Until last week, several of my blog entries before that, with the exception of the year ender blog entry, where all employment law focused. While I would say up to 40% of my blog entries, probably more likely a third, deal with employment issues, it isn’t accurate to say that my practice focuses exclusively on employment law. Here is another blog entry on an issue outside of employment law. This blog entry discusses just what is the burden of proof when it comes to allegations that barrier removal is readily achievable and the removal wasn’t done. As is usual, the blog entry is divided into categories: overviews; facts of our case; court’s reasoning for granting the default judgment; and takeaways. The reader is free to focus on any or all of the sections of the blog entry.

I Overview

Before moving on, a little overview is in order. Title III of the ADA when it comes to barrier removal works like this:

1. Any building built after 1992 must be built in accordance with the Americans With Disabilities Act Architectural Guidelines. The specific guideline depends upon the year the building was built.

2. Any renovations to existing buildings must be done in accordance with the Americans With Disabilities Act Architectural Guidelines and the path of travel to the renovations must be such so as to allow persons with disabilities to get to the renovations.

3. With respect to existing facilities, the obligation exists to make whatever changes are readily achievable.

4. Readily achievable means without much difficulty or expense. Determining that means looking at several factors including: 1) the nature and cost of the action needed; 2) the overall financial resources of the site or sites involved in the action; 3) the number of persons employed at the site; 4) the effect on expenses and resources; 5) legitimate safety requirements necessary for safe operation, including crime prevention measures; 6) if applicable: A) the geographic separateness and the administrative or fiscal relationship of the site or sites in question to any parent Corporation or entity; B) the overall financial resources of any parent Corporation or entity; C) the overall size of the parent Corporation or entity with respect to the number of employees; D) the number, type, and location of its facilities; and E) the type of operation or operations of any parent Corporation or entity, including the composition, structure, and functions of the work force of the parent Corporation or entity.

5. Examples of what may be readily achievable can be found in 28 C.F.R. § 36.304(b) and include:

(1) Installing ramps;

(2) Making curb cuts in sidewalks and entrances;

(3) Repositioning shelves;

(4) Rearranging tables, chairs, vending machines, display racks, and other furniture;

(5) Repositioning telephones;

(6) Adding raised markings on elevator control buttons;

(7) Installing flashing alarm lights;

(8) Widening doors;

(9) Installing offset hinges to widen doorways;

(10) Eliminating a turnstile or providing an alternative accessible path;

(11) Installing accessible door hardware;

(12) Installing grab bars in toilet stalls;

(13) Rearranging toilet partitions to increase maneuvering space;

(14) Insulating lavatory pipes under sinks to prevent burns;

(15) Installing a raised toilet seat;

(16) Installing a full-length bathroom mirror;

(17) Repositioning the paper towel dispenser in a bathroom;

(18) Creating designated accessible parking spaces;

(19) Installing an accessible paper cup dispenser at an existing inaccessible water fountain;

(20) Removing high pile, low density carpeting; or

(21) Installing vehicle hand controls.

6. 28 CFR § 36.304(c) also list the priorities that a place of public accommodation should use in deciding how to go about making changes that are readily achievable. Those priorities are as follows:

(1) First, a public accommodation should take measures to provide access to a place of public accommodation from public sidewalks, parking, or public transportation. These measures include, for example, installing an entrance ramp, widening entrances, and providing accessible parking spaces.

(2) Second, a public accommodation should take measures to provide access to those areas of a place of public accommodation where goods and services are made available to the public. These measures include, for example, adjusting the layout of display racks, rearranging tables, providing Brailled and raised character signage, widening doors, providing visual alarms, and installing ramps.

(3) Third, a public accommodation should take measures to provide access to restroom facilities. These measures include, for example, removal of obstructing furniture or vending machines, widening of doors, installation of ramps, providing accessible signage, widening of toilet stalls, and installation of grab bars.

(4) Fourth, a public accommodation should take any other measures necessary to provide access to the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.

II
Facts of Our Case

Our Case of the week is Johnson v. San. In this case, the plaintiff initiated an action alleging violations of the ADA and various California laws. Plaintiff sought injunctive relief, attorneys fees and costs and per California law damages. Despite being properly served, defendant never responded to the complaint. Plaintiff then moved for a default judgment.

III

Court’s Reasoning for Granting the Default Judgment

1. To succeed on an ADA claim of discrimination on account of one’s disability due to an architectural barrier, a plaintiff has to show: 1) he or she has a disability within the meaning of the ADA; 2) the defendant is a private entity owning, leasing, or operating a place of public accommodation; 3) the plaintiff was denied public accommodations by the defendant because of his or her disability; 4) the existing facility at the defendant’s place of business presents an architectural barrier prohibited under the ADA; and the removal of the barrier is readily achievable.

2. Following a 10th Circuit case, Colorado Cross Disability Coalition v. Hermanson Family, Limited, the court said that the plaintiff bears the initial burden of production to present evidence that a suggested method of barrier removal is readily achievable. After that, the burden shifts to the defendant who bears the ultimate burden of persuasion regarding its affirmative defense that a suggested method of barrier removal is not readily achievable.

3. Since in the regulations, noted above, creating designated accessible parking spaces is explicitly listed as an example of steps to remove barriers, the creation of a handicap accessible parking space is per se readily achievable.

IV
Takeaways:

1. Unless there is a strategic reason, if you get served with a complaint you should respond to it.

2. The list of what is readily achievable in the regulations mentioned above may be given per se effect by the courts. That is, if the complaint concerns one of the things listed in the regulations as being readily achievable, The mere listing of that particular provision or statements of facts showing that a particular provision of that regulation is at issue will get the plaintiff to first base. It would then be up to the defendant to somehow show that its affirmative defense should prevail. Since what is listed in the regulations are given per se effect, at least by this court, the defendant is not going to be able to show that its affirmative defense should prevail unless it responds to the complaint.

Happy new year everyone!

Since I started blogging four years ago, I had never taken a two-week break before. Since my daughter was off from school and my wife took some days off, I decided to give that a shot. Now I am back and ready to get back at it. A two week break at the end of the year was nice as it gave me a chance to recharge my batteries. However, I am such a nut about writing, it is more than time for me to get back to it.

Previously, I had written about the case of ScribD here. ScribD appealed and case settled in November 2015. I do have categories for this blog entry and they are: highlights of the settlement agreement; and my thoughts. It would be kind of strange to only read the highlights without my thoughts, but the option remains.

I
Highlights of the Settlement Provisions

1. Each party pays for its own attorneys fees. Now, here are provisions that you don’t often see in these cases. Usually, the defense pays the attorneys fees for the plaintiff even though it doesn’t admit liability.

2. Web content accessibility guidelines 2.0 level AA with ARIA and HTML5 support is the standard that the website must satisfy.

3. ScribD with the assistance of a third party vendor, one is named in the complaint-simply accessible Inc.- has to perform automated and manual testing of the website.

4. ScribD has to offer a single, responsive website for all users, including desktop and mobile users. Blind users have to be able to engage in all of the same transactions and access all the same information with a substantially equivalent ease-of-use. That means, that blind users must be placed at the same starting line as those users who are not blind.

A trap that I see here is that voice dictation doesn’t always work the same as screen reading technology. Hopefully, people who use voice dictation technology and not screen readers will not be left behind here.

5. If ScribD performs a full re-architecture of iOS or android apps, which includes a full re-architecture of the interface and reader in the app, then ScribD has to ensure that the fully re-architected app is fully accessible to blind users.

6. If an upgrade of its iOS or android apps is released, then ScribD has to ensure that the elements of the apps upgraded, updated, or revised complies with BBC Mobile Accessibility Standards and Guidelines v 1.0 or an applicable successor for blind users.

7. By December 31 of 2017, ScribD must reprocess all EPUB ebooks that it has received from publishers to ensure they are accessible to screen access software according to the existing international digital publishing form standard.

8. After December 31, 2017, if a paying subscriber using screen access software request a PowerPoint, Excel, or PDF file on ScribD to be provided in a text readable format, ScribD, to the extent allowed by contract and of the law, will process the file to make that appointment accessible to that subscriber providing that ScribD only has the obligation to undertake processing of such documents as long as the cost to ScribD of doing so for all subscribers cumulatively is less than $12,000 per calendar year.

This is interesting. It seems that the parties are agreeing that in this situation anything more than $12,000 per year spent on all subscribers constitute an undue burden. $12,000 for all subscribers per year does not seem like a lot of money given what one would think ScribD is worth. The question that this raises is whether the parties can agree on what constitutes an undue burden or whether that is something for the court to decide.

9. ScribD has to process and present comic books, illustration heavy books, graphic novels, maps, and sheet music with existing descriptive data in a manner permitting that data to be accessed by a ScribD user.

10. By December 31 of 2017, ScribD must make audiobooks available to the website for native mobile applications in a way that a blind user can access with a substantially equivalent ease-of-use.

Being deaf, this has me wondering whether this would create an argument for a deaf person to say that ScribD should be captioning its audiobooks. Perhaps, ScribD already does this.

11. After December 31, 2017, ScribD cannot change its website or portion of it without subjecting the website to testing and determining that it has been determined to be accessible.

12. If there any bugs with respect to website features, ScribD has to deal with those bugs that are affecting the blind in the same way and in the same priority as those not affecting the blind.

13. ScribD has to implement a course of training for designers, engineers, and management regardless of whether they are employees or independent contractors. That training has to be appropriate for their roles in the development and maintenance of the website. The training materials have to be given to the National Federation of the Blind.

Notice that this provision applies to both ScribD employees and the independent contractors that work on websites and the apps.

14. Within 90 days of the settlement agreement, ScribD has to adopt and implement a Web accessibility policy. Within the same time frame, ScribD has to designate an employee reporting to the senior vice president of engineering or header products to be the web accessibility coordinator for the website.

15. Should either the National Federation of the Blind or the individual that filed the complaint believe that ScribD is not complying with the settlement agreement, then upon written notice, ScribD has 60 days to cure the problem. If ScribD disputes the breach, either party has the right to request a mediator to step in and the parties will split the cost of the mediation evenly. If these steps are not successful in resolving the problem, then the National Federation of the Blind may bring a motion to enforce the settlement agreement and fees and costs associated with that motion around the table, though the settlement agreement explicitly mentions that whether fees and costs are available for that situation is very much debatable.

16. The settlement agreement runs until December 31 of 2020 and renews automatically every year after the initial term unless upon 10 days written notice a party declines to renew the settlement agreement or ScribD becomes insolvent.

Why would ScribD renew the settlement agreement after the expiration of the initial term?

17. ScribD admits no liability.

II
My thoughts:

1. It is extremely unusual to see each party responsible for paying their own attorneys fees. One wonders if the plaintiffs had their attorneys do the work pro bono.

2. It is always better to design accessible websites and apps from the get go, including getting it tested, rather than have to do it later after also outlaying considerable dollars for attorneys.

3. In doing that design from the get go, don’t forget about other disabilities besides the blind, such as the deaf and those who use voice dictation technology. That is, if you design it for the blind but don’t take into account other users with disabilities, then you may have prevented a lawsuit involving the blind but open yourself to a lawsuit involving other disabilities, such as those who are deaf or use voice dictation technology. What I have been finding very interesting is that I don’t see a lot of litigation involving people using voice dictation technology. It isn’t clear to me whether voice dictation technology and screen readers are always on the same page. I can tell you that my own personal experience in the past is that it isn’t always the case.

4. It is an open question, to my mind, whether parties can agree on what constitutes an undue burden in the financial sense.

5. If it is a matter of troubleshooting problems for persons with disabilities, they need to be troubleshooting in the same way as those without disabilities. That is, don’t send them to the back of the line so to speak.

6. Make sure the people, both employees and independent contractors, designing your website and the apps are familiar with and are trained in the appropriate means for ensuring that apps and websites are accessible to persons with disabilities.

7. Having a person designated to be responsible for ensuring that websites and apps are accessible to all persons with disabilities is not a bad idea.

8. If you are a software as a service entity, you may be able to argue that you are not subject to the ADA at all because you are not operating, owning, or leasing a place of public accommodation. However, this case and others, suggest that the ADA is not limited to a physical place. Do you really want to take the chance after spending a lot of money on attorneys fees to find out that the ADA is not limited to a physical place? It is very unclear as to how the United States Supreme Court would rule if faced with this question. If you are a physical place using the website as a gateway to your physical place or to the products offered, then you definitely want to have your website accessible to all persons with disabilities as the case law is trending pretty strongly in that direction with respect to websites that are a gateway.

Happy new year everyone!

First off, I hope for those who celebrate Hanukkah that it was a festive and happy one. For those who have Christmas and other holidays upcoming, good luck on your shopping and have a great holiday! When you need a break from the holiday mishigas (Yiddish for craziness), the latest employment Law blog carnival is out. So many ADA issues, as we are well aware, bump into employment matters. However, there are so many more labor and employment matters that indirectly affect persons with disabilities. Take a spin over to the carnival if you get a chance (in interest of full disclosure, you will see my blog entry what’s wrong with this job description mentioned in that carnival). You can find the employment Law blog carnival at Win-Win HR, where Lorene Schaefer is hosting the Employment Law Blog Carnival: A Festival of Lessons.. Considering Hanukkah is the festival of lights, I find her theme a Festival of lessons quite apropos:-)

Now here is a list of the most visited blog entries in 2015 of Understanding the ADA. Keep in mind, this list focuses on the blog entries that were the most visited in 2015 regardless of when they were actually written. The list is in reverse order:

10. From August of 2013, what does it mean to exhaust administrative remedies.

9. From May 2013, using the ADA as the basis of a negligence per se cause of action.

8. From December 2012, are public colleges and universities immune from suit as the result of sovereign immunity?

7. From February 2014, temporary disabilities and the ADA.

6. From April 2013, ADA and the applicable statute of limitations.

5. From July 2013, the complexities of suing a state court system for violating the ADA.

4. From February 2013, what do you have to show to get damages under title II of the ADA.

3. From June 2013, the blog entry discussing University of Texas southwestern Medical Center v. Nassar. Interestingly enough, this blog entry is in a virtual tie with respect to our number one blog entry for the year if you look at the analytics since this blog has been in existence.

2. From April 2013, service dogs v. therapy dogs.

THE MOST VISITED BLOG ENTRY OF THE TEAR

1. The most visited blog entry of the year has been visited just about double the amount of times as the second most visited blog entry of the year. As mentioned above, it is a virtual dead heat (only 19 views separation) between this blog entry and the blog entry discussing the University of Texas Southwestern Medical Center v. Nassar case with respect to blog entries visited when looked at it from the time when this blog began.

THE MOST VISITED OF THE YEAR IS:

From August 2014, Can you get compensatory and punitive damages in ADA retaliation claims.

Happy holidays everyone and happy new year!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! See Everyone next year!!!

Just about everyone on the Internet and in the blogosphere is talking about the filing of Coach Sarkisian’s disability discrimination lawsuit against University of Southern California. All kinds of folks have blogged on it already. Normally, since all kinds of folks have blogged on it, many doing it quite well, I would refrain from commenting. However, since I have written on the ADA and sports for years, I didn’t feel it was something I could avoid. So here goes:

1. The allegations are entirely based upon California state law. They include: breach of contract for coaching USC; breach of implied covenant of good faith and fair dealing; failure to engage in the interactive process; disability discrimination; retaliation; breach of confidentiality of medical information; invasion of privacy; negligent disclosure; wrongful termination; breach of contract with respect to a marketing agreement; negligent supervision, retention and hiring.

2. California for years, I actually took a course while receiving my J.D. degree from the University of San Diego on the breach of implied covenant of good faith and fair dealing, has had a separate cause of action holding a party to a contract liable where that party does not behave in a reasonable way with respect to its contractual terms. Other states do require good faith and fair dealing in their contracts but it is not a separate cause of action (Illinois for example).

3. Interesting that all the allegations are based entirely on California state law for two reasons. First, the FEHA (Unruh Civil Rights Act), makes a violation of the ADA a violation of that act. Second, interesting that there is no Family and Medical Leave Act allegation. Clearly, the coach worked the requisite number of hours in the prior year and a serious health condition was involved. The advantage to a Family and Medical Leave Act allegation is that a person is entitled to the same or equivalent job upon return from Family and Medical Leave Act leave.

4. Turning to the specific allegations (for purposes of this blog entry, we are going to take the allegations as if they were true like a motion to dismiss, which, of course, may not actually be the case:

A. In November 2015, the coach pleaded with the athletic director for help and was immediately placed on leave. Less than 24 hours later while on a plane to a rehabilitation facility, the coach was fired.

If this is true, this could be a problem for the University of Southern California along the lines of the case discussed in this blog entry, which held that a person requesting the ability to enter a rehabilitation program was protected conduct vis a vis the ADA.

B. The coach has now completed a rehabilitation program, is sober, and ready to return to work.

This raises the question of whether the coach can perform the essential functions of the job with or without reasonable accommodations. For an article discussing what might be the essential functions of his job and a coach’s ability to perform them, take a look at this article.

C. In early 2015, his wife seeks divorce after 17 years of marriage. This led to anxiety, depression, and further alcohol dependency. He still recruited well.

This raises two points. First, did the University know about his anxiety, depression, and further alcohol dependency. An employer is under no obligation to accommodate an individual if they are not aware of the disability. The coach alleges that at all time the University of Southern California knew of his disability. Also, magic words are not required. Second, the reference to recruiting well is probably an attempt to show that he was able to perform the essential functions of the job.

D. The widely known episode that occurred at the “salute to Troy,” function was the result of anxiety medicines being mixed with alcohol. After this episode, a psychologist employed by the University of Southern California that he had been seeing told him to change the plan if it was not working.

E. The coach was made to sign a letter requiring weekly visits with the therapist.

This allegation would go to whether the University of Southern California was aware of his disability.

F. The coach has suffered from chronic sleeplessness for over 20 years

Chronic sleeplessness could well be a disability. On the other hand, it raises the question of whether the coach was able to perform the essential functions of the job with or without reasonable accommodations.

G. The athletic director threatened to fire the coach. In response, the coach said that he was not right and needed time to get well. The athletic director responded “unbelievable,” and ignored any opportunity for the interactive process.

Once an employer is aware of a disability they do have the obligation to engage in the interactive process. On the other hand, employers have a perfect right to a substance abuse free workplace and are free to discipline for violation of those policies. If the University of Southern California is relying on this, hopefully they will be able to show that their discipline of the coach was similar to others faced with this situation. If not, that would create the inference that disability motivated the actions of the University.

H. The contract for coaching the football team said that if he was fired for cause, 10 days advance notice was necessary in order to allow him to cure the problem.

The allegations are that the opportunity to cure was never given to him. On the other hand, perhaps the University would argue that giving the opportunity to cure would be a futile act in light of the disability. You also wind up circling back as to how the University handles alcoholism where employees are not meeting the standard of the job (under the ADA, an employer is permitted to evaluate an alcoholic based upon the work they are doing regardless of the fact that they are an alcoholic).

I. Putting an assistant coach, who is now the coach of the University of Southern California football team (signed a five-year deal I believe) would not constitute an undue hardship to University of Southern California while the coach worked things out. That is certainly true. University of Southern California did quite well with the assistant coach they put in. So well, that they are in a bowl game and they signed him to a five-year deal. On the other hand, the ADA is pretty clear that it is not a reasonable accommodation to have someone else do a person’s essential functions of the job. This leads again to wondering why the Family and Medical Leave Act was not activated nor is it being argued by the plaintiff. The reasoning being is that while it is not a reasonable accommodation under the ADA to have someone else do a person’s essential functions of the job, if a serious health condition is involved, that person is entitled to 12 weeks of leave under the Family and Medical Leave Act in order to deal with the situation and then he gets his job back when he returns from the leave. Under that scenario, putting someone else in to do the job would make perfect sense and the coach would get the job back after the 12 weeks.

J. Both contracts with the coach may have an arbitration clause in them. If so, he is claiming that the arbitration clauses are procedurally and substantively unconscionable. I am aware that the United States Supreme Court is hearing a case on whether California can get around the preemption of the federal arbitration act. If the United States Supreme Court track record on arbitration act cases is any indication, it is quite possible that the court will find that the get around California uses with respect to the federal arbitration act will not fly. However, we will have to see what the United States Supreme Court says. Also, that decision will have to be analyzed to see how it would apply to this case, if at all.

K. The University of Southern California did not follow contractual requirements for termination with or without cause. That is certain notice requirements were not met. If the contract was terminated without cause, a liquidated damages provision kicks in and the University of Southern California did not pay it.

L. Allegation of retaliation was made for seeking accommodations (see the blog entry mentioned above).

M. There are allegations that the University failed to put in preventive systems to prevent disability discrimination and retaliation for pursuing rights under the disability discrimination statutes.

N. The coach claims that the University psychologists disclosed information without his consent.

Under the ADA, information about a person’s disability is confidential and needs to be in a place separate and apart from the personnel file. This creates the question of just where will you find the disability related information regarding the coach. On the other hand, the University might argue that they have a perfect right to that information since the coach was seeing a University psychologist. It a similar argument to what the University of Oregon argued when it wanted the information of counseling sessions by a student who had been sexually assaulted and saw a University counselor and then proceeded to sue the University for not doing anything about the assault. Considering what the coach was getting paid, it is interesting that the coach did not use his own medical professionals rather than the University’s.

O. The marketing contract was never lawfully terminated.

P. The coach is being represented by a California firm and by a Dallas Texas firm.

5. You may ask why didn’t the University of Southern California allow the coach to go into the rehabilitation program and then terminate him because he was a current user of alcohol per this blog entry? The answer to that question is that an argument can be made, as Robin makes in her blog entry, that the current user exception does not apply to alcoholism. That indeed may be the case. On the other hand, an argument can be made that the current user exception does apply to alcoholism because while it is absolutely true that 42 U.S.C. § 12114(a),(b) specifically talks about drugs and there is no mention of alcoholism or alcohol at all in those provisions, 42 U.S.C. § § 12114(c),(e), quite explicitly mention alcohol. That leads to the argument that the current user exception, notwithstanding language apparently to the contrary, was meant to apply to alcohol as well. Otherwise why is alcohol being mentioned throughout 42 U.S.C. § § 12114(c),(e).

In addition to the above, what might the defendant be thinking? Two excellent blog posts on this very subject can be found here (Jon Hyman) and here (Robin Shea).

Next week, I plan to post the top 10 most popular blog entries of the year. After that, I just might take a couple of weeks off. It is the Christmas break after all:-)

In a previous blog entry, I discussed the case of Holmes v. Godinez. In that decision, which involved a class action brought on behalf of deaf inmates, the U.S. District Court for the Eastern District of Illinois said:

While it is true that typical ADA claims regarding employment must be brought under title I of the ADA and not title II of the ADA, prison job programs do not constitute employment under title I of the ADA because such a person is an inmate of the prison and not an employee or job applicant. As such, the Illinois Department of Corrections job assignment program constitutes services, programs or activities under title II of the ADA.

One wonders whether the above statement has now been overruled by the Seventh Circuit in Neisler v. Tuckwell decided November 25, 2015. As is typical of my blog entries I have divided the blog entry into categories: facts; issue; holdings; court’s reasoning (title II); court’s reasoning (title I); court’s reasoning (sovereign immunity); court’s reasoning (title III); did the court get it right or is Holmes v. Godinez correct; and takeaways. The reader is free to concentrate on any or all of the sections of the blog entry.

I
Facts

The plaintiff worked as a stockman in food service during his incarceration. The Wisconsin Department of Corrections does not permit prisoners to hold the same position for more than two years. Under that policy, the plaintiff’s job as a stockman was scheduled to end in November 2012. In March of that year, an improperly loaded cart overturned on the plaintiff as he was unloading an elevator. The falling cart broke his prosthetic leg and left a 1 inch cut where the prosthesis had been attached. After the accident, the plaintiff managed for a time to continue working using a temporary prosthesis. However, four months later he was in too much pain to work and medical staff accordingly put him on “sick cell,” a designation that prohibits an inmate from working because of an illness. While on that status, the plaintiff continued to receive the same hourly wage of $.42 per hour. Three months after that, the plaintiff was fired by the food service administrator at the correctional institution citing medical reasons for his action. That firing caused the plaintiff to be removed from sick cell status and to lose his wage supplement. On the same day as his firing, the plaintiff filed a grievance asserting that he had been penalized for being unable to perform his job duties because of a work-related accident and asked to be paid until his prosthesis to be repaired or when he could begin another job. The inmate complaint examiner recommended denying the plaintiff’s grievance and that recommendation was adopted by the warden. Plaintiff’s administrative appeal was unsuccessful. In January 2013, the plaintiff began a new job. Later that month he received $76.96 in back pay covering the seven week gap between the cessation of his wage supplement and the time when his position of the stockman had been scheduled to end. Unsatisfied by that adjustment, the plaintiff sued seeking workers compensation and alleging that he is been fired because of a disability in violation of title II of the ADA. The suit asked for monetary damages. Ultimately, the District Court allowed the claim to go forward but wound up granting summary judgment against the plaintiff on the ground that the plaintiff was fired because he was too sick to work and not because of any disability. The plaintiff appealed.

II
Issues

1. Is the plaintiff’s claim of discrimination in prison employment subject to title II of the ADA?

2. Is the plaintiff’s claim of discrimination in prison employment subject to title I of the ADA?

3. Is sovereign immunity applicable and therefore prevents the plaintiff’s claim, assuming he even has one?

4. Is the plaintiff’s claim of discrimination in prison employment subject to title III of the ADA?

III
Holdings:

1. No

2. No

3. Yes

4. No

IV
Court’s Reasoning (Title II)

1. Title II provides that public entities may not exclude a qualified individual with a disability from participating in or receiving the benefits of services, program, or activities or otherwise subjecting that person to discrimination. It does not apply to claims of employment discrimination. For such claims, title I of the ADA is the exclusive remedy under the ADA.

2. A prison job is not the same thing as a vocational program because vocational programs are schools in which inmates are instructed in trades and domestic science. On the other hand, prison employment entails work necessary to be done in the regular business thereof and for which prisoners may receive pecuniary earnings and rewards.

V
Court’s Reasoning (Title I)

1. It is questionable whether a prisoner working at a prison job qualifies as an employee within the meaning of title I or for that matter within the meaning of the Rehabilitation Act.

VI
Court’s Reasoning (Sovereign Immunity)

1. Since this suit involves a claim for damages, the plaintiff runs into the 11th amendment. No claims were made that the defendants waived their sovereign immunity.

VII
Court’s Reasoning (Title III)

1. Title III of the ADA applies to discrimination by places of public accommodation and has nothing to do with employment discrimination.

VIII
Did the Court Get It Right or is Holmes v. Godinez Correct?

The answer to that question all comes down to how Pennsylvania Department of Corrections v. Yeskey is analyzed. In that case, a unanimous Supreme Court in an opinion written by Justice Scalia held that the ADA applied to prisons. They specifically saved for another day whether sovereign immunity applied to prisons. Later, in U.S. v. Georgia, the Supreme Court held that the sovereign immunity of prisons was waived if their actions rose to a constitutional violation. In helping to figure out whether Neisler or Holmes is correct, the following from the Supreme Court opinion in Yeskey is instructive:

1. The statutory language of the ADA unmistakably includes state prisons and prisoners within its coverage.

2. In particular, state prisons fall squarely within the statutory definition of “public entity,” which includes, “any department, agency, special-purpose district, or other instrumentality of the State or States or local government.”

3. Modern prisons provide inmates with many recreational “activities,” “medical services,” and educational and vocational “programs,” all of which at least theoretically benefit the prisoners (and any of which disabled prisoners could be excluded from participation in).

Clearly, it is this particular sentence that the Seventh Circuit is relying on with respect to whether Yeskey applies to employment. However, an argument exists that it is very important not to read this particular sentence in a vacuum because the prior sentence states:

“petitioners contend that the phrase “benefits of the services, program, or activities of a public entity,” § 12132, creates an ambiguity, because state prisons do not provide prisoners with “benefits” of “programs, services, or activities” as those terms are ordinarily understood. We disagree.” Reading this sentence in context with the following sentence suggests strongly that the Supreme Court was not being exclusive in this list when it listed the type of activities in prisons being subject to title II of the ADA. Further, the cases it cites to strongly suggest that it is referring to prisons broadly in terms of programs offered to rehabilitate offenders, of which a prison job would be one of them.

4. Eligibility and participation as those terms are contained in 42 U.S.C. § 12131(2) do not require a voluntariness component in the plain meaning of those terms for the dictionary does not suggest that any voluntary component need be present.

5. The findings listed in 42 U.S.C. § 12101 mention a reference to discrimination on the basis of disability with respect institutionalization, which can be thought to include penal institutions.

6. The fact that the statute can be applied in situations not expressly anticipated by Congress did not demonstrate ambiguity, rather it demonstrates breadth.

IX
Takeaways

1. If Neisler stands, prisoners are without any remedies with respect to discrimination based upon disability in their prison jobs.

2. If title I of the ADA is clearly the applicable title with respect to prisoners being discriminated against on the basis of disability in their prison jobs, the EEOC workload just became enormous. Hard to believe that Congress could have intended that and certainly not something the EEOC wants.

3. Why wouldn’t an inmate be an employee? Clearly, the prison controls when, where, and how to do the job (the traditional markers of an employment relationship). I suppose you could argue that prison employment is not voluntary, but the voluntary concept with respect to ADA applicability was specifically rejected by the United States Supreme Court in Yeskey. Also, I could see the argument that the inmate is really participating in the program rather than in an employment relationship. However, if that is the case, then § 504 of the Rehabilitation Act and title II of the ADA would be applicable and not title I. Either way, the prison inmate would have a remedy.

4. The reference to sovereign immunity not being waived is the case for Wisconsin, but the practitioner needs to check each state when it comes to whether there has been a waiver. For example, Illinois has waived sovereign immunity with respect to housing discrimination and with respect to employment when it comes to disability discrimination. Also, get arounds for sovereign immunity include not suing for damages, but rather just for injunctive relief as well as suing under the Rehabilitation Act and arguing that the receipt of federal funds waived sovereign immunity. Keep in mind, that Neisler relies on a case saying that inmates are not employees under the Rehabilitation Act. On the other hand, courts are split on whether § 504 applies to employment. See here. Finally, keep in mind that courts are split on whether the receipt of federal funds waives sovereign immunity under the Rehabilitation Act.

5. One wonders if this decision will stand up. If I was on the plaintiff’s side, I would consider a rehearing en banc on the grounds that the panel got Yeskey wrong. While there is most certainly a circuit court split on whether Title II applies to employment, an argument exists that prison jobs are part of a larger program and even if they would not be considered an employee per the ADA, they would be considered a program under title II of the ADA. Therefore, if the rehearing en banc was not successful, this may be the unusual situation where I might tell an ADA plaintiff to take it all the way to the Supreme Court.

Hope everyone had a great Thanksgiving! This post is a momentous one so to speak. It is my 200th blog entry (about four years). There is absolutely no way I could have done this without the loyal readers of this blog. Thank you so much!!!!!!! As much as I love to write, writing a blog isn’t always easy. It is the readers of this blog have made it worthwhile and keep me doing it week after week (of course, the ancillary benefit of clients generated doesn’t hurt either:-)

The big newspaper in Atlanta Georgia is the Atlanta Journal-Constitution. On Sundays, they have a section called AJC Jobs. This Sunday, their piece was called, “physical aspects of jobs pose barriers.” The subtitle was, “disabled who want to work may need accommodations.” The article was by a Diane Stafford of the Kansas City Star. It was an interesting article. Here is what I want to focus on. In the article, she says that the following is a real example of the required duties for an accounting job:

“While performing the duties of this job, the employee is regularly required to walk, talk, see and hear. General level of physical activity would be defined as sedentary. The employee is occasionally required to stand and frequently required to sit; use hands to finger, handle, or feel; reach with hands and arms. Some movements of the hands, arms and wrists may involve repetitive motion. Specific vision abilities required by this include close vision, distance vision, color vision, depth perception and ability to adjust focus.”

My thoughts on this job description are as follows:

1. This is an accounting job!

2. This is an accounting job! (I think I said that:-)

3. The employer is confusing major life activities with essential functions of the job. As far back as the first edition of my book, I talked about how this is not something you want to do. What are the essential functions of accounting? Being able to process information? Being able to communicate information? Understanding accounting principles? Utilizing certain software associated with accounting? Interacting with others? Etc. I fail to understand how any of these “essential functions,” listed in the article have anything to do with carrying out the job’s fundamental purposes. It shouldn’t matter the means (in this case, the major life activities utilized by that person), that the person accomplishes the job’s essential purposes, just that he or she gets it accomplished.

4. The job description as written clearly screens out persons with disabilities and is in probable violation of 42 U.S.C. § 12112(b)(6). Hope this particular company has budgeted for litigation.

5. Readers of this blog entry may be interested in this blog of mine as well, which discusses how not to defend essential functions of the job.

6. I don’t see how these requirements could be job-related or consistent with business necessity either (what the employer would have to show in order to be allowed to screen out persons with disabilities under 42 U.S.C. § 12112(b)(6)). See this blog entry for example.

7. When reviewing job descriptions, make sure they are accurate, reflect the realities on the ground, and do not screen out persons with disabilities. If you are going to use major life activities as essential job functions, make sure you absolutely have no choice before doing that. See if you can’t rephrase it some way. If you do have no choice, make sure you are able to show that you have to do that because it was job-related and consistent with business necessity.

8. While we are on the subject of confusing essential functions with other things, another thing I have seen over the years, is confusing essential functions of the job with tasks. Don’t do that either. For example, data entry is an essential function but ten key is not.

Before turning to this week’s blog entry, which I will keep very short (after all, it is Thanksgiving week and who wants to read a typical blog entry this week), a couple of housekeeping matters. First, happy Thanksgiving to everyone! Second, I received notice yesterday that this blog has made the ABA top 100 legal blawgs for a second year in a row!!! I want to thank all the readers of the blog, those who nominated me (whether you let me know that or not), and those who just read the blog, for your support. Thank you!!!!!!!!!!!!!!!!!!!!!!!!!!!!!. It is an honor to be selected for the second year in a row. The blog 100 has lots of great blogs, including some (Robin, Jon (Hall of Fame!), and Eric), that are in my blog roll. You can check out the blog 100 here.

Turning to the blog entry for the week, I am on a listserv run by the ABA Commission on Disability Rights and the below was recently posted to that listserv:

There are several tasks a federal contractor must complete to stay in line with Section 503 of the Rehabilitation Act, and while the U.S. Department of Labor considered 2015 a transition period for companies to get up to speed, Patricia Shiu, Director of the Office of Federal Contract Compliance Programs, said last month that “the waiting period is over.” During the Corporate Forum in Washington, D.C., Shiu said it is unlikely federal contractors will be sanctioned for not meeting the 7 percent mark because that goal is aspirational. “This is a process and not a switch,” Shiu said when she delivered her remarks. “Failure to achieve the 7 percent [goal] is not a violation but the failure to try probably is.”

So, the question is, is this comment enough to save the regulations? By way of background, previously, I talked about the OFCCP regulations and whether the Department of Labor’s Office of Federal Contracting Compliance Programs shot itself in the foot with respect to the likelihood of this OFCCP regulation being upheld if there were to be a constitutional challenge. In another blog entry, I discussed a municipality using the defense that title II regulations violated the equal protection laws, which can be found here.

So, will this comment be enough to save the regulation . On the one hand, she does say that the 7% goal is aspirational. That would seem to suggest that a company would not have to do much. She also says that it would be unlikely for OFCCP to go after a federal contractor for not meeting the goal. On the other hand, she does say that failure to try is probably something subject to being enforced as a violation. That doesn’t answer the question though. That is, what does failure to try mean? The regulations are quite specific and rather extensive. How close does a corporation need to come to the regulations in order to be deemed as trying? If the answer is very close, then my opinion, previously expressed in the above blog entries, that the regulations will not stand up to a constitutional challenge stands (i.e the regulations are out of proportion to the harm being meant to be redressed since persons with disabilities are in the rational basis class for purposes of employment per this case). If on the other hand, de minimis compliance is the only thing required, then there is a greater likelihood, though I am not sure how much greater (the Supreme Court has not been favorable to affirmative-action as of late), that a constitutional challenge to the affirmative-action regulation for persons with disabilities will be fought off.

Have a great Thanksgiving!!!!!! Also, thanks again for giving me the honor and privilege of being selected for the ABA 100 2015 Legal Blawg, and congratulations to all the other great blogs selected as well. I will be back with a more typical blog entry next week; I have several ideas in mind.

This is actually my second shot at a blog entry for this week. I actually spent a little bit of time this morning writing up a blog on the proposed regulations implementing the nondiscrimination provision of the genetic information nondiscrimination act. However, as I was going through a draft for such a blog entry, I realized that it just wasn’t working for me. Also, I have the high bar that my fellow bloggers-Jonathan Hyman, Robin Shea, and Eric Meyer- had all blogged on the issue (each of those blogs can be found in my blog roll), and they had done it very well. So, that left me with having to pursue something else.

Today’s blog entry explores the question of just when does the statute of limitations begin to run in an ADA employment claim. Today’s case is EEOC v. Orion Energy Systems, 2015 U.S. Dist. LEXIS 153216 (E.D. Wisc. November 12, 2015). As is usual, my blog entry is divided into categories: facts; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories. Since this blog entry is so short, I imagine the reader will want to read all of it, but nevertheless, the categories are there for your use.

I
Facts

The facts are pretty straightforward. Orion Energy terminated Wendy Schobert’s employment on May 18, 2009. She claimed that the true reason she was fired was because she refused to participate in a wellness program administered by Orion. She filed an administrative complaint with the EEOC on March 10, 2010, which was 296 days (if an equivalent state agency is present, a person has 300 days to file a claim with the appropriate administrative agency), after she was terminated. The EEOC then commenced an action on behalf of her alleging that Orion administered involuntary medical examinations and disability related inquiries as part of the wellness program in violation of the ADA. The EEOC further alleged that Orion retaliated against Ms. Schobert by firing her for objecting to the program and intimidated her for exercising her right not to participate in the program in violation of the ADA. On September 4 of 2015, Orion filed a motion to amend its answer and affirmative defenses so that it could add a statute of limitations defense. In particular, Ms. Schobert admitted in a deposition that she knew she was going to be fired one week before the May 18, 2009, meeting. That week difference would be the difference between the claim falling within the statute of limitations and the claim falling outside of the statute of limitations. More particularly, in a deposition she admitted that she had overheard a conversation between the manager and the director of human resources where she was able to determine that she was going to be terminated due to the context of that conversation.

II
Court’s Reasoning

In denying the defense motion to add the statute of limitations claim, the court reasoned as follows:

1. When it comes to the statute of limitations question, it is the date of the discriminatory act that is controlling and not necessarily the date of termination. Oftentimes, it doesn’t matter, but in some contexts it does. For example, the court mentioned tenure decisions where the act complained of is the denial of tenure and the actual effective termination date is actually quite a bit into the future.

2. In the Seventh Circuit, the test used is the unequivocal notice of termination test. That particular test has two prongs: 1) there must be a final, ultimate, not tentative decision to terminate the employee; and 2) the employer must give the employee unequivocal notice of its final termination decision. With respect to prong 2 of the test, the court explained that the unequivocal element of the test is based on the notion that the mere threat to take some job action against an employee is not sufficient to trigger the statute of limitations because to hold otherwise, would force plaintiff’s into the situation where they have to file a charge at every hint of termination in order to preserve their claims. That, in turn, would make the life of the EEOC impossible. The unequivocal test also requires that the employer actually give notice to the employee.

3. While the facts are such that it was clear that the decision to be terminated was final by the time she overheard the conversation, she was not given unequivocal notice of the termination at the time she heard the conversation. In fact, by definition, she could not have been as she had heard the conversation surreptitiously.

4. Orion knew of the basis for the statute of limitations defense way before the deposition occurred since the VP who did the firing was told by Ms. Schobert that she had overheard the conversation prior to when she was actually terminated. Therefore, Orion was not diligent by waiting until after the deposition to assert the defense. Further, since the unequivocal notice test wasn’t met, it would be futile to allow the motion to amend because the affirmative defense would be rejected in any event.

III
Takeaways:

1. In most situations, adverse action and the termination are going to wind up being the same when it is a job loss that is being contested. However, as this case illustrates, that isn’t always the case. In the Seventh Circuit at least, the question comes down to whether the employee had unequivocal notice of their termination. It is at that point in time, that the statute of limitations will begin to run. Keep in mind, That the various Circuits are free to go their own way unless United States Supreme Court says otherwise. Therefore, if you are not in the Seventh Circuit, you will want to do some research to see if your jurisdiction uses the unequivocal notice test discussed in this blog entry.

2. For the statute to begin to run, unequivocal notice carries with it an assumption that the employer is intentionally providing notice of the termination.

3. I suppose the defense attorneys are fortunate with the court finding that the statute of limitations defense even if diligent would have been rejected due to the lack of unequivocal notice. Otherwise, the defense firm could be facing an even bigger problem. If this shows anything, it shows the importance of full communications between the company and the litigating attorneys and the need for thorough investigation (which may or may not have been done), with respect to all the facts. Not sure I understand why it was only much later that the litigating attorneys seem to be aware of the fact that Ms. Schobert had heard of the termination a week prior to actually being terminated when the person doing the firing was told as much at the time of firing. In any event, it is just a theoretical issue, since the court said the facts of this case were such that the unequivocal termination test could simply not be met.

I know as a blogger, readers come to expect a regular post every week and on a certain day. In my case, everyone knows that I put up a blog on Mondays, sometime Tuesdays, as is the case today. Rarely, it is later in the week. Obviously, I missed last week. I hadn’t intended it that way. However, my Internet connection crashed and that took time to fix, and then I spent considerable time upgrading my computer software, which also took a lot longer than I thought. Then of, course, there were clients and a presentation to attend to. Next week I will be making a presentation through Avant Resources on hot issues and the ADA. In particular, I will be focusing on accommodating pregnancy restrictions, the rules for when you want to be thinking about reassigning a person with a disability to another job, and various legal issues that come up when buying inaccessible technology. When I get the information, I will post the information on that as a comment to this blog entry.

Previously, I have blogged about the defenses that will come up if you sue the courts for disability discrimination. I have also blogged about that while it can be done, suing a court system for disability discrimination is complicated (a blog entry that is consistently one of the top ten visited every month). Today’s case should be read as a shot across the bow to judges and court systems with respect to whether they should be accommodating persons with disabilities and how much resistance they should be putting up to persons with disabilities as they go through that process. You would be absolutely amazed how often I receive phone calls from people talking about how the court system is not accommodating their disability their seeming lack of interest in doing so.

Today’s case is Reed v. State of Illinois, a decision written by Judge Posner with Judge Williams in agreement and Judge Sykes dissenting from the Seventh Circuit on October 30 of 2015. As is my usual method of operation, I have divided the blog entry into categories: facts; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.

I
Facts:

The plaintiff has tardive dyskinesia. That condition is a disturbing potential side effect of antipsychotic medications. It is a movement disorder occurring over months, years, and even decades. It is primarily characterized by random movements of different muscles within the body and can occur in the tongue, lips or jaw, or consist of purposeless movements of arms, legs, fingers, and toes. It can be quite embarrassing and disabling as well. In this particular case, the plaintiff’s involuntary movements include tongue thrusting, pursing of the lips, choking, and side to side chewing of the jaw. She also becomes mute, screams or makes nonverbal sounds, especially under stress. Oftentimes, she cannot use a telephone without assistive technology. In addition to this condition, she also has posttraumatic stress disorder and bipolar disorder, both of which can cause or severe anxiety.

Shortly after she was diagnosed with tardive dyskinesia, a personal injury suit she filed in the Circuit Court of Cook County Illinois went to trial. She did not have a lawyer. Before the trial began, she asked the court’s disability coordinator for accommodations of her medical problems, and in response to her request, she was allowed to have a friend and family member take notes for her, was given a podium to stand at, and was allowed to take occasional recesses. However, she was denied other help she had requested. In particular: a microphone to project her voice so that it would be audible even when her ability to vocalize was impaired by her condition; an interpreter so that she could articulate her thoughts when she could not express them clearly herself; and a jury instruction explaining her disorder so that the jurors did not think she was just acting up. Since she was not granted those accommodations, during the course of the trial, she had to resort to hand signals, grunts, and other nonverbal attempts at communication that were difficult to understand. As if that wasn’t bad enough, during the course of the trial, she was hectored by the judge, who probably did not understand the gravity of her disorder. The judge told the jury that the plaintiff had a speech impediment but that made it sound as if she stammers or has a lisp and therefore, understated the gravity of her disability. The judge also knew or should’ve known that it was her condition rather than willful defiance of courtroom proprieties, that was responsible for the long, involuntary pauses and or statements. Even so, he kept telling her to hurry up and move onto the next question and to wrap up her examination of witnesses. He permitted her only 10 minutes to examine a particular witness. At one point, during the plaintiff’s cross-examination by the defendant’s lawyer the judge said, “I have been waiting 10 seconds for you to answer and am moving onto the next thing.” The judge also at times and in front of the jury yelled at her, glared at her, smacked his bench, leaned forward, and otherwise expressed annoyance with her. When a piece of gum that she was chewing to control her involuntary movements fell out of her mouth, an accident for which the judge scolded her, she then went into a convulsion.

When the jury returned a verdict for the defendant, the plaintiff filed a post-trial motion, asking for a new trial on the grounds that she was disabled within the meaning of the ADA but yet had been denied reasonable accommodations for her disability. The judge denied the motion in a way suggestive of the failure to understand the plaintiff’s problem in communicating. While he did say he was denying oral argument on a post-trial motion because the plaintiff had developed a speech impediment preventing her from communicating in any vocal fashion, he had also said in reference to the trial held a few months earlier that the plaintiff’s readily observable speech impediment concern was accommodated in that she was given a full and fair and adequate opportunity to present her case. Judge Posner said this made no sense because if she was incapable of communicating in any vocal fashion with regards to her post-trial motion, that would mean she must have needed a microphone and an interpreter at the trial to help her overcome her obvious observable speech impediment. In denying the post-trial motion, the trial judge also said that there were occasions when her pauses were so lengthy that he concluded she was being indecisive rather than laboring under the impediment and was asked to move on as would any other individual. However, to the Seventh Circuit, that made no sense because there is no contradiction between being indecisive and suffering from tardive dyskinesia. Furthermore, she was not just like any other individual since the plaintiff could not be expected to be consistently responsive to a command to move on because her pauses as a result of her condition were involuntary. Instead, the judge should have invited a medical expert or at least the court’s disability coordinator to advise him on the effects of the plaintiff’s condition on her ability to litigate her case.

The plaintiff appealed the judge’s decision to the appellate court, which affirmed the jury’s verdict in a nonprecedential order. Shortly before the appellate court handed down its decision, the plaintiff filed a suit against the Cook County Circuit Court alleging that they violated title II of the ADA and § 504 of the Rehabilitation Act by failing to accommodate her tardive dyskinesia. She also cited the effective communication regulations as well.

II
Court’s Reasoning

The defense argued both in the lower court and in the Seventh Circuit that the plaintiff was barred from bringing the ADA claims on the grounds of collateral estoppel, otherwise known as issue preclusion. However, the court was having none of it because even where all the elements of collateral estoppel are satisfied, under Illinois law, it does not apply unless it is clear that no unfairness result to the party being estopped. In particular found unfairness all over the place to wit:

1. A desire not to deprive a litigant of an adequate day in court is a proper consideration in deciding whether to invoke collateral estoppel.

2. A reason a litigant may not have had an adequate day in court is that he or she was laboring under a mental or physical disability that impeded effective litigation.

3. In her personal injury suit, she was in no position, being pro se and with a serious disability, to establish the applicability to her case of the federal laws against disability discrimination.

4. She knew she needed help to litigate her personal injury suit, especially having no lawyer. Even so, many of her requests were ignored or denied by the judge, who was frequently impatient with her and even rude to her. Further, his conclusion that her disability had been adequately accommodated was untenable.

5. There was nothing fair in being given inadequate accommodations or in his ruling that the accommodation provided for her at trial had been adequate.

6. She was denied a full and impartial opportunity to litigate the accommodations issue when the judge refused to grant her oral argument, on account of her disability, and she had no lawyer to argue in her place.

7. Quoting to Tennessee v. Lane the court said, “The unequal treatment of disabled persons in the administration of judicial services has a long history, and has persisted despite several legislative efforts to remedy the problem of disability discrimination.”

8. The trial judge never considered whether the plaintiff had been discriminated against, rather he only considered the adequacy of the accommodations made for her disability at the state court trial. That proceeding limited the plaintiff to a truncated version of her disability claim. That is, a version that ignored her right of an opportunity equal to that of a person without a disability to litigate her claim. On the other hand, unlike the personal injury suit, the federal litigation contains the full range of issues concerning the scope an application of disability nondiscrimination laws to her situation.

9. There was no transcript of the state-court trial because there was neither a court reporter nor recording device in the courtroom. That means a complete absence of the ability to verify the state judge’s assertions that the limited accommodation he gave the plaintiff were adequate to enable her to litigate effectively. In particular, there was no way to confirm that she was always allowed wide latitude in the presentation of her case and that he had overruled many procedural objections by the defense in order to accommodate her disability.

10. For a court to deny accommodations without which a disabled plaintiff has no chance of prevailing in her trial, and then for another court (the federal District Court), on the basis of that rejection, to refuse to provide a remedy for the discrimination she experienced in the first trial, is to deny a plaintiff full and fair opportunity to vindicate her claims.

Finally, the Seventh Circuit remanded the issue of whether the state appellate court and at Chief Judge were the only proper defendants since there was no opportunity to consider that argument.

III
Takeaways

1. As I mentioned before, I receive calls all the time from people telling me of discrimination they face in the court system. It seems to be a particular problem in family law courts, but it isn’t exclusive to those kinds of courts as this case makes clear.

2. Literally speaking, this case is not a disability discrimination case at all, but rather a collateral estoppel case. However, the reasoning of this case is such, that it should give much ammunition to plaintiffs denied reasonable accommodation by court systems. It also opens up court systems to allegations of constitutional violations (equal protection and due process), as well, especially with its reference to the full and adequate opportunity to litigate when compared to those without disabilities and its reference to the long history of discrimination faced by persons with disabilities in the court system.

3. This case also suggest a couple of other ways to deal with discrimination in the courts. First, if after going through the disability coordinator and the judge, the accommodations are not forthcoming and a trial has to be done without accommodations or inadequate accommodations, requesting a new trial would be a good approach. The other idea is that if after going through the disability coordinator and the judge, the accommodations are not forthcoming, consider filing a motion for declaratory relief asking the court to declare what must be done to comply with the ADA. The advantage of the declaratory relief motion, is that it gives the judge a last opportunity to fix the problem before trial occurs and it also gets you around judicial immunity should you then file a § 1983 claim.

Previously, I have written on whether class actions are possible with respect to ADA claims considering how ADA claims are inherently focused on individual analysis. From reading the case law on a regular basis, I am seeing class actions being allowed with respect to Olmstead claims. Outside of that, it tends to be hit or miss. Today’s case is a case where a class action was allowed. The case is Holmes v. Godinez decided on my birthday, October 8, 2015 , and it involves a claim that the Illinois prison system systematically violated the rights of deaf and hard of hearing prison inmates. As is my usual practice, I have divided the blog entry into categories: facts and definition of the class; court’s reasoning on why the class as refined by the court works under federal Rules of Civil Procedure 23(a),(b); the motion for summary judgment; funny stuff; and takeaways. The reader is free to focus on any or all of the sections.

I
Facts and Definition of the Class

It is a tremendously long decision. I printed out 51 pages with a page on each half of the page (the way we used to see it in reporters). That said, the facts can be summarized pretty easily.

Plaintiffs claim that the Illinois Department of Corrections statewide policies and practices regarding accommodation for deaf and hard of hearing offenders violated the ADA, the Rehabilitation Act, the law governing religious liberty of those in prisons, and the first, eighth, and 14th amendments to the U.S. Constitution. More specifically, the complaint alleged that the Illinois Department of Corrections systematically: failed to provide class members with effective communication and adequate access to its programs and services; failed to provide class members with safe and effective visual notification system to invite them of emergencies; failed to establish sufficient policies to allow class members to participate in religious services consistent with the act allowing for religious liberties in prisons; and failed to have policies and practices consistent with the eighth and 14th amendment to the U.S. Constitution. After analyzing the extensive facts revealed through discovery, the court came up with a class defined as follows:

(i) all individuals incarcerated by IDOC currently and in the future; (ii) who IDOC classified as deaf or hard of hearing or who notified IDOC in writing during the Class Period, either personally or through a family member, that he or she was deaf or hard of hearing; and (iii) who require accommodations, including interpreters or other auxiliary aids or services, to communicate effectively and/or to access programs or services available to individuals incarcerated by IDOC during the Class Period.

Finally, the plaintiffs were not seeking damages, but rather asking for a declaration from the court that the Department of Corrections policies and procedures regarding accommodations for deaf and hard of hearing inmates violated federal law, and any other declaratory and injunctive relief appropriate to remedy past violations and prevent future violations.

II
Court’s Reasoning on Why the Class as Refined by the Court Works under Federal Rules Of Civil Procedure 23.

1. Class Definition

A. The proposed class of the plaintiffs was all current and future deaf or hard of hearing inmates in the custody of the Illinois Department of Corrections. The court said that was too broad because there was no objective means to ascertain identified deaf or hard of hearing inmates. If documented association with deafness or hearing loss was set as a precondition to class membership, then there was objective and administratively feasible means of ascertaining the class.

B. The Illinois Department of Corrections argued that the revised definition required the court to determine whether potential class members were actually qualified to participate in the programs and services they claim the Department of Corrections denied them access to. However, the court said that argument was for merit determinations and was not necessary to resolve at the class certification stage. Furthermore, a class definition is not overbroad just because it includes some members whom defendant may later prove suffered no injury.

2. Numerosity

A. To satisfy this requirement, plaintiff must prove the class is so large that joinder is impractical. While there is no objective threshold for numerosity, a class of 40 is typically enough to satisfy the requirement. During discovery, defendant identified 56 inmates who either self identify as hard of hearing or deaf or who the Illinois Department of Correction believed were hearing impaired. The plaintiffs claimed they found at least 30 additional class members citing Illinois Department of Corrections communication plans. Accordingly, the class was numerous enough to satisfy this requirement.

3. Commonality

A. The complaint of the plaintiffs principally focuses on the Illinois Department of Corrections system wide policies, including its written ADA Directive. As such, even if determining appropriate accommodations for particular hard of hearing or deaf inmate required individualized consideration, common issues tied the plaintiff claim together if the Illinois Department of Corrections high-level policies and practices did not conform to the law.

B. Plaintiffs met their burden to show significant proof of the system wide policies and practices alleged including: the Illinois Department of Correction has a written ADA Directive, which purpose is to provide instruction to staff for providing accommodations to offenders with disabilities. The defendant conceded that this directive applied across all prisons in Illinois to all offenders with hearing issues. Some of the plaintiffs claims directly challenged whether the policy sufficiently protected the rights of class members under federal law. For example, the complaint allege that the directive had to mandate more in-depth training and experience for ADA coordinators and other Illinois Department of Corrections staff. Therefore, whether the ADA Directive satisfied the Illinois Department of corrections obligations under the ADA was a common question likely to drive the resolution of litigation.

C. Plaintiffs presented expert testimony and anecdotal evidence supporting their allegations that the great majority of Illinois Department of Corrections failures in ensuring effective communication for deaf and hard of hearing inmates was the result of a failure to implement and ensure consistent application and adequate institutional policies concerning those inmates. Expert testimony revealed that the ADA Directive was not only insufficient to ensure compliance with the ADA, but even those requirements were being systematically ignored or misunderstood by Illinois Department of Corrections staff. The expert concluded that the Department of Corrections had a culture of accepting noncompliance with the ADA with respect to providing deaf and hard of hearing inmates with effective communication. The allegations (which the court said it subjected to a rigorous review of all the evidence), regarding the Illinois Department of Corrections system wide failures was the glue that ties all their claims together.

4. Typicality

A. The claims of the named plaintiffs and the class members as defined by the court all arise from the same conduct of the Illinois Department of Corrections. That is, its policies and practices regarding accommodation for deaf and hard of hearing inmates. In particular, the cases of the class members all involve the same policies and standard practices of the Illinois Department of Corrections and they also contain the same legal theories (violation of constitutional and statutory rights by not providing inmates with effective communication or equal access to programs and services). For example, one plaintiff claimed that the failure to provide meaningful communication with medical staff after he was injured violated the eighth amendment by exposing him to a substantial risk of harm in the past, present, and future.

B. The litigation focuses on whether the Illinois Department of Correction policies and procedures are illegal as applied to all hearing impaired inmates and individual violations are to be considered as evidence only in the context of whether the broader policies and procedures of the Department of Corrections were illegal.

C. The vast majority of services and programs complained of by the plaintiffs do not appear to require any special qualification in order to participate in those programs and activities. For example, all inmates have the right to participate in the grievance process, have the right to be notified of an emergency situation, and have the right to receive proper medical treatment. While there may be a handful of cases where an inmate is currently ineligible for a program, typicality is not defeated because the class member shared the same legal claims based upon the same conduct.

5. Adequacy

A. Adequacy contains two parts: 1) adequacy of the named plaintiffs counsel; and 2) the adequacy of the named plaintiffs themselves to be representatives of the class. With respect to the legal advocacy piece, there was no dispute of adequacy there (in addition to individual plaintiffs, advocates representing the inmates included Winston and Strawn (a huge Chicago law firm), Uptown People’s Law Center, Equip for Equality (the protection and advocacy group for the state of Illinois), and the National Association of the Deaf). The court also found that the named plaintiffs could adequately represent the class because the named plaintiffs had the same interest in achieving effective communication and appropriate accommodation in Illinois Department of Corrections facilities. They also shared the same injury by being exposed to policies and practices that deprive them of such communication and accommodations. Finally, they have no conflict with prospective class members and they have been active participants in the case.

6. Conduct Generally Applicable to the Class

A. In order to get class certification, plaintiffs have to show that they meet the four requirements of rule 23a mentioned above as well as one of the requirements under rule 23b. In this case, the plaintiff chose to focus on whether the Department of Corrections had acted or refused to act on grounds generally applicable to the class (a particular provision is appropriate only when the class seeks injunctive or declaratory relief and requested damages, if any, are incidental). That is exactly the case here since the evidence revealed considerable disputed facts as to whether the Illinois Department of Corrections has appropriate policies and procedures in place and whether those that do exist are sufficient or even adequate.

III
The Motion for Summary Judgment

1. ADA and Rehabilitation Act Claims

A. Since the plaintiff did not request compensatory punitive damages, it is not necessary to show that the discrimination was intentional.

B. Whether particular accommodations are reasonable, is a highly fact specific question, especially in the prison context, that needs to be determined on a case-by-case basis and therefore, is a question of fact precluding summary judgment.

C. The Illinois Department of Corrections sweeping statement that it provides reasonable accommodations in its programs, activities, and services were simply not supported by the little evidence they brought forth to try and backup their claim.

D. While it is true that typical ADA claims regarding employment must be brought under title I of the ADA and not title II of the ADA, prison job program do not constitute employment under title I of the ADA because such a person is an inmate of the prison and not an employee or job applicant. As such, the Illinois Department of Corrections job assignment program constitute services, programs or activities under title II of the ADA.

2. Religious Liberty of Institutionalized Inmates

A. Plaintiff presented evidence that the Illinois Department of Corrections placed substantial burdens on the religious exercise when they denied hearing accommodations needed for them to effectively participate in religious services. Further, material questions of fact existed as to whether the Illinois Department of Corrections employed a consistent and widespread practice of denying hearing accommodations to offenders for religious purposes.

B. Extensive evidence existed that the Illinois Department of Corrections either denied or ignored specific request for ASL interpreters for religious services and programs, which if proven poses a substantial burden on plaintiffs ability to attend religious services of their choice.

3. ADA and § 1983 Constitutional Claims

A. The Seventh Circuit has not squarely decided whether the ADA or Rehabilitation Act preclude § 1983 claims for violations of those statutes. That said, other circuits as well as district courts within the Seventh Circuit have found that to be the case. While that probably will hold the day in the Seventh Circuit, the plaintiffs in this case alleged constitutional violations and not violations of just the ADA and the Rehabilitation Act.

B. Whether § 1983 suits are precluded by other statutes depends upon whether the statute and the constitutional rights involved vary in significant ways. If so, then § 1983 suits are not precluded.

C. Nothing in the statutory text, the legislative history of the ADA, or the Rehabilitation Act contain clear or explicit congressional intent prohibiting simultaneous constitutional claims.

D. The protections available under the ADA/Rehabilitation Act vary in material respects from the constitutional claims. In particular, proving the equal protection claim means showing that the Illinois Department of Corrections acted with discriminatory intent, which is not something that has to be shown with respect to the ADA/Rehabilitation Act claims since only injunctive and declaratory relief were being sought. Further, proving inadequate medical treatment under the eighth amendment mean showing that the Illinois Department of Corrections was deliberately indifferent to their serious medical needs.

E. The Seventh Circuit has found that both the Age Discrimination in Employment Act and Title VII of the Civil Rights Act did not preclude constitutional remedies and both of those contained very similar standards, elements of proof, and available remedies as to the ADA/Rehabilitation Act.

4. First Amendment Right to Free Speech

A. It is one thing to say that an inmate is not being properly accommodated, but it is another thing to say that the constitutional right to free speech was being denied. The court found that the evidence simply was not there with respect to plaintiffs claims pertaining to the right to free speech.

5. First Amendment Right to Free Exercise of Religion

A. Inmates have a First Amendment right to attend religious services offered to other inmates. The systematic failure to reasonably accommodate deaf and hard of hearing inmates so that they could meaningfully participate in those services would indeed burden that constitutional right.

6. Eighth Amendment Protection from Cruel and Unusual Punishment

A. The court wasn’t buying it because communication barriers described did not render the plaintiff so isolated so as to be deprived of life’s basic necessities. Plaintiffs were still able to communicate. At a minimum they interacted with Illinois Department of Corrections staff and other inmates through gestures, written notes, or reading lips, and many could even speak and understand some English. Further, the plaintiffs were not actually segregated from the general population and were regularly exposed to day-to-day human interactions.

B. The failure to notify plaintiff of daily events like meals, showers, and gym time did not expose the plaintiff to substantial risk of serious harm, which is necessary in order to show an eighth amendment violation.

C. Widespread failure to alert hearing-impaired inmates to emergency situations could very well place the inmates at a substantial risk of serious harm, and evidence existed that such failures occurred. Further, there was a disputed issue at to whether the defendant knew about the risk because the ADA Directive itself required facilities to have emergency evacuation plans for ADA inmates and some facilities do have flashing alerts. In short, the evidence presented regarding emergency notifications could very well support a cruel and unusual punishment violation and therefore, summary judgment was not appropriate on that claim.

D. Certain inmates said that they suffered from serious medical conditions such as diabetes, kidney disease, broken finger, persistent migraines, etc. The failure to provide effective communication according to the plaintiffs led to inappropriate treatment, prolonged pain, and aggravation to their injury or illness. Further, they testified that they requested the use of video relay equipment or ASL interpreters thereby putting the Illinois Department of Corrections on notice as to their concerns. Accordingly, there was sufficient triable issues of fact with respect to whether the Illinois Department of Corrections employed a widespread practice of deliberate indifference to deaf and hard of hearing inmates so as to show deliberate indifference to their serious medical needs.

E. The Seventh Circuit has held that expert testimony is not required to prove an eighth amendment claim alleging inadequate medical treatment.

7. 14th Amendment Right to Equal Protection (Did Court Get It Right?)

A. The court said that the elements for proving an equal protection claim violation were showing that the plaintiffs were treated differently from others who were similarly situated; they were intentionally treated differently because of their membership in the class to which they belonged; and that the discriminatory intent was not rationally related to a legitimate state interest. While it is entirely possible and likely that the Illinois Department of Corrections did not do what they were supposed to do under the law, that is quite a different thing then saying there was no rational relationship. Accordingly, the equal protection claim is dismissed.

Here’s the thing. If the elements of an equal protection claim are indeed what the court says they are, then, of course, the plaintiffs lose. However, it is far from certain that the elements of the equal protection claim with respect to inmates in prison is what the court says it is. That is, we do know that persons with disabilities are in the lowest equal protection class (rational basis), with respect to employment decisions. However, with respect to non-employment matters, it is anybody’s guess as to what equal protection class persons with disabilities, especially inmates, fall in. It would not surprise me at all to see the plaintiffs appeal this particular holding sent the particular equal protection class for persons with disabilities is far from certain in this case.

8. Due Process Claim under the 14th Amendment

A. Hearing-impaired inmates not fluent in English may have a due process right to a qualified interpreter at prison disciplinary hearings. The Illinois Department of Correction processes for determining whether an inmate needs an ASL interpreter is probably not sufficient. In particular, the facts reveal that the adjustment committee makes an impromptu determination as to whether a particular inmate can communicate sufficiently. The chair of that committee never received ADA training specific to this role. Accordingly, a quick and uneducated judgment could very easily lead a hearing officer to improperly conclude that an inmate could adequately communicate at his or her prison hearing when in fact he or she could not. Further, lots of evidence existed that inmates were denied hearing accommodations during disciplinary proceedings both before and after the 2012 ADA Directive was issued from the Illinois Department of Corrections. Accordingly, the motion for summary judgment for violations of due process claims under the 14th amendment was denied.

IV
Funny Stuff

1. At the beginning of the opinion, the court says that they will sometimes refer to both deaf and hard of hearing individuals together as “hearing-impaired,” or “hearing disabled.” This is very odd. My understanding is that persons with hearing loss prefer either hard of hearing or deaf but not hearing-impaired. That makes sense to me because hearing-impaired is a disabling term. Also, I have never heard the term “hearing disabled,” before. For years, the better approach has been to refer to a “person with a disability,” rather than use the term, “disabled.” I am aware that some people are perfectly okay with the term “disabled,” but there are many that are most definitely not okay with that term, including myself.

2. The Illinois Department of Corrections contracts with a Healthcare Services vendor with respect to providing the majority of medical, dental, mental health, pharmaceutical and consultant care at all of its correctional facilities. Their policy on hearing aids at Illinois Department of Correction facilities permits offenders to have only one hearing aid even if a second hearing aid would improve their hearing ability, except in cases of “severe bilateral hearing loss.”

A. As someone who had worn very complex and powerful hearing aids for 46 years now (I got them at nine), I get that hearing aids are very expensive, though their cost has come down over the years in terms of their ability to do different things for the price. That said, if a person has a bilateral hearing loss, hearing with only the use of one aid, providing aids are helpful in the first place (a reason that people who wear hearing aids find them so frustrating is that all hearing aids do is amplify sounds. They do not enhance the ability to comprehend the sounds. Frequently people with hearing loss lose the ability to hear sounds on a volume level as well as on a comprehension level, but that is not always the case and is not the case in my situation), is very disorienting and not very effective. It would be interesting to know whether there is a rational basis for such a policy, assuming rational basis would be the standard.

3. A plaintiff testified that the hearing aid batteries wear out after a period of time and that it can take the Illinois Department of Corrections a week to replace them. A plaintiff testified that the batteries wear out every two months. This makes absolutely no sense to me. Again, as a hearing aid user of several decades, I can tell you that the maximum amount I have gotten out of hearing aid batteries is a week and often less. I don’t know how it is even possible that a single battery could last for two months. With respect to hearing aid batteries and how failure to provide same may be a violation of the law, check out this case, which I discussed in this blog entry.

V

Takeaways:

1. While class actions with respect to ADA claims may be difficult, they are not impossible. This particular case shows that if there is a systematic process of denying people who are hard of hearing or deaf effective communications and the like, it may be possible to have a class action involving identifiable deaf and hard of hearing people.

2. An argument now exists that prison job programs do not constitute employment under title I of the ADA.

3. It wouldn’t surprise me in the least if the plaintiff appealed the dismissal of the equal protection claim under the 14th amendment on the grounds that the lower court may well have erred in deciding that persons with disabilities were in the rational basis class.

4. How a class action shapes up on resolution of the dispute at trial is not the same thing as whether the class should be certified in the first place. This is a big statement because the way class actions work is that if the class is certified, settlement is generally rapidly reached.

5. The court notes that expert testimony is not required with respect to eighth amendment claims. That said, there was a dispute here over whether expert testimony regarding whether the practices of the prisons complied with the ADA was admissible. In this particular case, the plaintiff’s hired an individual with 20 years of experience as the ADA coordinator for the Nebraska Department of Correctional Services. In that role, she had the responsibility for developing and implementing ADA compliant programs and responding to all deaf and hard of hearing inmate request for ADA accommodations in Nebraska’s correctional facilities. Her responsibilities had her going to Nebraska’s facilities where she interviewed prison staff and inmates extensively and trained Nebraska Department of Correctional Services employees on ADA compliance for hearing-impaired offenders. She had first-hand knowledge of administrative operations, programs, services, and activities and became very familiar with the unique struggles hard of hearing and deaf inmates based. She also assisted at least five other state correctional departments in achieving ADA compliance, aided the development of an ADA coordinator certification program, and was a frequent speaker at ADA presentations and conferences. In preparation for the case, she reviewed the depositions and exhibits in this case, inspected two large Illinois Department of Corrections facilities, and held in person meeting with inmates at those prisons. As such, she was more than qualified to offer opinions regarding the Illinois Department of Corrections’s ADA compliance in that she knows of what she speaks and was not offering subjective belief or unsupported speculation. What all this means in plain English is that ADA compliance expert testimony may very well be in play when needed providing it can be shown that the person testifying knows of what he or she speaks and is not offering subjective belief or unsupported speculation and that such testimony assists the court in understanding the evidence. It is something that counsel may want to consider as the ADA is an extremely complex law and it may help to have an expert break it down.

6. § 1983 claims may also be a part of fact patterns involving the ADA/Rehabilitation Act. Particularly with respect to equal protection claims, the key is going to be what equal protection class persons with disabilities fall in. Remember, outside of employment what class people with disabilities fall into for purposes of equal protection jurisprudence is going to vary from case to case.