not explicitly so provided in the text of the statute in question.
  5. The majority opinion incorrectly assumes that legislative history of the statute is totally irrelevant. That assumption is contrary to nearly every case the Supreme Court had decided in this area of the law, all of which surveyed or at least acknowledged, the available legislative history or lack thereof.

 

IV

Application of City of Rancho Palos Verdes v. Abrams

A strong argument can be created that applying City of Rancho Palos Verdes v. Abrams majority and concurring opinions leads to the conclusion that the CVAA does not set up a situation whereby exhaustion of FCC proceedings is required. The reasoning goes as follows:

  1. 47 U.S.C. §151, which establishes the Federal Communications Commission, doesn’t even have within it coverage of persons with disabilities. On the other hand, as we know, the ADA and the Rehabilitation Act are comprehensive schemes designed to redress disability discrimination throughout society and allow for integration of persons with disabilities into all aspects of society.
  2. 47 U.S.C. §152 says that the Act applies to all interstate and foreign communication by wire or radio and all interstate and foreign transmission of energy by radio originating or being received within the United States. This statute was last amended in 1993 just when the Internet was beginning to take off and certainly could not be intended to apply to the Sierra situation.
  3. 47 U.S.C. §613 mandates that the Federal Communications Commission come up with regulations dealing with close captioning and goes into elaborate detail as to the scope of those regulations. 47 U.S.C. §618 is the enforcement provisions. However, nothing in either statute talks about how the FCC has exclusive jurisdiction on such matters. The exclusive jurisdiction language, as far as I can tell after going through the Act, comes from the regulations at 47 C.F.R. §79.4(f) and not from the statute itself.
  4. Since the exclusive jurisdiction language does not come from the statute itself, Chevron deference is not in order.
  5. Since the exclusive jurisdiction language does not come from the statute itself, the CVAA per City of Rancho Palos Verdes does not require that claims under the ADA and §505 be exhausted through the FCC first.

V

Takeaways:

  1. I definitely look for Sierra, or cases decided like it, to go all the way to the United States Supreme Court. The next stop is the 11th Circuit, assuming an appeal. It will be interesting to see if a Circuit Court split develops. Cases like this have not reached the Circuit Court level yet.
  2. A key person on this question, whenever it gets to the United States Supreme Court is going to be Justice Gorsuch. He is on record, as discussed here, as not being a fan of Chevron Also, as discussed in that blog entry, he is extremely literal about statutes. So, if the current makeup of the court stays the same on this particular issue, you may very well get a decision looking like 5-4 or considering the vibe from Fry and Endrew, 6-3 or even 7-2. Of course, this case is a long way from the United States Supreme Court and the makeup of the court may change before then. Keep in mind, plaintiffs with disabilities have fared very well at the United States Supreme Court in nonemployment matters, including prevailing three times this term.
  3. For public entities not desirous of having their meetings streamed with close captioned, if they can get their meetings onto TV and get a court to buy off on Sierra, they can force a plaintiff to go through the FCC administrative process thereby delaying any ADA or Rehabilitation Act enforcement. Of course, that is a separate question from why a public entity would want to take this approach as dealing with the FCC would have to be a very expensive proposition.

It isn’t one of my most popular blog entries, but in my opinion, it is one of my most important. I am referring to the blog entry talking about the ADA as a nondelegable duty, which can be found here216215. On April 24, 2017, the U.S. Court of Appeals for the Ninth Circuit came down with a decision that calls into question whether the Nevada Supreme Court in Rolf Jensen got it right.

The case of the day is City of Los Angeles v. AECOM Services, Inc. 241decided by the United States Court of Appeals for the Ninth Circuit on April 24, 2017. As is usual, the blog entry is divided into categories: facts; court’s reasoning; and takeaways. Of course, the reader is free to concentrate on any or all of the categories.

I

Facts:

Two individuals with disabilities filed suit against the City of Los Angeles alleging that the City’s flyaway facility and service, a bus system providing transportation between Los Angeles International Airport and various locations, failed to meet accessibility standards set forth in title II of the ADA. The City subsequently filed a third-party complaint against AECOM Services and Tutor Perini Corporation. The complaint alleged that pursuant to the provisions of the contract entered into by the City and the company hired to design and construct the facility, that AECOM was obligated to defend, indemnify, and hold harmless the City against all suits, claims, losses, demand, and expenses to the extent that any such claims resulted from the negligent and/or intentional wrongful acts or omissions of AECOM, its subcontractors, officers, agents, servants, or employees. The City further alleged that Tutor, the successor in interest to another company retained by the City to construct the facility, was contractually obligated per the provisions of that contract to defend, indemnify, and hold harmless the City against all costs, liability, damage or expense sustained as a proximate result of the acts or omissions of Tutor or relating to acts or events pertaining to, or arising out of, the contract. The contract between the City and Tutor’s predecessor in interest also required that the contractor when performing its contractual obligations comply with all applicable present and/or future local, state and federal laws, statutes, ordinances, rules, regulation, restrictions and/or orders, including the ADA. It also stated that contractor shall be solely responsible for any and all damage caused, and/or penalties levied, as the result of the contractor’s noncompliance with such statutes, ordinances, rules, etc. The District Court threw out the case on the grounds the ADA preempted the indemnification claims (i.e. nondelegable duty essentially), and the City appealed.

II

Court’s Reasoning

In reversing and remanding the case for further proceedings, the Ninth Circuit reasoned as follows:

  1. In determining whether federal law preempts state law, the first thing to look at is the purpose of Congress.
  2. In all preemption cases, especially where Congress has legislated in a field where the States have traditionally occupied, the assumption is that the historic police powers of the States are not superseded by the federal act unless Congress clearly and manifestly says so.
  3. There are several ways federal law may preempt state legislation, including: 1) Congress stating so in express terms; 2) inferring preemption when federal regulation in a particular field is so pervasive as to make the reasonable inference that Congress left no room for States to supplement it, what is called field preemption. That is, the volume and complexity of federal regulation demonstrates an implicit congressional intent to displace all state laws. For a discussion of field preemption, check out this blog entry218217; 3) implying preemption when state law actually conflicts with federal law, or what is called conflict preemption; and 4) obstacle preemption.
  4. The presumption against preemption exists because respect for the States as independent sovereigns in our federal system leads to the assumption that Congress does not cavalierly preempt state law causes of action.
  5. Neither title II of the ADA nor §504 of the Rehabilitation Act contains a statement of express preemption.
  6. Field preemption doesn’t work because title II of the ADA specifically states that nothing in that chapter is to be construed to invalidate or limit the remedies, rights, and procedures of any State or political subdivision of any States or jurisdictions providing greater or equal protection for the rights of individuals with disabilities than afforded by title II of the ADA. Accordingly, the ADA expressly disavows field preemption of the disability rights field.
  7. Obstacle preemption, which is a subset of conflict preemption, does not apply here either for a host of reasons: the City is not seeking to allocate the full risk of loss to someone else; the City only assigned liability to the defendants to the extent that the defendants own actions gave rise to liability; and the greater concern is for potential contractors to shield themselves from any liability they cause under both States contract law and federal disability regulations if preemption is found to exist.
  8. Though the City is seeking indemnification for a contractor’s wrongdoing, that compensation only constitutes a portion of the City’s total liability under federal disability statutes. In other words, the relief sought may be complete indemnification from the perspective of the contractor’s liability, but it constitutes only partial contribution from the perspective of the City’s liability exposure.
  9. Cities implement policies and procedures as part of their standard operation. Were a court to permit a city to contract away liability to implement policies and procedures complying with federal disability laws and regulations, it would impermissibly be permitting delegation of an entity’s duties under the ADA.
  10. In this case, the City is seeking the redress for specific construction and design failure related to the facility. Cities often have no choice but to contract out designing and construction of public facilities because they do not have the expertise, personnel, or equipment necessary for such projects. Such a delegation is by necessity. Accordingly, an important component in a city doing all that it can to fulfill its duties under title II of the ADA and §504 the Rehabilitation Act is to require as part of its contracts with necessary third parties that the requirements of those statutes be met.
  11. Permitting enforcement of contract claims seeking to hold the contractor liable for duties necessarily delegated to it, does not raise the problem of entirely insulating public entities from ongoing title II of the ADA or §504 of the Rehabilitation Act liability posed by offloading all of the City’s responsibilities under those laws.
  12. If title II of the ADA is viewed as encompassing a public entity’s outputs, that supports the notion that Congress would not have intended to preempt claims for liability arising from tasks that a city does not do, but, in many cases, must instead contract with others to provide the service.
  13. Permitting claims for contribution commensurate with a third party’s wrongdoing does not pose the same obstacle as offloading all of the responsibilities of the ADA onto someone else.
  14. The presumption against preemption applies where a given area is one where the States have historically had the power to regulate, and in this situation, States have historically regulated in the area of civil rights, including the field of discrimination against persons with disabilities.
  15. Obstacle preemption, which applies when a given state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress, doesn’t work here either because nothing in title II of the ADA or §504 the Rehabilitation Act addresses a claim for state law indemnification or contribution claims filed by a public entity against a contractor.
  16. Case law from other Circuits suggesting that congressional omission of a federal cause of action for indemnification is a reason to preempt state law claims, turns the presumption against preemption on its head. The basic premise of the presumption is that absent an affirmative indication to the contrary, a federal regulation does not preempt state law. The failure to provide a federal parallel to a state law cause of action doesn’t rise to that standard.
  17. Certainly, it is a valid concern that a public entity could contract out of title II or §504 compliance with respect to the public entity’s failure to maintain appropriate policies and practices (failure to take action solely within its control). Permitting a shift of liability to a party lacking the power to remedy the violation would frustrate the federal statutes regulatory purposes. For example, the legislative history of the ADA confirms that a landlord has an independent obligation to comply with the ADA that may not be eliminated by contract.
  18. The claims asserted by the City against the defendants in this case do not seek to shift liability for what the public entity can control onto somebody else.
  19. The City’s third-party claims seek only to collect for violations arising out of defendants own negligence or wrongdoing. In other words, the City despite how it styled its claim, is in actuality seeking contribution from the defendants. Allowing such claims does not plausibly pose an obstacle to the intended purpose and effect of either the ADA or the Rehabilitation Act. In fact, a finding of preemption would hamper the statutes regulatory purposes. If there is no preemption, then the most a public entity can be able to do is to expressly contract for compliance and from there, the entity best situated to ensure full compliance may well be the contractor tasked with designing or constructing the public resource. If you preclude contract clauses for contributions, you then reduce a contractor’s incentives to ensure that the applicable statutes, laws, and regulations are complied with.

III

Takeaways:

  1. Is this case really an overrule so to speak of our Mandalay Bay case? I’m not sure it entirely is for reasons that follow below.
  2. The court was very careful to style this as a contribution case rather than an indemnification case. The difference is important because contribution implies shared responsibility while indemnification implies sole responsibility.
  3. This case was a title II case and not a title III case. The difference is important because the range of responsibility for ADA compliance are far greater with respect to title II than they are with respect to title III.
  4. The court did note that responsibilities of landlords cannot be delegated.
  5. As mentioned above, if you are looking for where field preemption does work, check out this blog entry219218.
  6. This case does allow for indemnification where that indemnity is the result of the contractor’s own negligence/screw up.
  7. This case implies that failure of a contractor to understand the applicable ADA obligations necessary for a contractor to carry out their work may also be negligence. See also this blog entry220219.
  8. The critical question is whether the liability exposure from the perspective of the entity contracting out services is indemnification or just partial contribution.
  9. The court says that to permit a city to contract away liability to implement policies and procedures complying with federal disability regulations would impermissibly permit delegation of an entity’s duties under the ADA? Does that mean a public entity cannot contract out HR services or employee benefit services? Maybe. Certainly, means joint and several liability at a minimum.
  10. To my mind, it is a strong argument to say that contractors are often the best situated to ensure full compliance with the designing or constructing of public resources and that if contribution was precluded, a disincentive for complying with the applicable statute, laws, and regulations is created.
  11. The case seems to be strong in terms of its reasoning. With the current makeup of the Supreme Court and the nature of this case, I would think that the Ninth Circuit decision would be affirmed by the Supreme Court by at least a 6-3 majority. Unclear to me whether the Supreme Court would take the case in any event because there may not even be a conflict among the Circuits. For example, the Ninth Circuit went into elaborate detail as to why this case was different from the Fourth Circuit case.

My colleague, Richard Hunt, recently blogged on the issue of website accessibility here and here.  I want to focus and provide another perspective on his blog entry discussing Robles v. Dominos Pizza LLC 2017 U.S. Dist. LEXIS 53133 (C.D. Cal. March 20, 2017), and Gomez v. Bang and Olufsen America, Inc., 2017 U.S. Dist. LEXIS 15457 (S.D. Fla. February 2, 2017). By way of disclosure, when I was a teenager, with my bar mitzvah money, I bought a pair of Bang and Olufsen speakers for my stereo system. Very sweet music indeed.

I

Robles Facts:

The lawsuit filed on September 1, 2016, claimed that: 1) Dominos does not permit a user to complete purchases using screen reading software; 2) its mobile application does not permit the blind to access menus and applications on their mobile phone using voice over software; and 3) that the website and mobile App were not in compliance with WCAG (web content accessibility guidelines), 2.0. Since February 2017, Dominos website and its mobile website have included an accessibility banner directing users accessing the website using a screen reader with the following statement: “if you are using a screen reader and are having a problem using this website, please call 800-254-4031 for assistance.” That number is staffed by a live representative responsible for providing blind or visually impaired individuals with assistance using the company’s websites, although callers may experience delays and be placed on hold. Customers can also directly call their local restaurant to order food, purchase goods, or ask questions. Dominos defended on due process grounds.

II

Robles Reasoning Dismissing the Complaint

  1. The primary jurisdiction doctrine allows the court to stay proceedings or dismiss the complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency.
  2. Title III of the ADA applies to services of a place of public accommodation and not to services in a place of public accommodation.
  3. Limiting the ADA to discrimination in the provision of services occurring on the premises of a public accommodation contradicts the plain language of the statute.
  4. The ADA requires auxiliary aids and services unless a fundamental alteration exists.
  5. DOJ has consistently stated that the ADA’s accessibility requirements apply to websites of private companies.
  6. The notice of proposed rulemaking on website accessibility for title III entities was issued in July of 2010 and keeps getting pushed back.
  7. The lack of regulations means a defendant does not have a reasonable opportunity to know what is prohibited. The government could have solved the vagueness problem without time-consuming and costly litigation by merely clarifying what it believed the obligations are for title III entities with respect to their websites.
  8. The lengthy timeline of DOJ’s inaction leaves in-house counsel and others to correctly read legislative tea leaves as to their compliance obligations.
  9. Plaintiff did not address defendant’s due process claims and therefore conceded the issue.
  10. Plaintiff seeking to impose on all regulated persons and entities a WCAG 2.0 requirement without specifying a particular level of success criteria and without the DOJ offering meaningful guidance on the topic flies in the face of due process.
  11. While Access Board guidelines are to the contrary, no deference is owed because those guidelines have yet to be adopted by the DOJ. Similarly, DOJ’s interpretation in a notice of proposed rulemaking is also unpersuasive.
  12. In other litigation, DOJ has said that until the process of establishing specific technical requirement for a particular technology is complete, title III entities have a degree of flexibility in complying with the general requirements of nondiscrimination and effective communication, though they still have to comply. Accordingly, plaintiff failed to articulate why either the provision of a telephone hotline for the visually impaired or compliance with the technical standard other than WCAG 2.0 would not fall within the range of permissible options afforded under the ADA. Similarly, the auxiliary aids requirement is a flexible standard allowing the place of public accommodation to choose among various alternative so long as it results in effective communication.
  13. Seven years has passed since the DOJ first posed the question to the public about website accessibility and the public has not received a satisfactory answer yet.
  14. A case law search revealed not a single case where a court suggested, much less held, that a title III entity has to comply with a particular WCAG conformance level.
  15. The Attorney General was directed by Congress to promulgate regulations clarifying how places of public accommodations must meet their statutory obligations for providing access to the public under the ADA. Further, that mandate includes formulating implementing regulations and rendering technical assistance explaining the responsibilities of covered individuals and institutions. Those regulations and technical assistance are necessary in order to determine what obligations regulated individuals or institutions have to follow in order to comply with title III of the ADA.
  16. Issue of web accessibility obligations require both expertise and uniformity in administration as shown by the DOJ’s multiyear campaign to issue a final rule on this subject.
  17. The court calls on Congress, the Attorney General, and the Department of Justice to take action setting minimum web accessibility standard for the benefit of persons with disabilities, those subject to title III, and the judiciary.

 III

Robles Takeaways

  1. In the absence of properly promulgated regulations, defendants have a great deal of flexibility in determining how persons with disabilities access their places of business. All the ADA requires with respect to title III, is meaningful access. So, the lack of regulations presents an opportunity for defendants by giving them maximum flexibility with respect to meaningful access determinations for persons with disabilities. It would certainly help if the defendant involved persons with disabilities in the process. It would also help if they engaged in an interactive process with persons with disabilities.
  2. On the plaintiff side, instead of focusing on WCAG accessibility standards, it is probably better to focus on how meaningful access is being denied.
  3. A big difference exists between the DOJ settlements insisting upon WCAG accessibility standards, such as here, v. a court saying that WCAG standards must be followed.
  4. Plaintiffs insisting on a particular standard for web accessibility rather than focusing on meaningful access may very well face dismissal based upon the primary jurisdiction/due process concerns expressed in Robles.
  5. I don’t look for accessibility of website regulations to be coming down anytime soon.
  6. I am not sure why the plaintiff conceded the due process grounds, intentionally or otherwise. Plaintiff could have argued, for example, that title III requires meaningful access. Determining meaningful access necessarily means an interactive process. Accordingly, due process/primary jurisdiction concerns are misplaced. It is true that the interactive process is a title I requirement, but how else can you determine whether meaningful access is occurring for a particular person with a disability absent an interactive process? Also, the interactive process has been extended outside of title I of the ADA. See here for example.

IV

Gomez Facts:

A legally blind plaintiff tried to use the website to browse and research audio equipment. However, the website is not compatible with screen reader software or any other software making the website accessible to visually impaired customers. Defendant defended on the grounds that the website was not a place of public accommodation under title III of the ADA.

 

V

Gomez Reasoning Dismissing the Complaint Without Prejudice

  1. Relying on the 11th Circuit case of Rendon v. Valleycrest Productions, Inc., the ADA’s regulatory reach is limited to physical, concrete places of public accommodation or anything affecting access to or enjoyment of those physical spaces.
  2. A website wholly unconnected to a physical location is generally not a place of public accommodation under the ADA.
  3. If a plaintiff alleges that a website’s inaccessibility impedes the plaintiff’s access to a specific, physical, concrete space, and establishes some nexus between the website and the physical place of public accommodation, then the plaintiff’s ADA claim can survive a motion to dismiss.
  4. Plaintiff failed to allege any facts that the website impeded his own personal enjoyment of the goods and services offered at its retail locations. Generalized grievances are wholly unconnected any harm he actually suffered at the place of public accommodation (the concrete, physical store), and therefore, are insufficient to survive a motion to dismiss.
  5. Based on the allegations of the complaint, it appeared that plaintiff never intended to utilize Bang and Olufsen’s physical retail location, but instead planned to order audio equipment online and have it delivered to his home.
  6. The ADA does not require places of public accommodation to create full service websites for persons with disabilities.
  7. The ADA does not require a place of public accommodation to have a website at all. Rather, all the ADA requires is that if a retailer chooses it to have a website, the website cannot impede a person with a disability’s full use and enjoyment of the brick and mortar store.
  8. In a footnote, the court said that it recognized that the Internet is an integral part of modern society and Congress is free to amend the ADA to define a website as a place of public accommodation, but it isn’t up to the court, which has no legislative power, to create law where none exist.

VI

Gomez Takeaways

  1. Gomez goes too far with respect to ¶ ¶ 4-7 and should be appealed.
  2. The court’s reasoning requires a person with a disability to actually visit a store in order to have a claim. Such a requirement flies in the face of consumer behavior today whereby brick-and-mortar stores are closing left and right due to consumers buying many things online. Those consumers often times have no intention of actually going into the store and sampling or seeing the product before making that purchase online.
  3. Whether a person ever intends to use a physical retail location should be irrelevant to the inquiry of whether a sufficient nexus exists between the website and the physical location.
  4. True, the ADA does not require places of public accommodation to create full service websites for persons with disabilities, but they should have meaningful access to those websites under title III of the ADA, even assuming “a nexus,” is the proper standard. That is, the gateway theory is certainly becoming the trending view in the courts, but it isn’t universal as discussed in this blog entry and in this blog entry as well.
  5. It goes too far to say if a retailer chooses to have a website, that website cannot impede a person with a disability’s use and enjoyment of the brick and mortar store. That is, requiring a physical presence in the store.
  6. True, Congress missed an opportunity when the ADA was amended to make clear that websites were places of public accommodations. On the other hand, the legislative history of the ADA does say it is supposed to change with technology.
  7. Another court adopts the gateway theory of when a website must be accessible to persons with disabilities, which is certainly the trend. However, this case goes much further by requiring a harm actually suffered at the place of public accommodation. Accordingly, if I was the plaintiff, I would most certainly consider an appeal to the 11th Circuit as this can’t possibly be right.
  8. This decision mean that person without disabilities can freely shop and buy things online, but people with disabilities have the added requirement of showing a harm from the actual store itself. That simply can’t be right and it eviscerates the whole idea of the ADA, which is to integrate persons with disabilities into every aspect of society.

Back in January 2015, you will find this blog entry talking about the survivability of ADA claims and Fair Housing Act (FHA) claims. That case was appealed, and the Third Circuit issued a precedential (published), decision on March 31, 2017. So, here goes. As is usual, the blog is divided into categories and they are: facts (there was very little discussion of the facts in the original blog entry); court’s reasoning with respect to the survival cause of action; court’s reasoning with respect to failure to accommodate; court’s reasoning with respect to interference; and takeaways. Of course, the reader is free to read any or all of the sections.

I

Facts

Two residents of the condominium, Walters and Kromenhoek, suffered from disabilities and each had emotional support animal prescribed for them. Both of them obtained a dog thereby violating the no dogs rule of the condominium Association. That rule prohibited dogs and farm animals subject to a fine specified by the Board of Directors. The rule had no exceptions and the Association had no policy regarding assistance animals, including emotional support animals. The Board of Directors of the Association had the authority to enforce those rules and regulations. Both plaintiffs attempted to request accommodations for an emotional support animal by filing paperwork with the Association’s office manager, which included a doctor’s letter prescribing the emotional support animal and a dog certification. The certification stated that the dog was prescribed and deemed necessary to assist each of the individuals, and that property managers and landlords were required to make reasonable accommodations under the FHA. The Association took no action at that time.

Having dogs in the condominium got some of the residents very upset. One of the residents, a Talkington, wrote about it on his blog about the community. In October 2011, he wrote on the blog that Walters had a dog and claimed to have papers to allow her to have it. He also wrote that he had asked the office manager whether she had Walters paperwork in their files and whether monetary fines had been assessed but had not received an answer. In response to that blog post, another resident, a Felice, posted the first of many inflammatory comments on Talkington’s blog. He wrote that dog owners might be happier in another community rather than be ostracized at this condominium, which would be another fine and progressive fines after that. Walters responded saying that she was required to defend herself not as a violator of any laws but as a person with the disability. She also said that she was mortified that her personal business had been laid out over the Internet without her permission or forewarning. That drew a response from Felice saying that someone who needed an emotional support dog might go off his or her gourd without the dog at his or her side or have a violent reaction. Also, he thought that he might or might not need protection and that the law allowing her to have dogs was a bad law. He also said that Walters has a pet and should be fined. What followed was a flurry of emails among the Board and the plaintiffs.

The board did not grant an accommodation to either of the requesting individuals. Instead, the board voted to fine both individuals for violating the no dogs rule. The fine was $50 per day and put in abeyance pending legal advice. Even after that, both Felice and Talkington continued to lambaste both plaintiffs. In November 2011, Felice wrote that if you couldn’t remove the guilty, you could certainly ostracize them. In December 2011, Talkington wrote a blog post naming and labeling the plaintiffs as known violators and their emotional support animals as illegal neighborhood puppy dogs. Talkington also reported that a neighbor heard one dog barking and Talkington added sarcastically that trained service dogs are specifically trained to not bark unless the owner is in imminent danger. Further, maybe one of the pupps pooped in the owner’s unit and was warning the owner to watch out. Talkington continued saying that such certifications are issued without verifying either the animal’s credentials or the purported disability. He later said that the ridiculous puppy dog diplomas from the puppy mills are out of line and that diploma mills accept stress as a disability without any doctor confirmation. This was echoed by Felice in belligerent terms. Later that winter, Talkington wrote on his blog that the condominium association should go on the offensive and lawyer up to pursue an action against owners who are noncompliant with the policy on service dogs. Felice then described both of the plaintiffs as miscreants, ungracious, selfish, spoiled, brats willing to flaunt the illegal dogs in everyone’s face. Talkington piled on by saying that the two individuals were playground bullies attempting to hang onto their puppies and wrote that it was time for the Association to go on the offensive and file suit in a court of law to force the issue.

All this finally came to a close once a new president of the board came into place. In March 2012, both plaintiffs submitted to the new president of the board a formal request for accommodation and the board granted the request and waived the accrued fines. Even so, Walters and Kromenhoek filed suit.

Before moving further, a few points are worth noting. First, the original suit at the District Court level included ADA claims against the Board, which the District Court referenced in its decision. However, between that decision and the Circuit Court decision, plaintiffs conceded the ADA claims (the court doesn’t say why, but perhaps it is due to the fact that the FHA and the ADA do not deal with assistance animals in the same way; the FHA is far broader). Second, while the case was pending in the District Court, Walters committed suicide. So, as mentioned in the original blog entry, the District Court held that Walters claim did not survive and denied Kromenhoek’s claim on the merits. Third, the original president of the board, Harcourt, and Felice also died during the pendency of the litigation. Finally, the lawsuits had reasonable accommodation claims and interference claims under the FHA as their cause of action.

II

Court’s Reasoning Regarding Survival of Cause of Action

The appellate court reversed the District Court’s grant of summary judgment against Walters executrix. It also, on the merits of the summary judgment motions, reversed in part and vacated in part. In doing that, it reasoned as follows:

  1. The FHA is silent as to survival of claims.
  2. 42 U.S.C. §1988(a) provides that where certain federal laws are deficient, the federal courts may apply common-law as modified and changed by the constitutions and statutes of the State provided that the state law is consistent with the Constitution and laws of the United States.
  3. 42 U.S.C. §1988(a) on its face only applies to certain statutes bound within three titles of the revised statutes, namely titles 13, 24, and 70. The FHA was enacted almost a century after those statutes and was never codified in title 13, 24, or 70. Therefore, 42 U.S.C. §1988(a) by its plain meaning does not apply to the FHA.
  4. Legislative history of that provision shows that §1988(a) has always applied to designated statutes only and not to any statute that could be labeled a civil rights law.
  5. 1988(a) was intended to do nothing more than explain the source of law applicable in actions brought to enforce the substantive provisions of that act, which later became 42 U.S.C. §§1981-83.
  6. Since 1874, Congress had never amended, save for editorial changes, the phrase, “this title [the judiciary], and of title ‘civil rights,’ and of title’crimes.’” Therefore, §1988(a) only applies to those laws codified within those three titles of the revised statutes of 1874, which does not include the FHA.
  7. The Supreme Court has in general rejected linkage between the reconstruction era civil rights acts and other federal statutes by emphasizing the independence of the remedial scheme established by the reconstruction era acts.
  8. Since the FHA is a federal statute, whether a claim survives the death of a party is a question of federal law.
  9. Since Congress has not provided statutory guidance, resolution of the survival issue depends upon federal common law.
  10. One area where courts consistently apply a uniform rule federal common law is when it comes to survival of federal claims, including such laws as: Vaccine Act; ERISA; Forfeiture Claims; Freedom Of Information Act; False Claims Act; ADEA; Labor-Management Reporting and Disclosure Act Of 1959; and Truth In Lending Act.
  11. When it comes to FHA claims surviving the death of a party, a uniform federal common law rule is appropriate to fulfill the overall purposes of the statute as the federal interests at stake to provide fair housing throughout the United States warrants displacement of state law on the narrow issue of survival of claims.
  12. Since federal courts do not have the creative power vested in Congress, the court elected to follow the weight of authority saying that under federal common law rule, remedial claims survive but not penal ones.
  13. The FHA is certainly remedial and was intended by Congress to have broad remedial intent.

III

Court’s Reasoning with Respect to Failure to Accommodate

  1. Discrimination under the FHA includes, per 42 U.S.C. §3604(f)(2), a refusal to make reasonable accommodations and rules, policies, practices, or services, when those accommodations are necessary to afford an individual equal opportunity to use and enjoy a dwelling.
  2. To determine whether an accommodation is reasonable, the court looks to whether the requested accommodation was reasonable and necessary to afford a person with a disability (the FHA uses the term handicapped), an equal opportunity to use and enjoy housing.
  3. A reasonable accommodation under the FHA includes the use of an emotional support animal in a person’s own home despite the existence of a rule, policy or law prohibiting such an animal.
  4. A refusal to provide a reasonable accommodation under the FHA may be either actual or constructive.
  5. An undue delay in granting a reasonable accommodation may amount to a refusal.
  6. A refusal occurs when the resident with a disability is first denied a reasonable accommodation regardless of the remedies granted in subsequent proceedings. For a housing provider’s action to be deemed a refusal under the FHA, that provider must first have a prior opportunity to accommodate. That is, the provider has to have an idea of the accommodation sought by the plaintiff prior to the provider incurring liability for refusing it.
  7. Material issues of fact exist with respect to whether Cowpet’s action constituted a refusal. In particular, it isn’t clear from a series of emails whether the plaintiffs were asking the Board to not review their paperwork or whether they were just asking the board to respect the privacy of their medical information. If it was just a matter of respecting the privacy of information, then the Board would have had an opportunity to accommodate.
  8. Material issues of fact also exists with respect to whether the original Cowpet Board President, Harcourt, actually reviewed the paperwork on file in the Association’s office as the office manager and the Board treasurer had opposite memories of what happened.

III

Court’s Reasoning with Respect to Interference

  1. The FHA, 42 U.S.C. §3617, makes it unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercise or enjoyed any right granted or protected by the FHA.
  2. For an interference claim, a substantive violation of the FHA is not required, and a claim can arise before or after the plaintiff requires housing.
  3. To prove interference, plaintiff has to show: 1) the plaintiff exercise or enjoyed any right granted or protected under the FHA; 2) the defendant’s conduct constituted interference; and 3) a causal connection existed between the exercise or enjoyment of the right and the defendant’s conduct.
  4. Interference is not defined by either the FHA or its implementing regulations. Accordingly, the word must be understood by its ordinary meaning.
  5. The court relied on cases from the Ninth Circuit saying that interference for purposes of §3617, means the act of meddling in or hampering an activity or process. Also, that interference is broadly applied to reach all practices having the effect of interfering with the exercise of rights under federal fair housing laws.
  6. Interference under §3617 may (emphasis mine) consist of harassment if it is sufficiently severe or pervasive so as to create a hostile environment.
  7. Such a view is consistent with the Department of Housing and Urban Development, as after oral argument, the Department of Housing and Urban Development issued a regulation allowing hostile environment harassment claims because of handicap. In particular, that regulation provides that harassment can be written, verbal, or other conduct and does not require any physical contact. Further, a single incident of harassment because of handicap constitute a discriminatory housing practice if that incident is sufficiently severe to create a hostile environment.
  8. Harassment intruding upon the well-being, tranquility, and privacy of the home is considered particularly invasive.
  9. Material issues of disputed fact exist with respect to the interference claims. In particular, if the plaintiff barred the Association from reviewing the accommodation request, then no interference occurred. However, if there was not such a ban, then the Association did interfere with the rights by failing to review the request for reasonable accommodation of their disabilities.
  10. Genuine issues of material fact exist over the inferences that can be reasonably drawn from Felice’s blog posts. That is, a reasonable jury could find that Felice’s harassment was sufficiently severe or pervasive so as to interfere with the plaintiff’s fair housing rights. They could also find that there was a causal connection that the harassing conduct was the result of the plaintiff’s exercise of their FHA rights.
  11. Genuine issues of material fact also exists as to whether Talkington interfered with the plaintiff’s fair housing rights when he wrote on his blog all the things that he did. In particular, a reasonable jury could find that his conduct constituted harassment sufficiently severe or pervasive so as to interfere with the plaintiff’s fair housing rights. They also could reasonably find a causal connection between his conduct and the exercise of the plaintiffs fair housing rights.

IV

Takeaways:

  1. The ADA has a far narrower treatment of dogs than the federal housing act. The ADA is focused on recognition and response, as discussed in this blog entry, and not on emotional support. The FHA also allows other animals besides dogs.
  2. Certification of service dogs is a real problem due to the certification mills. The ADA and the FHA differ here with the FHA going further than the ADA when it allows the owner to take reasonable steps to verify the need for an emotional support animal.
  3. If a person exercises his rights and that results in social media blowback, that blowback may be interference under the FHA.
  4. Interference includes hostile environment, but that is not the only thing it includes. The dictionary definition of interference is far broader than just hostile environment.
  5. Training training training. Also, have a policy for dealing with the situation of when a resident request a service dog or an emotional support animal.
  6. If you are going to fine someone for having a dog, get legal advice first before doing so. I can only begin to imagine the total costs of legal fees incurred by the defendant here and that is before any fee shifting.
  7. One wonders if either plaintiff could have had a claim for intentional infliction of emotional distress.
  8. People with mental health conditions (such as generalized anxiety disorder, depression, etc.), face the real deal that goes beyond just stress. Often times, that can be managed with medication or without, but regardless, a different kettle of fish than stress.
  9. No reason why the discussion about whether FHA claims survive and the discussion about interference would not equally apply to the ADA since the law’s remedial purposes are similar and the interference statutory provisions are virtually identical.
  10. The ADA case law on interference is very scarce, and this case could be of great help, especially to plaintiff’s, when it comes to assessing whether interference claims exist.
  11. Interference causation is quite broad. The question is whether there was an exercise of rights followed by an adverse reaction to that exercise.