I am back from a week of doing the family thing in Chicago. Of course, I need a vacation. That said, nothing like relaxing by putting up a new blog entry. That said, for reasons I don’t know when I pasted the entry from word into the appropriate box in word press (word press is not accessible to voice dictation for the main entry at least for now), I got a very different look and feel than I have seen in the past. I apologize for that and will try to figure out the culprit. I am in the process of revising the look and feel of my web site and blog, and so hopefully everything will improve soon.

Today’s case is Griesinger v. University of Cincinnati, 2016 U.S. Dist. LEXIS 58931 (S.D. Ohio, May 3, 2016). We have talked about the University of Cincinnati before here, albeit at the medical school. We have also talked about in this blog entry (in the comment section), the need to include externship and internship programs in your ADA compliance plan. As is usual, my blog entry is divided into categories, namely: facts; court’s reasoning; takeaways; and preventive steps. The reader is free to focus on any or all of the categories.

I

Facts:

Plaintiff was a student in the medical assisting program at Blue Ash College, a University of Cincinnati entity. As a result of being treated as an infant for a brain tumor with chemotherapy and surgery, she has a learning disability. That learning disability includes a significant memory impairment and inability to process information at a normal rate. For example, after a 20 minute delay, her ability to remember information that was verbally related to her is worse than 998 out of 1000 people of her age. In high school, she utilized an IEP and received a variety of accommodations including: extended time to take quizzes or tests; access to a resource room with individualized assistance from an instructor; tests read aloud; the use of notes on tests; the option for a notetaker in class; and a separate, quiet room for taking tests and quizzes. With those accommodations, she graduated high school. Once in college, she provided defendant’s Disability Services Office with a copy of her high school transcript and IEP. The IEP noted that work completion within a specific amount of time is tough for the plaintiff. Further, the mother testified that in the fall of 2008, she accompanied the plaintiff to the Disability Services Office and informed them that plaintiff would need extended time. At the start of each quarter, the plaintiff submitted the accommodation request form listing the accommodation she needed and throughout her enrollment, she requested accommodations for extended time for testing, quiet testing environment, notetaker, and use of a tape recorder. With those accommodations, she completed the class coursework, receiving mostly A’s during the third and fourth years in the program.

In order to graduate from the medical assisting program, students were required to complete a clinical component. That component required 320 hours in a medical setting, split equally between administrative and clinical work. The person in charge of placing students in externship sites said that because placement facilities were limited, she focused primarily on whether a site’s geographical location was accessible for the student. She also acknowledged that the obligation to provide reasonable accommodations under the ADA extended to the student’s externship requirement. In October 2011, plaintiff requested to begin the externship in the spring 2012 term to complete a medical assisting degree. She testified that beyond her accommodation request form, she did not tell defendant she would need any other accommodation related to her externship at Cincinnati Pain Management Consultants. She figured that since this was another class that her teachers would tell them for her because in the manual it said they were going to take into consideration the pace and the flow of each student. On May 3, 2012, Cincinnati Pain Management Consultants informed the externship site coordinator that the externship needed to be terminated for several reasons: plaintiff copied previous entries from a patient’s history instead of writing a new entry concerning the patient’s current symptoms; plaintiff was a slower learner; plaintiff was unable to properly attach a blood pressure cuff; plaintiff would not finish assigned tasks; and plaintiff appeared to have problems with her vision and hearing. After plaintiff was terminated from her externship, the externship site coordinator had a number of meetings with the plaintiff and her parents before placing plaintiff in the second externship site. Plaintiff’s mother testified that at one of those meetings, she and her husband asked the externship site coordinator to make sure that she was with somebody patient who would take the time to train the plaintiff because of her disability. The answer they received were things along the lines of, “no, we expect you to be on the ground running.” The mother also testified that the externship site coordinator was very nonchalant about it and didn’t really want to discuss it. The mother also testified that she told the externship site coordinator that the plaintiff needed repetition and extended time to learn at her second externship site. In particular, at one of the meetings, it was brought up that the plaintiff would need extra time so that she could repeat the task until mastery and then move onto the next task. Otherwise she would be overloaded with a multitude of varying responsibilities. They also asked for someone who could be patient with the plaintiff, understood what a disability was, and understood how she would learn so that she could be successful.

The externship coordinator then arranged a second externship opportunity for the plaintiff at Family Medical Care Associates. The externship site coordinator testified that she told the externship site that plaintiff may need some extra time to learn but did not inform the site that plaintiff received accommodation through the Disability Services Office. Ten days after starting the second externship, plaintiff was terminated from the site because: plaintiff was unable to complete simple clerical task without assistance; plaintiff consistently was unable to take blood pressure, pulse, respiration, temperature (digital speaking thermometer); and plaintiff’s inability to take accurate vitals, perform EKGs, and communicate with patients could well endanger the outcomes of patient health. On July 26, 2012 the externship site coordinator notified the plaintiff by letter that she was being dismissed from the medical assisting program based on her failing grades for the externship site requirement.

II

Court’s Reasoning

In holding that the plaintiff survives the defendant’s motion for summary judgment, the court reasoned as follows:

1.      While plaintiff mistakenly in their complaint cited to title III of the ADA instead of title II as relating to the defendant, a liberal construction of the complaint revealed that the defendant was given fair notice of the claim anyway. In particular, in the complaint the plaintiff did allege that the defendant was a public University receiving federal financial assistance. Accordingly, the defendant should have had fair notice of the applicability of title II of the ADA. Further, the defendant fully briefed the issue of a failure to accommodate claim brought under title II and so therefore, knew that title II of the ADA was involved. Finally, federal rules permit pleadings to be amended during and after trial to conform to the evidence presented in the case. Accordingly, the court granted leave to amend her complaint to include the correct title and citation of the ADA.

2.      In order to make a prima facie case of dismissal from an academic program in violation of the ADA or Rehabilitation Act, a plaintiff must show that: she is handicapped or a person with a disability; she is otherwise qualified to continue in the program; and she was dismissed on the basis of her handicap or disability.

3.      A publicly funded university is not required to provide accommodation to a student under the ADA or Rehabilitation Act until the student provides a proper diagnosis of her claimed disability and specifically requests an accommodation.

4.      There is no dispute that the plaintiff is handicapped or a person with a disability. Regardless, a reasonable jury could find that the plaintiff had a disability based upon the IEP, the evaluations of several different doctors, and her history of being granted accommodations in pre-externship coursework.

5.      A reasonable jury could find that the plaintiff was otherwise qualified to continue in the medical assisting program with accommodations. For example, when she was granted accommodation for coursework, she received mostly A’s and B’s during her third and fourth year in the program. Further, doctors testified that plaintiff could successfully complete the externship requirement if she received reasonable accommodation for a disability.

6.      Plaintiff presented evidence from which a reasonable jury could find that her failure to complete the externship was attributable to a disability and the defendant’s failure to accommodate it.

7.      Defendant had granted plaintiff accommodation for years and so a reasonable jury could find that the defendant should’ve required a more extensive diagnosis earlier in the process instead of relying on the lack of a proper diagnosis as an after-the-fact justification for denying plaintiff externship accommodations.

8.      A reasonable jury could find that the IEP was sufficient to show that the plaintiff has been diagnosed with a learning disability so as to activate the defendant’s duty to engage in the interactive process concerning accommodations.

9.      At a minimum, a genuine issue of fact was created as to whether the plaintiff made a sufficient request for accommodations before the second externship so as to trigger the interactive process. For example, the externship site coordinator had a number of meetings with the plaintiff and her parents before placing plaintiff in a second externship site. Plaintiff also produced evidence that at one of those meetings, the mother asked the externship site coordinator to make sure that she was with somebody patient who would take the time to train her because of her disability. Her mother also testified that the plaintiff needed repetition and extended time to learn at a second externship site. Her father also testified that they reminded the externship site coordinator about the accommodations, things that the plaintiff would need, which they felt she didn’t get in the first externship. Finally, her father testified that he asked the externship site coordinator to communicate the request to someone at the externship site.

10.  Defendant argued that tremendous deference should be given to the professional judgment of faculty when considering accommodation requests and academic settings. The court wasn’t buying it because defendant did not provide any evidence that they exercised professional academic judgment in relation to plaintiff’s request for a reasonable accommodation. In particular, defendant did not provide any evidence that they considered plaintiff’s requested externship accommodations and found that they were not feasible or would result in a fundamental or substantial modification to the program. Accordingly, because defendant did not present any evidence that it thoughtfully considered and rejected plaintiff’s request for externship accommodations, deference to professional academic judgments was not warranted.

III

Takeaways:

1.      A requirement of an externship or internship or practicum is not unusual at all. For example, before moving down to Atlanta, I was the paralegal program coordinator for South Suburban College in the Chicago area. I don’t know if it is still true, I suspect it is, but the paralegal program there required as a condition of graduation, that a student do two externships.

2.      Interactive process is actually a title I requirement and you don’t see it in title II or title III. However, there is a long history in the case law, such as this one, of requiring an interactive process with respect to figuring out reasonable accommodations for current students. Considering both title II and title III require reasonable modifications, it makes no sense that an interactive process would not be a requirement under both title II and title III of the ADA.

3.      I am not sure why the externship site coordinator would not have informed the site that plaintiff received accommodation through the Disability Services Offices. Perhaps, they would have been concerned about privacy or the student being stereotyped. In that situation, the University should put in place a consent form that would allow the University to release to the externship site the list of accommodations given by the Disability Services Office.

4.      The court uses the term “on the basis,” to describe both Rehabilitation Act claims and title II claims. Matching it up that way doesn’t work because title II claims would be “by reason of,” and Rehabilitation Act a would be, “solely by reason of.”

5.      The court refers to not feasible, fundamental, or substantial modification to the program and that also doesn’t work for me because the defenses are fundamental alteration or undue burden.

 

IV

Preventive Steps

1.      Read this blog entry so as to determine the essential eligibility requirements for an internship, practicum, or externship program. Remember, the standard is whether the person can complete the essential eligibility requirements of the program with or without reasonable modifications/accommodations.

2.      Revise as necessary any nondiscrimination policies and procedures in order to ensure that they adequately address and provide sufficient options for responding promptly and appropriately to incidents of discrimination and harassment at the College or University, including all approved fieldwork practicum, internship, and externship sites.

3.      Make sure the revised procedures encourage students to report all such incidents and specify that each one will be investigated. Include in those policies examples of the type of conduct and behavior covered by the procedure, if at all possible, and make clear that university-approved fieldwork practicum’s, internship, and externship sites are included in the policy.

4.      Provide training, using someone thoroughly knowledgeable about the ADA/Rehabilitation Act, on university nondiscrimination policies and procedures to all staff members affiliated with the selection, monitoring, and approval of practicums, internship, and externship sites.

5.      During any investigation, evaluate whether any adjustments or modification could be implemented without fundamentally altering the essential eligibility requirements or resulting in an undue burden.

6.      While it is absolutely true that the externship, internship, or practicum sites do not have to cooperate with a university investigation or take any corrective action because they are independent entities, there are two factors that would encourage them to do so. First, make it clear in the externship, practicum, internship site agreement that as a condition of taking on a student, they agree not to discriminate against any student on the basis of a disability (I am presuming a title III entity is the externship, practicum, or internship site. If a title II entity, the appropriate standard would be, “by reason of.)”, and that they agree to cooperate with any investigation and remediate any issues as a result of that investigation. Second, make it clear to them that while the student is not an employee because they are receiving class credit, nevertheless, failure to reasonably modify their activities may activate liability under title III or possibly title II, whichever applicable, of the ADA.

7.      If you are representing an entity that takes on people from the University who are completing their externship, internship, or practicum requirements, make sure you have determined what are the essential eligibility requirements/essential functions of the job for what that student will be doing. Also, make sure you remember that the question is whether they can do the essential eligibility requirements or essential functions of the job with or without reasonable accommodations (i.e. without a fundamental alteration or undue burden being the case).

Today’s blog entry has the potential to be a real game changer in ADA litigation. Before moving further, I do want everyone to know that I will be out of town next week at a family function. So, I will not be getting a blog up next week. I am not sure if I will have a chance to get another blog entry up this week, but in case I don’t, I will be back with a blog entry the following week. I already have a fascinating case in mind pertaining to higher education. Back to our case, CRST Van Expedited, Inc. v. EEOC.  Its facts are very convoluted, and so I will not bore you with them. The question this case presented is whether for a defendant to recover attorneys fees under title VII, must the defendant receive a favorable ruling on the merits before that can happen. This particular blog entry is only divided into two categories: court’s reasoning and takeaways. The blog entry is so short that I figure the reader will want to read all of it. However, it is conceivable that the reader may be interested in only the court’s reasoning or the takeaway sections, and so you have the option of focusing on one or both of the categories.

I

In holding that a ruling on the merits is not necessary for a defendant to recover attorneys fees, the Supreme Court reasoned as follows:

  1. When it comes to recovering attorneys fees, the critical question is whether there has been a material alteration of the legal relationship of the parties.
  2. When a plaintiff secures an enforceable judgment on the merits or a court order consent decree, that plaintiff is the prevailing party because he has received a judicially sanctioned change in the legal relationship of the parties.
  3. When a defendant is the prevailing party in a civil rights claim, attorneys fees are permissible if the plaintiff’s claim was frivolous, unreasonable or groundless, or if the plaintiff continues to litigate after it clearly became so.
  4. A plaintiff seeks a material alteration in the legal relationship between the parties. On the other hand, a defendant seeks to prevent this alteration to the extent it is in the plaintiff’s favor. While the defendant might prefer a judgment vindicating his position regarding the substantive merits of the plaintiff’s allegations, the defendant fulfills his primary objective whenever plaintiff’s challenges are rebuffed, irrespective of the precise reason for the court decision. Accordingly, the defendant may prevail even where the court’s final judgment rejects the plaintiff’s claim for a nonmerits reason.
  5. The congressional policy regarding the exercise of District Court discretion in the ultimate decision whether to award fees does not distinguish between merits-based and non-merits-based judgments.
  6. The Supreme Court has interpreted the fee shifting statute to allow a prevailing defendant to recover whenever the plaintiff’s claim was frivolous, unreasonable, or groundless. It would make little sense if the congressional policy of sparing defendants from the cost of frivolous litigation depended upon the distinction between merits-based and non-merits-based frivolity. Congress must have intended that a defendant could recover fees expended in frivolous, unreasonable, or groundless litigation when the case is resolved in the defendant’s favor, whether on the merits or not.
  7. Imposing an on-the-merits requirement for defendant to obtain prevailing party status undermines congressional policy by blocking a whole category of defendants for whom Congress wished to make the awards available.
  8. Various Courts of Appeals have allowed a defendant attorney’s fees when the claims were dismissed for nonmerit reasons. For example, a plaintiff’s claim may be frivolous, unreasonable, or groundless if the claim is barred by State sovereign immunity or is moot.

 

II

Takeaways:

 

  1. This case has the potential to be a game changer with respect to ADA litigation for the reasons described in this section.
    1. The reference to sovereign immunity is a big deal. As we have seen over and over again in our blog entries, sovereign immunity and the ADA is extraordinarily complicated because people with disabilities fall into various equal protection tiers depending upon the facts. So, it often times is far from clear whether sovereign immunity applies in a particular situation with respect to an ADA claim. Hopefully, if sovereign immunity is not clear and the plaintiff loses, a court would not award attorney’s fees to the defendant automatically because in that case sovereign immunity waiver was a colorable claim. Of course, if there is a suit and the statute is clear that the State has not waived sovereign immunity with respect to that topic, that is quite a different kettle of fish and attorney’s fees should be awarded in that situation.
    2. It is the mootness section of the opinion that has the potential to profoundly affect litigation, particularly in the area of title III of the ADA. When it comes to architectural accessibility, because the architectural guidelines are specifically tied into the statute, violation of the guidelines is pretty much a strict liability situation. So, as we discussed in this blog entry, it makes sense to fix the problem thereby mooting it. What this case does, is it says that if the problem is mooted and the plaintiff continues to litigate, the defense can collect attorney’s fees. So, when faced with a serial plaintiff or a plaintiff claiming architectural inaccessibility, a defendant would do well to immediately make the modifications that are readily achievable per 28 C.F.R. § 36.304(b) utilizing the priority system set forth in 28 C.F.R. § 36.304(c). If despite that, the plaintiff continues to litigate, then per this case, the defendant should seek attorneys fees.
  2. The opinion says that the defendant’s brief collects cases talking about when the United States Courts of Appeals have allowed for a defendant to get attorneys fees in nonmerit situations. Looking at that brief on pages 33-34, reveals the following additional situations:
    1. Claim barred by the tax injunction act;
    2. Unreasonable to continue litigation when plaintiff’s’ learned suit was certainly time-barred (as we have seen in this blog entry, the statute of limitations for ADA claims can be very uncertain);
    3. The results should have been obvious from the inception of the litigation;
    4. Defendant unequivocally protected by absolute judicial immunity (this could be an issue if suing a state court system depending upon how the complaint is structured);
    5. The appeal was clearly frivolous.
  3. So, with respect to ADA litigation, it is possible that paragraph 2 of this section may come in the play, but it is paragraph 1 of this section that has the potential to have a huge impact on ADA litigation.

Today’s blog entry continues my string of weeks where I have not been dissecting cases. I had a case all lined up for this week and was excited about getting back to my dissection. However, yesterday, the EEOC decided to issue final rules detailing how wellness programs relate to the ADA. Those rules can be found here. Therefore, this blog entry will jump on that. Please note, I am committed to getting back to my dissection of cases. I have some good ones lined up.

 

Back to this blog entry. Here are the salient points:

  1. The rule goes into effect 60 days from May 17, 2016.
  2. The rule applies to wellness programs considered “employee health program,” under title I of the ADA. It does not apply to programs provided by entities other than those subject to title I, such as social service agency covered under title II of the ADA, or places of public accommodation subject to title III of the ADA that may be providing similar programs to individuals who are considered volunteers.
  3. All of the provisions in the rule, including the requirement to provide notice and limitations on incentives, are applicable to all employee health programs that ask employees to respond to disability related inquiries and/or undergo medical examinations.
  4. A participatory wellness program either does not provide a reward or does not include any condition for obtaining a reward that is based on the individual satisfying a standard related to a health factor. A health contingent wellness program is a program that may be either activity-only or outcome-based and requires individuals to satisfy a standard related to a health factor to obtain a reward.
  5. The rule will with respect to allowable incentives applies prospectively to employer wellness programs as of the first day of the first plan year that begins on or after January 1, 2017.
  6. The safe harbor for insurance plans does not, according to the EEOC’s view, apply to wellness programs where rewards or penalties are offered for participation in those programs. That view is specifically stated in the final rule itself. The EEOC view is that they disagree and feel that case law to the contrary, here and here, is just wrong for several reasons, which they elaborate on in the comments discussing the final rule. As to another approach as to why those cases might be wrong, check out this blog entry of mine.
  7. The 30% limit for incentives against the silver plan, if you are talking about insurance exchanges, and against the cost of self-coverage if you are talking about insurance through the employer applies to both participatory wellness programs as well as contingent wellness programs.
  8. All provisions in the final rule, including the requirement to provide a notice and the limitations on incentives, are applicable to all wellness programs that includes disability -related inquiries and/or medical examinations. That means the rule applies to the following kinds of wellness programs: those offered only to employees enrolled in an employer-sponsored group health plan; those offered to all employees regardless of whether they are enrolled in such a plan; or those offered as a benefit of employment by employers that do not sponsor a group health plan or group health insurance.
  9. For the incentives to pass muster, the program must be reasonably designed. That is the program must have a reasonable chance of improving the health of, or preventing disease in, participating employees and must not be overly burdensome, a subterfuge for violating the ADA or other laws prohibiting employment discrimination, or highly suspect in the method chosen to promote health or prevent disease. Program consisting of a measurement, test, screening, or collection of health-related information without providing results, follow-up information, or advice designed to improve the health of participating employees would not be reasonably designed to promote health or prevent disease, unless the collected information actually is used to design a program addressing at least a subset of conditions identified.
  10. The EEOC specifically rejected the suggestion that merely offering employees the choice whether or not to participate would render a program’s participation voluntary. The 30% maximum of the total cost of self only coverage/silver plan for insurance exchange does not without more render a wellness program coercive.
  11. When an employer denies access to a health plan because the employee does not answer disability related inquiries or undergo medical examinations, that is discrimination against the employee in violation of the ADA as it requires employees to answer questions or undergo medical examination that are not job-related and consistent with business necessity and therefore, cannot be considered voluntary.
  12. An employer may not retaliate against, interfere with, coerce, intimidate, or threaten employees by coercing an employee to participate in an employee health program or by threatening to discipline an employee who does not participate.
  13. The notice requirement applies to all wellness programs that ask employees to respond to disability related inquiries and/or undergo medical examinations. That notice must be in a language reasonably likely to be understood by the employee from whom medical information is being obtained. It also must clearly explain what medical information will be obtained, how the medical information will be used, who will receive the medical information, the restrictions on the disclosure, and the method the covered entity uses to prevent improper disclosure of medical information.
  14. A similar set of rules was published by the EEOC at the same time with respect to the extent to which employers may offer incentive for spouses and other family members to provide health-related information as part of a wellness program without violating Genetic Information Nondiscrimination Act.
  15. The final rule retains a distinction in consequences between smoking cessation program that require employees to be tested for nicotine use and programs that merely ask employees whether they smoke. While whether someone smokes is not information about a disability, the ADA’s provision limiting disability-related inquiries and medical examinations apply to all applicants and employees regardless of whether they have a disability. Further, it is the EEOC view that whatever benefit smoking cessation programs that are a part of wellness program may have, the EEOC cannot discern any reason for treating medical examination to detect the use of nicotine differently from any other medical examinations when the ADA makes no such distinctions.
  16. The final rule adds some additional requirements to further protect employees’ personal health information, including, for example, a provision that a covered entity may not require an employee to agree to the sale, exchange, sharing, transfer, or other disclosure of medical information (except to the extent permitted by the regulations to carry out specific activities related to the wellness program), or to waive confidentiality protections available under the ADA as a condition for participating in a wellness program or receiving a wellness program incentive.
  17. A covered entity can only receive information collected as part of an employee health program in aggregate form that does not disclose, and is not reasonably likely to disclose, the identity of specific individuals except as is necessary to administer the plan or as permitted by the regulations.
  18. In the interpretive guidance, the EEOC make the sensible point that individuals handling medical information part of an employee health program should not be responsible for making decisions related to employment, such as hiring, termination, or discipline. Employers administering their own wellness program need adequate firewalls in place to prevent unintended disclosure. If individuals who handle medical information obtained through a wellness program to act as decision-makers, they may not use the information to discriminate on the basis of disability in violation of the ADA.

Takeaways:

  1. The hardest part of the regulations is probably going to be the 30% rule, which applies to both health contingent and participatory wellness programs.
  2. If an employee’s native language is not English, a foreign language or ASL, you want to be sure that the notice is somehow communicated effectively to the employee.
  3. The EEOC has made it clear that they are going to fight all the way to the end for their view that Seff and Flambeau, referenced above, are not good law.
  4. Conditioning participation in an employee health plan based upon participation in a wellness program is coercive.
  5. Understanding the ADA scheme dealing with medical exams and disability related inquiries is still very important. See this blog entry for example for discussion of that scheme.
  6. While beyond the scope of this blog entry, the corresponding rules for the Genetic Information Nondiscrimination Act, mentioned above, are quite similar, but you will want to look at that as well (for example, kids are always out and spouses are in subject to the same 30% rule).

You may be asking why didn’t I blog yesterday or so far this week. The answer is I actually spent two hours trying to put a blog together yesterday. The blog was going to cover the Department of Justice Accessibility of Web Information and Services of State and Local Government Entities Supplemental Amended Notice of Proposed Rulemaking (must reading by the way for Title II and III entities), issued on May 8. I tried to do my usual dissection. Two hours later, I realized I was only a third of the way through. I also realized that organizing the blog discussing that proposed rulemaking in a way that wouldn’t overwhelm the reader was going to be impossible. So, I blew the whole thing up. That left me with what to do next. That was solved when the employment law blogosphere lit up when the EEOC issued the publication, “employer-provided leave and the Americans With Disabilities Act.”  Another problem was solved of not having to do an intensive analysis (things are crazy busy for me at the moment), of the EEOC publication because Philip Miles in his blog, which I just added to my blog roll today though I have been subscribing to his blog for some time, collects the blogs of several employment lawyers who have written on this. You can find his blog here. I have absolutely no doubt that Robin Shea in her blog , I am sure she is overwhelmed by bathroom issues:-( , will be weighing in soon as well. So what are my thoughts?

  1. The other bloggers all have great points and I commend you to their blogs for reading.
  2. I really don’t get it. I think it is because maybe I do this all the time, and I just make assumptions that it is obvious when it isn’t. That is, much of what is in here are things that should be already being done. It makes you wonder why they are not. The only thing I can think of is that lawyers don’t realize how complicated the ADA can get, even just within one title. If you are in a complicated area, get help if you’re at all not sure where it is going. I see some lawyers do this, but you would be amazed at how many lawyers don’t do this. For those who are a bit uncertain in the area covered by this publication, the publication will give them some comfort. It will also unfortunately probably act as a crutch, which is my usual problem with guidances. In other words, my problem with guidances in general, is that they often wind up substituting for independent legal judgment and they shouldn’t. For example, see the rest of my comments below.
  3. I am a bit bothered by the EEOC strongly suggesting that the leave request is automatic if an undue hardship is not present. To me, that is a paradigm error. Of course, if no undue hardship is present then a reasonable accommodation is in order. However, what if the interactive process comes up with something besides the leave? The interactive process does not demand that the plaintiff gets what he/she demands. Rather, it demands a meeting of the minds. Ultimately, the choice isn’t even the employee’s so long as the interactive process occurs and the employee gets to the same starting line as a person without a disability.
  4. While it is perfectly okay to reach out to an employee on extended leave to check on their progress, an employer cannot ask the employee to provide periodic updates when it has already granted a leave with a fixed return date.
  5. 100% healed returned to work policies are out, but you already knew that:-)
  6. The EEOC’s view is that should a person no longer be a qualified person with a disability for the particular position they are in, reassignment is mandatory (the employee cannot be required to compete with other applicants for open positions), if there is a vacant position for which he is qualified. As we know, case law is all over the place on this point, and it will be up to the Supreme Court at some point to figure this one out.
  7. There is extended discussion about the interplay between FMLA and the ADA. The discussion struck me as a matter of common sense, but………. I guess not.

This week’s blog entry discusses Uber’s settlement with the National Federation of the Blind. The blog entry is divided into two categories: the terms of the settlement; and just how is Uber covered by the ADA and thoughts. The reader is free to focus on any or all of the categories, but since the blog entry is so short, you will probably read all of it. I have never taken Uber or its counterpart Lyft to date because of the litigation involving persons with disabilities. With this settlement, at least I know that Uber is trying, though from all reports, they still have a long way to go. Accordingly, I think I just might try Uber soon. From the reports I have read, a similar disability discrimination suit against Lyft is still in negotiation.

I

Uber’s Settlement with the National Federation of the Blind

Awhile back, September 2014, the National Federation of the Blind sued Uber for disability discrimination. That is, Uber drivers often did not accept requests for rides from those with service animals. The complaint also alleged that blind passengers were forced to pay cancellation fees after they were passed over by Uber drivers. On April 29, Uber announced that a proposed settlement was going to be submitted to the court. I have not seen the settlement, but The Recorder in this article , discusses some of the terms, which include:

  1. Uber is on the hook for up to $85,000 to monitor compliance with the agreement over the next five years. With respect to this, Uber said in their press release that they would be paying the National Federation of the Blind $225,000 over three years, and the Federation will run a testing program to evaluate the effectiveness of the settlement by having blind riders request and take trips on Uber.
  2. Uber will pay as much at $300,000 to the National Federation of the Blind and $45,000 to the three blind California plaintiffs on whose behalf the original lawsuit was filed and will pay plaintiffs attorneys fees as well;
  3. Uber drivers will now have to affirmatively agree to accept service animals in their car and acknowledge that there are no exception for allergies or religious reasons. They also will not be able to charge a cleaning fee for accepting a service animal;
  4. Uber will make it easier for blind and visually impaired riders to lodge complaints about service animal access. Uber will have to follow up with those riders as to how it handled the complaint. If a driver is deactivated as a result of that complaint, the rider gets a $25 ride credit;
  5. Uber will have to gather data about those complaints and report it to class counsel periodically over the term of the agreement. The settlement is for three and half years initially, but can be extended to five years of the parties agree or if a yet to be appointed third party monitor determines that Uber is failing to comply with the terms.

II

But How Is Uber Covered by the ADA in the First Place and Thoughts

  1. When one thinks of the ADA, they think of: title I (employment); title II (accessing governmental entities programs and activities); and title III (accessing places of public accommodations). So, is Uber a place of public accommodation? The places of public accommodation are listed in 42 U.S.C. § 12181(7). Keep in mind, the categories are exclusive, but the examples are not. If one looks at all the categories, the only one that is remotely possible is that of “other service establishment,” per 42 U.S.C. § 12181(7)(F). After all, Uber is providing a service. However, the kinds of things listed in that category (laundromat, drycleaner, bank, barbershop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a healthcare provider, or hospital), are clearly not even close to what Uber is.
  2. Since Uber is not a place of public accommodation most likely, how on earth is it covered by the ADA? The answer lies in another provision of title III of the ADA, 42 U.S.C. § 12184. 42 U.S.C. § 12184(a) states that, “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of specified public transportation services provided by a private entity that is primarily engaged in the business of transporting people and whose operations affect commerce.”
  3. 42 U.S.C. § 12181(10) defines specified public transportation as, “transportation by bus, rail, or any other conveyance (other than by aircraft) that provides the general public with general or special service (including charter service) on a regular and continuing basis.”
  4. So, certainly Uber is providing the general public with general or special services on a regular and continuing basis. Also, transportation services are not being provided by aircraft, the one exception to coverage.
  5. Uber has said, according to reports, that they are not primarily engaged in the business of transporting people, but rather they are a technology company. That argument on its face would seem to be a stretch.
  6. Notice how 42 U.S.C. § 12184 refers to causation in terms of, “on the basis of disability.” That means, mixed motive may well be in play per this blog entry.
  7. If 42 U.S.C. § 12184 applies, then the private entity per 42 U.S.C. § 12184(b)(2), must make reasonable modifications, provide auxiliary aids and services, and remove barriers in the same way as places of public accommodations.
  8. It is interesting that this case does not appear to contain any allegations of violating § 504 of the Rehabilitation Act. After all, even if Uber does not have a contract with the federal government, it is almost inconceivable that federal government employees are not using Uber and being reimbursed for same by their employer. I suppose in that eventuality, the question would arise whether the pass-through would be sufficient to count as receiving federal funds. A far cleaner question, would be if Uber receives funds directly from the federal government through a contract. It isn’t inconceivable that such arrangements exist. While it is true that causation would be different (solely by reason of), a suit under § 504 the Rehabilitation Act would open up damages if deliberate indifference could be shown, which may be possible in this case.
  9. Now that Uber drivers have to accept service animals, they may very well want to read this blog entry discussing just what is a service animal. Considering the limits on the type of questions that can be asked with respect to determining whether the animal is a service animal, it seems more likely that as a matter of course, anybody with a dog (a miniature horse is not going to fit in a Uber), desiring to ride a Uber vehicle is probably going to be allowed in the vehicle no questions asked even though that goes beyond what the law requires.

So, the bottom line here is that sometimes the ADA comes into play even if it goes beyond what one typically thinks of title I, title II, and title III situations. In short, while I don’t see how Uber could possibly be a place of public accommodation, a strong argument exist that they are an entity engaged in specified public transportation services and therefore subject to nondiscrimination requirements of 42 U.S.C. § 12184. Accordingly, I can see why a settlement would make sense.

I

NCAA Mental Health Best Practices and the ADA

Recently, the NCAA came out with best mental health practices for student athletes. Those best mental health practices can be found here. What I am particularly concerned with is Appendix F, which has all kinds of screening questions designed to assess whether a student athlete has a particular MH disability. Those screening questions include: a general index; disordered eating; depression; anxiety; alcohol use; marijuana use; sleep apnea; insomnia; and ADHD. There is absolutely no doubt that these questions would be considered disability related inquiries as discussed in this blog entry of mine. So, the very first question is whether the student athletes would be considered employees. If so, these disability related inquiries, as discussed in the aforementioned blog entry, would not be permissible unless made pursuant to a conditional job offer i.e. being a student athlete. Whether a student athlete is an employee is not an easy question to answer. For example, many people are aware that an administrative judge of the NLRB found Northwestern football players to be employees. That decision was appealed and the NLRB elected not to get involved and threw it out.  Nevertheless, the question remains whether a student athlete is an employee. If they are, then the title I statutory scheme with respect to preemployment medical inquiries/disability related inquiries, conditional job offers, postemployment medical exams needs to be followed. If they are not, then, the question becomes just what are the essential eligibility requirements of the program or activity the student athlete is involved in. Clearly, a school would be within its rights to insist upon a person being physically and mentally able to perform as a student athlete. The question is has the school listed that as an essential eligibility requirement? Have they even methodically developed essential eligibility requirements?

So, let’s assume that the student athlete is not an employee. The question then becomes has the school listed being in good physical and mental health as an essential eligibility requirement of being a student athlete. Assuming it has, I don’t see the problem in having these questions answered. The question becomes what does the school do once the questions are known. If the school summarily dismisses or unduly restricts an athlete that reveals positive answers to any of these questions, then the school has a problem. The question the school needs to answer is whether the person can do the essential functions of being a student athlete with or without reasonable modifications; Reasonable modifications being anything short of a fundamental alteration or an undue burden.

II

Takeaways:

  1. Perform an audit as to whether your University or college is in compliance with the ADA.
  2. Don’t forget about § 504 of the Rehabilitation Act, which has similar but not exactly the same rules as the ADA. Also, causation is different.
  3. Make sure your athletic programs have essential eligibility requirements and that being in good physical or mental health is one of those requirements.
  4. Once asking the questions and getting the answers, make sure that if a disability is revealed, it is assessed whether the person can perform the essential functions of being a student athlete with or without reasonable modifications. Remember, you want to be thinking in both terms of an undue burden as well as fundamental alteration.

Today’s case, Bibber v. National Board of Osteopathic Medical Examiner, Inc., a decision that came down April 11, 2016, from the U.S. District Court for the Eastern District of Pennsylvania is ostensibly about one thing but turns out to be about something else. That is, it raises the real question as to whether Albertson’s, Inc. v. Kirkingburg, by 527 U.S. 555 (1999) might still be good law despite the amendments to the ADA found at 42 U.S.C. § 12102(4)(E)(i)(IV). As is typical for my blog entries, I have divided the blog entry into categories: facts; court’s reasoning; and takeaways. As always, the reader is free to focus on any or all of the categories.

I

Facts

The plaintiff is a third year medical student scheduled to take the Comlex I exam on April 13, 2016. She is seeking accommodations on that exam because she is a slow reader as a result of her congenital deafness and being dyslexic. She only can read one word at a time and usually uses her finger, pencil, or note card to follow along. She drops her head close to the table to be able to read in order to ensure her visual field is close to the words. She often has to reread long passages to confirm her understanding of the material. Considering her deafness and her dyslexia, it isn’t surprising that she has a lifelong struggle with reading. She had to repeat kindergarten after failing to master the alphabet. In first grade, she was sent to separate reading classes and given accommodations, such as extended time for exams. She was also taken out of class so she could receive specialized instruction in other subjects and various occupational therapies. In fourth grade, she began working with a reading specialist using the Orton-Gillingham and Wilson reading methods (well-known methods for helping dyslexics learn how to read). During that time, she learned strategies to improve her reading, including how to appropriately sound out words and process word with multiple syllables. The program turned out to be a great help. Through high school she continued to receive accommodations, including extra time to complete exams. She also received extra time to complete standardized test, such as the PSAT, the SAT, the SAT II, and advanced placement exams. She then went on to Colby College, a very selective small liberal arts school in Maine, where she was also granted accommodations, including time-and-a-half on exams and quizzes. Since it took so long for her to complete her schoolwork, she didn’t have much of a social life in college. She did try to increase the speed at which she got her work done by working with study groups and having friends read to her. She also had classmate take notes for her in the classes. She also received an exemption from Colby College’s foreign language requirement. In 2008, she wanted to take the MCAT exam, but when she contacted the administrators of the MCAT, she was informed that her evaluation was out of date and that she would have to be evaluated in order to be considered for any accommodations. Not surprisingly, the evaluations the testing entity wanted her to do would have cost upwards of $5000. She could not afford that and so instead she studied for a 10 hours a day using study materials from both Princeton and Kaplan. When she took the MCAT, she nonetheless received average scores on the sections. She then applied to medical school after taking the exam but was not accepted to any school. She then pursued a teaching career for three or four years after that. Next, she attended what is now the Rutgers School of Biomedical Sciences. Before getting into that program, she had to take the GRE where she achieved an average score on the GRE, where she received a score in the 71st percentile on the verbal reasoning section and a score in the 93rd percentile in the analytical writing section, which was enough to get her into the school. She did not request accommodations for the GRE. While in graduate school she was granted accommodations, including receiving 50% extended time to complete examinations. She was successful in graduate school and graduated with a GPA of 3.71. After finishing the graduate school, she once again applied to medical school and took the MCAT a second time. This time, she received an average overall score and also an average score on the verbal reasoning section. She attributed that improvement to her test taking strategies on the physical science section of the exam. She applied to several medical schools and was accepted to the Ronan School of Osteopathic Medicine where she again requested accommodations. After being evaluated, she received accommodations, including extra time to take examinations. She achieved good grades in medical school, earning grades of pass, high pass, and honors. She also has taken several standardized tests while in medical school both with and without accommodations. At trial she testified that she enjoys reading despite it being difficult for her and said that she could read and write. She also noted that she can read menus and stop signs. Finally, she stated that she can read things normally as long as she is not timed. As part of the run-up to trial, she was administered a test that showed she was in the 5th percentile reading comprehension when compared to other college graduates and that her reading rate was measured to be in the 1st percentile when compared to other college graduates. On the other hand, experts for the National Board of Osteopathic Medical Examiners said that she would not entitled to extended time because she received average MCAT and GRE scores without accommodations and she had average scores on another test. In particular, her scale reading comprehension scores were average compared to a population of readers spanning 10th-graders through students in the second year of college. On the Woodcock-Johnson reading mastery test, she achieved scores in the 41st percentile in word reading, the 75th percentile in word comprehension, and the 91st percentile in passage comprehension.

II

Court’s Reasoning

In holding that the plaintiff was not substantially limited in the major life activity of reading and processing information, the court reasoned as follows:

  1. An analysis as to whether an impairment substantially limits performance in a major life activity must be compared to the individual’s ability to those of most people in the general population.
  2. The Department of Justice heavily favors an individualized assessment or evidence that a qualified professional has individually and personally evaluated the candidate as opposed to simply considering the scores from review of documents.
  3. Factors considered by courts across the country include: 1) an individual’s objective test results in comparison to an average person; 2) the individual’s other life activities, including extracurricular activities; 3) any pattern of substantial academic difficulties; and 4) whether the individual has been afforded testing accommodations in the past.
  4. Department of Justice has taken the position that if an applicant had been granted accommodation post high school by a standardized testing entity, then there is no need for reassessment for subsequent examination.
  5. Referencing a decision by now Justice Sotomayor when she was a U.S. District Court judge, Bartlett v. New York State Board of Law Examiners, 2001 U.S. Dist. LEXIS 11926, 2001 WL 930792 (S.D.N.Y. August 15, 2001), a disability cannot be based on outcomes alone, particularly in the context of learning disabilities, especially where plaintiff is extremely bright and hard-working and uses alternative route to achieve academic success. That is, the focus is on how a major life activity is substantially limited and not on what outcomes an individual can achieve.
  6. The amendments to the ADA flatly state that the determination of whether the impairment substantially limits a major life activity has to be made without regard to mitigating measures.
  7. Psychometric data shows that the plaintiff reads at an average level. Accordingly, her disabilities do not substantially limit her ability to read and process information as compared to the general population. In particular, on one test when compared to other 28 year olds, she scored in the 68th percentile in word reading, the 53rd percentile and to pseudoword decoding, and the 82nd percentile in spelling, all of which were squarely within the average range for people in her age group (makes you wonder about the literacy of 28 year olds in the U.S.…)
  8. Her own expert testified that the plaintiff was entitled to only 25% more time on the exam.
  9. Without accommodation, the plaintiff scored in the 71st percentile in the verbal reasoning section when compared to college graduates and college seniors seeking to attend graduate school. When she took the MCAT twice, both times she scored in the average range on the most reading intensive section of the test when compared to college seniors the graduate wishing to attend medical school. She also completed all three of those exams without any accommodations. Therefore, her confidence in taking those exams without even attempting to receive accommodations speaks big volumes about whether her dyslexia is substantially limiting when compared to high achieving groups of people, let alone the general population.
  10. On the COMSAE test (essentially the PSAT for COMLEX), when she took it a second time, she finished the exam in less than the time provided and received an acceptable performance score.
  11. She testified that she is an avid reader and has no problems reading menus, and traffic signs; she can read, though it takes her longer to do so. Thus, she presents the picture of a slow reader who can read effectively in both academic situations and daily activities.
  12. Since the court has no evidence of the plaintiff’s reading abilities prior to fourth grade other than her testimony, it was not possible to conclude that without using the mitigating measures she uses that she was substantially limited by her dyslexia.
  13. The court distinguished the Sotomayor opinion in several ways.
    1. The plaintiff here is a better student, a better standardized test taker, and has much better grades.
    2. The plaintiff did not struggle on the GRE in the same way.
    3. The plaintiff reads for pleasure and has no trouble with everyday reading tasks.
    4. The plaintiff failed to produce sufficient evidence that her reading process is slow, labored, and difficult when compared to the general population.
  14. The decision should not be read by the National Board of Osteopathic Medical Examiners as a license to deny accommodations to individuals with a history of accommodations and a dyslexia diagnosis from childhood. Even so, unique facts of this case necessitate the conclusion that the plaintiff is not a person with a disability as defined by the ADA.

III

Takeaways:

  1. In Albertson’s, the Supreme Court said that mitigating measures included any mitigating measures that a person develops on his own, even including neurological accommodations. As mentioned above, the amendment to the ADA explicitly overruled that decision. However, this case has you wondering whether that is indeed the case. The court says that they simply don’t have evidence before fourth grade to make the call. However, objectively speaking, it is pretty obvious that the mitigating measures she developed changed the trajectory of her reading and processing abilities. In particular: she had trouble reading since the earliest days of her formal education; she repeated kindergarten after struggling to learn the alphabet; in first grade she was tested and found to have learning disabilities related to reading and was subsequently placed in a special reading class and given accommodations on test; between fourth and eighth grade, she was provided with frequent afterschool instruction using the Orton-Billingham and Wilson reading programs; and she still uses many of the same tools she learned while working with her instructor utilizing those techniques in grade school. She also received accommodations through her high school years, both in school and with respect to standardized testing. Finally, I might add that the overwhelming majority of children with severe to profound hearing impairment upon completion of their mandatory school period, do not read above the fourth grade level when compared with their peers who are typically hearing. See, Godbey v. Iredell Memorial Hospital, Inc. 2013 U.S. Dist. LEXIS 117129, at *4 fn 4 (W.D. N.C. August 19, 2013). Accordingly, one is left with the conclusion that despite statutory provision to the contrary, Albertson’s might still be good law.
  2. Part of the problem is that there is no standard for determining the ameliorative effects of mitigating measures that a person develops that are not related to equipment or personnel. I would submit that the standard should be whether the trajectory changed and that such a standard should not need overwhelming evidence as to whether the person was substantially limited without the mitigating measures. The advantage of the trajectory change standard is that it should be relatively easy to prove up as contrasted to the standard that the court came up with here requiring an analysis of evidence prior to her receiving mitigating measures in fourth grade.
  3. An argument can be created that the plaintiff is certainly being penalized for having worked hard to develop her own successful mitigating measures and for being intelligent; neither of which is supposed to happen per the ADA.
  4. The court said that the National Board of Osteopathic Medical Examiners should not take the decision as a license to deny accommodation to individuals with a history of accommodations and a dyslexia diagnosis from childhood. However, one wonders if this case will not give NBOME encouragement to do that anyway. One also wonders, whether this case won’t give testing entities encouragement to ignore the LSAT settlement, which I discussed here, as the plaintiff here had a long record of receiving accommodations for standardized testing.
  5. If plaintiff fails to file an appeal, not only does she lose the chance for accommodation for standardized testing, one wonders if the University she is at will not take away her accommodations.
  6. The problem I have with this case is its theoretical construct with its focus on substantial limitation. As the EEOC and the DOJ say, whether a person is substantially limited should not generally require a great deal of analysis, and a great deal of analysis is exactly what happened here. Also, objectively speaking, it is pretty obvious that her trajectory changed as a result of the mitigating measures she developed on her own. That said, I would have been more pleased with the theoretical construct of saying that this person had a disability but a question of fact exists as to the affirmative defense of whether allowing the accommodations would fundamentally alter the nature of the test.
  7. While litigation over substantial limitation has gone way down since the amendments to the ADA, you do see it coming up occasionally, such as in this case (considering the dueling experts, getting the case to this point had to be extremely expensive).
  8. If a plaintiff needs accommodations on a standardized test, not seeking them may be used against them later should they subsequently seek reasonable accommodations.
  9. The focus on Woodcock-Johnson may be problematic. I am aware that learning disability specialists have varying views of this test and what it might mean for a particular individual.

The labor and employment blogosphere, see this excellent blog entry of Robin Shea and another excellent, and always provocative, blog entry from Richard Hunt for examples, have been talking about a recent case from the Eighth Circuit holding that obesity by itself is not a disability under the ADA. Normally, if a bunch of people are blogging on a case, I tend to hold off blogging on it myself. However, if I think I can offer a different perspective, I will blog on it anyway and so here goes. Before proceeding further, I blogged on obesity once before here, where I explored a European Union case from a couple years back, which held that obesity by itself cannot be a disability. The case of the week agrees with that approach in that obesity by itself without an underlying impairment cannot be a disability. As is typical with my blog entries, I have divided the blog into categories: facts, court’s reasoning, and takeaways. The reader is free to focus on any or all of the categories.

I

Facts

 

Morris applied for a machinist position with BNSF in March 2011, and was extended a conditional offer of employment. Since the position was safety sensitive, the offer of employment was contingent on a satisfactory medical review. He completed BNSF’s medical questionnaire and reported that he was 5’10” tall and weighed 270 pounds, that he had once been diagnosed as pre-diabetic but was not currently diabetic, that he had taken appetite suppressant medication to lose weight but not to address any health concerns, that he considered his overall health good, and that he experienced no difficulties or limitations in his daily activities. In response to a request for additional information concerning his possible history of diabetes, his doctor submitted treatment records for the first three months of 2011, which did not reflect a current diagnosis of diabetes or any symptoms of diabetes. Since BNSF’s policy was not to hire a new applicant for a safety sensitive position if a person’s BMI equaled or exceeded 40, they notified him by email that he would not currently qualify for the safety sensitive machinist position due to significant health and safety risk associated with class III obesity (A BMI of 40 or greater) and revoked the conditional offer of employment. He sued alleging both actual disability as well as regarded as disability. In particular, the District Court noted that the plaintiff had unequivocally denied suffering from any medical impairment or condition on the medical questionnaire, had described his health as good, and had disclosed no difficulties or limitations in his daily activities. Instead, he stated that he did not believe he had a physical disability, that he was not aware of any underlying condition contributing to his obesity or to his inability to lose weight, and that his weight caused no physical limitations. Accordingly, summary judgment was appropriate on the actual disability claim. The court also said that because BNSF acted only on its assessment of the plaintiff’s predisposition to develop an illness or disease in the future, it did not regard him as having a disability under the ADA, and therefore, granted summary judgment on the regarded as claim as well.

II

Court’s Reasoning

In holding that there must be an underlying impairment for a person with obesity to be protected under the ADA, the court reasoned as follows:

  1. The ADA does not define physical impairment. However, the amendments to the ADA specifically gave regulatory bodies the right to issue regulations implementing definitional terms. The EEOC defined disability, at 29 C.F.R. § 1630.2 (h)(1), as, “any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine.”
  2. There is an EEOC interpretive guidance referring to weight stating that the term impairment does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone that are within normal range and are not the result of a physiological disorder. The plain reading of this interpretive guidance is that an individual’s weight is generally a physical characteristic qualifying as a physical impairment only if it falls outside the normal range AND it occurs as a result of a physiological disorder. Such a reading is supported by the EEOC’s treatment in another interpretive guidance dealing with height, weight, muscle tone, and other conditions where they specifically note that they are not impairments unless they are the result of an underlying physiological disorder.
  3. Both the Sixth Circuit and the Second Circuit have reached the same conclusion.
  4. The court did reference a case from 1993, Cook v. State of Rhode Island, Department of Mental Health, Mental Retardation and Hospitals which I always mention in my book, where the First Circuit held that morbid obesity could be a disability, but the First Circuit in deciding so, specifically noted that there was evidence of an underlying physiological impairment in that case.
  5. While it is true, that the amendments to the ADA make clear that the definition of substantial limitation on a major life activity construed by the courts and the EEOC did not go far enough, Congress did not express any disagreement with judicial interpretations of the term “physical impairment.”
  6. In an appendix to the regulations, the EEOC noted that with respect to 29 C.F.R. § 1630.2 (h), Congress expects that the current regulatory definition of physical impairment as promulgated by the EEOC was not going to change.
  7. While the amendments to the ADA may have a broad policy goal of expanding the disability universe, that policy goal is constrained by language limiting such coverage to the extent permitted by the terms of the ADA. Both the ADA, the EEOC regulations, and the interpretive guidance say that a physical impairment must be the result of an underlying physiological disorder or condition. Therefore, the general policy statement of the amendment to the ADA cannot trump such language.
  8. The argument of the EEOC that whether a person has a disability under the ADA should not demand extensive analysis does not apply either because the extensive analysis piece is focused on whether a person is substantially limited in a major life activity. A person claiming disability protection must before that allege a physical or mental impairment first.
  9. Even if you assume morbid obesity is a protected disability, the plaintiff was not morbidly obese. The plaintiff would have to weigh 400 pounds for that to be the case.
  10. The position taken by the EEOC in the litigation is contradictory to its own regulations and interpretive guidances, and is therefore not entitled to deference.
  11. The EEOC does note in its compliance manual that severe obesity, body weight more than 100% of the norm, morbid obesity), is an impairment. However, the plaintiff was not morbidly obese. Also, this pronouncement in the compliance manual explicitly contradicts the plain language of the ADA as well as the EEOC’s own regulations and interpretive guidance, all of which define a physical impairment as requiring an underlying physiological disorder or condition.
  12. The argument that BNSF perceived the plaintiff as having a current physical impairment because of the refusal to hire him on the ground that he presented an unacceptably high risk of developing certain medical conditions in the future, does not apply because the ADA prohibits an employer from discriminating against an individual on the basis of a presently existing physical impairment as defined by the ADA. The ADA does not prohibit an employer from acting on some other basis, such as on its assessment that although no physical impairment currently exists, an unacceptable risk of a future physical impairment does. That is, the ADA does not prohibit discrimination based on a perception that a physical characteristic as opposed to a physical impairment may eventually lead to a physical impairment as defined by the ADA.
  13. The EEOC’s own interpretive guidance specifically states that the definition of impairment does not include characteristics predisposing a person to illness or disease.

III

Takeaways:

  1. This decision pretty much torpedoes the ability to use obesity as a protected disability under the ADA.
  2. The decision seems pretty well reasoned, and so I would not suggest an appeal to the United States Supreme Court. In addition to that, people with obesity suffer from severe stigmas and that would make only prevailing at the Supreme Court even more difficult considering the thoroughness of the reasoning in this case.
  3. This case applies to morbid obesity as well.
  4. So, if a person is obese, morbid or otherwise (it is becoming more more of a problem in American society), do they have a disability claim? This case makes a regarded as claim difficult. As far as an actual disability claim, it would not be unheard of (please note I am most emphatically NOT saying always), for a person with obesity to have underlying MH issues, such as anxiety or depression. In that situation, a perceived disability case would still be difficult because you would have to show that it wasn’t the obesity that was perceived but rather an underlying MH issue. If there is an underlying MH issue, the actual disability approach might be the stronger approach.
  5. Paragraph 4 of the Takeaways section lead to another issue. That of direct threat. Direct threat, which originates in this U.S. Supreme Court case and can be found in the ADA implementing regulations at 29 C.F.R. § 1630.2(r), says that a person with a disability is not protected by the ADA if they are a direct threat to themselves or others. However, per a different U.S. Supreme Court case, in order for a person to be a direct threat, the employer’s decision must be based on a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence. Further, that assessment must be based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job. Note though that for direct threat to apply, the person must have a disability in the first place. Therefore, forcing an employer to argue direct threat if you have obesity without an underlying condition won’t work. However, if you have obesity and an underlying condition, such as an MH condition, if the MH condition is disclosed, the direct threat defense would then apply. So, on a policy level, this decision may actually have the positive effect of increasing the possibilities of whether people get assessed for MH issues, again assuming that such an MH issue is present in the first place which may or may not be the case, and that those MH issues are brought into the open in the workplace.
  6. It is true that the ADA focuses on present physical or mental conditions. For those conditions that may happen in the future, you want to look at the Genetic Information Nondiscrimination Act.

 

 

 

 

 

I potentially have jury duty on Monday. It is hard to believe that I would be selected. However, Georgia has no exemptions for attorneys serving on juries. I think like most attorneys, I would love to have the opportunity to serve on a jury. On the other hand, attorneys are paid to persuade. Also, I spent 12 years in higher education teaching people how to be paralegals full-time. So, I am used to successfully demystifying information for people from all kinds of backgrounds. If I were the trial attorney, would I want me on the jury, I am not so sure. I have gone through the voir dire process twice (fender bender in Texas and capital murder in Illinois), and enjoyed the experience both times. There is a chance that I will not have to show up at all since it is spring break down here, and many attorneys may be trying to postpone their trials. Nevertheless, since my wife and daughter are out today for a while, I thought I would take the opportunity to get up a blog entry for the week since with jury duty and my daughter being on spring break, my schedule next week will be a bit all over the place.

At any rate, the case of the day deals with the question of association discrimination in employment. In particular, when it comes to association discrimination in employment, is it a general concern that has to be shown or are there specific boxes that you have to fall into in order to have a claim? This case goes along with a trend of cases in title I associational discrimination saying that you have to fit into one of the boxes. The case is a Second Circuit case Graziadio v. Culinary Institute of America, decided March 17, 2016. As is typical with my blog entries, I divided the blog entry into categories: facts; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.

I

Facts

In this case, the plaintiff was an employee of the Culinary Institute of America (the Culinary Institute of America, often called the CIA, which is actually not far from where I went to college at Vassar, though unbelievably I never took advantage of that opportunity to dine there), and took leave under the FMLA in order to care for her son suffering from diabetes. Additionally, a few weeks later she took leave under the FMLA when her son broke her leg. During the second term of absence, the CIA took issue with the paperwork supporting her leave and refused to allow her to return until she provided new documentation. Communication between the plaintiff and the CIA broke down, and the CIA ultimately fired her for abandoning her job. She sued for both interfering and retaliation under the FMLA as well as discrimination under the ADA. The court held that there were genuine disputes of material fact with respect to her FMLA interference and retaliation claims, but she failed to bring forth evidence supporting a claim of discrimination under the ADA. We are just going to focus on the ADA piece.

 

II

Court’s Reasoning

  1. Associational discrimination claims are rarely litigated.
  2. A prima facie case of associational discrimination in employment involves establishing: that the plaintiff was qualified for the job at the time of an adverse employment action; that she was subjected to adverse employment action; that she was known at the time to have a relative or associate with a disability; and that the adverse employment action occurred under circumstances raising a reasonable inference that disability of the relative or associate was a determining factor in the employer’s decision.
  3. In order for associational discrimination under the ADA to exist in employment it has to fit into one of the categories enumerated in Larimer v. International Business Machines Corp. Those categories are: “expense,” in which an employee suffers adverse action because of his association with a disabled individuals covered by the employer’s insurance, with the employer believes (rightly or wrongly), will be costly; “disability by Association,” in which the employer fears that the employee may contract or genetically predisposed to develop the disability of the person with whom he is associated; and “distraction,” where the employer fears that the employee will be inattentive at work due to a disability of the disabled person.
  4. The plaintiff’s claim could only arise under the “distraction,” possibility with respect to her caring for one of her son’s diabetes, and she produced no evidence that she was fired because the employer believed that she would be distracted by caring for that son. In fact, she was reinstated following her leave to care for that son.
  5. An ADA associational claim does not exist for the son who broke his leg because the plaintiff conceded that her son’s broken leg did not qualify as a disability.
  6. With respect to, “distraction” claims, the ADA does not provide a right for an accommodation in work schedule for an employee that is actually sufficiently distracted to fall into this associational discrimination category because the right to an accommodation being limited to employees with disabilities does not extend to a nondisabled associate of a person with a disability.

III

Takeaways:

  1. For associational discrimination in employment, the case law is trending that the facts are going to have to fit into one of the categories discussed in this blog entry. That said, it isn’t clear to me why the ADA as a matter of statutory construction would demand that associational discrimination in employment must fit into one of these categories.
  2. Not sure I understand why the plaintiff so readily conceded that the broken leg was not a disability. After all, a temporary disability, as discussed in this blog entry, may be a disability under the ADA.
  3. Associational discrimination under the ADA will work differently with respect to the other titles, such as title II, as discussed in this blog entry of mine.
  4. While not a focus of this blog entry, this case is yet another example of how whenever you are dealing with the FMLA, the ADA is not far behind and must also be dealt with.

First off, I hope that everybody who celebrated Good Friday and Easter had a happy one. Today’s case, Gentry v. East-West Partners Club Management Company, Inc. is a published decision from the Fourth Circuit, which came down on March 4, 2016. I don’t believe in all my blog entries that I have ever taken the position that a plaintiff might want to consider appealing to the United States Supreme Court, particularly on an employment matter, but there is a first time for everything. For the reasons to be explained below, the plaintiff may very well want to consider appealing this to the United States Supreme Court assuming they don’t seek an en banc rehearing first. As in my usual practice, I have broken down the blog entry into categories. They are: facts; the jury instructions; court’s reasoning causation jury instruction; court’s reasoning definition of disability jury instruction; court’s reasoning regarded as jury instruction; court’s reasoning record of jury instruction; why the plaintiff may want to think about appealing this to the United States Supreme Court; and takeaways. The reader is free as always to focus on any or all of the categories.

I

Facts

Plaintiff was an executive housekeeper at the Maggie Valley Club and Resort supervising a staff of 8 to 10 housekeepers at an annual salary of $39,381. In July 2007, she fell at work, injuring her left foot and ankle. She filed for workers compensation benefits. In January 2010 or so, the club’s insurance carrier offered to settle her workers compensation claim, but she declined expressing concern that she might be terminated if she accepted, and instead pursued mediation. In November 2010, her workers compensation claim was ultimately settled at mediation. In December 2010, she was terminated. The club presented evidence that they had been losing money since its inception and was particularly hard-hit during the recession, operating a net loss of approximately $2 million in both 2008 and 2009. They maintained that her position was eliminated solely to reduce costs. However, the plaintiff testified that after her termination she met with an executive of the club who informed her that the club had admitted to terminating her because of the issues with her ankle and because she could be a liability to the club. This testimony was also confirmed by the EEOC investigator, though the executive denied making those statements to the investigator. Plaintiff also presented evidence undercutting the club’s cost-saving rationale, including that the person who had assumed the responsibilities performed only minimal maintenance duties and that his pay eventually increased to be only $4000-$5000 less than hers. She also established that there was no memorialization of the spring and summer 2010 meeting that discussed the club’s restructuring plan, which included a discussion of her termination. Additionally, an executive of the club testified that he only learned of her impending termination in the fall 2010, when the club’s general manager called to inform him of her workers compensation claim. No one contended that she was terminated for reasons related to her work performance or that anyone had ever criticized or complained about her performance. An executive of the club described her as an outstanding employee who did an excellent job. She sued the club and East-West partners for: disability discrimination under the ADA and North Carolina law; sex discrimination under title VII and North Carolina, law; retaliation against the plaintiff for pursuing a workers compensation claim in violation of the North Carolina, law; and a tortious interference claim. After a weeklong trial, the jury found East-West liable for workers compensation retaliation and awarded her $10,000. They also found liability against East-West and the club’s general manager for tortuously interfering with her employment and awarded separate damages of $5000 against each of those. The jury found in favor of the defendants on all other claims. After the plaintiff moved for a new trial, which was denied, she appealed. She argued that the District Court incorrectly instructed jury with respect to the ADA claims (the appeal did involve other issues, but we are just focusing on the ADA ones).

II

The Jury Instructions

  1. The jury was instructed that the plaintiff has to demonstrate that her disability was the but for cause of her termination.
  2. An impairment substantially limits a major life activity if it prevents or significantly restricts a person from performing the activity, compared to an average person in the general population.
  3. Disability discrimination laws are designed to protect individuals who may be perceived as disabled from being discriminated against in the workplace and that you must decide whether a perception that she was disabled was the but for reason that the defendant terminated her employment.
  4. An individual has a record of a disability if the individual has a history of a mental or physical impairment that substantially limits one or more major life activities.

III

Court’s Reasoning Causation Jury Instruction

  1. After discussing in a footnote where the motivating factor standard originated, the court relies on Gross v. FBL Financial Services, Inc., which held that but for was the standard with respect to Age Discrimination in Employment cases.
  2. The 1991 act that added motivating factor standard to title VII also amended provisions of the ADA but did not add motivating factor to the ADA.
  3. While the ADA does contain language incorporating title VII enforcement provisions, that language does not incorporate the specific sections establishing mixed motive as unlawful employment practices.
  4. No meaningful textual difference exists between “on the basis of,” and “because of.” The court cited to University of Texas Southwestern Medical Center v. Nassar as a case supporting this proposition.
  5. While it is true, that legislative history says that “on the basis of,” was inserted so that the emphasis and question of disability discrimination is properly on the critical inquiry of whether a qualified person with a disability had been discriminated against on the basis of that disability takes away the focus on the preliminary question of whether they had a disability in the first place, nothing in that legislative history suggests that the language suggests that the language was meant to lower the causation standard.
  6. The “on the basis of,” language was enacted before Gross, and therefore, is not in response to the causation analysis in that case.
  7. The court also cited to the dictionary, both the new Oxford American dictionary and Merriam-Webster, to say that on the basis of essentially means the same thing as because of.

III

Court’s Reasoning Definition of Disability

  1. The plaintiff did not object to the jury instruction that said an impairment substantially limits a major life activity if it prevents or significantly restricts a person from performing the activity, compared to an average person in the general population and therefore, the jury instruction can only be reviewed for plain error.
  2. To establish plain error, she has to show that: 1) that the District Court erred; 2) that the error was plain; and 3) that the error affected her substantial rights. That is there must be a reasonable probability that the error affected the outcome of the trial.”
  3. Even if the assumption was made that the court’s instruction was erroneous and that the error was plain, she had not shown that it affected her substantial rights as she offered little to suggest that her disability discrimination claims failed because the jury believed that her impairment did not meet the District Court’s definition of substantially limits. She did not contend that the defendants argued to the jury that the standard for disability was demanding or that her impairment was not severe enough. For that matter, she did not demonstrate that the extent of her impairment was a seriously contested issue at trial. There were also plenty of facts from which the jury could have found that her termination was not the result of an impairment to her foot, regardless of how severe. After all, she was not terminated until more than three years after injury and more than two years after her surgery. Further, at no point did her employer complain about her ability to perform her job duties, and in fact, thought she was an outstanding employee. Finally, the plaintiff offered no argument as to how failure to correct this instruction resulted in a miscarriage of justice or seriously affected the fairness, integrity, or public reputation of the judicial proceedings.

IV

Court’s Reasoning Regarded As Jury Instruction

  1. There is a question as to whether the plaintiff promptly preserved an objection to this particular instruction. In any event, the court did not see how she was prejudiced by the instruction as the instruction implicitly conveyed that the plaintiff did not actually have to be disabled.
  2. The District Court acted within its discretion when it determined that the full regarded as instruction proposed by the plaintiff was not warranted under the circumstances of the case after he heard all of the evidence and mindful that the jury was already dealing with complex and nuanced instructions on multiple discrimination and related claims under state and federal law. In particular, the court felt that the jury would get there any way if they believed there was discrimination on the basis of disability.

V

Court’s Reasoning on “Record of,” Jury Instruction

  1. Her contention was that the EEOC regulations contain an additional phrase that a record of having a disability includes a person who was misclassified as having a disability and that phrase was not included by the court in its jury instructions. However, the plaintiff did not object to this instruction, and on appeal, she did not explain how the omitted language applied to her case. Therefore, the court had no basis for finding that the District Court erred or otherwise abused his discretion with respect to this jury instruction.

VI

Why the Plaintiff May Want to Think about Appealing This to the United States Supreme Court

  1. It is absolutely true that Gross, held that but for was the standard for causation with respect to age discrimination in employment act cases. It is also absolutely true that University of Texas Southwestern Medical Center v. Nassar, held that but for causation was the standard with respect to retaliation claims. However, as discussed in this blog entry, which is one of two that is the most popular blog entry of mine of all time, that does not mean that the answer is the same with respect to status-based discrimination. In Nassar, Justice Kennedy is quite clear about the distinction between status-based claim and retaliation claims. Second, Justice Kennedy mentioned that if Congress wanted mixed motive to apply to retaliation claims, it could have inserted the motivating factor provision as part of the section applying to all such claims, such as 42 U.S.C. § 2000 e- 5. The ADA specifically references this provision as the remedies available to a plaintiff alleging discrimination on the title I of the ADA per 42 U.S.C. § 12117(a). Finally, Justice Kennedy specifically cites to the ADA when he says that the ADA is also a comprehensive statutory scheme and that Congress and the ADA clearly spoke to retaliation separate and apart from status-based claims.
  2. As discussed in my blog entry discussing the Nassar case, referenced above, the legislative history clearly mentions that Congress wanted to make clear that the indirect burden of proof, which presumes a motivating factor, was still in play.
  3. It is true that you can find a case from the United States Supreme Court saying that “on the basis of,” and “because of,” are synonymous terms as discussed in this blog entry of mine. However, the person that wrote that decision, Justice Scalia, is no longer with us. Also, his statement in that decision is most assuredly dicta.
  4. All it takes for the court to agree to hear the case is four Justices. There is also the possibility that by sometime next calendar year the Justices may have a very different configuration (keep in mind, I have not yet had the time to do an analysis of Judge Garland’s decisions involving the ADA and the Rehabilitation Act. Also, any such analysis, irregardless of what it might show, is not necessarily a predictor of what he would do on the Supreme Court).
  5. The U.S. District Court clearly got it wrong when it comes to the jury instruction talking about substantially limits. The “prevents or significantly restricts,” language clearly comes from Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, a standard specifically overruled by the ADA amendments act. In particular, the amendment to the ADA specifically states that the EEOC standard, which was far higher than the Toyota Motor standard, was still too high. Also, the amendments act to the ADA specifically gave regulatory bodies the authority to implement definitional terms. When the EEOC took advantage of that authority in 29 C.F.R. § 1630.2(j)(ii), it defined substantially limits as being a matter of whether the person is substantially limited in a major life activity as compared to most people in the general population. That said, the plaintiff in this case with respect to the definition of what is a disability will still have a major problem because the objection to the jury instruction was not properly preserved, and there is a serious question as to whether the facts were such that substantial rights of hers were affected.
  6. Since the EEOC had the authority to implement definitional terms, an argument exists that the record of jury instruction was in plain error because of the absence of the misclassified language. However, even so, the plaintiff did not bring forth evidence to show how that particular absence affected anything.
  7. I don’t think the court’s jury instruction was sufficiently clear with respect to what it means to be perceived as having a disability. That is, the full definition of what it means to be perceived or regarded as having a disability would have clarified things immensely. That said, was the jury instruction such so as to rise to plain error in the absence of an ambiguous preserved objection to the particular instruction?
  8. The court relies on the decision of Lewis v. Humboldt Acquisition Corporation, Inc. from the Sixth Circuit. However, while it is true that the majority opinion adopted in that case adopted the but for standard, it is also true that there were vigorous concurring opinions as well as dissents, and questions were raised about what but for actually means. That is, for example, but for might mean the same thing as substantial factor in torts cases.

VII

Takeaways

  1. If you are not satisfied with a jury instruction that the court comes up with, make sure there is an unambiguous objection to that jury instruction in order to preserve your appeal.
  2. Jury instructions should reference the ADA as amended in addition to any applicable case law.
  3. I do believe it may be worthwhile to take this case up with the Supreme Court, particularly with respect to the mixed motive portion of the jury instruction. Even if Judge Garland is not confirmed, Justice Kennedy has very strong language in University of Texas Southwestern Medical Center v. Nassar making it clear that disability discrimination is status-based discrimination and should be treated differently than retaliation causes of action. To hold that mixed motive does not apply to title I cases would mean that Justice Kennedy would have to disagree with his reasoning in a prior case (if that holds, that would mean in a configuration without Judge Garland, it would still go 5-3 in favor of the plaintiff on the mixed motive question). It would also be interesting to see how the Supreme Court views whether objections to the jury instructions were properly preserved and whether plain error exists. The jury instructions and what actually should have been used are sufficiently different that reasonable jurists might disagree on whether plain error occurred. Also, in the case of the regarded as jury instruction, it was ambiguous as to whether the objection was properly preserved and reasonable jurists may disagree on whether it was preserved or not.