Last week, the Department of Justice came down with their final regulations implementing the amendments to the ADA with respect to title II and title III of the Americans with Disabilities Act. I had previously written on these proposed regulations back in February 2014, and so I thought it would be a good idea to update that entry. The blog entry is divided into the categories of DOJ final rule and takeaways. As such, it doesn’t make a lot of sense to read just one of the categories, but I suppose that it is possible.

I

DOJ Final Rule

  1. The DOJ did add the major life activities of reaching, sitting, and interacting with others. It also added writing to its non-exhaustive list of major life activities. It also, to match the title I implementing regulations of the EEOC, added the following examples of major bodily functions: special sense organs and skin; genitourinary; cardiovascular; hemic; lymphatic; and musculoskeletal systems. The DOJ makes it quite clear that the list of major life activities is illustrative and that it is neither necessary nor possible to list every major life activity.
  2. The DOJ also added the immune system and circulatory system to those that may be affected by physical impairment.
  3. The DOJ did add a reference to dyslexia as an example of learning disabilities. The phrase used in the final rule is, “dyslexia and other specific learning disabilities.”
  4. The DOJ did add ADHD as an example of a physical or mental impairment.
  5. The DOJ did stick with the nine proposed rules of construction, which we discussed in the above-mentioned blog entry.
  6. With respect to the regarded as prong, DOJ and its regulations make clear that the burden is on the covered entity to establish that objectively an impairment is both transitory and minor before that exception applies. That is, it doesn’t matter whether the employer believes that the impairment is transitory and minor, rather it is an objective standard. Further, the transitory and minor exception is a defense to a claim of discrimination and not part of a plaintiff’s prima facie case, a position which aligns with the EEOC.
  7. It added a phrase in the final rule noting that not all diagnosed impairments automatically trigger coverage under the ADA since you still have to show a substantial limitation, which may be true, but it isn’t going to happen very often.
  8. As it said it would do in the proposed rule, whether an activity is a major life activity is not to be determined by reference to whether it is of central importance to daily life (the Toyota Motor standard). Instead, the standard to use is whether the impairment substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population with respect to its condition, manner, or duration.
  9. Clarified that the Department of Justice does not endorse reliance on similarly situated individuals to demonstrate substantial limitations. It gives a couple of examples: whether an elderly person is substantially limited in a major life activity should be compared to the general population and not to similarly situated elderly individuals; someone with ADHD should be compared to most people in the general population.
  10. With respect to testing entities, in the final rule, DOJ clarifies that private entities offering covered examinations need to make sure any request for required documentation is reasonable and limited to the need for the requested modification, accommodation, or auxiliary aid or service. Further, when considering requests for modification, accommodation, or auxiliary aids or services, the entity should give considerable weight to documentation of past modification, accommodation, or auxiliary aids or services received in similar testing situations or provided in response to an IEP or a 504 plan.
  11. The ADA’s prohibition on assessing the ameliorative effects of mitigating measures applies only to the determination of whether an individual meets the definition of disability AND NOT to the requirement to provide reasonable modifications or testing accommodations.
  12. The availability of mitigating measures has no bearing on whether the impairment substantially limits a major life activity.
  13. The origin of the impairment, whether it’s effect can be mitigated, and any ameliorative effects of mitigating measures that are employed may not be considered in determining if the impairment is substantially limiting.
  14. Whether an impairment is both transitory and minor is a question of fact that is dependent upon individual circumstances.
  15. With respect to predictable assessments, impairments not requiring extensive analysis, DOJ added traumatic brain injury, to the list put forth in the proposed rule.
  16. Makes clear that epilepsy, muscular dystrophy, and multiple sclerosis each affect neurological/brain function.
  17. Facts gathered to establish a diagnosis of an impairment may simultaneously satisfy the requirement for demonstrating limitations on condition, manner, or duration sufficient to show that the impairment is a disability.
  18. The ultimate outcome of an individual’s efforts should not undermine a claim of disability, even if the individual ultimately is able to achieve the same or similar results as someone without the impairment.
  19. DOJ states it believes Congress made its intention clear that the ADA’s protections are such that the focus should be on how persons with disabilities engage in major life activities rather than the ultimate outcome of those activities. So, for example, the capacity to quantify testing grades does not make them inherently more valuable with respect to proving or disproving disability.
  20. With respect to the rules of construction, ameliorative effects of mitigating measures are not to be considered when determining whether an impairment substantially limits a major life activity. There is a non-exhaustive list of mitigating measures and those mitigating measures also include “learned behavioral or adaptive neurological modifications (includes strategy developed by an individual to lessen the impact of an impairment),” as well as psychotherapy, behavioral therapy, physical therapy, and reasonable modifications (includes both informal or undocumented accommodations and modifications as well as those provided through a formal process), or auxiliary aids and services.
  21. With respect to mitigating measures, if a person is utilizing a mitigating measure not on the list, that does not mean that the mitigating measure should be factored in. That is, you would still have to assess the situation without that mitigating measure, unless it is eyeglasses.
  22. With respect to the record of disability prong, any evidence that an individual has a past history of an impairment substantially limiting a major life activity is all that is necessary to establish coverage under that prong.

II

Takeaways:

  1. What the Department of Justice has done by these regulations is matchup by and large with the EEOC regulations implementing title I of the ADA. That certainly helps for consistency.
  2. School systems when it comes to dyslexia are now going to have a much more difficult time of insisting that dyslexia is not a disability covered by the ADA and 504.
  3. The transitory and minor exception means transitory AND minor, and it is an objective standard. It is also an affirmative defense. Finally, it is the Department of Justice’s view that whether an impairment is transitory and minor is a question of fact. As such, it may now be easier for plaintiff’s to survive summary judgment if the transitory and minor exception is involved.
  4. Toyota Motor’s definition of a major life activity no longer applies.
  5. Whether a person has a disability has nothing to do with similarly situated individuals.
  6. DOJ has put the brakes on excessive documentation request by testing entities and made establishing a disability for accommodations by testing entities much easier. On the other hand, while mitigating measures are out with respect to whether a disability exists, they are not out with respect to figuring out what modifications work; a very important distinction for both testing entities and places of education.
  7. The origin of the impairment has nothing to do with whether a person has a disability or not. While this final rule does not cover employment situations since that is the province of the EEOC and their implementing regulations, this is a big deal because I have seen light-duty policies vary in terms of their benefits depending upon how the disability originated. So, there may be a carryover here to the employment arena.
  8. The lists of major life activities and mitigating measures are not exhaustive.
  9. A person’s success through mitigating measures, whether they be through equipment or strategies the individual has developed, does not undermine a claim of disability. So, one wonders how this case would have turned out if this final rule was in place at the time of the decision, particularly in light of DOJ’s view that mitigating measures cannot be factored into whether the person has a disability but can be factored into the accommodation ultimately reached.
  10. The DOJ believes that it should be fairly easy to establish a record of a disability should there be such a record.
  11. Whether a substantial limitation on a major life activity exists, depends upon the condition, manner, or duration of the disability.
  12. Occasionally, you run across a few cases that talk about the need to show similarly situated people with respect to disability discrimination, it is clear from these regulations that the DOJ is having none of it.

First off, I want to thank everyone who voted for me for the 2016 ABA blog 100. It has been two years in a row for Understanding the ADA, and I am keeping my fingers crossed for a third. Thanks again everyone!

Turning to the topic of the week, about a week or so ago my Google alerts lit up concerning the EEOC Guidance on Employer-Provided Leave and the ADA, which came down on May 9 of 2016. I am not sure why my Google alerts lit up about a week ago considering the guidance came down in May. Nevertheless, I thought it would be useful to go over the guidance. I have been thinking in my head about how to organize this particular blog entry, and I came up with a system where the odd numbers would be the EEOC view and the even numbers would be my thoughts. So, section I is the EEOC view juxtaposed against my comments. While section II, are the takeaways.

I

The Guidance Itself:

  1. EEOC view: just what is a reasonable accommodation? Citing to an appendix to their regulations, the EEOC says that a reasonable accommodation is generally any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.
  2. Comments: Don’t have a problem with the formulation. As I have written numerous times in my book over the years, it helps to think of this in terms of getting the person with a disability to the same starting line as those without disabilities.
  3. EEOC view: employer policy requiring employees on extended leave to be 100% healed or able to work without restrictions may deny some employees reasonable accommodations that would enable them to work.
  4. Comments: absolutely as we discussed in this blog entry, which was one of my very first blog entries.
  5. EEOC view: employers often fail to consider reassignment as an option for employees with disabilities who cannot return to their job following leave.
  6. Comments: for sure. See this blog entry for example.
  7. EEOC view: consider this situation: an employer provides four days of paid sick leave each year to all employees and does not set any condition for use. That is, the employer’s sick leave policy does not require any documentation, and requests for sick leave are routinely granted based upon an employee’s statement that he or she needs the leave. If the employer demands documentation for the use of such leave because the employee is dealing with a disability, then the supervisor’s actions violate the ADA because the employee is being subjected to different conditions for use of sick leave than employees without a disability.
  8. Comments: makes sense.
  9. EEOC view: consider this situation: an employer permits employees to use paid annual leave for any purpose and does not require they explain how they intend to use it. If the employer denies an employee’s use of annual leave due to her disability, then you have an ADA problem. In this situation, the supervisor forced an employee with a disability to use sick leave instead of annual leave to deal with a disability even though he had never denied other employees annual leave based upon the reason for using it.
  10. Comments: makes sense.
  11. EEOC view: employers are entitled to have policies requiring all employees to provide a doctor’s note or other documentation to substantiate the need for leave.
  12. Comments: makes perfect sense as all employees are being treated the same.
  13. EEOC view: an employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it so long as an undue hardship is not created even where: the employer does not offer leave as an employee benefits; the employee is not eligible for leave under the employer’s policies; or the employee has exhausted the leave the employer provides as a benefit.
  14. Comments: not a problem but the emphasis of the EEOC is that the employer must consider providing unpaid leave. The specific accommodation could be different depending upon the results of the interactive process.
  15. EEOC view: reasonable accommodation does not require an employer to provide paid leave beyond what it provides as part of its paid leave policy.
  16. Comments: absolutely.
  17. EEOC view: consider this situation: an employer provides 10 days of paid annual leave and four days of paid sick leave each year to employees who have worked for the company less than three years. After three years, employees are eligible for 15 days of paid annual leave and eight days of paid sick leave. An employee who has worked for only two years and has used his 10 days of paid annual leave now requests six days of paid sick leave for treatment for his disability. Under its leave program, the employer must provide the employee with four days of paid sick leave but may refuse to provide paid leave for the two additional days of sick leave because the employee has not worked long enough to earn this benefit. However, the employer has to provide two additional days of unpaid sick leave as a reasonable accommodation unless it can show that providing the two additional days would cause undue hardship.
  18. Comments: no problems with much of this section. However, the section saying that the employer must provide the two additional days of unpaid sick leave as a reasonable accommodation absent a showing of undue hardship overstates the case. Again, the specific accommodation should be the result of the interactive process. Sure, it is absolutely conceivable that such a process would mean granting the two days of unpaid leave, and that it would be unlikely to be an undue hardship considering the rest of the employer’s policy. However, that is not the same as saying the granting of this accommodation is mandatory. We simply don’t know what the interactive process would reveal.
  19. EEOC view: consider this situation: an employer’s leave policy does not cover employees until they have worked for six months. An employee who has worked for only three months requires four weeks of leave for treatment of his disability. Although the employee is ineligible for leave under the employer’s leave policy, the employer must provide unpaid leave as a reasonable accommodation unless it can show that providing the unpaid leave would cause an undue hardship.
  20. Comments: completely agree that once a person is an employee, the ADA applies regardless of probationary status or regardless of length of tenure of the employee. Also agree that unpaid leave could be a reasonable accommodation and that anything goes with respect to accommodating a person with a disability unless an undue hardship exists. My issue is the statement that providing unpaid leave is mandatory absent an undue hardship. Again, as mentioned above, we simply don’t know what the interactive process would reveal. It is possible that the unpaid leave is the best situation, but maybe the interactive process would reveal something else. Reassignment perhaps?
  21. EEOC view: consider this situation: an employer’s leave policy explicitly prohibits leave during the first six months of employment. An employee who has worked for only three months needs four weeks of leave for treatment of a disability and the employer tells him that if he takes the leave, he will be fired. Although the employee is ineligible for leave under the employee’s leave program, the employer must provide unpaid leave as a reasonable accommodation absent a showing of undue hardship. If the employer could provide unpaid leave without causing an undue hardship, but fires the individual instead, then the employer violates the ADA.
  22. Comments: don’t have a problem except for the mandatory nature of the unpaid leave. Again, we just don’t know what the interactive process would reveal.
  23. EEOC view: When an employee requests leave, or additional leave, for a medical condition, the employer must treat the request as one for reasonable accommodation under the ADA.
  24. Comments: the EEOC is making this argument in a case, Capps v. Mondelez Global LLC, currently on appeal with the Third Circuit. However, as the lower court noted in the opinion hyperlinked above, it isn’t that simple. One has to remember, that to get FMLA leave, it has to be shown that a person cannot do the job’s essential functions. It does not have to be shown that the person can do the essential functions of the job with or without reasonable accommodations. Therefore, making a request for FMLA leave does not, according to the lower court, mean a request for reasonable accommodation is involved since whether a person can do the essential functions of the job with or without reasonable accommodations is not the question under the FMLA. In essence, it is much the same argument used by employers when a person files for Social Security Disability Income and later claims they have a right to proceed under the ADA, which we discussed in this blog entry. That said, as a preventive matter, it would make sense for the employer to use some common sense when a leave request comes through and start the interactive process to see what would work best for both sides.
  25. EEOC view: when seeking information to help figure out where the interactive process will go, much of the focus will go to the following issues: the specific reasons the employee needs the leave; whether the leave will be for a block of time or intermittent; and when the need for leave will end. Also, depending upon the information the employee provides, the employer should consider whether the leave would cause an undue hardship.
  26. Comments: makes sense. I do find the phrasing, “depending on the information the employee provides…,” a bit funny, as the employer should always be keeping in mind whether an undue hardship exists. Keep in mind, undue hardship can either be logistical or financial (see 29 C.F.R. § 1630.2 (p)(2)), and that a showing of financial undue hardship is a very rare occurrence.
  27. EEOC view: an employer may obtain information from the employee’s health care provider (with the employee’s permission of course), in order to confirm or to elaborate upon information that the employee has provided. Employers may also ask the healthcare provider to respond to questions designed to enable the employer to understand the need for leave, the amount and type of leave required, and whether reasonable accommodations other than (or in addition to), leave may be effective for the employee (perhaps resulting in the need for less leave).
  28. Comments: absolutely. However, it doesn’t make a lot of sense for the employer to do any of this unless the employer is having it all evaluated against the essential functions of the job. So, the employer should make sure that the person assessing the employee is given a copy of the essential functions of the job as the job is actually practiced. Once the employer has that information, don’t forget about the interactive process and utilizing the Job Accommodation Network.
  29. EEOC view: consider this situation: an employee with a disability is granted three months of leave by an employer. Near the end of the three month leave, the employee requests an additional 30 days of leave. In this situation, the employer can request information from the employee or the employee’s health care provider about the need for the 30 additional days and the likelihood that the employee will be able to return to work, with or without reasonable accommodation, if the extension is granted. However, an employer that has granted leave with a fixed return date may not ask the employee to provide periodic updates, although it can reach out to an employee on extended leave to check on the employee’s progress.
  30. Comments: not a problem here.
  31. EEOC view: although employers are allowed to have leave policies establishing the maximum amount of leave an employer will provide or permit, they may have to grant leave beyond this amount as a reasonable accommodation to employees requiring it because of his disability unless the employer can show that doing so will cause an undue hardship.
  32. Comments: very confusing. On the one hand, the EEOC is saying that they may have to grant leave beyond the amount of maximum leave, but on the other hand they are saying that it has to be done unless an undue hardship exists. As mentioned above, the EEOC also uses in this guidance the term, “must.” It simply isn’t clear what is going on here. Again, as mentioned above, the granting of leave per the ADA may very well happen, but it is also possible that the interactive process will come up with a different solution. The key is making sure the interactive process occurs.
  33. EEOC view: consider this situation: an employer covered under the FMLA grants employees a maximum of 12 weeks of leave per year. An employee uses the full 12 weeks of FMLA leave to deal with her disability but still needs five additional weeks of leave. The employer must provide the additional leave as a reasonable accommodation unless the employer can show that doing so will cause an undue hardship. However, the employer may consider whether other reasonable accommodations may enable the employee to return to work sooner than the employee anticipate, as long as those accommodations would be consistent with the employee’s medical needs.
  34. Comments: first, this situation happens all the time. Keep in mind, that in granting additional leave, the courts have held that there must be a fixed time. An unfixed time for additional leave is not a reasonable request for a reasonable accommodation. Second, while the EEOC says that leave must be provided, they then turn around and say that it is possible that reasonable accommodations may allow the employee to return to work sooner. The phrasing is very confusing. Again, the key is the interactive process. Third, the phrasing that “the employer may consider whether other reasonable accommodation may enable the employee to return to work sooner than the employee anticipates so long as those accommodations would be consistent with the employee’s medical needs,” is a bit funny because the critical question is not the employee’s medical needs. The question is whether in the employee’s current physical or mental condition, the employee is capable of performing the essential functions of the job with or without reasonable accommodations.
  35. EEOC view: consider this situation: an employer not covered by the FMLA, and its leave policy specifies that an employee is entitled to only four days of unscheduled leave per year. An employee with a disability informs her employer that her disability may cause periodic unplanned absences and that those absences might exceed four days a year. The employer should consider that request a request for reasonable accommodation and the employer should engage with the employee in an interactive process to determine if her disability requires intermittent absences, the likely frequency of the unplanned absences, and if an undue hardship exists.
  36. Comments: in this situation, the critical piece is that the employee is not eligible for FMLA leave. Accordingly, I give it a makes sense rating. If the employee is eligible for FMLA leave, then see ¶24, discussing Capps.
  37. EEOC view: with respect to form letters to communicate with employees nearing the end of leave provided under the employer’s leave program, such form letters should contain information within them that if the employee needs additional unpaid leave as a reasonable accommodation for his disability, the employee should ask for it as soon as possible in order for the employer to consider whether it can grant an extension without causing an undue hardship. If an employer relies on a third-party provider to handle lengthy leave programs, including short and long-term disability leave programs, it should ensure that any automatic form letters generated by these providers comply with the employer’s obligations under the ADA.
  38. Comments: makes sense.
  39. EEOC view: Employers handling request under the regular leave policy separately from request for leave as a reasonable accommodation should ensure that those responsible communicate with one another in order to avoid mishandling the request for accommodation. The employer should ensure that the contractor is instructed to forward to the human resources department in a timely manner any request for additional leave beyond the maximum period granted under the long-term disability program, and it refrain from terminating the employee until the human resources department has the opportunity to engage in an interactive process.
  40. Comments: makes sense. Also, when it comes to short-term and long-term disability policies, you may be facing the same situation alluded to in Capps and in Cleveland v. Policy Management Systems Corp.
  41. EEOC view: Where an employee requests additional leave exceeding an employer’s maximum leave policy, the employer may engage in an interactive process to assess the situation.
  42. Comments: I don’t understand the use of the term, “may.” Seems to me that failure to engage in the interactive process in that situation, would expose the employer to liability. Even if it wouldn’t somehow, engaging in the interactive process in this situation would be good preventive law.
  43. EEOC view: an employer violates the ADA if it claims an employee with a medical restriction poses a safety risk but cannot show that the individual is a direct threat. If an employee’s disability poses a direct threat, an employer must consider whether reasonable accommodation will eliminate or diminish the direct threat.
  44. Comments: makes sense. On this, you might want to check out Chevron U.S.A. Inc. v. Echazabal.
  45. EEOC view: consider this situation: the clerk has been out on medical leave for 16 weeks for surgery in order to address a disability. The employee’s doctor releases him to return to work but with a 20 pound lifting restriction. The employee refuses to allow the employee to return to work with the lifting restriction even though the employee’s essential and marginal functions do not require lifting 20 pounds. The employer’s action violates the ADA because the employee can perform the job and she does not pose a direct threat.
  46. Comments: my problem is with the use of the term, “” The only issue under the ADA is whether the employee can perform the essential functions of the job with or without reasonable accommodations. When it comes to marginal functions, those functions can be written off by the employer or assigned to someone else. If indeed the marginal functions are something that has to be performed for that person’s job, then wouldn’t it be an essential function in the first place? Finally, keep in mind a function can be essential even if it is performed infrequently.
  47. EEOC view: an employer may not prohibit the employee from returning to work solely because she needs reasonable accommodations. Of course, if the requested accommodation would constitute an undue hardship, that is another matter.
  48. Comments: the word “solely,” is bothersome. See this blog entry for example.
  49. EEOC view: When it comes to the interactive process, issues that need to be explored include: the specific accommodations and employee requires; the reason the accommodation or work restriction is needed; the length of time the employee will need reasonable accommodation; possible alternative accommodation that might effectively meet the employee’s disability -related needs; and whether any of the accommodations result in an undue hardship.
  50. Comments: not a problem here. Keep in mind, that temporary disabilities may be a disability under the ADA as discussed in this blog entry.
  51. EEOC view: where a person with a disability is no longer qualified/otherwise qualified for the position they are in, reassignment to a position that they are qualified for is mandatory.
  52. Comments: this view is certainly consistent with the view of the Seventh Circuit, as we discussed above. Even there, a seniority system may be involved as we discussed in this blog entry from last week. Also, mandatory reassignment is not a view that is universal among all the U.S. Court of Appeals. Look for the United States Supreme Court to ultimately step in.
  53. EEOC view: in determining whether leave results in an undue hardship, consider the following: the amount and/or length of leave required; the frequency of the leave; whether there is any flexibility with respect to the days in which leave is taken; whether the need for intermittent leave on specific dates is predictable or unpredictable; the impact of the employee’s absence on coworkers and on whether specific job duties are what constitute being performed in an appropriate and timely manner; and the impact on the employer’s operations and its ability to serve customers/clients appropriately and in a timely manner, taking into account for example, the size of the employer.
  54. Comments: I don’t see why these factors have to be exclusive. These factors do make sense when considering whether a logistical undue hardship is present. As I have written numerous times over the years, it makes sense to think of logistical undue hardship in terms of fundamental alteration (I once heard an EEOC Commissioner say the same thing).
  55. EEOC view: when considering whether additional leave constitutes an undue hardship, the employer has the right to consider whether that additional leave on top of the leave already granted taken together constitute an undue hardship.
  56. Comments: makes sense.
  57. EEOC view: Leave as a reasonable accommodation includes the right to return the employee to his or her original position.
  58. Comments: this is interesting. FMLA by statute requires such a return, but the ADA does not. If you don’t, is that an adverse action violating the ADA? Keep in mind, a demotion could be a reasonable accommodation as we discussed in last week’s blog entry. Also, an employer wants to keep in mind what obligations it has to reassign the employee to a vacant position the employee is qualified for, which we have also discussed above. Finally, the key is going to be the interactive process, whether it breaks down, and who is responsible for the breakdown of the interactive process.

II

Takeaways:

  1. Never forget about the interactive process and utilizing the Job Accommodation Network. It is possible that granting a leave is not the only option. After all, it is entirely possible that the employee would rather work with or without reasonable accommodation than go on leave.
  2. Make sure you understand just where your jurisdiction is on whether a person who is no longer qualified per the ADA to do their job must be re-assigned that they are qualified/otherwise qualified for.
  3. This is a guidance by the EEOC and so it is anybody’s guess as to how persuasive the courts will take this. See this blog entry for example. Even so, this guidance contains many excellent preventive law ideas.
  4. For people working in this area, Cleveland, mentioned above, and University of Texas Southwestern Medical Center v. Nassar are mandatory reading.
  5. 100% return to work policies are dead, but the readers of this blog already knew thatJ
  6. Don’t forget about the possibility of direct threat, particularly but not exclusively where public safety is involved.
  7. Marginal functions of the job can either be reassigned or written off. It is also possible that the marginal function is really an essential function. Remember, a function that is done every so often could still be an essential function.
  8. Temporary disabilities may be protected under the ADA.
  9. Whether leave as a reasonable accommodation includes the right to return the employee to his or her original position may or may not be the case. However, a thorough use of the interactive process could go a long way towards protecting the employer from liability in that regards.

Don’t forget about FMLA, but do not impose that scheme on the ADA either.

Before moving on to today’s case, the nominations for the 2016 ABA legal blawgs 100 are now open. The nomination form can be found here. The deadline is August 7, which is this Sunday. It has been a distinct honor and privilege to be a member of this distinguished group for the last two years, and I would love to have the opportunity to make it three years in a row. I know it has been a successful year for the blog so far as the majority of my clients come from my blog, and I also know from my analytics that I am consistently getting over 250 views a day and 150+ visitors a day. As they say in Chicago, my native town, vote early and often!!:-)

Today’s case is Kirincich v. Illinois State Police, a decision from the United States District Court for the Northern District of Illinois, Eastern Division, by Judge Kennelly that came down on July 22, 2016. This case explores essential functions, direct threat, interactive process, and reassignment. As is the usual practice for my blog entries, the blog entry is divided into categories and they are: facts; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.

I

Facts

Plaintiff suffered from type I diabetes since she was a child. In August 2011, the Illinois State Police hired her, and it was aware of her diabetes before hiring her. At the time of hiring, her diabetes appeared to be well controlled. For 13 years she had been treated by an endocrinologist using a program that aims to maintain her blood sugar levels and reduce the risk of diabetic complications. In the time after being hired by the Illinois State Police, she experienced at least two hypoglycemic episodes in which her blood sugar got so low that she lost consciousness. In late 2012 or early 2013, she was assigned to the night shift per the seniority system. The night shift required her to be on patrol from 10 PM to 8 AM the following day and her duties included driving a squad car, investigating crime, and intervening in ongoing criminal activity. She was also required to appear in court following the end of her shift if necessary, thereby extending the shift on an unpredictable basis at times. She was also required to be on call for statewide emergencies or other call up requirements.

On February 28, 2013, she suffered a hypoglycemic episode while on patrol as a state trooper. This caused her to lose consciousness and drive erratically for several miles, including: running a red light; driving over the center line; and colliding with several other vehicles at a high rate of speed. Ultimately, her vehicle stopped as the result of the collisions, and firefighters had to cut the roof off of her squad car in order to remove her from the vehicle. After this episode, the Illinois State Police placed her on restricted status in order to evaluate her ability to continue working as a state trooper. Ultimately, its medical review board referred her to an endocrinologist for an independent medical valuation. That person noted her blood sugar level should be closely monitored and controlled and recommended that her treating physician would have more insight into her ability to work based on the chronic nature of diabetes and the physician’s long relationship with her.

After conducting additional meetings to review the independent physician’s notes and other information related to her disability in the accident, the Illinois State Police determined that she could no longer perform the essential functions of the job and began the process of finding an accommodation by sending her a letter stating that she was unable to perform the essential functions of a sworn officer and could no longer continue in her position as a trooper. That letter identified her options moving forward, including applying for reassignment to a civilian position.

Following a meeting on November 5, 2013, the plaintiff did submit an application for reassignment to a civilian position. However, in the application she did not request a civilian position but rather requested an accommodation of change to the day shift explaining that the night shift was very problematic with respect to her diabetes. She said that her physician had told her that working exclusively on the day shift would alleviate the possibility her blood sugar levels would become unbalanced and would allow her to fully perform her duties without complications. On December 2, 2013, her counsel submitted to the Illinois State Police the letter from her endocrinologist confirming what she said in the application. However, at trial her endocrinologist did not testify that she knew the duties of state troopers other than that the plaintiff carried a badge and drove the vehicle for long periods of time. She also said that she did not receive any information on the essential functions of state troopers. The Illinois State Police said that her request for a patrol change was in conflict with the request for reassignment to a non-sworn civilian position. This led to a year-long period of correspondence.  On October 3, 2014, the plaintiff was invited to interview for a guard II position at the James R Thompson building in Chicago as well as for the position of truck weight stop inspector. She attended both interviews and was eventually offered both positions. She accepted the truck weight stop inspector position but took issue with the required transfer documentation, which framed the transfer as a resignation from a trooper position. When she manually redacted the word resignation and replaced it with notification that she was not resigning and was not being accommodated under the ADA, the Illinois State Police considered her return of the form as a resignation from the trooper position and an acceptance of the truck weight stop inspector position. It scheduled her to report to her position on February 1, 2015. In the meantime, the Illinois State Police notified her of an additional open position for which he could interview, a criminal intelligence analyst, which had a salary considerably higher than that of the truck weight stop position or even her state trooper position. After an interview, the Illinois State Police offered that position to her. When it offered that position to her, the Illinois State Police notified her that it was the third offer of an alternative accommodation and that if she declined the open offers, she would be terminating the reasonable accommodation process. Despite the warning, the plaintiff did not report for duty on any of the position she was offered. She then, presumably after exhausting administrative remedies,  filed a lawsuit saying that the ADA had been violated.

 

II

In granting summary judgment for the Illinois State Police, Judge Kennelly reasoned as follows:

  1. In order to prove a failure to accommodate claim, a plaintiff has to show: 1) she is a qualified individual disability with a disability; 2) her employer was aware of her disability; and 3) her employer failed to reasonably accommodate her disability.
  2. While it is true that an individual is qualified under the ADA if she is able to perform the essential functions of her position with or without reasonable accommodations, a person is not qualified for the ADA where they present a direct threat to the safety of herself or others. A determination of direct threat has to be based upon a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence after an individualized assessment of the individual’s present ability to safely perform the essential functions of the job.
  3. The Illinois State Police contended, and it was not disputed by the plaintiff, that one of the essential functions of a state trooper was being available 24 hours a day seven days a week for emergency call ups in the case of arrest, state emergency, or civil disturbances.
  4. No reasonable jury could find that the plaintiff could perform as a state trooper at night since both she and her doctor admitted that she could not do so.
  5. The ability to work at night was an essential function of the position.
  6. After an employee’s initial disclosure of his disability, the ADA requires an employer to engage in an interactive process in order to determine the appropriate accommodation under the circumstances. This process imposes a duty upon employers to engage in a flexible process with the employee with a disability so that they might identify the employee’s precise limitations and discuss accommodations enabling the employee to continue working.
  7. A refusal to grant a particular accommodation does not automatically subject an employer to liability. Rather, an employer flunks its obligation under the ADA when it refuses to grant a request for an accommodation and then does nothing to engage in finding alternative accommodations.
  8. An attempt to reassign an employee with a disability to an alternative position is required where that employee cannot perform the essential functions of her position and there are no other available accommodations.
  9. In considering reassignment to a different position, the employer must make a reasonable effort to explore the possibilities with the employee. Here, it was undisputed that the Illinois State Police not only explored the possibilities with the plaintiff, but ultimately also offered her three alternative positions, including one of which paid more than her state trooper position. While the plaintiff may not have been satisfied with those alternatives, that doesn’t mean the Illinois State Police is liable.
  10. The Illinois State Police did use a seniority system and therefore, it was not required to bump other employees or create new position when reassigning an employee with a disability. It was only required to reassign an employee with a disability to a vacant position for which she was otherwise qualified/qualified.
  11. Since the Illinois State Police offered several alternative positions as reasonable accommodations to the plaintiff, no reasonable jury could find that the Illinois State Police failed to engage in the interactive process.
  12. The plaintiff considered the non-sworn status of the offered positions a demotion, but even so, a position amounting to a demotion can be a reasonable accommodation in appropriate circumstances. That is, the employer is obligated to identify the full range of alternative positions for with the individual satisfied the employer’s legitimate, nondiscriminatory prerequisites and consider transferring the employee to any of those jobs, including those representing a demotion.
  13. Where an employer takes an active, good-faith role in the interactive process, it does not face liability when the employee refuses to participate in that process. Here, the Illinois State Police offered the plaintiff several different alternative position aligning with her need to work only during daytime hours. It was also undisputed that she accepted one of the positions but failed to report for duty. Accordingly, no reasonable jury could find that the Illinois State Police acted in bad faith or tried to thwart the interactive process and blocked reasonable accommodations.
  14. An employer cannot reasonably accommodate an employee who refuses to return to work.
  15. Even assuming, the Illinois State Police did prompt the end of the interactive process, that claim has to fail because the plaintiff simply could not show that the employer’s failure to engage in an interactive process resulted in a failure to identify an appropriate accommodation for the qualified individual.
  16. A shift change to the day shift for her to be a state trooper was not something the Illinois State Police had to do because doing so would have conflicted with it seniority system. Per U.S. Airways Inc. v. Barnett, 535 U.S. 391 (2002), the Illinois State Police was under no obligation to make that transfer absent a showing, which was not made by the plaintiff, that the Illinois State Police either regularly ignored the seniority system, operated outside of its bounds, or the seniority system contained exceptions.

III

Takeaways:

  1. While the Circuits are split, in the Seventh Circuit anyway, reassignment to a vacant position is mandatory where the employee is no longer qualified/otherwise qualified for the position she is in.
  2. The court doesn’t really analyze the direct threat piece, but that piece is certainly present in this case. The trooper had a record of losing consciousness on the job and was involved in a public safety position. Accordingly, if the court had analyzed the direct threat piece in detail, it is probable it would have been decided in favor of the employer.
  3. In the Seventh Circuit, when considering reassignment to a different position, the employer must make a reasonable effort to explore the possibilities with the employee. While this may not be something required in all Circuits, it is certainly good preventive law since it prevents the employee from being able to show that the interactive process resulted in a failure to identify an appropriate accommodation.
  4. If you represent an employer with a collective bargaining agreement or a seniority system, bumping is not required in order to accommodate an employee with a disability who is no longer qualified/otherwise qualified for her current position.
  5. When reassigning a person, jobs constituting a demotion can be in play without fear of liability under the ADA. Whether a demotion is in play, depends upon the alternatives explored to figure out what job(s) the employee can do the essential functions of with or without reasonable accommodations.
  6. A failure to report for duty for a job offered as an accommodation is evidence of the plaintiff causing a breakdown in the interactive process.
  7. If a physician is going to help you determine whether they can do the essential functions of the job with or without reasonable accommodations, make sure they know what the essential functions of the job are as the job is actually practiced. Also, as a backup, it is a good idea to contact the Job Accommodation Network as well.
  8. At some point, an employer can terminate the interactive process without fear of liability where the employee is not accepting offers of reasonable accommodations.

Today’s case discusses the issue of just when is an arrest out of compliance with the ADA. There is also a nice little bonus of qualified immunity as well. The case is Trujillo v. Rio Arriba County ex rel. Rio Arriba County Sheriff’s Department, 2016 U.S. Dist. LEXIS 96797 (D. N.M. June 15, 2016). We know from this blog entry that arrests are subject to the ADA. This case goes further by talking about when might an arrest be out of compliance with the ADA. The case is actually a discovery dispute, but there is some excellent analysis and discussion of when an arrest might be out of compliance with the ADA as well as a discussion of just how far qualified immunity goes. As is my usual practice, the blog entry is divided into categories: facts; issues; court’s reasoning with respect to when is an arrest out of compliance with the ADA; court’s reasoning with respect to the County’s qualified immunity; and takeaways. The reader is free to focus on any or all of the categories.

I

Facts

The plaintiff, an honorably discharged veteran of the United States Army, suffered from degenerative joint disease in his knees, nephropathy, and end-stage renal disease associated with diabetes mellitus. At approximately 7 PM on August 22, 2013, the plaintiff was stopped while at a driving while intoxicated checkpoint where an officer asked him to perform sobriety tests. Because of his disability, the plaintiff asked the officer if he could retrieve his walking cane from the trunk of his car. The officer denied him the opportunity to retrieve his cane even though the plaintiff repeatedly attempted to explain to the officer that he had a physical disability and offered to produce his handicap placard to prove his physical limitations. The officer noted that the plaintiff struggled to perform various walking and standing tests and that he was informed by the plaintiff that the plaintiff had knee problems and other ailments that prevented him from performing the tests adequately. The officer eventually arrested the plaintiff for driving under the influence of alcohol and kept him in handcuffs until the plaintiff’s daughter paid his bail around midnight. Throughout the encounter, the plaintiff was only allowed out of the handcuffs in order to sign paperwork related to his arrest. The plaintiff brought civil rights and tort claims against the County and the two individual officers in their individual capacities. For our purposes, we are particularly interested in the ADA claims against the County where the plaintiff claimed that he was denied the benefits of services, programs, and activities of the Department of Public Safety with respect to: 1) an encounter with an officer properly trained to deal with citizens suffering from service related disability; and 2) being treated with dignity by the government entities in that the County failed to provide adequate accommodation for persons with disabilities while conducting field sobriety tests and when he was placed in jail.

II

Issues:

  1. Just when is an arrest out of compliance with the ADA?
  2. Can the County claim qualified immunity?

 

III

Court’s Reasoning with Respect to When Is an Arrest Out Of Compliance with the ADA

  1. Drawing on a case from the 10th Circuit (Gohier v. Enright, 186 F.3d 1216 (10th 1999), and one from the Fourth Circuit adopting the 10th Circuit’s reasoning (Waller ex rel Estate of Hunt v. Danville, 556 F.3d 171 (4th Cir. 2009), there were two possible theories under which federal courts have addressed claims under the ADA arising from arrests: 1) where police wrongly arrest someone with a disability because they misperceive the effects of that disability as criminal activity; and 2) where police properly investigate and arrest the person with a disability for crimes unrelated to the disability but fail to reasonably accommodate that person’s disability in the course of the investigation or arrest, causing the person to suffer greater injury or indignity in that process than other arrestees.
  2. With respect to wrongful arrest, a plaintiff must establish three things: 1) the plaintiff was a person with a disability; 2) the arresting officers knew or should have known that the plaintiff had a disability; and 3) the defendant arrested the plaintiff because of legal conduct related to the plaintiff’s disability.
  3. With respect to whether arresting officers knew or should have known that the plaintiff had a disability, that means the arresting officer must know or have reason to know that the arrestee is a person with a disability.
  4. The essence of the reasonable accommodation during arrest theory is that once the police have a situation under control, the police have a duty to accommodate a disability.

IV

Court’s Reasoning with Respect to the County’s Qualified Immunity

  1. Since the Sheriff’s department through the County is not being sued in its individual capacity but only vicariously, qualified immunity, which only applies to individual capacity suits, is not available.

V

Takeaways:

  1. This case puts some meat on the bone so to speak with respect to how you would go about proving up a case involving an arrest that may be out of compliance with the ADA. With respect to the wrongful arrest theory, we now have the elements of a prima facie case.
  2. With respect failure to provide a reasonable accommodation when arresting theory, Trujillo and the cases Trujillo is based upon (here and here), do not lay out the prima facie case for such a claim. However, from reading these cases, we might be able to hazard a guess as to what a prima facie claim for lack of a reasonable accommodations when arresting someone might look like, namely: 1) plaintiff had a disability; 2) the arresting officers knew or should have known that the plaintiff was a person with disability; 3) plaintiff suggested to the officer a reasonable accommodation; and 4) the officer ignored that request or did not engage in any effort to explore what reasonable accommodations might work. Keep in mind, this theory only applies after the scene has been secured by the police.
  3. With respect to qualified immunity, it does not apply where a person or entity is not being sued in an individual capacity. So, plaintiff’s attorneys may want to consider that in structuring their complaint.
  4. A governmental entity can be vicariously liable under title II of the ADA where their employees violate the ADA.

 

 

Just what is a service establishment under title III of the ADA? A published case from the 10th Circuit that came down on July 12, 2016,  Levorsen v. Octapharma Plasma, Inc., deals with this question. As is usual, the blog entry is divided into categories: facts, 42 U.S.C. § 12181(7)(F); majority reasoning; reasoning of dissent; and takeaways. The reader is free to focus on any or all of the categories.

I

Facts

Plaintiff suffers from various psychiatric disorders, including borderline schizophrenia. For years, he had donated plasma in exchange for money in an effort to supplement his limited income. In May 2013, he attempted to do that at a Salt Lake City branch of Octapharma Plasma, Inc. (hereafter, defendant). The defendant operates in multiple places. At these places, the defendant collects donors’ plasma using a process called plasmapheresis. During that process, it draws and mechanically processes the donor’s blood, separating and reserving the plasma before returning the red blood cells to the donor. It pays it donors for this plasma, then sells it to pharmaceutical companies. When an employee of the defendant learned that the plaintiff suffers from borderline schizophrenia, the employee became concerned that he might have a schizophrenic episode while donating and dislodge the collecting needle, possibly injuring himself or someone else. The employee then advised the plaintiff that he was ineligible to donate plasma. Even though the plaintiff provided the defendant with a signed form from his psychiatrist, who both indicated that he was medically suitable to donate plasma twice a week, the defendant maintained its refusal to allow him to donate. He then brought suit under title III of the ADA. The defendant defended on the grounds that it was not a service establishment under 42 U.S.C. 12181(7)(F), and therefore, it was not subject to coverage under the ADA.

II

42 U.S.C. § 12181(7)(F)

42 U.S.C. § 12181(7)(F) states that one of the places of public accommodations includes:

“a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment.” (Emphasis mine).

III

Majority Reasoning (Moritz, Briscoe)

In reversing and remanding the decision of the District Court, which held that the defendant was not operating a service establishment, the majority, in an opinion by Judge Moritz, reasoned as follows:

  1. The court cited to the definition of a service establishment noted in II above;
  2. The examples listed for service establishment are not exclusive but instead are illustrative;
  3. Courts must construe the section liberally to afford individuals with disabilities access to the same establishments available to those without disabilities;
  4. Turning to Webster’s third new international dictionary, the court said that the dictionary defines a service as “conduct or performance that assists or benefits someone or something,” or “useful labor that does not produce a tangible commodity.” Therefore, a service establishment is a place or business of a public or private institution that, by its conduct or performance, is assisting or benefiting someone or something or providing useful labor without producing a tangible good for a customer or client. In other words, a service establishment is an establishment that provides a service;
  5. Giving the term “service establishment,” its ordinary meaning does not result in an ambiguity nor does it result in an irrational one. Rather, it results in a broad definition entirely consistent with the aim of title III to afford individuals with disabilities access to the same establishments available to those without disabilities;
  6. Even if giving the term “service establishment,” its ordinary meaning resulted in the definition that was ambiguous or irrational, employing the canons of statutory interpretation, ejusdem generis and noscitur a sociis (which would lead to the conclusion that only places providing compensation to customers should be considered a service establishment), doesn’t help anything because another rule of statutory interpretation argues against reading a direction of compensation requirement into the statute when it doesn’t appear. To decide otherwise, only serves to manufacture ambiguity when none exists;
  7. Even assuming ambiguity does exist, legislative history supports the decision to refrain from concluding that an entity is a service establishment only if it is similar to the enumerated examples in the section. More specifically, a House Report explained that a person alleging discrimination does not have to prove that the entity being charged with discrimination is similar to the examples listed in the definition, but only has to show that the entity falls within the overall category. Further, Congress changed the language in this section from “other similar service establishment,” to “other service establishment,” presumably to make clear that a particular business need not be similar to the examples in order to constitute a service establishment (a presumption consistent with legislative history);
  8. The defendant is a place of business that assists or benefits those who wish to provide plasma for medical use, whether it be for altruistic reasons or pecuniary gain, by supplying the trained personnel and medical equipment necessary to accomplish that goal. While the defendant may ultimately produce a tangible good for pharmaceutical companies in the form of plasma, it doesn’t produce a tangible good for individuals like the plaintiff seeking the use of plasma procurement services. Rather, the defendant simply assists those individuals in accomplishing their goal of providing plasma;
  9. The argument that finding the defendant is running a service establishment contradicts regulations from the FDA doesn’t wash because this decision is not a decision on the merits, but rather one holding that it is subject to title III of the ADA in the first place.

III

Reasoning of the Dissent (Holmes)

  1. The District Court correctly ruled that service establishments offer certain services in exchange for monetary compensation i.e. a fee;
  2. Every establishment listed in the section shares certain unifying traits by: 1) offering the public a service in the form of: a) expertise (eg. barbers, beautician, shoe repair craftsman, drycleaner, funeral parlors, lawyer, accountant, insurance offices, pharmacists, healthcare providers, and hospitals); or b) specialized equipment (eg. laundromats and gas station); 2) for use in achieving some desired end in exchange for monetary compensation;
  3. Plasma donation center do not receive a fee from members of the public in exchange for any services they provide;
  4. To the extent that plasma donation centers provide services to the public, they do not do so for the public’s use in achieving the desired end. Rather, they provide them for the plasma centers use in achieving a desired end-collecting plasma for sale to pharmaceutical companies. Therefore, plasma donation centers are fundamentally unlike service establishments listed in the section and should not be deemed to fall within the scope of that section;
  5. Since the statute is clear, legislative intent should not be looked at;
  6. The meaning of statutory language depends upon context and using the applicable canons of statutory construction (see below). Therefore, it doesn’t make sense to break out the terms “service,” and “establishment,” in the way the majority did in order to come up with a definition of the term, “service establishment;”
  7. It was proper to apply to statutory canons of construction, as the lower court did, to reach the proper result. The first, ejusdem generis, means that when a general term follows a specific one, the general should be understood as a reference to subjects akin to the one with specific enumeration. The second, noscitur a sociis, means that a word is known by the company it keeps;
  8. Canons of statutory construction are aids in construing statutory language itself and not a tool to be relied upon only in the face of ambiguity;
  9. Saying that there is no need to resort to legislative history if the literal language of the statute controls, is not the same thing as giving a court the right to ignore canons of statutory construction;
  10. The fact that legislation has a remedial purpose does not give the judiciary license in interpreting a provision to disregard entirely the plain meaning of the word used by Congress;
  11. The Department of Justice has made it clear that the statutorily enumerated examples are representative and illustrative of what constitutes a service establishment i.e. the examples possess qualities common to all service establishments;
  12. From looking at the categories in the section, it is more appropriate and natural to think of service establishments as providing a service rather than a good even though the delivery of the goods may be incidental to the furnishing of the service. Accordingly, service establishments under this section offer services to the public in exchange for a fee, i.e. monetary compensation;
  13. Every establishment listed in the section provides the public a service in the form of expertise or specialized equipment. Further, the list of services are intended for the public’s use in achieving a desired end, such as a haircut, clean clothes, legal advice etc.;
  14. Using the principles of statutory construction, the term “service establishment,” is a statutory term with a distinct meaning from the dictionary definitions of its component words;
  15. Utilizing the statutory canons of constructions leads to the conclusion that for a place of public accommodation to be a service establishment, the entity must offer the public a service in the form of expertise or specialized equipment for use in achieving some desired end of the public in exchange for compensation. The plasma centers do not meet this definition because they do not receive a fee from members of the public in exchange for any services that they furnish. Instead, they give members of the public a fee for tendering to them the commodity in the form of plasma or for performing a service of donating plasma;
  16. Unlike the service establishments found in the section, the defendant did not receive money from the plaintiff in exchange for services, but rather it paid the plaintiff instead;
  17. Plasma centers do not provide services for the public’s use in achieving the desired end, rather they provide them for the plasma centers use in achieving the desired end. Every service establishment listed in the section offers members of the public a service for use in achieving an end desired by them and not an end desired by the service establishment;
  18. The statute contemplates the service establishment provide the service to the public in exchange for a fee that it receives, but it does not contemplate that a member of the public will receive from the service establishment both the service and the fee. That is, under this section, the fee cannot be the desired end the public is seeking to achieve from the plasma donation center because the statute contemplates that the service establishment receive the fee in exchange for providing the desired end;
  19. Plasma donation centers resemble manufacturers much more than they do the kind of entities customarily providing services to the public under this section. That is, they manufacture a product, plasma. That product is derived from a raw commodity, whole blood, given by donors in exchange for a fee. Thus, plasma donation centers are more like paper mills, a manufacturer, than the other typical business providing services to the public under this section. Further, federal statutes clearly regard plasma donation centers as manufacturers as does the Food and Drug Administration. So, plasma centers may be manufacturers, but they are not service establishments.

IV

Takeaways:

  1. This case is the first of its kind at the Circuit Court level. Both opinions have their strengths and weaknesses, and as a result, I would certainly expect the Circuits to eventually split on this question. Will the Supreme Court take the case before a split in the Circuits presents itself? They don’t usually do that, but it does happen on occasion. Which way would the Supreme Court go? If Justice Scalia was on the Court, there is little doubt in my mind that the dissenting view would prevail. However, he is no longer on the Court, and we have an election coming up. So, it is impossible to predict which way this case will ultimately go. Considering the dissent and how it is written, one wonders whether four Justices would even agree to hear the case as I could see this case being an even split. That is, a reasoning based on canons of statutory construction will, in my opinion, have a great deal of appeal to many Justices on the Supreme Court. That said, perhaps four would agree to hear the case and gamble on what the next Justice would do. Such a gamble would be a huge one because a case turning on interpretation of a statute with statutory canons of construction/legislative history being the critical factors does not fit neatly into a liberal-conservative dynamic.
  2. Since canons of statutory construction have a great deal of appeal to jurists, one wonders if the 10th circuit will not grant a rehearing en banc, assuming one is sought.
  3. How this case ultimately resolves itself depends upon whether legislative history combined with the statutory construction that you don’t read words into a statute that are not there prevails or whether the two canons of statutory construction that are the underpinning of the dissent prevails. It could go either way.
  4. If the case goes forward, direct threat will be a factor. However, the Department of Justice regulations for title II and title III (28 C.F.R. § § 35.139, 208 respectively), unlike the EEOC regulations, do not include threat to self as one of the possibilities.
  5. The manufacturing part of the dissenting opinion leads one to wonder if the dissent isn’t essentially claiming that the plasma centers are a commercial facility per 42 U.S.C. § 12181(2) . Commercial facilities are subject to new construction and alteration requirements but they are not subject to the auxiliary aids and nondiscrimination provisions (see here at discussion of 28 C.F.R. § 36.104).
  6.  Interestingly enough, under either the majority or dissenting opinion, software as a service, which I discuss here, would be a service establishment.

Today’s case is a case out of the Sixth Circuit, Ferrari v. Ford Motor Company, decided June 23, 2016. It deals with the issue of what happens when an employer perceives an opioid addiction. As is typical, my 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:

Ford Motor Company hired Ferrari in 1996, and he initially worked in assembly. He is still employed by Ford. In 2000, he suffered a neck injury at work, placing him on medical leave from June 2001 to April 2003. After Ferrari returned from medical leave, Ford accommodated his restrictions for the next nine years by placing him in various light work positions with the last of those placements being in the human resources office. On November 21, 2012, while Ferrari was still on medical leave, his pain management doctor agreed to remove his work restrictions. Until that point, Ferrari’s restrictions had been classified as permanent. In December, he returned from FMLA leave and testified that he was feeling better and wanted to get back to work. Ferrari was also hopeful that he would soon be able to leave the human resources office as his pain management doctor had removed his restrictions and he had heard a rumor that he might be called to apprentice in the trades. On December 3 of 2012, one of Ford’s company doctors conducted a physical to determine whether Ferrari could return from medical leave. She cleared Ferrari to return from psychiatric medical leave. Ferrari also asked her to lift the restriction tied to his neck injury. According to her notes, Ferrari told her that he requested the restrictions be lifted by his pain management doctor when an opportunity arose for him to go into the skilled trades. She decided to maintain his restrictions pending further testing and review. In her notes, she expressed the need to ascertain why the restrictions were suddenly removed, especially since the pain management doctor most recent progress notes found that he was disabled and had an ongoing need for narcotic medications. With regards to her concern about opioids, her notes indicated that on December 21, 2005, another doctor had found that Ferrari was addicted to narcotics and determined that he could not return to his employment at Ford while he was on the narcotics. Ferrari testified that on December 17, 2012, a union representative advised him about an opening in the skilled trade apprenticeships and refrigeration management at the plant. The collective bargaining agreement provided that any apprenticeship goes to the person highest on the waitlist so long as he or she is deemed qualified. His position on the waitlist guaranteed him one of the two apprenticeships if he passed a pre-apprenticeship physical. Ferrari’s pre-apprenticeship physical was scheduled for January 16 of 2013 with Dr. Brewer. In advance of their physical, the plaintiff obtained clearances from two other doctors as well as a clearance from a functional capacity evaluator. While all of them concluded that his neck injury no longer required physical restrictions, none of them addressed his opioid use. One of his doctors entry indicated that he was still actively using opioids, but did not address whether the opioids would affect his performance on the job. The physical went ahead as scheduled on January 16. In her notes, Dr. Brewer observed that his pain management doctor had not responded to her inquiry as to what changed to warrant dropping all restrictions after nine years, and she also noted that his medical records indicated he was still using opioids. On February 7, 2013, Dr. Brewer sent a letter to his pain management doctor in which she provided the job description of the apprenticeship and inquired about whether plaintiff could safely execute the tasks required while taking opioids. According to the job description, an employee must climb 30-50 foot ladders and open and close large overhead valves. They must also work at heights on overhead catwalks and mobile elevated work platforms. In the pain management doctor’s reply, he said that his patient was not addicted to opioids, but it would take 3 to 4 months to wean him off the opioids and that the opioids did not affect his physical performance, mental clarity, or cognitive functioning. His pain management doctor concluded that plaintiff was safely able to perform all functions listed in the job description. Dr. Brewer also scheduled an independent medical examination with another doctor, which both parties acknowledged as binding. The report of that doctor acknowledged that the plaintiff claimed to have been off opioids for three months, but that his claim was not substantiated by his medical records because as of January 7, 2013 he had reported that he was still on opioids. Accordingly, the independent doctor concluded that if he was still on opioids as the medical records indicated, he would not allow Ferrari to resume unrestricted employment because the use of opioids may affect his performance. In light of all this, Dr. Brewer removed two of Ferrari’s four restrictions. However, she maintained the ladder climbing and overhead work restrictions until he was taken off the prescribed opioids which, according to his pain management doctor, would take approximately 3-4 months. She also noted that the plaintiff would be re-assessed in 3-4 months to monitor the progress of weaning him off the opioids and if the process was successful and documented, the remaining restrictions would be removed.

The apprenticeship supervisor reviewed plaintiff’s two restriction to determine whether he could participate in the program. He concluded that the restriction precluded him from participating in the program because having the ability to work overhead and climb ladders on a daily basis were essential to performing the job. While it was possible that he could theoretically and occasionally stay on the ground while a supervising journeyman climbed the ladder, the apprenticeship supervisor said that the climbing of the ladder was essential to learning the task to be performed at the top of the ladder – whether it be checking fluid levels, bending fluids, mixing chemicals, monitoring or repairing HVAC equipment, opening or closing a multitude of valves, sometimes on an emergency basis to prevent an explosion, or the like. The supervisor for the apprenticeship supervisor also signed off on the decision. After the decision was made that he could not participate in the apprenticeship program, he was placed on temporary bypass and another candidate filled the opening. He was then placed in a machining associate position that met his restrictions. In September 2013, Ferrari notified the joint apprenticeship committee that his restrictions had expired and that he was first on the waitlist for an apprenticeship. He brought suit under the ADA, the Michigan disability discrimination law, and the Family and Medical Leave Act.

 

II

Court’s Reasoning

In affirming the grant of summary judgment for the employer on the ADA claims, the court reasoned as follows:

  1. To recover on a claim for discrimination under the ADA a plaintiff must show: 1) he is a person with a disability; 2) he is otherwise qualified; and 3) he suffered an adverse employment action because of his or her disability.
  2. Proving up a claim can be done either by direct evidence or indirect evidence.
  3. With respect to direct evidence, the court said that the plaintiff bears the burden of establishing that he or she is a person with a disability and otherwise qualified for the position despite his or her disability: 1) without accommodation from the employer; 2) with an alleged essential job requirements eliminated; or 3) with the proposed reasonable accommodation. Once the plaintiff has established these elements, the employer bears the burden of proving that a challenged job criterion is essential or that a proposed accommodation will impose an undue hardship upon the employer.

I must confess that this statement of direct evidence has me befuddled because an employer is not required to eliminate an essential job requirement.

  1. With respect to the indirect method, establishing a claim for disability discrimination involves a plaintiff showing: 1) he is a person with a disability; 2) he is otherwise qualified for the position; 3) he suffered an adverse employment decision; 4) the employer knew or had reason to know of the plaintiff’s disability; and 5) the position remained open while the employer sought other applicants or the person with a disability was replaced. Once the plaintiff establishes those elements, the burden then shifts to the defendant to offer legitimate explanation for its actions. If the defendant does so, the burden then shifts back to the plaintiff, who must introduce evidence showing that the offered explanation is pretextual.

Interesting use of the term, “otherwise qualified.” “Otherwise qualified,” is a term you see in the Rehabilitation Act and no longer in the ADA as a result of the amendments to the ADA. Even so, as a substantive matter, there is no difference between the term “qualified,” and the term “otherwise qualified,” with respect to their meaning.

  1. When an employer acknowledges that it relied upon a person’s disability in making its employment decision, the burden shifting approach is unnecessary because the issue of the employer’s intent has been admitted by the defendant and the plaintiff has direct evidence of discrimination on the basis of his or her disability.
  2. Relying on two cases dealing with regarded as that were decided prior to the amendments to the ADA, the court said that Ferrari did not specify which major life activity he believed was limited by his opioid use, and that it would seem that he was arguing that Ford mistakenly believed his opioid use substantially limited him in the major life activity of working. Since he was not prohibited from performing a broad class of jobs, he was not substantially limited in the major life activity of working and therefore, the direct evidence approach was not going to work for Ferrari.

With respect to paragraph § II6, I don’t get it. That is, the amendments to the ADA completely changed the analysis with respect to regarded as claims. Thanks to the amendments, all a person has to show is that the employer regarded him or her as having a physical or mental impairment. It is no longer necessary as it was under Sutton v. United Airlines to show that the employer also regarded him or her as being substantially limited in a major life activity. Further, the adverse actions occurred after the amendments went into effect.

I was so taken aback by this particular reasoning, that I investigated where this might have come from. Could it have been something raised in the lower court or in the appellate arguments? When I checked the lower court opinion, the lower court said that a regarded as claim was out because the disability was transitory. That is, he was weaning off the opioid addiction within 3 to 4 months, which is less than the six months under the ADA. Interestingly enough, the lower court did not address whether the disability that was being regarded was both transitory AND minor; it has to be both for that exception to apply per 29 C.F.R. 1630.15(f).

I then listened to the oral argument to figure out whether this particular reasoning came from the oral argument. It did not come from there either. At the oral argument, the plaintiff argued that: issues of fact were present so that summary judgment was not proper; no direct threat analysis was done; and the neck injury argument was a pretext. The defense argued that: the the job was inherently risky and was in the most dangerous part of the plant; he was still employed and was at the top of the list for any openings; opioid use and not the neck injury was the key and the complaint was structured in a way that focused on the opioid use; mixed motive did not apply and the but for standard was the applicable causation rule; even if mixed motive applied, there was no pretext; and Ferrari constituted a direct threat. On rebuttal, Ferrari’s attorney argued that: the direct threat factors were never addressed; pretext existed; and Ferrari asked for a drug test but was denied.

So, I am not sure where the reasoning described in 6 of this section came from. It does not seem to square with the explicit terms of the ADA as amended.

  1. With respect to the indirect method, Ferrari’s restrictions and the medical condition underlying them were a legitimate, nondiscriminatory explanation for Ford’s adverse employment decision.
  2. Under the law in the Sixth Circuit, pretext can be shown in any of three different ways: 1) the offered reasons had no basis in fact; 2) the offered reason did not actually motivate the employer’s action; or 3) the offered reasons were insufficient to motivate the employer’s action.
  3. In the Sixth Circuit, there exists an honest belief rule with regards to pretext, which says that so long as the employer honestly believes the reason it gave for the employment action, an employee is not able to establish pretext even if the employer’s reason is ultimately found to be mistaken. Proving that the nondiscriminatory basis for the employment action is honestly held, means that the employer has to be able to establish reasonable reliance on the particular ice facts that were before it at the time the decision was made. Once the employer shows that it made a reasonably informed and considered decision before taking the adverse action, the employee has the opportunity to produce proof to the contrary.
  4. The plaintiff failed to present evidence creating a dispute of material fact as to whether the decision-makers honestly believe that his restrictions reflected a reasonable medical judgment. Ford Motor’s position evaluation of his opioid use was thorough. She conducted two examinations of him, reviewed his medical history, obtained his most up-to-date medical records, ordered new tests, ordered an independent medical exam to resolve discrepancies in his medical records, and revises restrictions based on this new information.

 

III

Takeaways

  1. I do not know if this case will be appealed, but with respect to the direct evidence part of the decision, particularly with respect to § II6 of this blog entry, it would seem that the grounds for appeal are there as regarded as under the amendments to the ADA works in quite a different way than what was described in this opinion. That is, the way one would expect it to work in light of the amendments would be as followed: 1) plaintiff has or is regarded as having a disability within the meaning of the ADA; 2) plaintiff is qualified/otherwise qualified; and 3) plaintiff suffered an adverse employment action on the basis of [her] disability or perceived disability. See Brown v. Northrop Grumman Corporation, 2014 U.S. Dist. LEXIS 116188 (E.D. NY August 19, 2014). So, under these facts, plaintiff could clearly show that he was regarded as having a physical or mental impairment (opioid use), and so we get to the second part of the case. On the matter of being qualified/otherwise qualified, the plaintiff is going to have a harder time because when it comes to regarded as, under the amendments to the ADA, a person is not entitled to reasonable accommodations (a point that for some reason did not come up in the opinion). Also, with respect to otherwise qualified, the direct threat defense may come up as well. That is, the plaintiff may have a hard time showing that the employer did not reasonably find a direct threat existed, though at appellate argument, the plaintiff argued that Ford did not walk through the direct threat factors as it would apply to Ferrari (question of fact perhaps with respect to direct threat?). Finally, it should not be a problem for the plaintiff showing an adverse employment action on the basis of disability.
  2. In short, it is absolutely possible that on appeal the plaintiff still loses despite the court correcting II6. Even so, the disparity between the court’s reasoning and what the ADA as amended actually says is disconcerting.
  3. The current user exception regarding drug use does not apply as illegal drugs are not involved here.
  4. With respect to regarded as, if the employer says on appeal that the exception applies, can it show the perceived disability was transitory and minor?
  5. The plaintiff here is currently an employee with Ford. I am seeing more and more cases where a current employee is suing his or her employee for disability discrimination. On the employment side, keeping an employee on, despite how uncomfortable it might be, might actually help with respect to prevailing in a lawsuit.

 

 

 

 

 

 

 

 

 

 

 

Did you know that persons with disabilities are undefeated at the Supreme Court when it comes to title II and title III matters? It’s true.

Let us explore the ADA and ADA related cases that have been before the United States Supreme Court since the ADA went into effect. If I have this figured right, three cases are a split decision; five cases are wins for persons with disabilities when it comes to title I matters; seven cases are losers for persons with disabilities when it comes to title I matters; five cases are winners for persons with disabilities in title II matters with no losses; three cases are winners for persons with disabilities in title III matters with no losses; and two cases involving remedies are losers for persons with disabilities with a third being a split decision. Before we break it down, let me explain the categories for this blog entry and they are: employment cases; title II; title III; split decisions; remedies; why this exercise (a discussion of the two disability rights cases the Supreme Court just agreed to hear); and conclusions. As is usual, the reader is free to focus on any or all of the categories. Now, to break it down:

I

Employment Cases

  1. Cleveland v. Policy Management Systems Corporation, 526 U.S. 795. A win for persons with disabilities with the court holding that an SSDI filing does not automatically prevent a person from filing an ADA claim later.
  2. S. Airways, Inc. v. Barnett, 535 U.S. 391. A loss for persons with disabilities with the court holding that a person with a disability did not have the right to bump a more senior person when a seniority system was present.
  3. Raytheon v. Hernandez, 540 U.S. 44. A loss for persons with disabilities with the court holding that a facially neutral policy applied in a uniform way can be used to escape ADA liability.
  4. Wright v. Universal Marine Service Corporation, 525 U.S. 70. A win for persons with disabilities with the court holding that there was no presumption of arbitrability with respect to ADA claims, and where an arbitration clause said that ADA claims would be subject to the clause, such a clause must be clear and unmistakable.
  5. Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356. A loss for persons with disabilities with the court holding that persons with disabilities when it comes to employment are in the rational basis class and therefore, sovereign immunity applied to title I suits against state entities.
  6. Toyota Motor Manufacturing, Kentucky v. Williams, 534 U.S. 184. A loss for persons with disabilities with the court holding that a person was substantially limited in the major life activity of performing manual tasks if they were severely restricted or prevented from performing that major life activity. It also held that a major life activity was one of central importance to daily lives. Keep in mind, this decision was overruled by the amendments to the ADA.
  7. Albertson’s v. Kirkingburg, 527 U.S. 555. A loss for persons with disabilities. One of the three Sutton trilogy cases holding that mitigating measures must be factored into the calculus of whether a person has a disability. Keep in mind, this decision was overruled by the amendment to the ADA or not… (but see this blog entry).
  8. Sutton v. United Airlines, 527 U.S. 471. See paragraph 7 immediately above.
  9. EEOC v. Waffle House, 534 U.S. 279. A win for persons with disabilities saying that the EEOC had an independent right to bring a claim regardless of whether the plaintiff has signed an agreement to arbitrate.
  10. Murphy v. UPS, 527 U.S. 516. See paragraph 7 of this section.
  11. Clackamas Gastroenterology Associates PC v. Wells 538 U.S. 440. A win for persons with disabilities with the court holding that it depends upon the facts as to whether someone who may be a partner or owner of the business in name is actually an employee for purposes of the ADA.
  12. EEOC v. Abercrombie and Fitch 135 S. Ct. 2028. Not an ADA case at all but containing language favorable to persons with disabilities (see this blog entry).

II

Title II

  1. Tennessee v. Lane, 541 U.S. 509. A win of sorts for persons with disability with the court holding that sovereign immunity can be forcibly waived with respect to non-employment suits against state entities depending upon the facts of the case.
  2. Olmstead v. L.C. by Zimring, 527 U.S. 581. A huge win for persons with disabilities with the court holding that persons with disabilities have a right to be served within the community.
  3. S. v. Georgia, 546 U.S. 151. A win for persons with disabilities holding that a showing of constitutional violations waives sovereign immunity.
  4. Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206. A win for persons with disabilities with the court holding that the ADA applies to prisons.
  5. City and County of San Francisco v. Sheehan, 135 S. Ct. 1765. A win for persons with disabilities as it acknowledges that title II of the ADA applies to everything that a public entity does. It also remanded the case for ADA proceedings.

III

Title III

  1. Bragdon v. Abbott, 524 U.S. 624. A win for persons with disabilities holding that HIV positivity is a disability under the ADA and that a dentist had to serve such an individual absent a direct threat.
  2. PGA Tour v. Martin, 532 U.S. 661. A big win for persons with disabilities holding that the ADA applies to professional sports and containing lots of favorable language for persons with disabilities.
  3. Spector v. Norwegian Cruise Lines, 545 U.S. 119. A win for persons with disabilities with the court holding that foreign flag cruise ships were subject to the ADA within certain limits.

IV

Split Decisions

  1. Chevron v. Echazabal, 536 U.S. 73. A split decision because the court found in favor of the EEOC but against the person with a disability when it held that a direct threat defense applies to the self as well as to others.
  2. Barnes v. Gorman, 536 U.S. 181. A split decision with the court finding that compensatory damages against state entities are available under title II of the ADA and the Rehabilitation Act but not punitives.
  3. University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517. A split decision with the court holding that retaliation requires but for causation but containing very favorable language with respect to causation in non-retaliation ADA claims.

V

Remedies

  1. CRST Van Expedited v. EEOC. A non-ADA case, but a loss for persons with disabilities with the court expanding the possibilities for a defendant to get attorneys fees.
  2. Buckhannon Board and Care Home v. West Virginia Department of Health and Human Resources, 532 U.S. 598. A loss for persons with disabilities with the court holding that prevailing party means a judgment on the merits or a consent decree and rejecting the catalyst theory.

VI

Why This Exercise?

  1. Supremes agreed to hear two cases last week involving disability rights.
  2. The first case the Supreme Court decided to hear is the case of Fry v. Napoleon Community Schools, 788 F.3d 622 (6th 2015). In that case, the Sixth Circuit held that the IDEA exhaustion requirement had to be construed very broadly so as to preclude the plaintiffs from pursuing an ADA/Rehabilitation Act claim before IDEA exhaustion was completed. There was a vigorous dissent in that case. I have previously discussed this issue in this blog entry and in this blog entry. Whether this case is viewed as a win or a lose for persons with disabilities depending upon its decision, entirely depends upon what your view of IDEA is v. § 504/ADA. The two laws have very different philosophies and very different approaches to resolving differences.
  3. The second case is Ivy v. Williams, 781 F.3d 250 (5th 2015). This is an interesting case. I am not aware of a Circuit court split on this one.
    1. Facts in Ivy: In this case, in Texas, individuals under the age of 25 cannot obtain driver’s licenses unless they submit a driver education certificate to the Department of Public Safety. Driver education certificates are only available from private driver education schools licensed by the Texas Education Agency. The plaintiffs, all deaf, contacted a variety of Texas Education Agency licensed private driver education schools, all of which informed the named plaintiffs that the schools would not accommodate them. As a result, the plaintiffs cannot obtain driver education certificates and therefore, cannot obtain driver licenses. A deafness resource specialist with the Texas Department of Assistive and Rehabilitative Services informed the Texas Education Agency of the inability of the deaf individuals to receive driver education certificates. However the Texas Education Agency declined to intervene, stating that it would not required to enforce the ADA and that it would not act against the private driver education schools unless the United States Department of Justice found that the schools had violated the ADA. The deafness resource specialist filed a complaint against the Texas Education Agency with the Department of Justice, which the Department of Justice apparently dismissed. The plaintiff then filed a lawsuit in federal district court against the Texas Education Agency and a private driver education school requesting injunctive and declaratory relief against both parties under title II of the ADA and the Rehabilitation Act. Interestingly enough, the driver education schools themselves were not sued for violating title III of the ADA. All of the judges on the panel agreed that the plaintiffs had standing, but disagreed on the merits.
    2. Majority Reasoning:
      1. Driver education is not a service, program, or activity of the Texas Education Agency because: 1) the Texas Education Agency does not teach driver education, contract with driver education schools, or issue driver education certificate to individual students. Rather, it licenses and regulates private driver education schools, which in turn teach driver education and issue the certificates. So, the Texas Education Agency’s program provide the licensure and regulation of driver education schools and not the driver education itself;
      2. With respect to the argument that a public entity cannot discriminate directly or through contractual, licensing, or other arrangements, any failure of the driver education schools to comply with the ADA or Rehabilitation Act cannot be said to be the result of requirements or policies established by the Texas Education Agency. Instead, the claim is that most that the Texas Education Agency’s failure to establish requirements or policies as allow private driver education school to be inaccessible. Accordingly, the Texas Education Agency is not accountable for the driver education schools inaccessibility because the Texas Education Agency’s requirements and policies have not caused the discrimination;
      3. In the absence of a contractual or agency relationship, courts have routinely held that a public entity is not liable for licensed private actor’s behavior. Further, the the DOJ’s interpretive guidance also supports the need for a contractual or agency relationship prior to holding a public entity responsible for a private entity’s conduct;
      4. Just because the driver education schools are heavily regulated and supervised by the Texas Education Agency does not make the schools a service, program, or activity of the Texas Education Agency. Otherwise, states and localities would be required to ensure the ADA compliance of every heavily-regulated industry.
      5. Reasoning of Concurring and Dissenting Opinion
        1. Title II regulations explicitly forbid public entities from engaging in discrimination through contractual, licensing, or other arrangements;
        2. Not only does 28 C.F.R. § 35.130(b)(1) specifically include licensing, but the catchall phrase “other arrangement,” goes against the majority’s narrow construction that only contractual or agency relationship qualify as programs in that licensing does not. It should be a matter of substance of each particular public/private relationship and not a matter of undefined labels;
        3. The majority misreads the Department of Justice enforcement guidance because the guidance only make the general point that, “many situations, however, public entities have a close relationship to private entities that are covered by title III, with the result that certain activities may at least be indirectly affected by both titles.” That is simply not the same thing as saying a close relationship requires a contractual or agency relationship;
        4. The way that the state interfaces driver training and the receipt of state benefits indicate an intimate participation at all levels of the private driving school industry that is more than merely regulatory. Through the Texas Education Agency, the state employs and manages the industry to achieve its own public ends. Just because the state’s active involvement in this industry is labeled licensing, does not diminish, much less block, qualifying this as a program of the state for the purposes of the ADA;
        5. The powers granted to the Texas Education Agency in chapter 1001 of the Texas code further support the view that private driving instruction is just one component of an overall state program since it is clear that the Texas Education Agency exerts more rigorous oversight of providers of driver education than would be expected than most run-of-the-mill licensing regimes. Examples include: 1) every driving school’s curriculum must be approved by the Texas Education Agency, and the agency designates the textbook that may be used; 2) the Texas Education Agency’s enforcement powers over driver education schools are broad and varied and suggest a greater degree of involvement in the driving schools’ operation than a typical of a plain-vanilla licensing arrangement; 3) the Texas Education Agency requires that driving school owners and staff be of good reputation and character and therefore, signals a heightened level of concern for the reliability of the school services, which is consistent with the Texas Education Agency as the public provider of social services programs: 4) the driver education schools must post a significant bond payable to the Texas Education Agency for direct use in paying refund to students and that also suggests a more intimate level of agency involvement in licensing activity than would be expected if it were purely a hands-off licensing entity; and 5) the Texas Education Agency has the right to inspect every school physically at least once a year as a condition of license renewal and more frequently if the school has a history of regulatory violations;
        6. The Texas Education Agency also employs driver training to teach civic responsibility, including lessons having nothing to do with the mechanics of driving. Those lessons include litter prevention and organ donation for example;
        7. Driver education forms part of the academic curriculum in some public schools;
        8. 28 C.F.R. § 35.130(b)(1)(v) contemplates precisely the situation here where a public entity discriminates indirectly by furnishing significant assistance to a private entity that is discriminating directly by failing to provide the public entity’s program to beneficiaries with disabilities. In other words, the regulation covers a public entity farming out the practical implementation of the program to private entities while retaining and exercising considerable oversight, regulation, and other substantive involvement;
        9. The driving school students are the direct beneficiaries of the Texas Education Agency’s program, and the Texas Education Agency furnishes operating licenses and course completion certificates to private schools that are discriminating on the basis of disability;
        10. State of Texas cannot legislatively mandate driver education and then abate ADA responsibility by a flea flicker lateral from the Texas Education Agency to private licensees. I should point out that this is much the same argument as the ADA being a non-delegable duty (see this blog entry).
        11. Driving of private and personal vehicles is an uniquely important, pervasive, and indispensable entitlement. Further, driving responsibly is a civic duty that the state seeks to promote with a unique regulatory scheme that entrusted the Texas educational agency; the fact the state licensed driver education schools happen to be private enterprise does not change these facts;
        12. Driver education schools serve as private mechanism for achieving public ends and public policy;
        13. If driver education schools would cease to exist, Texas would most likely replicate them. Therefore, driver education is a positive good and an end to itself;
        14. Texas has an inherent interest in driver education that it does not have in any of the other license endeavors;
        15. With respect to promoting handicap accessibility, Congress made the conscious calculation to impose the burden on public entities. In light of the unseemly history of systematically excluding persons with disability from public life and public activities, Congress quite intently wrote the ADA to provide a clear and comprehensive national mandate for the elimination of discrimination. While it might not be convenient for the Texas Education Agency to require ADA compliance by licensed driver education schools, nevertheless, the ADA’s sweeping purpose is clear. Finally, if the Texas Education Agency if it finds that such modifications are too strenuous, it is allowed per the ADA to demonstrate as a defense that making the modification would fundamentally alter the nature of the service, program, or activity.

VII

Conclusions

  1. While the United States Supreme Court’s record with respect to persons with disabilities in employment matters is very mixed, it actually has a very strong record for persons with disabilities in title II and title III matters;
  2. With respect to Ivy v. Williams, interesting that the case was accepted by the U.S. Supreme Court since there was no Circuit split on the issue and the court is currently at eight members. Accepting the case meant that four of them wanted to hear the case. Impossible to say which four, though one could guess it might have been Breyer, Sotomayor, Ginsberg, and Kagan voting for cert. One also wonders why the case would be accepted if they thought a 4-4 split was in order, since there is no way to tell when a new Justice will join the court. I would not hazard a guess as to which way this case will go. That said, one possibility is they might split the difference. That is, saying that a program, service, or activity is not involved, but the Texas Education Agency cannot engage in the flea flicker pass that it engages in. It also might be possible that they might say that the licensing system itself is a program, service, or activity. It will be very interesting to see how this case is decided and the breakdown of the Justices (party lines are not a good indicator of how the justices break down in ADA cases).
  3. Regarding Fry, it is more understandable that this case was accepted since the cases have gone both ways on requiring IDEA exhaustion with respect to service animals where the student has an IEP. This particular case is even a harder guess than Ivy as to how it might go. A ruling in favor of the school district might mean a rush away from IDEA to 504 by parents of students with disabilities so that by not having an IEP, they do not have to worry about exhausting the IDEA process.
  4. Regarding deaf drivers, readers might be interested in this article involving Uber seeking out deaf drivers.

I am a member of the Society for Human Resources Management. The manager of workplace law content for the Society for Human Resources Management is a gentleman named Allen Smith, J.D. He wrote an excellent article a few days ago discussing Fisher II, the affirmative action case in academia just decided by the United States Supreme Court, and I thought I would use that article as a jumping off point for discussing affirmative action in higher education and how the ruling affects affirmative action program for people with disabilities. As is usual, the blog is divided into categories: the case itself; the impact of the case on affirmative-action programs for persons with disabilities; and conclusions. Of course, the reader is free to focus on any or all of the categories.

I

The Case Itself:

In the article, Allen makes the following points.

  1. Race may not be considered unless the admission process can withstand strict scrutiny.

This is absolutely true. However, it is a little more complicated than that. If something is subject to strict scrutiny, then a compelling interest must be shown. In this situation, the Supreme Court following prior decisions, held that the diversity of the student body in a college or university setting is a compelling interest.

  1. Courts will give some, but not complete, deference to the decision to pursue educational benefits flowing from student body diversity.

Also, true. However, the method adopted by the University must be based on hard data. If affirmative action is used, the University has the burden of showing that they tried just about everything else before adopting affirmative action programs.

  1. In the article, Allen talks to an attorney. Doug Kaufman of Balch and Bingham of Birmingham, Alabama, who recommends with respect to employers undertaking diversity efforts that they do the following:
    1. Conduct a self-analysis to determine if minorities are underrepresented;
    2. Articulate what is trying to be remediated; and
    3. Choose reasonable methods to remediate the problems.
  2. I could not agree more with the approach in paragraph I3.

I will say that choosing reasonable methods in light of the case law means adopting the least intrusive way to accomplish the goal. That is, affirmative action should be a last resort and only after plenty of hard data exists to support its use. When used, the criteria should be neutral and also utilize an individual holistic analysis. Also, in my opinion, as someone who spent 12 years full time in academia, it is not just racial and ethnic diversity that makes for a compelling university, but also diversity of viewpoints, and colleges should consider that as well if they want to have a truly diverse driving community. After all, it is possible, it happens more frequently than you might expect, to have on campus racial and ethnic diversity but have an absence of viewpoint diversity.

II

Fisher II’s Effect on Affirmative-Action Programs for Persons with Disabilities

So, how does this decision affect affirmative action for persons with disabilities, such as the requirements of affirmative action for persons with disability set out by the office of Federal Contract and Compliance Programs, which we discussed in this blog entry.

  1. Race may not be considered in the absence of withstanding strict scrutiny. Withstanding strict scrutiny means showing a compelling interest.
  2. Affirmative-action regulation for federal contractors with respect to persons with disabilities is not an area of the law that is well settled.
  3. When it comes to persons with disabilities, there are several problems with respect to affirmative-action programs:
    1. If affirmative action programs regardless whether it be race or something else, require a compelling interest. The question becomes does an employer have a compelling interest in a diverse employee base? This statement raises the issue of whether affirmative-action programs are being subject to strict scrutiny because race is involved or is it because of the affirmative-action program itself? Both? If race is not involved in the affirmative-action program, such as a program focused on persons with disabilities or women, does that mean that the employer gets more leeway? ( an interesting idea, but I do not think it will hold up per §II3(3) below)
    2. Persons with disabilities are not a race.
    3. Persons with disabilities with respect to employment fall in the lowest tier of equal protection jurisprudence, rational basis, per Board of Trustees of the University of Alabama v. Garrett. Accordingly, the question becomes whether the system is proportionate to the harm being meant to be redressed. Depending upon the intensity of the affirmative action regulatory scheme, that proportionality may be very difficult to show. A lowest tier classification means that the intensity of the affirmative-action system or regulatory scheme would not have to be very high to fail to meet the proportionality test, i.e. be disproportionate to the harm meant to be redressed and therefore, be in violation of the enforcement clause of the equal protection clause of the 14th

III

Conclusions

  1. Due to ¶II3(3), affirmative-action for persons with disabilities in employment is going to be a tough sell depending upon the logistics of the affirmative-action program or system. In light of Fisher II, it might be an easier sell, but certainly not an easy one, in the University or College setting.
  2. Affirmative-action programs need to be driven by hard data and refined as the data comes in.
  3. An individual approach is always better than saying that a person because of the characteristic automatically gets a plus putting him or her over the top so to speak.
  4. With respect to affirmative-action programs, the decision could have been much worse for those wanting to continue using such programs.
  5. In the decision, Justice Kennedy mentioned once again the concept of “equal dignity,” (that concept came up in Obergefell v. Hodges, the gay marriage decision), and how this concept makes its way into constitutional law jurisprudence over time, if at all, bears watching.

 

It has been awhile, almost 3 years, since I visited the issue of bad conduct v. having a disability. This particular case explores what happens when the side effects of medication leads to bad conduct and the person is terminated. The case is Capporicci  v. Chipotle Mexican Grill, Inc., 2016 U.S. Dist. LEXIS 69934 (M.D. Fla. May 27, 2016). As is usual, the blog entry is divided into categories: facts; issue presented; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.

I

Facts

Plaintiff has a long history of treatment for bipolar disorder. Before taking the medication to treat her condition, she experienced depression and mania. She does not suffer from the extreme highs and lows when she is on the medication, but she continues to experience panic attacks. In April 2013, plaintiff informed the manager at the South Tampa location that she was taking medication for her bipolar disorder. She did not explain which medication she took, did not detail any side effects, and did not mention that the medication could cause something negative to happen at work. The manager’s reaction was neutral and he did not ask any questions. On May 30, 2013, plaintiff reported to Sandra Weeks, an advanced registered nurse practitioner treating her bipolar disorder, that she was crying at work, having panic attacks, and that she had to be taken off shifts. As a result, nurse Weeks discontinued one of plaintiff’s medication and started plaintiff on Saphris, a new medication. That same day, nurse Weeks faxed the letter to the manager requesting FMLA leave. Plaintiff testified that when the manager received the fax, he pulled it out of the printer, laughed, and threw it away without reading it. The plaintiff then told the manager that she was having some anxiety and would like to take some time off. During the time off work between May 30, 2013, and June 3, 2013, plaintiff started taking the new medication. The medication made her feel a little tired and knocked her out at night. She returned to work on June 4, 2013.

She was fired four days later. That day, she took the medication in the morning because her provider told her to start taking the medication twice a day. She clocked in for her shift at 11:50 AM. Approximately 30 minutes into her shift, she began to feel dizzy and disoriented. She was very slow, messed up orders, and was incoherent. When her coworkers asked her what was wrong, she told him that she was on a new medication and that it was messing with her at the moment. The manager noticed plaintiff’s condition and took her off the serving line. When the plaintiff tried to explain what was going on, the manager said that it was fine, to go home, and get some rest. No further discussions were held. The manager described the final incident as follows:

“The final incident was the employee arriving late to work and appeared to be under the influence of some kind of medication. I had face to face talks with her regarding performance previously, but with a zero tolerance for inebriation of any kind there had been no prior incident.

It came to my attention during peak hour when she attempted to roll a burrito and basically flipped it upside down releasing the contents into a foil, she then placed the foil and tortilla (still upside down) into a bowl and slid it to the expeditor. I calmly sent her home since making a scene in front of a peak hour line of customers would have been a terrible idea. I then called and terminated her later in the afternoon.”

 

When the plaintiff got home, the manager called and said she was fired due to being intoxicated. During the phone call plaintiff told the manager she was on medication and that she believed her behavior was the side effect of the medication. Although the manager listened and seemed to want to offer her a second chance, he called back 10 minutes later saying that it looked like she was on some %$^%$%^$#, so she was fired and she was not rehirable.

Chipotle’s employee handbook has a drug and alcohol policy that provides as follows:

“No employee shall report to work or be at work under the influence of alcohol, drugs, or controlled substances, or with any detectable amount of alcohol, drugs, or controlled substances in his or her system.

Employees who must use medically prescribed or over-the-counter drugs that may adversely affect their ability to perform work in a safe manner must notify their Manager prior to starting work. The Manager will decide if the employee can remain at work and/or if work restrictions are necessary. The employee may be required to take a medical leave of absence or disability leave for the duration of the medication.”

 

She filed with the EEOC, and the EEOC found reasonable cause to believe that disability discrimination occurred and issued a notice of right to sue. She sued alleging both FMLA and ADA violations, though we are only concerned with the ADA violations.

 

II

Issue Presented

May an employer discipline or terminate an employee for workplace misconduct even when the misconduct is a result of the disability?

 

III

Court’s Reasoning

 

In holding that the employer may discipline or terminate an employee for workplace misconduct even when the misconduct is a result of the disability, the court reasoned as follows:

 

  1. Establishing a prima facie case mean showing that at the time of the adverse action: 1) the plaintiff had a disability; 2) the plaintiff was a qualified individual; and 3) the employer unlawfully discriminated against her because of the disability.
  2. The McDonnell Douglas burden shifting scheme is applicable.
  3. Since the relevant event took place after the ADA amendments act, the amendments are what governs the case.
  4. 29 C.F.R. § 1630.2(j)(4)(ii), specifically states that the negative side effects of medication may be considered in deciding whether a person has a disability.
  5. 29 C.F.R. § 1630.2 (j)(3)(iii) specifically provides that it should be easily concluded that bipolar disorder will at a minimum substantially limit brain function.
  6. As a result of the amendment to the ADA, the relevant inquiry is whether plaintiff’s bipolar disorder is substantially limiting when she is not taking medication and she presented evidence that that was indeed the case.
  7. The majority of courts, including the 11th Circuit, hold that an employer may discipline a terminated employee for workplace misconduct even when the misconduct is a result of the disability.
  8. In Raytheon Company v. Hernandez, U.S. Supreme Court, in an Age Discrimination in Employment Act case, said that a sufficiently nondiscriminatory reason exists where an applicant is denied employment based upon a neutral, generally applicable work policy.
  9. The Chipotle policy is neutral and generally applicable and therefore satisfies the Raytheon
  10. Where an employer relies on the violation of a work rule, a plaintiff may show pretext by submitting evidence demonstrating: 1) that she did not violate the cited work rule; or 2) that if she did violate the rule, other employees outside the protected class, engaged in similar acts, were not similarly treated. In this case, the plaintiff made cursory arguments without legal support. Further, even a ham-handed investigation standing alone is insufficient to show pretext. Finally, the manager concluded that plaintiff was under the influence of some kind of medication and therefore in violation of company policy, which prohibited any employee from reporting to work or being at work under the influence of alcohol, drug, or controlled substances. Plaintiff did not dispute that she was indeed under the influence of drugs, even if they were prescription drugs.
  11. Plaintiff did not argue that the manager misapplied or misinterpreted the company’s drug and alcohol policy. In fact, the policy specifically stated that when an employee must use medically prescribed or over-the-counter drugs that adversely affect her ability to perform work in a safe manner, it is the responsibility of the employee to notify the manager prior to starting work. Such notification then triggers the manager’s duty to order work restrictions or a leave of absence. The plaintiff did not allege that she advised the manager about her use of the medication prior to starting work.
  12. Plaintiff neither alleged a failure to accommodate claim nor a disparate impact claim and so those claims were not before the court.
  13. Plaintiff did not contend that the company’s policy lacked legitimate, job-related goals, such as promoting employee safety and minimizing potential liability.
  14. Plaintiff made no effort to demonstrate that the policy was applied more leniently to non-disabled employees and she made no claim that non-disabled employees were treated more favorably as a general rule. In fact, plaintiff said that she was being watched carefully for promotion shortly before her termination.
  15. While the manager may have been rude, plaintiff agreed that the manager allowed her to take all of the leave she requested. Accordingly, rude treatment, by itself, does not support an inference of discriminatory intentions.

 

IV

Takeaways:

 

  1. The causation cited by the court, “because of,” is not correct. That standard is the one that was used prior to the amendments to the ADA. As we know, Title I of the ADA, uses the term “on the basis of,” and a strong argument can be made, as we did in this blog entry, that “on the basis of,” and “because of,” are not the same thing.
  2. Labor and Employment attorneys will tell you over and over again that the evenhanded application of neutral, generally applicable policies are critical and this case proves the point. If such is present, then you are in a strong position to deal with taking action against a person with a disability who is acting out because of that disability or medication they are taking to treat that disability.
  3. The court notes that the EEOC’s enforcement guidance provides that an employer may only discipline an employee for disability- related conduct if the conduct rule eight job-related and consistent with business necessity and other employees are held to the same standard. Such a view is enforcement guidance only and therefore, is not going to get Chevron Whether it gets the deference entitled to agency interpretation of regulations is also unknown (the court did not address that issue). On this point, you may want to take a look at this blog entry.
  4. There is a Circuit court split on the issue presented in this case and so it might wind up before the United States Supreme Court. Considering the current makeup of the court, I won’t dare hazard a guess as to whether they would even take the case let alone how they would decide it. A lot may depend, or not, on the results of the upcoming presidential election.
  5. On the employee side, if the employee begins to take medication to deal with a disability and anticipates or does suffer from side effects that cause problems, it may make sense to notify the employer as soon as possible as to what might happen or is happening. Since the negative side effects of medications can be factored into the equation of whether a person has a disability, such a notification would trigger the interactive process. Also, keep in mind, that mitigating measures, with the exception of glasses, are no longer factored into whether the person has a disability.
  6. Probable cause findings at the EEOC are very hard to get. This case stands for the proposition that even in the face of such a finding, the defendant still has a shot at winning.
  7. Don’t forget about failure to accommodate claims when pleading a cause of action on behalf of a plaintiff.
  8. Raytheon is an ADEA case and that statute does use “because of,” when it comes to causation. However, the ADA does not contain that language. Accordingly, it isn’t clear just how persuasive that particular case is with respect to an ADA matter where the occurrence occurred after the amendments to the ADA.

Just what are the obligations of landlord and tenant with respect to ADA compliance? Does it matter if an architectural issue is involved or if it is an issue involving practices, policies, and procedures?

Our case of the day that answers this question is Supancic v. Turner, 2016 Cal. App. LEXIS 4235 (Cal. App. Second District, June 7, 2016). It is an unpublished decision, but nevertheless is instructive. As is my usual practice, the blog entry is divided into categories: facts; issue presented; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.

I

Facts Taken Straight from the Court Opinion

On March 13, 2012, around 9:15 p.m., plaintiff entered the White Harte Public House (White Harte) with a friend and plaintiff’s service dog which was wearing a vest identifying it as a service dog. Pierre Moeini approached plaintiff and told him that he must pick up the service dog or leave. Plaintiff explained to Moeini that plaintiff’s dog was a service dog and that Moeini was infringing upon plaintiff’s rights. Moeini “physically forced” plaintiff out of the White Harte along with plaintiff’s dog and friend.

Outside the pub, plaintiff advised Moeini that he was violating the law. In response, Moeini told plaintiff that he didn’t “`give a f[u]ck'” and to “`leave or get [his] ass kicked.'” When plaintiff informed Moeini that he had committed an additional wrongful act by threatening plaintiff with bodily harm, Moeini said, “`I don’t give a sh[i]t. How about this. I’m not letting you in because you look like a little faggot, you and your friend look like faggots, and you have a little faggot dog.'” Plaintiff again advised Moeini that those statements were wrongful acts, but Moeini just laughed and told plaintiff that he owned “`six of these places'” and that Moeini did not allow homosexuals into any of them.

At that point, Moeini realized that someone had been recording his statements, so he said, “`I will smash your head into a million pieces if you do not get the f[u]ck off my property right now.'” Moeini then assumed a threatening physical stance, causing plaintiff and his friend to leave quickly.

Plaintiff’s theory of liability against defendant individually was based on an agency theory or the fact that defendant was liable as an owner or landlord. Defendant was not an agent or partner, but was a 50 percent owner of Harte LLC. Harte LLC owned and operated the White Harte, not defendant. “The `[l]andlord’ as defined by [t]he lease [under which Harte LLC occupied the White Harte was] Pierre Moeini and [defendant].”

The real property on which the White Harte was located was owned by defendant and Moeini. Defendant and Moeini, as landlords, leased the real property on which the White Harte was located to Harte LLC, as tenant, and defendant and Moeini were the members of Harte LLC. The White Harte was a place of public accommodation licensed to sell food and drinks. Harte LLC had no operating agreement. Defendant signed the White Harte fictitious business name statement as an individual registrant.

California Corporations Code § 17101(a) provides that no member of the limited liability company shall be personally liable for any liability of the limited liability company solely by reason of being a member of that limited liability company.

II

Issue Presented

Whether a defendant’s status as the owner of real property or of an LLC operating on the property, is sufficient by itself to mandate liability against the defendant for discriminatory action taken by an individual on the property and/or the entity operating on the property?

III

Court’s Reasoning

In holding that ownership status by itself is not sufficient for liability, the court reasoned as follows:

  1. Under the ADA, liability attaches to both landlords and tenants.
  2. Between the landlord and tenant, allocation of responsibility for complying with the ADA may be determined by lease or other contract.
  3. Generally speaking, a plaintiff can sue either the landlord or the tenant in alleging ADA noncompliance.
  4. An allocation of responsibility for ADA compliance between the landlord and tenant in the lease is not binding on third parties, such as the person with a disability who has been the victim of disability discrimination.
  5. The final implementing regulations carrying out title III of the ADA specifically provides that allocation of responsibility between the landlord and the tenant by lease is effective only as between the parties.
  6. In cases involving architectural barriers, the regulatory scheme imposes upon owners a duty based upon their status as owners.
  7. With respect to policy, practices, and procedures permitting the use of service animal by an individual with a disability, a landlord incurs liability only where the landlord implements the discriminatory policy, practice, or procedure.
  8. In general, landlords should not be given responsibility for policies a tenant applies in the operation of its business if such policies are solely those of the tenant. Therefore, if a restaurant tenant discriminates by refusing to seat the patron, it is the tenant, and not the landlord that bears responsibility because the discriminatory policy is imposed solely by the tenant and not by the landlord. On the other hand, if a tenant refused to modify a no pets rule to allow service animals in his restaurant because the landlord mandates such a rule, then both the landlord and the tenant would be liable for violation of the ADA when a person with a service dog is refused entrance.
  9. Under the facts of this case, defendant’s duty to plaintiff under the ADA was limited to ensuring that Harte LLC, the lessee and operator of the public accommodation, had in place policies, practices, and procedures permitting the use of service animal by persons with disabilities patronizing the place of public accommodation.
  10. The plaintiff was not able to show that the defendants discriminated against the plaintiff within the meaning of the ADA outside of showing that the defendant was an owner of the facility.

IV

Takeaways:

  1. This is a useful case for understanding just how liability works between the landlord and tenant in ADA matters.
  2. An owner’s obligations under the ADA may be different depending upon whether architectural barriers or policies, practices, and procedures are involved.
  3. The court said that, “in general landlord should not be given responsibility for policies attend and applies in operating his business, if such policies are solely those of the tenant.” I get that, but in this case, the real property on which the place of public accommodation was located was owned by the defendant and his partner, the offending party, as landlords. They then leased the real property for the place of public accommodation to an LLC as tenant with the defendant and his partner as members of that LLC. Further, the LLC had no operating agreement and the defendant signed a fictitious business name statement as an individual registrant. Accordingly, an argument can be created here that defendants were using corporate structure as a way to circumvent legal liability, in this case ADA liability. In other words, the argument is akin to arguing that the corporate veil should be pierced. At any rate, there is nothing in the case to suggest that a corporate veil argument was made. I wonder if the case will be appealed and whether this kind of argument would be made on appeal. I am also unclear on why the LLC was not sued, though the reasoning of the case is such that the outcome may have been the same.
  4. The case is also a lesson in why it pays to incorporate in order to protect against individual liability.
  5. If you represent a landlord or a tenant, make sure the lease contains a discussion of how ADA liability will be apportioned.