This posting is later than my usual Monday. However, Monday was Memorial Day and then I had family in.

In a previous blog entry of mine, I discussed how suing a state court system can be done but that it is very complicated. This case discusses the myriad of defenses that arise in such a situation. The case is King v. Indiana Supreme Court, 2015 U.S. Dist. LEXIS 58388 (S.D. Ind. May 5, 2015). As is typical for my blog entries, I have divided the blog entry into categories: facts; defenses; resolution of the issues; the merits of the ADA claims; Rehabilitation Act claims; and takeaways. The reader is free to concentrate on any or all of the sections.

I
Facts

The facts are really straightforward. The plaintiff is deaf and communicates primarily in ASL. He is only able to follow, understand, and participate in court proceedings with an ASL interpreter. He had a domestic relations case and as part of that case, he paid a filing fee, for which portions of funds derived from were utilized to support the Marion County Modest Means Mediation Program. Since the case required two or more hours of the trial court’s time, he was initially required to participate in mediation pursuant to a local Marion County Indiana rule. He applied for and qualified through the court process to participate in the Marion County Modest Means Mediation Program, and the trial court appointed the mediator with the mediation being initially scheduled for July 12, 2013. About three weeks before then, he moved for an ASL interpreter to be appointed by the state court at its expense for his mediation. The trial court denied the motion saying that it did not supply interpreters for mediation hearings. He then filed a motion to reconsider, which the trial court also denied saying that no funding had been budgeted for providing interpreters during mediation proceedings and that funding was only budgeted for interpreters during court proceedings. In order to alleviate the need for an interpreter, the trial court waived the party’s obligation to participate in the mediation under the applicable local rule. The plaintiff then moved the trial court to certify the issue for an interlocutory appeal, but the trial court denied that. Since he wanted to participate in the Modest Means Mediation Program, he proceeded without the provision of a trial court appointed or supplied ASL interpreter instead relying on a family member that he found to interpret during the mediation. It cost him some money to find that family member as well as to obtain that family member to interpret for him during the mediation. He then filed suit against the Indiana Supreme Court, Marion County Circuit Court, the Indiana Supreme Court Division of State Court Administration, Marion County office of the court administrator, and the Marion County Council alleging violations of the ADA and the Rehabilitation Act.

II
Defenses

1. Standing

2. Rooker-Feldman doctrine

3. Collateral estoppel

4. Domestic relations exception to federal jurisdiction

5. Sovereign immunity

6. Judicial immunity

7. Judicial estoppel

8. Waiver

III
Resolution of the Issues

1. With respect to the plaintiff’s claims against the Indiana Supreme Court and the Division of State Court Administration, the plaintiff made various allegations in his pleading regarding the relationship between the Modest Means Mediation Program and the Indiana Supreme Court and the Division of State Court Administration, that were sufficient to show standing including:

A. The executive director of the Indiana Supreme Court, Division of State Court Administration has to approve any ADR plan formulated by the counties wishing to participate in the ADR program;

B. Standards and guidelines for each ADR plan are provided by the Indiana Supreme Court and the Division of State Court Administration;

C. The modest means mediation program derives its funding through the ADR fund, which is administered and/or approved by the Indiana Supreme Court and the Indiana State Court Administration;

D. The Marion County Court and the Marion County Circuit Court directly decide how to allocate such funding and they have to report its funding to the Indiana State Supreme Court and the Indiana State Court Administration;

E. To some degree, the Indiana Supreme Court and the Division of State Court Administration control the Marion County Court Modest Means Mediation Program and its funding.

2. With respect to the domestic relations exception to federal jurisdiction (federal courts do not have jurisdiction over domestic relations matters), the plaintiff was not seeking to attack the determination involving an issue of divorce, custody, paternity, or any other domestic relations matter. Rather, he was only challenging the trial court’s denial of an ASL interpreter for his mediation; a challenge entirely unrelated to the merits or facts of the underlying domestic relations case.

3. With respect to the Rooker-Feldman doctrine, which prohibits federal courts from conducting direct review of the decision of state courts, the court said that the key was that the state court’s judgment and the paternity case was not the source of the injury complained of by the plaintiff. That is, he was not asking the federal court to order the state court to do anything nor was he asking the federal court for relief from the state court’s judgment. What he was after was the pursuit of an independent claim that the state court violated the ADA. Therefore, the doctrine didn’t apply.

4. With respect to collateral estoppel, the plaintiff accurately pointed out that the ADA and Rehabilitation Act claims were not actually litigated in that state court. His accommodation was denied based on funding and did not address the ADA or the Rehabilitation Act. The plaintiff did not make ADA and Rehabilitation Act claims in the state court paternity suit. Finally, the decision regarding whether to appoint an interpreter for mediation in the paternity action was not essential to the final judgment entered on the merits of that action.

5. With respect to sovereign immunity, Congress properly forced Indiana to waive sovereign immunity in this case because:

A. The holding of Tennessee v. Lane is not limited to actual in court proceedings. In fact, Lane noted that the right of access to the courts implicates the accessibility of judicial services and specifically in that opinion referenced the failure of state and local government to provide interpreter services for the hearing impaired.

B. The Modest Means Mediation Program is a public program created by Indiana statute, approved by the state defendants, and maintained by the county defendants.

5. With respect to judicial immunity, the court wasn’t buying it because:

A. Official immunities are personal defenses designed to protect the finances of public officials whose salaries do not compensate them for the risks of liability under what are hard to foresee constitutional doctrines. However, that justification does not apply to suits against units of state or local government, which have the ability to tap the public treasury.

6. With respect to judicial estoppel, that defense doesn’t work because the plaintiff was pursuing a separate federal action stemming from independent federal claims not pled in the state court paternity action.

7. With respect to the waiver argument, payment of fees and costs in a state court action is not the same thing as knowingly relinquishing a claim for damages for an independent federal claim.

IV
The Merits of the ADA Claims

1. Title II of the ADA mandates that public entities make their programs, services, and activities accessible unless to do so results in a fundamental alteration of the services or imposes an undue burden.

2. The providing of interpreters is specifically listed as a reasonable accommodation in the ADA.

3. A title II claim can be established by a showing that: the defendant intentionally acted on the basis of the disability; and either the defendant refused to provide a reasonable modification or the defendant’s rule disproportionately impacts disabled people.

Interesting use of the term “on the basis of,” here because the title II term is actually “by reason of.” Whether any of that makes a difference was mentioned here.

4. IV3 means that the plaintiff has to show that the intentional actions were connected to the denial of his request to be provided an ASL interpreter. Since his complaint contains no allegations that anyone other than the judge or the Marion Circuit Court took any action or made any decision with regards to his request for an ASL interpreter for the Modest Means Mediation Program and his paternity case, causation against the Indiana Supreme Court and the Division of State Court Administration was not there, and therefore, claims against those defendants failed as a result.

V
Rehabilitation Act Claim

1. Rehabilitation Act is program specific in that it proscribes discrimination only with respect to programs or activities receiving federal financial assistance.

2. Since the complaint says that the Modest Means Mediation Program is privately funded, the program could not be subject to the Rehabilitation Act.

VI
Takeaways

1. This case offers a good roadmap for defeating many of the defenses that will arise whenever you sue a state court system for disability discrimination. Perhaps, the best thing a person can do is to not go after the actors in their individual capacity as that activates all the immunity defenses. It is possible that you might be able to show that the denial of an accommodation was an administrative act and not a judicial act but that is going to be difficult because it is not unusual for judges to be the ones deciding whether the accommodation is appropriate either directly as part of the case or being given that authority by the ADA coordinator. Also, not suing the actors individually may minimize any chance of retaliation against the litigants or the litigants attorneys by the actors.

2. This particular court seems to believe that “by reason of,” and “on the basis of,” are the same. That may or may not be the case as we have discussed here.

3. Interesting about the Rehabilitation Act being restricted to the program or activity because the language of the Rehabilitation Act seems to suggest that with respect to state or local governmental entities, no such restriction is in place. See here.
.

That is, 29 U.S.C. § 794 states:

For the purposes of this section, the term “program or activity” means all of the operations [emphasis mine] of—

(1)
(A) a department, agency, special purpose district, or other instrumentality of a State or of a local government; or

(B) the entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;

Neither section seems to suggest that Rehabilitation Act applicability in a case such as this depends upon a particular program receiving the federal funds. One also wonders in light of these provisions if there is an grounds for appeal with respect to the applicability of the Rehabilitation Act against all of the defendants since §(B) above makes the state or local governmental entity distributing such assistance subject to the Rehabilitation Act.

4. Interesting that a § 1983 cause of action for injunctive relief against the judicial officers was not pursued. § 1983 allows for injunctive relief against a judicial officer where declaratory relief was violated or where declaratory relief was not available. Considering the motions for accommodations and the refusal of the court to certify it for interlocutory appeal, an argument can be made that declaratory relief was not available. So, you might ask where is the equal protection violation? The argument would go like this: with respect to accessing judicial services, persons with disabilities are looking at a fundamental right, or at the very least something higher than rational basis. Therefore, there simply cannot be a compelling reason or even a good reason to deny a person with a disability trying to access judicial services the accommodations/modifications he or she is entitled to under the ADA. Accordingly, such a denial is a violation of the 14th amendment to the U.S. Constitution. I could also see an argument that being unable to access the courts as a result of failure to accommodate a person with a disability through reasonable modifications could violate the due process clause as well.

Previously, I have blogged on the Sheehan case and its oral argument before the United States Supreme Court. Yesterday, the United States Supreme Court came down with the decision in this case, which can be found here:

As expected, they decided with respect to the ADA matter, that the writ of certiorari had been improvidently granted. That is, the issue of how title II of the ADA might apply to arrests is not answered or even addressed. Justice Alito noted that how the ADA applies to arrests is an important question and one that would benefit from briefing and adversarial presentation. However, the way the case got argued before the court, all of the parties believed that the ADA did apply to arrests. Accordingly, it was imprudent to decide the question.

The court also noted that all the parties agree that a public entity can be held vicariously liable for money damages for violating title II of the ADA for the purposeful or deliberately indifferent conduct of its employees, but that is a point of law that has never been decided by the Supreme Court as to whether that is correct and the court declined to do so in the absence of adversarial briefing.

They did decide to address the question of whether the officers could claim qualified immunity for violating the fourth amendment. The Supreme Court held in a decision by Justice Alito that the law in the area is so uncertain with respect to how police officers needed to behave given the facts of this case, that therefore, it was proper to grant the police officers qualified immunity. For qualified immunity to be waived, the law would have to be crystal clear so that the police would know how to conform their conduct, which wasn’t the case here. Also, the police acted reasonably under the circumstances with respect to fourth amendment jurisprudence.

Justice Scalia and Justice Kagan concurred and dissented. They concurred that the court was correct to dismiss the ADA question as being improvidently granted. They go further and accused the City and County of San Francisco of bait and switch. That is, setting up the system so that the court would grant certiorari and then switching it once the court grants it. These two Justices say that such a practice should not be encouraged and that by deciding the second issue they have given a victory to the City and County of San Francisco despite their engaging in inappropriate practices before the United States Supreme Court. Accordingly, they would have dismissed the second question as being improvidently granted as well so as to avoid being snookered and to deter future snookering.

Importantly, they note that the City and County of San Francisco will still be subject to liability under the ADA if the trial court determines that the facts demanded accommodation because the Court of Appeals vacated the District Court’s judgment that the ADA was inapplicable to police arrests of violent and nondisabled persons, and remanded for the accommodation determination.

Takeaways:

1. With respect to the fourth amendment, the police officers behaved reasonably in this case, and the police officers were allowed to exercise qualified immunity because of the uncertainty in the law at the time of their behavior, which uncertainty still remains after this decision.

2. The court leaves open the question of whether a public entity can be vicariously liable for damages under title II for the purposeful or deliberately indifferent conduct of its employees. One would think that the answer would be yes, since title II is tied into the Rehabilitation Act with respect to remedies, and under the Rehabilitation Act, vicarious liability does exist as noted in this blog entry .

3. Since the first question was improvidently granted and the Ninth Circuit vacated the District Court’s judgment that the ADA was inapplicable to police arrest of violent and disabled persons, the ADA case and San Francisco’s liability for ADA violations remain very much alive. San Francisco got a lot of heat for pursuing the case at the Supreme Court, and one wonders what that means with respect to fully defending the ADA suit in the District Court. One also wonders if the switch at the Supreme Court was not a result of that heat rather than something more nefarious as suggested by the dissenters.

Today’s case is a two fer. We explore two questions. First, if a complaint as originally drafted does not meet Iqbal/Twombly standards, whatever that is:-), does the plaintiff get the right to amend? Second, just what must be alleged in order to survive a motion to dismiss with respect to alleging that a private entity’s entire operations are subject to the Rehabilitation Act. The case is Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago and Northwest Indiana, a Seventh Circuit decision decided May 8, 2015. As is typical, I have divided the blog entries into categories: facts; court’s reasoning with respect to the proper approach for motion for leave to amend complaints; court’s reasoning with respect to just what must be alleged to bring entire operations of a private entity within the scope of the Rehabilitation Act; and takeaways. The reader is free to concentrate on any or all of the categories.

I
Facts

Plaintiff, who is deaf, was active in a Girl Scout troop run by defendant Girl Scouts of Greater Chicago and Northwest Indiana, the largest regional Girl Scout organization in the United States. For several years the plaintiff benefited from sign language interpreters provided by the Girl Scouts enabling her to participate fully in the troop’s activities. The Girl Scouts then stopped providing interpreters. When her mother complained, the Girl Scouts disbanded the entire troop. The plaintiff alleged that the Girl Scouts violated the Rehabilitation Act by refusing to provide her with sign language services and then by disbanding her troop because her mother complained. The District Court dismissed the case under Rule 12(b)(6) finding that the plaintiff had failed to allege that the Girl Scouts was subject to the Rehabilitation Act. Further, thinking that amendment would be futile under its interpretation of the Rehabilitation Act, the District Court dismissed the case without leave to amend. For the reasons that follow below, the Seventh Circuit reverses.

II
Court’s Reasoning (Proper Approach for Motion for Leave to Amend Complaints)

1. The District Court erred in saying that the plaintiff needed to allege in their complaint facts supporting specific legal theories. Neither Twombly nor Iqbal has such a requirement. That is, a complaint need contain only factual allegations giving the defendant fair notice of the claim for relief and showing that the claim has substantive plausibility. Further, the federal Rules of Civil Procedure do not require complaints to specify the legal theory or statute supporting the claim for relief.

2. Denying a plaintiff the opportunity to amend carries with it a high risk of being deemed an abuse of discretion by the appellate court. While the District Court said that amending the complaint would be futile, that conclusion was based on a novel and erroneous interpretation of the Rehabilitation Act.

3. It has been repeatedly said in the Seventh Circuit that ordinarily a plaintiff whose original complaint has been dismissed under Rule 12(b)(6), should be given at least one opportunity to try to amend her complaint before the entire action is dismissed.

4. A denial by a District Court of giving a plaintiff the opportunity to amend a complaint will be reviewed rigorously on appeal. Such a rigorous review is appropriate because except in unusual circumstances, it is unlikely that the court will be able to determine conclusively on the face of a defective pleading whether plaintiff actually can state a claim. Those unusual circumstances, “clear futility at the outset,” are a very rare occurrence, which is not present in this case. Further, having a liberal standard for amendment is even more important where the law is not clear. That is, the Seventh Circuit specifically notes that Twombly and Iqbal have created considerable uncertainty and variation among the lower court’s as to just how demanding pleading standards have become. Accordingly, in the face of that uncertainty, applying a liberal standard for amending pleadings, especially in the early stages of the lawsuit, represents the best way to ensure the cases will be decided justly and on their merits.

5. In this case, the District Court took the unusual step of entering judgment at the same time it dismissed the complaint. In that situation, it is not necessary for an appellate court to find other extraordinary circumstances before allowing a pleading to be amended and instead the liberal standard for amending pleadings applies. In other words, it is not possible for District Court to nullify the liberal right to amend under Rule 15(a)(2)- Rule 15(a)(2) covers post dismissal leave to amend requests-by entering judgment prematurely at the same time it dismisses the complaint that would be amended.

6. It is true, that an absolute right to amend per Rule 15(a)(1) expires 21 days after serving it or if the pleading is one where responsive pleading is required, 21 days after service of a responsive pleading for 21 days after service of a motion under Rule 12(b),(e), or (f) whichever is earlier. However, just because a right is guaranteed at that point does not mean in light of how uncertain Twombly and Iqbal are, that if a motion to dismiss is granted the liberal right to amend does not exist.

7. It was perfectly reasonable for the plaintiff to stand on her original complaint because of the uncertainty of just when the Rehabilitation Act applies to the entire operations of a private entity and because of the uncertainty of the Iqbal/Twombly standards. Further, considering the uncertainties, it was reasonable for the plaintiff to avoid the considerable expense of further litigation, which would involve exploring all of the Girl Scouts’ activities, until she was sure that she failed to survive a motion to dismiss leaving her with no choice but to pursue leave to amend under Rule 15(a)(2).

III
Court’s Reasoning (Just What Must Be Alleged to Bring Entire Operations of a Private Entity within the Scope of the Rehabilitation Act)

1. There are two ways per 29 U.S.C. § 794 for a private entity to be subject to the Rehabilitation Act with respect to its entire operations. First, the private entity could receive federal funds as a whole (a hard thing to show). Second, showing that the private entity is principally engaged in the business of providing education, healthcare, housing, social services, or parks and recreation.

2. Private organizations are not categorically exempt from coverage under the Rehabilitation Act. If Congress wanted to categorically exempt private organizations from the scope of the Rehabilitation Act, they could have done so as they have done so with respect to other laws, and legislative history is not to the contrary.

3. Due to the grammatical structure of the list of activities contained in § 794(b)(3)(A)(ii), it will be up to the plaintiff to eventually show that the defendant engages in any one of those activities. In this particular case, the plaintiff chose to focus on education and social services provided by the Girl Scouts.

4. Since formal educational systems are covered by a separate provision of the Rehabilitation Act, being principally engaged in education would not be limited to the sort of instruction received in a traditional educational setting.

5. With respect to what might constitute social services, that would refer to an activity designed to promote social well-being, such as organized philanthropic assistance of the sick, destitute, or unfortunate.

6. In a footnote, the Seventh Circuit says that the plaintiff also pointed to some girl scout projects involving providing healthcare and parks and recreation.

7. With respect to what principally engaged might mean, in other situations, it has been interpreted to mean the primary activities of a business, excluding only incidental activities. Further, if any one of the designated activities are principal, that is sufficient to bring all of the operations of the private entity within coverage of the Rehabilitation Act.

8. A private organization also falls within the statute where it engages in a mix of the statutorily enumerated services where that mix in the aggregate makes up the primary activities of the private organization because there was no reason to think Congress laid out mutually exclusive conditions when it listed the activities it did. Such an interpretation also ensures that organization focusing on providing more than one of the activities without committing to just one are still covered. Such an interpretation also makes it unnecessary to engage in the classification of activities that are a hybrid of more than one activity.

9. Plaintiff’s complaint cited numerous instances where the defendant characterized itself and its programs as educational. The fact that she attached exhibits to the complaint indicating as such was perfectly okay and did not mandate that the court convert the motion into one for summary judgment.

10. In fact, the proposed amended complaint of the plaintiff listed several programs of the defendant that could be plausibly classified as providing education, healthcare, social services, or parks and recreation. Accordingly, the allegations in the complaint exceed what is needed to allege plausibly that the defendant was principally engaged in the business of providing the services listed in the Rehabilitation Act that would subject its entire operations to the Rehabilitation Act, and it would not have been futile to allow the plaintiff to amend.

11. The level of detail provided by the plaintiff’s proposed amended complaint is not the level of detail necessary (she went beyond what was necessary), for every plaintiff to withstand a motion to dismiss. Rather, plaintiff’s pleading burden need to be commensurate with the amount of information available to them at the time (publicly available).

IV
Takeaways

1. I once heard a federal magistrate say that Iqbal/Twombly was a moving target and that it was very difficult to know when that target is satisfied. It is interesting to see that the Seventh Circuit acknowledges that fact. Since it is very unclear as to how there could ever be much clarity to the standard, the Seventh Circuit says that there needs to be a liberal amendment policy for when a complaint get dismissed under Rule 12(b)(6). That liberal amendment policy also applies to request for leave to amend made post judgment under Rule 15.

2. With respect to hitting the moving target that is Iqbal/Twombly, one approach that you might consider is alleging sufficient facts to put the defendant on notice as to what the nature of the claim is (the approach that has been used in Illinois for some time). Keep in mind, it is the facts that are important and not the theory of the case.

3. The decision should go a long way to discouraging District Court judges from dismissing complaints and then disallowing a leave to amend.

4. The decision brings a great deal of clarification as to when the entire operations of a private entity might be subject to the Rehabilitation Act and how the plaintiff can survive a motion to dismiss when making such allegations. The steps would be (the below assumes that the private entity takes federal funds and that it does not take federal funds as a whole):

A. Is the private entity engaged in any one of the following activities: education (includes education outside of the traditional educational setting), healthcare, housing, social services (an activity designed to promote social well-being), or parks and recreation or any combination thereof?

B. If the answer to paragraph IV(4)(A) is yes, are those activities or combination of those activities the primary activities of the business?

C. Research and then attach to the complaint as exhibits whatever information is publicly available to support IV(4)(A),(B)

D. If District Court still grants the motion to dismiss after you have done everything under IV(4), request a leave to amend and repeat the steps in IV(4) if leave to amend is granted. If leave to amend is not granted, then appeal and when the leave to amend is reversed, which under this decision could very well happen in most cases, repeat IV(4).

5. If you are a private entity taking federal funds, get prepared for a lot of litigation over whether the entire operations of your private entity are subject to the Rehabilitation Act. On a preventive level, you may want to consider acting as if that is already the case and proceed accordingly per the Rehabilitation Act provisions.

6. This case opens up a whole new realm of possibilities for private entities that would not be subject to title III of the ADA (to be subject to title III of the ADA, it must be a place of public accommodation), but under this decision, can now have all their operations subject to the Rehabilitation Act.

7. For those private entities receiving federal funds and already subject to the Title III of the ADA, this decision does lead to the possibility that such an entity could be subject to damages (though not punitives per this case), providing deliberate indifference could be shown, under the Rehabilitation Act when such damages would not be a possibility under title III of the ADA.

8. This is a case with a huge impact with respect to both pleading practice and the scope of the Rehabilitation Act (the panel was Easterbrook, Sykes, and Hamilton with Hamilton writing the decision). It definitely bears watching in terms of how it fares in other jurisdictions.

I
Introduction

One of the most complicated topics around is the doctrine of sovereign immunity, which comes from England and says that the King cannot be sued without his consent. We have carried over this doctrine into our 11th amendment to the U.S. Constitution. As we have discussed previously numerous times, there are situations where a State can be sued without its consent. For that to be true, Congress has to do two things. First, it has to state in the law that States are waving their sovereign immunity. Second, the law has to be a proportional response to the harm seeking to be redressed. Whether the law is a proportional response to the harm being addressed, depends entirely upon what equal protection classification the group falls in. Depending upon the classification, the legislators get more discretion to come up with comprehensive schemes to remedy the past harms. As you may recall, there are varying levels of equal protection classification: rational basis (for everyone not in the intermediate or strict scrutiny class); intermediate scrutiny (gender); and strict scrutiny (race). It is unclear as to where Gays and Lesbians will fall. On that, we may know more when the pending gay marriage decisions come down from the United States Supreme Court. As is typical for my blog entries, I have divided the blog entry into categories: introduction; facts; court’s reasoning (supervisory liability of the state); court’s reasoning (sovereign immunity of the sheriff); and takeaways. The reader is free to focus on any or all of the categories.

Case of the Week, Zemedagegehu v. Arthur, 2015 U.S. Dist. LEXIS 55603 (E.D. Va. April 28, 2015)

II
Facts

Plaintiff is deaf with no functional ability to speak English or read lips (it is a myth that all deaf people are capable of reading lips. I happen to be fortunate that I can get 50% of what is said on the lips, which is the absolute best a deaf person could do in any event, but I am not typical). Plaintiff was born and raised in Ethiopia and became a United States citizen in 2008. His knowledge of English is limited as a result of courses he took through Gallaudet University but he struggles to read, write, and understand even basic English sentences. His primary language is ASL, and his employment history is limited to manual labor jobs not requiring proficiency in spoken or written English. On February 2, 2014, plaintiff was arrested at Ronald Reagan Washington National Airport after he went there to find somewhere warm to sleep. From there, things went downhill in a big way. Shortly after his arrest, in the early morning hours of February 3, 2014, he was transported to the jail where he started the booking process. While there he attempted to communicate with the national airport police officers and jail personnel using gestures and in writing. He also requested an ASL interpreter but one was not provided. As a result, plaintiff had no idea why he had been arrested nor did he understand why he was being detained in the jail. The plaintiff also appeared in front of a judge via videoconference, but he could not signal to the judge that he was deaf because jail personnel instructed him to remain still. As part of the booking process, he underwent a medical evaluation where he made additional request for assistance. His requests were again denied. Since he did not have an ASL interpreter, he did not understand the medical evaluation process and refused to sign a consent form that he could not read. Even so, jail personnel forced the needle into his arm without his consent and placed him in isolation. Scared and confused, the plaintiff banged on the cell door repeatedly gesturing for assistance still being unaware as to why he was being incarcerated. He then had a negative skin reaction to the fourth medical procedure and underwent an additional medical procedure, but still did not understand what was happening. It was only at his arraignment because he had the assistance of an ASL interpreter, that he learned he had been arrested and incarcerated for allegedly stealing an IPad. He then returned to the jail after his arraignment and remain incarcerated for nearly 6 weeks. During that period of incarceration, defendant refused to provide effective means for plaintiff to communicate, and consequently, plaintiff missed private meals, recreation, and rehabilitative services at various times. As if that wasn’t enough, the jail also failed to provide plaintiff with inadequate accommodation for telephone access. While the jail did offer plaintiff a TTY, that was ineffective because of the plaintiff’s limited knowledge of the English language. The jail did not have videophone or any device equipped with a video phone software allowing plaintiff to be able to make telephone calls. As a result, plaintiff was unable to make a telephone call for the duration of his incarceration at the jail. He also could not regularly communicate with the court appointed attorney via telephone unlike other inmates and had to rely on in person visit made on the attorney’s own accord.

Plaintiff sued both the local Sheriff and the State for violating title II of the ADA and § 504 of Rehabilitation Act and sought both declaratory and compensatory relief. Interestingly enough, no claims of constitutional violations were made. Both the Sheriff and the State defended on the grounds of sovereign immunity. The State also defended on the ground that they were not liable as supervisors for the acts that occurred in the jail, which is run solely by the Sheriff (prisons are usually run by the state while jails are usually run by the county).

III
Court’s Reasoning (Supervisory Liability of the State)

1. With respect to supervisory liability of the State, the court was not buying it. For such liability to occur, you need to find inaction or deliberate indifference on the part of the State that affirmatively causes the particular constitutional injury the plaintiff suffers. Further, that inaction or deliberate indifference must be a direct cause of the injury. Since the State of Virginia clearly has a separate set up for county jails versus prisons, the court concluded that Virginia does not supervise the sheriff in the manner necessary to make a prima facie case of supervisory liability. Therefore, the State was dismissed from the case because a sufficient showing could not be made that the state was liable as a supervisor.

IV
Court’s Reasoning (Sovereign Immunity of the Sherrif)

1. The ADA unequivocally expresses Congress intent to waive sovereign immunity under title II of the ADA.

2. While it is true, that the Supreme Court has said that sovereign immunity is waived by the State with respect to ADA violations that rise to a violation of the 14th amendment, the plaintiff did not make any 14th amendment claims.

3. Title II of the ADA is a proportionate response to the harm seeking to be redressed in this situation (failure to comply with title II of the ADA with respect to the pretrial, temporary detention setting of the local jail), because:

A. Citing Tennessee v. Lane, the court said that title II was enacted in response to a pattern of unconstitutional disability discrimination by States and non-State governmental entities with respect to the provision of public services.

B. Plaintiff was a qualified individual with a disability. That is, the plaintiff was deaf and he was also capable with the provision of auxiliary aids and services of meeting the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by the jail.

C. Title II of the ADA authorizes the Attorney General to promulgate regulations implementing title II of the ADA. Those particular regulations makes clear that qualified inmates or detainees with disabilities cannot be subject to disability-based discrimination, and that jails and prisons are also required to furnish appropriate auxiliary aids and services where necessary so inmates and detainees with disabilities have an equal opportunity to participate in, and enjoy the benefits of, or service, program or activity of the jail. Auxiliary aids and services do include qualified ASL interpreters as well as video remote interpreting services.

D. Inmates possess a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the 14th amendment.

E. The Due Process Clause of the 14th amendment and the Confrontation Clause of the sixth amendment, which is applied to the States via the 14th amendment, both guarantee to a criminal defendant the right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings. Since the deaf detainee was eligible to participate in the hearing, title II applied and he was denied the ability to participate in the hearing to the same extent as a person without a disability.

F. Not only did the plaintiff not understand the judicial proceeding, the jail personnel actively prevented his participation thereby frustrating his right to be present at all stages of the trial.

G. Factual allegations support the claim that the plaintiff was prevented from seeking and receiving the assistance of counsel throughout his six week period of detention in violation of his sixth amendment right to counsel.

H. The allegations also implicate plaintiff’s constitutional rights under the 14th amendment as the legislative history of the ADA indicates congressional intent to specifically remedy differential treatment of inmates in local jails. Accordingly, public entities do have the obligation under title II of the ADA to accommodate access to the most basic jail services for deaf pretrial detainees such as ensuring access to medical procedure information, access to the courts, and counsel. Failure to do so falls short of the guarantees of the 14th amendment.

I. Title II is also proportional because it only requires reasonable modification to services, programs, activities and nothing more.

J. There is an important distinction between being incarcerated in the state prison after conviction and temporary pretrial detention at the local jail because due process requires that a pretrial detainee not be punished. On the other hand, a sentenced inmate can be punished although that punishment may not be cruel and unusual. I would also add that it should be kept in mind that prisons are subject to Title II of the ADA per this case.

V
Takeaways:

1. This case focuses on pretrial detention in the county jails.

2. Keep in mind, as mentioned above, prisons are also subject to the ADA.

3. Interesting that no constitutional violations were alleged in this case even though as the court discussed many of them may be present. Also, keep in mind, that many of the first 10 amendments to the U.S. Constitution have been incorporated into the 14th amendment. Therefore, a violation of one of the amendments that has been incorporated into the 14th amendment would also be a violation of the 14th amendment. That is important to know because per U.S. v. Georgia, a violation of the 14th amendment waives sovereign immunity.

4. Since showing that title II of the ADA is a proportional response means trying to find the most egregious things that could’ve been violated so that even if a person with a disability is in the rational basis class, the response is still proportional because of the rights (such as constitutional ones), being violated.

5. Since showing a proportional response means searching for the most egregious things that could have been violated, why not, on the plaintiff’s side, allege constitutional violations as well in addition to § 504 violations and ADA violations? Further, since the court lays out many constitutional violations, one wonders if the plaintiff will not now seek to amend the complaint to add various constitutional violations.

6. The proportional response exercise has to be gone through every time a person with a disability sues a state entity where they have not expressly consented to being sued for disability discrimination since, per Tennessee v. Lane, persons with disabilities classification vis a vis equal protection jurisprudence varies depending upon the facts. As mentioned in other blog entries of mine dealing with sovereign immunity, I am not aware of any other group of people whose classification for equal protection jurisprudence varies depending upon the facts.

7. It is never wise to engage in stereotyping. That is, don’t make the assumption that a TTY will allow a deaf person to effectively communicate because ASL is a visually-based language with a different grammatical structure than English and many deaf people are just not all that familiar with English, though quite a few certainly are. Also keep in mind, the effective communication regulations as well.

8. The impact of this case is potentially huge. I can’t tell you how many times you see ADA disputes involving prisons or jails. In any given week, I would say almost half of the cases that I see in my Lexis alert involve matters involving disability discrimination complaints against prisons or jails.

This week when I was looking for a case to blog about I came across the case of Torres v. Junto De Gobierno De Servicio De Emergencia, where on April 28, 2015 United States District Court for the District of Puerto Rico denied a motion to reconsider. In the original opinion and order, they held that a claim of employment discrimination filed under title II could survive a motion to dismiss. After reading that case, that caused me to review the issue myself. There are two views on this. The minority view is from the 11th circuit in the case of Bledsoe v. Palm Beach County Soil and Water Conservation District, 133 F.3d 816 (11th Cir. 1998), where they held that title II of the ADA does apply to employment. The majority view is represented by Brumfield v. City of Chicago, 735 F.3d 619 (7th Cir. 2013), and the cases collected therein, where they held that title II of the ADA most certainly does not apply to employment.

I
Reasons Why It Matters If Title II Applies to Employment?

1. With respect to title II cases, administrative remedies do not need to be exhausted before filing a claim. That said, I am of the view that it is always a good idea to exhaust internal remedies first. Also, if on the plaintiff side, I am also of the view that in addition to internal remedies, it is also a good idea to go through the Department of Justice first prior to filing suit because it they get involved, that involvement changes the dynamics of the case and also gives the plaintiff free discovery.

2. Since title II is tied into the Rehabilitation Act and Title I is tied into the civil rights of 1964, damages that can be obtained may be different and the standard for getting those damages may also be different. For example, to get any damages under title II, the general rule would be that you would have to show deliberate indifference, which is not the standard for non-punitive damages under title I.

II

Minority View: Title II Applies to Employment (Bledsoe v. Palm Beach County Soil and Water Conservation District)

1. Legislative history clearly shows that title II of the ADA was meant to apply to employment matters.

2. § 504 is so focused on employment discrimination that it led Congress to enact subsequent legislation clarifying that § 504 applies to other forms of discrimination in addition to employment discrimination.

3. Title II prohibits all discrimination by a public entity regardless of context.

4. DOJ regulation 28 C.F.R. § 35.140 says that title II applies to employment and the regulations are neither arbitrary, capricious, nor manifestly contrary to the statute. Therefore, they are entitled to Chevron deference.

5. Prior decisions in the 11th Circuit and in districts making up the 11th Circuit suggested that title II of the ADA applies to employment.

III
Buy I4 (Does 28 C.F.R. § 35.140 Really Say That Title II Applies to Employment?)

One of the things not addressed by the case law is what does 28 C.F.R. § 35.140 really mean? The case law either says that this regulation is entitled to deference per Chevron or that the law is crystal clear that title I governs employment matters with respect to governmental entities and so the regulation never comes into play. I believe an argument can be made that the regulation itself supports the proposition that title II does not apply to employment. The analysis would work something like this:

1. It is true that 28 C.F.R. § 35.140(a) says that a public entity cannot discriminate on the basis of disability in employment.

The use of the terms “on the basis,” is also interesting because title II of the ADA does not use that term. Rather, it uses the term, “by reason of.” The difference may very well lead to different causation standards as discussed in this blog entry. If there is a different causation standard between the two terms (in addition to the just mentioned blog entry, see also this blog entry), an argument can be created that the Department of Justice went too far by using the term “on the basis,” in this regulation when title II of the ADA refers to, “by reason of.”

2. However, §35.140(b)(1) says that where a public entity is also subject to the jurisdiction of title I, then the requirements of title I of the ADA apply. This regulation as phrased could be read to say that title I of the ADA applies to public sector non-federal employment and not title II. The argument would be that the reference to also being subject to title II just means that nonfederal public entities have independent obligations under title II that they are subject to in addition to being subject to title I of the ADA.

3. §35.140(b)(2) says that if a public entity has less than 15 employees, then § 504 of the Rehabilitation Act is the applicable law that applies to employment matters arising from public sector non-federal employment.

A. § 35.140(b)(2) seems to be operating on the assumption that a non-federal public entity is automatically going to take federal funds. That may not be the case. Therefore, I am having trouble understanding how the Rehabilitation Act regulations could apply if the Rehabilitation Act Itself doesn’t apply. Thus, this would create an argument, to my mind, that this particular regulation goes beyond the statutory authority of the ADA and the Rehabilitation Act with respect to non-federal public sector employers of less than 15 people where that public-sector employer does not take federal funds. If the public-sector employer does take federal funds, which most probably do, then this provision seems to be saying that employment matters of non-federal public sector employers not subject to title II of the ADA are exclusively governed by § 504 of the Rehabilitation Act.

IV
Majority View (2nd if 15 or more employees; 3, 6, 7, 9, and 10 Circuits)

The 11th Circuit is out there by itself, though the 1st Circuit, as mentioned in Torres, in prior case law seems to suggest it might go with the 11th.

1. It is absolutely true that title II of the ADA prohibits discrimination by public entities by reason of disability with respect to their services, programs or activities. However, both title I of the ADA and title II of the ADA are set up in such a way so that in addition to having a disability, you also have to be qualified. What it means to be qualified is different between title I of the ADA and title II of the ADA. Further, what it means to be qualified under title II of the ADA contains absolutely no hint that employment is involved. Instead, it talks about essential eligibility requirements and the receipt of services or the participation in programs or activities.

2. DOJ regulations are not entitled to deference because the title II of the ADA unambiguously does not apply to decisions of state and local governments in employment matters.

3. Employment cannot simply be described fairly as a service, program, or activity of a public entity nor is it ordinarily conceptualized as such.

4. If title II applies to employment, then the statute becomes redundant in the broader statutory scheme.

5. Title I of the ADA definition of what it means to be qualified specifically focuses on employment matters (i.e. perform the essential functions of the job with or without reasonable accommodations).

6. With respect to title I, the terms “reasonable accommodation” and “undue hardship,” both contain references to employment matters.

7. Title I of the ADA has its own comprehensive regulatory scheme.

For that matter, title II of the ADA has its own comprehensive regulatory scheme as well. With the exception of 28 C.F.R. § 35.140, you never see employment discussed in the title II regulations.

8. The 11th Circuit never considered the definition of qualified under title II of the ADA in its opinion.

9. With respect to the closely related issue of whether title III applies to employment, both the Third Circuit and the Sixth Circuit have said no and that title I is the exclusive arena for disability discrimination employment matters.

Brumfield does an excellent job of discussing the cases on both sides of the issue and the reader is referred to that opinion if desiring further analysis.

V
Takeaways:

1. Bledsoe was the first Circuit Court decision to address the question of whether title II applies to employment. As such, it was on its own. One wonders if the question came before the 11th Circuit today whether the same decision would be reached.

2. The arguments laid out in Brumfield are compelling, and § III and § IV(7) of this blog entry make those arguments even more compelling (I mean I know those arguments are mine:-), but I do believe that those arguments buttress the Brumfield line of cases).

3. All of the cases since Bledsoe that have visited the question specifically of whether a different title of the ADA also applies to employment have held in the negative.

4. There is a Circuit Court split on this. Therefore, I would certainly expect an appeal to the First Circuit in Torres. It is true that the First Circuit has previously suggested that title II may encompass employment matters, but that was back in 2002, and also they did not specifically address that question. Therefore, it is uncertain as to what the First Circuit will do on appeal. Also, even assuming the First Circuit decides in favor of title II applying to employment, the Brumfield reasoning is so strong that to my mind it would likely prevail at the Supreme Court (since there is a Circuit split, there is a good chance that the Supreme Court would take the case).

5. So, unless you are in the 11th Circuit or are in the Second Circuit and dealing with a Title II entity with less than 15 employees that does not take federal funds, it is probably safe to say that title II of the ADA does not apply to employment matters. It would be interesting to see what would happen in the 11th Circuit if they were somehow asked to revisit the issue.

6. Preventive law dictates that the practitioner act as if title II does not apply to employment (the arguments are just too strong). Further, it would seem highly likely (though predicting the Supreme Court is always hazardous business), that the Supreme Court will eventually make the same decision.

Today’s case is National Federation of the Blind of California v. Uber Technologies, Inc.. This case is receiving quite a bit of press, but I thought I would offer my own take on it. As is typical for my blog entries, I have divided the blog into categories: facts; issues; holdings; court’s reasoning; and takeaways. The reader is free to concentrate on any or all of the categories.

I
Facts

As many of you know, UberX is a transportation service using mobile software applications to arrange rides between passengers and Uber’s fleet of Uber X drivers. To use the services an individual must either create a user account and provide Uber with his or her phone number, credit card information, and email address, or travel as a guest of an individual who has a Uber user account. The customer submits a request on behalf of himself and other passengers through the mobile software application. Once Uber identifies the vehicle that will provide the customer transportation, Uber notifies the customer via text message or through a smart phone application. The notification includes vehicle and driver identification information as well as an estimated time of arrival. When the vehicle has arrived, Uber notifies the customer, and the customer and passengers may board the vehicle. Uber is one of the most cost-effective transportation services out there. Individuals downloading Uber’s mobile phone application agreed to Uber’s terms of service, including the agreement to submit all disputes to binding arbitration. Full disclosure: I have never used the service.

In this case, the National Federation of the Blind of California had several members who were denied transportation by Uber drivers because they have service dogs accompanying them. Other members of the Association, having heard the stories, simply did not want to try Uber, though they would like to, because of the likelihood of humiliation they would suffer on account of the guide dogs. The National Federation of the Blind of California and three other plaintiffs brought suit alleging violations of title III of the ADA, the California Unruh Civil Rights Act, and the California Disabled Persons Act. The remedy sought by the National Federation of the Blind of California was injunctive and declaratory relief.

II
Issues

1. Did the National Federation of the Blind of California have standing to bring the lawsuit?

2. Are the claims of the National Federation of the Blind of California precluded by arbitration agreements or by prudential considerations?

3. Did the plaintiff who wanted to use Uber’s services but had not tried to do so have standing?

4. Are the National Federation of the Blind of California and the plaintiff wanting to use the services but never having tried to do so, aggrieved persons under the Unruh Civil Rights Act and the Disabled Persons Act of California?

5. Does the plaintiff whose wife uses Uber but who had been denied use of Uber when his wife uses Uber on account of his guide dog, have standing to pursue a claim?

6. Is Uber a place of public accommodation under the ADA?

III
Holdings:

1. Yes

2. No

3. Yes

4. Yes

5. Yes

6. Potentially yes

IV
Court’s Reasoning

Issue 1

1. An association has standing when: 1) it’s members would otherwise have standing to sue in their own right; 2) the interest the Association seeks to protect are germane to the organization’s purpose; and 3) neither the claim asserted nor the relief requested requires the disposition of individual members in the lawsuit.

2. Critically, claims for declaratory and injunctive relief do not require individualized proof and those were the only remedies that the National Federation of the Blind of California were seeking on behalf of its members.

Issue 2

Since the National Federation of the Blind of California only brought claims on behalf of members who would have standing and was not seeking monetary relief, the arbitration agreements were not a bar to associational standing.

Issue 3

The National Federation of the Blind of California joined with three individuals in the lawsuit and claimed to represent the interests of the membership at large. Therefore, the Association was not simply standing in for one of its members, but rather representing a broad membership base, which it alleges has sufficiently been injured by Uber, and therefore, prudential considerations will not bar the claims. An explanation is in order here. The court notes that a few District Court cases have found that an organization is not the proper party for bringing a claim where the organization was merely repeating the claims of individuals. However, for the reasons noted in this paragraph, the court did not feel that this was the situation here.

Issue 4

1. The ADA does not require a person with a disability to engage in a futile gesture if such a person has actual notice that a person or organization does not intend to comply with the law.

2. That is, in order to have standing, there must be an injury in fact, which can be established if a person can show that he or she was deterred from visiting the accommodation on specific occasions when he otherwise would have visited because of the known barriers there.

3. At the pleading stage, a plaintiff has to show: 1) actual notice of discriminatory practices; 2) specific occasions when he was deterred from visiting the accommodation; 3) an intent to return; and 4) a likelihood of continued discrimination.

4. Allegations were made that this particular individual has specific and general knowledge of experiences of multiple Uber passengers with service animals being denied access.

5. 9th Cir. case law holds that a plaintiff need only allege one instance of an ADA violation to achieve standing, but then has the ability to challenge other ADA violations found in the course of discovery. Again, the critical fact here is that this particular plaintiff had knowledge that persons with disabilities with service animals had been turned away and believed that there was a likelihood of continued discrimination.

Issue 5

1. Standing provisions under the California Unruh Civil Rights Act and the California Disabled Persons Act are broader than their federal counterparts because under those laws, plaintiff can bring a claim seeking injunctive relief if he or she can show that he or she was aggrieved or potentially aggrieved.

2. California courts do not require proof that a plaintiff intends to encounter or has been deterred from encountering a given architectural barrier when it comes to claims under the Disabled Persons Act.

3. It was clear to the court that state law statutory provisions of California were meant to work in harmony with the ADA by allowing a plaintiff proving an ADA violation to seek monetary recovery for an actual harm and attorneys fees, neither of which the court said were available under the ADA.

I get the damages for actual harm piece not being a remedy covered by title III of the ADA. However, the court also references attorney’s fees as not being covered by the ADA, which is not the case, unless, the court is referring to the collection of attorney’s fees with respect to actual harm.

4. Case law in the particular district where this case was filed holds that an association establishing standing under the ADA also has standing to pursue the state law claims.

5. The plaintiff who used Uber through his wife had alleged sufficient facts to establish standing and that he was able to show that he intended to use the service again and faced the likelihood of future discrimination.

Issue 6

1. Plaintiff alleged that Uber was liable under the ADA under either 42 U.S.C. § 12182(b) as a place of public accommodation or under 42 U.S.C. § 12184 as a specified public transportation service. Uber asserted only that it is not a place of public accommodation under the ADA, but did not ask the court to dismiss the complaint as to the specified public transportation service claim.

I find this strategy very odd. Certainly, I understand the strategy of saying that Uber is not a place of public accommodations. However, I would not have been so fast to not contest the point that Uber was also not a specified public transportation service. With regards to public transportation services, it is pretty clear from reviewing the final Department of Transportation regulations, which we discussed in this blog entry, that public transportation is referring to public entities and Uber is not a public entity. Also, if you look at the final rule of the Department of Transportation, it says it is a final rule implementing title II and title III of the ADA. Therefore, to be covered by that regulation, an entity would have to be subject to title II or title III of the ADA in the first place or take federal funds, which means it would be subject to the same regulations by virtue of the Rehabilitation Act. One only wonders if by adopting this strategy, Uber has now waived the right to contest the claim of coverage under the ADA as a specified public transportation service.

2. Plaintiffs claimed that Uber’s operation fell under the travel service category.

3. The ADA does not define travel services. Accordingly, since defendants did not cite any binding law that Uber’s service was precluded from coverage under the ADA as a travel service, in the absence of clear law to the contrary, the plaintiff demonstrated a plausible claim for Uber’s ADA liability as a place of public accommodation. Whether that will ultimately become the case, needed more factual development and a motion to dismiss was not appropriate.

V
Takeaways

1. I would expect lots of litigation over what travel services means. Also, that is going to tie into the discussion of whether the travel services are attached to a physical place as we have seen in this blog entry and the links contained therein. Back in the day, travel services was pretty clear. You called up a travel agency and they made a reservation for you or they met with you to figure out what you wanted to do. My wife and I planned our honeymoon in such a traditional way. However, things have evolved considerably over the last 25 years. Now, travel services are done online. While it is true that the courts are split with respect to whether places of public accommodations means a physical place or not, in this situation Uber, through its fleet of cars, is very much attached to a physical place, albeit one on wheels.

2. Don’t give away defenses unnecessarily because quite often doing so means waiving the right to raise that defense later (standing being the exception to that rule).

This blog is about understanding the ADA. That said, there are so many places that bounce into the ADA that sometimes I wonder if it is not more apt, at times, to say it is about understanding the ADA and related laws. This is one of those situations where I’m going to talk about a related law. The law is the Workforce Innovation and Opportunity Act enacted on July 22, 2014. For those dealing with a child with an IEP or a 504 plan who is going to need vocational rehabilitation services, these proposed regulations are a must read. I am going to highlight some of the requirements of the proposed regulations in this blog entry:

1. Amends the definition of employment outcome to include only those outcomes in competitive integrated employment or supported employment, and thereby eliminates uncompensated employment from the list of acceptable employment outcomes. Uncompensated employment would include such things as homemakers and unpaid family workers.

2. Supported employment outcomes must be in competitive integrated employment. If not, then supported employment outcomes must be in an integrated setting where the individual is working on a short-term basis for competitive integrated employment. Short-term basis would mean no longer than six months.

3. Economic self-sufficiency consistent with an individual’s unique circumstances must be a criteria considered when providing vocational rehabilitation services to an individual.

4. A comprehensive assessment, to the maximum extent possible, must rely on information obtained from the individual’s experiences in integrated employment settings in the community and other integrated settings in the community.

5. The employment location must be found in a setting typically found in the community.

6. An employee with a disability interaction with other employees and others, such as customers and vendors, who are not persons with disabilities (other than supervisors and service providers), must be done in the same way that employees without disabilities in similar positions interact with those individuals. That interaction has to occur as part of the individual’s performance of work duties and must occur both at the particular work unit and throughout the entire worksite.

7. Competitive integrated employment will not be considered as such unless the individual performed part-time work where he or she is earning at least the higher of the minimum wage established by federal or applicable state law.

8. An individual with a disability must be eligible for the same level of benefits provided to employees without disabilities in similar positions.

9. Self-employed individuals with disabilities can be considered to be receiving competitive compensation where their income is comparable to that of individuals without disabilities in similar occupations or performing similar tasks to those who possess the same level of training, experience, and skills.

10. The work location must be in a setting typically found in the community. That is, an integrated setting typically found in the competitive labor market.

11. Sheltered workshops do not constitute integrated settings because those settings are not typically found in the competitive labor market.

12. Individuals with disabilities must have the opportunity to interact with nondisabled coworkers during the course of performing the work duties to the same extent there nondisabled coworkers must interact with each other when performing the same work.

13. Whether a setting is integrated is to be focused on the interaction between employees with and without disabilities and not upon the interaction of employees with disabilities outside of the work unit. The example given is that if a person with a disability works in a customer service center, the interaction with the person on the other end of the line would not count.

14. Self-employed individuals or those engaged in telecommuting can satisfy competitive integrated employment so long as the employee with a disability interacts with employees in similar positions and other persons without disabilities to the same extent that those persons without disabilities interact with others even though that interaction is not face-to-face.

15. The interaction between employees with disabilities and those without disabilities must be focused with respect to the performance of the employee’s job duties and not on the casual, conversational, and social interaction that occurs in the workplace (such as interactions in the lunchroom and other common areas of the worksite (you could refer to that as “water cooler talk,” I suppose).

16. Employees with disabilities using the vocational rehabilitation services must have the same opportunities for advancement as employees without disabilities in similar positions.

17. The competitive integrated employment must be customized. That is, designed to meet both the specific abilities of the individual with a significant disability and the business needs of an employer.

18. In order to track the language of the Workforce Innovation Opportunity Act, extended services that may be provided to youth with the most significant disabilities may not exceed four years.

19. A person in a supported employment context is time-limited and will be considered to be working on a short-term basis toward competitive integrated employment where that individual reasonably expects achieving a competitive integrated employment outcome within six months of achieving the outcome of supported employment.

20. The designated state unit must have a 21st-century understanding of the evolving labor force and needs of persons with disabilities. The proposed regulations on this score would describe education and experience in fields related to rehabilitation. If the person only possessed a bachelors degree, there would be a requirement for at least one year paid or unpaid experience.

One wonders if this is really necessary (it may or may not be). Certainly, it will drive up the cost for the designated state units.

21. Designated state units have the ability to create an exemption from order of selection criteria for eligible individuals needing a specific service or equipment in order to maintain employment where they have such order of selection criteria. The purpose of this regulatory change would allow designated state units, at their discretion, to elect to serve these individuals outside of the order of selection criteria otherwise in place so that individuals could be served who are at risk of losing employment if such services or equipment are not given to them.

I find the comma placement for “at their discretion,” to be a bit odd grammatically because as such it seems to indicate that “may be at the discretion,” is not a big deal and could be taken out of the sentence. However, the proposed regulations make it quite clear that discretionary is a critical piece of this particular provision so that designated state units have the ability to serve these individuals outside of the established order and should do so if financial and staff resources are sufficient. Also, if they do exercise this discretion, the services and equipment provided under the authority have to be consistent with an individual’s individualized plan for employment in the same manner as any other service or equipment provided under vocational rehabilitation program. Finally, this particular provision only applies to the individual’s needs in order to maintain employment and not to other services the individual may need for other purposes.

22. A designated state unit cannot require an applicant to demonstrate a presence in the state by the production of documentation that would result in a residency duration requirement.

23. The ability to utilize the extended evaluation process is eliminated. This means that before designated state unit can find someone ineligible, they must conduct a full assessment of the capacity of the applicant to perform in realistic work settings without the exception of extended evaluations.

24. A designated state unit must develop an individualized plan for employment for each eligible individual as soon as possible and no later than 90 days following determination of eligibility unless the designated state unit and the individual agreed to a specific extension of that timeframe.

25. Designated state units must provide eligible individuals entitled to Social Security benefits under title II or XVI of the Social Security act information on assistance and support available to individuals desiring to enter the workforce, including benefits planning. Hopefully, someone will write in that such information should include a discussion of judicial estoppel per Cleveland v. Policy Management Systems Company, 526 U.S. 795 (1999). (I knew I could figure out a way to get the ADA into this blog entry somehow:-)

22. The Workforce Innovation Opportunity Act requires states to reserve 15% of their vocational rehabilitation allotment to provide pre-employment transition services to students with disabilities eligible or potentially eligible for vocational rehabilitation services.

23. Adds to the definition of pre-employment transition services the terms “student with a disability,” and “youth with a disability.” The reason is because the act distinguishes the kinds of services that a student with a disability can obtain v. the kind of services that a youth with a disability can obtain.

24. Decisions related to the entity responsible for providing transition or pre-employment transition services that could be considered both a special education and a vocational rehabilitation service are to be made at the state and local level as part of the collaboration between the vocational rehabilitation agencies, State educational agencies, and local education agencies through interagency agreements or other mechanism for interagency coordination. The regulations note that both IDEA and the Rehabilitation Act already require state educational agencies and vocational rehabilitation agencies to plan and coordinate transition services for students with disabilities.

25. A person who has a 504 plan must have their 504 plan incorporated into consideration of the development of an individualized plan for employment. Current regulations only apply to IEP’s.

26. Description of specific vocational rehabilitation services pursuant to development of the individual plan for employment must include the specific transition services and supports needed for an eligible student with a disability or a youth with a disability in order to achieve an employment outcome or projected post school employment outcome. That is, the generally described employment goal previously permitted is now out the window.

The only concern I would have with respect to a specific employment goal is the funneling of persons with disabilities into certain professions or careers or jobs based on stereotypes.

27. Permit pre-employment transition services to be provided to all students with disabilities regardless of whether they have applied for vocational rehabilitation services and clarifies that similar transition services are available to youth with disabilities when specified in an individualized plan for employment.

28. Other proposed regulations that would: specify the required pre-employment transition services to be provided directly to students with disabilities; would describe the authorized activities that a state can provide- providing sufficient funds are available,- to improve the transition of students with disabilities from school to postsecondary education or to an employment outcome; and would describe the responsibility for pre-employment transition coordination to be carried out by vocational rehabilitation agencies.

29. A student with a disability, a broader term than the definition used in IDEA, does not have to apply for or be determined eligible for vocational rehabilitation services prior to receiving pre-employment transition services.

30. Educational agencies are clarified to mean state or local educational agencies.

31. Allows for transition services to students and youth with disabilities to be done as a permissible service for the benefit of groups of individuals with disabilities. This particular regulation is focused on being of service to groups.

32. Community rehabilitation programs must be used to promote competitive integrated employment, including customized and supported employment.

33. Vocational rehabilitation agencies are given the authority to provide technical assistance to all businesses considering hiring individuals with disabilities. That may be fine, but the concern would be entering into the area of providing legal advice. There is no substitution for a knowledgeable lawyer with a background in the ADA when legal rights are involved. See also paragraph 35 below. It makes you wonder whether vocational rehabilitation agencies might not farm this out to protection and advocacy groups and technical assistance centers. Again, there is no substitution for knowledgeable legal counsel. Also, one wonders just what will be the background of the trainers (disability activist, lawyer, etc.).

34. Assistive technology services may be provided for the benefit of a group of individuals.

35. Vocational rehabilitation agencies are given the ability to provide support for advanced training in the manner benefiting a group of eligible individuals.

36. Accommodations and auxiliary aids and services are to be included among the vocational rehabilitation services requiring the determination of the availability of comparable services and benefits prior to the provision of such services to an eligible individual.

37. Supported employment programs are now described as a purpose to provide individualized supported employment services, including extended services, to youth with the most significant disabilities in order to assist them in achieving supportive employment and competitive integrated employment. For such individuals, supported employment services can be extended to 24 months.

38. Prohibits a local educational agency or a state educational agency from entering into a contract with a sheltered workshop.

Takeaway:

1. These proposed regulations are mandatory reading for: anyone with a child who has an IEP or a 504 plan and whose child may be in need of vocational rehabilitation services; for those working in or representing vocational rehabilitation agencies; for attorneys for mental health mental retardation authorities (what they were called at the time in texas back in the 90s-governmental entities acting as a safety net for persons with mental health issues, intellectual disabilities, and substance abuse), or similar outfits; and any attorney representing k-12 programs. To a lesser extent, college and university attorneys may want to become familiar with these regulations.

2. Anybody with an interest in these regulations should take advantage of the commenting period as the time to influence regulations is during the commenting time frame.

3. We have previously discussed how Olmstead is being used to phase out sheltered workshops. Now, the Department of Education is coming at it in another way. The days of the sheltered workshop are definitely numbered, and a segment of parents are not going to be any too happy about that.

In a comment to this blog entry, I discussed the panel decision of the Sixth Circuit in EEOC v. Ford Motor Company where the panel held that telecommuting was a reasonable accommodation. Before proceeding further, I want to thank Jon Hyman for alerting me through his blog that the en banc decision came down April 10, 2015. I also want to encourage everyone to read what John has to say in his blog entry this week (he also has a link to the en banc decision in his blog entry), as his Friday entry promised some fireworks; I would say he came through on that promise. Also, Eric Meyer in this blog entry of his , has thoughts worth reading as well. I fully expect Robin Shea to weigh in as well. All three of these people have blogs in my blog roll.

In my blog entry mentioned above, I thought the defendant would seek an en banc hearing because under the facts of the case there were some serious weaknesses in the majority opinion of the panel decision. The en banc decision was an 8 to 5 decision, and I thought I would highlight the arguments of the majority and minority opinion. My approach to this blog entry is: the introduction section above, the majority opinion, the dissenting opinion, and takeaways. In the analysis of both the majority opinion and the dissenting opinion, I offer my thoughts immediately underneath the particular reason for the majority opinion or the dissent. As is usual, the reader is free to focus on any or all of the sections of this blog entry.

I
Majority opinion

1. Basically, the majority says that attendance is presumed to be an essential function of the job unless you can satisfy Samper, which was the subject of this main blog entry , of which I added EEOC v. Ford Motor Company in the comments section.

2. An employer is not required to modify an essential function of the job.

This is true. However, an employer does need to evaluate whether the person can do the essential function of the job with or without reasonable accommodations. If accommodations would modify or eliminate the essential functions of the job, then the ADA does not require the employer to grant that accommodation. The employer does need to work with the employee to get the employee to the same starting line as a person without a disability so long as the essential functions of the job are not compromised by the accommodations.

3. Ford engaged in an interactive process and only quit when it came down to modifying essential functions of the job.

4. An essential function of the job reflects an employer’s judgment and also what the employer does. To the majority, Ford had plenty of evidence to suggest that on-site attendance was an essential function of the plaintiff’s job.

As I alluded to in my comment on the Samper case, it is certainly possible that Ford had plenty of evidence to suggest that on-site attendance was an essential function of the job. However, that doesn’t answer the question. Is essential functions of the job a question of fact or a question of law. There are certainly cases holding that essential functions of the job is a question of fact. On the other hand, it is not unusual for a court to find that the facts are so overwhelming that in essence, a question of fact never presents itself.

5. Where an employer’s judgment as to essential job functions as evidenced by the employer’s words, policies, and practices and taking into account all relevant factors is job-related, uniformly enforced and consistent with business necessity, summary judgment in favor of the employer is required.

Whether a job’s function is essential has to do with the fundamental aspects of carrying out that job. I am not following how essential functions of the job has anything to do with whether it is job-related or consistent with business necessity, concepts we discussed here. Also, the uniformly enforced piece is a bit problematic because the ADA is not dealing with disparate treatment here, but rather with the affirmative duty to accommodate a person with a disability. Finally, if this becomes the standard, then litigation over essential functions just got incredibly complicated because not only would you have to show that the function is fundamental to carrying out the purpose of the job, but you would also have to show that it is job-related (which I suppose we could presume if the function was essential), and consistent with business necessity (to my mind, it is certainly possible that a job could have an essential function that is not vital to the operation of the business). I get how uniformly enforced might go to essential functions, but also this is not a situation where you are dealing with disparate treatment.

6. With respect to the retaliation claim, temporal proximity cannot be the sole basis for finding pretext. Also, considering the performance issues, plaintiff could not show per Nassar that the filing of the EEOC claim was a but for reason for the termination.

The dissent is quite right to point out that this is harsh for persons with disabilities, especially if their performance problems is connected to the lack of accommodations. That said, this defense strategy seems to be sound in light of University of Texas Southwestern Medical Center v. Nassar, which we discussed here.

II
Dissent:

1. Essential functions of the job is a question of fact and not appropriate for summary judgment.

As a matter of case interpretation, the cases generally find essential functions of the job to be a question of fact where to the court’s mind it is a close call.

2. The majority turned the summary judgment standard on its head by focusing on facts least favorable to the plaintiff rather than on facts most favorable to the plaintiff. Further, it is not right to make the employee testimony somehow inherently less credible than testimony from the employer.

The dissent may be onto something here. Having read thousands of cases over the years, it often seems that summary judgment turns into a bench trial based on discovery and then if it is a close call goes to the jury and if not the judge decides to grant the motion for summary judgment, usually for the defense but in rare situations for the plaintiff. In other words, the court seems to be acting as a screen out with the summary judgment practice. That is, it seems to me that cases go to the jury only where the plaintiff has a very real chance of winning or is very likely to win, otherwise the case gets decided on summary judgment for the defense. I have seen a couple of cases, such as this one, that say this view of summary judgment has taken things too far and it isn’t the province of the judge to act as the screen out where the critical facts are contested, but such cases are certainly not the majority.

3. Ford’s judgment that physical presence at the office is an essential function of the job is entitled to consideration, but that does not mean it is entitled to deference. The ADA states only that consideration shall be given to the employer’s judgment as to the essential functions of the job but that is not the same thing as saying deference is to be given to the employer.

This is an excellent point. However, the case law as a matter of practice has given different levels of deference, depending upon the jurisdiction, to the employer’s notion of what an essential function of the job is. If I had to categorize it, I would say that the cases range from deference to deference plus to strong deference, but it is rare that a case just give consideration to the employer’s view of essential function rather than some degree of deference.

4. The cases requiring physical presence are distinguishable from this case.

5. Technology has advanced in 1995 in facilitating teamwork through fast and effective electronic communication, and so it should no longer be assumed, per the majority opinion, that teamwork must be done in person.

The majority opinion does create this presumption that teamwork must be done in person. Such a presumption takes things even further than Samper. Also, as Jon points out in his blog entry of today, mentioned above, a strong argument can be made that the presumption should be reversed.

6. The slippery slope argument overstates the reach of this case and sets a poor precedent for other failure to accommodate cases since providing telework is not just a good deed but is sometimes legally required under the ADA.

In another life, I actually taught a logic class to college students. One of the things that the law is particularly bad about is how it emphasizes the logical fallacy of the, “slippery slope.” That is, you decide something one way and that necessarily means the ball just keeps rolling downhill. It is a logical fallacy because everything turns on its facts and the ball does not have to keep rolling at all. Therefore, to my mind, this is an excellent point made by the dissent. There are most certainly going to be situations where telework is going to be legally required under the ADA, especially where the Samper criteria are not satisfied.

7. It was not clear from the record whether the plaintiff was asking for flex time or time to be able to work beyond office hours. If there was a request to telework during core business hours only, that might be considered a reasonable request.

8. The majority opinion reads facts and ambiguity contained in the record in a way least favorable to the plaintiff when on summary judgment it should be the other way around.

See my discussion of summary judgment above.

9. The request of the plaintiff to telework up to four days a week was an opening bid and Ford should have made a counteroffer.

Depending upon the Circuit, failure to engage in the interactive process may or may not be an independent cause of action for violating the ADA. In this situation, the court’s majority opinion is in essence saying that the plaintiff causes the breakdown of the process where an accommodation request would modify or change the essential functions of the job.

10. Since the interactive process is not an end in and of itself, the employee must present evidence that a reasonable accommodation could have been identified if the employer had engaged sufficiently in the interactive process, which the EEOC did.

The problem with this argument is that Ford did engage in a substantial interactive process up until the point where the essential functions of the job, at least to Ford Motor’s eyes, were to be compromised. Also, this particular statement goes further than case law that I have seen, much of which says that all the plaintiff has to do is identify a reasonable accommodation and then the ball goes into the employer’s court.

11. In the Sixth Circuit, reassignment is reasonable only where the employer demonstrates that it would be an undue hardship to accommodate the employee in his or her current position.

With respect to reassignment, case law is all over the place on this one. Be sure to check your own jurisdiction.

12. With respect to retaliation, a reasonable jury could certainly infer from the timing and nature of the events that Ford fired the plaintiff in retaliation for the charge she filed with the EEOC.

This is most certainly true in this case as the time in between firing and the charge was not a great deal of time. However, the problem still is that retaliation claims require but for causation per University of Texas Southwestern Medical Center v. Nassar.

13. Citing to this case, which we discussed previously, the dissent believed that the key question was whether the EEOC charge that was filed was the poison that precipitated the firing to occur when it did. If so, that was wrongful conduct.

This is a very interesting argument and one that I have not seen before. It will be interesting to see how much currency this argument gets in the courts.

14. The majority opinion is bad policy because that opinion makes it impossible for employees with performance problems to bring a retaliation claim based on the theory that those performance problems did not truly motivate the employer to fire them. That cannot be in accordance with the purposes of the ADA because employees with disabilities often have performance problems precisely because of the struggles they encounter to manage those disabilities.

Absolutely true. However, the Supreme Court has spoken on the causation standard in retaliation cases. This leads to the question, which we have discussed in this blog before, as to what does “but for” really mean. Also, does equity, i.e. principles of fairness, demand some slack where it can be shown that the performance problems were related to the failure to accommodate the employee? Keep in mind, it is far from clear in this case whether the performance problems were related to the failure to accommodate or it was just a case of bad performance on the part of the employee.

III
Takeaways:

1. If you are faced with attendance as an essential function of the job, make sure you read the Samper case.

2. Essential functions of the job do not need to be modified or eliminated in order to comply with the ADA. That said, make sure you can back up what the essential functions of the job are. In many cases, the benefit of the doubt goes to the employer.

3. Requiring that a threshold of job-related, uniform enforcement, and consistent with business necessity be in place before summary judgment in favor the employer is required, does litigants on either side no favors as it most definitely increases the expense of litigation. It also imposes a set of requirements that in the long run may prove very problematic for employers, particularly with respect to the business necessity requirement. Finally, I am struggling to see how the ADA and its implementing regulations even suggest the necessity for this standard.

4. Saying that temporal proximity cannot be the sole basis for finding pretext makes retaliation claims very difficult for plaintiffs considering that the standard is but for causation and performance problems are typically involved. One wonders if a standard could not be crafted so that temporal proximity is not a sole basis for finding pretext, but merits strong consideration where the performance problems are traceable to the failure to receive reasonable accommodations (that is, an accommodation that gets the person without a disability to the same starting line as a person with a disability and does not jeopardize the essential functions of the job).

5. On the plaintiff’s side, look for every plaintiff attorney dealing with a reasonable accommodation case to take the section of the dissenting judges opinion that when it comes to essential functions of the job, an employer is entitled to consideration but not, as is the practice of cases, deference.

6. Given today’s technology, it simply doesn’t make sense that there should be a presumption that teamwork needs to be done in person. On the other hand, I don’t know if it makes sense to have a presumption saying that teamwork does not need to be done in person either. To my mind, a presumption is not needed, and the parties should be put to their proof.

7. The slippery slope argument is one that should be easily countered in the ADA. The fundamental purpose of the ADA is an individualized case analysis of each set of facts. Therefore, the slippery slope should not be an issue, and if there ever was a logical fallacy in the law, it would be the slippery slope in the context of ADA cases.

8. Defense attorneys filing a motion for summary judgment is standard practice. As a practical matter, it seems that once a defense file such a motion, the burden shifts to the plaintiff to prove the defense wrong. Look for plaintiff attorneys to use the section of the dissent saying that summary judgment practice has gone too far.

9. I don’t follow the point in the dissent saying that an employee must present evidence that a reasonable accommodation could have been identified if the employer had engaged officially in the interactive process. The way the cases have gone to date, is that the plaintiff must suggest a reasonable accommodation and once the plaintiff does, the employer must engage in the interactive process. After that, whoever breaks down the interactive process bears the liability. To say otherwise winds up in a situation where the defendant could be the breakdown in the interactive process but the plaintiff would still have the obligation to show that an accommodation was possible once the defense broke down the interactive process. That puts an added burden on the plaintiff, which to date has not been imposed.

10. When it comes to reassignment, check your jurisdiction for the applicable law.

11. Look for a lot of litigation in retaliation cases over what “but for,” really means.

12. Will this case go to the Supreme Court? First, I am not sure you could say there is a Circuit court split yet. Second, on the plaintiff’s side, you would have to be worried about whether the United States Supreme Court would unduly narrow the ADA, especially since the current nature of Congress is such that the law would not likely be amended regardless of the Supreme Court decision. Third, I am not sure where plaintiffs would find the fifth vote. Finally, plaintiffs with disabilities have not fared well at the Supreme Court when it comes to employment matters. Of course, you never know with these things as the Supreme Court decision in UPS v. Young illustrates.

This blog entry is divided into separate categories: introduction; the statutes; the case of the week; and takeaways. You probably will want to read all of it, but you still have the option to focus on any of the categories you like.

I
Introduction

Recently, I ran across this article, in my Google alerts. It shouldn’t surprise anyone that I have a Google alert set for Americans with Disabilities Act. Well, I wanted to find out if this was indeed the case. After checking with my colleague, Richard Hunt, who I consider to be a Fair Housing Act maven, and doing further research, I came to the conclusion that the article may or not be correct and here is why:

II
The Statutes

1. 42 U.S.C. § 3607 is the private club exception In the Fair Housing Act, but all it says is that a private club can limit housing to members.

2. 42 U.S.C. § 12187 is the private club exception for title III of the ADA. It states that title III of the ADA does not apply to private clubs or establishments exempted from coverage under title II of the Civil Rights Act of 1964 or to religious organizations or entity controlled by religious organizations, including places of worship. This means we have to go to the provisions of 42 U.S.C. § 2000-a(e) to see what that says.

3. 42 U.S.C. § 2000a(e) says that title two of the Civil Rights Act does not apply to a private club or other establishment not in fact open to the public, except to the extent that the facilities of such establishment are made available to customers or patrons of an establishment within the scope of 42 U.S.C. § 2000a(b).

With respect to fraternities, an argument can be made that fraternities are open to the public. After all, both members of the fraternity and nonmembers of the fraternity will frequently visit fraternities. Second, a fraternity is providing lodging to a transient guest (see paragraph 4 immediately below).

4. 42 U.S.C. § 2000a(b)(1) covers any inn, hotel, motel, or other establishment providing lodging to transient guests other than an establishment located within a building containing not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence.

With respect to fraternities, the proprietor exception would not apply.

III
The Case of the Week

A
Facts

But you don’t have to take my word for it. The US Court of Appeals for the Third Circuit has spoken on this as far back as 2006 in Regents of the Mercersburg College v. Republic Franklin Insurance Company, 458 F.3d 159 (3d Cir. 2006). In this case, the insured operated a private secondary boarding school. A school building that contained dormitory housing was damaged by fire. The insured claim that an ordinance and a endorsement to its property insurance policy covered the costs to bring the building into compliance with the ADA.

B
Court’s Reasoning

In holding that the costs to bring the building into compliance with the ADA was covered by the policy, the court reasoned as follows:

1. Private school dormitories are transient lodging as defined by the ADA regulations.

2. Dormitories are part of boarding schools and therefore are places of education.

3. Appendix A to the ADA Accessibility Guidelines specifically includes dormitories.

4. Chapter 3 of the Appendix A to the ADA Accessibility Guidelines explicitly states that transient lodging includes a building or facility containing sleeping accommodations and also mentions dormitories.

5. Student housing is an integral part of the boarding school experience and therefore is one of the facilities, privileges, advantages, and accommodations of a place of education covered by title III of the ADA.

6. Places of education are subject to title III of the ADA.

7. A technical assistance letter from the Department of Justice dated May 2, 1994 takes the position that all aspects of a school’s student activities and of the educational experience are covered by title III of the ADA. This letter specifically references fraternity houses owned and operated By a University.

The court wound up remanding the case because whenever alterations are made, the path of travel regulations kick in. That means, conceivably the undamaged portions of the dormitory might need to undergo ADA renovations. As a matter contractual interpretation, the insurance company would not be liable for necessary renovations to undamaged areas of the dormitory.

IV
Takeaways:

1. With respect to public universities, as we have seen many times before in this blog, title II of the ADA applies to everything that a public entity does. Further, since places of education are involved, to satisfy the Rehabilitation Act all of the operations of the place of education must be accessible to persons with disabilities. Since just about all universities take federal funds, the Rehabilitation Act does come into play in just about all cases.

2. This same technical assistance letter is perhaps overstated by the Third Circuit. In this letter, the Department of Justice states that if the fraternity house is not owned or operated by the University and will not be owned or operated by it in the foreseeable future, the house may be exempt from ADA coverage even if the house otherwise fits into one of the categories of places of public accommodation because it would be exempt as a private club. The factors to consider in whether a private club is involved are:

A. Whether the club is highly selective in choosing members

most fraternities would be

B. Whether the club membership exercises a high degree of control over the establishment’s operations

This may be highly variable

C. Whether the organization has historically been intended to be a private club

probably yes

D. The degree to which the establishment is opened up to nonmembers

probably frequently

E. The purpose of the club’s existence

This one is interesting because a fraternity doesn’t really have the same reason for being as an exclusive country club does, though some of those reasons do exist.

F. The breadth of the club’s advertising for members

Fraternities probably focus on the college community but one would need to know all of the facts

G. Whether the club is nonprofit

H. The degree to which the club observes formalities

It would take research on my part to determine what formalities are being referred to. Corporate formalities? Formalities that make the fraternity setting stand apart?

I. Whether substantial membership fees are charged

Undoubtedly fees are charged, but whether they are substantial would take further research.

J. The degree to which the club receives public funding

This one is very interesting because if a public university is involved, the fraternity is in some way probably receiving public funds.

K. Whether the club was created or is being used to avoid compliance with a Civil Rights Act.

This one is also interesting because the Americans with Disabilities Act is a Civil Rights Act.

A question that arises is whether all of these factors must be satisfied or whether, like revenue ruling 87-41 (dealing with independent contractors), no one particular factor is dispositive, rather you have to look at it in the broad sense. Also, this technical assistance letter says that they are covered by title III to the extent they open up their establishment to the general public for purposes falling within one of the categories of places of public accommodation. So, if the fraternity host events open to persons other than fraternity members and their guests (in the context of a fraternity, I am not sure what the phrase, “and their guests” refers to), the fraternity must be accessible in their public areas during those events. The more often those public events occur, the higher the obligation to make the publicly use areas accessible. This also doesn’t answer the question considering the nature of fraternities. An argument can be created that with respect to fraternities, even the living quarters would be public areas or areas that the public frequently uses.

3. As we have discussed previously, it is now unclear as to just how persuasive interpretation of regulations, such as appendices, are going to be.

4. So how do you deal with this situation? First, is it a private university? Second, is the private university owning and operating the fraternity? Third, if not, is the fraternity a private club? Fourth, if the fraternity is a private club, have you gone through the criteria in this letter? (Don’t forget about applicable case law here as well). Fifth, if it is a public University, is the fraternity receiving federal funds. If so, the Rehabilitation Act would apply and so would accessibility obligations. If not, go back to the private club analysis. Finally, if it is a public University and even if the fraternity is not receiving federal funds, are the fraternities such an integral part of the educational experience that denying accessibility would mean not allowing a person with a disability to benefit from the privileges, advantages, and benefits of an education at that institution?

Lots to think about and that leads to…. make sure you have a knowledgeable attorney to help your sort these things out.

Previously, I blogged on the oral argument in Earll v. eBay and Cullen v. Netflix. On March 19, 2015, the District Court in Vermont came down with this decision in National Federation of the Blind v. ScribD. That decision bears reviewing.

I
Facts:

ScribD is a California-based digital library operating reading subscription services on its website and on applications for mobile phones and tablets. Its customers pay a monthly fee to gain access to the collection of over 40 million titles, including e-books, academic papers, legal filings, and other user uploaded digital documents. The software program is accessed over the Internet and is not accessible to users that use a visual interface exclusively and lack any nonvisual means of operation. As a result, plaintiff brought suit saying that ScribD denies blind persons access to all of the services, privileges, advantages, and accommodations that ScribD offers and is excluding them from accessing information critical to their education, employment, and community integration.

II
Court’s Reasoning for Denial of Motion to Dismiss

1. In order to make a prima facie case under title III of the ADA, a plaintiff has to show: A disability within the meaning of the ADA; defendant owns, leases, or operates a place of public accommodation; and the defendant discriminated against the plaintiff by denying the plaintiff a full and equal opportunity to enjoy the services the defendant provides. The defendant argued that the plaintiff’s had not sufficiently alleged that it owned, leased, or operated a place of public accommodation.

2. The court cited to the text of title III, which states that no individual can be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person owning, leasing, or operating a place of public accommodation. 42 U.S.C. § 12182(a).

3. The court then lists the places of public accommodation, which can be found at 42 U.S.C. § 12181(7).

4. The court then goes into detail how the courts are all over the place with respect to whether a web-based business or even the web aspect of a brick-and-mortar business must comply with title III of the ADA. It noted that in the Ninth, Third, and Sixth Circuits, courts have held that title III of the ADA did not apply because of insufficient connection between the discrimination alleged and a physical place. However, in the 11th Circuit, the court there held that title III of the ADA covered both tangible and intangible barriers. The court also noted that in the First Circuit and in the Seventh Circuit, courts there have held that places of public accommodations are not limited to physical structures.

5. In the Second Circuit, the Second Circuit has held that title III prohibits the refusal to sell merchandise by reason of discrimination against the plaintiff’s disability. That decision, to the court’s mind, would logically extend imposing barriers on a person with a disability ability to access the merchandise, which is essentially the same effect as to where a company’s refuses to sell a person with a disability merchandise on the Internet. To hold otherwise, would allow a company to refuse to sell it goods or services to a person with a disability so long as it does so online rather than within the confines of a physical office or store. Such a holding makes no sense.

6. The court cited with approval National Association of the Deaf v. Netflix, Inc., which I blogged on here, for the proposition that the ADA covers not only transactions taking place over the phone or through correspondence, but also with equal force to services purchased over the Internet, and that when the ADA was passed, Congress intended the ADA to adapt to changes in technology. Accordingly, the court agreed with Judge Ponsor in NAD v. Netflix, that a plaintiff only has to show that the website fell within one of the general categories enumerated in the statute in order to be covered by title III of the ADA as a place of public accommodation.

7. ScribD did make the argument discussed in my blog entry discussing the oral argument in eBay and Cullen before the Ninth Circuit, that if a place of public accommodation is not construed to be a physical space, then Congress using the word, “place” improperly renders the word superfluous. The court was having none of it for the following reasons:

A. The title of the relevant section is “public accommodation,” and the categories and the definition are also described as, “public accommodations.” 42 U.S.C. § 12181(7). In neither situation, does the ADA use the word place, which thereby suggests that the accommodation has to be available to the public but not necessarily at a physical place open to the public.

B. In other instances, the statute uses the word, “establishment” instead of the word, “place.” 42 U.S.C. § 12181(7)(B). That suggested to the court that the word “place,” was used because there wasn’t any less cumbersome way to describe businesses offering those particular goods or services to the public.

C. Where there are instances where the word “public,” appears, the word is modifying the types of goods or services offered rather than the word, “place.” 42 U.S.C. § 12181(7)(D).

D. Reading the statute to extend beyond physical places open to the public, does not eliminate the need to demonstrate inclusion in one of the broad categories of public accommodations listed in title III of the ADA.

E. Relying on Carparts Distribution Center, Inc. v. Automotive Wholesaler’s Association of New England, the court noted that Carparts mentioned that travel services were included as an example of a service establishment considered a place of public accommodation, and even back in 1990, it was entirely possible that a travel service might operate without a physical location open to the public and conduct business directly by phone or by mail. Thus, by logical extension, “place,” or “establishment,” could refer to services provided off-site, including the Internet.

F. Requiring a physical structure has some connection to a physical threshold results in arbitrary treatment. To the court, it made little sense for the law to allow for discrimination against a person with a disability where the defendant sells policies door-to-door but to not allow discrimination against a person with a disability if the parent company’s office was covered. The court found it very unlikely that Congress could’ve intended such an inconsistent result.

G. Citing to PGA Tour v. Martin, the 12 categories of public accommodations should be construed liberally in order to for persons with disabilities to have equal access to the wide variety of establishments available to those without disabilities. Further, the court found support for construing public accommodations liberally in legislative history.

H. The committee reports suggest that the important quality public accommodations share is the offering of goods or services to the public and not that they offer goods or services to the public at a physical location. What matters is membership in one of the general categories.

I. The Department of Justice final regulations implementing title III of the ADA, 28 C.F.R. § 36.104, define facility as all or any portion of buildings, structures, sites, complexes, equipment, rolling stock for other conveyances, roads, walks, passageways, parking lot, or other real or personal property, including the site where the building, property, structure, or equipment is located.” The plain language of that regulation does not require that an entity’s facility be open to the public.

J. DOJ in several different ways, which has been discussed numerous times in this blog, has interpreted their regulation to apply to the Internet, and is in the process of promulgating regulations codifying the position that the ADA does apply to the Internet. The court says that the DOJ interpretation of the regulation is entitled to deference.

K. The fact that Congress did not amend the ADA to include Internet accessibility when it enacted the amendment to the ADA is of no significance since there could be a lot of reasons why Congress did not do that.

L. Representative Nadler in 2010 said that Congress when it enacted the ADA understood that the world around them would change and believed that nondiscrimination against persons with disabilities needed to be broad and flexible enough to keep pace.

M. Since the Internet plays a critical role in the personal and professional lives of Americans, excluding persons with disability from accessing covered entities that use it as the principal means of reaching the public defeats the purpose of the ADA.

8. ScribD could fall into any of several categories of public accommodations, including: exhibition or entertainment; sales or rental establishments; service establishment; library; gallery; or a place of public display or collection.

III
My Thoughts

1. First, in the interest of full disclosure, this whole blog entry has me very conflicted. My law practice and this blog are devoted to understanding the ADA. On the other hand, I have to use voice dictation technology in order to use the computer. None of my blog entries would’ve happened without it. For that matter, nor would anything that has anything to do with the computer happen without it. Also, I can’t tell you how many times I have tried to use a product on the Internet that is not accessible to voice dictation technology. Some of those products have not been accessible to voice dictation technology as well as to screen readers. However, I have run into a situation where product was accessible to screen readers but not to voice dictation technology. Being unable to use voice dictation technology with respect to the Internet, is extremely frustrating and makes things more inefficient for me than they need to be. That said, my blog is about understanding the ADA and not about advocating a particular point of view. Therefore, what follows is focused on that and does not necessarily reflect my personal opinion (my personal opinion would be that the ADA should apply to the Internet and that businesses should do it anyway because they are cutting down their customer base if they fail to do so). That said, that doesn’t mean the law gets you to the same place unless Congress amends it. Let’s discuss further.

2. The United States Supreme Court when trying to figure out what a statute means, often goes to dictionaries. So, I decided to do the same thing by looking up the word, “place” on the Internet. It is interesting what I found. When I asked Siri to define the word, I got, “a portion of space whether definite or indefinite.” When I asked Merriam-Webster to define the word, all of the possibilities clearly denoted a physical space. When I asked the free dictionary to define the word, I got, “a particular portion of space occupied by a person or thing.’ I also got a business establishment. When I asked the Oxford dictionary how to define the word, I got, “a particular position or point in space.” So, reviewing the possible definitions. The dictionary.com definition suggest that a place of public accommodation could be physical or otherwise. Merriam-Webster suggests it has to be physical. The free dictionary.com definitions are very interesting in two respects. First, a place could be a particular portion of space occupied by a person or thing. If you think about the Internet, when you are on the Internet a strong argument can be made that the person is occupying that space and it therefore, is in a place. Even if you can argue that the person is not in that place, a thing, namely your mouse (which is being controlled by that person), most certainly is. Also, nothing in this case suggests that the court looked to free dictionary.com to define the term, but it is interesting that this particular dictionary defines a place as a business establishment thereby supporting the reasoning of the ScribD court. The Oxford dictionary definition suggest that a physical place is not required for it to be a place. In short, the United States Supreme Court loves to go to the dictionary (from reading a biography of Justice Scalia, he has a particular dictionary that he likes to use), but here the dictionary definitions are all over the place, though the majority of them seem to suggest a place does not have to be physical.

3. I didn’t go into detail as to which decisions, with few exceptions, were cited by the ScibD court because I discussed many of those decisions in my book, where I have a section of chapter 13 devoted to the Internet and title III of the ADA.

4. We know that a particular product does not have to be accessible to a person with a disability. However, it is ingenious as to how this complaint was phrased. That is, the complaint says that persons with visual impairments are being denied services, privileges, advantages, and accommodations of ScribD. ScribD is most likely a product in the genre of, “software as a service,” which is a huge industry. That leads to the question as to whether ScribD is a product or a service. Services, privileges, and advantages have to be accessible but products do not. Therefore, expect a lot of discovery trying to determine whether ScribD is a product or a service.

5. ScribD is a California outfit and yet the case was brought in Vermont (no doubt due to favorable court decisions within that Circuit). If “place,”
is found to include the Internet, ScribD could be facing substantial damages under California law.

6. Much of this decision is a policy decision , but not all judges are persuaded by policy. It becomes a matter of judicial approach. For example, I certainly do not want to put words in Justice Breyer’s mouth and so if I am not getting it quite right forgive me, but I did have a chance to hear him in person once. The way I understood what he said is that when it comes to his judicial philosophy, he looks at a situation, and then asks how does it play out in a way that makes sense, which necessarily leaves room for some degree of policy. On the other hand, some justices are very focused on plain meaning and to them how “place,” is defined by the dictionary is going to be critical. Unfortunately, for justices that would use that approach, the word, “place” has different meanings depending upon the dictionary that is consulted.

7. There is a line of cases too numerous to recount that says a statute should not be interpreted in a way that lends absurdities to the statute.

8. Again, a matter of judicial approach. There are judges that will not even consider legislative history unless the term itself is vague. Considering the variety of definitions offered by different dictionary, this may well be such a situation. If so, that bodes favorably for persons with disabilities.

9. The Department of Justice final regulations refer to equipment. I think it likely that the final regulations would be given Chevron deference (though, in my opinion, there is a very good possibility that the Department of Justice interpretations of the regulations will not be given deference as I discussed in this blog entry). One wonders if an argument can be made that equipment includes the server that makes the website go. If so, a plaintiff could argue that failure to have the website accessible means they are being denied access to certain equipment, i.e. the server aka web site.

10. There is also a line of cases too numerous to recount that says Congress is presumed to know what is doing when it amends a law and doesn’t change it. The court here ignores that line of cases when it says that Congress could have a zillion reasons as to why it doesn’t amend the law, and therefore, the fact that it did not amend the law should not be given consideration. I don’t look for that statement to prevail in the end because, as mentioned above, that particular rule puts the burden on the defense when a long line of cases put the onus on the plaintiff to show that failure to amend the law should not be given consideration.

III
Conclusion

1. I absolutely believe this statement of the court mentioned above:

Since the Internet plays a critical role in the personal and professional lives of Americans, excluding persons with disability from accessing covered entities that use it as the principal means of reaching the public defeats the purpose of the ADA.

Unfortunately, for me, and consistent with the purpose of my law practice and this blog, just because this is absolutely true doesn’t necessarily mean that it is supported by the law.

2. Before the NCAA tournament started, it was a given that the University of Kentucky would win it all. After the Notre Dame game, that may or may not be true. I can say with virtual certainty that United States Supreme Court will be faced with the question whether web-based businesses are subject to title III of the ADA if not with eBay and Cullen, perhaps with ScribD.