Today’s case is a case originating in Winston-Salem, NC that I have been following for some time. I want to thank Robin Shea, who actually works in Winston-Salem, for alerting me in a recent entry to her blog (see my blogroll), that the Fourth Circuit decision came down. The case is Stephenson v. Pfizer, Inc., an unpublished per curiam decision decided March 2, 2016. As is my usual practice, I have divided the blog entry into categories: facts; thoughts on the facts; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.

 

I

Facts:

In 1984, the plaintiff began her career as a pharmaceutical sales rep after graduating from Duke University. For nearly 30 years, she worked for Pfizer or its predecessor as a sales representative in and around Winston-Salem, North Carolina. The position required her to make in person presentations of biopharmaceutical products with the goal of convincing medical professionals, generally primary care physicians, to prescribe those products for their patients. She was an exemplary salesperson, and in 1985, she was named rookie of the year by her employer. 15 years later, Pfizer inducted her into its Hall of Fame, an honor bestowed on fewer than 100 sales representatives in the company’s history. She subsequently earned recognition in national sales contests and was named a Pfizer Master in honor of her sales and leadership achievements. Her job required meeting with physicians in their offices, and she did not maintain an office at a Pfizer facility. Instead, Pfizer provided her with a car for travel from her home in Winston-Salem for attending sales meetings. She spent most of the work day meeting with doctors. She usually worked about 10 hours a day, with eight of those away from home and on the road. Although she could not perform her job without meeting with medical professionals in person, she understood her job to require traveling, and driving an automobile was her method of accomplishing that. Her job description says nothing about driving an automobile or even possessing a driver’s license. It did outline what she had to do with a degree of specificity including:

[Sales representatives] may have a variety of roles, such as the responsibility for sales targets and physician relationships within a specific geography. . .[;]

must demonstrate a strong understanding of necessary disease states and possess a solid ability to communicate necessary technical, scientific, and product and disease management information to customers . . .[;]

[and] will provide the most current information pertaining to Pfizer products and their approved indications in a manner which will ensure the appropriate use of these products and achieve the business potential of the territory.

 

Further, the job description required that she:  possess business savvy; be familiar with sales reporting software; have a college degree or equivalent experience in pharmaceutical sales; demonstrate good judgment; demonstrate accountability; demonstrate self-motivation; demonstrate effective problem-solving; demonstrate sales related skills focused on building relationships with physicians and executing effective sales strategies; and demonstrate a commitment to Pfizer’s culture, values, and mission.

In October 2008, she developed an eye disorder called Non-Arteritic Ischemic Optic Neuropathy, a condition that affects the flow of blood to one or both of the optic nerves. As a result, she lost 60% of her vision in her left eye. Even so, she was able to continue working, without accommodation for the next three years. By October 2011, she had the condition in her right eye and lost 60% of the vision in that eye. As a result of her combined vision loss, she could no longer drive an automobile.

On October 27, 2011, she asked Pfizer to accommodate her vision problems by allowing her to have a driver take her to sales meetings, obtaining magnifying software for her computer, and requesting magnifying tools to assist her in reading documents. While waiting on the company’s response she and her husband researched and received pricing estimates from potential drivers and shuttle services that could transfer her to sales meetings. She forwarded that information on to the company, but for about a month heard nothing regarding the accommodations request. In a November 28, 2011, email, Pfizer granted her request for computer software and reading tools but rejected her request for a driver. Pfizer did not suggest in that denial that the cost of hiring or retaining a driver was a factor in the denial, but maintained that the denial was based upon their view that driving was an essential function of her sales position and that hiring a driver would be inherently unreasonable. In particular, Pfizer pointed out that it there was a significant increased risk in liability related to automobile accidents, workers compensation, and misappropriation of and/or lost drug samples. Over the next several months, she repeated her request for a driver through phone calls and emails and each time she received the same answer as the one previously given her. Pfizer’s North Carolina regional business director said in early of 2012 that the company was concerned about setting precedent in case a future non-performing employee would ask for something similar explaining that not everyone was someone like her. Instead of discussing accommodations that could get her back to work meeting with doctors, Pfizer just directed her to other positions within the company that did not require traveling. She declined to pursue any other positions believing that her skills were best suited to the sales representative job in which she had excelled for decades. On April 25, 2012 she filed a charge with the EEOC, and the EEOC issued a notice of right to sue in November. At the lower court level, the District Court granted summary judgment to Pfizer and she appealed.

II

Thought on the Facts

  1. When I read these facts, the first thing that struck me was Pfizer saying that the reasonable accommodation request was inherently unreasonable. In my blog entry of last week, we saw this argument. That is, the defendant there essentially raised the issue of whether the requested reasonable modification was inherently unreasonable. In that case, the court went for that argument. In this case, as we shall see, the court didn’t go in that direction.

 

III

Court’s Reasoning

In a per curiam and unpublished decision, the court vacated and remanded saying that summary judgment was not warranted for the following reasons:

 

  1. A reasonable accommodation is one that enables a qualified individual with a disability to perform the essential functions of the position.
  2. An employer must accommodate an employee with a disability only when the accommodation enables the employee to perform all of the essential functions of her position.
  3. A plaintiff has to prove four elements with respect to a failure to accommodate claim: she is a person with a disability; the employer had notice of her disability; she could perform the essential functions of her job with the reasonable accommodation; and the employer declined to make such an accommodation.
  4. Essential functions of the job are those that bear more than a marginal relationship to the job at issue. More particularly, 29 C.F.R. § 1630.2(n)(1) defines essential functions as the fundamental job duties of the employment position the individual with a disability holds or desires, excluding the marginal functions of the position.
  5. The ADA at 42 U.S.C. § 12111 (8) says that a written job description that has been prepared ahead of advertising or interviewing candidates for a position shall be considered evidence of the essential functions of the job.
  6. 29 C.F.R. § 1630.2 (n)(3)(i)-(vii) identifies seven factors that are to be evaluated with respect to whether a particular function is essential including: the employer’s judgment as to which functions are essential; written job description prepared before advertising or interviewing applicants for the job; the amount of time spent on the job performing that particular function; the consequences of not requiring the incumbent to perform the function; any applicable terms of the collective bargaining agreement; the work experience of past incumbents in the job; in the current work experience of incumbents in similar jobs.
  7. 29 C.F.R. § 1630.2(n)(2)(i)-(iii) also list three examples of situations where function can be essential including: the job exist specifically to perform the function; the small size of the workforce requires all employees to be able to perform the function; or the employee is hired for her expertise in performing the highly specialized function.
  8. While it is true that Pfizer contended that driving is essential, the plaintiff maintained that traveling and not driving was the essential function of the job. She could certainly travel with or without reasonable accommodations but could not drive the car herself with or without a reasonable accommodation.
  9. A question of fact also existed as to whether hiring or retaining a driver is an unreasonable accommodation even if one assumes that driving a car is not essential to her job.

IV

Takeaways:

  1. Just what is an essential function of the job? With respect to that question, as we have seen 29 C.F.R. § 1630.2 has a lot of helpful guidance. As I mention in my book, the most simple and straightforward approach is to think about what job duties are fundamental to carrying out that particular job’s purpose. Remember, do not confuse tasks nor major life activities with essential functions.
  2. Labeling is everything. That is, how you characterize the essential functions of the job is critical. In this case, the job description didn’t talk about driving. However, even if it did, you would still have the same argument over whether driving or traveling was the essential function of the job because the employer’s description per 42 U.S.C. § 12111 is something that must be considered but is not conclusive. While it is true that the employer is given a great deal of discretion with respect to what it has in the job description, that doesn’t mean the court will take it at face value. So, is there something inherent in the particular job description where this individual must actually physically drive a car from meeting to meeting? Keep in mind, technology is evolving rapidly here. For example, driverless cars are on the horizon. While it is true, that even a driverless car might be problematic for her, at least as it stands now, that may not always be the case. For now, one thing that readily comes to mind, is Uber and Lyft. Not too long ago, I read an article in the Atlanta Journal-Constitution where a reporter actually gave up driving for a month to see if he could save money or come out the same by just taking Uber or Lyft for a month. After he did the experiment, he found out that Uber or Lyft was cost-effective when compared to driving an automobile, but that driving an automobile had certain freedoms with it and provided a psychological lift that Uber and Lyft did not. Here, Pfizer was supplying her with a car. Also, the facts are such that her territory was bounded by the municipalities of Mount Airy, Madison, Kernersville, and Mocksville within Surry, Rockingham, Forsyth, and Davie Counties with 90% of the doctors she was responsible for being in Forsyth County, predominantly Winston-Salem. Googling Winston-Salem metropolitan area reveals that there are 1,611,243 people in the metropolitan area. Also, Winston-Salem itself has a population of 235,000, 527 people. Surely, Uber and Lyft are operating in the area. When I Googled that to make sure, I saw that Uber started operating in Winston-Salem in April 2014, and my Google research revealed that Lyft is operating there as well. In fact, it seems that both companies have a major presence in the area.
  3. Essential functions of the job is not the only area of the ADA where how you characterize things is a critical factor. In my book on pages 80-81, you see the same issue with respect to accessibility to programs and activities of governmental entities. In those situations, it is generally the rule that plaintiff lawyers need to define the program as broadly as possible, while defense lawyers need to define it as narrowly as possible. The same thing is taking place here in this case where the plaintiff is defining the essential function broadly, in terms of traveling, and the defendant is defining the essential function narrowly, in terms of driving.
  4. This case is not only unpublished, it is also a per curiam opinion. That means, no one judge wrote the particular opinion. Also, because it is unpublished, its precedential value is different than published decisions. In the Fourth Circuit, unpublished opinions are not binding precedent. Before citing to this case in your advocacy, be sure to check the rules in your Circuit with respect to how unpublished decisions work.
  5. Pfizer’s worry about nonperformance is interesting. The ADA doesn’t allow you to distinguish between non-performing employees and performing employees when it comes to deciding whether to grant reasonable accommodations. The only question is whether the person with a disability is a qualified individual. That is, does the person have a disability and is the person able to perform the essential functions of the job with or without reasonable accommodations. The level of performance has nothing to do with whether accommodations are granted and what type of accommodations would be granted.
  6. Are we beginning to see a trend where the defense will argue from time to time that an accommodation is per se unreasonable? Only time will tell. As I mentioned in my last blog entry, I don’t care for that argument because of the fact that most judges are going to be judges without disabilities and per se unreasonable absent the constrictions of the ADA may lead to an arbitrariness of results.

 

 

 

 

 

 

 

 

 

 

 

Today is March madness. So, I want to wish everyone and their teams good luck in both the men’s and women’s tournament as well is in the men’s and women’s NIT tournament. Also, congratulations to an alum of my high school, Merrick Garland, on being nominated to the United States Supreme Court. While we attended the same high school, he was actually several years ahead of me, though I did serve in student government with a sister of his.

Today’s case asks the question whether a reasonable modification request can be per se unreasonable regardless of whether it is an undue burden or a fundamental alteration on the governmental entity. One would think that the answer would be logically no because a reasonable modification is only unreasonable when it constitutes an undue burden or results in a fundamental alteration to the nature of the program or activity. Therefore, one would think that unless a fundamental alteration or an undue burden was present, the reasonable modification request would be reasonable. Even so, the case of the day, United States v. Northern Illinois Special Recreation Association, 2016 U.S. Dist. LEXIS 31565 (N.D. Ill. March 2, 2016), leads one to wonder whether a reasonable modification request can be per se unreasonable regardless of whether an undue burden or a fundamental alteration exists. As is my usual practice, the blog entry is divided into categories: facts; court’s reasoning for deciding that the reasonable accommodation request is simply not reasonable; the court shoots down the affirmative defenses; and thoughts and takeaways. The reader is free to focus on any or all of the sections of the blog entry.

I

Facts:

The facts are pretty involved, but I think I can simplify them. What you have in this case is an agency in northern Illinois that provides year-round recreational activities for children and adults with disabilities. It is a governmental agency created through an intergovernmental agreement between 13 local park districts and municipalities. For the summer camps, the agency has part-time staff that includes the positions of site coordinators, site directors, and camp counselors. The site coordinator is assigned to oversee and supervise four or five camps in the summer and may only spend an hour at each camp per day. The site directors are in charge of making sure that the camp runs smoothly, and typically one site director is assigned for each camp location. The camp counselors are typically in their late teens or early 20s, and it is often their first job. They are not required to have experience with individuals with disabilities to be hired and most of them have not worked with an individual with a disability prior to working at the camp. The full-time recreation staff, site coordinators, site directors, and program leaders are required to be certified in basic first aid and CPR. They also learn how to administer epipen shot and dispense asthma medication. The part-time staffers, which include the camp counselors and program assistants, are not required to be certified in basic first aid or CPR. The employees also receive training in responding to seizures.

In this particular situation, you had a person with a disability that wanted the camp to be able to administer Diastat if she were to have emergency epileptic seizures. This particular drug is the only FDA approved medication for out of hospital treatment of emergency seizures. It is administered rectally. It is prefilled with a single dose prescribed by the participant’s treating physician and packaged in a plastic applicator. It is generally prescribed for convulsive seizures lasting five minutes or more and for cluster seizures. Roughly 30 current campers list the medicine as a current medication they are taking. The drug works most effectively if administered within five minutes of the onset of the convulsive seizure. If given at the five minute mark, it works only about 80% of the time to stop a prolonged seizure even if given correctly. After the five minute mark, the sooner the drug is administered, the more effective it is. Although it does not always work, the risk of adverse reactions from the rectal administration of the medication is extremely low. The drug contains a warning label saying that it should only be administered by caregivers who in the opinion of the prescribing physician: can distinguish between the different clusters of seizures from the patient’s ordinary seizure activity; have been instructed and judged to be competent to administer treatment rectally; understand explicitly which seizure manifestations may or may not be treated with the medication; and are able to monitor the clinical response and recognize when that response is such that immediate medical evaluation is required. The label goes on to say that the successful and safe use of the drug depends in large measure on the competence and performance of the caregiver and that the caregiver needs to be fairly versed in epileptic seizures. Administering the medication is actually a quite involved process and much of the trial was spent discussing how to administer it.

The agency’s current seizure policy requires the agency staff member to follow basic first aid protocol and move other participants away from the area to preserve the person’s privacy. Staff member are trained to ease the person on the ground, turn the person onto his or her side, and monitor a person’s breathing. Additionally, the staff member is directed to follow the person’s seizure plan to the best of his or her ability and call 911 as directed. Nowhere in the Medic/first aid training materials or basic first aid response, does the training discuss giving Diastat or any other medication in response to a seizure. Since the agency does not allow its employees to administer Diastat, the agency began offering families other accommodations, including asking if the parent or family could provide a family member or personal aide at the program, who would not be charged program fees. The agency also offers scholarship assistance (up to 100% of the participant’s programmer can cost), to offset some of the costs to provide a personal aide. The agency has also offered to keep participant Diastat on-site in a lock medication bag carried by the program leader for the site director though that the paramedic could administer the medication upon arrival. With respect to the particular plaintiff, she has sisters employed by the agency, and the agency offered to allow her sister to come off the clock and provide Diastat to her as a family member should the need arise.

II

Court’s Reasoning for Deciding That the Reasonable Accommodation Request Is Simply Not Reasonable

  1. A decision forcing laypeople to administer an emergency rectal medication ignores the realities of administering the medicine in a real-life emergency situation, especially considering the majority of summer camp employees are part-time high school and college age students.
  2. Epi-pens, inhalers, and Gastro feeding tubes, tasks currently performed by agency staff, is a completely different kettle of fish than administering Diastat. To administer Diastat, the caregiver must remove a person’s clothing between the waist and knees. Instead of a needle, which is the case with epi-pens, it is administered through a plastic applicator that must be lubricated and inserted into a person’s rectum. Therefore, Diastat is a much more complex task than the epi-pen situation.
  3. The instructions for Diastat contemplate a system in which the caregiver and the doctor interact directly and come to agreement regarding the caregiver’s role and competence in the exact conditions when to treat with Diastat, such as what is and is not an episode appropriate for treatment and the timing for administration in relation to the onset of an episode. The instructions also contemplate the caregiver having an intimate knowledge of the individual patient’s condition sufficient to distinguish his or her ordinary seizures from the seizures requiring this drug. Disregarding cautionary instructions on the label for the drug is simply not a reasonable request.
  4. Camp participants have quick access to 911, and the agency had gone out of its way to give financial discounts to epileptic participants and other concession to make its refusal to administer the drug easier to deal with.
  5. The government presented no statistics on how a Diastat program under similar circumstances has worked and been successful.

III

The Court Shoots down the Affirmative Defenses

  1. With respect to fundamental alteration, the defense simply doesn’t apply because the agency already offers many similar health and emergency services. Furthermore, the agency failed to present sufficient evidence to show that they would be required to hire additional medical personnel and that the hiring of additional medical personnel would even be necessary.
  2. With respect to undue burden (liability and administrative costs), the fear of a lawsuit is not enough to constitute an undue burden under the ADA because otherwise the affirmative defense would swallow the rule. The agency did not present any specific evidence detailing how such an undue burden would be present.

IV

Thoughts and Takeaways:

  1. I find this decision very odd. It is very possible for the reasons laid out by the court that the correct decision was reached in terms of the result. My problem is that the reasoning of the case doesn’t seem to track the way the ADA is laid out. That is, a reasonable modification under title II of the ADA is whatever is not an undue burden or when it comes to policy, practices, and procedures, a fundamental alteration. Therefore, it would seem that you would not have an unreasonable modification request unless an undue burden or a fundamental alteration was present. Here, the court specifically finds the reasonable modification request to not be reasonable even though the court does not buy the undue burden and fundamental alteration defenses.
  2. One wonders whether the Department of Justice would not appeal because finding a per se unreasonable modification request regardless of the applicability of the affirmative defense just doesn’t seem to track the statutory scheme. On the other hand, one wonders whether an appeal would make a great deal of sense, because it would seem from reading the decision, that a strong argument could be made that requiring an agency to administer Diastat, which would include, among other things, ignoring the label instructions on the medicine, would be a fundamental alteration or an undue logistical burden on the agency. It is also possible, that requiring the agency to administer Diastat might result in an undue financial burden, but as we have mentioned before several times, such as in this blog entry, undue financial burden is really tough to show, and the agency did not put forth evidence here to make that showing.
  3. This decision appears to be unpublished and so its precedential value must be considered.
  4. In some ways, this blog entry reminds me of my blog entries discussing roller coasters where the reasoning of the courts can turn in large part on the manufacturer’s instructions for the particular ride with respect to determining whether the accommodation is reasonable.
  5. This case may open the way for convincing a court that certain reasonable modifications/accommodation requests are per se unreasonable. That is an approach that would be unfortunate and unnecessary. The same result could be reached by allowing the defense to prove its affirmative defense. It also arguably switches the burden of proof with respect to whether a request is reasonable from the defendant to the plaintiff. It will be very interesting to see whether this per se unreasonable modification request approach is persuasive in the courts. What is going on with some of the roller coaster cases, as referenced above, is strikingly similar to the reasoning of this case.

 

 

 

Before we get started on this week’s blog entry, a couple of other matters to note. First, if you have not already checked it out, the Employment Law blog carnival from last month is worth a read. The Employment Law blog carnival comes out once a month from a different blogger and for those in employment law, it should be mandatory reading every month. There are some great bloggers from both the plaintiff and defense perspectives talking about employment law (including yours truly, though I do not consider myself an employment lawyer exclusively nor do I consider myself plaintiff or defense). Second, there is scarcely an area of the law that the ADA does not bump into, and I will be talking about that at a brown bag webinar being put on by the ABA next week. For those in the Atlanta area, I will essentially be repeating that presentation at the March GPSolo section luncheon.

 

Today’s case comes from my home Circuit, the 11th. It is actually a Fair Housing Act case, but one with ADA concepts within it. As is my usual practice, I have divided the blog entry into categories: facts; court’s reasoning (subdividing the reasoning into each of the counts alleged by the plaintiffs); and takeaways. The reader is free to focus on any or all of the categories.

 

I

Facts

Dyan and Karl Hunt have lived in the Reflections apartment complex in West Palm Beach, Florida since November 2006. At the time of the events in question, the property was owned and managed by Aimco (defendant). Karl, who was 21 years old at the time of the events, is a person with Down syndrome with an intellectual disability that causes him to act like a child of seven. On August 13, 2012, the Hunts received from the defendant a notice of required notice to vacate informing them that their 12 month lease was due to expire on November 19, 2012. The notice specifically invited them to renew their lease and mentioned that the defendant would gladly discuss flexible renewal options. On August 30, 2012, Dyan discovered that her son was being used as a maintenance person by the Reflections (the name of the apartment complex), staff and had been cleaning the bathroom for the complex’s clubhouse. The son appeared very upset. Dyan believed that the apartment community manager had chastised her son for stealing toilet paper. Later that day, Dyan called Ms. Jackson who informed her that her son had drawn on a map of the property and when asked what he was doing, had informed her that he was going to sacrifice her and another Reflections employee and then trap all the residents in their apartments and put the property on fire. Dyan advised Ms. Jackson that her son was describing an episode of a Japanese anime television series he watched and did not mean any harm. Ms. Jackson warned her that words like that should not come out in a joking manner. She also told her that the Reflections office staff had called their corporate office because they did not feel safe working at the office and that their legal department was now involved. The next morning, Ms. Jackson and Palm Beach County Sheriff Deputy Josh Kushel appeared at their apartment and asked to speak with the son. The deputy warned the son that if he went in or around the community clubhouse or the office, he would be arrested. 15 minutes after the police left, the mother called Ms. Jackson crying and saying that she and her son were very sorry, and she was looking at finding him a place/organization that would have him for the day while she is at work to avoid any more situations. Corporate ignored her explanation of her son’s activities and motivations and failed to consider her request for a reasonable accommodation. That same day, the defendant decided not to renew her lease based upon their attorney’s instructions. Ms. Jackson posted on their door a seven-day notice of noncompliance with opportunity to cure stating that Dyan had violated the terms of her lease due to her son’s actions. On September 12, 2012, Ms. Jackson posted on their door a notice of nonrenewal, which stated that they would have to be out of their apartment on or before November 19, 2012, the date the current lease expired. In reliance on that, she packed up the apartment and sold some furniture and personal property. She also prepared several background checks for rental applications and hired a rental agent to assist her with the move. Her son became afraid of the police and terrified to leave the apartment, believing he would be arrested, after the warning from the deputy. On October 12, 2012, they filed a complaint with the Palm Beach County Office of Equal Opportunity. On November 29, 2012 before they vacated their apartment, a new management company took over ownership and operation of the apartment complex and, after investigation, determined that the son was not a threat and allowed them to remain in their apartment. Even so, Dyan went ahead and filed a complaint alleging that the defendant violated the Fair Housing Act by denying or making a dwelling unavailable for rental in violation of 42 U.S.C. § 3604(f)(1) and by discriminating in terms and conditions of housing in violation of 42 U.S.C. § 3604(f)(2). An amended and second amended complaint further alleged that the defendant unlawfully failed to reasonably accommodate her son’s disability in violation of 42 U.S.C. § 3604(f)(3). The District Court granted the defendant’s motion to dismiss and the plaintiff appealed to the 11th Circuit.

 

II

Court’s Reasoning

In holding that the plaintiff had alleged sufficient facts to state a claim on each of their counts pled in their complaint, the court reasoned as follows:

A

Making Unavailable or Denying a Rental

 

  1. In the 11th Circuit, there has not been a case expressly setting forth the elements of a claim alleging making unavailable or denying a rental. Nevertheless, through the court’s reasoning we can divine what the elements of such a claim may now be. First, there must be an adverse action. Second, there must be causation. That is, was the adverse action taken because of a disability. Third, the defendant must have knowledge of the disability. Fourth, the plaintiff were willing and qualified to continue renting the apartment. Finally, the apartment was made unavailable.
  2. Court said that each of these elements were satisfied by the facts alleged. In particular, the plaintiffs pled: the son had Down syndrome, an intellectual disability causing him to act like a seven-year-old child and have difficulty making himself understood; the defendants had actual knowledge that the son had an intellectual disability since he had obvious behavioral characteristics and could be observed behaving like a seven-year-old child by for example listening to children’s music, such as Disney sing-alongs, and Pokémon songs on his headphones in the public areas of the complex; the defendant treated the son differently solely because of his disability and did not want him residing at the apartment complex even though the mother described to Ms. Jackson how the son’s disability could cause misunderstandings, discussions ignored by Ms. Jackson by her continuing the eviction process; they were willing and qualified to continue renting the apartment. After all, they had lived in the apartment complex for almost 6 years before receiving the notice of nonrenewal. They had also prior to the incident received notice that the defendants would gladly discuss flexible renewal options or renew the lease for 12 months; and they prepared for eviction by packing up their apartment, selling the furniture and housewares, and paying for background checks and a rental agent to assist them in finding another apartment. The court also noted that there was no indication in the complaint or its attached exhibits that the defendant ever reconsidered that decision or gave the plaintiff permission to remain in the apartment. Instead, the defendant made the apartment unavailable to them throughout its ownership and operation of the complex with the apartment only becoming available to them again because the complex was sold and the new owners permitted them to remain.
  3. Just because the plaintiff were able to remain in their apartment that does not alter the prior discriminatory conduct.
  4. The Fair Housing Act protects renters not only from eviction, but also from discriminatory actions leading to eviction but for an intervening cause.

B

Discriminating in the Terms, Conditions or Privileges of a Rental

  1. Sufficient facts were alleged to support this claim. In particular, the plaintiff pled: defendant mistreated the son by yelling at him, making him do maintenance work around the complex, and barring him from the community rooms and office; forced the son to clean bathrooms and collect garbage; and he was prohibited from entering the community room, the full area, and the office. Accordingly, sufficient facts were alleged to show that the defendant placed conditions on the son that were not imposed on other residents and restricted access to facilities in the complex that were open to other residents.
  2. The argument that the defendant cannot be liable because the police and not them instructed the son to stay out of the community room does not fly because a private entity may not use the police as a front for discrimination. Further, it was an employee of the defendant that called the police and accompanied the police to the apartment. Finally, the son was discouraged from using common areas at the apartment complex because the defendant escalated the situation to a law-enforcement matter.
  3. The direct threat argument per 42 U.S.C. § 3604(f)(9) is not an argument that will work at the motion to dismiss stage since it is an affirmative defense.

C

Failure to Reasonably Accommodate

  1. The elements of a prima facie case under 42 U.S.C. § 3604(f)(3) are: 1) the plaintiff is a person with a disability within the meaning of the Fair Housing Act or is a person associated with that individual; 2) the plaintiff requested a reasonable accommodation for the disability; 3) the requested accommodation was necessary to afford the plaintiff an opportunity to use and enjoy the dwelling; and 4) the defendant refused to make the accommodation.
  2. While the 11th Circuit has yet to determine precisely what form the request for reasonable accommodation must take, it did note that U.S. Court of Appeals have used various formulations with respect to what constitutes a reasonable accommodation request under title I of the ADA, which, as readers of this blog know, has reasonable accommodation requirements for employees with disabilities. In the Third Circuit, what matters is not formulations about the manner of the request, but that the employer has notice of the employee’s disability and wishes to be accommodated. In the 10th Circuit, a plaintiff need not use magic words to express a request for accommodation. That is, a plaintiff can be said to have made a request for accommodation when the defendant has enough information to know of both the disability and the desire for an accommodation.
  3. The 11th Circuit opts to follow the 3rd Circuit and says that circumstances must be at least sufficient to cause a reasonable housing provider to make appropriate inquiries about the possible need for an accommodation.
  4. By alleging that the mother communicated she was attempting to make arrangements for the express purpose of avoiding future conflict as a result of her son’s disability, the court concludes that there was sufficient facts showing that she sought an accommodation in the form of an exception to the defendant’s apparent policy or practices of not renewing the leases of tenant who make threats.
  5. The requested accommodation was necessary to eliminate the possibility that her son would make perceived threats or engage in other behaviors that frighten or disturb the staff of the apartment complex. Therefore, it was necessary to afford the plaintiff’s an opportunity to continue to use and enjoy the apartment, but such an accommodation was refused. Further, the defendant disregarded the mother’s plea that her son was not a direct threat and ignored her attempt to suggest alternative short of eviction.

III

Takeaways

  1. In the 11th circuit, we now have a good idea as to what a prima facie case is for making unavailable or denying a rental under 42 U.S.C. §3604(f)(1).
  2. Since the Fair Housing act, uses the term “because,” rather than “on the basis of,” causation under the Fair Housing Act, at least in the 11th Circuit if not everywhere, is sole cause.
  3. The court’s statement that a private entity may not use the police as a front for discrimination has wide-ranging application outside of this context. It isn’t unusual for places of public accommodations to call the police to kick out a person with a disability from a place of public accommodation as we have seen in this blog entry. This particular statement means that where a place of public accommodation wrongfully kicks out a person with a disability from the place of public accommodation and the police supports that decision, the place of public accommodation will not be shielded from liability.
  4. Wherever a statute contain the term “reasonable accommodation,” it is entirely possible that a court will look to title I of the ADA to help determine what it means. Same arguably goes for, “direct threat.”
  5. The question not answered is once the Corporation turned it over to legal, why didn’t legal go through the direct threat analysis as seen in the ADA (of course, we don’t know if this actually occurred, but from the facts of the case, it would seem that it did not), for example? After all, when the new owner came in, a determination was made that the son was not a threat, which makes you wonder if he ever would’ve been a direct threat in the first place with a thorough investigation.
  6. The court’s discussion about what it takes for a reasonable accommodation request to be made also has implications beyond the Fair Housing Act. Since the court is relying on title I of the ADA cases, it is a fair assumption that when it comes to reasonable accommodation request from employees, the court will adopt the same standard. While the court doesn’t use the term magic words, in my opinion, the formulation they do use amounts to the same thing.

 

 

The federal government has put affirmative action back on the table with the EEOC proposed rule for Affirmative Action for Individuals with Disabilities in the Federal Government. Previously, I have written here on the Office of Federal Contracting Compliance Program rule for federal contractors. When it comes to the Rehabilitation Act, here is how it works. § 501 of the Rehabilitation Act applies to the federal government employment operations when it comes to disability discrimination (the ADA does not apply to the federal government, but rather the disability discrimination rules come entirely from the Rehabilitation Act). The rules with respect to employment against persons with disabilities under § 501 are the same as the rules with respect to title I of the ADA. The Rehabilitation Act requires affirmative-action. Until now, there wasn’t really any meat on the bone so to speak. The EEOC exercising its authority with respect to affirmative action under the Rehabilitation Act now issues proposed rules. As a proposed rule, it has to be put out for a period of commenting. In this case, the commenting period ends April 25, 2016. Of course, the wild card in all of this is that we have a presidential election rapidly approaching. One wonders whether a final rule would be issued prior to the installation of a new president, especially if a different party than the one currently in the White House wins. At any rate, I thought I would highlight some of the provisions of the proposed rule and add some of my own thoughts of course.

1. It is very significant that § 501 of the Rehabilitation Act, which applies to federal employees, states that the rules used to decide whether disability discrimination occurs are the same as those under title I of the ADA. The reason this is very significant is because title I of the ADA speaks of causation in terms of, “on the basis of.” That is, motivating factor can come into play with respect to disability discrimination in employment against a federal employee. This is very different than the language of § 504 (the provision of the Rehabilitation Act that prohibit discrimination against persons with disabilities by entities taking federal funds), which speaks of causation in terms of, “solely by reason of disability,” which on its face precludes motivating factor.

2. The proposed rule requires that there be appropriate staff to respond to all disability-related issues relating to the application and placement processes, including questions about reasonable accommodations and appointment under hiring authorities that take disability into account.

3. Agencies must have written reasonable accommodation procedures. Those procedures must include a statement containing: expedited processing and noting that interim accommodations will be provided when possible; instructions for managers in how to recognize and report requests for reasonable accommodations; explanation of applicable confidentiality requirements; processing deadline; information on how to challenge the denial under the federal equal employment opportunity complaint process; and a statement that requesters will be notified of the basis for denial.

4. Agencies must provide all employees with contact information of the employees inside the agency responsible for ensuring compliance with § 508 of the Rehabilitation Act and the architectural barriers act of 1968. This information must also contain clear instructions on how to file complaints under existing rules and requires agencies to assist employees in filing a complaint with another federal agency where investigation shows that the other entity is responsible for the disability discrimination.

5. Agencies are required to provide personal assistance services to individuals needing them because of a disability as part of their affirmative-action obligations. That said, the agency can require a person hired as a personal assistant to perform such services for more than one individual with a disability. Also, the agency does not have to do this if it would constitute an undue hardship (not easy to show).

6. Affirmative action plan must adopt the goal of achieving a 12% representation rate for people with disabilities for those in jobs at the GS-11 level and above, including those in the senior executive service, and those in the GS-10 level and below.

a. With respect to these numerical requirements, the percentages may seem like a lot. However, the rule notes that for years the federal government has been about that anyway. Same goes for targeted disabilities. Targeted disabilities are certain severe disabilities that have been specifically targeted by the federal government and are subject to a different hiring authorities system (Schedule A). That said, the number of persons with disabilities in jobs at the GS-11 level and above has been much lower than the 12% figure, and so the EEOC is specifically putting in a goal for those levels.

7. Annually, each agency must submit a copy of its affirmative-action plan to the EEOC, the results of the two most recent workforce analysis performed, and the number of employees appointed under the schedule a hiring authority for persons with certain disabilities.

8. Each agency as part of its affirmative-action plan must adopt reasonable accommodation procedures containing at a minimum the following:

a. Explains relevant terms such as “reasonable accommodation,” “disability,” “interactive process,” “qualified,” and “undue hardship,” in a way consistent with applicable statutory and regulatory definitions using examples where appropriate.

9. Provide that reassignment to a position for which an employee is qualified, and not just permission to compete for such a position, is a reasonable accommodation if the agency determines that no other reasonable accommodation will permit the employee with a disability to perform the essential functions of his or her current position. Also, the plan must provide for the notification of supervisors and other relevant agency employees about how and where to conduct a search for available vacancies when reassignment is being considered.

a. Obviously, the EEOC is taking the position here that reassignment is mandatory where a person with a disability can no longer do the essential functions of his or her job but is qualified in ADA parlance or otherwise qualified in Rehabilitation Act parlance for a different job. For discussion of reassignment, check out this blog entry of mine.

10. Explain that an individual may request a reasonable accommodation orally or in writing and at any time. Further, it must explain that an individual need not have a particular accommodation in mind before making a request, and that the request may be made to a supervisor or manager in the individual’s chain of command, the office designated by the agency to oversee the reasonable accommodation process, the agency employee connected with the application process, or any other individual designated by the agency to accept such request.

a. What this means is that all employees are going to need to know just how the reasonable accommodation process works since it is possible that any employee might receive a reasonable accommodation request.

11. Include any form the agency uses in connection with reasonable accommodation requests as attachments and indicate that those forms are available in alternative formats accessible to persons with disabilities.

12. Describe the agency’s process for determining whether to provide a reasonable accommodation, including a description of the interactive process, and the individual from whom the requesters will receive a final decision.

a. It will be interesting to see how you can describe the interactive process.

13. Provide guidance to supervisors and how to recognize request for reasonable accommodations.

a. Key here is going to be not relying on magic words.

14. Require that decision-makers communicate, early in the interactive process, with individuals requesting a reasonable accommodation.

a. The punctuation of this particular rule I find a bit odd. That is, “early in the interactive process,” is written as an appositive. Therefore, if taken literally, it is optional for decision-maker to communicate with individuals requesting a reasonable accommodation early in the interactive process. As a preventive law matter, that makes absolutely no sense, but nevertheless, that is the punctuation of the rule. Perhaps, it will be cleared up in the final rule.

15. Explain that the agency can require an individual requesting a reasonable accommodation to provide medical information sufficient to explain the nature of the individual’s disability, his or her need for reasonable accommodation, and how the requested accommodation, if any, will assist the individual to apply for a job, perform the essential function of a job, or enjoy the benefits and privileges of the workplace. The next two rules go even further in that they require the agency to explain the right to request relevant supplemental medical information if the information submitted by the requester is insufficient. They also allow the agency to have medical information reviewed by a medical expert of the agency’s choosing at the agency’s expense.

a. What I find interesting about all of this is that nothing suggests that the agency could not require excessive documentation before granting the reasonable accommodation. That doesn’t seem to make sense in light of prior positions in litigation taken by the EEOC and the Department of Justice.

16. The agency must specify a maximum amount of time, absent extenuating circumstances, to either provide a requested accommodation or deny the request. Further, the agency must explain that the time limit begins to run when the accommodation is first requested. Further, it needs to explain that where a particular reasonable accommodation can be provided in less than the maximum amount of time allowed, failure to respond to request in a prompt manner may result in a violation of the Rehabilitation Act.

17. Provide for expedited processing of request for reasonable accommodation needed sooner than the maximum allowable time frame set forth by the agency under normal circumstances.

18. Where a reasonable accommodation cannot be provided immediately, the agency must provide an interim accommodation whenever possible.

19. If for some reason there is a delay in either processing a request or for providing a reasonable accommodation, the agency must notify the individual the reason for the delay.

20. Explain that individuals denied a reasonable accommodation have the right to file complaints in the EEO process and other statutory processes.

21. Encourage the use of informal dispute resolution processes.

a. This makes sense because reasonable accommodations are perfectly set up to be resolved through informal dispute resolution processes.

22. The plan must specify that when evaluating the cost of the reasonable accommodation, all available resources must be considered.

23. If the agency denies a reasonable accommodation, it must give the requester written notice containing the following:

a. An explanation of the reason for the denial and notification to the job applicant or employee of any available internal appeals or dispute resolution process;
b. Informs the job applicant or employee of the right to challenge the denial by filing a complaint of discrimination;
c. Explains that such complaints must be filed within 45 days of the denial regardless of whether the individual participates in an informal dispute resolution process.
i. In legal terms, this means that if a federal employee is participating in an informal dispute resolution process, the 45 day period to file a claim is still running. In legal speak, the alternative dispute resolution process participation does not toll the 45 days period.
d. Provides instructions on how to file such a complaint.

24. Each agency needs to have an employee responsible for ensuring physical accessibility of the agency’s facilities and an employee responsible for ensuring that electronic and information technology purchase, maintain, or use by the agency is readily accessible to, and usable by, individual disabilities.

25. The rule imposes specific record-keeping requirements on the agency. It also mandate progression towards the goals and lists some of the ways they may go about accomplishing that.

Takeaways:
1. These rules are only applicable to federal agencies. They are not, as of yet, being imposed upon the private sector. As mentioned above, if they are to be imposed in the private sector at some point in the future, whether that happens probably depends upon who wins the presidential election, those rules may indeed run into the same problem as the OFCCP rules. Since the federal government is involved, if the rules become finalized before the next president takes office and that president is from a different party, one wonders what would be the process for repealing a final rule. Would it be a constitutional challenge? Would the federal government even have a right to bring such a constitutional challenge?

2. The EEOC is taking the position that reassignment is mandatory. As mentioned above, we don’t know if the Supreme Court ultimately will agree with that position.

3. The EEOC is taking the position that personal assistance services is a reasonable accommodation with the burden being on the agency to show otherwise. One can argue that the personal assistance services mandate goes beyond what would be required by the ADA under title I as such services are not directly tied to the essential functions of the job.

4. Since a reasonable accommodation request can be made to anybody, all agency employees need to understand how the ADA works. Training is critical.

5. Despite the punctuation of the rule, it is always best to get the interactive process going early.

6. The final rule should clear up just how much documentation the agency can request. As the rule is written now, it doesn’t seem to rule out excessive documentation being allowed.

7. It is unfortunate that the 45 day period for filing a complaint continues to run while any informal dispute resolution processes are being done. That forces a plaintiff into filing a claim regardless of whether the informal dispute resolution process would be satisfactory.

8. The rule sets forth specific time frames that must be complied with.

9. If reasonable accommodation is to be denied, that notification must be detailed and in writing. I would strongly recommend before such a denial that the Job Accommodation Network be contacted.

It is shaping up to be a very interesting election year. In honor of the election theme, today is right after the Republican Nevada caucus with super Tuesday coming up next week, today’s case is a case out of the Fourth Circuit, National Federation of the Blind v. Lamone, which discusses whether the Maryland system for absentee ballots is not discriminatory against persons with disabilities in violation of title II of the ADA. As is my usual practice, I have divided the blog into several categories: facts, court’s reasoning (which is in turn divided into subcategories of: just what is the program, but it is not intentional discrimination, and the online tool was never certified); and takeaways. The reader is free to focus on any and/ or all of the categories.

 

I

Facts

The facts are really straightforward. Maryland allows any voter to vote by absentee ballot. A voter may obtain a blank hardcopy absentee ballot by mail, fax, or by downloading and printing one from the website. The hardcopy ballot must be marked by hand, sign, and return by email or hand delivery to the voter’s local election board. An absentee voter may designate an agent to pick up and deliver her ballot. Absentee voters may also have an individual of their choice assist them in him marking the ballot. Plaintiffs allege that marking a hardcopy ballot by hand without assistance is impossible for voters with various disabilities and accordingly, they were denied meaningful access to absentee voting. It turns out that a system had been developed where through the use of an online ballot marking tool, persons with disabilities were able to mark their ballots electronically. However, that system was never certified per Maryland state law and therefore, was never put into effect leaving the current Maryland absentee ballot program in place.

Before proceeding further, you see a lot of talk about early voting. Early voting is often done by absentee ballot, though it could also be done in person at various sites. In my situation, the early voting sites are not as close to me as the place where I normally vote on election day, and so I just vote on election day (and no I have not made up my mind yet for super TuesdayJ).

II

Court’s Reasoning

In concluding, as did the District Court below them, that plaintiffs were denied the benefits of a public service, program, or activity on the basis of their disability in violation of title II of the ADA, the Fourth Circuit reasoned as follows:

A.

Just What Is the Program?

  1. Maryland’s proposed focus on voting in its entirety as the program involved effectively reads out much of the language of title II. That is, title II of the ADA not only applies to public programs, but it also applies to services, programs, or activities of a governmental entity. Further, title II not only prohibits exclusion from participation in a public program, but it also separately prohibits the denying of benefits of that program. Finally, title II separately prohibits discrimination by any public entity generally.
  2. The Supreme Court has cautioned against defining the scope of a public benefit in such a way so as to avoid questions of discriminatory effects. That is, the benefit itself cannot be defined in a way that effectively denies an otherwise qualified (Rehabilitation Act) or qualified (ADA) person with a disability meaningful access to which they are entitled. Accordingly, courts should proceed cautiously so as to avoid defining a public program so broadly that the real difficulties in accessing governmental services are overlooked.
  3. Maryland law specifically allows any voter to vote by absentee ballot. That is, absentee ballots are provided to the entire Maryland electorate at the option of each individual voter. Therefore, it is far more natural to view absentee voting, rather than the entire voting program, as being the appropriate focus for scrutiny when it comes to compliance with the ADA and the Rehabilitation Act.
  4. Applicable ADA implementing regulations also suggest that the proper focus is on the absentee ballots and not on general voting. In particular, 28 C.F.R. § 35.130, requires public entities to make certain reasonable modifications in the policy, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability. This particular regulation is clearly contemplating a focus on accessibility at a much more specific level (policies, practices, and procedures), than entire governmental programs. Therefore, the court felt it was quite clear that Maryland was obligated to provide a level of access to the voting program beyond the simple assurance that voters with disabilities were able to cast a ballot in some way, shape, or form.

B

But it is Not Intentional Discrimination

  1. The ADA goes beyond intentional exclusion when it comes to what it prohibits. That is, the ADA extends to the failure to make modification to existing facilities and practices. 28 C.F.R. § 35.130, mentioned immediately above, provides that a public entity, in providing any aid, benefit, or service, may not afford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others or provide a qualified individual with a disability with an aid, benefit or service not as effective in affording equal opportunity to attain the same result. In fact, at the end of the opinion the court goes out of its way to say that the evidence is completely lacking that Maryland intentionally discriminated against voters with disabilities nor were there any indications that Maryland was manipulating the election apparatus intentionally to discriminate against persons with disabilities. Even so, the court noted that the ADA and the Rehabilitation Act do far more than simply providing a remedy for intentional discrimination. Instead, they reflect broad legislative consensus that making the promises of the Constitution a reality for individuals with disabilities requires well-intentioned public entities to make certain reasonable accommodations.
  2. The District Court found that it was clear that most voters may mark their absentee ballots without assistance. It also found that Maryland’s current absentee voting program does not allow disabled individuals such as plaintiff to mark their ballots without assistance. Accordingly, it is obvious that defendants have provided an aid, benefit, or service to persons with disabilities that is simply not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to read the same level of achievement as that provided to others.
  3. Defendant’s argument that persons with disabilities have no right to vote without assistance misses the point. The argument of the plaintiffs is that the defendants have provided such a benefit to voters without disabilities while denying that same benefit to voters with disabilities, which is precisely the sort of time the ADA is designed to prevent. The right to vote should not be contingent on the happenstance of others being available to help. Finally, requiring blind and visually impaired individuals the boat with the assistance of a third party, if they are to vote at all, at best provides such individuals with an inferior voting experience that is not equal to what is afforded to people without disabilities.
  4. Ensuring that disabled individuals are afforded an opportunity to participate in voting equal to that afforded others, helps ensure that those individuals are never relegated to a position of political powerlessness.

C

The Online Tool Was Never Certified

  1. The District Court found that the plaintiffs proposed modification of using the online ballot marking tool was both reasonably secure and reasonably accessible to voters with disabilities. From a review of the record as a whole, those findings were not clearly erroneous and therefore, need not be disturbed.
  2. A version of the online tool was voluntarily implemented by defendants in the 2012 election without any apparent incident. Accordingly, that speaks well of the reasonableness of using the tool. Finally, since the tool has already been developed, there doesn’t appear to be any substantial cost or implementation burden needing to be borne by Maryland to make the tool available for use.
  3. The argument of defendants that a state statutory requirement insulates public entities from making otherwise reasonable modification to prevent disability discrimination cannot be correct if the ADA is to mean anything. Under the supremacy clause of the United States Constitution federal legislation can preempt state laws. In fact, the Supreme Court has held that at least under certain circumstances, the ADA represents a valid exercise of 14th amendment powers and therefore, trumps state regulation conflicting with its requirements.
  4. Maryland never established that the use of the online ballot marking tool degrades the integrity of Maryland’s voting processes. Maryland is simply confusing the issue of whether a procedural requirement has been met with the underlying substantive purpose behind that requirement in the first place. That is, the question is whether the online marking tool without certification would be so at odds with the purpose of certification that the use of the online marking tool would be unreasonable. The court mentioned in a footnote that to hold otherwise, would be analogous to allowing a governmental entity to resist installation of wheelchair ramps for a new courthouse simply by enacting a law requiring that ramps be certified and then declining to certify any ramps. The District Court concluded, after a three-day been trial, that the tool was reasonably secure, safeguarded the privacy of voters with disabilities, and had been used in actual elections without apparent incident.

III

Takeaways

  1. The ADA extends beyond intentional discrimination. Intentional discrimination under title I is not a question of liability, but rather a question of damages. The same goes for title II of the ADA, though the standard there is deliberate indifference. Obviously, no damages would be forthcoming in this particular case, but it does not appear that such damages were asked for.
  2. This case does a nice job of illustrating how a major fight in these cases can be over how the program and its essential eligibility requirements are defined. That is an issue I have always talked about in my book and that discussion can be found in the latest edition of my book as well on pages 80-82. On this point, readers may also find this blog entry of mine useful as well. Note that the Rehabilitation Act applies to all of the operations of a governmental entity, which arguably goes further than the ADA (I say arguably because as the court notes here title II of the ADA extend to activities of a governmental entity, and I should point out that there is many a case saying that particular language matches up with the Rehabilitation Act language of applying to all operations of a governmental entity). However, the Rehabilitation Act does contain the solely by reason of disability causation language, which the ADA does not. In this case, that distinction is not an issue. There is also the equal benefits language of the ADA to contend with as well. So, even if a defendant goes the route of trying to define the program in a way that allows it to circumvent accommodating a person with a disability, the plaintiff is left with several options including but not limited to convincing the judge that the program should be defined more narrowly and using the equal benefit and activities language.

 

 

 

 

 

 

 

 

 

 

 

For those who remember law school, the typical law school exam was a completely crazy hypothetical with thousands of issues in it. The idea was to spot all the issues and somehow mention that you knew how to deal with them within the allotted timeframe. I was reminded of that experience when I read National Association of the Deaf v. Harvard University.  In particular, the magistrate recommended that the motion to dismiss be denied. Harvard threw every possible defense they could think of at the National Association of the Deaf with none of them sticking. As is my usual practice, I have divided the blog entry into categories: facts; defenses; and takeaways. With respect to defenses, I have divided the defenses into subcategories: general thoughts; title III of the ADA; § 504 of the Rehabilitation Act; and the primary jurisdiction doctrine.

I

Facts

Harvard controls, maintain, and administers webpages, website, and other Internet locations on which it makes available to the general public, free of charge, a vast array of content, consisting of courses and other educational and general interest materials. It creates and produces some but not all of the content. Included within that content are thousands of audio and audiovisual files. Millions of people around the world have access to online video content that Harvard makes freely available. While some of the online video content is captioned, much of it has no captioning or has captioning that is inaccurate. As a result, the aural component is inaccessible to the plaintiffs and to those who are deaf or hard of hearing. Beginning in December 2013, plaintiffs repeatedly requested that Harvard ensure that its online video content contain timely and accurate captioning. The complaint alleged that Harvard’s failure to provide the captioning necessary to ensure effective communication and equal opportunity for the deaf and hard of hearing to benefit from the online video content violated § 504 of the Rehabilitation Act as well as title III of the ADA.

II

Defenses

Failure to State a Claim

A. General Thoughts

1. In order to state a claim for violation of § 504 in title III of the ADA, a plaintiff must allege: 1) that he or she is disabled and otherwise qualified; 2) that the defendant receives federal funding (for § 504 purposes), and is a place of public accommodation (for ADA purposes); and 3) that the defendants discriminated against the plaintiff based on disability.

2.  There are three possibilities with respect to a plaintiff alleging disability discrimination. First, a plaintiff can assert that a disability actually motivated the defendant’s challenged adverse conduct (disparate treatment). Second, the plaintiff can assert that a defendant’s challenged conduct, even if not motivated by discriminatory animus, disparately affected the disabled (disparate impact). Third, the plaintiff can complain that the defendant refused to affirmatively accommodate his or her disability where such accommodation was needed to provide meaningful access.

B. Title III of the ADA

1. Harvard argued that title III of the ADA does not apply to websites. The court was having none of it because the allegations are that Harvard itself is a place of public accommodation as an educational institution and the websites are benefits, services, or privileges offered by it to the general public. Accordingly, it isn’t necessary to decide whether title III of the ADA applies to websites. The court did note that in the First Circuit non-physical places are subject to title III of the ADA per Carparts.

2. Harvard’s argument that the Department of Justice regulations governing building and accessibility and barrier removal under the ADA control the title III claims of the plaintiff’s because such guidelines contain no website accessibility requirements simply doesn’t fly.

3. Those specific guidelines specifically do not apply to non-physical structures, but that doesn’t mean that the ADA doesn’t apply to non-physical structures. Also, even if the architectural guidelines did apply, the ADA goes beyond requiring access to facilities since it guarantees persons with disabilities full and equal enjoyment of those facilities.

The argument that Harvard is being denied the flexibility to choose an appropriate auxiliary aid doesn’t work because the flexibility to provide reasonable accommodation is an affirmative defense and not an appropriate basis to base a motion to dismiss upon.

4. It is absolutely true that a place of public accommodation is not required to alter its inventory to include accessible or special goods that are designed for, or facilitate use by, individuals with disabilities. However, that particular regulation only relates to goods and not to services and it is services that are involved here.

§ 504

1. The essence of § 504 is a prohibition against discriminating against an otherwise qualified handicapped individual solely by reason of the handicap. That has been interpreted by the Supreme Court as demanding that persons with disabilities be provided with meaningful access to the benefit offered by the recipient of federal funds.

2. Meaningful access is a fact specific inquiry. That said, where the plaintiff identifies an obstacle impeding their access to a program or benefit, they likely have established a lack of meaningful access to the program or benefit.

3. Under the meaningful access standard, the focus is on whether the person with a disability is afforded evenhanded treatment in the opportunity to participate in and benefit from program receiving federal financial assistance.

4. The theory of the complaint that the deaf and hard of hearing lack meaningful access to the aural component of the audiovisual content offered by Harvard to the public online fits squarely within the parameters of § 504 and such a theory has been recognized as a classic example of § 504 liability.

5. Whether a particular accommodation is a reasonable accommodation or extends into “affirmative action,” (think undue burden or fundamental alteration), is a question of fact not suitable for resolution on a motion to dismiss. In other words, striking the appropriate balance between accommodating the rights of plaintiff and not unduly burdening Harvard requires a fact intensive inquiry not suitable for resolution on a motion to dismiss.

6. Harvard’s characterization of the complaint in terms of disparate impact and disparate treatment isn’t on point because both of those claims can often be seen in the context of failure to accommodate claims. As mentioned above, failure to reasonably accommodate a person with a disability is a distinct and viable theory of discrimination under § 504 and the plaintiffs claims squarely fit within that.

7. Harvard’s argument that the plaintiff cannot base their claim on the general prohibitions of discrimination contained in 34 C.F.R. § 104.4 of the Department of Education’s regulations doesn’t fly because those regulations are consistent with the requirement of meaningful access. Since meaningful access incorporates rather than supersedes applicable interpretive regulations, the plaintiff is not precluded from litigating their claims under those regulations.

8. Harvard admits that to the extent the Department of Education regulation is applicable, it is obligated to provide meaningful access.

9. While online content is not specifically mentioned in the regulation, neither is it specifically excluded, and the legislative history of the ADA makes clear that Congress intended the ADA to adapt to changes in technology.

10. The Department of Education’s interpretation of its regulations support the requirement of meaningful access with respect to aids, benefit, and services offered online. The Department of Education has stated in guidance that equal opportunity, equal treatment, and the obligation to make modification to avoid disability-based discrimination are part of the nondiscrimination requirements of § 504 and the ADA. Therefore, they have said that all school programs or activities-whether in a brick-and-mortar online or other virtual contexts-have to be operated in a manner complying with federal disability discrimination laws.

11. The argument that the regulation is not entitled to deference doesn’t hold up because the court has to give controlling weight to an agency’s interpretation of its own ambiguous regulation unless it is plainly erroneous or inconsistent with the regulation or there is reason to suspect that the agency’s interpretation does not reflect the agencies bearing considered judgment on the matter in question. In this situation, the Department of Education’s interpretation of its existing regulations so as to apply it to emerging technology, including online content, is neither plainly erroneous nor inconsistent with the regulation. There is also no reason to suspect that the interpretation reflects anything less than fair and considered judgment on the part of the Department of Education.

12. The fact that the plaintiffs are alleging a class action does not torpedo the § 504 claims because each of the plaintiffs have pleaded a lack of meaningful access and have identified captioning as the reasonable accommodation required to gain that access.

Primary Jurisdiction Doctrine

1. The doctrine of primary jurisdiction is a doctrine that provides where there are cases raising issues of fact not within the conventional experience of judges and are cases requiring the exercise of administrative discretion, the agency created by Congress for regulating the subject matter should not be passed over. It is a doctrine that should not be invoked unless a factual question requiring both expert consideration and uniformity of resolution is present. When both are the case, the judicial process is suspended pending referral to the administrative body for review. Such a referral to the administrative agency does not deprive the court of jurisdiction, rather the court has discretion to retain jurisdiction or dismiss the case without prejudice in the event the parties would not be unfairly disadvantaged.

2. The elements of primary jurisdiction are: 1) whether the agency determination lay at the heart of the task assigned by the agency by Congress; 2) whether agency expertise was required to unravel intricate, technical facts; and 3) whether, though not determinative, the agency determination would materially aid the court.

3. On July 26 of 2010 the Department of Justice published an event notice of proposed rulemaking regarding accessibility of web information and services of state and local governmental entities and public accommodations. However, those regulations, with respect to title III of the ADA, have now been postponed until sometime in fiscal year 2018 (I might add that considering we have an election coming up, even that would be in doubt).

4. While it is certainly within the Department of Justice’s ambit to issue implementing regulations addressing website accessibility requirements for places of public accommodations, the plaintiffs are not asking the court to issue such regulations. Instead, they are seeking declaratory relief that Harvard discriminated against the deaf and hard of hearing with respect to its provision of online video content and injunctive relief requiring Harvard to provide captioning. The Department of Justice has the power to provide neither remedy.

5. The court’s determination of the issues raised by the plaintiff’s complaint do not run the risk of undermining the consistency of Department of Justice regulatory interpretation because any findings on the issue of undue burden and fundamental alteration would be specific to Harvard and the service it is alleged to be providing. For that matter, any declaratory and injunctive relief would also only applied to Harvard.

6. While it is possible and inconvenient for Harvard to possibly be held to a higher standard of accessibility than what the Department of Justice might require if it ever issues its regulations, convenience of the parties is not a relevant consideration in primary jurisdiction analysis. That is, as long as the burden imposed upon Harvard does not rise to the level of undue burden, the ADA is not violated and primary jurisdiction is not offended.

7. Consideration of the defense of undue burden and fundamental alteration does not call for any specialized expertise of the Department of Justice. In particular the question to be faced by the court include such things as: whether the service varies depending upon whether Harvard created the content; the website in issue; how the content became publicly available; the financial and administrative burdens a captioning requirement imposes upon Harvard; the availability of different technologies for captioning online content; the availability of other auxiliary aids or services; and Harvard’s resources. All of those issues are things a court is well-equipped to address.

8. Harvard offers no basis for the assertion that the Department of Justice has the expertise to unravel intricate, technical facts governing website and online video accessibility. In fact, the notice of proposed rulemaking suggested completely the opposite. That is, if the Department of Justice had such specialized technical expertise, there would be no reason to solicit it from the outside. To the extent the court needs help unraveling intricate, technical facts governing website and online video accessibility, it has the ability to hear from experts.

9. Whether proposed rules pertaining to state and local government entities of public accommodations, which DOJ is expected to issue sometime this year, would be helpful to the court, is not determinative of whether primary jurisdiction applies in this case. Even so, there is no reason why this case and the administrative process cannot both proceed simultaneously on separate tracks. That is, if DOJ ever does issue the rules for website accessibility with respect to state and local governments, the parties have the ability to bring that to the attention of the court.

10. While the proposed rules may be of some help, assuming they are issued, the court still has to consider how the proposed rules shed light on the specific question presented i.e. whether Harvard has violated the ADA’s prohibition against disability-based discrimination and the extent to which Harvard is required to provide accommodations under the ADA, if any. Further, those rules would be just proposed rules and not final rules.

11. It is unnecessary to put everything off until regulations are issued since the Department of Justice is already involved in this case having made an appearance as an interested party. Accordingly, the court can get the Department of Justice views just from the case proceeding.

12. The prospect for timely resolution of the issue if referred to the Department of Justice are not good (that is an understatement considering they are proposing regulations in 2018 and an election is coming up). Further, there is a strong public interest in the prompt resolution of this case and therefore, it is inappropriate to defer to administrative action of uncertain aid and uncertain speed. It is impossible to know how helpful the department’s ultimate regulations might be, but it is certain that the decision will not be available soon.

13. Harvard’s claim that the plaintiff will not be injured by imposition of a stay simply doesn’t hold. That is, if Harvard is in violation of title III, then plaintiff will continue to be unlawfully harmed until the case is resolved. Extending the period of time plaintiff must wait for a possible remedy is simply prejudicial.

III

Takeaways

1.Harvard threw absolutely every defense they could think of and then some all to no avail.

2. I have said for years that while title III of the ADA does not include the qualified language, it in essence does have such a requirement because of the emphasis on undue burden and fundamental alteration. It is always nice to see when you are vindicatedJ, since in footnote 4 of this decision, the court says precisely that. That is, the court says there is little difference in the distinction that title III does not contain the word qualified individual because many of the issues arising in the qualified analysis also arise in the context of reasonable modifications or undue burden analysis.

3. The court’s reasoning in this case seems really solid to me all the way around. Considering the resources of Harvard and MIT (which was sued separately but the court denied the motion to dismiss on the same grounds), undue financial burden would seem impossible to win on as a defense. Summary judgment is going to turn upon logistical undue burden and fundamental alteration.

4. Meaningful access can be an abstract term. Here, the court comes up with a useful standard i.e. the plaintiff identifying an obstacle impeding their access to a program or benefit likely means the establishing the lack of meaningful access to the program or benefit. Similarly, it is helpful that the court also says that where a plaintiff seeks to expand the substantive scope of the program or benefit, they likely seek a fundamental alteration to the existing program or benefit and have not been denied meaningful access.

 

Previously, I have discussed here whether § 504 applies to employment. Today’s case, Flynn v. Distinctive Home Care, Inc. (you can find my blog entry discussing the District Court opinion here), takes it even further. Today’s case, explores whether § 504, assuming it applies to employment, applies to independent contractors. As is my usual custom, I have divided the blog entries into categories: Facts; Court’s Reasoning; and Takeaways. The reader is free to focus on any or all of the categories.

I
Facts

The plaintiff was a contract pediatrician. Spectrum Healthcare Resources, Inc. contracted with the United States Air Force to provide medical services at Lackland Air Force Base in San Antonio Texas. Spectrum and the plaintiff entered into a contract whereby Flynn agreed to provide clinical pediatric services at the San Antonio military Medical Center for 20 hours per week. The agreement explicitly provided that Flynn was an independent contractor. She subsequently assigned her rights under the contract to a professional company managed by her. When Spectrum’s contract terminated in March 2013, Distinctive Healthcare Staffing took over Spectrum’s duty to provide medical services at Lackland. They retained Spectrum as a subcontractor on the government contract so that Spectrum continued to directly communicate with the independent contractor providing medical services at the base. In April 2013, Distinctive entered into a new contract with the management company controlled by Flynn. Under the contract she was to provide services for at least 936 hours per year. As with the previous contract, the contract specifically said that she was an independent contractor and that distinctive would not have any control or have the right to exercise control over the manner and means in which she performed medical services at the base. On May 15, 2013, Flynn’s psychologist diagnosed her with autism spectrum disorder-mild, what used to be known as Asperger’s syndrome (a disorder characterized by significant difficulties in nonverbal communication and social interaction, as well as restricted and repetitive patterns of behavior and interests). Around that same date, the government officer responsible for overseeing Distinctive’s contract with the Air Force, contacted Distinctive’s president and raised several concerns with her performance, including several complaints from patients and coworkers, failing to report to work on time, and her failure to timely complete patient charts. The government officer stated that it was in the best interest of the government if she was removed from providing services under Distinctive’s contract with the Air Force. On May 16, 2013, a Spectrum employee informed her that the clinic was concerned about her performance. In response, she informed that employee that her psychologist had just diagnosed her the previous day with autism spectrum disorder-mild (Asperger’s). She believed that her condition explained many of the issues of concern to Distinctive and Spectrum. On May 30, 2013 the government contract officer sent distinctive an email containing documentation purportedly substantiating the allegations of performance and patient complaints against Flynn. The government contract officer again requested that she be removed from her duties as an independent contractor. On June 7, 2013, Flynn, Spectrum, and Distinctive held a conference call during which she asked to be reinstated with accommodations. After Distinctive and Spectrum discussed Flynn’s requested accommodation with the Air Force, the government responded that it could not accommodate her request. As a result both Spectrum and Distinctive informed Flynn that they would not retain her as an independent contractor. She then sued Spectrum and Distinctive for employment discrimination under § 504 of the Rehabilitation Act. The District Court granted summary judgment in favor of the defendants because she was an independent contractor and not an employee. Flynn appealed to the Fifth Circuit.

II
In holding that § 504 applied to independent contractors, the court reasoned as follows:

1. The U.S. Courts of Appeals are split on the issue.

2. After citing to the Rehabilitation Act, 29 U.S.C. § 794, the court says that § 504 broadly prohibits discrimination, including employment discrimination, against persons with disabilities in federally assisted programs or activities.

3. Since § 504 of the Rehabilitation Act only applies to discrimination in program receiving federal financial assistance, it does not properly protect persons with disabilities from discrimination in the private sector. That is the reason why title I of the ADA was enacted. However, title I of the ADA only applies to employees. Therefore, Flynn’s only option was to sue under § 504 the Rehabilitation Act.

 

4. Soon after Congress enacted the ADA, it became concerned about potential inconsistencies between the Rehabilitation Act and the ADA. Therefore, they enacted 29 U.S.C. § 794(d), which provides that the standard used to determine whether § 504 of the Rehabilitation Act has been violated in a complaint alleging employment discrimination shall be the standard applied under title I of the ADA. Senator Harkin explained that the purpose of 29 U.S.C. § 794(d) was to put everyone on notice that the definitions of reasonable accommodation and discrimination under the ADA were the ones that apply. Also, people would know that the standard governing preemployment inquiries and examinations as well as the standard governing inquiries of current employees under the ADA would also apply to Rehabilitation Act.

5.  Distinctive admitted that it receives federal financial assistance.

6. Unlike title I of the ADA, § 504 of the Rehabilitation Act is not limited to employment. Rather, § 504 of the Rehabilitation Act prohibits discrimination under any program or activity receiving federal financial assistance. Further, program or activity is defined per 29 U.S.C. § 794(b) to include all of the operations of an entire Corporation, partnership, or other private organization, or entire sole proprietorship. Therefore, a previous case from the Ninth Circuit reasoned that the Rehabilitation Act covers all of the operations of covered entities and not just those related to employment.

It should be noted that the applicability of the Rehabilitation Act to the defendant is actually a little bit more complicated than what the court alludes to. Reviewing, 29 U.S.C. § 794(b)(3)(A) reveals that all of the operations of the Corporation are only involved if they are receiving federal financial assistance to the entire Corporation. Hard to say whether that is the case here. However, all of the operations are involved if the Corporation is principally involved in healthcare, which Distinctive and Spectrum probably are.

 

7. The conclusion that the Rehabilitation Act does not completely incorporate the terms of the ADA so that the Rehabilitation Act applies beyond employees, is consistent with a prior opinion from the Fifth Circuit where they considered whether the Rehabilitation Act incorporated title I of the ADA’s view of causation in employment discrimination cases. In that case, Soledad v. United States Department of Treasury, the Fifth Circuit concluded that the specific language contained in the Rehabilitation Act referring to causation (29 U.S.C. § 794(a)),  prevailed over the more general incorporation language contained in 29 U.S.C. §794(d).

 

8. 29 U.S.C. § 794(a) contains explicit language authorizing discrimination suits against any program or activity receiving federal financial assistance. Therefore, to incorporate the requirements of title I of the ADA mandating an employee employer relationship would conflict with the plain language of the Rehabilitation Act. That law specifically and broadly authorizes discrimination suits against a wide variety of entities, including non-employers.

9. §504(d) of the Rehabilitation Act does not incorporate title I in its entirety. Instead, it specifies that the ADA’s standards are to be used to determine whether the Rehabilitation Act has been violated. It does not say that the standards of the ADA are to be used to determine when the employer is even subject to the Rehabilitation Act in the first place. Therefore, the Fifth Circuit agrees with the conclusions of the Ninth Circuit and the 10th Circuit stating that Rehabilitation Act adopts only the substantive standard for determining the conduct that violates the Rehabilitation Act and not the definition of who is covered under the Rehabilitation Act.

10. Since the Rehabilitation Act does not incorporate title I of the ADA standards for determining the entities that may be held liable for employment discrimination, it does not incorporate title I of the ADA’s requirement that the defendant must be the plaintiff’s employer. Therefore, the fact that a plaintiff is an independent contractor of the defendant is not fatal to the plaintiff’s Rehabilitation Act claim.

11. Case law from the Eighth Circuit to the contrary is not persuasive for several reasons. First, § 504 the Rehabilitation Act is materially different from title I of the ADA because it specifically defines the entities to which it applies and does not address employers. Second, title I and § 504 do not cover the same entities and so the two statutes are not perfectly interchangeable. Third, that case law specifically mentioned that there was no existing precedent on the question. However, since that time, there is precedent on the question with the Ninth Circuit holding that an independent contractor may sue a defendant for employment discrimination on the Rehabilitation Act. Finally, contrary case law also referred to the definition of a qualified handicapped person in the Rehabilitation Act, but the Fifth Circuit failed to see how that particular provision had any bearing on whether the Rehabilitation Act authorized suits by independent contractors or on the degree to which § 504(d) incorporates title I of the ADA.

12. Another case from the Fifth Circuit also doesn’t work because that case holds that an individual supervisor could not be sued for employment discrimination under § 504 the Rehabilitation Act because that individual supervisor did not herself receive federal financial assistance.

13. There was an unpublished decision from the Fifth Circuit saying that the former employee lacked standing to pursue a discrimination claim involving a terminated benefit because he would not an employee of the Air Force nor an applicant for employment with the Air Force when a disability retirement benefits were terminated. However, the Fifth Circuit because of the reasons mentioned above declined to follow that decision. In a footnote, they also noted that unpublished opinions issued on or after January 1, 1996 are not precedent.

III
Takeaways

1. Since there is a split among the Circuits (independent contractors are covered in the 9th, 10th, and 5th Circuits but not in 8th), it would seem that this case could go to the United States Supreme Court.

2. This case has potentially huge ramifications because doctors are often independent contractors, and convincing a court (as noted in my blog entry discussing the District Court opinion in this case, mentioned above), to apply title III to the situation is not an easy matter.

3. This case also has ramifications with respect to whether prisons get a get out of jail free card when it comes to disability discrimination against prisoners with respect to prison jobs, which I discussed in this blog entry.

4. Interesting that the U.S. government wasn’t sued as the Rehabilitation Act prohibits them from engaging in discrimination through contracting.

My most popular blog entry of 2015 by far was this one. Recently, January 21, 2016, the EEOC issued a proposed enforcement guidance on retaliation and related issues. They put it out for public comment for a period of 30 days. It is intended to provide the public with information about how the EEOC may guide its personnel in processing and investigating charges, making cause determinations, and in considering litigation. My friend and colleague Robin Shea, whose blog appears in my blog roll, had a great post discussing retaliation, the EEOC proposed guidance, and the current status of the law. What I wanted to do was focus on the ADA piece of it. Here are my thoughts:

 

1.  42 U.S.C. § 12203(a),(b) prohibit retaliation and interference, coercion, or intimidation. This particular section is very broad indeed and reaches even those situations where the conduct does not meet the materially adverse standard required for retaliation. EEOC gives specific examples as to what might constitute interference including: coercing an individual to relinquish or foregoing an accommodation to which he or she is otherwise entitled; intimidating an applicant from requesting an accommodation for the application process by indicating that such a request will result in the applicant not being hired; threatening an employee with loss of employment or other adverse treatment if he does not voluntarily submit to a medical examination or inquiry that is otherwise prohibited under the statute; issuing a policy or requirement purporting to limit an employee’s right to invoke ADA protections; interfering with the former employee’s right to file an ADA lawsuit against the former employer by stating that a negative job reference will be given to prospective employers of the suit is filed; and subjecting the employee to unwarranted discipline, demotion, or other adverse treatment because he assisted a co-worker in requesting reasonable accommodation. The interference must be such that it is reasonably likely to interfere with the exercise or enjoyment of ADA rights.

 

2. With respect to retaliation, as Robin discusses in the above-mentioned blog entry, protected activity can consist of either participation in the EEO process or opposing a practice made unlawful by an anti-discrimination statute.

 

3. There is a difference between participation and opposing a practice. With respect to an occurrence arising out of participating in the EEO process, that clause applies even if the underlying charge is not meritorious or was not timely filed. Participation encompasses internal complaints. With respect to opposition, an individual must have a reasonable belief that the matter complained of violates the laws in order for his or her statements or action to be protected.

4. A request for a reasonable accommodation is as we have seen throughout our blog protected activity.

5. The EEOC takes the position that compensatory and punitive damages are available for retaliation claims because Title I allows it (as discussed in my most popular blog of 2015, the answer isn’t as simple as that). They note in a footnote that the courts, especially the district courts, are split on this. The Circuit courts to date, as the EEOC notes, are saying the opposite, though some Circuits have affirmed such awards without visiting the question.  Undoubtedly, this question is headed to the Supreme Court. Since the Rehabilitation Act allows for compensatory and not punitive damages and 12203 relates back to the Rehabilitation Act, it is fair to say that compensatory but not punitive damages are allowed for retaliation involving Title II. With respect to Title III, since the remedies refer back to Title III remedies, compensatory and punitive damages would not be in play. So, the only real question is whether compensatory and punitive damages are in play for retaliation claims that occur in the employment context.

6. Another question is whether individual liability is in play where retaliation occurs. We know that Title I-III do not allow for individual liability. However, § 12203(a), the ADA retaliation provision, specifically includes within it the term, “person.” §12203(b), the interference provision, does not contain the term, “person.” Therefore, the question becomes with respect to retaliation, whether personal liability is in play. There are two views on that question with respect to title II matters. The view that personal liability is not in play represented by the case of Bertolotti v. Prunty, 2010 U.S. Dist. LEXIS 101015 (S.D. W. Va. September 21, 2010), which followed a Fourth Circuit decision saying that because retaliation remedies for the ADA are linked to title VII, which does not allow any remedy against individual defendants, individual liability is not possible. On the other hand, the 11th Circuit in Shotz v. City of Plantation, 344 F.3d 1161 (11th Cir. 2003) in a very extensive opinion said that individual liability is in play with respect to retaliation occurring under title II of the ADA because the retaliation provision specifically includes the word “person,” the statute with respect to individual liability is inscrutable, solid policy reasons exist for imposing individual liability in the title II context, and the Department of Justice in 28 C.F.R. § 36.104 refers to a private entity as including a person and since that rule went through proper rulemaking it is entitled to deference. So, in short, an argument exists for individual liability for retaliating against someone in the context of title II of the ADA. However, even if that argument would prevail, not at all a given, one wonders whether it would apply to the interference section because the word “person,” does not appear in that particular provision.

This case was pointed out to me by a member of the Deaf and Hard of Hearing Bar Association, of which I am a member, on its facebook page, which is where most of the communication for the Association occurs. This case raises several interesting issues: 1. Does hiring a person to be an ASL interpreter for an employee mean that the interpreter is performing the essential functions of the job; 2. How is undue hardship measured; 3. Can a Deaf person be a direct threat?; and 4. Can experts testify about the capabilities of the deaf when they have no experience with the Deaf.

I
Facts:

Searls, the plaintiff, is a deaf 2012 graduate of the Johns Hopkins School of Nursing. She reads lips but understands better through ASL. As a nursing student, she completed two clinical rotations in the Hallstead 8 unit at Johns Hopkins Hospital. During her clinical placements, the School of Nursing provided a full-time ASL interpreter. A few days prior to their graduation from the School of Nursing, a nurse manager sent her an email giving her advance notice that she would be posting two openings for nurse clinician I positions in Hallstead eight and encouraging her to apply. She later sent her an email with the two job postings. The job description for the nurse clinician I position stated that a nurse is responsible for coordinating care, providing evidence-based patient care, working collaboratively, supporting safety standards, and using resources in a cost-effective manner. A required skill was highly effective verbal communication and interpersonal skills to establish working relationships. Also, communication was listed as an essential job function and the nurse was required to listen actively to opinions, ideas, and feelings expressed by others and respond in a courteous and tactful manner. Another essential function of this job was communicating unresolved issue to appropriate personnel. A nurse I clinician must also be competent in general physiologic monitoring and patient care equipment such as defibrillator and glucometer monitor.

The plaintiff applied for the nurse clinician I position, and Johns Hopkins Hospital offered her an interview. They interviewed her and the very next day after the interview she was offered the nurse clinician I position on Hallstead eight. Her offer letter included the provision that the offer of employment and start date were contingent upon successful completion of a health screening and clearance by the Office of Occupational Health Services. After the plaintiff received the offer, she asked the nurse manager who to contact to request an ASL interpreter. Plaintiff also told a staff member from the Department of Occupational Health that she would require a full-time ASL interpretation as an accommodation. This information was sent to Johns Hopkins Hospital’s ADA compliance specialist who then turned the matter over to another individual who was the ADA/accessibility consultant at Johns Hopkins Hospital at the time to speak with her about the request for an interpreter. The ADA/accessibility consultant investigated the cost of providing one or two interpreters and determined that the average annual salary of an ASL interpreter proficient in medical terminology would be between $40,000 and $60,000 and concluded that the plaintiff would require a team of two interpreters with her at all times at an annual cost of $240,000. In 2012, Hallstead 8 had an operational budget of $3.4 million. It was a part of Johns Hopkins Hospital’s Department of Medicine, which had an operational budget of $88 million in 2012. The overall budget for operations at Johns Hopkins Hospital in 2012 was $1.7 billion. About a few weeks later, the ADA/accessibility consultant sent the nurse manager an email with the estimate of the cost of interpreter. The nurse manager forwarded the email to Karen Davis, the Director of Medical Radiology Nursing with the comment that, “I know that we can’t afford this.” The nurse manager also wrote, “they are expecting the department to pay for this. Why isn’t the hospital responsible?” Ms. Davis forwarded the emails onto her supervisor to ask for her thoughts. In particular, Ms. Davis noted that the plaintiff was qualified but because of the cost of an interpreter the first response, given financial issues, was that she cannot be accommodated. She also speculated that having an interpreter could create scheduling issues and that the interpreter might tell the plaintiff the wrong medicine to use during an emergency situation. She concluded her email by writing that, “Stacey Rotman [the nurse manager] tells me the nurse is bright and would be a good hire other than this hearing issue.” In response, her supervisor wrote that she did not think the plaintiff could be accommodated. Following this exchange, the nurse manager responded to the ADA/accessibility consultant email stating that she had talked to a director and the department could not accept the restrictions. The ADA/accessibility consultant asked for the reasoning, and the nurse manager responded that she assumed it was costs. The ADA/accessibility consultant also said she wanted to be sure that all avenues had been thoroughly investigated as the plaintiff was a qualified applicant and that they were part of the larger Johns Hopkins Hospital. In response to that, the nurse manager said, “yes, the reason is cost.” The ADA/accessibility consultant tried to reach a compromise to no avail. In particular, the supervisor, Ms. Davis, said that the interpreters would be an ongoing operating expense that would not budgeted or funded. Therefore their threshold for interpreter costs was zero. She further explained that because the overall budget of the unit was $3.4 million and the overall budget of the department was ADA million dollars, they would have to lay off four new nurses to fund the interpreter as they could not incur any new expenses. She cautioned that laying off nurses would result in nurse patient ratios on the unit and an enormous safety risk. She did not express any of the concerns she had raised in a prior email about scheduling in emergency situations and only gave costs as a reason for not hiring the plaintiff. The plaintiff then explained that she was only seeking one full-time interpreter. Even so, Johns Hopkins Hospital still claimed undue hardship. After all this, the job offer was rescinded because of the supposed inability to provide an ASL interpreter full-time.

After months of searching for a new job, plaintiff began working as a nurse at University of Rochester Medical Center’s Strong Memorial Hospital, where she continues to work. After strong offered her the job, the plaintiff requested a full-time ASL interpreter. The hospital agreed and sent 2013 she has worked with an ASL interpreter. Her supervisor at the hospital testified that her deafness and use of an interpreter had never negatively affected patient care. For that matter to respond to alarms or her participation in codes have never been negatively affected either. At the hospital, the plaintiff exceeded standards on her performance reviews and has received promotions.

II
Court’s Reasoning

It is a rare situation where, as here, a plaintiff’s motion for summary judgment is granted. Not only that, the court here also granted the plaintiff’s motion to strike experts that were going to testify about what a deaf person could or could not do as a nurse. In reaching these conclusions, the court reasoned as follows:

A
Essential Functions/Reasonable Accommodations

1. In defining reasonable accommodation, Congress expressly included the provision of qualified readers or interpreters as an illustration of what is a reasonable accommodation.

2. Since Congress included interpreter as an illustrative example of what is a reasonable accommodation, employers commonly provide interpreters as a reasonable accommodation, and the plaintiff worked effectively with interpreters on Hallstead 8 and in her current nursing job, the plaintiff’s proposed accommodation was reasonable unless hiring a full-time ASL interpreter would have reallocated essential job functions.

Not sure I follow this. That is, an accommodation is reasonable if it doesn’t constitute an undue financial or logistical hardship. It isn’t a matter of whether an essential function of the job is being reallocated. That said, hiring someone else to do an essential function of the job is not a reasonable accommodation. Perhaps, the defense was defending on that grounds and the court combined a couple of disparate concepts to make this statement.

3. The plaintiff with the assistance of an ASL interpreter would be able to perform a significant portion of the essential job functions of communicating and responding to alarms herself: she would decide the question to ask, she would voice for herself and speaking the patients and other professionals, and she would act in response to alarms. An interpreter, lacking the requisite medical training, would not act independently of the plaintiff to communicate about patient care and respond to alarms.

I also find this curious. In particular, the reference to a significant portion of the essential job functions. The expectation for everyone is that they are able to do the essential functions of the job with or without reasonable accommodations, which presumably means all of the essential functions of the job. “Significant portion,” somehow implies a lesser standard than that. Also, ethically an interpreter would not act independently of the plaintiff regardless of whether he/she had independent medical training. An interpreter is ethically bound to represent exactly what the participants are saying and not to exercise independent medical judgment.

4. Since it is clear that the plaintiff will retain responsibility for a substantial portion of the duties of communicating and responding to alarms if she were provided an ASL interpreter, the question becomes whether her inability to hear affected her ability to communicate and respond to alarms in such a way so that she would be unable to perform the essential functions of the job as defined by the ADA. When it comes to a question of degrees, such a plaintiff failed to perform the essential function of the job only if the failure detrimentally affects the purpose of the employment. Such is not the case here because the plaintiff could perform a substantial portion of the essential job functions of communicating responding to alarms and most importantly, those portions requiring nursing judgment, so that her inability to hear would not affect the purpose of employing her as a nurse. The duties of a nurse with respect to communicating responding to alarms reach beyond hearing what patients are saying and hearing an alarm ringing. The plaintiff would have to use her own medical expertise and training when speaking to patients, families, and other hospital personnel as well and when it comes to providing care based on her changes with those patients and taking the appropriate action in response to an alarm after an interpreter communicated the sound of an alarm visually.

I still don’t get the focus on significant portion. The fact is that as a deaf person she is doing all of the essential functions of the job with the aid of an interpreter. True, the interpreter may be giving her visual cues, but that is not the same thing as the interpreter is doing an essential function of the job, at least not to my mind anyway. That said, I do get the matters of degree language in the opinion, but still do not understand why it necessarily needs to be combined with, “significant portion.”

B
Undue Hardship

1. 42 U.S.C. § 12111(10(B)(iii) specifically says that when it comes to deciding whether something is an undue hardship, things to look at include the overall financial resources of the covered entity; the overall size of the business of the covered entity with respect to the number of its employees; and the number, type, and location of its facilities.

2. The overall budget for Johns Hopkins Hospital, it Department of medicine operational budget, and the unit’s operational budget are all relevant factors.

3. The cost of providing an interpreter would only cost .007% of Johns Hopkins Hospital’s 2012 operational budget of $1.7 billion (assuming that figure was right in the first place).

4. Even if it is correct that the salary of a full-time ASL interpreter would be twice the salary of a nurse, that does not in and of itself establish that an ASL interpreter constitute an undue hardship because the EEOC’s interpretive guidance on it title I ADA regulation says that it is insufficient to simply compare the cost of the accommodation to the salary of the individual with a disability in need of the accommodation.

5. The hospital in Rochester has been able to accommodate deaf nurses. Since that is the case and because Johns Hopkins Hospital is seeking to prevail on an undue hardship defense based on a decision the budget no money for reasonable accommodation while failing to account for $1.7 billion budget, Johns Hopkins Hospital has not met his burden of establishing undue hardship and the plaintiff’s motion for summary judgment with respect to the undue hardship defense is granted.

C
Direct Threat

1. After defining what a direct threat is and noting that an employer has the obligation to determine whether reasonable accommodations eliminate the risk or reduces it to an acceptable level, the court was having none of the defense. Court said that the direct threat defense was based on post-hoc rationalizations and was therefore, suggestive of pretext. The only statement in support of the defense was made contemporaneously with the decision to rescind a job offer of employment. All other contemporaneous evidence indicated that the job offer was rescinded because of the costs of providing a full-time ASL interpreter. Accordingly, Johns Hopkins Hospital did not meet their burden with respect to the direct threat defense.

2. Furthermore, the direct threat defense also fails because the records showed that there was no individualized assessment to figure out whether the plaintiff had the present ability to safely perform the essential functions of her job per School Board of Nassau County v. Arline. Instead, Johns Hopkins Hospital relied on stereotypes and generalizations about deafness.

D
Experts Testimony

1. Johns Hopkins Hospital sought to put testimony in from experts who would testify as to whether the plaintiff could monitor and respond to the multiplicity of alarms on the unit with or without a full-time ASL interpreter. The only catch was that all three experts lacked experience with deaf healthcare professionals or deafness in general. Accordingly, they could not reliably testify about how the plaintiff would’ve worked with an interpreter to monitor respond to alarms, and whether she could safely do so on the unit with an interpreter. Further, since, as noted above, the direct threat defense relied on post hoc rationalizations without an individual assessment, the expert testimony was not relevant. Accordingly, the court granted the plaintiff’s motion to strike the expert testimony.

III

Takeaways

1. It isn’t a surprise to me that this nurse found a job at the University of Rochester Strong hospital. There are actually two extremely well-known deaf oriented schools of higher education in the United States. They come at it from two different philosophies. Of course, Gallaudet University in Washington DC is perhaps the most famous and is very focused on ASL and being culturally deaf, or Deaf as it is known. On the other hand, a component of the Rochester Institute of Technology has been very focused on oral deaf, though no doubt deaf culture (Deaf) must be there in some way as well. Accordingly, the University of Rochester Strong hospital would have ready access to interpreters that could step up and do the job of being an ASL interpreter for a nurse.

2.  I find the “significant portion,” language of the opinion a bit problematic. To my mind, the ADA focuses on whether a person can do all of the essential functions of the job WITH or without reasonable accommodations. True, it may be a matter of degrees in some situations (personally, I happen to like the purpose language in the opinion on this), but that doesn’t mean that the person is not for all practical purposes doing all of the essential functions of the job.

3. When it comes to undue burden, the court is looking to the entire operations of the entity. This goes to show, which I have been saying for years, that an undue financial burden defense is going to be very difficult.

4. True, 40-$60,000 is a substantial amount of money, but think about what the hospital is gaining and what it means for the people it serves. Certainly, the University of Rochester (full disclosure: my father is a University of Rochester undergraduate though his medical degree and training were from elsewhere), saw it that way.

5. With respect to direct threat, be sure to remember to do an individual analysis and not rely on stereotypes and generalizations.

6. Experts must have familiarity with the person that they are talking about. That is, this court is not going to allow a person with no knowledge of the deaf to opine on what the deaf can do. This particular part of the opinion is actually quite liberating because it says that persons without disabilities don’t necessarily know what a person with a disability can do. That is, it takes one to know one. As mentioned elsewhere in this blog, having experts thoroughly familiar with what they are evaluating can be very powerful.

 

7. I once got into an argument with someone who ran a nursing program

In October 2012, I posted a blog entry discussing Batson challenges and persons with disabilities. Since that time I have attended many a networking event, CLE, or other law related event. At those events, if a person tells me they are a litigator, criminal or civil, I always ask them if they have ever seen Batson challenges exercised on behalf of a person with a disability. The answer I always receive is no. Some have never even considered the idea that it was possible. As I mentioned in that blog entry, there is no doubt in my mind that a Batson challenge can be exercised on behalf of a person with a disability as a result of Tennessee v. Lane. This blog entry makes the point that the dearth of Batson challenges, particularly in criminal matters, is likely to end imminently. In Hurst v. Florida, an 8 to 1 decision decided on January 12, 2016, the Supreme Court of the United States decided that the sixth amendment requires the jury, not a judge, to find each fact necessary to impose a sentence of death and such a decision cannot be subject to the judge’s fact-finding. Justice Breyer concurred saying that he believed the eighth amendment required a jury and not the judge to make the decision to sentence a defendant to death.

So what does this mean?

Operating on the assumption, a fair one IMO, that at least some criminal defendants being subject to the death penalty have a disability, perhaps mental illness, it would seem to make sense that a defense attorney would think that a juror with a disability, especially a juror with a history of mental health issues or one with a family that has mental health issues, might be particularly receptive to the defendant’s point of view and especially so when it comes to the penalty phase. If this is correct, it would seem the defense attorney would want people on the jury with such a history and the prosecution would not. If this analysis is correct, then I would expect to see more questions in voir dire being asked about sensitivity to persons with disabilities. I would also expect to see when jurors demonstrating a sensitivity to persons with disabilities were excluded from serving on the jury through peremptory challenges, that the attorney, presumably defense counsel, would exercise Batson challenges on their behalf. The attorney exercising the Batson challenge may need to get around this case, which held that persons with disabilities had no right for a Batson challenge to be exercised on their behalf. However, that case was based upon the premise that persons with disabilities were in the rational basis class and was decided some five years before the United States Supreme Court decided Tennessee v. Lane , where they held that sovereign immunity was waived with respect to those cases implicating: basic constitutional guarantees, basic rights, judicial services, and fundamental rights (fundamental rights include access to the court). Accordingly, I don’t believe it is reasonable to say that a person with a disability when it comes to serving on a jury would be in the rational basis class and therefore, ineligible to have a Batson challenge exercise on their behalf. Rather, it is clear, to me anyway, that a person with a disability with respect to serving on a jury would qualify for a Batson challenge because serving on a jury, which is part of accessing the courts, is arguably a fundamental right and subject to a higher level of scrutiny than rational basis.

So, let’s say that the judge denies the Batson challenge, is the attorney without any remedy? An approach an attorney might try in that eventuality is to seek a declaratory judgment that denial of the Batson challenge in essence is denying a person with a disability equal protection of the law, especially in light of the fact that title II of the ADA prohibits discrimination against persons with disabilities by public entities. The advantage of going with the declaratory judgment option in such a situation is that it would get around judicial immunity with respect to a later § 1983 action.

In short, Hurst v. Florida, is likely to Batson challenges on behalf of persons with disabilities increase, particularly when it comes to capital murder trials.