Today’s blog entry concerns the EEOC final rule on implementing affirmative-action requirements of §501 of the Rehabilitation Act of 1973. So, this particular blog entry only applies to federal employees and to federal agencies. As usual, it is divided into categories and they are: some highlights; is the rule susceptible to being challenged; and thoughts. The reader is free to focus on any or all of the categories. Since the blog entry is so short, you probably want to read all of it as it wouldn’t be much additional time.

 

I

Some Highlights

  1. Sets hiring goals for persons with disabilities as follows:
    1. greater or equal to 12% of employees at the GS-11 level or higher;
    2. greater or equal to 12% of employees at GS-10 level or lower;
    3. greater or equal to 2% of employees at the GS-11 level or higher who have targeted disabilities;
    4. greater or equal to 2% of employees at the GS-10 level or lower who have targeted disabilities.
  2. Requires as an affirmative action an agency to pay for personal assistance services if:
    1. employee requires such services because of a targeted disability;
    2. provision of such services plus reasonable accommodations enables the employee to perform the essential functions of the job; and
    3. it does not constitute an undue hardship.
  3. Undue financial hardship is looked to the agency as a whole.
  4. Reassignment to a vacant position without competition is something an agency must consider where the agency determines that no other reasonable accommodation will permit an employee with a disability to perform the essential functions of his or her current position.
  5. Contains various reporting and notice requirements.
  6. If an accommodation can’t be provided immediately, interim accommodation must be made absent an undue hardship.
  7. Complaints must be filed with the EEO counselor within 45 days of the denial of reasonable accommodation.

II

Is the Rule Susceptible to Being Challenged

  1. Rule would not subject to the Congressional review act since the rule concerns agency management and personnel (5 U.S.C. 804 (3) (B)).
  2. Unable to find any case law suggesting a federal agency can bring a substantial due process claim or an equal protection claim against another agency when the regulations allegedly go too far. For that matter, I couldn’t find anything saying that an agency can use either of those principles as a defense when it fails to carry out regulations either. I also asked Lexis for help on that as well, and they couldn’t find anything.
  3. So, you are left with individuals that would have to challenge the law. Three such individuals to come to mind are; a person with a disability who is neither covered by Schedule A nor has a targeted disability; a person covered by Schedule A but who does not have a targeted disability; or a person who is desirous of having their personal services/devices paid for to ameliorate their disability but who is not in need of personal assistance services.
  4. Essentially, the rule breaks people with disabilities down into three categories: persons with disabilities generally; Schedule A; and persons with targeted disabilities. Targeted disabilities refers to those disabilities found on form SF-256. Schedule A allows an agency to hire a person with a disability that qualifies under Schedule A without going through the certificate process or having to post the job.
  5. Any of the people in ¶ II 3 might claim that the regulations exceed the enforcement clause of the 14th amendment since persons with disabilities with respect to employment are in the rational basis class per this case. As such, the argument would go that affirmative-action for persons with disabilities goes too far. Further, one wonders if an argument could not be made that the distinctions between persons with disabilities, Schedule A, and targeted disabilities is not supportable either.

III

Thoughts

  1. One of the biggest problems with respect to persons with disabilities is that we silo. That is, each disability has its own challenges. What I have found over the years is that people with the same disabilities, regardless of education level, tend to congregate with people of similar disabilities. Also, it is frequently difficult for a person with a disability to understand a disability that is not theirs. What that means is instead of a unifying disability force, you have group of disabilities attempting to get what is theirs. The siloing affect is such that it is quite an accomplishment that the ADA and its amendments were even passed. These particular regulations just plug into the siloing affect by separating persons with disabilities into different categories.
  2. The United States Supreme Court does not like affirmative-action at all and that is not likely to change in the foreseeable future. The problem here is that persons with disabilities with respect to employment are in the rational basis class, thereby making affirmative-action as a remedy something even harder to successfully argue for then it would be for race, for example, which is subject to strict scrutiny.
  3. It is interesting that the EEOC says that where a person with a disability can no longer perform the essential functions of their current job, the agency must consider transferring that person to a vacant position where they can perform the essential functions of with or without reasonable accommodations. The key term being, “consider.” That is, the term “consider,” on its face is not the same as “must.” So, the EEOC is taking a bit of a different position here when it comes to federal agencies that it has when it comes to the private sector (see this blog entry for example).

 

Today’s case is from the very end of December of last year and involves a question that I have not seen before. That is, if there is a national-security exemption for having to comply with the ADA and the Rehabilitation Act? The case is Hale v. Johnson decided by the Sixth Circuit on December 29, 2016. As is 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

The facts are really straightforward. All plant officers working for the Tennessee Valley Authority have to maintain medical clearance as a condition of employment. From the time the plaintiff began employment in 2009, he had always maintained the level of clearance necessary for his position. However, in 2013, the Tennessee Valley Authority made a pulmonary function test a requirement to obtain medical clearance. Since the plaintiff had chronic obstructive pulmonary disorder, he failed that test. Upon failure of the test, the Tennessee Valley Authority terminated him. The Tennessee Valley Authority moved for summary judgment arguing that the court lacked subject matter jurisdiction due to a national security exemption. While the District Court disagreed with that claim, it did certify the case for an interlocutory appeal.

II

Court’s Reasoning

  1. Title VII of the Civil Rights Act does contain a national-security exemption at 42 U.S.C. §2000e-2(g), but the Rehabilitation Act contains no such exemption.
  2. Where Congress included particular language in one section of the statute but omits it in another section of the same act, it is presumed as a general matter that Congress acts intentionally and purposely with respect to that inclusion or exclusion
  3. If Congress intended for all of title VII’s provisions to apply to the Rehabilitation Act, it would not have enumerated specific sections when it came to the remedies for violations of the Rehabilitation Act. In fact, Congress did make its intent clear to have all of title VI applicable to the remedy section of the Rehabilitation Act.
  4. Nothing in the legislative history of the Rehabilitation Act or §717 of title VII establishes the applicability of the national security exemption.
  5. There is a complete absence of case law applying the national-security exemption to claims brought under the Rehabilitation Act. In fact, the Tennessee Valley Authority did not cite a single case, and for that matter, the court was not able to find one either.
  6. While this case, Department of the Navy v. Egan , precludes judicial review of security clearance decisions, that is a completely different kettle of fish than whether a person can do the essential functions of the job with or without reasonable accommodations.
  7. Egan pertained to executive control over access to national security information and not to national security concerns such as those pertaining to whether an individual has the physical capacity to guard a nuclear plant. In other words, nothing in that decision suggested that its holding applied to physical fitness judgments even where such judgments are purportedly based upon the interest of national security.
  8. In contrast to deciding whether a person has a propensity to disclose classified information, the determination of an individual’s physical capability to perform a job is based upon hard science and is one that has historically been reviewed by courts and administrative agencies.
  9. Even if Egan extends to sensitive positions and sensitive information, that is still a different matter than a judgment concerning physical fitness.
  10. To hold otherwise, would mean that the Sixth Circuit would find itself in an untenable position where they were precluded from reviewing any federal agency’s employment decision so long as it was made in the name of national security.

III

Takeaways

  1. While the plaintiff sued under both the Rehabilitation Act and the ADA, the court’s reasoning doesn’t mention the ADA at all. That said, since the two have virtually identical requirements, the holding would probably be the same under the ADA as well.
  2. You might get a different result if the position affected national security and access to classified information.

 

I just reviewed the transcript of the oral argument before the U.S. Supreme Court in Endrew v. Douglas County School District, which involves figuring out just how far a school district needs to go in order to provide a free appropriate public education (FAPE), under IDEA. Here is what we know from that oral argument or I should say what we can reasonably divine:

  1. IDEA is more than just a procedural set up, rather it contains real rights capable of being enforced. That is, IDEA is geared towards a particular substantive result.
  2. The standard will not be equal opportunity to succeed.
  3. The standard will not be “de minimus.”
  4. The standard will not be, “something more than de minimis.”
  5. The standard will not be, “more than merely de minimis.” With respect to this particular standard, the justices were keenly interested as to where this phrase originated from and they did not get a specific answer.
  6. The standard will not be “some benefit,” because that terminology could mean either not much or it could mean something more significant.
  7. Anybody’s guess as to what the standard will be. Some possibilities include: A) “demands a level of educational services designed to allow the child to progress from grade to grade in the general curriculum;” B) “an IEP should be tailored to achieve in a general educational curriculum at grade level for most kids;” C) “significant educational progress in light of the child’s circumstances;” D) “significant progress towards grade-level standards;” D) “meaningful progress towards grade level standards;” F) “significant and appropriate progress towards grade level standards;” G) “reasonably calculated to provide significant and appropriate progress towards grade level standards;” H) “significant progress or appropriate progress towards grade level in light of the child’s circumstances;” I) “enough benefit to keep track with grade progress;” J) “and the whole package has got to be helpful enough to allow the student to keep up with his peers.”
  8. Regardless of standard chosen (a betting person, which is extraordinarily dangerous when it comes to the U.S. Supreme Court, might bet on G), wide agreement among the justices existed that the lower courts need a kick so that IDEA actually means something.
  9. Plaintiff’s counsel said that in order to show that an IEP is messed up, a parent has to show that the IEP the school adopted was one that no reasonable educator would have adopted. I am not a special education attorney, but that seems to be an insanely high standard.
  10. The federal government funds 15% of special education services.

In other news:

  1. The U.S. Access Board issued final rules pertaining to §508 of the Rehabilitation Act. The two things to note there are that WCAG 2.0 is the standard for §508 compliance and that an equivalent facilitation provision exists as well. The U.S. Access Board also issued a final rule on accessibility of medical equipment. Does this mean WCAG 2.0 will be the standard for title II and title III website compliance? Since it is uncertain as to where the incoming administration stands with respect to disability inclusion, it is hard to say. Certainly, as a preventive law measure WCAG 2.0 should be strongly considered.
  2. The Department of Justice last week issued proposed regulations implementing §504 of the Rehabilitation Act. The proposed regulations are actually quite detailed and perhaps worth a blog entry of its own. Suffice to say at this point, what the proposed regulations do is basically take DOJ’s final regulations on titles II of the ADA and apply them to the Rehabilitation Act. Doing that mean that the Department of Justice goes further than the case law in some areas. For example, the Rehabilitation Act deals with a much lower standard for effective communication than does the ADA. In the proposed regulations, DOJ adopts title II effective communication standards, which are stronger than title III effective communication standards. Again, it is much more complicated than that, but that is the general idea. Keep in mind, these are proposed regulations and as such, they may or may not come into existence at all. Also, if they do, they could be in substantially different form than what is proposed here.

Happy new year everyone!

 

Since it is the first blog of 2017, I thought I would start with another first.  That is, to the best of my knowledge, we have never discussed pending legislation in the U.S. Congress before. There are a couple of interesting bills that are worth discussing and so here goes. The two bills we are going to discuss are Senate Bill 3521 and H.R. 3765. H.R. 3765 would amend Title III of the ADA to provide for a notice and cure period before the commencement of a private civil action in architectural barrier cases. It passed the House Judiciary Committee 15-6, and in the Senate, its companion bill is currently referred to the Judiciary Committee. S.B. 3521 would amend the Higher Education Act of 1965 to make it easier for students to get accommodations instead of having students give the colleges and universities what is often exhaustive documentation in order for a student to receive accommodations despite having received them prior to enrolling in college. S.B. 3521 does not, at this moment, have a companion bill in the House. As is usual, the blog entry is divided into categories. I and II discuss the text of H.R. 3765 and my thoughts on same, while III and IV discuss the text of S.B. 3521 and my thoughts on same. So, depending upon your interest, I could see you reading either I and II or III and IV or all of it.

I

H.R. 3765 (Pre-Suit Notification)

  1. Makes it unlawful for any person to send or otherwise transmit a demand letter or other form of pre-suit notification alleging a violation of Section 302, 303 of the ADA (in the bill “29 U.S.C. §§12182, 12183)”, if such a letter or communication does not specify in detail: 1) the circumstances under which an individual was actually denied access to a public accommodation, including the address of the property and the specific sections of the ADA alleged to have been violated; 2) whether a request for assistance in removing architectural barriers to access was made; and 3) whether the barrier to access was a permanent or temporary barrier. Failure to comply with this provision subjects the person to a fine.
  2. A civil action under §§12182, 12183 based on the failure to remove an architectural barrier “to access into” (actual language in the bill), an existing public accommodation cannot be commenced by a person alleging such failure unless: 1) that person has provided to the owner or operator of the accommodation a written notice specific enough to allow such owner or operator to identify the barrier; and 2) during the period beginning on the date the notice is received and ending 60 days after that date, the owner or operator fails to provide that person a written description outlining the improvements that will be made to remove the barrier; or 3) if the owner or operator provides the written description above, the owner or operator fails to remove the barrier or to make substantial progress in removing the barrier during the period beginning on the date the description is provided and ending 120 days after that date.
  3. Instructs the Judicial Conference of the United States to develop a model program to promote the use of ADR, including a stay of discovery during mediation, to resolve claims of architectural barriers to access places of public accommodations.

II

Thoughts on H.R. 3765

  1. My colleague, Richard Hunt, latest blog entry suggests that pre-suit notification isn’t enough to solve the problem it is trying to address. His entry is certainly provocative and might even serve as a template if the Republicans want to go further.
  2. Imposing a fine would likely chill attorneys from pursuing title III claims. As it is, the pre-suit notice is fairly extensive. Not sure why the pre-suit notice is insufficient without the fine. You certainly can expect lots of litigation over sufficiency of the notice regardless of whether the fine remains in the final bill.
  3. The encouragement of mediation of such claims I can see going either way. On the one hand, it takes the court out of the equation, which is not necessarily a good thing for a person with a disability. On the other hand, people with disabilities are just frustrated that they can’t access places of public accommodations, and mediation is an excellent way to deal with situations involving frustrations.
  4. Under the bill, a place of public accommodation has 60 days to respond to the notice and an additional 60 days to fix the problem, which is a total of 120 days (four months).
  5. If this bill passes, then a place of public accommodation could conceivably delay the two-step process discussed here until receiving the pre-suit notice. A place of public accommodation also, especially with a fine involved, might seek to delay things further with respect to arguing over whether the pre-suit notice meets its obligations under this bill. That is, argue the 120 day clock does not start to run until proper pre-suit notification has occurred.
  6. The language of the section requiring pre-suit notice uses the term, “architectural barrier to access into an existing public accommodation.” I must confess I don’t know what the term “to access into,” means. Is it talking about any architectural barrier in or out of the place of public accommodation? Is it only talking about architectural barriers with respect to getting into the place of public accommodation? If this language stays in, and I am representing a plaintiff, I would argue that the language as it currently stands is only talking about architectural barriers with respect to entering the facility and not within the facility itself. Of course, that cannot possibly be what the legislation intends, but the argument exists nevertheless. It will be interesting to see as the bill goes along whether this language changes, perhaps to something like, “preventing access into a place of public accommodation or preventing access within a place of public accommodation.”
  7. The section making it unlawful for any person to send or otherwise transmit a demand letter or other form of pre-suit notification alleging a violation of §§302, 303 of the ADA absent meeting certain requirements references in parentheses 29 U.S.C. §§12182, 12183. They are going to have to clean this up because the correct cite is 42 U.S.C. §12182, 12183. 29 U.S.C. is where you would find the Rehabilitation Act not the ADA.

III

S.B.3521 (Making It Easier for Students to Get Accommodations in Higher Education)

  1. Forces places of higher education to adopt policies making the following documentation submitted by a student automatically sufficient to establish that he or she is an individual with a disability.
  2. Sufficient documentation includes:
    1. An IEP even if the IEP is not current or up-to-date on the date of the determination. The institution can ask for additional documentation from an individual with an IEP who was found ineligible for services or exited from eligibility during elementary school;
    2. A 504 plan;
    3. A plan or record of service for the individual from a private school, local educational agency, a state educational agency, or an institution of higher education provided in accordance with the ADA;
    4. A record or evaluation from a relevant licensed professional finding that the individual has a disability;
    5. A plan or record of disability from another institution of higher education;
    6. Documentation of a disability due to service in the uniformed services, as defined in §484(C)(a).
  3. Requires institutions to adopt policy that are transparent and explicit regarding information about the process by which the institution determines eligibility for accommodations.
  4. Requires that the institution disseminate such information to students, parents, and faculty in an accessible format, including during any student orientation, and making such information readily available on a public website of the institution.
  5. Authorizes $10 million for the National Center for Information and Technical Support for Postsecondary Students with Disabilities.
  6. Mandates that institutions submit for inclusion in the integrated postsecondary education data system or any other federal postsecondary institution data collection effort, key data relating to undergraduate students enrolled at the institution who are formally registered as students with disabilities with the institution’s office of disability services, including graduation rates for students with disabilities and the number and percentage of students with disabilities assessing or receiving accommodations at the institution providing the institution has more than 10 such students.
  7. The Act does not affect the meaning of the terms “reasonable accommodations,” or “record of impairment,” under the ADA or the rights and remedies provided under the ADA.

IV

Thoughts on S.B. 3521

  1. Currently, when students enter higher education, regardless of the record of impairment that they have and any accommodation that they may have received, the place of higher education forces the student to start all over. This is quite jarring for the student. Students all already very nervous about coming out with their disability when they enter postsecondary education and the requirement for new documentation, which is often exhaustive, only discourages them further from seeking the accommodations they need and are entitled to. This bill solves that problem.
  2. The requirement that institutions of higher learning adopt policies that are transparent and explicit regarding information about the process by which the institution determines eligibility for accommodations forces institutions of higher learning to make sure that they have the essential eligibility requirements of their program in order as we discussed in this blog entry.
  3. Requires data collection on students with disabilities.
  4. I find it interesting that in the rule of construction, it says it is not meant to be construed to affect the meaning of, “record of impairment.” However, if the documentation automatically grants a student the right to have accommodations, doesn’t that also mean that you also have a record of impairment under the ADA? I suppose the distinction is theoretical because as a practical matter, the kinds of records being deemed sufficient by this legislation, would indicate that a person has a record of a disability under the ADA.
  5. There is no companion bill in the House at the moment despite bipartisan sponsors in the Senate.
  6. Very unclear to me, despite bipartisan support in the Senate, whether a President Trump would sign S.B. 3521. Since as of this writing there is not even a companion bill in the House, I can’t see how a President Obama would have a chance to sign this bill.

It is time for the top 10 of 2016. For the most part, the greatest hits stayed the same during the course of the whole year. I believe I updated the greatest hits at the end of the first quarter of this year and then did not do so after that. There were only two or three blog entries from the end of the first quarter that fell from the list with respect to year-end views. On the list that was put up after the first quarter of the year, there was one blog entry that is not a greatest hit in terms of use, but I think it is terribly important, and I want to add another in that category. So, in my greatest hits box, you will find two blog entries that I believe are incredibly important, not that all of my blog entries aren’t important:-), and deserve to have special mention even if they are not a greatest hit. In addition, you will find the top 10 for 2016. So, this should be a total of 12 blog entries in my greatest hits box and they are:

+2

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

A critical principle with the ADA is that the ADA is a duty that cannot be delegated. Failure to be aware of that can cost a client a lot of money as seen here.

 

Turning to the Top 10 of 2016 and they are in reverse order:

10.  In order to file suit under title I of the ADA, one has to exhaust administrative remedies. This blog entry discusses what that means. (584 views). What about using the Americans With Disabilities Act Architectural Guidelines/Standards as a basis for a negligence per se claim? This blog entry discusses that possibility. (562 views).

9. What about using the Americans With Disabilities Act Architectural Guidelines/Standards as a basis for a negligence per se claim? This blog entry discusses that possibility. (562 views).

8.  Whether public colleges and public university immune from suit on the grounds of sovereign immunity is discussed here. (782 views).

7. Suing a state court system for violations of the ADA is extremely difficult, but it can be done as discussed here. (852 views).

6.  Is causation under the ADA “but for,” or something else? This blog entry discusses that. (867 views).

5.  Just what is the difference between a service dog and a therapy dog? See this blog entry. I should note that the issue of service dogs is something you will find numerous blog entries on. (1087 views).

4.  Just what is the applicable statute of limitations for ADA claims is discussed in this blog entry. (1136 views).

3.  How does the ADA deal with temporary disabilities is discussed in this blog entry. (1229 views).

2.  What do you have to show in order to get compensatory damages under title II of the ADA is discussed in this blog entry. (1494 views).

 

AND THE WINNER IS…

It is not even close. This particular blog entry, which discusses whether you can get compensatory and punitive damages in ADA retaliation cases, has more than double the views of the second-place finisher coming in at 3061 views.

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

 

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

I know I said that last week’s blog entry would be my last substantive blog entry of the year, but events can always happen to change my mind. Recently, the 11th Circuit  came down with a published decision on December 7, 2016, in EEOC v. St. Joseph’s Hospital, Inc. , which has several issues worth talking about, including: what it means to have a disability; whether a person is a qualified person with a disability; whether the ADA mandates reassignment when a person is no longer qualified to do the job they are currently in; Rule 59(e) motions, EEOC legal malpractice, and why it is important for a plaintiff to have their own attorney. As is usual, the blog entry is divided into categories and they are: facts; was the plaintiff a person with a disability under the ADA; was a plaintiff a qualified individual under the ADA; does the ADA require mandatory reassignment where a person is no longer a qualified individual with a disability for their current job; whether the court erred in granting a Rule 59(e) motion; did the EEOC commit legal malpractice; is there a Circuit court split; and takeaways. Of course, the reader is free to concentrate on any or all of the categories. Later in the week, I will be posting my top 10+1 blog entries of 2016 as determined by your views.

I

Facts

In short, the plaintiff sought a reasonable accommodation in the form of a job reassignment to another unit at the hospital because she required the use of a cane that posed a safety hazard in the psychiatric ward where she worked. She was given the opportunity to apply for other jobs at the hospital, but was required to compete for them. When she did not obtain another hospital position, the hospital terminated her employment and the EEOC brought suit on her behalf.  While that is an excellent summary, much more detail is needed. In particular:

  1. Plaintiff had a condition called spinal stenosis. She also developed arthritis and underwent hip replacement in 2009. It was at that point in time she began to use a cane to alleviate her back pain and to provide support. Without the cane, the plaintiff, 62 years old and obese, could only walk short distances and would need to stop to realign her body.
  2. During the course of a disciplinary action in October of 2011, she was observed using a cane in the psychiatric ward. The Director of Behavioral Health Operations was concerned that patients could use the cane as a weapon. Once the plaintiff was demoted, the hospital advised her that she could no longer use the cane in the psychiatric ward because it posed a safety risk.
  3. The Manager of Team Resources spoke to the plaintiff and offered her the opportunity to remain employed with the hospital and gave her 30 days to identify and apply for other positions.
  4. Normally, the hospital did not permit an internal candidate to apply for a transfer unless they had been in the current position for at least six months and had no final written warnings in their record, and the plaintiff met neither criteria. Even so, the hospital waived the requirements and allowed her to compete with other internal applicants as opposed to being in the general pool of job applicants. Although the hospital authorized the plaintiff to apply to internal channels as an active employee, all of her job applications were as an external applicant.
  5. The Team Resources Director told the plaintiff that it wasn’t the hospital’s job to get a job for the plaintiff, but they were available to answer questions and guide her through the process. She also stated to the plaintiff that she was not charged with reassigning the plaintiff to another position.
  6. The plaintiff advised the Team Resources Director that she was going on vacation for two weeks at the start of the 30 day period, and that she would not look at the hospital’s job board until her return. The plaintiff never came to the Team Resources Director with questions about the application process, the website, or the particular details of any position. Further, she did not apply for another position until November 11, 2011, which was three weeks into her 30 day allowance. A hospital job board listed over 700 jobs available. The plaintiff did apply for seven positions, three of which were applied for on the last day of the 30 day period and one of which she applied for after her 30 day application had expired.
  7. At trial, the parties focused on three positions that the plaintiff applied for during the 30 day period: educational specialist, care transition coordinator, and home health clinician. The plaintiff was not interviewed for any of these positions.
  8. Following the expiration of her 30 day application, the hospital terminated the plaintiff, but she continued to have access to the hospital’s job board. Even so, she only applied for one additional position on December 17, 2011. Had the plaintiff been further along in the interview process at the 30 day mark, the hospital would have also extended her employment to allow time for the interviewing process.
  9. At trial, the trial court instructed the jury as follows: the jury first had to determine whether the hospital had failed to provide a reasonable accommodation by not assigning plaintiff to the educational specialist, care transition coordinator, or home health clinician position; if yes, the jury had to decide whether the hospital established its affirmative defense that it made a good-faith effort to provide a reasonable accommodation; if no, the jury had to figure out whether the hospital established its affirmative defense that the proposed accommodation would have constituted an undue hardship; and if no, the amount of damages that should be awarded.
  10. Both the EEOC’s and the hospital’s proposed verdict form required the jury to cease deliberations upon a finding that the hospital made good faith efforts to reasonably accommodate the plaintiff.
  11. The jury answered the first question yes finding that the hospital failed to provide a reasonable accommodation. They also answered the second question yes finding that the hospital made good faith efforts to identify reasonable accommodations for the plaintiff. In accordance with the jury verdict form, they then ceased deliberations. Neither party requested the District Court to instruct the jury to render a verdict on the undue burden defense, in addition to its finding of good faith. Accordingly, the District Court entered judgment in favor of the hospital.
  12. Perhaps, in an effort to undo its mistake, the EEOC filed a rule 59(e) motion for alteration of the judgment asking the district court to vacate the good-faith finding, find the hospital liable, and remand for a trial and damages. The EEOC argued the jury’s good-faith finding applied only as a defense to compensatory and punitive damages and not as a defense to liability. The court held that good faith was a defense only to jury awarded damages and not to liability. It then turned to equitable relief and decided that the plaintiff was entitled to reinstatement. The District Court ordered the parties to mediate to determine the specific parameters for the plaintiff’s application for reinstatement, but after one month, the mediator notified the court that the parties had reached an impasse. Plaintiff eventually found full-time work as a telephonic behavioral nurse at a satellite of the MacDill Air Force Base.

 

II

Was the Plaintiff A Person With A Disability?

  1. The plaintiff had spinal stenosis and had undergone hip replacement in 2009. The evidence clearly shows that she was substantially limited in her ability to walk. She depended on the cane to alleviate back pain and provide support for her hip. Without it, she could only walk short distances and would have to stop, line up her body, and balance herself.
  2. Walking is a major life activity under the ADA.
  3. With the amendments to the ADA, the threshold issue of whether a person has a disability does not require extensive analysis. Accordingly, plaintiff was a person with a disability under the ADA.

III

Was The Plaintiff Qualified Individual Under The ADA?

  1. It is not relevant whether the plaintiff could perform her then-current job in the psychiatric ward because she sought reassignment. When an employee seeks reassignment as a reasonable accommodation, the critical question is deciding whether she is a qualified individual for those new jobs and not whether she was qualified for her current position. That view is supported by the ADA itself, 42 U.S.C. §12111(8), which says that the relevant position is the one that the individual holds or desires.

IV

Does the ADA Require Reassignment Without Competition for A Person with A Disability No Longer Qualified for Their Current Job and Who Is Seeking Reassignment?

 

  1. While the ADA says an employer must reasonably accommodate the employee with a disability, it does not say how an employer must do that. Rather, it offers a nonexclusive list of accommodations that may be reasonable with one of them being reassignment to a vacant position.
  2. The ADA does not say or imply that reassignment is always reasonable. In fact, the use of the word “may,” argues just for the opposite. Namely, that reassignment is reasonable in some circumstances but not in others.
  3. In the 11th Circuit, employers are only required to provide alternative employment opportunities reasonably available under the employer’s existing policies.
  4. In a footnote, the court notes that had Congress understood the ADA to mandate reassignment, it could easily have used mandatory language but it did not. Such a decision reflects that Congress did not intend reassignment to be required in all circumstances.
  5. Requiring reassignment in violation of an employer’s best-qualified hiring or transfer policy is not reasonable in the run of cases. Since employers operate their businesses for profit, as a general rule, which requires efficiency and good performance, passing over the best qualified job applicants in favor of less qualified ones is not a reasonable way to promote efficiency or good performance. Further, when it comes to hospitals, the well-being and lives of patients can depend upon having the best qualified personnel. Undermining a hospital’s best qualified hiring transfer policy imposes substantial costs both on the hospital and potentially on patients as well.
  6. The intent of the ADA is that an employer needs only to provide meaningful equal employment opportunities.
  7. The ADA was never intended to turn non-discrimination into discrimination against persons without disabilities.
  8. The ADA is not an affirmative action statute and only requires the employer to allow the person with a disability to compete for the job; it does not require the employer to turn away a superior applicant. Accordingly, the District Court did not err by failing to instruct the jury that the ADA requires reassignment without competition.
  9. The 30 day period to identify a new position was a reasonable amount of time. In particular: in addition to the 30 days to find a job, the hospital told her that the time period would be extended for any position for which the plaintiff was being considered; the Team Resources Director instructed the plaintiff’s supervisor to check with her before terminating the plaintiff’s employment because the Team Resources Director knew that plaintiff could still have outstanding applications at the time; and even once terminated, the Team Resources Director told the plaintiff she could continue identifying and applying for positions.
  10. The evidence was such that the jury’s verdict that the hospital failed to reasonably accommodate the plaintiff by not assigning her to one of the three positions was not an appropriate one to be disturbed.
  11. The evidence also supported the jury’s finding that the hospital acted in good faith when it: waived the prohibition against applying for an internal job transfer despite the plaintiff’s disciplinary history and demotion; assigned a person to assist the plaintiff in the application process for other positions and gave her 30 days to identify and apply for jobs; waived the requirements for internal transfer; and would have extended her employment if she was in the process of seeking reassignment to another position.

V

Did the Court Err in Granting the Motion to Alter the Judgment?

  1. Both parties proceeded as if a good-faith finding absolved the defendant of all ADA liability.
  2. The EEOC’s own proposed jury instructions and verdict form read together, treated good faith as a complete defense to liability. The verdict form unequivocally did so by instructing jurors that if they found that the hospital had made a good-faith effort to identify and make a reasonable accommodation for the plaintiff, they were to end of deliberations without deciding whether the plaintiff’s requested accommodation would impose an undue hardship on the hospital.
  3. The jury instructions on good faith and undue hardship both state that a finding of either good faith or undue hardship obviates the need for a verdict on damages.
  4. Undue hardship is a complete defense to ADA liability.
  5. No doubt exists that any reading of the jury instruction and verdict leads to the logical conclusion that the parties believed that the jury’s finding of good faith equated with a hospital verdict.
  6. It was only after the District Court entered judgment that the EEOC filed a rule 59(e) motion for the first time raising the issue that good faith only precludes jury awarded damages. As such, this rule cannot be used to raise new legal theories or arguments, much less one contradicting verdict forms or instructions that the moving party proposed to the District Court.
  7. Accordingly, the District Court abused its discretion and should have denied the motion and left in place the original judgment for the hospital instead of allowing the EEOC to correct it decision because of its poor strategic choices.
  8. Since the Rule 59(e) standard was not met, the court specifically declined to address whether a good faith defense is an absolute defense to ADA liability. For that matter, it wasn’t necessary to address the hospital’s undue burden defense or the denial of equitable remedies to the plaintiff.

VI

Could You Argue That the EEOC Committed Legal Malpractice?

 

  1. The ADA makes it quite clear that good faith is a defense to damages (see, 42 U.S.C. §1981a(a)(3), but not to liability. Accordingly, if an employer shows good faith, they can escape damages, but that does not mean they can escape equitable relief.
  2. In light of that, it is quite odd that the EEOC did not ask the court to render a verdict on the undue burden defense, in addition to its finding of good faith.
  3. Even assuming the EEOC committed legal malpractice, an argument which I think can be made, does the plaintiff have any recourse. That is, could the aggrieved person sue the EEOC for legal malpractice? The answer is unequivocally no because the EEOC cannot engage in an attorney-client relationship with an aggrieved person since it does not represent that person’s interest. See Adler v. United States, 2012 U.S. Dist. LEXIS 3321 (D. Nev. January 10, 2012).

VII

Is There a Circuit Court Split?

  1. The Seventh Circuit has an opinion on mandatory reassignment that we discussed here. As discussed in that blog entry, the Seventh Circuit took the following approach. First, one has to decide whether mandatory reassignment was ordinarily, in the run of cases, a reasonable accommodation. Second, if so, are there fact specific considerations particular to the employment system that create an undue hardship and make the mandatory reassignment unreasonable. Third, the employee has insert to show that the accommodation is of the type that is reasonable in the run of cases. Fourth, if the employee makes that showing, the burden then shifts to the employer to show that granting the accommodation would impose an undue hardship under particular circumstances of the case. Finally, if the accommodation is not shown to be a type of accommodation reasonable in the run of cases, the employee can still prevail by showing that special circumstances warrant a finding that the accommodation was reasonable under the particular circumstances of the case.
  2. In the Seventh Circuit, the ADA requires employers to appoint employees with disability to the vacant position unless an undue hardship is present or a collective bargaining agreement dictates otherwise.
  3. Comparing the Seventh Circuit decision, including the one from the Northern District of Illinois, with the 11th Circuit, there certainly seems to be a difference in tone between the Seventh and 11th Circuit, particularly with respect to burdens of proof. Also, while not a direct conflict between Circuits, the 11th Circuit opinion is certainly in conflict with the decision from the Northern District of Illinois, which we discussed in this blog entry. In that decision, Judge Kennelly held that an attempt to reassign an employee with a disability to an alternative position is required where that an employee cannot perform the essential function of her position and there are no other available accommodations. He also said that in considering reassignment to a different position, the employer must make a reasonable effort to explore the possibilities with the employee.
  4. The 11th Circuit specifically relies on Huber v. Wal-Mart Stores, a decision which the Seventh Circuit specifically disowns in their decision, for the proposition that the ADA allows for competitive bidding.

VIII

Takeaways:

  1. If this case shows anything, it shows the importance of a plaintiff having his or her own attorney to represent his or her own interest. If the EEOC brings a claim, the actual person alleging discrimination has the absolute right to intervene. If that had happened in this case, presuming an attorney well-versed in the ADA represented the plaintiff, the attorney for the plaintiff could have argued at trial that good faith was not an absolute defense to all ADA liability and upon winning that argument, the jury verdict form would have been corrected. That would have prevented all the problems.
  2. I think an argument can be made that a Circuit court split does exist now on mandatory reassignment. Certainly, the 11th Circuit relying on Huber with the Seventh Circuit explicitly saying they were overruling a case that relied on that decision indicates as much. We also do not know who the next Supreme Court Justice will be. Keep in mind, 60 votes of the U.S. Senate will be needed for the U.S. Supreme Court Justice to even be considered. That said, the United States Supreme Court, even as currently configured, has not been a big fan of affirmative action lately, or anything resembling it. So, competitive bidding is something likely to appeal to the U.S. Supreme Court. Also, competitive bidding is definitely something likely to appeal to the new incoming president considering his business background and his well-known statements over the years of saying that the only thing he is interested in is the best person for the job.
  3. Correcting strategic errors are not grounds for a successful Rule 59(e) motion.
  4. Whether a person has a disability under the ADA doesn’t usually require extensive analysis.
  5. When dealing with cases of reassignment, the issue is entirely focused on whether the individual is a qualified person with a disability for the job that they are seeking. It of course assumes that the person is no longer qualified for the job they currently hold.
  6. 30 days for a person to find another job is a very tight timeframe and an aggressive policy by the employer. One thing this case shows, is that having a policy on reassignment of workers with disabilities is a must. It seems to me that this employer took a chance by being so aggressive in that it gave the employee little time to find a job and the employee had to do it all by herself. Preventive law suggests a better approach might be actively assisting the employee to find a suitable position.
  7. A plaintiff should take full advantage of what an employer offers with respect to finding other jobs in the company when they are no longer qualified in ADA parlance for their current job. Also, the employee would be wise to put off that vacation and take it while in between jobs rather than while the time is running out on their current job.
  8. If you are going to go with the competitive bidding route, my guess is that the Supreme Court will ultimately agree that you can comply with the ADA by using a competitive bidding process, as a preventive measure, it is a good idea to have your reasons in order as to why you hired other candidates and not the person with a disability seeking reassignment.
  9. Jury instructions are critical. Here, it should have been made clear that undue hardship is an absolute defense to ADA liability but if not shown, there can still be ADA liability regardless of whether the employer acted in good faith.
  10. Due to “the strategic errors,” of the EEOC in this case, I don’t think this case would be the best one to take up with the United States Supreme Court.
  11. Attorney fees is an interesting question. The plaintiff winds up losing despite getting a couple of favorable verdicts. But for the EEOC strategic errors, the plaintiff could have received equitable relief. Not sure about the equities in awarding attorney fees where the strategic errors were responsible for jettisoning the case and where the plaintiff did not have her own counsel.
  12. About that jury instruction… A jury instruction that gets it right so to speak like might look like this: 1) Did the employer fail to provide a reasonable accommodation by not assigning plaintiff to a particular job; 2) If yes, did the employer establish its affirmative defense that it made a good-faith effort to provide a reasonable accommodation; 3) If no, what is the amount of damages that should be awarded? 4) Regardless of the answer to whether the employer made a good-faith effort to provide a reasonable accommodation, did the employer establish its affirmative defense that the proposed accommodation would constitute an undue hardship?

 

 

 

With the holidays rapidly approaching and my daughter and going on holiday break on the 19th, I am thinking that this might be my last substantive entry of the year. Next week’s entry is going to be on the greatest hits of 2016 for Understanding  the ADA. Before moving onto the blog entry for the week, I once again want to thank everyone who nominated and voted for me for the 2016 ABA Blawg 100. It is indeed an honor (only 100 of 4000 legal blogs were selected), to be in the ABA Blawg 100 for the third year in a row. I also want to give a shout out to some of the other bloggers that I regularly communicate with and read who also made the ABA blog 100 including: Robin Shea of the Employment and Labor Insider; and Eric Meyer of the Employer Handbook. John Hyman of the Ohio Employers Law Blog is not in the Blog 100 because he is already in the Hall of Fame and is also well worth a read. You can find all of them in my blog roll. I encourage everyone to look at the ABA Blog 100 as there are many good blogs there with a variety of practice areas. I am going to start looking at a few of them myself.

Turning to the case of the day, EEOC v. Western Distribution  , from the U.S. District Court of Colorado decided on November 21, 2016, the court was faced with the question of in light of Mach Mining, just what are the EEOC’s obligations with respect to conciliation and investigation. In Mach Mining, the United States Supreme Court held that while the EEOC had the obligation to engage in conciliation efforts prior to bringing suit, it didn’t take much for those efforts to be satisfied. Even so, Western Distribution claimed that the EEOC did not meet it conciliation and investigation obligations (Mach Mining did not address investigation obligations of the EEOC). The blog entry is divided into the categories of the court’s reasoning and takeaways. Feel free to read either or both of the categories.

I

Court’s Reasoning

The District Court of Colorado was having none of Western Distribution’s arguments for the following reasons:

  1. There is some debate about whether conciliation and investigation by the EEOC is a jurisdictional requirement. However, it doesn’t really matter, because even if those requirements are not jurisdictional, they are a condition precedent to the EEOC bringing suit.
  2. Mach Mining imposes minimal requirements on the EEOC with respect to conciliation requirements. In particular, the EEOC has to inform the employer about the specific allegations, which it typically does in the letter announcing the determination of reasonable cause. The EEOC must also try to engage the employer in some form of discussion, whether written or oral, in order to give the employer an opportunity to remedy the allegedly discriminatory practice. So, the issue is only whether the EEOC attempted to confer about a charge and not what happened during those discussions. Such a limited review allows for information exchanged during the conciliation process to remain confidential as required by statute.
  3. In this particular situation, the EEOC adequately participated in conciliation when it described which of the defendant’s policies it considered to violate the ADA, including: its policy of limiting medical leave to 12 weeks without providing reasonable accommodations; and its policy of refusing to provide reasonable accommodation for employees with disabilities. The EEOC also identified the class of employees suffering from the discrimination. It engaged the defendant in discussions about remedying the discriminatory practices by providing a settlement offer, meeting in person, and exchanging letters. The EEOC also filed an affidavit describing its investigations into the claims from 2012-2014. That affidavit demonstrates that EEOC discussed conciliation with the defendant, which was confirmed by Western Distribution iin its own affidavit.
  4. Good reasons exist for the Supreme Court’s decision making the conciliation process review bare-bones, including: giving the commission expansive discretion over the conciliation process; and allowing the EEOC to make its own decision whether it is appropriate to lay all its cards on the table.
  5. With respect to investigation, while Mach Mining did not address the proper scope of judicial review of the EEOC’s investigation process, some courts are concluding that the same reasoning of Mach Mining applies equally to investigation. That is, the only thing that could be reviewed, is whether an investigation occurred and not its sufficiency.
  6. The District Court said that it isn’t really an issue of just how far a court can go in reviewing the EEOC investigation process because in this situation by any standard the EEOC did its investigation process in this case, including: sending at least five requests for information to the defendant; reviewing the information received; interviewing employees potentially affected by the allegedly discriminatory practice; interviewing other employees of the defendant; affording the defendant the opportunity to provide any additional information it felt relevant; notifying the defendant long before it filed suit that its investigation had expanded beyond the five initial charging parties to be national in scope; and requesting and reviewing a list of employees together with the reason they left the company through 2014.
  7. The back-and-forth related to the conciliation process are confidential per statute, and therefore, are not subject to being reviewed by the court when it comes to assessing the EEOC’s conciliation obligations. To hold otherwise, would mess up the whole point of conciliation to begin with. The point of conciliation is to resolve discrimination claims informally in order to seek voluntary compliance and not to set up a defense for later. Such an approach can only be achieved if the parties know the statements they make in the conciliation process cannot come back to haunt them in litigation.

II

Takeaways:

  1. When it comes to conciliation, a court’s review of whether the EEOC has met those obligations is bare-bones i.e. limited to whether the employer was informed of the specific allegations by describing what the employer allegedly did and to whom and whether the EEOC tried to engage the employer in discussions about those allegations.
  2. It is an open question whether limited review applies to the investigation process as well. Certainly, the reasoning applicable to conciliation logically applies to investigations as well. One wonders whether the new incoming president would feel the same way, and we do have a new Justice to get on the court. That said, Mach Mining was a unanimous decision and the logic of imposing the same requirements on the investigation process as on the conciliation process seem to be inescapable, if not more so.
  3. I wonder considering the business background of the incoming president, whether the EEOC in the future will simply not take the risks of having the extent of its investigations challenged and will instead use this particular case as a template for what it needs to do when investigating claims. I could also see that should the EEOC fail to use this case as a template for its investigations, the employer might very well claim that the EEOC failed to meet its investigatory obligations.

Hope everyone had a great Thanksgiving! Before moving onto the blog of the week, a housekeeping matter is in order. For the third year in a row, Understanding the ADA has been selected as one of the top 100 legal blogs by the American Bar Association. No way could I have done that without the loyal readers here. Thank you to all my readers and to those who nominated me. I so much appreciate your readership; it makes it all worthwhile.

The blog of the week is all about movies. Before moving on to highlighting the final rule from the Department of Justice on movie captioning and audio description, I do want to say that if there are any proposed rules out there in any legal discipline that have gone beyond the commenting period, it wouldn’t surprise me in the least if you see a mad rush to final rule status before our next president is sworn in, since rules completing the rulemaking process are very difficult to overturn.

So, turning to the final rule on movie captioning and audio description, here are some of the highlights:

  1. The rule is effective 45 days after publication in the Federal Register (I don’t have the precise date, but about a month and ½ from now).
  2. Places of public accommodations with movie theater auditoriums showing digital movies as of the date of publication in the Federal Register must comply with the requirements to provide close movie captioning and audio description in such auditoriums by 18 months after publication of the final rule. If the place of public accommodation converts it movie auditorium from an analog projection system to a digital production system, then it must comply with the rule’s requirements by 24 months after publication in the Federal Register or within six months of that auditorium’s complete installation of a digital projection system, whichever is later.
  3. The rule does not apply to drive-in movies because the Department of Justice, based upon the comments it received, believes that the technology does not exist for drive-in movies. That said, I wouldn’t be so sure of that. The department also notes that drive-in theaters are declining in a big way.
  4. The rule only applies to public accommodations that own, lease, or operate movie theaters with auditoriums showing movies produced in digital cinema format.
  5. Within 18 months of the date of publication of the final rule in the Federal Register, public accommodations owning, leasing, or operating movie theaters have to ensure that their movie theater auditoriums exhibiting digital movies produced or distributed with closed movie captions and audio description provide such features to patrons with hearing and vision disabilities at all showings.
  6. Requires movie theaters to have a minimum number of fully operational audio description devices and to be able to provide them to patrons upon request. With respect to audio description devices, a public accommodation must have a minimum of one fully operational audio description device for every two movie theater auditoriums exhibiting digital movies and no less than two devices per movie theater. If that calculation winds up being a fraction, the next greater whole number of devices is what is needed to be provided. With respect to the audio description devices, a movie theater complies with the rule if it uses existing assistive listening receivers that it is already required to provide, assuming those receivers have a minimum of two channels available for sound transmission to patrons.
  7. Movie theaters must have staff available who are able to operate and respond to problems with all equipment necessary to deliver captioning and audio description and to show patrons how to use the individual devices whenever digital movies with such features are shown.
  8. The Department of Justice felt the rule was necessary because captioning makes movies accessible to individuals who are deaf or hard of hearing but are unable to benefit from the sound amplification provided by movie theaters assistive listening receivers (I am in that category).
  9. For that matter, the blind are also at a disadvantage in movie theaters unless they have audio description. Audio description enables the blind or people with low vision to hear spoken narration of a movie’s key visual elements, such as the action, setting, facial expression, costume, and scene changes by utilizing a separate script that is then recorded and synchronized with the movie. It is then put on the audio channels and delivered from the server via infrared, FM, or Wi-Fi system to wireless headsets worn by the patrons.
  10. The Department of Justice believes that requiring movie captioning is consistent with the legislative history of the ADA.
  11. The Department of Justice also believes that it is not a fundamental alteration of the business of showing movies in theaters exhibiting movies already distributed with close captioning and audio description in order to ensure effective communication for the deaf, hard of hearing, blind, or those with low vision.
  12. A final rule should lead to a decrease or near elimination of confusion regarding what accommodation movie theaters must provide. The current ADA title III regulation does not contain explicit requirements specifying how movie theaters must meet their effective communication obligations and that is one of the reasons behind multiple private lawsuits filed throughout the country. Explicit requirements at the national level will lead to standardization across the country.
  13. The number of devices a movie theater must have available depends upon the number of auditoriums in a theater and not the number of seats. In particular the minimum required number of captioning devices goes like this: four captioning devices for one auditorium; six captioning devices for 2-7 auditoriums; eight captioning devices for 8-15 auditoriums; and 12 captioning devices for 16 or more auditoriums.
  14. Lots of places show movies, sometime for a fee, but the definition of a movie theater in the final rule is narrow. That is, it has to be a facility containing one or more auditoriums used primarily for the purpose of showing movies to the public for a fee. That said, if the facility does not meet this definition, that facility still has title III effective communication obligations to deal with.
  15. The final rule contains no new record-keeping reporting requirements. However, movie theaters are required to inform the public of the availability of captioning and audio description on all notices of movie showings and times at the box office and other ticketing locations, on website and mobile apps, in newspapers, and over the telephone (I am already seeing that in the Atlanta Journal-Constitution, and I find it very helpful).
  16. There is always new technology coming along, as alluded to above, and so the rule specifically allows new technology to be used provided the technology provides communication as effective as that provided to movie patrons without disabilities.
  17. Open captioning (where everyone can see the captioning), is a suitable substitute for captioning devices.
  18. At least one employee must be available at the movie theater to assist patrons seeking or using captioning or audio description whenever a digital movie is exhibited. Such assistance includes the ability to: locate all necessary equipment that is stored and to be able to quickly activate the equipment and any other ancillary systems required for the use of the captioning devices and audio description devices; operate and address problems with all captioning and audio description equipment prior to and during the movie; turn on open movie captions if the movie theaters is relying on open movie captioning to meet the requirements of the rule; communicate effectively with individuals with disabilities, including those who are deaf or hard of hearing or who are blind or have low vision, about how to use, operate, and resolve problems with captioning devices and audio description devices.
  19. We have previously talked about the effective communication regulations in many places in our now thrice ABA award winning blog, such as here. What is interesting is that in the guidance to these regulations, the Department of Justice does not go as far as it has previously gone before. In particular, the Department of Justice says in its guidance that communicating effectively with patrons about the availability of captioning at a movie theater does not require movie theaters to hire a sign language interpreter. It believes that communication with the person who is deaf or hard of hearing about the availability of the services or how to use the equipment involves a short and relatively simple exchange, and therefore, is easily provided through signage, instructional guides, or written notes. All I can say to that is hmmmmmmmmm. I see the point, but I am not so sure about the “short and relatively simple exchange,” statement…

Over the last couple of months, I have received this phone call close to once a week. So, I thought I should write a preventive law approach to dealing with this. The situation goes like this: potential client owns a small business/restaurant/shopping mall and is worried about fending off a serial plaintiff either presently or in the future. Often times, small business/restaurant/shopping mall was built before the ADA and no alterations were performed since then. How do they go about doing it? Keep in mind, that there is no way to prevent these kind of lawsuits, but there is a way to set it up so that these lawsuits become difficult for plaintiffs to win. With apologies to Texas, the way to approach this is to do the two-step. The two steps are: 1) Get the property surveyed for compliance with the applicable ADAAG guidelines/standards; and 2) Use a knowledgeable attorney to analyze the results of that survey in order to assess just what are your legal obligations.

There are some other things to keep in mind.

  1. Even assuming that the structure was built pre-ADA and no alterations occurred since then, you do not get a free pass. You still will have to do whatever is readily achievable per 28 C.F.R. §36.304. What is readily achievable is a legal call, but a call that can’t be made without knowing what is out of compliance with the applicable guidelines/standards.
  2. If alterations did occur, then those alterations as well as the path of travel to those alterations must have been done in accordance with the applicable ADAAG guidelines/standards. As far as what is an alteration, check out this blog entry.
  3. Remember, that both the landlord and the tenant are liable for ADA accessibility issues. So, you want to be sure that the lease between the landlord and the tenant covers ADA accessibility. Such a lease apportioning ADA responsibility, per 28 C.F.R. §36.201, does not affect liability (after all, compliance with the ADA is a nondelegable duty), but does affect reimbursement for the repairs. Also, with respect to any such lease, you are much better off phrasing such a clause in terms of reimbursement rather than indemnification in order to get around the nondelegable duty issue.
  4. Another thing to consider is that readily achievable ultimately comes down to a question of the financial resources of the entity. So, you may want to consider incorporation if that is not in place already.
  5. Where do you find a qualified surveyor to assess what needs to be done to make the facility compliant with the applicable ADAAG guidelines/standards? In Texas and in California, they have certified access/accessibility specialists who do nothing else than survey facilities for ADA compliance with the applicable guidelines/standards. Other states do not have such a system, and so you are left with having to find qualified people to do this (using such people may also give you additional legal protections under state law). ADA compliance surveyors aren’t necessarily easy to find, and over time, you might develop a network of people that do this, such as I have for Texas and here for the Chicago area in Illinois. Also, this website of a national firm, which firm I have contacted in the past, may also be helpful. Make sure that the survey report includes an estimate of what it would cost for each repair they find needed in order to become compliant with the applicable ADAAG guidelines/standards.
  6. What about the cost for doing this two-step process? Getting the property surveyed for ADA compliance might costs 5-10,000 dollars or so. Perhaps more or perhaps less depending upon the facility involved and the expenses of the person doing the surveying. Then, it might be another five hours of lawyer time or so to figure out just what the compliance obligations are. Sounds like a lot, but consider this article from San Francisco where it says that the average costs in San Francisco of an ADA settlement is $30,000, including attorney fees. That settlement figure might be higher for California as California has a law that can make damages quite large for title III violations, while other states do not have such a law. Also, I don’t know if that figure includes attorney’s fees of the defendant as well at the plaintiff or just attorney’s fees for the plaintiff. In those other states that do not have laws running up damages for violations of title III, it certainly isn’t unusual to see a 4-5,000 dollar demand letter. Keep in mind, that settling with a serial plaintiff will not protect you from other serial plaintiffs.
  7. So, doing the two-step means an initial outlay of five to $10,000 possibly more or less to get the compliance survey done. Then, a matter of some hours of attorney time. But, think about what you save. First, you have a process in place to deal with plaintiffs who may come by and look for easy targets. Once a lawyer has evaluated the compliance survey, it can then be determined whether the things that are out of compliance are in need of an immediate fix or whether the things out of compliance can be prioritized to be solved later, as discussed in this blog entry for example. Once you have that information, and a plaintiff persists in demanding immediate accessibility for items that need not be immediately accessible, you can defend on the grounds you are doing everything that the law mandates you do. Also, you can argue to the plaintiff that since you are doing everything that the law mandates you need to do, further litigation on their part may set themselves up for a claim for attorney’s fees from the defendant per this blog entry.

So, do the two step!

Happy Thanksgiving!!!!!!!

Before moving on to the post of the week, you will notice that the blog has a new look and feel. I upgraded the blog so that it is better able to be used on mobile devices and more importantly the upgrade increases its ability to be accessible. Besides the look, you will see that everything is in the same place. So, users should not be concerned. Now onto the blog entry of the week!

With Donald Trump’s election to the presidency of the United States, the legal blogoshere has lit up with what might you expect from a Trump administration with respect to whatever specialty the blogging lawyer has. So, I am going to jump on that bandwagon.

First off, we don’t know what tone a Trump administration will take with respect to the rights of persons with disabilities. His record was such that he fought hard against ADA suits filed against his businesses, and then there was the reporter episode. That said, he might argue that more businesses should fight hard against ADA suits when necessary, and he has argued that the reporter episode was misconstrued. So, what follows is pure speculation on my part. That said, if one were to speculate using the principle that President Trump would be all about business-small and large- and what is best for business is good for everyone else, you could extrapolate certain things from that. Of course, this is a gross oversimplification, and again, we simply do not know the direction a Trump administration will go. Nevertheless, what follows is some food for thought:

  1. The Department of Justice pushed back its Title II and III regulations with respect to what constitutes an accessible website. I think those regulations are likely dead in the water. I have seen defense lawyers argue that the regulations are needed to create certainty for their clients. However, I think certainty is overrated in this situation. The standard for title II and title III is meaningful access. Being a businessperson, a President Trump might decide that it is better for businesses to have maximum flexibility to figure out how to allow its customers meaningful access to websites rather than hamstring businesses by complicated regulations. Sure, that might lead to lots of individual litigation, but the counter argument to that is that the ADA was meant to deal with individual situations. It also leads to the question as to what a Department of Justice in a Trump administration might insist upon with respect to settlement terms vis a vis the standard to use for Internet accessibility, assuming they elect to get involved in that kind of litigation in the first place.
  2. The Department of Justice and disability rights advocates have gotten very aggressive with respect to Olmstead enforcement where states are doing things with their budget that increase the risk of persons with disabilities being institutionalized. Whether the Supreme Court ever envisioned Olmstead being used in that way, as a sword, is something we discussed here. It is possible that a Trump administration would move away from enforcing Olmstead this way and just focus on situations where persons with disabilities are in institutions and are looking to get served in the community. I suppose it is also possible that they might argue in friends of the court briefs that it is not proper for disability rights advocates to use Olmstead as a sword.
  3. A Trump administration might get out of the title II enforcement business altogether per this blog entry.
  4. I recently read that there was a committee of folks working on updating the Air Carrier Access Act regulations to see if an agreement cannot be reached by all the parties. I read that if the process broke down, proposed regulations might be in the offing. The election of President Trump changes the bargaining dynamics so that the airlines might conceivably try to drive a harder bargain with respect to how far they want to go to accommodate persons with disabilities. For example, airlines might insist on narrowing just what kind of animals can accompany a person with a disability on the plane.
  5. One wonders if the affirmative-action regulations for persons with disabilities put out by OFCCP will even be defended by a Trump administration. The thinking being that such rules and regulations are too onerous for business and in any event, may not be defensible per this blog entry.
  6. With respect to architectural barriers and title III of the ADA, one wonders if a Trump administration would not get behind an effort to require notice to the business before being allowed to proceed with a title III architectural barriers action in the courts. California recently passed such a law. Since California did such a thing and California voted overwhelmingly for Hillary Clinton, that might give a President Trump cover for such a law. Whether President Trump chooses to use up political capital to enact such a law is anyone’s guess, but it makes sense that a Trump administration would look favorably on such legislation.
  7. There will be a new Supreme Court Justice, and it will not be Merrick Garland. Impossible to say what a new Justice would do with respect to the rights of persons with disabilities. Keep in mind, that when it comes to persons with disabilities, with rare exception (see next paragraph), Justice Kennedy has not been the swing vote on close decisions involving the rights of persons with disabilities.
  8. An area that Justice Kennedy will definitely be a swing vote on with respect to the rights of persons with disabilities is in the area of causation outside of the retaliation context. As discussed in this blog entry, there may be room for argument as to what is the standard for causation with respect to disability discrimination claims outside of the retaliation context. Scalia and Kennedy, the Kennedy view discussed here, may have been coming from very different views on that. President Trump is on record as saying that he wants a Justice in the mode of Scalia, but of course that doesn’t mean such a Justice will always follow what Justice Scalia would have done.
  9. Would a President Trump Department of Justice ask the United States Supreme Court to attack head-on just what are the obligations of the police when it comes to dealing with persons with mental health issues, as discussed in this blog entry.
  10. President Trump wants to repeal the Affordable Care Act, though he wants to keep the pre-existing condition coverage mandate and the ability to cover children 26 years or younger. That has two implications. First, the Affordable Care Act has requirements for data collection with respect to patients with disabilities. Second, the effective communication rule in the Affordable Care Act goes beyond what the Rehabilitation Act requires by adopting the effective communication regulations for title II of the ADA as the standard.
  11. Might a President Trump administration be receptive to claims that title II of the ADA goes beyond the enforcement clause of the equal protection clause or as incorporated into the due process clause? (See this blog entry for example).
  12. Not sure what a President Trump administration would do with respect to how far a school has to go to meet its obligation under IDEA, a case currently pending before the United States Supreme Court.
  13. Republicans for years have talked about getting rid of the Department of Education. Hard to believe they could pull it off. If it is possible, that would have huge ramifications on disability advocacy with respect to students discriminated against by educational institutions. While I don’t feel the need to exhaust administrative remedies with respect to the Department of Justice (process takes too long and Department of Justice involvement too uncertain), I do believe that exhausting administrative remedies with the Office of Civil Rights of the US Department of Education whenever possible is very valuable. Even if the Department of Education is not eliminated, one wonders what priorities the Office of Civil Rights will have in a Trump administration.
  14. The transgender case currently before the United States Supreme Court with respect to bathrooms has huge implications in the ADA arena. The issue there is just how much deference should be given to guidances from agencies that do not go through the rulemaking process, an issue we discussed in this blog entry. On the one hand, President Trump has said that he doesn’t much care what bathroom a transgender person uses. On the other hand, just how far regulatory agencies can go outside of the rulemaking process has profound implications for business, and it is unclear which way that goes. That is, such actions could be argued as in need of policing, but on the other hand, they do help bring some degree of certainty for clients. Expect the new Supreme Court Justice to play a critical role in answering this question.

Again, all of this is pure speculation and is certainly based upon insufficient information. Nevertheless, wanted to throw it out there as food for thought as lawyers are always trying to anticipate the future for their clients.