This week’s blog entry is going to be talking about several issues pertaining to arbitration. Before we do that though, I do want to let all my readers know that the ABA blawg 100 nominations are open again. I was very honored to be a part of the ABA Blawg 100 last year in the in the niche category and would be thrilled to be part of it again. We have had a great year. Our readership expands every month (we now consistently Monday through Friday get close to 150 visitors and 200 or more views a day). The nomination form is here. If you believe that this blog deserves another shot to be in the ABA Blawg 100 this year, do feel free to nominate it. Also, feel free to nominate, as I have done, other blogs that you enjoy reading. The deadline for submitting nominations is 11:59 PM on August 16, 2015. Many thanks for all your support!

Let’s talk about arbitration. In reviewing my blog entries, I see that there is only one blog entry talking about arbitration per se, and so it is time, perhaps past time, to have a blog entry devoted to arbitration. As is my usual practice, I have divided the blog entry into categories: what is arbitration?; can ADA claims be subject to arbitration?; might an arbitration agreement be considered unconscionable?; if a motion to compel arbitration is granted, does the case get dismissed or does the court just grant a stay until the arbitration is completed and why does it matter?; and takeaways. The reader is free to concentrate on any or all of the categories.

I
What Is Arbitration?

Arbitration differs from mediation. In arbitration, you have a neutral third-party that hears both sides of a dispute and then renders a decision in favor of one party or the other. It is very similar to what a judge does at trial. Discovery rules aren’t quite the same. The neutral third-party is selected by the contestants from a list supplied by the company doing the dispute resolution. Could be AAA or JAMS or others. It isn’t clear to me how AAA, JAMS, etc., find the arbitrators. As best as I can tell, they find you. The key difference between arbitration and mediation is that arbitration is a win lose situation (someone is going to win and someone is going to lose), while mediation involves a process that allows for a win-win solution. Sometimes, it is possible that things will start out in mediation and then wind up in arbitration for matters that can’t be worked out. Recently, in one of my LinkedIn forums that I am a part of, someone posted a discussion entry saying a law review article had just found that that people who sign arbitration agreements rarely bring claims. The theory being that the arbitration agreement itself discourages people from bringing a claim at all. I have not read that article yet, and so I can only speculate as to why this might be the case. Perhaps, plaintiffs believe that they won’t get a fair shake in the process. Perhaps, attorneys are just skittish about taking on such cases. There are probably other reasons as well. All of which brings us to three different cases discussing three different things important to know about the arbitration process.

II

Can ADA Claims Be Subject to Arbitration?

In Whit v. Prosper Funding LLC, the defendant operated a peer to peer lending service connecting potential borrowers with potential investors. It also services the loan on behalf of matched borrowers and investors. On September 1, 2014, the plaintiff, who is deaf, applied for a loan through the website. In the process of attempting to confirm his identity, the plaintiff called the defendant using a video relay service, which is a service allowing a deaf individual to communicate by telephone using a sign language interpreter as the medium between him or herself and the hearing party (I have used this service myself where I am the hearing party talking to a deaf client, and you would be amazed at how fast the whole system works, especially when compared to the old relay service system. True, it isn’t a perfect system when compared to a hearing person to a hearing person, but it comes close). The defendant informed the plaintiff that its policy was not to accept calls using a video relay service and that it would not accept his call on that basis. In connection with that policy, the defendant required the plaintiff to provide additional proof of identity and suspended his account. The plaintiff then brought suit alleging that such conduct violated the ADA and corresponding state and municipal statutes. Prior to submitting the application, the plaintiff had to click a box with a hyperlink consenting to the terms of the agreement. Those terms included a provision whereby the parties agreed to have any claim resolved by arbitration. Claims were defined to include: “any dispute, claim, or controversy (whether based on contract, tort, intentional tort, Constitution, statute, ordinance, common-law, or equity, whether pre-existing, present, or future, and whether seeking monetary, injunctive, declaratory, or any other relief)…,” arising from the agreement. Plaintiff had the ability to opt out of the above arbitration requirement by submitting to the defendant written notice of an intent to do so within 30 days after accepting the agreement, and the plaintiff did not submit such notification. When the plaintiff brought suit, the defendant filed a motion to compel arbitration.

The court held that the agreement was phrased in a way that was broad enough to include ADA claims. They also mentioned that 42 U.S.C. § 12212 specifically mentions that use of ADR, including arbitration, is encouraged to resolve disputes arising under the ADA.

III

Are There Situations When Arbitration Agreement Can Be Held Unconscionable?

The second issue faced by the court in Whit was whether the arbitration agreement was unconscionable. If the arbitration agreement is unconscionable, then the arbitration agreement can be thrown out by the courts. In this case, the court held that no such unconscionability existed because:

1. The agreement that the plaintiff consented to said that the defendant will pay all filing and administration fee charged by the administrator and arbitrator fees up to $1000, and the defendant will consider the plaintiff’s request to pay any additional arbitration costs.

2. If an arbitrator issues an award in the defendant’s favor, the plaintiff will not be required to reimburse the defendant for any fees the defendant previously paid to the administrator or for which the defendant is responsible. If the plaintiff receives an award from the arbitrator, the defendant will reimburse the plaintiff or any fees paid by the plaintiff to the administrator or arbitrator.

3. The plaintiff under the agreement was entitled to recover any fees paid to the arbitrator if he prevails in arbitration, while the defendant should it prevail was not entitled to recover such fees.

4. JAMS consumer standards said that when it comes to a consumer initiating arbitration against a company, the only be required to be paid by the consumer is $250, approximately the same as current court filing fees. All other costs must be borne by the company including any remaining JAMS case management fee and all professional fees for the arbitrator’s services.

IV

What If an Arbitration Agreement Has a Clause in It That the Arbitration Award Cannot Be Challenged, Will That Fly?

Let’s say your arbitration agreement has a clause in it saying that the arbitration award cannot be challenged, is that kosher? This was exactly the issue faced by the Court of Appeals of Georgia in Atlanta Flooring Design Centers, Inc. v. R.G. Williams Construction, Inc., 2015 Ga. App. LEXIS 471 (Ga. App., Second Division, July 16, 2015). In this case, the arbitration agreement had a clause in it that said: “the award rendered by the arbitrator shall be final and binding on the parties and judgment upon the award may be entered in any court of competent jurisdiction. Contractor and subcontractor hereby expressly agree not to challenge the validity of the arbitration or the award.” Of course, the company that lost at arbitration challenged the award anyway saying that the clause violated the Georgia Arbitration Code, which tracks very closely federal statutes on the subject. In throwing out the clause, the court reasoned as follows:

1. Since Georgia closely tracks federal arbitration law and its statutes, the court looked to statutes interpreting the Federal Arbitration Act.

2. Under the Federal Arbitration Act, Congress intended to provide a minimum level of due process for parties to an arbitration. Therefore, permitting parties to contractually eliminate judicial review of awards contradicts the text of the Federal Arbitration Act, frustrates that intent, and leaves the party without any safeguards against abuse by the arbitrator.

3. The concurring opinion agreed with the outcome, but noted that even where challenges are allowed such challenges are limited to very specific situations and do not provide for relief even when there is no evidence to support the arbitrator’s award or the arbitrator has made an inadvertent error of law [under Georgia code, OCGA § 9-9-13(b) an arbitrator’s award can only be vacated if the court finds that the rights of that party were prejudiced by: 1) corruption, fraud, or misconduct in preparing the award; 2) partiality of an arbitrator appointed as a neutral; 3) and overstepping by the arbitrator of his or her authority for such imperfect execution so that a final and definite award upon the subject matter submitted could not be made; 4) a failure to follow the procedure laid out in the Georgia arbitration code unless the party applying to vacate the work continues with the arbitration with notice of this failure and without objection; or 5) the arbitrator manifestly disregarded the law.

V
If a Motion to Compel Arbitration Is Granted, Does the Case Get Dismissed or Does the Court Just Grant a Stay until the Arbitration Is Completed? Why Does It Matter?

In Katz v. Cellco Partnership, DBA Verizon Wireless, the US Court of Appeals for the Second Circuit was faced with this very question. Before proceeding with how they reasoned the way they did, the difference between dismissing the case and staying the case matters because if the case is dismissed, then the matter can be immediately appealed to a higher court. Whereas, if the case is just stayed pending arbitration, that is not a final decision of the court and therefore cannot be appealed at that time. Rather, a party would have to wait until the arbitration is completed and the court dismisses the case. In holding that the proper way to go about it was to stay pending arbitration the court reasoned as follows:

1. The court noted that the Supreme Court has yet to decide the issue. Further, the US Courts of Appeals that have visited the issue, are evenly divided on the question.

2. The Second Circuit has not precisely addressed this question previously.

3. Section 3 of the federal arbitration act provides that where a motion to compel arbitration is brought and the court is satisfied that the issue involved in such suit or proceeding is preferable to arbitration, the court, “shall an application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default proceeding with such arbitration.” To the court, “shall,” was a mandatory term creating obligations taking away any judicial discretion. Further, the court said that nowhere in the Federal Arbitration Act is that director abrogated or rendered discretionary.

4. A mandatory stay is consistent with the Federal Arbitration Act’s statutory scheme and pro arbitration policy. For example, the structure of the statute permits immediate appeal of orders hostile to arbitration but bars appeals of interlocutory orders favorable to arbitration. A dismissal essentially gets around that by making an order favorable to arbitration immediately appealable.

5. A mandatory stay is consistent with the Federal Arbitration Act’s underlying policy to move the parties to an arbitrable dispute out of court and to arbitration it quickly and easily as possible.

VI
Takeaways

1. In our first case, Whit v. Prosper Funding LLC, providing the plaintiff can show That Prosper Funding LLC is a place of public accommodation, the plaintiff, in my opinion anyway, could very well win at arbitration due to the effective communication rule, which we have discussed previously.. Also, in this case, the court decided to dismiss rather than stay the proceeding pending arbitration, but since it is a part of the Second Circuit, I would expect for that decision to be reversed and a stay entered instead.

2. When it comes to arbitration agreements, unconscionability could either be procedural (the process is flawed), or it could be related to one party bearing too much of the costs. Unconscionability is not an easy showing to make.

3. Arbitration agreements must allow for the arbitrator’s award to be challenged, even if that challenge can only occur upon very limited grounds.

4. The courts are split on whether the granting of a motion to compel arbitration leads to a dismissal or to a stay of the proceedings until the arbitration is complete. The difference matters because it affects when things can be appealed. The Supreme Court is going to have to step in here and decide this. I do want to point out that it isn’t so obvious that the term “shall,” is mandatory. Many many years ago I attended a CLE by Brian Garner of LawProse, and I learned there that the term “shall,” can have seven different meanings. I was convinced that I knew what I was doing when it came to drafting my contracts (I was General Counsel to Tarrant County Mental Health and Mental Retardation Services at the time), and so when I went back to my office I checked on my contracts. I found that I was using the term to mean four different things, which I felt pretty good about since I have been told that it could mean up to seven different things. Ever since then, none of my contracts contain the word “shall,” in them.

Over the weekend, the ADA turned 25. So where was I 25 years ago? I just received my LL.M. in Health Law from Depaul University (prior to that I had done three years of high dollar value civil litigation), and was the General Counsel for Harris County Mental Health and Mental Retardation Authority in Houston, Texas. Mental Health and Mental Retardation Authorities, which is what they used to be called, are independent governmental entities in Texas responsible for ensuring the safety net for persons with mental health, intellectual disabilities, and substance abuse. They can be quite large. At the time, Harris County MHMR had 1000 employees and a $50 million budget. Obviously, the very nature of such an operation demanded knowing the ADA. Once I got into it, I realized that I had seen the rules before and not only was it a professional necessity, but it was also a way that I live my own life.

With respect to having seen the rules before, in college, I was part of the Governor of Illinois program where I was assigned to a state agency. In my case, I worked under the supervision of a wonderful supervisor, Susan Little, maiden name, and delved deeply into § 504 of the Rehabilitation Act. In particular, I remember spending a great deal of time on the State of Illinois affirmative action program for persons with disabilities and whether it was working. That also led me into constitutional law and the doctrine, which you do not see much of anymore, of a irrebuttable presumption. So, when the ADA was enacted, I had already dealt with the rules involved in the Rehabilitation Act. Therefore, the basic premise of the ADA was familiar to me.

With respect to the professional side, obviously all of the clients of the mental health and mental retardation authorities were individuals with disabilities. So, the organization itself had to deal with clients with disabilities. They also had to be aware of the rights that persons with disabilities had in whatever context they might be in. Finally, the organization had its own independent obligations, such as developing self-evaluation plans and transition plans, both of which needed legal assistance to accomplish.

With respect to the personal side, as readers know, I am congenitally deaf but with the ability to lip read and extraordinarily powerful hearing aids, I have always functioned entirely in the hearing world. Hearing is actually two components. First, there is a volume component, which I have very little of without hearing aids. Second, there is a comprehension component, which is the ability to understand what is being said if the volume is loud enough. I never lost the comprehension component. If the volume is loud enough, I can get 80 to 90% of what is being said (it is extraordinarily unusual for a person with my volume of hearing loss to be able to comprehend the language to the degree I can if the volume is loud enough), and that combined with my lip reading skills, allows me to function in the hearing environment as a hearing person even though with hearing aids I still have a 40% hearing loss. What I realized was that the whole system of reasonable accommodations is something that I have always asked for just to be able to function at optimum capacity in the hearing world. For example, if someone was speaking with their hand over their mouth, I would ask them kindly to put the hand down. In college, I always made sure that I had a professor that spoke clearly and loudly. As time went on, I also developed some joint issues, which is not progressive, so that it became critical for me to use use voice dictation technology, which I started using probably about 17 years or so ago (I believe all editions of my book have been written with voice dictation technology).

In short, I have been involved with this area of the law for a long time, and it is both a professional and personal thing with me. I have always believed that this law works if people are properly educated about it. I have also believed that education and awareness of the rights of people with disabilities have to be seen from the perspective of the person with a disability or things will backfire.

Many of my fellow bloggers have written about how old they were when the ADA was enacted, and the reader can do the math and figure out how old I was when the ADA was enacted (I did not take off anytime from college before going on to law school). When the Rehabilitation Act of 1973 came into effect I would have been 13 or 14 years old. That basically put me in eighth grade. I was very fortunate to have gone to school in a town which at the time that was the center for the deaf and hard of hearing in north suburban Chicago. I was pulled out of classes for speech therapy and lip reading skills, but otherwise was mainstreamed. All of this was long before the IDEA and 504 plans. So, the process was all very informal. It is anybody’s guests act to what would’ve happened if the process was more formal a.k.a. 504 plans and IEP’s. I can say that if the process had been more formal, my parents would have been fierce advocates doing whatever was necessary to ensure that I maximized my achievement. I was fortunate that I grew up with the parents that allowed me to be given all the resources that I needed to succeed as a hearing person in a deaf world and for that I’m grateful. That is not to say that being a deaf person functioning as a hearing person in a hearing world was always easy. This was before the time of cell phones and Bluetooth devices and so people viewed people wearing things in their ears quite a bit differently. Also, being deaf but functioning as a hearing person can be a hard concept for people to grasp.

So, the ADA means a great deal to me. It isn’t really surprising that once I got involved with the ADA as an attorney in 1990, I never looked back. It is extremely important to me that people get this law right. As I say in my book, this law works if people just understand what the law is. That said, readers of my blog know that the ADA is extremely complex and there is no substitute for knowledgeable legal counsel. What I hope I do with my blog and with my practice is demystify the ADA.

In short, thank you Mom and Dad (Dad actually suggested that I pursue this field either in college or law school, and of course I resisted:-), and to all the folks that were responsible for the ADA, including but not limited to: George H.W. Bush, Senator Harkin, Senator Dole, Tony Coehlo, Chai Feldblum, Justin Dart, George W. Bush (he signed the amendments to the ADA that have been a real game changer), and the list goes on and on, and if a name is not mentioned, I mean no disrespect. Without the ADA, I would have no right to be accommodated in a hotel for example (hotels accommodating the deaf can still be a real trip so to speak but it’s nice to have the right to be accommodated), would be unable to watch British movies in movie theaters without becoming incredibly frustrated, and persons with disabilities would have a great deal of difficulty becoming part of society to their fullest capabilities. For that matter, without the ADA, one only wonders what area of law I would’ve wound up in (certainly not an area of the law that calls to me the way this one does).

Happy 25!

Recently, the Department of Justice issued a guidance entitled, “frequently asked questions about service animals and the ADA,” which can be found here. I thought I would go over and highlight some of the questions discussed in the guidance, especially since service animals v. therapy dogs blog entry of mine consistently ranks as one of everyone’s favorite blog entry. I am not going to go over every question-and-answer in the guidance, but will highlight some of them. By clicking on the link above, the reader can see all of the questions. What I have done here, is list the question that the DOJ asks (for sake of convenience, I have sometimes combined questions are rephrased them without changing the substance), and then I offer my own thoughts.

1. What is a service animal?

DOJ: Under the ADA, a service animal is defined as a dog that has been individually trained to do work or perform tasks for an individual with a disability. The tasks performed by the dog must be directly related to the person’s disability.

My thoughts:

A) It is absolutely true that a service animal is a dog. However, miniature horses get much the same protection, but they are not referred to in the regulations as a service animal.

B) Interesting the statement that task performed by the dog must be directly related to the person’s disability because…

2. What question can a covered entity’s employees ask to determine if a dog is a service animal?

DOJ: In situations where it is not obvious that the dog is a service animal, staff can only ask two specific questions: 1) is the dog is a service animal required because of a disability? And 2) what work or tasks had the dog been trained to perform? Staff are not allowed to request any documentation for the dog, require that the dog demonstrate a task, or inquire about the nature of the person’s disability. [italics mine]

My thoughts:

A) On the one hand, DOJ is saying that a task performed by the dog must be directly related to the person’s disability. On the other hand, DOJ is saying that where it is not obvious that the dog is a service animal, staff is not allowed to inquire about the nature of the person’s disability. What that means is that there is a conclusive presumption that once it is explained what work or task the dog has been trained to perform, it is automatically deemed to be related to that person’s disability.

B) The key with trying to figure out whether an animal is a service dog is determining whether it is engaged in recognition and response. If it is, then it is a service dog. If it is just a matter of providing comfort for a person with a disability, then it is a therapy dog.

C) Service dogs are the only ones protected by the ADA. However, other laws protect therapy dogs, including the Air Carrier Access Act and the Fair Housing Act.

3. Does the ADA require a service animal to be professionally trained?

DOJ: No. People with disabilities have the right to train the dog themselves and are not required to use a professional service dog training program.

My thoughts: Make sense. Training an animal to be a service dog is extraordinarily expensive. Some entities will give the dogs away for free, but most service dog cost an incredible amount of money, which many people can’t afford. Also, depending upon disability and the breed of dog, training a dog to be a service dog may be something that is easily doable. For example, I have a miniature poodle and he has basically trained himself to be a service dog with respect to alerting me to sounds when I am in the house. However, he wouldn’t qualify as a service dog because he is just too exuberant in public:-) I suppose if I had the inclination and the time and he gets older, I might be able to break him of that habit. Even so, it is not necessary in my case because I function entirely as a hearing person in the hearing world and a hearing dog would not be of any benefit to me outside my home (unless I suppose, I was staying in a hotel overnight by myself. Even so, it wouldn’t be necessary if the hotel reasonably accommodates my deafness).

4. Who is responsible for the care and supervision of a service animal?

DOJ: The handler is responsible for caring for and supervising the service animal, which includes toileting, feeding, and grooming and veterinary care. Covered entities are not obligated to supervise or otherwise care for a service animal.

My thoughts: This is all absolutely true. However, covered entities are required to make reasonable accommodations to a handler with a service animal as discussed here.

5. Can hotels assign designated rooms for guests with service animals, out of consideration for other guests?

DOJ: No. A guest with a disability who uses a service animal must be provided the same opportunity to reserve any available room at the hotel as other guests without disabilities. They may not be restricted to “pet friendly” rooms.

My thoughts: Every time I read this, I do my best not to go ballistic. If this argument is true, then a deaf person should have the absolute right to insist on a room in a hotel that a nondisabled person could stay in and insist on portable equipment put in so that a deaf person could access the room. Instead, many hotels segregate all persons with disabilities, including the deaf, into certain rooms. A practice that drives me absolutely batty.

6. Does the ADA require the service animal be certified as service animals?

DOJ: No. Covered entity may not require documentation, such as proof that the animal has been certified, trained, or licensed as a condition for entry.

My thoughts: Requiring certification of service animals from what I can gather happens quite frequently (in fact it is such a common occurrence from what I can gather, that it is not unusual for people with service dogs to carry the certification documentation on them), and is a practice that needs to stop.

7. My city requires me to register my dog as a service animal. Is this legal under the ADA? Can the service animal be any breed of dog and if so, must the municipality adjust if they have an ordinance restricting certain breeds of dogs?

DOJ: Mandatory registration of service animals is not permissible under the ADA. However, service animals are subject to the same licensing and vaccination rules applicable to all dogs.

DOJ: A service animal can be any breed of dog and municipalities, must make an exception if a prohibited breed is a service animal.

My thoughts: Readers may also want to check out this blog entry of mine with respect to these issues.

8. When can service animals be excluded?

DOJ: The service animal can be excluded if including the service animal results in a fundamental alteration to the goods, services, program, or activities provided to the public; overrules legitimate safety requirements; or if a particular service animal is not housebroken or out of control and the handler does not take effective action to control it. The DOJ goes on to explain in a separate question that under control often means the service animal is harnessed, leased, or tethered while in public places unless those devices interfere with the service animal’s work or the person’s disability prevents use of the devices. In that case, voice signals or other effective means to maintain control of the animal are in order. Under control also means that the dog should not be allowed to bark repeatedly in a lecture hall, theater, library, or other quiet place. However, barking once or barking a lot because it has been provoked does not mean that the dog is out of control.

My thoughts: I don’t see why the barking exception needs to be restricted to a quiet place. A service dog should not be repeatedly barking, absent provocation, wherever that service dog is located. Also, when it comes to whether a dog is under control, much of it should be common sense.

9. Are hotel guests allowed to leave their service animals in their hotel room when they leave the hotel?

DOJ: No because the dog must be under the handler’s control at all times.

My thoughts: This makes perfect sense because if the dog is not with the individual, it simply cannot be a service dog. On the other hand, I could see situations where it may not always be necessary for therapy dog to be with the individual. Again, therapy dogs are governed by different rules and laws.

10. Are restaurants, bars and other places serving food or drink required to allow service animal to be seated on chairs or allow the animal to be fed at the table?

DOJ: No

My thoughts: True, but restaurants are becoming very dog friendly. Here in Decatur, Georgia for example, it is not unusual to see restaurants with extended patios allow dogs and not just service dogs and therapy dogs, to accompany an owner at their table and even provide or allow water bowls to be at the table.

11. Are churches, temples, synagogues, mosques, and other places of worship required to allow individual to bring their service animals into the facility?

DOJ: no because such organizations are specifically exempt from the ADA.

My thoughts: However, you do want to check your individual State law as it may go beyond the ADA. Also, places of worship may be desirous of doing the right thing and make individual exceptions for people wanting to take advantage of their place of worship.

12. Do commercial airlines, apartments, mobile home parks, and other residential properties have to comply with the ADA?

DOJ: Commercial airlines are subject to the Air Carrier Access Act and apartments, mobile home parks, and other residential properties are subject to the federal Fair Housing Act.

My thoughts:

A) The Air Carrier Access Act, which is something I have written about before, is the exclusive remedy where commercial airlines do not properly deal with the rights of persons with disabilities. The Air Carrier Access Act does not contain a right to a private cause of action. True, a person or their lawyer can file a complaint with the Department of Transportation and they can take action or not.

B) The Fair Housing Act is the law that covers apartments, mobile home parks, and other residential properties.

C) Both the Air Carrier Access Act and the Fair Housing Act allow for therapy dogs.

Before leaving this blog entry, keep in mind that this is only a guidance from the Department of Justice and not a final rule. Accordingly, as a result of the discussion we had in this blog entry, courts will have flexibility with respect to how far they want to go in following this guidance.

I
Introduction

One of the publications that I subscribe to is Disability Compliance for Higher Education . It is an excellent publication for anyone involved with ADA compliance in higher education. Its audience is mainly University 504 and ADA coordinators, University administrators, and professors. One of the cases it featured in its most recent publication was the case of Dickinson v. University of North Carolina. The write up of that case in Disability Compliance for Higher Education focused on two of the issues dealing with the merits of the case [whether the person was a qualified individual with a disability (yes), and whether the University could be justified in imposing a probation agreement because of a disability on a student where that agreement had no basis in the policies of University (no)]. In addition to those two issues, the court also looked at other issues on the merits including:individual liability for public officials in North Carolina (individual liability exists when the conduct complained of is malicious or corrupt, outside the scope of official authority, or where the public employee was negligent in the performance of his governmental or discretionary duties), whether sufficient facts existed to allege retaliation (yes); and whether sufficient allegations were made to support a tortious interference with contract claim (yes).

Keep in mind, that as far as I can tell, this decision is unpublished, and so it’s precedential value is going to depend upon the jurisdiction you are in. You want to check your local rules on that. Also, keep in mind that this case talks about denying a motion to dismiss and we simply don’t know how this is all going to work out once the defendant files a motion for summary judgment after discovery occurs.

All this said, this case is a game changer if the reasoning takes hold in other jurisdictions, especially if this reasoning takes hold in published decisions. The game changer is not on any of the issues noted above, but rather on just what is the statute of limitation for ADA claims. Consistently, in every quarter, one of my greatest hits is my blog entry dealing with the applicable statute of limitation for ADA claims. It makes perfect sense to me that such a blog entry would be a greatest hits every quarter because the ADA itself does not contain an explicit statute of limitations. Also, the ADA has different titles that work different ways leading to different theoretical and practical statute of limitations, which is all discussed in the aforementioned blog entry. If one reviewed the blog entry on the applicable statute of limitation for ADA claims, you will recall I reached the conclusion that the four-year federal statute of limitations could well apply where the individual was making a claim of disability discrimination where either the claim was that they were regarded as being a person with a disability or the claim was based upon them using mitigating measures to compensate for the disability. I came to that conclusion because of the case that was discussed in that blog entry differentiated between interpretation and actually granting new rights and responsibilities. If it was simply a matter of interpretation, then the four-year statute of limitation would not apply. However, if new rights were involved that were not involved before the federal statute of limitations law was enacted in December 1990, then the four-year statute of limitations would apply to mitigating measures and regarded as claims.

II
Facts and Setting the Table

So why is this particular case a game changer if it becomes widely adopted? Well, first you have to know the facts about the person making the claim with respect to her disability. Her disabilities were severe migraine headaches and polycystic ovary syndrome, both of which are periodically completely disabling. Polycystic ovary syndrome can cause a person to be in debilitating pain for weeks at a time. It was undisputed that when the applicable state law is looked to for the applicable statute of limitations, she was not within the applicable statute of limitations. However, she would be within the four-year statute of limitations if it applied.

III
Court’s Reasoning

In holding that the four-year statute of limitations applied, the court reasoned as followed:

1. As mentioned in my post on the applicable statute of limitations, whether the four-year statute of limitations applies depends upon how Jones v. RR Donnelly and Sons Company, 541 U.S. 369 (2004), is interpreted. In that case, the court unanimously held that a cause of action follows the four-year statute of limitations if the plaintiff’s claim against the defendant was made possible by a post-1990 enactment.

2. Prior to the ADAAA, the ADA contained no definition of physical or mental impairment, substantially limits, or major life activities.

3. In Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), the United States Supreme Court said that mitigating measures had to be factored into whether a person was substantially limited in a major life activity.

4. In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, the United States Supreme Court held that in order to be substantially limited in a major life activity you had to be severely restricted or prevented from performing a major life activity. For that matter, this case also talked about how a disability could not be temporary in order to be protected by the ADA, and Fourth Circuit case law was in agreement with that. For example, the Fourth Circuit had previously held that a person with an episodic disability was not protected by the ADA because in general she was not severely restricted or prevented from performing a major life activity.

5. The court looked to the rules of construction contained in the ADAAA whereby the rules of construction say: that the definition of disability needs to be construed in favor of broad coverage of individuals with disabilities to the maximum extent permitted by the ADA; the term substantially limits needs to be interpreted consistently with finding and purposes of the amendments to the ADA; a person can satisfy the substantially limit definition if just one major life activity is substantially limited; episodic disabilities are protected if when active the disability substantially limits a major life activity; and whether a person has a disability must be determined without respect to mitigating measures that the person uses (eyeglasses being the exception).

6. University of North Carolina did not attempt to explain how the plaintiff’s claims would have been viable under the ADA and Rehabilitation Act as they existed prior to the ADAAA. Further, it wasn’t entirely clear to the court that her claim would have been viable.

Takeaways:

1. Doing this particular blog entry has allowed me to revisit my prior blog entry on statute of limitations. Doing that, forces me to conclude that if a case is going to adopt the distinction between interpretation and the granting of rights, that there is a third possibility as to when the statute of limitations of four years will apply. That is, in addition to regarded as and mitigating measures, where a person has a disability that is episodic, it would seem pretty clear that a new right was likely created and the four-year statute of limitations would be in play.

2. This case goes beyond the right v. interpretation distinction in reaching the conclusion that if the claim would not have been viable prior to the ADAAA as the ADA had been interpreted by the courts but would be viable now after the ADA amendments, then the four-year statute of limitations is in play.

3. Paragraphs 1 and 2 of the Takeaways section mean that if you are a defendant, you want to argue that there is a distinction between new rights being created and interpretation being clarified. Keep in mind, that even if you are arguing successfully for that distinction, you still may wind up playing with the four-year statute of limitation quite easily if mitigating measures, regarded as, or an episodic disability is involved. With respect to being a plaintiff, this case allows you to argue that the key question is whether the claim was viable before the ADAAA when compared to after the ADAAA regardless of whether it was a matter of new rights and liabilities or just a matter of interpretation.

4. Also, very significant is two references by this court with respect to who has the burden of proof. In particular, the court said, “Defendants do not attempt to explain how Dickinson’s claims would’ve been viable under the ADA and Rehabilitation Act as they existed before the ADAAA…. Also, the court said that “… The court is not persuaded that Defendants have demonstrated that Dickinson’s allegations of disability would have been sufficient to state a claim before the ADAAA, thus requiring application of the two-year statute of limitations.” The quote taken together leads to the implication that the burden could be well upon the defendant to show that the two-year statute of limitations is in play. It also means a trial within a trial, which is likely to be very expensive, whereby a defendant has to show that a plaintiff’s claim would have gotten them to first base before the ADAAA. In addition to being very expensive to show , the ADAAA is such a game changer on the definitional questions, that such a showing may be an uphill climb in any event.

5. As a practical matter, this case, if it takes, this case will mainly be a game changer with respect to title II of the ADA because, as mentioned in my prior blog entry on statute of limitations, title I of the ADA has strict limitations associated with it and title III of the ADA issues go away if the problem is fixed (think architectural accessibility). Of course, when it comes to a title III matter, if the problem is not fixed, then this blog entry is certainly in play (i.e. the four-year statute of limitations). Also, private universities are subject to title III and so this blog entry will come into play in that context.

Today’s case raises the point that an EEOC charge needs to cover the claim. Further, don’t assume that just because there is a prior EEOC charge on file that a subsequent claim will be automatically covered. The case is Martinez v. University Medical Center. The case also has some other interesting points in it that we will discuss as well. As is my usual practice, the blog entry is divided into categories: facts, issues, holdings, court’s reasoning, and takeaways. The reader is free to focus on any or all of the categories.

I
Facts

On August 4, 2011, Martinez suffered a hernia and an L5-S1 disc protrusion while lifting boxes in the warehouse. He was placed on temporary modified duty with no lifting over 10 pounds, no repetitive bending, and no climbing. He filed a worker’s compensation claim for those injuries on the same date. University Medical Center and Martinez then entered into a modified duty work contract to commence on September 12, 2011. Under that contract, he was given a 90 day assignment with the central supply department and the clinical lab to perform work consistent with the doctor’s restrictions. However, on December 1, 2011, he received a phone call from the manager of pathology advising him that he needed to perform duties related to the third floor tubing system. He had previously worked with the tubing system and knew he could not do what was asked because that work strained his back. He told the manager of pathology precisely that. The manager of pathology responded that because he could not do those job tasks he would be transferred. Martinez also stated that the manager of pathology suspended him. He contacted workers compensation personnel and they told him to clock out and go home because there was no other light duty to perform at the moment, and that he would be contacted when something was available. According to the plaintiff, he remained on suspension from December 1 through January 4 of 2012. Further, when Martinez did not appear for work on December 8, 9th, or 14th, he was suspended for three days for his unexplained absenteeism. He then sent a letter to the director of HR complaining of discrimination based on age, race, and disability. In January 2012, he filed a charge of discrimination with the EEOC marking the boxes on the form to indicate he was alleging discrimination based upon national origin, disability, and retaliation. He identified the beginning date of the discriminatory conduct as December 1, 2011 and the last date as the date he filed the charge, though he did check continuing action as being what the charge related to. This led to another modified work duty contract. He also requested leave under the family medical leave act, which was granted. On June 5, 2012, the University Medical Center sent Martinez a letter indicating that because his medical condition remain unchanged and Martinez confirmed he would not be able to return to work, he was a candidate for a medical separation. Under that system, University Medical Center conducts a 30 working day job search for available alternative work for which that person may qualify with or without an accommodation. He applied for numerous job but did not get any of them. As a result, at the end of that time, he was advised by the University Medical Center that he had 10 days under his collective bargaining agreement to file a grievance or he would be terminated. He did not file any such grievance and he was terminated. Further, he did not file a separate charge of discrimination with the EEOC relating to his efforts at finding another job at the University Medical Center that he could perform with or without reasonable accommodations nor did he file a charge relating to his separation from employment. After the EEOC issued a right to sue letter on the claim that he did file, he sued alleging disability discrimination from the December 1 incident, his efforts to find another position, and his eventual separation from employment. He also alleged retaliation for his refusal to perform work that would have violated his Doctor’s restrictions and for retaliation for filing his EEOC claim. Finally, he also alleged that he was discharged for filing a worker’s compensation claim in violation of Nevada State law.

II
Issues:

1. Did the plaintiff exhaust administrative remedies with respect to all of his ADA claims?

2. Was the plaintiff a person with a disability since his disability was only temporary?

3. Did University Medical Center have the obligation to engage in the interactive process?

4. Did an adverse employment action occur?

5. Are compensatory and punitive damages available for a retaliation claim available?

6. Do the ADA retaliation claims survive a motion for summary judgment?

III
Holdings

1. No

2. Temporary Disabilities are covered by the ADA as amended.

3. No

4. Yes

5. No

6. Yes, but not for the reasons you expect.

IV
Court’s Reasoning

Issue 1

1. The December 1 charge survives because the EEOC charge clearly describes that claim.

2. A court cannot consider incidents of discrimination not included in an EEOC charge unless the new claims are like or reasonably related to the allegations contained in the EEOC charge. A claim is like or reasonably related to allegations contained in the EEOC charge if the claim falls within the scope of the EEOC’s actual investigation or an EEOC investigation that can be reasonably expected to grow out of the charge of discrimination. Factors a court considers in making that determination include: the alleged basis of the discrimination; dates of discriminatory act specified within the charge; perpetrators of discrimination named in the charge; and any locations at which discrimination is alleged to have occurred.

3. The driver in all of this is the factual statement contained in the charge. Since EEOC charges are generally prepared by laymen, the court construes charge language with “upmost liberality.” However, principles of notice and fair play do act as a limit on judicial tolerance. That is, a plaintiff does not have the unlimited ability to extend the claim endlessly beyond the bounds and parameters of the administrative charge because to allow such unwarranted extensions of the scope of the investigation effectively nullifies the administrative exhaustion requirement and converts it into a simple notice requirement that some claim may be brought. That in turn deprives private employers of the opportunity to resolve issues at an early stage and renders the EEOC and state level equivalent agencies unnecessary.

4. The reasonable accommodation claims, the termination claims, and the retaliation claims are not sufficiently like or reasonably related to the allegations in the EEOC charge filed by the plaintiff on January 12 even though all the claims pertain to disability discrimination. While it is true that he alleged continuing violations, he did not allege any facts supporting a pattern or practice of alleged discriminatory conduct. Rather, he just referenced a single incident in his charge against a manager in the department in which he no longer worked in by the time he filed a charge. Therefore, a reasonable EEOC investigation would not have encompassed the various acts related to the plaintiff’s claim that the University Medical Center not only failed to accommodate his disability but then terminated him when he could not find a suitable position.

5. While he did keep EEOC in the loop, at no time did he amend the original charge. Providing documents to the EEOC is not the same thing as amending an original charge. To hold otherwise, allows the plaintiff to avoid requirements for filing a charge, which includes that the charge be filed in writing under oath or affirmation and that the charge be served on the person against whom the charge is made. It would also deprive the EEOC of an opportunity to investigate any new charges. Finally, to hold otherwise would not put the employer on notice of the alleged discrimination nor would it allow the employer an opportunity to address any such issues before the matter goes into litigation.

Issue 2

1. Under the first or second prong of what is a disability under the ADA as amended, an impairment does not have to last for more than six months in order to be considered substantially limiting.

2. Since the University Medical Center failed to address the ADA as amended, it did not meet its initial burden of establishing that the plaintiff was not covered by the ADA at the time of the December 1 incident due to a temporary injury.

Issue 3

1. There was no evidence in the record that the plaintiff had a disability that prevented him from requesting a reasonable accommodation.

2. The plaintiff did not respond to the argument made by the defendant that transferring him to another department where he could perform light duty work was a reasonable accommodation.

Issue 4

1. An adverse employment action includes a suspension. The plaintiff stated under oath that the pathology manager suspended him and that he remained on suspension from December 1, 2011 through January 4 of 2012. Since at this stage of the litigation, the plaintiff’s version of the facts must be accepted as true, the court denied University Medical Center’s motion for summary judgment to the extent was based upon lack of an adverse employment action.

Issue 5

1. Punitive damages may not be recovered against a government, government agency, or political subdivision for an ADA violation.

2. Compensatory and punitive damages are not available for an ADA retaliation claim.

Issue 6

University Medical Center cited no law regarding a prima facie retaliation claim, what constitutes protected activity under the ADA, or pretext and the burdens with respect to summary judgment motions on a retaliation claim. Further, they did not explain the significance of the statement they made that there was no evidence the nondisabled employees were treated more favorably. They also failed to file points and authorities in support of those contentions. Accordingly, by failing to present factual and legal support for its motion with respect to retaliation, the defendant failed to meet its burden under Rule 56 and therefore, summary judgment on this point was denied.

V
Takeaways:

1. Most EEOC charges are filed by individuals and not by attorneys. This case is Exhibit A for why that isn’t always a good idea. Further, you can’t assume that just because an initial charge is on file, the initial charge will cover other related incidents arising subsequent to the initial charge. New EEOC charges or at the very least amending the existing charge, may well be in order. The key is whether the future conduct is like or is reasonably related to the existing charge. As a matter of preventive law, if you are on the plaintiff side, it would probably be a good idea to err on the side of filing a new claim or amending the charge if there is any doubt whatsoever as to whether the new events are like or reasonably related to the charge.

2. Under the first and second prong of the ADA as amended, a temporary disability could well be a disability under the ADA. The six-month figure (transitory and minor), only applies to the regarded as prong.

3. Before an employer has the obligation to engage in the interactive process, they have to be put on some kind of notice that the interactive process is called for as a result of a disability.

4. A suspension is an adverse employment action.

5. It is absolutely true that punitive damages are not available against an entity covered by title II of the ADA. It is also true that punitive damages are not available under the Rehabilitation Act. However, the court just makes the conclusory statements that compensatory and punitive damages are not available for retaliation claims and cites to a Ninth Circuit case. However, as we have discussed here, it isn’t a foregone conclusion that compensatory and punitive damages are not available for ADA retaliation claims.

6. If someone raises an argument in their motions, it is always a good idea to respond to it.

Hope everyone had a great Fourth of July! My daughter and I got to enjoy some fireworks. They do a nice job with the fireworks here.

Today’s case is a long one. In the typical side-by-side version that we all remember from law school, the case ran 30 pages. Nevertheless, there are lots of goodies in this case and so here goes. The case is EEOC v. Celadon Trucking Services, 2015 U.S. Dist. LEXIS 84639 (S.D. Ind. June 30, 2015). As is true with my blog entries, the blog entry is divided into several categories: facts; issues; holdings; court’s reasoning (broken down by issues); and takeaways. The reader is free to concentrate on any or all of the categories.

I
Facts

The defendant is an Indiana based interstate motor carrier company whose drivers operate throughout the United States, Mexico, and Canada. Since they are an interstate carrier, they are subject to various Department of Transportation regulations, including those prescribing health and safety standards for drivers. Among those requirements are that all drivers pass Department of Transportation sanctioned medical examinations and otherwise possess certain minimum medical qualifications. Starting in 2008 and continuing at least through 2011, the process of wanting to work for the defendant began with an application form that asked the following questions:

1. Have you ever been injured, hospitalized, had surgery, been treated by a doctor on an outpatient basis, currently being treated by a doctor, or are you currently on any medications?

2. Have you ever been diagnosed with sleep apnea? If yes, you will need to obtain a sleep apnea form and then be released by the medical department prior to attending orientation.

3. Have you ever had a heart attack, heart bypass surgery, or have had angioplasty (balloon) or stent placed? If yes, you will need to have a release from your physician and be cleared by the medical department prior to attending orientation.

Applicants answering yes to any of these questions and disclosing medical issues were provided with a medical release form from the defendant and were instructed to return completed medical releases directly to the applicant’s assigned recruiter. By this point in the process, no applicant had received job offers. After this hurdle was cleared and the defendant employed recruiter performed background checks and evaluated the applicant’s basic qualifications, those people were invited to attend the next step in the process, a driver orientation program. Until at least 2010 as part of an orientation check in, recruiter called prospective drivers before their arrival and went over the responses to the application form, again asking them the three questions about their medical history and prompting them to obtain release forms if necessary. Even though it was called orientation, attendees at this orientation program had not received an offer of employment, even a conditional one. In fact, a form was signed making it clear that there was no employment relationship at the orientation. The orientation lasted 3 to 4 days. On the first day, applicants underwent physical examinations to ensure that they met Department of Transportation mandated driver health standards. These exams were conducted by staff from a third party, who issued applicants a Department of Transportation medical certificate upon passing the medical examination. The defendant required all applicants for driver position to pass a Department of Transportation physical and receive a certification from the third party in order to receive a job offer.

Anybody who has been following my blog over the years, knows that this kind of system would raise all kinds of red flags. Not surprisingly, the EEOC was alerted and they brought suit for two different types of classes of people. In the first, a group of applicants who never received certification that they had passed the required Department of Transportation physical and therefore never received employment offers. The second group of people were people who were refused employment by the defendant after the third party responsible for doing the physical exams did not certify them as having passed the Department of Transportation physical exam.

II
Issues

1. Were the seven exhibits that the EEOC relied on in its motion properly authenticated?

2. Did the three questions violate the ADA’s prohibition on preemployment disability-related inquiries?

3. Did the medical exams done prior to employment or even a conditional job offer violate the ADA’s prohibition on pre-employment medical exams?

4. For a person to protest a pre-employment disability -related inquiry or a pre-employment medical exam, must they need to be first qualified?

5. When the EEOC brings suit on its own behalf, must it show that the aggrieved individuals suffered an injury in fact in order for there to be standing?

6. Does the doctrine of judicial estoppel apply to the EEOC where some of the aggrieved parties did not disclose their claim in bankruptcy?

7. With respect to the failure to hire claims, the second group of people, must the EEOC has to show that those people were qualified?

8. With respect to the failure to hire claims, did the EEOC furnish sufficient evidence of pretext using the direct evidence approach?

9. Are the failure to hire claims precluded by the fact that the applicant did not exhaust a Department of Transportation process for contesting medical certifications?

III
Holdings:

1. Six of the seven documents were properly authenticated.

2. Yes but some of the questions do fall within the pre-employment medical inquiry safe harbor.

3. Yes

4. No

5. No

6. No

7. Yes

8. Yes

9. No

IV
Court’s Reasoning

Issue 1

1. With respect to the seven documents, four of them were produced by the defendant thereby implicitly authenticating them. Two others were self authenticating because they contained the seal of the EEOC and were signed by the agency’s district director. One of them was thrown out because it was not something that could be authenticated.

Issue 2

1. With respect to the first group of people the EEOC was acting on behalf of, the allegations were a pattern or practice of discrimination claim. As such, all the EEOC had to prove was that a policy existed for a prima facie case to be established.

2. It was not disputed that the defendant made medical inquiries of applicants and required them to submit to physical exams before they were extended even conditional offers of employment.

3. The types of questions asked by the defendant appeared to be the type of open-ended inquiries Congress sought to restrict by enacting the pre-employment medical exams and pre-employment disability -related inquiry provisions of the ADA. The purpose of which was to ensure that a prospective employee’s hidden disability stayed hidden at the pre-hire stage so as to prevent employers from using the disclose the information to screen out applicants whose hiring would entail providing an accommodation. The EEOC enforcement guidance quite clearly states as such.

4. The ADA does contain a provision that a covered entity may make pre-employment inquiries into the ability of an applicant to perform job related functions. That provision allows a company to make pre-employment inquiries into the ability of an applicant to perform job related functions, and/or may ask an applicant to describe or demonstrate how with or without reasonable accommodation the applicant will be able to perform the job related functions. This exception is a narrow exception.

5. Since an essential function of the job means meeting Department of Transportation requirements, the question that went to sleep apnea and heart conditions were within the job-related safe harbor, but the first question was completely overbroad even when the Department of Transportation exacting physical requirements are considered, and therefore, that question does not receive any protection from the safe harbor.

6. A similar issue exists with respect to the defendant’s medical release policy. Some of them, such as those pertaining to brain or heart surgery, concussion, antidepressant prescriptions, and any history of seizures or neurological conditions at least have a relationship to the concerns expressed in the Department of Transportation regulations. However, the mandate for medical releases related to all surgery within the last year and all orthopedic surgeries within the last five years has no relation to any specific Department of Transportation requirement. Therefore, the medical release practice with respect to surgery and orthopedic surgeries did not fall within the safe harbor either.

Issue 3

1. §102(d) of the ADA prohibits pre-offer medical examinations entirely and does not contain within it a safe harbor.

2. The defendant failed to explain how subjecting an applicant to a medical examination before receiving a conditional job offer is a function of business necessity.

3. Case law suggesting to the contrary is simply not right. Further, other courts have found a prohibition on pre-hire examinations applicable even where the examinations are required pursuant to a Department of Transportation regulation.

4. EEOC guidance makes clear that the provisions dealing with pre-employment disability -related inquiries and pre-employment medical exams does not gut Department of Transportation regulations, rather they just channel them into the post offer pre-employment phase of the hiring process. In fact, the ADA does recognize that employers will often need to conduct medical examination to determine if an applicant can perform certain jobs effectively and safely. The ADA requires only that such examination be conducted as a separate, second step of the examination process, after an individual has met all other job prerequisites.

Issue 4

1. With respect to whether a person must be a qualified person to bring such a claim, the court wasn’t buying it because the statute specifically says that employers may not require any job applicants to submit a medical inquiry or examination prior to extending at least a conditional offer of employment. The key here being the term, “job applicants.” Job applicant is of course a term with a completely different meaning than qualified individual with a disability, one that is broader than a qualified individual. It is clear, that the statute is using job applicant and qualified individual with a disability to mean different concepts.

2. A statute needs to be construed so that its effect is given to all provision so that no part of the statute becomes inoperative or superfluous,void or insignificant.

Issue 5

1. Since the EEOC is bringing this claim on its own behalf, the injury in fact to the EEOC, for it to have standing, is a violation of the federal statute itself. That is the case here as a violation of the pre-employment disability -related inquiry and unlawful medical examination provisions occurs as soon as an employer’s conduct goes beyond those bounds. Further, since the injury in fact occurs the minute a violation of the federal statute occurs, it doesn’t matter what damages for the individual class members might be available.

Issue 6

1. Because the EEOC is bringing the suit in its own behalf, the typical rule of judicial estoppel with respect to claims not being mentioned in a bankruptcy filing being able to be acted upon later, simply doesn’t apply since it was not the EEOC that was a part of the bankruptcy proceeding.

Issue 7

1. Once a pattern or practice claim is not involved, the EEOC then must prove the elements of the failure to hire claim as to each individual for whom it seeks relief. That is, since the defendant cannot employ drivers who had not produced a copy of a doctor’s certificate indicating they are physically qualified for the position under Department of Transportation safety regulation, the EEOC must show that the particular individuals (the second class), met the requirements imposed by the Department of Transportation regulations before they could demonstrate that those individuals were qualified job applicants (in other words, the Department of Transportation certification was one of the qualifications for the job).

2. Since it would frustrate the purpose of the statute to allow an employer to subvert the independent medical certification process and then turn around and point to a claimant’s lack of certification as a defense to a discrimination claim, whether such a person meet the qualification for being an interstate truck driver is a matter of whether they were certified by the Department of Transportation or able to obtain Department of Transportation certification.

3. After doing the analysis in paragraph 1 and 2 of this section, four of the six claimants claims were thrown out, but two remained.

Issue 8

1. The EEOC elected to proceed under the direct method of proving discrimination, perhaps because the EEOC never demonstrated that the truck driver positions for which the claimant were rejected were filled by nondisabled applicants (it is of course debatable whether comparables in the ADA world even must be shown as this blog entry makes clear).

2. For the direct evidence approach to work, it is sufficient for a convincing mosaic of circumstantial evidence to be present and it is not necessary to show that each individual act was motivated by discriminatory animus.

3. Plenty of evidence existed of coordination between the defendant and the third party provider doing the physical exams to suggest a question of fact that denial of employment based upon the exam not being finished was nothing more than a pretext.

Issue 9

1. While it is true there is a process for contesting Department of Transportation certifications, that process only applies where there are multiple certifications involved. In this situation, the applicant’s were never given an opportunity to get certified in the first place. Therefore, the exhaustion requirement does not apply.

V
Takeaways:

1. There are different kinds of clients out there. First, there are clients that just want to do what the law allows. Second, there are clients that are very serious about preventive law. That is, preventing problem from happening in the future even if that means going beyond what the law currently allows. There are other clients that want to push the envelope as to what the law allows. One simply can’t know whether Celadon is a client that wanted to push the envelope as to what the law allows or whether being faced with a drop dead liability situation, their lawyers came up with a very creative defense that the court bought in part. Clearly, Celadon’s approach was extraordinarily risky since by putting everything in writing and not following the pre-employment medical inquiry or disability -related inquiries scheme of the ADA, smoking guns were created for a pattern or practice claim on the part of the EEOC.

2. What is interesting to me is that prior to reading this case, it never occurred to me that the job-related safe harbor for pre-employment medical inquiries could actually extend to anything outside of the interview process. This case stands for the proposition that if the questions are related to a required regulation necessary for the job or to the job itself, such questions may be permissible even if they are in writing and are outside of the interview process as that term is commonly understood. Whether this is intended by the ADA is another story. One wonders if the EEOC might not test this theory on appeal, assuming there is one.

3. Performing a pre-employment medical exam is out. As the court mentions, switching the timing of the medical exam from pre-employment medical exam to post conditional job offer should not really upend the process at all. True, to withdraw the conditional job offer, the employer would have to show that the withdrawal was job-related, consistent with business necessity, and the person could not do the essential functions of the job with or without reasonable accommodations. That said, since very specific Department of Transportation regulations are involved here, it shouldn’t be that difficult to meet the standard should the medical exam post conditional job offer reveal a person that could not satisfy the Department of Transportation regulations.

4. With respect to EEOC standing, the EEOC has standing the minute a federal law they are responsible for implementing is violated.

5. Failure of the plaintiff to disclose the claim in bankruptcy is not going to stop the EEOC from pursuing that individual’s claim on the EEOC’s own behalf.

6. When it comes to Department of Transportation certification, a person with a disability will be qualified if they were either certified by the Department of Transportation or able to obtain Department of Transportation certification.

7. Direct evidence does not require discriminatory animus; a convincing mosaic of circumstantial evidence will work.

In a previous blog entry, which I keep on my greatest hits section of my blog, I discuss what you need to do with respect to auditing your educational institution for ADA compliance. In #14 of that blog entry, I mentioned that whatever services are being offered on the Internet, the institution needs to investigate and ensure that those services and programs are accessible to people with disabilities. In another blog entry, I talked about when a private entity needs to have all of its operations accessible to persons with disabilities per the Rehabilitation Act if they take federal funds. In light of those blog entries, I am struggling to understand the approach taken by the defense team of MIT and Harvard in the MOOC accessibility cases. In identical filings, the Department of Justice in their statement of interest rebuts the claims of both Harvard and MIT. In short:

1. The doctrine of primary jurisdiction is not applicable. Primary jurisdiction is a doctrine that says the court should defer the case until proper rulemaking ensues. In this case, that would be until the Department of Justice promulgates a final title III rule regarding website accessibility standards. The Department of Justice says that doctrine should not apply for several reasons:

A. The title II regulations regarding web accessibility were scheduled for publication in spring of 2015 but is not yet published. The title III regulations applicable to web accessibility are scheduled for publication in the spring of 2016 and then a period of public comment must ensue before the final rules are issued. Finally, the scope and timing of any final rule on web accessibility is speculative and “far from imminent,” and while the title III proposed rule is currently scheduled for spring 2016 publication, there is no scheduled date for publication of the final rule (I might add that one wonders if the presidential election will affect the timing of these regulations or if the regulations will come out at all prior to the election).

B. Since title III rulemaking on the subject is not imminent, dismissing or staying the case on primary jurisdiction grounds significantly prejudices plaintiff with disabilities.

C. The effective communication provisions are something easily within the competency of the court and no specialized agency expertise is necessary to address those claims.

2. From the statement of interest, both Harvard and MIT argue two points. First, websites are not subject to title III’s barrier removal requirements nor are they subject to the Rehabilitation Act. Second, online programming does not need to be captioned because a place of public accommodation does not need to stock accessible or special goods. The Department of Justice is having none of it because:

A. MIT and Harvard, as places of education are places of public accommodations under the ADA and as such are subject to the general nondiscrimination and effective communication requirements.

B. Communication barriers need not be structural since title III facilities are required to provide auxiliary aids and services to persons with disabilities.

C. The accessible goods or inventory approach does not fly because persons with disabilities are not seeking accessible goods or a different inventory, rather they are only seeking access to the same content that the universities make available to the general public.

D. § 504 applies to anyone that is a qualified individual with a disability. Further, the final regulations implementing § 504 of the Rehabilitation Act, in particular 34 C.F.R. § 104.4, require; that a recipient of federal funds ensure qualified individuals are given the opportunity to participate in or benefit from an aid, benefit, or service equal to that afforded others; ensure that equally effective aid, benefits, and services are given so that otherwise qualified persons with disabilities have the opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as persons without disabilities; and prohibits the provision of an aid, benefit, or service that is not as effective as that provided to others.

E. Since MIT and Harvard are offering its online programming to all members of the general public, plaintiffs are qualified/otherwise qualified because they meet the essential eligibility requirements for such services.

F. DOJ guidance makes clear that colleges and universities must ensure that emerging technology when it is required to be used must be implemented in a way that afforded persons with disabilities an equal opportunity to participate in and benefit from the technology.

Takeaways:

1. Interesting that the Department of Justice mentions in its filings the 504 implementing regulations and the Rehabilitation Act, but they don’t mention what was discussed in this blog entry that talks about how a place of education that takes federal funds must have all of its operations accessible to persons with disabilities.

2. The Department of Justice point that accessible goods and a different inventory are not what is involved here, but rather accessibility to what is being offered by the University involved is, seems to me to be fairly compelling.

3. Within the definition of auxiliary aids and services under the ADA, it is pretty clear that it is just not structural barriers that are involved, but all kinds of communication barriers.

4. The effective communication regulation is a final regulation, and therefore the courts have to give it Chevron deference (hard to believe that this regulation would not satisfy the requirements for Chevron deference).

5. If the University is indeed offering a product to all members of the public, then any member of the public with a disability would be an otherwise qualified person with a disability as the only essential eligibility requirement would be being a member of the public.

6. Don’t expect web accessibility rules, particularly title III rules but perhaps title II of rules as well, anytime soon.

In short, I wonder if there is something missing from what I know from this statement of interest filing because I am really struggling with the approach that is being apparently taken by the universities.

We will have to stay tuned for further developments.

I am back to my Monday postings. In my latest article, just published by the ABA GPSolo magazine, I discussed the legal parameters that an employer is faced with when it comes to dealing with an employee addicted to the Internet. This week’s case continues that line of thought, albeit with respect to alcohol and drug addiction.

I
Facts

The case is Quinones v. University of Puerto Rico decided by the United States District Court for the District of Puerto Rico on February 13, 2015 (I realize that citing to a case back in February when my blog entry is at the end of June is a bit against character for me. However, I was waiting for the article to come out due to the synergy of this case and the information discussed in that article before writing a blog entry on it).

In this case, the plaintiff was a licensed physician in Puerto Rico. Prior to her admission and enrollment in the ophthalmology residency program at the University of Puerto Rico School of Medicine, she enrolled herself in an alcohol rehabilitation program in March 2011 to treat her alcoholism. After being released from a rehabilitation facility with a number of prescriptions, she then began to use them in a manner not prescribed by her physician on or about July 2011 (not necessarily a surprise here, because addicts frequently switch from one addiction to the other). That same month she was admitted and enrolled in the residency program. Her addiction to the various drugs caused her to have visual disturbances, speech problems and dizziness thereby making it very problematic to comply with certain requirements of the residency program. She then met several times with the residency program committee to discuss her drug addiction and how it was affecting her performance. On September 10, 2012, she was terminated from the residency program and then promptly filed suit in the Superior Court of Puerto Rico requesting immediate reinstatement to the residency program. Subsequent to that suit, the plaintiff and the University of Puerto Rico reached an agreement with the residency program agreeing to temporary leave without affecting the decision to terminate her and granting her the opportunity to formally request reasonable accommodation through the school’s institutional committee on federal laws. On November 30, 2012, she submitted medical and testimonial evidence of the rehabilitation to that committee. In particular, the evidence she presented showed she had been free from using alcohol since March 5, 2011; she had been free for six months from taking prescription drugs; and she was actively participating in AA and Narcotics Anonymous meetings. Even so, the committee on federal laws rejected her request because in their view: she could not comply with the essential function of the position; she had a high risk of relapse; she would have required constant supervision of a faculty member and providing such supervision would constitute an undue hardship for the residency program. Other important facts include: University of Puerto Rico is a public entity; in her complaint, she was referred to as a “rehabilitated alcoholic,” and as an “active addict;” plaintiff did not file with an administrative agency prior to filing suit; and her complaint brought suit under title II of the ADA as well as under title V for retaliation.

II
Defenses/Issues

1. Failure to exhaust administrative remedies.

2. Plaintiff was not a person with a disability.

3. Plaintiff was not a qualified person with a disability because of the safe harbor regarding alcohol and drug addiction.

4. Plaintiff did not allege sufficient facts to support a retaliation claim.

III

Court’s Reasoning

Issue 1

1. Since title II of the ADA is keyed into the Rehabilitation Act and the Rehabilitation Act does not require exhaustion of administrative remedies, Title II of the ADA also does not require exhaustion of administrative remedies. This is not as simple as it seems because in many respects a resident would seem to be an employee. In fact, much of the decision uses terminology and reads as if it is a decision being made under title I of the ADA. Nevertheless, they are also learning to be physicians and are essentially in a student mode. The court wasn’t buying the claims made by the defendant in the supplemental brief that title I provided the exclusive remedy because title II covers programs and services of a public entity, which includes University of Puerto Rico, and so therefore, it follows that the plaintiff’s claims arise under title II. Readers may also want to check out last Friday’s blog entry of mine as well.

Issue 2

1. The plaintiff met her burden with respect to showing a physical or mental impairment that substantially limits one or more of her major life activities only with respect to drug addiction and not the alcohol addiction. With respect to the alcohol addiction, fatal to her claim was that her complaint referred to her as a, “rehabilitated alcoholic.” Further, she did not allege any instances in which her former consumption of alcohol limited any of her major life activities during her residency training.

2. With respect to the drug use, she was able to show that various physical impairments (visual disturbances, the problem, and dizziness), and major life activities (such as learning, reading, concentrating, thinking, communicating, interacting with others, and working), were substantially limited.

Issue 3

1. The ADA provides at 42 U.S.C. § 12114(a), that an employee is not a qualified individual with a disability if that person is currently engaging in the illegal use of drugs where the covered entity acts on the basis of such use.

2. The problem is what does what “currently engaging,” mean? As my article linked to above discusses in greater detail, courts are all over the place on this. In this particular case, the court cites many of the cases on the issue but glosses over their significant differences. It winds up taking a very broad approach by saying that currently engaging means that the illegal use of drugs is an ongoing problem. Further, a significant period of time must pass for an individual to no longer be considered a current user because the safe harbor does not give statutory protection to an employee illegally using drugs during the weeks and months prior to her discharge even where the employee is participating in a drug rehabilitation program and is drug-free on the day she is fired.

3. The ADA treats drug and alcohol addiction differently because it allows the evaluation of a person’s performance stemming from their drug use and drug-related misconduct. It also allows employers to terminate based upon that conduct without having to go through the reasonable accommodation process.

4. Plaintiff fell within the safe harbor because: 1) she alleged that she had stopped illegal use of prescription drugs only three months prior to being terminated; 2) the University of Puerto Rico only became aware of her addiction after several internal meetings and hearings with the plaintiff as a result of her problem complying with the residency program’s requirements; and 3) being a resident involved being entrusted with a high level of responsibility.

5. The court did note that one case found the person who had refrained from drug and alcohol use for one year was not currently engaged in drug use.

6. With respect to the reinstatement, University of Puerto Rico is not required to reinstate the plaintiff as a resident since the plaintiff was lawfully discharged in the first place. That is, since the plaintiff was lawfully discharged on the basis of her illegal use of drugs, the ADA did not require the University of Puerto Rico to afford her another chance. Further, plaintiff failed to show how being reinstated would’ve allowed her to perform her job function properly without endangering others (on this point, this blog entry might be helpful).

Issue 4

1. To state a valid retaliation claim, the plaintiff has to show: 1) she engaged in protected conduct; 2) she suffered an adverse employment action; and 3) there was a causal connection between the protected conduct and the adverse employment action.

2. Even where a plaintiff fails to succeed on a disability claim, a claim for retaliation may exist.

3. Sufficient facts were pled supporting a retaliation claim because: 1) not only did she file a lawsuit in state court arguing that the defendants discriminated against her on the basis of her alleged disability, but also, she filed a request for reasonable accommodation after she agreed to voluntarily dismiss the lawsuit. Both of which constitute protected conduct under the ADA’s retaliation provisions; 2) since the plaintiff was suspended from the residency program at the time of the denial of reinstatement, it follows that she suffered an adverse employment action when defendants refused to reinstate her and permanently terminated her; and 3) the time between the October 9 agreement and the proximity between her protected conduct and the adverse employment action were sufficient to establish a causal link, at least at this preliminary stage.

IV
Takeaways

1. Words matter. I get why a person would be referred to as an active addict or a rehabilitated alcoholic because that is the terminology that is used. However, such terminology may have an adverse impact if used without understanding the context which the language occurs in. Also, when faced with situations like this, a plaintiff may also want to consider using “the record of,” prong.

2. This case reads like an employment decision under title I of the ADA but is actually a title II case. It is far from clear whether a residency situation places the person in title I or title II since the duties of a resident resemble both an employee and a student in significant ways. On the defense side, you certainly would want to argue that title I of the ADA is the exclusive remedy. True, as we have seen, in a blog entry referred to above, § 504 applies to employment. Even so, on the defense side, it would be worthwhile to knock out the ADA claim and stick with the § 504 claim as it applies to employment because § 504 causation, solely by reason of, can be a very difficult standard for a plaintiff to meet.

3. As discussed in my article, also referenced above, what it means to be currently engaged in the illegal use of drugs entirely depend upon the jurisdiction. True, on a very broad level, as noted by the court in the decision being discussed in this blog entry, there is agreement, but the differences between the jurisdictions are extremely significant on a case-by-case basis. Ultimately, the Supreme Court will have to step in. For now, the practitioner definitely wants to review how his or her jurisdiction deals with currently engaging as the subtleties matter a great deal.

4. If you are a plaintiff dealing with a student that is removed from a program due to alcohol or drug addiction, it may be a very good idea to not consent to any reinstatement system before at least a year has passed rather than agreeing to a shorter time. As the cases make clear, for the safe harbor to apply, it doesn’t matter if the individual is actively using drugs or alcohol.

5. I don’t understand the reasoning of the court with respect to saying that since the plaintiff was lawfully discharged on the basis of her illegal use of drugs, a second chance was not required under the ADA. The ADA does protect addicts who are recovering addicts and therefore, should allow for second chances in those situations. Of course, we are then back to what does it mean for a person to be “currently engaging in drug and alcohol use.” Also, in that situation, the concept of direct threat must be considered as well.

6. Just because a disability-based discrimination claim get knocked out, does not mean that the retaliation claim will be knocked out. Retaliation claims can be very expensive, though whether actual and punitive damages are available is very debatable as discussed in this blog entry.

Just over a month ago, I blogged on the issue of whether title II of the ADA applies to employment . I followed up in a comment to that blog entry discussing whether § 504 applies to employment. On June 15, 2015, the Fourth Circuit in a published decision weighed in.

In Reyazzudin v. Montgomery County, Maryland, the Fourth Circuit was faced with the question whether title II of the ADA applies to employment. They were also faced with the question of whether § 504 applies to employment. Finally, they were faced with the question of whether it was proper for the District Court to grant summary judgment on the grounds that accommodating the person with a disability would constitute an undue burden. As is my usual practice, the blog entry is divided into categories: facts; court’s reasoning on § 504 applicability to employment; court’s reasoning on whether title II of the ADA applies to employment; court’s reasoning on whether a genuine issue of material fact existed with respect to an undue burden; and takeaways. The reader is free to concentrate on any or all of the categories.

I
Facts

In this case, an employee who is blind worked for Montgomery County, Maryland. The County open the new consolidated CallCenter using software that was inaccessible to blind employees. The County did not transfer her to the CallCenter along with her sighted coworkers and also did not hire her for a vacant position there. Instead, they kept her salary and benefits the same but gave her make work. More particularly, the software used in the CallCenter could be operated in either of two modes: high interactivity and standard interactivity. The high interactivity mode is not accessible because it is written in Microsoft ActiveX, which uses a technology that screen reader software cannot interpret. That said, standard interactivity mode is accessible because it is written in standard HTML and JavaScript, which are compatible with screen reader software. While the county’s license allows it to run software in either mode or with some employees running it in one mode or the other at the same time, the county nevertheless chose to configure the software in high interactivity mode for all employees. Therefore, features of the software involving a toolbar, smart script, and email response that were not accessible to screen readers. The cost of fixing the problem after the purchase depending upon the expert (plaintiff or defense) ranged anywhere from almost $130,000-$648,000. That may seem like a lot of money, and I suppose it is. However, the county’s total budget for fiscal year 2010 was $3.73 billion. The budget for the software was $4 million. By late January 2011, the county had spent $11.4 million on the CallCenter, but the county estimated that the CallCenter utilizing the software had saved at $10.3 million.

II
Court’s Reasoning on § 504 Applicability to Employment

Since § 504 applies to all operations of a governmental entity, that by its terms includes employment. Also, the court specifically references the provisions of the Rehabilitation Act that relate back to title I of the ADA. Interestingly, the decision does not reference the United States Supreme Court opinion mentioned in my comment to my first blog entry on this subject. It also does not address the possible alternative meaning of the reference to title I, which I discussed in III(2) in the blog entry that I posted a month ago.

III
Court’s Reasoning on Whether Title II of the ADA Applies to Employment

The Fourth Circuit, after noting a split in the circuits (which I noted in my prior blog entry), adopts the majority view that it unambiguously does not. They reasoned as followed:

1. Services, programs, or activities in title II of the ADA most naturally refers to outputs provided to the public rather than its inputs, such as employees.

2. Title II of the ADA, unlike § 504 of the Rehabilitation Act, does not contain a special definition for “services, programs, or activity.”

3. The definition of a qualified individual under title II clearly is not referencing employment especially when compared to the definition of qualified under title I of the ADA.

4. Interpreting title II so as to not cover employment gives effect to Congress’s decision to define the term qualified individual differently in the two titles.

5. Each title of the ADA has its own heading: title I for employment; title II for public services; and title III for public accommodations.

6. Reading title II to cover employment diminishes, duplicates, and even render superfluous title I of the ADA.

7. Congress delegated different agencies to enforce each title of the ADA (for example, EEOC for title I and DOJ for titles two and three).

8. Congress expressly cross-referenced title I but not title II when it came to mandating the standards applicable to employment discrimination claims brought under § 504 of the Rehabilitation Act (but see my main blog entry on this).

9. The 11th Circuit decision reached the opposite view through a cursory recitation of part of title II’s text, no analysis of the structure of the ADA, and heavy reliance on legislative history and the Atty. Gen.’s regulations. However, since title II unambiguously does not apply to employment, there is no need to get into legislative history or regulations.

IV
Court’s Reasoning on Whether a Genuine Issue of Material Fact Existed with Respect to an Undue Burden

With respect to whether it was proper for the District Court to grant summary judgment on the issue of undue burden, the court held that a genuine issue of material fact existed and summary judgment was not proper. There are lots of good tidbits here, including:

1. At the summary judgment stage, the employee only has to show that accommodation seems reasonable on its face. Once that is done, the employer then must show special circumstances demonstrating undue hardship.

2. A genuine issue of material fact existed with respect to whether the plaintiff could perform her job with or without reasonable accommodations. She in fact suggested two different options: configure the software to run concurrently in the accessible standard interactivity mode; or create a custom workaround for the toolbar.

3. Plaintiff’s expert worked with call centers in California and Pennsylvania that operated in both high interactivity and standard interactivity mode. She also worked with a third CallCenter in Illinois where all the employees, including one blind employee, operated in standard-interactivity mode. A fourth CallCenter client was accessible through a custom solution.

4. It cannot be said that operating in high-interactivity mode would be an essential job function since other call centers were able to operate without it.

5. The accommodation given to the plaintiff of keeping her salary and benefits the same but giving her make work raise a genuine issue of material fact as to whether she was given a meaningful equal employment opportunity to attain the same level of performance available to employees without disabilities having similar skills and abilities.

6. The District Court’s analysis regarding whether an undue burden existed, and properly waived conflicting evidence, did not view the evidence in the light most favorable to the plaintiff, and overemphasized one factor of whether an undue burden exist while overlooking the others.

7. In this particular situation, two people both qualifying as experts have different views as to the costs of the proposed accommodations thereby setting up a battle of the experts. Further, at the summary judgment stage, it is not the judge’s function to weigh the evidence and determine the truth of the matter but only to determine whether a genuine issue exist for trial. Also, the District Court did not figure in the number of employees of the software company, the people the county paid to manage the system in the amount they paid, or the considerable savings the county realized from creating a centralized Call Center.

8. The District Court made a mistake in crediting County’s arguments about how the proposed accommodation could negatively affect the overall operation of the CallCenter because in a summary judgment motion the evidence should be viewed in light most favorable to the plaintiff as the nonmoving party and not to the moving party. Here, the plaintiff presented evidence of other call centers operating simultaneously in both modes as well as her expert’s opinion that the proposed solution for accessibility would allow her to work at the CallCenter without altering the experience of those with sight.

9. The District Court was misplaced in relying on the county’s budgeting to determine whether the accommodations were reasonable. Such an approach effectively cedes the legal determination to the employer allegedly failing to accommodate the employee with a disability. To hold otherwise, would mean that an employer could budget zero dollars for reasonable accommodations and would always avoid liability on the grounds of undue burden. In this situation, the county’s overall budget was $3.73 billion and the CallCenter’s operating budget was 4 million and those were the relevant factors to consider not the line item budget for reasonable accommodations.

10. Cost of the reasonable accommodation cannot be viewed in isolation since it is the relative cost, along with the other factors that matter. The court noted that other call centers were able to accommodate blind employees.

V
Takeaways

1. I found it interesting that the court said that § 504 applies to employment, but did not cite to the Supreme Court opinion that held as much nor did they explore the possible alternative meaning of the reference to title I of the ADA, which I mentioned above.

2. This is another court that is pushing back on the summary judgment pendulum insisting that lower court judges look for genuine issues of material fact and not act as the trier of fact.

3. You do have a circuit split on whether title II of the ADA applies to employment. That said, the reasoning of the majority of courts saying that it does not presents, to my mind, a compelling set of arguments. It would be interesting to see if the 11th circuit would not overrule its prior decision as it is the only circuit to the contrary. If the question were to go to the Supremes before the 11th circuit overruled its prior decision, assuming it would, it is hard for me to believe that the Supreme Court would not go with the majority opinion on this issue.

4. Just because an accommodation may cost big bucks, does not mean that the employer is off the hook. Further, the undue financial burden defense go to the entire budget and not to a particular line item. That is consistent with the regulations but Justice Ginsburg’s opinion in Olmstead, in a section of the opinion which did not have a majority to it, has some language that is iffy on that point.

5. It is much cheaper to make sure things are accessible before you buy the product think to do it after the product has been bought. Also, go with universal design whenever possible. That is, in this case, everyone could be happy with standard-interactivity mode so why not just set it up that way.

6. If you are going to transfer an employee to another position make sure it is a position that gives the employee and meaningful equal employment opportunity to attain the same level performance available to employees without disabilities having similar skills and abilities and not just a make work job.

7. Whether something constitutes an undue burden, mean considering several factors and be sure to consider all of them. This is an important point because many an opinion tend to just rely on whether it is in the employer’s job description. There are more factors than that involved and they need to be considered.

8. With respect to buying inaccessible software, you might find this article informative as well as this blog entry.

9. One is left wondering why a title I claim was not filed. One could only surmise that it is perhaps due to not filing with the EEOC within the statutory period (180 days or double that if a state agency is an equivalent). True, this case holds that § 504 applies to employment, but even so, the plaintiff is then faced with when it comes to causation showing sole cause rather than by reason of.

This week’s topic came to my attention from Don Davis of the Noble law firm. The question is just what is the trier of fact supposed to determine when it comes to the “affirmative defense,” of direct threat? As is my usual, the blog entry is divided into several categories: history of direct threat; facts; jury instructions; court’s reasoning; and takeaways. The reader is free to focus on any or all of the sections.

I
History of Direct Threat

1. Direct threat actually comes originally from case law in a Rehabilitation Act case decided by the Supreme Court, School Board of Nassau County, Florida v. Arline, 480 U.S. 273 (1987). In that case, the United States Supreme Court held that deciding whether a teacher with tuberculosis was otherwise qualified under the Rehabilitation Act involved considering the facts based upon a reasonable medical judgment given the state of medical knowledge about: 1) the nature of the risk (how the disease is transmitted); 2) the duration of the risk (how long is the carrier is infectious); 3) the severity of the risk (what is the potential harm to third parties); and 4) the probability the disease will be transmitted and will cause varying degrees of harm. The Court goes on to note that a court normally should defer to the reasonable medical judgments of public health officials. Further, The Court also noted that a finding of otherwise qualified depends upon whether the employer could reasonably accommodate the employee in light of the medical findings.

2. Direct threat with respect to the safety of others eventually made its way into the ADA at 42 U.S.C. § 12113.

3. By the EEOC regulations, 29 C.F.R. § 1630.2, and confirmed by the United States Supreme Court in Chevron v. Echazabal, 536 U.S. 73 (2002), it was found that it was appropriate for the EEOC to extend the direct threat concept to a threat to self in addition to a threat to others.

II
Facts

A legally blind plaintiff when his position was eliminated obtained a higher-paying job in the company’s warehouse conditional upon passing a physical examination. He passed the physical, but the examining doctor said that he would require workplace accommodations to mitigate the risks from his impaired vision. The company concluded that it could not reasonably accommodate his condition and rescinded the offer of a job in the warehouse. He subsequently found a lower paying position with another company. He filed a claim with the EEOC who then brought suit. The jury found that the defendant liable for discrimination and that the plaintiff did not pose a direct threat (mitigation of damages was also an issue here but one that we will not focus on in this blog entry). The defendant then appealed.

III

The Beverage Distributors Jury Instructions

In EEOC v. Beverage Distributors Company, LLC, the 10th Circuit was faced with deciding whether the following jury instruction was reversible error:

To establish this defense, Beverage Distributors must prove both of the following by a preponderance of the evidence:
1. Mr. Sungaila’s employment in a Night Warehouse position posed a significant risk of substantial harm to the health or safety of Mr. Sungaila and/or other employees; and

2. Such a risk could not have been eliminated or reduced by reasonable accommodation. The determination that a direct threat exists must have been
based on a specific personal assessment of Mr. Sungaila’s ability to safely perform the essential functions of the job. This assessment of Mr. Sungaila’s ability must have been based on either a reasonable medical judgment that relied on medical knowledge [or best objective evidence] available at the time of assessment . . . . An employer’s subjective belief that a direct threat exists, even if maintained in good faith, is not sufficient unless it is objectively reasonable.
. . . .
3. In determining whether Beverage Distributors acted objectively reasonably when it determined that Mr. Sungaila was a direct threat, you must consider the following factors: (a) the duration of the risk; (b) the nature and severity of the potential harm; (c) the likelihood that the potential harm would occur; and (d) the imminence of the potential harm.

IV
Court’s Reasoning

1. According to the first part of the jury instruction, the defendant has to prove that the plaintiff posed a direct threat. The 10th Circuit did not believe that was accurate. That is, the defendant could avoid liability if it had reasonably believed the job would entail a direct threat and that proof of an actual threat should have been unnecessary.

Counterpoint: This reasoning probably goes too far. School Board of Nassau County Florida and Chevron v. Echazabal both focus on the term, “reasonable medical judgment.” True, under those cases, an actual threat is not necessary, but the determination that a threat exists must be based upon a reasonable medical judgment based upon the individual facts. Therefore, the question is not whether the employer’s belief is reasonable, but rather it is whether they relied upon a reasonable medical judgment in making their direct threat determination. It may be a fine line between the two concepts, but the distinction is there.

2. The second part of the instruction did not cure the error either because it never told the jury why it had to consider the reasonableness of what the defendant thought.

I believe what the 10th Circuit means by this particular reasoning is in reference to the part of the jury instruction stating, “An employer’s subjective belief that a direct threat exists, even if maintained in good faith, is not sufficient unless it is objectively reasonable.” This part of the instruction is indeed very confusing because it isn’t clear whether “objectively reasonable,” refers to whether a direct threat actually existed or whether the medical judgment itself was reasonable.

V
Takeaways:

1. When it comes to direct threat, an individualized analysis is still required.

2. The emphasis should not be on whether a direct threat actually exist or whether the employer’s judgment is reasonable. Rather, the focus should be on whether the medical judgment assessing whether a direct threat exists was a reasonable medical judgment. As such, look for a battle of medical experts.

3. Even if a direct threat exists, you still have to analyze whether a person can do the job with or without reasonable accommodations. In that respect, you might find this blog entry helpful. As a further preventive measure, engaging in the interactive process would also be helpful, particularly if you are in one of those jurisdictions where failure to engage in an interactive process is a separate cause of action.

4. It isn’t a foregone conclusion that direct threat is an affirmative defense. Certainly, the 10th (this case), Seventh, Fifth, Eighth, and Ninth Circuits all believe that it is, but that is not the case in the 11th Circuit or in the First Circuit (whether it is an affirmative defense in the First Circuit, depends upon whether Public Safety is involved).