Academic Deference and Burden of Proof in Reasonable Accommodation Matters

By William Goren on October 19, 2015

Posted in ADA, Federal Cases, Title II, Title III

One of the blogs in my blog roll is Wait a Second, which discusses civil rights cases in the Second Circuit. Recently, Wait a Second blogged on this case, which as far as I can tell, appears to be unpublished. Wait a second did an excellent job of describing the facts of that case and offering its own analysis, but I wanted to add a few thoughts of my own. From reading the case, I am not sure I could do a better job of summarizing the facts, and so I am borrowing Wait a Second’s description of the facts with some notes of my own. As is typical with my blog entries, I have divided the blog entries into sections: facts (which because wait a second does such an excellent job describing the facts, much of that description-though not all-comes from the excellent description of same in that blog entry); court’s reasoning; and takeaways and thoughts. The reader is of course free to read any or all of the sections.

I
Facts

The medical school required students to pass certain tests, including the Step 1 examination, in order to proceed to the next academic level (this is standard for medical schools). You get three chances in one year to pass the Step 1 examination. Students are granted six weeks of dedicated time to study for the step one exam. After the plaintiff twice failed the test, he suffered increased symptoms of depression, which made it difficult to prepare for the test. As he was undergoing treatment, plaintiff requested an extended leave of absence, which would have put off his third testing attempt. The school granted plaintiff several extended leaves so he could complete his treatment. As the examination grew closer, while progressing in his recovery, plaintiff requested an additional brief recovery period that would further put off the examination in order for his medication regimen to have time to work. That request was denied, and plaintiff was dismissed from the program altogether. The lawsuit claims the school denied plaintiff a reasonable accommodation in denying him the additional leave time.

There are, to my mind, some other facts worthwhile noting as well. First, the plaintiff enrolled in the medical school in 2004. Second, step one of the test per school policy had to be completed by May 31 of 2007. Finally, the last adverse action occurred in 2008.

II
Court’s Reasoning

1. In the education context, both the ADA and the Rehabilitation Act require an educational institution to offer reasonable accommodation for a student’s known disability unless the accommodation would impose an undue hardship on the operation of its program.

Interesting turn of phrase. With respect to the ADA, “undue hardship,” is a title I term. With respect to title II and title III of the ADA, the term used is “undue burden.” Even so, for all practical purposes, the analysis is the same regardless of the phrasing used.

2. When the plaintiff requested an extended leave, he explained that his physician had counseled him that he would need at least 6 to 8 weeks before he could see some improvement from the medication. Therefore, since the plaintiff requested a leave some 5 to 7 weeks longer than necessary in order for the medication to become effective, the trier of fact could find that the additional time he sought was clearly to prepare for the retake of step one. Further, the response of the leave of absence committee was such that a reasonable jury could find that the leave he requested included additional time for preparing for the exam and that the leave of absence committee understood his request to include such.

3. Earlier periods of study, especially since he had failed the exam twice before, were not sufficient to prepare him for the later examination.

I might add that the medication regimen was only in place when the last request for an extension was made and not before.

4. The plaintiff offered evidence to establish that he was not treated in an evenhanded manner with respect to similarly situated students.

5. The plaintiff’s period of preparation time in late July 2007 did not expand the six weeks time frame per school policy pertaining to medical students who also had failed two prior attempts of the step one exam. Therefore, a reasonable juror could be inferred that the abbreviated time frame encompassed with the plaintiff’s leave would not have been effective.

6. Just how does the burden of proof work in reasonable accommodation cases in the educational context according to the Second Circuit?

A. The plaintiff bears the initial burden of both production and persuasion as to the existence of an accommodation that would allow the plaintiff to meet the essential requirements of the service, program, or activity involved.

B. Once that occurs, the burden of persuasion then shifts to the defendant to rebut the reasonableness of the proposed accommodation, which can be done by either showing: 1) that the requested accommodation imposes an undue hardship on the operation of the defendant’s service, program, or activity; or 2) that the requested accommodation requires a fundamental or substantial modification to the nature of its academic program or standards. In other words, since the plaintiff had established a prima facie case, it was the responsibility of the defendant to submit a factual record establishing that when they rejected the plaintiff’s scheduling modification reasonable accommodation request, they diligently assessed whether the alteration would allow the plaintiff the opportunity to continue in the medical program without imposing undue financial or administrative burdens on the school or requiring a fundamental alteration to the academic caliber of its offerings. Since the record contains no evidence indicating whether those considerations were evaluated when determining the reasonableness of the accommodation sought by the plaintiff, the Second Circuit Court of Appeals declined to give deference ordinarily accorded to the professional and academic judgments of educational institutions. To do otherwise would allow academic decisions to disguise truly discriminatory requirements.

III
Takeaways and Thoughts

1. The amendment to the ADA did not go into effect until January 2009. Further, the final regulations implementing Titles II and III of the ADA were not even published until the summer and fall of 2010 going into effect six months later after that. All of this has me curious as to why there is absolutely no discussion of pre-ADAAA analysis in this case. That is, under the law prior to the ADAAA, there would have been a lot of litigation over whether a person had a disability to begin with. In this particular situation, the plaintiff had “situational depression.” There is a big difference between situational depression, which is very very common and many people over the course of their lifetime suffer from it at least once, and chronic depression, which never goes away. Remember, under pre-ADAAA analysis, you would have to figure out whether a person had a physical or mental impairment that substantially limits a major life activity. That definition is the same now, but the interpretation prior to the ADAAA was very different. Situational depression is probably a mental impairment. However, per Toyota Motor, was this situational depression such that it severely restricted or prevented the plaintiff from performing a major life activity? Was that major life activity of central importance to most people’s daily lives? That the plaintiff had “situational depression,” also leads to the question of whether the disability was temporary as the term was understood prior to the ADAAA. I suppose we will never know the answer to these questions since it was apparently never raised. One can’t help but wonder if an opportunity was missed here, but we don’t know all the facts.

2. Interesting uses of the phrase “undue hardship,” and, “fundamental alteration.” It is easy to confuse undue hardship with undue burden since the terms essentially mean the same thing. Nevertheless, it is proper to use undue hardship with respect to title I matters and to use undue burden with respect to title II and title III matters. Also, from reading this decision, you can see how undue burden in the logistical sense is being used in the same sense as fundamental alteration (I have been arguing for years that it makes sense to adopt that approach, including even with respect to undue hardship under title I of the ADA).

3. This case may have useful application to a similar scenario. That is, what if a student fails a step of the examination because the testing entity does not comply with its obligations under the ADA to reasonably accommodate the tester where the tester has requested reasonable accommodations? A school may want to think twice about letting such a person go from that program where that student can demonstrate that reasonable accommodations were requested and it is quite possible that the denial was not in accordance with the testing entity’s ADA obligations. Of course, such an approach would mean the school would be in the position of second-guessing the testing entity. Preventing that problem could mean the school working with the student to make the best case for testing accommodations to the testing entity. Otherwise, the second-guessing situation would be a definite possibility that the school wants to prevent liability for wrongful dismissal from the program.

4. The Second Circuit’s position stating:

Since the record contains no evidence indicating whether those considerations were evaluated when determining the reasonableness of the accommodation sought by the plaintiff, the Second Circuit Court of Appeals declined to give deference ordinarily accorded to the professional and academic judgments of educational institutions. To do otherwise would allow academic decisions to disguise truly discriminatory requirements.

I find this position very significant because it communicates to schools that hiding behind academic decisions to justify discriminatory decisions or decisions not made after doing the proper ADA analysis, will not be supported by the courts. What this means, for example, is that a school should be hesitant about relying on facially discriminatory standards and saying that discrimination is countenanced by those standards because they have no choice. For example, many programs have technical standards they have to satisfy as part of their accreditation process. Those standards, if my experience is any indication, often screen out persons with disabilities. Enforcing technical standards to a particular individual without going through the ADA analysis may well be a scenario where the court will not give deference to that decision.

5. Burdens of proof can be extremely complicated. In my opinion, this decision offers an easy to understand approach to burdens of proof with respect to reasonable accommodation requests in the educational context.

Can a Corporation Pursue a Retaliation Claim?

By William Goren on October 13, 2015

Posted in ADA, Federal Cases, Final Federal Regulations, Title I, Title II, Title III

My most popular blog entry this quarter by far is whether you can get compensatory and punitive damages for retaliation claims, which can be found here. This week’s blog entry explores a different topic but related, which is whether a corporation can bring a retaliation claim and not just an individual. Our case today is Michigan Flyer, LLC v. Wayne County Airport Authority

I
Facts

in 2014, two individuals sued the Wayne County Airport Authority for violating the ADA when the Airport Authority changed the pickup and drop off location for certain bus operators transporting persons with disabilities to the McNamara terminal at the Detroit Metropolitan Airport. In particular, buses operated by Michigan Flyer and Indian Trails were rerouted from the pickup and drop-off point located just outside the international area of the airport’s McNamara terminal to a location outside and approximately 600 feet away from the indoor waiting area of the McNamara ground transportation center. Michigan Flyer and Indian Trails assisted the plaintiffs in that case by preparing affidavits and giving testimony that the plaintiffs relied on in support of their position that the airport violated the ADA’s requirements in constructing and operating its ground transportation center. That case settled. However, immediately after the settlement, the airport authority retaliated against Michigan Flyer and Indian Trails by: unilaterally reducing the amount of time that their buses could stop at the ground transportation center to load and unload passengers; forcing their drivers to circle the airport instead of stopping in their assigned spaces, even when spaces were available; forcing their drivers to vacate assigned spaces before the scheduled departure times even where there were no other vehicles waiting to use the spaces; and the prosecution of frivolous misdemeanor charges based upon tickets issued to the two companies for prohibited sign displayed at a desk used by their employees in the ground transportation center. The companies brought suit alleging such conduct was retaliation in violation of 42 U.S.C. § 12203. The defense responded that even if the allegations were true, they failed to state a claim because retaliation does not apply to corporations being retaliated against just individuals.

II
Court’s Reasoning

In holding that only individuals could bring retaliation claims for violating the ADA, the court reasoned as followed:

1. In order to prove a prima facie case for retaliation a plaintiff must show: 1) the plaintiff engaged in activity protected by the ADA; 2) the defendant knew of that activities; 3) the defendant took an adverse action against plaintiff; and 4) the adverse action was caused or motivated by the protected activity.

2. An adverse action is an action that a reasonable individual would have found to be materially adverse. Further, the substantial interference with the defendants business operations, mentioned above, arguably put those businesses at a competitive disadvantage and therefore, such action could be reasonably considered to be materially adverse. The facts as alleged were such that the other elements of a prima facie case were met as well.

3. 42 U.S.C. § 12203(a) states: “no person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.”

A. The word “person,” includes a corporation, company, association, firm, partnership, society, and joint stock companies as well as individuals.

B. The plain meaning of the statutory language “individuals,” restricts itself to a natural person and in particular to distinguishing between a natural person and a corporation.

C. There is no indication from reading the ADA itself that Congress intended the word “individual,” to mean anything else other than a natural person.

D. The term “individual,” is used over 300 times in the ADA and throughout much of that text, the term is clearly being used to refer to a natural person. Such a use is consistent with the purpose of the ADA, which is to address and eliminate discrimination against individuals with disabilities, and only a natural person could be a person with a disability within the meaning of the ADA. The court noted that it was obvious that a disability could not be a condition applicable to artificial entities such as the Corporation. The definition of disability under the ADA is clearly referencing a natural person.

E. Looking at the prohibition against retaliation shows that the word “individual,” is posed against the word “person,” within the same sentence thereby suggesting that the two terms have very different meanings.

F. In drafting the act, Congress certainly knew how to use the term interpreted to include artificial entities as well as natural persons, but they didn’t do so with respect to the retaliation provision. That is, Congress could have prohibited any “person,” from retaliating against “another person,” but they did not do it that way. Instead, they used two distinct terms, “individual” and “person.”

G. In the absence of an express statutory definition to the contrary, the term, “individual” is generally construed to be a subset of the term, “person.”

H. The plaintiff’s did not cite in their briefing any decision holding or even suggesting that the terms, “individual” and “person,” are supposed to mean the same thing. In fact, the weight of authority is to the contrary. In the situations where retaliation claim brought by organizations were allowed to proceed, those complaints also had joined with them named plaintiffs who are natural persons with disabilities or the court found that the organization had organizational standing to pursue such claims on their behalf.

I. While it is true that the ADA should be construed broadly in order to effectuate its purposes, that does not justify an overbroad application of the law’s provisions at odds with any sensible reading of the plain language.

J. The provision of the ADA talking about attorneys fees does not change any of the analysis because that provision focuses on “prevailing party,” which can be either a natural person or an artificial entity.

K. While commentary to a Department of Justice regulation does use the term, “person” when explaining the retaliation regulation, that interpretation does not prevail because the substantive language in the regulation that it is trying to explain clearly focuses on individual. Further, agency interpretations of statutory language are immaterial where the plain language of the statute is clear and unambiguous.

III
Takeaways

1. This case clearly sets forth that only a natural person can bring a retaliation claim. The reasoning of this court, to my mind anyway, seems to be pretty strong for that proposition.

2. Is there a workaround? There may be. In particular, the final implementing regulations for both title II (the title II final regulations referring to associational discrimination can be found here) and title III of the ADA (the title III final regulations referring to associational discrimination can be found here), have nearly identical language with respect to discrimination based on associating with a person with a disability. The only difference between the two provisions is the first three words (“public entity,” v. “a public accommodation”). In particular, those regulations state: “a public accommodation [public entity if title II] shall not exclude or otherwise deny equal goods, services, facilities, privileges, advantages, accommodation, or other opportunity to an individual or entity (emphasis mine) because of the known disability of an individual with whom the individual or entity (emphasis mine) is known to have a relationship or association.” Specifically note that the language of both of these regulations explicitly uses the terms, “individual or entity.” What that means is another nail in the coffin with respect to a corporation bringing a retaliation claim. However, it also means by the same analysis that a corporation would be able to bring a disability discrimination claim alleging violation of the ADA because an individual or corporation discriminated against them based upon their association with a person with a disability. Finally, these regulations went through the proper rulemaking process and considering the nature of the ADA would likely be entitled to Chevron deference, and there are cases holding that association discrimination applies to title II, here, and title III, here, of the ADA

The Double Whammy of Pregnancy and Disability after Young v. UPS: EEOC Steps in

By William Goren on October 6, 2015

Posted in ADA, Federal Cases, Final Federal Regulations, Guidances, Title I, Title V

This is an update to the blog entry that I previously posted. I am revising it because upon further review, it is NFL season after all (Go Falcons!; Go Cubs too!), I realized that confusion was created over when the amendments to the ADA went into effect versus when the final regulations of the ADA went into effect and what that all means. So, what appears below is a revised blog entry taking into account all of that. I have divided the blog entry into categories: introduction; initial thoughts on the complaint; let’s have some fun; moving away from the hypothetical, confusion still exists; other thoughts; and concluding thoughts. I am not sure how the reader of this blog entry could only read certain categories and not the whole thing (excepting III maybe), but the reader may find the categories helpful for understanding the structure of the entry.

I
Introduction

Previously, I had commented upon the EEOC regulations dealing with accommodating pregnancy. After that blog entry, the United States Supreme Court weighed in on that with Young v. UPS . You can find that blog entry as well as a mention of Young v. UPS in the comments section associated with that blog entry here. I then came across this case, which Robin Shea then wrote a great blog entry on, which can be found here (I sent a blurb about the case along to Robin, but the complaint itself I got from Robin’s blog entry). Robin’s blog entry is great as usual, but I thought I would share some of my own thoughts as well (especially since Robin convinced me that people might be interested in me doing so). So here goes.

II
Initial Thoughts on the Complaint

1. According to the complaint, Landis Communities and Landis Homes Retirement Community are an integrated enterprise maintaining interrelated operations, common management, centralized control of labor relations, as well as common ownership and financial control. They are an organization that manages three senior housing communities and provide eldercare services in Lancaster County Pennsylvania.

2. The occurrences occurred in April 2010 and in March 2011. This seems strange for a couple of reasons (Robin also thought it strange). First, before someone can go to court to file a claim for disability discrimination in employment, they have to exhaust administrative remedies first. That means, they have to file a claim with the EEOC or an equivalent state agency. If there is no equivalent state agency, the claims have to be filed within 180 days of the occurrence. If there is an equivalent state agency (which Pennsylvania apparently is), the deadline gets extended to considerably longer, 300 days. In either event, the right to sue letter was issued by the EEOC in 2015. As Robin points out, something is off here.

III
Let’s have some fun. If this incident had occurred over the time period of 2008 and 2009, then you would have some very interesting legal issues:

1. If the incidents had occurred in 2008 and 2009, the analysis would go like this: First, the ADAAA didn’t go into effect until January 2009. Second, Young v. UPS is a recent case. So, the first question is with respect to a hypothetical occurrence in 2008, would the plaintiff have a disability? Since our hypothetical occurrence occurred in 2008, the rules would be analyzed under the rules in effect prior to the ADAAA. That would mean analyzing whether the plaintiff has a physical or mental impairment that substantially limits a major life activity as it was then analyzed. That in turn, means analyzing whether the plaintiff was prevented or severely restricted from performing a major life activity per Toyota Motor Manufacturing Kentucky v. Williams. It also means asking per that same case whether the major life activity was of central importance to most people’s daily lives. In this particular case, the plaintiff had an incompetent cervix (Robin has an excellent link to what that condition is in her blog entry, which I am posting here for reference).

2. We know from Bragdon v. Abbott, which can be found here, that reproduction is a major life activity. From reading a description of incompetent cervix, it is pretty clear that without surgical intervention, such a condition would prevent or severely restrict a person from becoming pregnant. So, prior to January 2009, a good argument exists that the plaintiff with a hypothetical occurrence in 2008 had a disability under the ADA as it was defined prior to the amendments. But here’s the thing: she requested the accommodation after she had surgery relating to repairing the incompetent cervix. Prior to the amendments to the ADA, the Supreme Court had said in Sutton v. United Airlines , here,that mitigating measures must be factored into the analysis as to whether a person had a disability. So, with respect to a hypothetical occurrence in 2008, the question would become whether she was severely prevented or restricted from reproducing after the surgery? Sutton also talks about how temporary disabilities are not protected by the ADA. In short, with respect to a claim involving the occurrence before January 2009, whether a plaintiff on these facts had a disability is a bit of a nightmare. It means asking whether she was prevented or severely restricted from performing a major life activity (assuming that is the standard that would apply since Toyota explicitly focused on manual tasks. Even so, most courts were extending this definition across disabilities), in this case reproduction, after the surgery since there appeared to be no issue prior to the surgery. It also means asking whether the lifting restriction she requested was for a temporary disability as it was then defined.

IV
Moving Away from the Hypothetical, Confusion Still Exists

1. Even though the ADA, the amendment to the ADA went into effect January 2009, the facts of this case still have plenty of confusion to deal with. The reason being that the EEOC took over two years to publish the final regulations implementing the amendments to the ADA. Those regulations were published on March 25, 2011 and effective May 24, 2011.

2. If you look at the time frame of the occurrences in the complaint, the first occurrence occurred on April 26, 2010, a little more than one full year before the final regulations were published. The second and third occurrences (the advice of the termination already having happened and the date she was actually terminated), occurred on April 12, 2011, and on March 31, 2011, respectively. The 2011 dates dates are after the final regulations were published, but before they became effective. That means, for all of the dates, you are still left with the question of just how the definitional terms would be defined because the final regulations were either not published or not in effect. Absolutely, you have to start with the amendment to the ADA itself but since the regulations were either not published or not in effect, you arguably would only have the statute to go by. That means you would know that mitigating measures are not factored in. You would also know that reproduction would be a major life activity. However, you would not know what it means to be substantially limited in a major life activity. You also would not know how temporary disabilities might be handled. Therefore, because of the timing of the federal regulation, it is possible that the defense could argue that the EEOC final regulations do not apply in this case and that a court would have to look at the statute itself with respect to determining what the definitional terms mean.

V
Other Thoughts

1. The complaint does say that the defendant had a policy or practice of accommodating lifting restrictions of non-pregnant employees similar in their ability or inability to work. However, this policy was in effect long before the decision came down from the Supremes in Young v. UPS. Hard for me to believe that Young would be retroactive.

2. If the final regulations issued by the EEOC do not apply to this case because of the timing of the occurrences, an argument can be made that the plaintiff did not have a disability as defined by the ADA as amended, however, she doesn’t need a disability if she is alleging that she was retaliated against for asserting rights under the ADA. The complaint alleges that the employer placed the plaintiff on an unpaid, indefinite leave of absence on the same day that she submitted her reasonable accommodation request. If that is true, it certainly opens up the employer to a retaliation claim regardless of whether the plaintiff had a disability. Of course, assuming a retaliation claim, whether the plaintiff is able to get compensatory and punitive damages is a completely different question as we discussed in this blog entry.

3. The complaint alleges that starting in April 2010, the plaintiff attempted to engage in the interactive process with the defendants regarding her ability to continue working with reasonable accommodations, but the defendants rebuffed those efforts and failed to offer any reasonable, effective alternative that would allow her to continue working. This also opens up the employer to a failure to engage in an interactive process claim, which depending upon the Circuit a person is in can be a separate cause of action. Regardless of whether such a separate cause of action exists, it also opens up the employer to a claim of terminating the interactive process and subjecting them to liability that way as well. That is, the employer has the obligation to engage in the interactive process once the person with a disability makes that request. The general rule is that the party stopping the interactive process bears the consequences.

4. In April 2010, the complaint alleges that the defendant told the plaintiff to reapply for her old positions after she gave birth and was able to return to work without restrictions. If this allegation is true, the employer has a problem because 100% return to work policies are not kosher. For that matter, that was my view prior to the amendment to the ADA as well (many editions of my book, Understanding the ADA, prior to the amendments act stated as much. Also, readers may want to check out this blog entry on 100% return to work policies).

5. The complaint alleges that in March 2011, the plaintiff applied for a staff nurse and a nurse supervisor position. One month later, the defendants advised her that she had been terminated effective March 31, 2011. Furthermore, she was told by the defendant that they would not consider her for the for the positions which she applied because defendants had no notice that the previous lifting restrictions had ended.

6. The employer told the plaintiff that she was terminated effective March 31, 2011, but she was being given that information on April 12, 2011, that the employer would not reconsider her for position for which she applied because they had no notice that the lifting restrictions had ended. The key here is that she was terminated and now because she was terminated and she has an application in after her termination, she is no longer an employee of the company. That means, the argument is created, which is an argument being made by the EEOC in this complaint, that the employer is making a prohibited pre-employment medical/disability related inquiry. If she had not been terminated, the employer might have been able to argue that the inquiry was job-related and consistent with business necessity, concepts we discussed in this blog entry, but the termination preceded being told the information about the lifting restrictions not being lifted and that such lifting was a necessity prior to being considered for any job that she had applied for. Another item raised by this is whether every job that the plaintiff was applying for had as their essential functions lifting more than 25 pounds, and whether if so, whether that particular essential function could be done with or without reasonable accommodations.

VI
Concluding Thoughts

1. In short, the length of time between when the occurrence happened and when the EEOC is stepping in is a bit problematic.

2. Also, even assuming no issue there with respect to the filing of the EEOC charge, the fact that the adverse employment actions occurred before the final regulations of the EEOC were either published or went into effect makes things a bit of a nightmare as that means the meaning of the definitional terms with respect to this case is uncertain.

3. A retaliation claim would seem to be a distinct possibility as is a claim dealing with prohibited pre-employment disability related inquiries.

3. Finally, this case becomes incredibly complex as befitting the complicated law that the ADA is. There would seem to be good reasons, based upon what we have discussed in this blog entry, why both sides would want to settle this case. It will be interesting to follow developments.

ADA and the “Sports Association.”

By William Goren on September 28, 2015

Posted in ADA, Federal Cases, Guidances, Rehabilitation Act, Title I, Title III

For years, I refereed and umpired basketball and softball. The entity for managing the referees and umpires were associations whose sole purpose was to deal with the referee side of things. Referees and umpires were ostensibly independent contractors (whether they are would be the subject of a separate blog entry and will not be the focus of this one). Also, many youths and athletic programs are run by associations as well. Today’s case deals with the question of what happens when such an association discriminates on the basis of disability. Can they be sued under title I, title III?

Today’s case is Nathanson v. Spring Lake Park Panther Youth Football Association, which can be found here. As is my usual practice, I have divided the blog entries into categories: facts; court’s reasoning the kids; court’s reasoning the parents; and takeaways. The reader is free to focus on any or all of the categories.

I
Facts

Prior to 2014, the Blaine/Spring Lake Park Athletic Association organized youth football programs in the Spring Lake Park area (Minnesota). The Blaine Athletics Association grew so much that a separate football Association, Spring Lake Park Panther Youth Football Association was created for youth residing in Spring Lake Park or attending school in the Spring Lake Park school district. In 2011 and then in 2013, two deaf kids, brothers, joined the Blaine Athletic Association. In 2011 and 2012, Blaine Athletic Association arranged and paid for ASL interpreters for games and practices. In 2012, the Blaine Athletic Association permitted the use of a sideline drum that was struck upon the snap of the football on each play. The purpose of that drum was to signal when each play started. Beginning in August 2013, the Fridley school district, where both kids attended school, provided ASL interpreters for football practices, game, and meeting under the boys IEP. However, Fridley in 2014, determined that because the football Association was not a Fridley public school sponsored event, it would no longer provide interpretation services for the kids. The plaintiff then requested the football Association to provide interpreter services for games and practices but the football Association denied that. The football Association did not provide interpreter services for the fall 2014 football games or practices and they also discontinued use of the drum. Accordingly, the two deaf kids struggled to identify when the play started.

Before moving on, it should be noted that the use of the interpreter and the drums is an accommodation that has already worked with respect to deaf people playing football. It is the way Gallaudet University fields its football team.

The parents of these kids also ran into trouble with the football Association. In particular, their father was an assistant coach for the team of the child who started with the Athletic Association in 2011. In May 2014, the father applied for a head or assistant coach position with the football Association. The football Association refused to provide him with an ASL interpreter for the mandatory prospective coaches meeting. Therefore, he provided his own interpreter and completed all the paperwork required to apply for the position. However, he was not offered the coaching position despite a shortage of coaches. Also, the football Association did not secure an ASL interpreter for either him or his wife at a mandatory parent meeting held on August 11, 2014. No ASL interpreter was provided by the football Association for September 21, 2014 board meeting. Finally, the football Association did not provide an interpreter for the kids mother at the mandatory, “tackle football mom’s clinic,” in August 2014, plaintiffs brought suit alleging that the football Association violated both title III of the ADA and the Minnesota Human Rights Act (while we will not discuss the Minnesota Human Rights Act in this blog entry, the court did find that the football Association was a place of public accommodation under that law). The football Association defended on the grounds that they were not a place of public accommodation and that with respect to the parents, they lacked standing to bring a title III claim as the parents complaint on their own behalf was alleging employment matters subject to title I and not title III.

II
Court’s Reasoning Kids and Title III

The court disagreed with the defense’s arguments and reasoned as followed:

1. The categories of 42 U.S.C. § 12181(7)(A-F) must be construed liberally in order to afford individuals with disabilities equal access to the establishments available to those without disabilities.

2. Regulations implementing title III of the ADA define a place of public accommodation as a facility operated by a private entity whose operation affects commerce.

3. To make a prima facie case for title III of the ADA, a plaintiff has to show: 1) that he is a person with a disability as defined by the ADA; defendant is a private entity owning, leasing, or operating a place of public accommodation; and 3) the defendant failed to make reasonable modifications that do not fundamentally alter the nature of the public accommodation.

With respect to 3 of subparagraph three, this section of the ADA is very confusing even to those who deal with the area all the time. The way this thing theoretically works is that if you are talking about modifying policies, practices, and procedures, the standard is fundamental alteration. However, if you are talking about are auxiliary aids and services, the standard is fundamental alteration or undue burden. The distinction is theoretical in all probability and not practical. Since undue burden can be both logistical and financial. Undue burden in the logistical sense is frequently equated with fundamental alteration, and I personally think that is the best approach.

4. An entity not directly connected with a physical place can meet the definition of a place of public accommodation, particularly when it comes to sports associations. After all, the football Association operates a youth football Association that host football practices, games, and social event for registered participants. Such conduct satisfies the definition of what the plain and ordinary meaning of the term operate would mean (put or keep in operation, control or direct the function of, or to conduct the affairs of, or manage). Further, the football Association uses the football fields as the primary location for its activities, and the football field would be places of recreation subject to title III of the ADA. Since the football Association’s games and practices are presumably scheduled in advance, it follows that the football Association probably has an arrangement with the City of Spring Lake Park allowing access and control to the fields.

III
Parents and Title III

The court disagreed with the defense arguments that the parents lack standing to bring a title III claim for the discrimination they faced and reasoned as follows:

1. If the matter was strictly limited to the parents ability to volunteer, then this court believed the claim would be more appropriate for title I than title III. However, the parents complaint was not limited to their inability to volunteer. In particular, the mother was unable to fully participate in mandatory meetings because the football Association failed to provide ASL interpreters. The father was denied the ability to participate in mandatory meetings because of his disability. The inability to participate in mandatory meetings is a closer fit to being a client or customer rather than being an employee and therefore, the title III claims of the parents can proceed.

IV
Takeaways

1. It is a strange choice that the football Association made with respect to fighting the suit. The ADA and their implementing regulations make it quite clear that title II and title III entities have the duty to engage in effective communications, which we have discussed numerous times before in this blog, including here, with persons with disabilities. Also, use of the drums is something that is used all the time with respect to the deaf playing football. Since these accommodations are happening all the time without event, showing a fundamental alteration would seem to be impossible. That said, in this particular case, the football Association did submit financial records in an effort to demonstrate that providing ASL interpreters would be an undue burden on the football Association, but the court refused to convert the motion to dismiss into a motion for summary judgment. Even so, as we have mentioned previously in this blog, it would seem to be a very difficult proposition for the football Association to show that providing interpreters would be an undue financial burden, especially if all the resources of the Association are taken into account (the requirement set forth by the implementing regulations). Further, the cost of such accommodations would certainly not be more expensive than the cost of litigation. Finally, the predecessor football Association was providing these accommodations. Again, interesting choice of strategy.

2. What about the claim pertaining to the inability of the parents to volunteer for the Association. In particular, the inability of the father to be a coach despite being qualified, as the ADA would define the term, to be a coach. After all, he had already been an assistant coach and he had played football. Where does he turn to pursue the claim? He might start by reading this blog entry, which focuses on how § 504 of the Rehabilitation Act might be an avenue in such a situation if the entity takes federal funds. Having been a member of such associations in the past as a referee, showing that the Association takes federal funds may not be a simple proposition. The other option is to pursue a claim under title III alleging that the inability to volunteer denied them the privileges and benefits of the place of public accommodation, which was the argument that proved successful in this case, but one this court did not seem inclined to agree with.

3. The problem that exists with respect to a court not taking the approach of utilizing the Rehabilitation Act or the Menkowitz decision with respect to “independent contractors,” is that title I of the ADA only applies to employees. Therefore, if a volunteer (coaches and referees are always putatively independent contractors), suffered discrimination by the Association, such an individual with respect to “employment” would have no remedy at all. Of course, that assumes, that the referee or coach is truly an independent contractor, which may not be the case if my experience with these type of associations is indicative.

4. Considering the Supreme Court case of PGA Tour v. Martin, there was little choice for this court to hold that the football Association was a place of public accommodation with respect to the claims of the kids and with respect to the claims of the parents inability to effectively attend meetings. As mentioned above, harder call with respect to the “employment,” claims of the father.

5. If this case shows anything, it shows the need for training and the need to look backwards. We see this all the time in employment matters where a new manager comes in and undoes everything that had been working before to the employer’s detriment. The same thing happened here. Thus, training is always important. Oftentimes, I say so is consulting with knowledgeable counsel about the ADA. However, here it seems the football Association made a strategic decision to contest this case. One thing that oftentimes doesn’t get mentioned is that you can have knowledgeable ADA legal counsel, but ultimately how the client chooses to proceed is the choice of the client.

Alcoholism, Associational Discrimination, Retaliation, and Magic Words

By William Goren on September 24, 2015

Posted in ADA, Federal Cases, Title I, Title V

For my Jewish brethren, I hope everyone survived the gauntlet of the Jewish High Holidays, which ended last night. Again, wishing everyone and their families a happy and healthy new year.

Today’s case comes from the United States District Court’s Southern Division in South Dakota and it takes on issues of alcoholism as a disability, associational discrimination, retaliation, and whether magic words are necessary when requesting a reasonable accommodation. The case, which appears to be an unpublished decision, is Adams v. Persona, Inc., 2015 U.S. Dist. LEXIS 110764 (D. South Dakota, August 21, 2015). As is my usual practice, the blog entry is divided into categories: facts; court’s reasoning regarding retaliation; court’s reasoning regarding associational discrimination; and takeaways. The reader is free to focus on any or all of the categories.

I
Facts

The plaintiff suffered from alcoholism. In August 2012, after he was notified of possible alcohol related misconduct at the workplace, several people from his employer met with him. At the meeting, the plaintiff was told that his employer, Persona, was engaging in a “fact-finding mission,” and he was asked about his alcohol consumption. In response, the plaintiff admitted to his alcohol dependency. The president of human resources then advised him to enter treatment and that the employer would allow him 10 weeks leave. Plaintiff was suspended from work and his employment status set to be reevaluated in 30 days. Several days after the fact-finding meeting, the plaintiff spoke with the president of human resources and was informed of his suspension. The president of human resources told him that she would attempt to find a new position for him upon his return but that it may not be in Madison. Furthermore, he was informed by the president of human resources that the 10 weeks of leave would be covered through his accumulated vacation pay and that he would have four weeks of accumulated vacation pay remaining. He entered a 30 day treatment facility on the same day he spoke with the president of human resources. He completed the treatment on September 12, 2012, and, on September 28, again met with various people from his employer including: the CEO; the company’s production manager; the president of human resources; and the employer’s president. At that meeting the plaintiff detailed his struggle with alcoholism and expressed a commitment to his job, his recovery, and sobriety. Further, he stated his wish to return to his old position as plant manager. Adams was again told that the employer was engaging in a “fact-finding mission,” and that it was, “not prepared to make a decision” after his employment. On October 10, 2012, just 12 days later, the plaintiff again met with the president, production manager, the CEO, and the president of human resources. At that time he was told that his employer was terminating him as of that day.

From there, it only gets worse with respect to the fact pattern for the employer. It turns out that the plaintiff’s daughter suffers from an autoimmune disease requiring transfusion treatments every 6 to 8 weeks. The health insurance for his daughter was provided through plaintiff’s insurance plan with his employer. In November 2011, the president of human resources held a company meeting where she stated that health insurance premiums were to be increased to 22.51%. She also stated that two of Persona’s employees were causing the premium hike. More specifically, the complaint alleged that the president of human resources implicitly named the plaintiff as one of the two employees because she stated, “that one reason the insurance premium rates were going to be higher was because one employee’s daughter needed treatments every 6 to 8 weeks and the treatments were expensive.” On August 14, 2012, a day after the plaintiff entered treatment, the plaintiff’s wife spoke to the chairman of the employer and to the chairman of the board for the employer regarding the president of human resources November 2011 comments about her daughter’s treatments. The chairman of the employer stated that they run a report every so often to see which employees have the highest payout of insurance benefits and that the report indicated that the plaintiff was an employee with one of the highest amounts. In February 2013, the plaintiff filed a claim with the EEOC and after receiving a notice of right to sue filed suit. The complaint contained several counts, of which only two of them the employer sought to dismiss (retaliation and associational discrimination).

II
Court’s Reasoning Retaliation

In denying the employer’s motion to dismiss the retaliation claims, the court reasoned as followed:

A. Retaliation

1. In a footnote, the court noted that neither party contested whether the plaintiff’s alcoholism qualified as a disability under the ADA, and therefore, the court proceeded under the assumption that the plaintiff was a person with a disability under the ADA. The court also noted that the ADA prohibits retaliation against a good faith request for accommodation even if the alleged disability turns out to be uncovered by the ADA.

2. To make out a prima facie case for retaliation in violation of the ADA, plaintiff has to show: 1) he was engaged in a protected activity; 2) he suffered an adverse employment action; and 3) there was a causal connection between the first two elements.

3. A request from the employee suffering from alcoholism to be granted a leave of absence to attend to inpatient recovery is the kind of request protected from retaliation. The court in their discussion cited to another case that noted that treatment would seem to be essential to any accommodation for alcoholism.

4. The court also noted that other decisions have held that a plaintiff is not required to speak any magic words when making a request for reasonable accommodation. In fact, the employee does not need to mention the ADA or even the term accommodation, and nothing in the ADA prescribes how the accommodation is requested. Therefore, a request for leave to attend rehabilitation for alcohol dependency qualifies for ADA protection as a request for accommodation.

5. One way an employer becomes aware of the need for an accommodation is being informed of an employee’s disability by the employee himself. Here, the plaintiff admitted to alcohol dependency and such admission may be construed as his request for accommodation since the plaintiff was not required to explicitly request accommodation in order for the employer’s duty to accommodate to be triggered. That is, the admission by the plaintiff himself was also the request for reasonable accommodation.

6. No specific language needs to be uttered by an employee before the employer has a duty of reasonable accommodation and therefore, the request for an accommodation itself requires no precise language. The confirmation of his alcohol dependency was the act necessary to put his employer on notice and trigger its duty to accommodate. While it is true that no explicit request for accommodation was made by the plaintiff, a reasonable juror could conclude that the employer retaliated against the admission of dependency itself as it was that admission that triggered the employer’s duty to accommodate.

7. In another footnote, the court noted that retaliation might also be of the anticipatory variety. That is, action taken against an individual in anticipation of that person engaging in protected opposition to discrimination is no less retaliatory than action taken after the fact. That is, an employer is equally prohibited from anticipating an employee’s request for an accommodation by preemptively suggesting its own so as to cancel out the employee’s protected activity, and then terminating his employment.

8. In short, the retaliation claim survived because: 1) plaintiff was confronted about his alcohol consumption; 2) he admitted to struggling with alcohol dependency; 3) the employer granted him leave to get treatment and he did attend treatment; 4) he was subsequently terminated from employment; 5) he was granted 10 weeks of leave to pursue treatment; 6) pay for those 10 weeks with to be drawn from his accumulated vacation pay; and 7) instead of allowing the full 10 weeks to elapse, his employer reevaluated his employment 30 days after leave was granted and terminated the employment short of the full 10 weeks.

III
Court’s Reasoning Associational Discrimination

1. Properly stating a claim of associational discrimination means showing: 1) a person was qualified for the position; 2) person was subject to adverse employment action; 3) the person was known to be associated with a disabled individual; and 4) the discharge occurred under circumstances raising a reasonable inference that the association with the disabled individual was a determining factor in the employer’s decision to terminate employment. There also must be a causal connection between knowledge of the association a person has with a person with a disability and the adverse employment action.

2. All four of the factors are satisfied because: 1) the plaintiff was qualified for the position. In fact, from starting at his employer, he was eventually promoted to plant manager; 2) the plaintiff was terminated and termination is an adverse action; 3) the employer was aware that the plaintiff’s daughter was a person with a disability and required treatment. In fact, the employer admitted as such through its November 2011 meeting where the president of human resources mentioned that the plaintiff’s daughter was causing insurance premiums to rise due to her necessary medical treatments. Further, an official of the employer told the plaintiff’s wife that her husband was one of two employees with the highest insurance payouts.

3. Causation is satisfied because of numerous circumstantial pieces of evidence including: 1) the employer knew that plaintiff’s daughter was a person with a disability and required treatment; 2) the statements that the plaintiff was one of two employees causing insurance premiums to rise; and 3) the chairman’s statement to the plaintiff’s wife regarding the running of the insurance reports. Of course, there are the facts mentioned above as well.

IV
Takeaways:

1. I find it interesting that the employer didn’t argue that the plaintiff was not protected under the ADA because they were “currently engaged with alcohol,” per this blog entry of mine.

2. Employers, governmental entities, and businesses should stop looking for magic words when it comes to request for reasonable accommodations. Employer should consider having persons with disabilities in their human resources department whose responsibilities include reviewing reasonable accommodation requests or requests that might be considered reasonable accommodations. Request for reasonable accommodations may very well be viewed differently depending upon whether the individual viewing the request is a person with a disability or not. Even so, if it is uncertain whether a request is a request for reasonable accommodation, preventive law would demand that the benefit of the doubt be in favor of finding such a request is being made. Once the decision is made that a request for reasonable accommodations has occurred, don’t forget to engage in the interactive process.

3. Employers need to be careful about disclosing to others any information that may tip off people as to the the specific condition of a person with a disability. Keep in mind, that the ADA requires that the employer keep disability related information confidential (see this blog entry of mine).

4. If an employer believes that by offering the accommodation without being specifically asked by an employee gives them the ability to claim that the reasonable accommodation request was never made and therefore there was no retaliation, such a practice may well be frowned upon by the courts as it was by this court.

5. For a person to claim retaliation, it is not necessary that the person is later found to have a disability under the ADA.

6. Very interesting about what the court says is the prima facie case for showing associational discrimination. In particular, element 4 stating that circumstances might be such so as to raise a reasonable inference that the association with the disabled individual was a determining factor in the employer’s decision to terminate employment. So, what does the ADA itself say about causation with respect to associational discrimination. If one looks at 42 U.S.C. § 12112(b)(4), the term used is, “because of the association.” Now, that brings us back to what “because,” might mean. For that, you might want to check out this blog entry and this blog entry. The term used by this court is “determining factor.” The plain meaning of that term is not sole cause, but rather more akin to “substantial factor,” as discussed in this blog entry. Nevertheless, it remains an open question as to what “because,” means in the context of associational discrimination. I would look for a lot of litigation to be coming on that point. Keep in mind, you do not see a lot of associational discrimination cases in the first place. Even so, when you do see it, I would certainly expect litigation over whether a mixed motive jury instruction has a place in associational discrimination case.

7. I find it curious that there is no mention of any of the corporate actors consulting legal counsel. One wonders if ADA knowledgeable legal counsel would have been consulted, things would have reached this point especially given these facts. Human resources, and for that matter, top management always need to have a direct line to legal counsel.

Proposed Rules of HHS Implementing the Affordable Care Act Dealing with Nondiscrimination in Health Programs and Activities

By William Goren on September 10, 2015

Posted in ADA, Guidances, Proposed Federal Regulations, Rehabilitation Act, Title I, Title II, Title V

Before getting started on this week’s blog entry, I do want to wish everyone that might be celebrating the Jewish New Year next week a happy new year. Also, because I am one of the people celebrating the Jewish new year and will have family responsibilities all week, I am not anticipating putting up a blog entry for next week. I do anticipate getting a blog entry up the early part of the following week.

The Department of Health and Human Services just issued proposed regulations implementing the Affordable Care Act and dealing with nondiscrimination in health programs and activities. What I thought I would do is highlight the proposed regulations with respect to disability discrimination (the regulations go far beyond disability discrimination-such as even talking about transgender issues-but our focus is going to be solely on disability discrimination). So here goes! I have the blog entry divided into two sections. In the first section, I highlight the disability discrimination provisions of the proposed regulations. In the second section, I list takeaways. I suppose it is possible that the reader could just focus on the takeaway section without looking at the proposed regulations highlight, but I am not sure the reader will want to do that. Nevertheless, the option is there.

1. The proposed regulations implement this statute, which prohibits discrimination on the basis of various things, including disability, in any health program or activity receiving federal financial assistance.

2. Remedies for violations with respect to disability discrimination are tied into the Rehabilitation Act;

3. The effective date of the Affordable Care Act’s implementing regulations dealing with nondiscrimination will be 60 days after publication of the final rule in the Federal Register;

4. Health and Human Services is proposing to apply the nondiscrimination regulations to the following: all health programs and activities, any part of which receives federal financial assistance administered by Health and Human Services; health programs and activities administered by the Department including federally-facilitated marketplaces; and health programs and activities administered by entities established under title I of the Affordable Care Act, including state base marketplaces.

5. Lesser standard for the protection of individuals from discrimination under civil rights laws, including § 504 are not going to happen with respect to the nondiscrimination protections offered by the Affordable Care Act.

6. Auxiliary aids and services have the same definition as contained in the regulations implementing title II of the ADA.

7. The proposed regulations cover: an entity that operates a health program or activity, any part of which receives federal financial assistance; an entity established under title I of the Affordable Care Act that administers a health program or activity; and the Department of Health and Human Services.

I do find the use of the term “and,” a bit funny here. It would seem that “or,” would have been a better fit. I don’t think it matters much, but it theoretically creates a problem of interpretation that didn’t need to be there.

8. A person with a disability is defined in the same manner as under the ADA and under the Rehabilitation Act.

9. “Federal financial assistance,” extends to the entity providing health insurance coverage or services, regardless of whether they are paid directly by the federal government to that entity or to the individual for remittance to the entity providing health insurance coverage or services. This means that if a person is buying coverage under a plan through a subsidy from the federal government, the plan will be deemed to be receiving federal financial assistance even though the plan is not receiving the money directly from the federal government.

10. If an entity has 15 or more employees, the proposed regulations require the entity to have a grievance procedure. Further, they are taking comment on whether a grievance procedure should be mandatory regardless of the size of the employer.

This one I found very interesting because it illustrates a difference between the ADA implementing regulations and the Rehabilitation Act implementing regulations. Under title II of the ADA, 28 C.F.R. § 35.107, a grievance procedure is required if the public entity has 50 or more employees. However, the Rehabilitation Act has a different requirement, 15 employees per 45 C.F.R. § 84.7.

11. A notice requirement exists and the notice must include: a statement that the covered entity does not discriminate on the basis of disability among other things; a statement that the covered entity provides auxiliary aids and services free of charge in a timely manner for individuals with disabilities when such aids and services are necessary to provide an individual with a disability an equal opportunity to benefit from the entity’s health programs or activities; information on how the individual can access the aids and services; contact information for the responsible employee; information about the grievance procedure and information on how to file a grievance; and information on how to file complaint with the Office of Civil Rights of the Department of Health and Human Services.

12. Except in limited circumstances, the proposed regulations do not apply to discrimination by a covered entity against its own employees. Rather, such cases are governed by other laws. The limited circumstances are: the entity is principally engaged in providing for administering health services or health insurance coverage; the entity receives federal financial assistance the primary objective of which is to fund the entity’s employee health benefit program; or the entity is not principally engaged in providing or administering health services or health insurance coverage but operates a health program or activity, which is not an employee health benefit program, that received federal financial assistance (in that particular situation, the regulation applies only with respect to the employee health benefits offered to employees in that health program or activity). In short, the Affordable Care Act nondiscrimination provision only applies to an employer’s employees if the primary purpose of the federal financial assistance is funding employee health benefits regardless of whether the employee health benefit program is self-insured or fully insured by the employer.

13. Prohibits a covered entity from requiring an individual with limited English proficiency to provide his or her own interpreter.

14. Prohibits a covered entity from relying on a minor child to interpret or facilitate communication with limited exceptions (an emergency situation for example).

15. Adopts the effective communication rules of title II of the ADA, which we have discussed here.

16. Establishes specific accessibility standards for new construction and alterations consistent with existing standards under the ADA. The specific guidelines to use depend upon when the facility is constructed or modified.

17. Medical diagnostic equipment will have to be accessible to persons with disabilities under the standards developed by the United States Access Board.

18. Health programs or activities provided through electronic and information technology must be accessible to individuals with disabilities per title II of the ADA unless it would impose undue financial and administrative burdens or result in a fundamental alteration in the nature of an entity’s health program or activities. This particular provision extends beyond the covered entity’s website to all of the covered entity’s electronic and information technology. Health and Human Services specifically seeks comment on that extension.

19. As readers of this blog know, the Department of Justice is insisting upon accessibility of electronic communications to be in accordance with worldwide web accessibility guidelines 2.0. The other option was for the Department to require electronic communications be consistent with § 508 of the Rehabilitation Act. What is interesting is that Health and Human Services decides to go with a general nondiscrimination approach rather than adopt either of these standards and then solicit comment as to whether they should forgo the general nondiscrimination approach in favor § 508 or worldwide accessibility guidelines 2.0.

20. In determining whether an action is an undue burden, covered entity must consider ALL (emphasis mine), of the resources available for use in the funding for operation of the health program or activity. Where an undue financial and administrative burden or a fundamental alteration exists, the covered entity is still required to provide information in a format other than an accessible electronic format that would not result in the undue financial or administrative burden or the fundamental alteration. The focus on all of the resources is consistent with both the EEOC regulations implementing title I of the ADA and the Department of Justice regulations implementing title II of the ADA. Is that the proper focus? Justice Ginsburg in Olmstead has some interesting views to consider on that.

21. Reasonable modifications in policies, practices, or procedures must be made in order to allow a person with a disability access unless a fundamental alteration to the health program or activity is involved.

22. Health and human services is proposing that the rule apply to all issuers receiving federal financial assistance regardless of whether their products are offered through the marketplace, outside the marketplace, an individual or group health insurance markets, or as an employee health benefit program through an employer-sponsored group health plan.

23. Plans are not required to cover any particular benefit or service, but their plan cannot operate in a discriminatory manner with respect to their coverage.

24. The proposed regulations prohibit discrimination based upon association with a member of a protected class, including a person with a disability.

25. A private cause of action and damages exist for violation of the law per § 504 of the Rehabilitation Act. Venue will lie in a United States District Court where the state-based marketplace is located. Since remedies are tied into § 504 the Rehabilitation Act, presumably, exhaustion of administrative remedies is not required. My view on these things is that it is always better to exhaust administrative remedies even if not required, but it isn’t necessary to do so. Since remedies are tied into the Rehabilitation Act, that makes you wonder how causation will be determined. The Affordable Care Act nondiscrimination statute relates back to the Rehabilitation Act and contains no causation language whatsoever.

26. Retaliation is prohibited, but can you get compensatory damages?

27. Qualified individual with a disability means an individual with a disability who, with or without reasonable modifications to policies, practices, or procedures, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meet the essential eligibility requirements for the receipt of aids, benefit, or services offered or provided by the health program or activity.

The definition essentially borrows from the title II definition of what a qualified individual with a disability is except it pacifically references health programs and activities due to the context. This does mean you want to be sure the client understands what the essential eligibility requirements are of the program. See this blog entry for example.

28. Qualified interpreter means an interpreter adhering to generally accepted interpreter ethical principles, including client confidentiality and who, via remote interpreting service or on-site is able (for an individual with a disability), to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. Qualified interpreters can include sign language interpreters, oral transliterator’s, and choose language transliterators.

29. Entities subject to the proposed regulations must assure Health and Human Services that they will comply with the nondiscrimination requirements.

30. Health and Human Services has the ability to go after covered entities for violations.

Takeaways:

1. Lawyers familiar with title II of the ADA should have little trouble dealing with the Affordable Care Act’s nondiscrimination regulations.

2. Essential eligibility requirements are critical. For some thoughts on how you might go about developing essential eligibility requirements, check out this blog entry.

3. The proposed regulations clearly specify that retaliation is prohibited and is a separate cause of action, but can you get damages for such violations? It isn’t necessarily a straightforward question with respect to disability discrimination as we discussed in this blog entry.

4. The Affordable Care Act’s nondiscrimination statute contains no causation language whatsoever. Rather, it relates back to various laws. With respect to disability discrimination, it relates back to the Rehabilitation Act. That leads to the strong argument that causation with respect to disability discrimination under the Affordable Care Act’s nondiscrimination statute is going to be, “solely by reason of.” That means it is entirely possible that depending upon the particular plaintiff suing for violation of the Affordable Care Act’s nondiscrimination provision, the causation standard may well be different from plaintiff the plaintiff even though the same nondiscrimination provision of the Affordable Care Act is at issue. For a discussion of causation vis-à-vis disability discrimination, check out this blog entry.

5. If you haven’t become familiar with the effective communication rule of title II of the ADA, now would be a good time to do so. An excellent discussion of that rule can be found in this blog entry.

6. It is interesting that the Department of Health and Human Services is not taking the stance on the standard for web accessibility, though they might in the future depending upon the comments. The bottom line is regardless of whether your company adopts § 508 or web accessibility guidelines 2.0, make sure your company gets its electronic communications accessible to persons with disabilities. Also, make sure you involve people and groups across all disabilities. For example, just because something is accessible to those using screen readers doesn’t necessarily make it accessible to those using voice dictation technology.

Changing Role of Expert in ADA Matters?

By William Goren on August 31, 2015

Posted in ADA, Federal Cases, Rehabilitation Act, Title I, Title II, Title III

I
Intro

Prior to the amendments to the ADA, a person with a disability had to prove that they had a physical or mental impairment that substantially limited a major life activity. A person with a disability still has to prove that. However, before the amendments a person under Toyota Motor Manufacturing, Kentucky v. Williams had to show a physical or mental impairment that severely restricted or prevented a person from performing a major life activity. Further, if the person uses mitigating measures, then those mitigating measures per Sutton v. United Airlines had to be factored in as well. What that meant as a practical matter was that 90% of ADA litigation was over whether a person had a disability in the first place. It also meant utilization of expert testimony to figure out whether a person was severely restricted or prevented from performing a major life activity. It also meant utilization of an expert if the person was using mitigating measures to figure out whether that person even after mitigating measures was severely prevented or restricted from performing a major life activity. With the amendments, the need for this kind of expert becomes far less necessary, if at all, since in most cases it’s going to be pretty obvious whether a person is an individual with a disability. That said, might there be a need for another kind of expert? That is, an ADA compliance expert that would evaluate the case and then testify as to whether the practices were in or out of compliance with the ADA, it’s implementing regulations, etc.

Full Disclosure And Note about This Particular Blog Entry: My practice has for some time included such work. Also note, that when I use the term ADA compliance expert in this blog entry , I am in no way referring to myself, but rather I am using the term in the context of a person designated as such during the course of a case in litigation involving the ADA.

Utilizing an ADA compliance expert creates several questions. First, is such testimony even admissible? Second, does it matter if such testimony is not admissible? Third, assuming the testimony is admissible, can an attorney get expert witness fees back when they prevail in an ADA case?

I got the idea for this blog entry after reading (my thanks to the Wait a Second Blog, which you can find in my blog roll), the recent case from the U.S. Court of Appeals for the Second Circuit entitled Gortat v. Capala Brothers, Inc.. That case was not an ADA case at all, but rather a Fair Labor Standards Act case. In that case, the Second Circuit held that since expert witness fees are not specified in the Fair Labor Standards Act, expert witness fees are not recoverable. In light of my disclosure above, it made me wonder whether the same would apply to an ADA matter with respect to any testimony going to ADA compliance.

As is my usual practice, the blog entry has been divided into categories: Introduction; would the ADA compliance expert testimony be admissible?; the law; what if the ADA compliance expert testimony is not admissible?; can you get the fees back in an ADA matter assuming the testimony is admissible?; and takeaways. The reader is free to focus on any or all of the categories.

II
Would the ADA Compliance Expert Testimony Be Admissible?

A. The Law

The admission of expert testimony is within the discretion of the trial court and is properly admissible when it serves to assist the trier of fact in understanding the evidence or in determining a fact in issue. However, resolving doubtful questions of law is the distinct and exclusive province of the trial judge. U.S. v. Weitzenhoff, 35 F.3d 1275, 1287 (9th Cir. 1993). Further, admitting expert testimony on contested issues of law is manifestly erroneous if the judge fails to instruct the jury on those points. Id. Other cases are phrased similarly. For example, one case when dealing with experts testifying as to the Americans with Disabilities Act Architectural Guidelines (ADAAG), said that although an expert may not provide testimony on an ultimate legal issue, that person may testify as to findings supporting the ultimate issue. Further, an expert may refer to the law in expressing an opinion without crossing the line into a legal conclusion providing that opinion contains underlying factual support. See Kalani v. Starbucks Corporation.

B. So, what does this mean in plain English?

1. The ADA is an incredibly complex law as we know from our blog. Therefore, the argument certainly exists that there are situations where an ADA compliance expert would serve to assist the trier of fact in understanding the evidence or in determining a fact in issue.

2. The testimony of an ADA compliance expert would need to be phrased in terms of compliance and not in terms of whether the ADA was violated.

3. The judge would have to instruct the jury on any matters testified to by the ADA compliance expert.

4. The matters testified to by the ADA compliance expert would need to be based upon underlying facts.

C. Due to the way the architectural guidelines are incorporated into the ADA, you certainly see and will continue to see a lot of ADA compliance experts in the area of whether the architectural guidelines were satisfied and which set of architectural guidelines apply.

D. Don’t forget about Daubert. That case holds that the methodology of the expert must make sense. I don’t believe this should be an issue with respect to architects and even attorneys testifying with respect to ADA compliance as their methodology is well known.

III

What if the ADA compliance expert testimony is not admissible?

If the ADA compliance expert testimony is not admissible (it isn’t a slam dunk that such testimony is admissible and especially so if §B is not observed), does it still makes sense to utilize a person to give such testimony? The answer to that question is twofold. First, in such a situation, a person may or may not be able to retrieve those fees as part of a settlement. Even so, if my experience is typical- which or may not be the case-, utilization of such a person in the litigation could well drive settlement regardless of whether the testimony is deemed ultimately admissible since the case is better understood by all parties.

Can You Get the Fees Back in an ADA matter?

The answer to this question is yes regardless of whether title I, title II, or title III is involved. 42 U.S.C. § 12205, which applies to all three titles of the ADA, specifically allows for litigation expenses as part of the award should a party prevail. Further, legislative history clearly indicates Congress included the term litigation expenses in order to authorize the court to shift costs such as expert witness fees, travel expenses and the preparation of exhibits. See, Lovell v. Chandler. It is even more clear with respect to title II matters that expert witness fees would be recoverable as the remedies for title II, 42 USC § 12133, specifically references back to the Rehabilitation Act. Further, when you follow out that string with respect to the Rehabilitation Act, the remedies specifically and explicitly includes expert witness fees.

V
Takeaways:

1. Expert testimony going to whether the person has a physical or mental impairment or whether they are substantially limited in a major life activity with or without mitigating measures would seem to be, except in the rarest of cases, no longer necessary in light of the amendments to the ADA, but that is not to say testimony isn’t needed with respect to substantiating the disability of the individual. This is a huge change from the situation before the amendments to the ADA.

2. Considering the way the ADAAG is woven into the ADA itself, certainly expect lots of expert testimony from architects and people specializing in architectural compliance vis a vis the ADA with regards to whether those guidelines are satisfied.

3. An argument exist, though is it is not a slam dunk, that utilizing an ADA compliance expert with respect to practices may be admissible as it could assist the trier of fact in understanding the evidence or in determining a fact in issue.

4. Regardless of whether the ADA compliance testimony pertains to § V2 or § V3 of this blog entry, such testimony has to be phrased in terms of compliance with the ADA and not in terms of violations of the ADA and also needs to be based upon the facts of the case. Further, there would have to be jury instructions with respect to the issue the testimony covered.

Can Employees Trust Human Resources? Maybe That’s Not the Right Question? Timing of Reasonable Accommodation Request and Causation under the ADA and the Rehabilitation Act Are Not the Same

By William Goren on August 24, 2015

Posted in ADA, Federal Cases, Final Federal Regulations, Guidances, Rehabilitation Act, Title I, Title V

Robin Shea’s latest blog entry, which can be found here. Discusses some of the things people say about HR, including: “HR protect the company’s interests, not yours;” “if you go to HR, HR reports the complaint back to the manager and then you are labeled a malcontent;” “I have yet to see a human resource office show any compassion or follow up on anything;” “Typically the director of HR is lazy and incompetent;” “HR doesn’t give a hoot about the employees;” and “if I were having a problem at work, the last place I would go is HR.” Of course, being in practice as long as I have been, I have a couple of my own that I have heard: “HR is mean, nasty and vindictive;” “HR people think they are lawyers when they are not;” “HR thinks it knows the law better than lawyers;” and “HR are just hatchet folks.”

I don’t think the question of whether employees can trust human resources is the right question. Rather, the question should be whether employees can trust human resources to do the right thing? It is a completely different question. That is, as Robin points out in her blog entry, HR works for the company and not for the employees. Of course, that means HR is representing the company’s interest. However, that doesn’t mean that representing the company’s interest involves not doing the right thing, which can mean advocating that an employee’s request be dealt with the way it should be; a point Robin makes at the end of her blog entry referenced above. It is also a key point of this week’s blog entry as well.

Today’s case is such a case where the HR person did the right thing, and as a result, was specifically lauded many times in an opinion for doing so. Our case is Van Drasek v. Burwell. The case is also useful for discussing the timing of accommodation requests and for seeing the difference in causation between the ADA and the Rehabilitation Act. As is typical, I have divided the blog entry into categories: facts; more facts and HR does the right thing; court’s reasoning on failure to accommodate; court’s reasoning on intentional discrimination and retaliation; and takeaways. The reader is free to focus on any or all of the categories.

I
Facts:

Plaintiff was diagnosed with a type of bipolar disorder that produces symptoms such as depression and anxiety that substantially limits many major life activities including sleeping, thinking, concentrating, processing information, impulse control, and cognitive abilities. Even so, plaintiff enjoyed a long and successful career as a chemist with accomplishments in the field, including a graduate degree in geochemistry, six publications, as well as awards and commendations for her performance. She also worked for eight years at the United States Department of Agriculture where she consistently received fully successful performance ratings. She left her post at the United States Department of Agriculture only because the particular position she held was capped at a lower salary and performance level, which meant that she had no room for promotion. In April 2008, she began working as a chemist for the FDA. She did not inform anyone at the FDA of her bipolar condition diagnosis nor did she request any accommodations at the time she began work there. By August 2009, she was having difficulty at work and sought private medical attention. She did not share with anyone at the FDA that she was seeking and receiving medical attention for her previously diagnosed bipolar disorder. In April 2010, her immediate supervisor issued a performance improvement plan, a document advising her that her on-the-job performance was unacceptable and she had 75 day to improve her work. The plan stated that her performance failed to meet minimally acceptable levels in that she failed to demonstrate technical knowledge and competency in her field and that she failed in program and project management and performance given repeated deficiencies in her analysis. It also said that the plaintiff did not seek guidance or was not capable recognizing when she needed assistance and repeatedly failed to meet deadlines. Finally, the plan described what she needed to do in order to bring her performance up to minimally successful standards and gave her 75 day to improve. It also noted that failure to improve could lead to demotion or removal. More than 180 days after receiving the document, the plaintiff contacted her treating physician and asked her to fill out a family medical leave act form, which the physician did. However, the plaintiff did not give the form to her supervisor or anyone else at the FDA prior to being contacted by her supervisor once again regarding her performance. Six months after the plan was issued, her supervisor informed the plaintiff that she still had not improved and that she was recommending her removal. Four days later, the plaintiff notified her supervisor that she had a disability, that she was in the process of getting her FMLA paperwork together, and that she was requesting accommodations. She followed up a week later by submitting the FMLA paperwork and then hired an attorney to write a letter asking that issues involving the proposed removal and the request for accommodation be addressed. Over the next few weeks, plaintiff’s attorney contacted the FDA’s reasonable accommodation specialist to ascertain the agency’s process for requesting accommodations. She thereafter submitted a formal written request for accommodation, including a letter from her physician detailing the symptoms of her disability and its effect on her job performance. That letter noted her disability and said when the anxiety becomes extreme, it could be exceedingly difficult for the plaintiff to hear and understand instructions, to remember instructions, to comprehend instructions, and to follow instructions. The letter also recommended three specific accommodations including: written instructions for assignment; additional time to complete tasks; and reassignment to a different position. In December, the plaintiff submitted a formal written response to her proposed removal in which she sought to explain why a current work environment was causing her anxiety thereby aggravating her symptoms. In particular, she claimed that another chemist in her workgroup had created an intimidating and dismaying environment by yelling and cursing at the plaintiff, responding in a very sarcastic fashion to her questions, and providing unwarranted criticism of her work. She further alleged that she and others had complained about that person’s behavior to other people in the agency but that no one ever took action.

II
More Facts: HR Does the Right Thing

Once the plaintiff submitted a request for accommodation, Saundra Anderson, the FDA’s reasonable accommodation specialist, informed the plaintiff’s supervisor that she had an obligation to notify the plaintiff of the agency’s eventual decision and a duty to engage in an interactive dialogue with the plaintiff regarding the requested accommodation. When the plaintiff’s supervisor expressed hesitation saying that the FDA did not need to accommodate because her proposed removal happened before the agency was even aware of her disability and before the accommodation request was made, the reasonable accommodation specialist responded by explaining an employee can request accommodations at any time and the agency must respond. After the FDA assigned an agency physician to evaluate the case, that physician wound up agreeing written instructions and extra time were appropriate accommodations, but did not recommend reassignment saying insufficient information existed to act on that recommendation. Neither that physician nor the plaintiff’s supervisor reached out to the plaintiff or the plaintiff’s physician to seek additional information about the reassignment request. The FDA’s physician report was forwarded to the plaintiff’s supervisor in January 2011 along with the statement from the FDA’s reasonable accommodation specialist saying that the plaintiff’s supervisor was required to respond to the accommodation request within 15 days. Even so, plaintiff’s supervisor failed to meet that deadline, and some 75 days later informed the reasonable accommodation specialist that she would not be accommodating the plaintiff. When the reasonable accommodation specialist suggested that reassignment should be offered to the plaintiff, plaintiff’s supervisor allegedly made disparaging remarks to two other FDA employees about how the reasonable accommodation specialist didn’t get it. In addition, when the reasonable accommodation specialist and others in the FDA’s human resource department told plaintiff’s supervisor that reassignment paperwork for the plaintiff was being processed, plaintiff’s supervisor wrote email to other FDA employees stating she needed to go full steam ahead and get the removal decision issued before the reasonable accommodation specialist did too much work, and that she didn’t think she could prevent the reasonable accommodation specialist from reassigning the plaintiff unless she removed the plaintiff first. On April 18 of 2011, the plaintiff’s supervisor formally denied the plaintiff request for accommodation and discharged her from federal service effective April 22, 2011 after stating that there was no position in the office or division to which she could be reassigned. Since the plaintiff was a federal employee, the ADA was not involved, and she brought suit under the Rehabilitation Act alleging failure to accommodate a disability; intentional discrimination because of her disabilities; and retaliation for requesting or seeking accommodations.

III
Court’s Reasoning on Failure to Accommodate or The reasonable accommodation specialist for President?

In denying the motion for summary judgment by both the plaintiff and the defendant on the failure to accommodate claim, the court reasoned as followed:

1. It is absolutely true that the plaintiff requested accommodations literally on the eve of her proposed dismissal. However, a request for accommodation of a disability is timely if the employer is in a position to respond to the request. So, while it is true that the plaintiff did not disclose her disability or request accommodations until months after her supervisor had warned her about her job performance and the consequences of failing to improve, nevertheless, the plaintiff did disclose her disability and sought various work-related accommodation before she was removed from her position.

2. EEOC guidance notes that the employer must make reasonable accommodations to enable the employee to succeed going forward and also notes that there is no deadline by which an employee must request an accommodation.

3. Office of Personnel Management regulations further require that an employee for whom removal has been proposed has the right to provide a written response, including providing any medical records, which the employer must consider before issuing a final decision on the proposed employment action. Further, Office of Personnel Management regulations specifically instruct that the agency allow an employee wishing to raise a medical condition that may have contributed to his or her unacceptable performance to furnish medical documentation. Also, while the preference is that employees submit such medical documentation before a proposed removal, the regulations make clear that the agency must still consider the documentation if it is not submitted until after the proposed removal has been suggested. Further, the regulations say that the agency is deemed to be aware of the reasonable accommodation duty where the employee offers medical documentation after the agency has proposed a reduction in grade or removal.

4. In short, where an employer still in a position to respond to request for accommodations because the requester is still employed, such request is timely and the employer has to consider it.

5. If you are the reasonable accommodation specialist, how would you feel if you read a court opinion that said this:

“Here, Von Drasek requested accommodation prior to being removed, and as it turned out, the FDA’s human resources specialist also specifically noted that the agency did, in fact, have a duty to attempt to honor this tardy request. This court finds that the specialist was right: Von Drasek’s request was timely, and thus, the FDA’s contention that it had no obligation to consider Von Drasek’s request for accommodations under the circumstances presented here is unavailing.”

Congratulations to Saundra Anderson. She gets what it means to be in HR. it is not whether the employees trust you in HR, but whether you can be trusted to do the right thing when the law demands such action. That is, she knew the statute and its implementing regulations and insisted that they be followed. Further, she didn’t back down when personnel did not want to do the right thing.

6. A question of fact existed as to whether the plaintiff could perform the essential functions of the employment position to which she sought reassignment to since she had a great track record prior to taking on the FDA position and she had a medical opinion stating that the particular environment at the FDA created an extremely problematic situation in light of her disability.

IV
Court’s reasoning on Intentional Discrimination and Retaliation

1. The intentional discrimination claim fails because under the Rehabilitation Act the applicable causation analysis is but for causation. That is, the Rehabilitation Act demands such a conclusion because the operative term is, “solely by reason of her or his disability.” Accordingly, motivating factor is not a proper consideration in Rehabilitation Act claims.

A. The ADA standard of causation is a lower standard than under the Rehabilitation Act because the word “solely,” does not appear in that Act when describing causation (doing the math: In title I and title III it is “on the basis of disability,” while in title II, it is, “by reason of disability.”)

B. A discrimination OR a retaliation claim brought under the ADA can rest on a motivating factor due to the difference in causation standards.

2. While it is true that the record clearly establishes that plaintiff’s supervisor personally disliked the plaintiff and wanted to have her removed, it also confirmed that the plaintiff’s supervisor had determined to set out on the path of firing her long before the plaintiff had revealed a disability to the FDA. Accordingly, it is impossible to say that the termination was solely by reason of disability and no reasonable jury could find otherwise.

3. The record is quite clear that the plaintiff was removed because of her past job performance and the FDA’s belief that she would not be able to satisfy the job requirements in the future and not because she requested an accommodation. Therefore, the retaliation claim for requesting an accommodation fails.

V
Takeaways:

1. It isn’t a matter of whether employees trust HR. They shouldn’t. HR works for the company. However, employees and the company have a right to expect that HR will do the right thing when it comes to ensuring that the company carries out labor and employment laws in the manner demanded by the applicable laws and regulations. That includes stepping up to the plate even when faced with resistance from personnel. It certainly would not have been an easy thing for the reasonable accommodation specialist to have acted in the way that she did, and you have to take your hat off to her. One wonders why legal counsel didn’t get involved at the point where there was clearly a dispute between the reasonable accommodation specialist and the plaintiff’s supervisor. Regardless, the reasonable accommodation technical specialist did the right thing.

2. It is pretty clear now that causation under the ADA is a lower standard than causation under the Rehabilitation Act. Nevertheless, especially when it comes to title III matters, it still may be useful to allege a Rehabilitation Act claim so as to open up the possibility of getting damages providing a showing of deliberate indifference can be made (admittedly a high standard, which we discussed here in this blog entry, but at least the possibility of damages exists, which is not allowed under title III of the ADA).

3. If you are an employer and have recommended termination of an employee, you still have the obligation to engage in the interactive process discussing reasonable accommodations regardless of when the employee makes the reasonable accommodation request. Also, be careful about rushing the employee out the door to avoid the strictures of this case as that may be indicative of not sufficiently engaging in the interactive process.

4. There is an interesting thing going on about what solely by reason means with respect to Rehabilitation Act claims. Does it mean “but for,” causation? Yes, it probably does, but that doesn’t answer the question because you could have more than one but for cause (see this case for example discussing this point, which I discussed in this blog entry). You see this all the time in tort law where if there is more than one but for cause, courts will go to a substantial factor test. On the other hand, the Rehabilitation Act does specifically say that causation must be, “solely by reason of disability.” Accordingly, an argument exists that Rehabilitation Act claims are something even beyond “but for,” causation and are “sole cause,” claims.

5. This court said that discrimination or a retaliation claim can be brought under the ADA using a motivating factor analysis with respect to causation. We have discussed this one before. I completely agree that with respect to a straight disability discrimination claim, motivating factor is in play, but it is a much harder case to make that it is in play with respect to retaliation claims. See this blog entry of mine.

6. On the plaintiff’s side, there can be real advantages to hiring an attorney early as the plaintiff did in this case even if that probably means paying the attorney hourly for that work.

7. When it comes to reassignment as a reasonable accommodation, the question is whether the person can do the job that she or he would be reassigned to with or without reasonable accommodations and not whether the person could do the job that he or she currently holds with or without reasonable accommodations (if things have gotten to this point, the answer to the latter question is obviously that they can’t).

8. When HR people step up and do the right thing, employers should reward them for doing so.

Failure to Promote, Failure to Accommodate, Retaliation, and Breach of Confidentiality As ADA Causes of Action

By William Goren on August 17, 2015

Posted in ADA, Federal Cases, Rehabilitation Act, Title I

Hope everyone had a great weekend. The deadline for submitting my blog for the ABA top 100 legal blawgs expired last night. A few have let me know that they have nominated me. Also, I know from last year that it is entirely possible that someone nominated me without letting me know. In either event, your support is very much appreciated. Even if you didn’t nominate me but love to read my blog, your support is appreciated there as well. If memory serves, it won’t be until about December that I find out whether we made it again. Of course, I will keep everyone posted.

Today’s case concerns a variety of causes of action that might arise with respect to the ADA including: failure to promote, retaliation, and breach of confidentiality. The case is Gascard v. Franklin Pierce University, which can be found here (it appears to be an unpublished decision since only a Lexis cite is available). As is typical with my blog entries, I have divided the blog entry into several categories: facts, court’s reasoning (failure to accommodate); court’s reasoning (failure to promote); court’s reasoning (breach of confidentiality); court’s reasoning (retaliation); where was the FMLA claim?; Miscellaneous (individual liability); and takeaways. The reader is free to focus on any or all of the categories.

I
Facts

Plaintiff was a professor of art history at the University and its sole art historian since 1997 as well as the director of the University’s art galleries in 1998. In late 2011, she took 2 1/2 months of short-term disability leave due to situational stress, but returned to teaching in early 2012. Later that year, in October, she applied for the position of coordinator for the Department of fine arts, a position which she was completely qualified for. Nevertheless, the University gave the post to one of her colleagues, a man under the age of 40 who had worked there only since 2010. Shortly after that, she provided her immediate supervisor with a note from a physician stating that because of stress-related factors, she was restricting the plaintiff from meeting attendance and assemblies. In response to that request, the University gave her permission only to leave meetings if she felt symptoms of situational stress, an arrangement which her physician found precarious. In February 2013, she filed a charge of disability discrimination against the University with the EEOC. Later that month, she was the sole volunteer to offer her services to a committee of long trusted colleagues (general liberal education committee), but was without discussion denied that position. The position was awarded to a male colleague that had not volunteered with the explanation that he needed more committee work. A few months later, the plaintiff received a performance review where her requirement for more service to the University was pointedly indicated. The plaintiff also alleged that after she had charged the University through the EEOC, it disseminated personal and sensitive material to a colleague in a position statement to the EEOC charge. In October 2014, she began a period of FMLA leave and returned to work in mid December 2014. On January 13, 2015, the Dean of the University informed her that she would no longer coordinator of the art gallery since she had given that responsibility to another faculty member while she was on leave. While the plaintiff acknowledged that she had been scheduled to take a sabbatical during the spring semester, the semester had yet to start at the time Dean announced that she had been relieved the responsibilities over the gallery. Further, the Dean had also suggested to her that her responsibilities would not be returned to her even after she returned from the sabbatical. She filed a pro se complaint alleging the following causes of action with respect to the ADA: failure to accommodate, failure to promote, retaliation, and breach of confidentiality. The defense moved to dismiss.

II
Court’s Reasoning (Failure to Accommodate Claim)

1. To make out a reasonable accommodation claim, a plaintiff has to show: that she is a person with a disability as defined by the ADA; that she is an otherwise qualified individual (the ADA uses the term, “qualified” now while the Rehabilitation Act continues to use the term, “otherwise qualified.” The two terms are identical in their meaning); and that the defendant knew of her disability and did not reasonably accommodate it.

2. A factual question existed as to whether the University’s claim that they allowed her either to participate by phone or to leave meetings as necessary to avoid symptoms of situational stress was a reasonable accommodation because: her physician deemed it precarious; she informed the defendants that the accommodation did not prevent the bullying at the meetings from continuing to exacerbate her stress; and other faculty members had been given a blanket waiver from attending meetings altogether.

III
Court’s Reasoning (Failure to Promote Claim)

1. To make out a claim for failure to promote, a plaintiff has to show: she is a member of a protected class; she was qualified for an open position; she was denied the position; and the position was given to someone with similar or inferior qualifications.

2. The defendants more or less acknowledged that the complaint alleges these facts as to the department coordinator role because they admitted that the plaintiff had a disability and recognized in their objections that the complaint had made allegations going to the other requirements. Finally, it is not necessary to plead facts sufficient to establish a prima facie case at the pleading stage.

IV
Court’s Reasoning (Breach of Confidentiality)

1. It is not necessary when it comes to disclosure of certain employee medical information that the disclosure be done in furtherance of some act of disability discrimination because the ADA sets forth independent prohibitions on disability-based job discrimination, including failure to accommodate and separately, the disclosure of certain employee medical information.

2. While the majority of cases have held that in order to recover for a violation of the ADA’s confidentiality provisions an employee must show actual damages (emotional, pecuniary, or otherwise), the court did not need to decide whether that requirement applied because even if the requirement did apply, the plaintiff had at this stage of the litigation alleged sufficient facts. That is, her complaint alleged that she suffered emotional distress, humiliation, and anguish and linked that to the alleged disclosure of her medical information to her colleague.

V
Court’s Reasoning (Retaliation)

1. To make out a case for retaliation, the plaintiff has to show: she engaged in protected conduct; she suffered an adverse employment action; and a causal nexus exists between the protected conduct and the adverse action.

2. Due to the timing of the adverse actions and the EEOC charges, the retaliation claim was certainly plausible.

3. The Supreme Court has held that to prevail on a retaliation claim, the plaintiff only has to show that a reasonable employee would have found the challenged action materially adverse. That is, might it well have dissuaded a reasonable worker from making or supporting a charge of discrimination. Accordingly, since this is the proper standard for retaliation claims, the allegations in the complaint were such that it is certainly plausible a reasonable worker would have found the employer’s actions materially adverse in the sense they might well have dissuaded her from making or supporting a charge of discrimination.

VI
I Bet You Were Wondering Where the FMLA Claim Was

The FMLA has its own rules with respect to a person who goes out on leave to attend to a serious health condition. If that person qualifies for FMLA leave, FMLA requires that upon return from that leave the person be restored to that job or an equivalent job. The facts here are such that such a claim would seem to be supported. The plaintiff did move to amend her complaint to add the FMLA claim, and the court granted it saying that the amendments were not the result of undue delay (she filed a motion to supplement her complaint less than two weeks later after being relieved of her responsibilities of gallery coordinator), nor would such amendment be futile because the supporting facts if taken as true, are plausible on their face.

VII
Miscellaneous (Individual Liability)

The court also threw out the individual liability claims as none of the applicable statutes allowed for individual liability.

VIII
Takeaways:

1. The ADA is a complex law and it constantly bounces into other laws as readers know very well. Knowledgeable legal counsel is always helpful when it comes to traversing the ADA and related laws. One wonders why knowledgeable legal counsel was not consulted, at least it appears that way. The type of problems that arose here would have been the kinds of problems that a knowledgeable employment lawyer would have been able to deal with long before reaching the litigation stage.

2. There are situations where you could comply with the ADA but violate the FMLA and vice a versa. Again, knowledgeable counsel is helpful. Also, this case argues for staff training by knowledgeable trainers.

3. This case is excellent for understanding how to make out various claims including: failure to accommodate; failure to promote; retaliation; and to a lesser extent, breach of confidentiality.

4. An adverse action for purposes of employment discrimination has a different meaning than an adverse action for purposes of retaliation claims; the standard for retaliation claims is far lower.

5. The case law is overwhelming that individual liability does not happen with respect to ADA claims.

6. Pro se claims must be taken seriously (I am not saying they weren’t in this case, but am making a general point).

7. An act of disability discrimination is not required with respect to a breach of confidentiality claim per the requirements of the ADA.

If You Don’t Have an ADA Compliance Program, DOJ Will Be Happy to Create One for You: ADA Settlement between United States and Carnival Corporation

By William Goren on August 10, 2015

Posted in ADA, Federal Cases, Title III

On July 23, 2015, the Department of Justice and Carnival Corporation entered into a settlement to resolve ADA claims. That settlement can be found here. The lesson of the settlement agreement is that every company should have a system in place for complying with the ADA. If they don’t, the Department of Justice may just create one for you. As is typical with my blog entries, I have divided the blog entry in the categories: Are cruise ships even subject to the ADA?; history of the case; terms of the settlement agreement; specific provisions of attachment C of the settlement agreement; and takeaways. Normally, I say you are free to read any of the categories or all of them, but in this case, it probably makes sense to read all of them.

Before moving on to actual discussion of the blog entry, the deadline for the ABA Blawg 100 is August 16 at 11:59 PM. If you have not already done so and feel it worthy of a nomination, please go here to nominate.

The Blog Entry

I
Are Cruise Ships Even Subject to the ADA?

The answer to that question is yes as a result of the United States Supreme Court decision in Spector v. Norwegian Cruise Lines, Limited, 545 U.S. 119 (2005). In that case, which I also discuss in my book, the United States Supreme Court in a plurality opinion found that the ADA applied to cruise ships even were they were carrying a foreign flag so long as the internal affairs of the ship were not compromised. The plurality is due to no majority existing for what internal affairs meant.

II
History of the Case

The United States received numerous complaints from individuals with disabilities and their traveling companions alleging that the company discriminated against them on the basis of disability. Examples of such discrimination included the failure to: provide accessible seating and entertainment and dining venues; reasonably modify policies, practices and procedures to accommodate individuals with disabilities; properly provide and reserve accessible accessible cabins to individuals with mobility disabilities; afford individuals with disabilities the same opportunity to participate in the programs and services provided by the company, including embarkation and disembarkation; and, provide effective communication during muster and emergency drills.

III
Terms of the Settlement Agreement

1. The settlement agreement, as is true with most settlement agreements, denies liability, but settles in the interest of future litigation being prevented.

2. Despite the lack of admission of liability, the company agreed to pay DOJ $55,000 in civil penalties and $350,000 in compensation to complainants identified by DOJ. It appears that none of the complainants hired private attorneys because attorneys fees is completely absent from the settlement agreement.

3. The company is given time frames to establish the following: corporate accessibility standards and implementation document; ADA compliance officer; ADA responsibility officers; ADA shipboard officers; training; accessibility request and grievance procedures; and reservations. The specific time frames can be found here.

4. Corporate accessibility standards are specifically incorporated into the settlement agreement. See here. The corporate accessibility standards are quite comprehensive and cover: coordination and management of accessibility issues; request and complaint procedures; dissemination of information regarding accessibility; training; accessible cabins: reservation, booking, and upgrades; accessible airport transfers; embarkation and disembarkation; shore excursions; effective communication; dining; medical and related auxiliary services; youth program; emergency drills; entertainment venue; and service animals.

5. If the corporate accessibility standards and implementation documents are modified, such modifications must be consistent with the agreement and Carnival Corporation has to provide notice and a copy of the change to the Department of Justice within 14 days of the modification.

6. Within 90 days of the settlement agreement, Carnival Corporation has to designate or hire an executive level ADA compliance officer for the company. That individual has the responsibility for overseeing the company’s compliance with title III of the ADA and for implementing and administering the company’s obligations under the agreement. The person has the authority to implement changes and effectuate the agreement. Underneath them, the position of ADA responsibility officers is created and report to the ADA compliance officer. There are actually two ADA responsibility officer positions (one for Carnival Cruise Lines and another for Holland America line and Princess cruises lines). These people serve as the respective brand’s ultimate contact on disability issues for the public and for the party to this agreement. They are given the authority to make decisions regarding accessibility issues where those issues are unable to be resolved by the ADA shipboard officer and have direct access to the ADA compliance officer.

A. The ADA compliance officer and the ADA responsibility officers must be approved by the Department of Justice. The names of such people have to be given to the Department of Justice within 90 days of the settlement agreement. Once the Department of Justice has signed off, the company has to bring these individuals on board.

B. Within the time frames set forth in attachment B, the company has to train the ADA compliance officer and the ADA responsibility officers on the requirements of title III of the ADA. Here is where things get interesting. This particular provision references a paragraph 23. That paragraph talks about training. Attachment B says that within 60 days of the company’s receipt of the United States approval of the ADA compliance officer and the ADA ADA responsibility officers, the company has to submit proposed training materials to the Department of Justice for review and approval. The DOJ then has 30 days to provide any feedback. Within 45 days of DOJ giving approval for the training materials, the company then has to train the ADA compliance officer, the ADA responsibility officers, and other relevant members of senior management having a role in implementing the corporate standards and other aspects of compliance.

Here is what befuddles me. Under the settlement as literally phrased, Carnival Corporation has 270 days if my math is correct which I believe it is, to train the ADA compliance officer and the ADA responsibility officers on title III of the ADA. The number of days is a maximum of 315 days with respect to the training of ADA shipboard officers and all existing first-line supervisors and managers with regular anticipated guest contact and another maximum of 30 days on top of that for all other existing crews/employees with regular anticipated guest contact. This timeframe seems too long. Does the company have an infrastructure in place for dealing with disability issues prior to this timeline being completed? After all, disability issues are arising every day.

7. Each ship covered by the settlement agreement needs to have an ADA shipboard officer on it. This person travels with the ship for the duration of the covered sailing and oversees the onboard department or other individuals responsible for responding to accessibility issues. The person will be an employee of the company and trained in accessibility issues. They are given the authority to address the most common accessibility issues during cover sailings and the ability to rapidly escalate issues outside of their authority to the appropriate ADA responsibility officer.

8. Training materials have to be submitted to the DOJ and approved by them. If you do the math on this one, the deadline for submitting the training materials to the DOJ is a maximum of 195 days from the date of the settlement.

Again, this seems awfully long. In the interim, how are people getting trained on ADA issues within this company?

9. Refresher training must occur for every individual required to receive training under the settlement agreement every two years.

10. Once the training materials are approved, the company has 120 days to train all other existing crews/employees with regular anticipated guest contact. They will also begin training on new hire employees with regular anticipated guest contact within 45 days of the employee joining his or her first ship. Finally, they also have 120 days to implement the corporate accessibility standards and implementation documents; the accessibility request and grievance procedures; and the reservation policies.

Again, we are talking about an industry that faces disability issues on a daily basis. These time frames are rather long. What is going to be happening until then?

11. Every covered senior executive, manager, supervisor, crewmember, an employee asked to receive refresher training every two years.

IV
Specific Provisions of Attachment C

1. For 18 months each covered brand will maintain written report documenting each ADA complaint received in its resolution. What happens after 18 months? Wouldn’t it be a good idea to do this in perpetuity?

2. Each brand’s website must be accessible to persons with disabilities. Same goes for printed materials.

3. The ADA training includes at a minimum: general background on the ADA; an overview of the company’s accessibility policies, practices and procedures (including examples of reasonable modifications of policies, practices, and procedures); etiquette for interacting with individuals with disabilities; the process for responding to ADA requests and complaints; and relevant accessibility features of the ships.

These are the same requirements found in paragraph 23 of the settlement agreement. It is curious that literally speaking no mention of the legal requirements of the ADA appears, though I guess you could say it is implicit. This leads to another question, which is who is going to be doing the training and what will be their background. I don’t see anything in the settlement agreement that talks about who the trainers are, though the training materials have to be approved by the DOJ.

4. With respect to deaf or hard of hearing customers, Carnival may provide necessary related accessible features to the cabins by utilizing portable devices and kits. As I have mentioned before, the best option for the hospitality industry is to go with the portable devices and kits. Otherwise you are creating a feeling of segregation.

5. Service animals are specifically allowed, but emotional support animals are out. Also, nothing in attachment C talking about the limitations that title III entities have with respect to assessing whether an animal is a service dog.

V
Takeaways

1. If you are a company, get an ADA compliance plan in place. Otherwise, you may have the Department of Justice setting up a bureaucracy for you to deal with. In this case, a complete ADA compliance bureaucracy has been created. I count three levels here in a ascending order: Shipboard officer, responsibility officer, compliance officer. No mention of a legal person. Considering that a legal person is necessary, that means four levels. What is the process for making sure that the disability issues get to legal? So, for your company you do want to have a system in place. Does it really have to be four levels? That would be an individual call for each company. Regardless, you do want to make sure you have a system for legal review whenever necessary.

2. Interesting that service dogs are mentioned and emotional support animals are out. Well, I get that due to Title III regulations. However, nothing in the settlement agreement talks about the limitations a title III entity has when it comes to assessing whether an animal is a service dog.

3. Make sure whoever is training your employees on the ADA is knowledgeable and also it would be a good idea for such training to explicitly include at least a general overview of the legal requirements imposed by the ADA.

Understanding the ADA

menu

Academic Deference and Burden of Proof in Reasonable Accommodation Matters

Can a Corporation Pursue a Retaliation Claim?

ADA and the “Sports Association.”

Alcoholism, Associational Discrimination, Retaliation, and Magic Words

Proposed Rules of HHS Implementing the Affordable Care Act Dealing with Nondiscrimination in Health Programs and Activities

Changing Role of Expert in ADA Matters?

Can Employees Trust Human Resources? Maybe That’s Not the Right Question? Timing of Reasonable Accommodation Request and Causation under the ADA and the Rehabilitation Act Are Not the Same

Failure to Promote, Failure to Accommodate, Retaliation, and Breach of Confidentiality As ADA Causes of Action

If You Don’t Have an ADA Compliance Program, DOJ Will Be Happy to Create One for You: ADA Settlement between United States and Carnival Corporation

Understanding the Americans with Disabilities Act, Fourth Edition

About the Author