I
Intro and Facts

When I was trying to figure out what to write on this week, one of the cases that I came across involved Barbara Walters (Walters v. Cowpet Bay West Condominium Association, 2015 U.S. Dist. LEXIS 13 (D. Virgin Islands, January 2, 2015)). Really, no kidding! Except, it is not THE Barbara Walters. Rather, this is a person from the Virgin Islands who sued her condominium association because they initially did a very poor job of understanding the law when it came to the dog she used, which was suggested by her doctor, to help her cope with her anxiety. She sued under the Fair Housing Act as well as the ADA. During the pendency of the litigation, she passed away. The issue raised by this case is whether her Fair Housing Act and ADA claims survive. I have divided this blog entry into categories: introduction and facts; court’s reasoning; and takeaway. However, this blog entry is so short that the reader should have no problem reading all of it in one sitting.

II
Court’s Reasoning

The court said that in this particular situation her Fair Housing Act and ADA claims did not survive her death and here is why:

1. Neither the Fair Housing Act nor the ADA provide for what happens when a plaintiff dies;

2. In that situation, the law in the Third Circuit is that federal courts have to seek guidance from state survival acts providing they are not inconsistent with the policies underlying the federal statute;

3. The Virgin Islands has two different survival statutes. The first one is a general survival statute. The second one is a survival statute for actions sounding in personal injury or tort. The general survival statute is broader than the one sounding in personal injury or tort because the one sounding in personal injury or tort is restricted to physical injuries.

4. Federal appellate courts applying state survival law to civil rights actions as a matter of course treat civil rights actions in the same manner as torts;

5. It makes sense for courts to treat civil rights laws in the same manner as torts because they operate very similarly: A) civil rights laws consist of duties owed by individual to the public just like tort law does; and B) people do not consent to the duties rather they are imposed upon them by society. I might add that damages even work similarly between the two, though not exactly in the same way.

6. Since the statute sounding in personal injury or tort is the most analogous survival statute, it is that statute that must be looked at to see whether the cause of action survives. Unfortunately for the plaintiff, there was no physical injury alleged and no physical injury could have been proven.

III
Takeaway

In many ways, this particular blog entry is very similar to the blog entry discussing the applicable statute of limitations. In that particular blog entry, we discussed what is the applicable statute of limitations for ADA claims. The way it worked was that you had to find the most applicable state statute of limitations. It is the same way here. As mentioned in that blog entry and as mentioned by the court here, the most applicable statute, whether it be statute of limitation discussed in that blog entry or whether it be survival discussed here, is probably going to be the personal injury statute. That said, as discussed in a comment to the statute of limitations blog entry, it is possible that a state might have a statute that is even more appropriate than the statute sounding in personal injury or tort. For example, if a state had a survival statute for violations of civil rights, then arguably that survival statute would trump a survival statute sounding in personal injury or tort or a general survival statute.

Happy new year everyone!

Hope everybody had a happy and safe new year. Back to it!

Today’s case is Sherman v. County of Suffolk, 2014 U.S. Dist. LEXIS 177780 (E.D. NY December 29, 2014). The case talks about numerous issues: causation under title I and title V of the ADA; adverse action under title I and title V of the ADA, hostile environment as it applies to ADA claims, and several other related issues. As is my usual custom, the entry is divided into categories. They are: facts; thoughts on the facts; issues before the court and holdings; court’s reasoning on the issue; and takeaways. The reader is free to focus on any or all of the categories.

I
Facts

In January 2010, plaintiff, 55, received and accepted a conditional job offer as a correction officer from the Suffolk County Sheriff’s Department. A correction officer is responsible for guarding prisoners and maintaining order and security at Suffolk County detention and correctional facilities. They must have a strong knowledge of the rules and regulations governing Suffolk County correctional facilities as well as possessing the intelligence, communicative ability, and physical or mental fitness appropriate to a position involving risk and responsibility and safety of himself and others. The plaintiff understood that his offer was conditional upon passing established academic and physical training requirements and he commenced the Academy’s 13 week training program. Here’s what happened next:

1. Plaintiff injured his quad muscle in his left leg while doing a drill called the “mountain climber;”

2. While plaintiff self medicated the day of injury, he did go to his personal physician the following day who diagnosed the quad strain. He asked his physician that he start physical therapy as soon as possible;

3. On February 4 of 2010, the plaintiff was called to the command office to discuss his injury. On the way in, plaintiff alleged that he was apologized to by a person in the Suffolk County Sheriff’s office for what she considered to be the inappropriately early administration of the “mountain climber.” At the meeting, the option of leaving and rejoining the Academy in the following class of recruits was discussed, though a dispute existed as to whether the plaintiff was encouraged to do so. After the meeting, the plaintiff, since he was unsure when the next class would be, remain enrolled at the Academy and informed his supervisor that he had started physical therapy;

4. Both the command officer and the person who apologized to him assured him that they would do whatever they could to help him recover;

5. On February 11, 2010, plaintiff spoke to an investigator at the medical evaluation unit. According to the plaintiff, he was told that the investigator tried to persuade him to deny his injury and rejoin the physical training saying that the Academy will come after him because of his age;

6. On February 15, 2010, the plaintiff submitted a letter from his physical therapist saying that failing to abstain from strenuous activity during the next 4-6 weeks could result in further injury;

7. On February 22, 2010, the plaintiff submitted a letter to the person who allegedly had apologized to him earlier asking her for help and advice on rehabilitating his injury. That letter was never answered;

8. On April 2, 2010, an MRI revealed that he had no significant tear but did have bursitis of the hip and tendinitis. Plaintiff contended that was the result of being forced to use the stairs during the period following his injury;

9. In July of 2010, plaintiff participated in and completed firearm training, which included running. Plaintiff testified that he did not go against his physician’s orders by participating in firearm training because the leg was feeling well enough for him to attempt to do it so he did it;

10. Beginning in March 2010, plaintiff began to feel isolated from his fellow recruits through such acts as: everybody receiving handcuffs except for him; being berated by a commanding officer; and being told to copy military protocol regarding proper treatment of superior officers;

11. On March 22, 2010, plaintiff filed an informal written complaint to personnel relations alleging that he was being treated in an unfair manner because of his age and injury. He withdrew that complaint four days later so as to not jeopardize the individual defendants careers. On April 8 of 2010, plaintiff wrote a letter to a superior informing her of his reason for not pursuing the discrimination complaint and expressing to her that he believed that the situation was resolved. However, he did say that while he did not have any desire to pursue the matter further, he would do so if the situation presented itself again;

12. Plaintiff was not allowed to participate in the graduation ceremony and was required to climb stairs in order to pose with his fellow recruits. The climbing of stairs violated his medical orders and a superior’s authorization to allow him to abstain from using stairs. It should be pointed out the defendants maintained that he climbed the stairs voluntarily;

13. Plaintiff alleged that he only received his badge after having to beg for it thereby causing him further humiliation. Defendants had a different view, characterizing the giving of the badge and diploma prior to completion of physical requirements of the Academy in New York State as a courtesy;

14. Suffolk County granted the plaintiff an extension of a year to satisfy his physical training requirements.

15. On April 27, 2010 plaintiff started his position at the Suffolk County correctional facility working on light duty at station one. He did wear a knee brace but did not tell a superior officers for fear of reprisal;

16. On June 30, 2010, plaintiff was cleared to return to full duty. However, plaintiff alleged that from April through August 2010 he felt incapable of fully performing his duties as a result of severe pain in his left knee stemming from his injury;

17. On June 22, 2010 and on June 30, 2010, plaintiff received negative evaluations;

18. On July 20, 2010, plaintiff received a letter from the Academy requesting that he complete the physical training requirements;

19. In August 2010, plaintiff supplied a note to the defendant from his position indicating that he could not complete the mile and a half run and could not complete the physical part of the Academy at that time;

20. On October 7, 2010, plaintiff was approached by three officers when he arrived home from work and informed of the termination;

21. Subsequent to termination, beginning on March 26, 2012, plaintiff began an antidepressant treatment, which he attributed to the alleged discrimination he faced while at Suffolk County correctional facilities and that he was less depressed and able to manage his anxiety.

22. Plaintiff ultimately sued the County of Suffolk, the Suffolk County Sheriff’s Department, and three individuals for disability discrimination under the ADA, § 1983 claims, as well as for disability and age discrimination under New York State law. Of course, defendants moved for summary judgment.

II
Thoughts on the facts:

1. I find it very odd that nowhere in the discussion of the opinion, as far as I could find, is it mentioned that the plaintiff filed a claim with the EEOC or the equivalent New York State agency. I find it odd that I cannot find that in the opinion since for a person to be able to bring an ADA claim in federal court, administrative remedies must be exhausted first. One has to assume that despite the fact that I cannot find it in the opinion, such a filing had to have been done because otherwise the defense most assuredly would have raised that issue as a defense;

2. I am certainly aware of the right of an employer to make a job offer conditional on a physical exam. However, what I have not seen before, and I am not saying that it doesn’t happen, is making a job offer conditional on completing a several weeks course containing numerous physical requirements in a variety of situations.

III
Issues before the Court and Holdings:

1. Who are the proper defendants?

Answer: County of Suffolk

2. Is there individual liability for ADA discrimination or ADA retaliation claims?

Answer: no

3. What is an adverse action under title I of the ADA?

Answer: whenever a plaintiff endures a materially adverse change in the terms and conditions of employment. That change must be a change in working condition that is more disruptive than a mere convenience or an alteration of job responsibilities.

4. Did the transitory and minor exception for a regarded as claim under the ADA apply?

Answer: no

5. Was the plaintiff otherwise qualified?

Answer: a genuine issue of material fact exists.

6. What is the standard for causation under title I of the ADA?

Answer: Second Circuit has not decided the issue. Regardless of the standard that may apply, sufficient facts were presented to create a genuine issue of material fact.

7. What is the standard for causation under title V of the ADA (retaliation)?

Answer: But for

8. What is an adverse action under title V of the ADA (retaliation)?

Answer: anything that might dissuade a reasonable worker from making or supporting a charge of discrimination.

9. Is a hostile work environment claim actionable under the ADA?

Answer: Second Circuit has not decided, but assuming that the claim is actionable, the elements of a hostile work environment claim are not satisfied.

III
Court’s Reasoning on the Issues

1-2. The proper defendant is the county because the Suffolk County Sheriff’s Department is not a suitable entity and claims against it are the same as those against the County. Also, it is clear under the case law based upon the applicable statutes that there is no individual liability for ADA discrimination or retaliation claims;

3. With respect to title I of the ADA, an adverse action occurs whenever a plaintiff endures a materially adverse change in the terms and conditions of employment. That change must be a change in working condition that is more disruptive than a mere convenience or an alteration of job responsibilities. Outside of the termination, no such adverse action occurred because any such action did not materially alter the terms and conditions of the plaintiff’s employment;

4. For the transitory and minor exception under the regarded as prong of the ADA to apply, that disability must be BOTH transitory and minor. While plaintiff’s disability may have been minor, it arguably was not transitory;

5. A genuine issue of material fact existed as to whether the plaintiff was otherwise qualified (capable of performing the job’s essential functions with or without reasonable accommodations), because of deposition testimony from a sergeant of the Suffolk County Sheriff’s office saying that the negative reviews was not meant to go to the merits but really was done for the purpose of getting him more training since it wasn’t fair to evaluate him in the same way that all other officers were evaluated when those officers were getting consistent training;

6. With respect to causation under title I of the ADA, the case law is very uncertain as to whether the standard is motivating factor or but for, and the Second Circuit simply has not addressed the issue (as to why, it is far from clear that but for would apply to title I claims, see my most popular blog entry of 2014). The court spent several pages discussing how Circuit Courts and District Courts are dealing with the mixed motive issue. Nevertheless, the court found that plaintiff had established a genuine issue of material fact under either the motivating factor or the but for standard of causation. In particular, evidence existed in the record that the plaintiff informed the supervisor that he needed surgery the day of or the day before his termination. Further, the same person who testified as to the purpose of the negative evaluation, also said that it was his knowledge and personal observation that he had never seen the use of minimally acceptable scores on the evaluation to be used as the basis of termination for an employee. That said, if it subsequently develops that the standard for causation is outcome determinative, the court said that they would perhaps on their own motion certify that question to the Second Circuit for their consideration;

7. It is clear per University of Texas Southwestern Medical Center v. Nassar, that the standard for causation with respect to retaliation is but for;

8. When it comes to retaliation claims, an adverse action is anything that might dissuade a reasonable worker from making or supporting a charge of discrimination. For the reasons stated in paragraph 6 above, sufficient evidence existed for a genuine material issue of fact to exist on this point;

9. The Second Circuit has not decided whether hostile work environment claim is actionable under the ADA. That said, the Second Circuit has noted that several other circuits have decided that such a claim exists. Assuming that such a claim exists, the element for such a claim with respect to disability discrimination are that the conduct: 1) was objectively severe or pervasive. That is, was the environment such that a reasonable person would find it hostile or abusive; 2) was the environment such that the plaintiff subjectively (in his or her own mind), perceived the environment as hostile or abusive; and 3) was such an environment created because of the plaintiff’s disability. In this case, the court found that the evidence to support such a claim was not sufficient to create a genuine issue of material fact.

IV
Takeaways

1. If on the defense side, be sure that the plaintiff has exhausted their administrative remedies. I would have to believe that failure to note that fact on the part of a defense attorney if such is the fact, would have to be grounds for legal malpractice;

2. I would not take this case as giving license that a conditional job offer can be based upon completion of a physical exam occurring over several weeks under various circumstances. That is certainly not the intent of the conditional job offer system;

3. Just because some employers are essentially paramilitary, does not give the employers the right to ignore the provisions of the ADA. Key here, of course, is consistent and frequent training of all personnel.

4. Keep the lines of communications open. That includes responding to any correspondence;

5. Transparency is always better than the end run. For example, instead of giving the negative evaluations, why didn’t personnel just step up and say this person needed more training and that a waiver or modification of the rules was in order;

6. If you are going to terminate someone, don’t overkill the situation. For example, it could not have been helpful to have sent three officers to the individual’s home to terminate him;

7. Depositions matter;

8. The standard for adverse action with respect to retaliation claims is lower than the standard for adverse action with respect to title I claims;

9. For the exception under the regarded as prong to apply, the disability must be both transitory AND minor.

10. Nassar, referenced above, to my mind clearly states that mixed motive is in play with respect to title I claims but not title five (retaliation), claims. That said, a possible monkey wrench in that point of view is discussed in this blog entry.

11. The handwriting is probably on the wall with respect to whether a hostile work environment claim is possible under the ADA. The answer will probably be that it is, though such a claim would not necessarily be easy to prove. This case gives you the elements of such a claim.

Happy new year everyone!

As we turn to the new year, several of my fellow bloggers have taken a look back at the prior-year on their blogs. I thought that was an absolutely fabulous idea, and thanks to metrics, something that can be easily done. So here are the top 12 most popular Understanding the ADA blog entries of 2014 as determined by you the readers. I do have a greatest hits section as everyone knows, but that section is a quarterly report. What follows in reverse order, is the most popular blog entries of the year.

12. Are public colleges and universities able to use sovereign immunity as a defense to ADA lawsuits? The case discussed in this blog entry is significant because it found that sovereign immunity does not apply in the educational context even though persons with disabilities are not in a higher class for equal protection purposes;

11. Is a temporary disability covered by the ADA? In this blog entry, we find out that temporary disabilities can indeed be protected under the actual disability prong of the ADA and that the transitory and minor exception applies to the regarded as prong only;

10. Does a resignation end the employer’s duty to accommodate the person who resigned? In this particular blog entry, we find out that just because an employee resigns, does not mean that the employer is off the hook if they refuse to engage in the interactive process;

9. Is indefinite medical leave a reasonable accommodation? In this blog entry, which actually links back to a prior blog entry as well, we find out that indefinite medical leave is not a reasonable accommodation under the ADA, but one has to check state and local municipal law as well;

8. Can you get compensatory and punitive damages in ADA retaliation claims? In this blog entry, we find out that the courts are split with respect to whether compensatory and punitive damages are available in retaliation claims involving violations of the ADA. The trend, though it is not universal, is that such damages are not available. When the issue gets to the Supreme Court, Justice Alito is likely to be the swing vote.

7. The ADA and the applicable statute of limitations. In this blog entry, we discussed just how do you go about figuring out what the statute of limitations is with respect to an ADA claim, including retaliation claims;

6. Negligence/negligence per se and title III of the ADA: Opportunity for personal injury attorneys to expand their practice. In this particular blog entry, we find out that depending on how your state deals with the principle of negligence per se, using the ADA architectural guidelines as a baseline for negligence may actually help increase accessibility for persons with disabilities;

5. ADA compliance auditing: higher education version. One of the things I am seeing quite a bit is that higher education, including graduate schools, are not necessarily the best when it comes to ADA compliance. This particular blog entry offers a roadmap as to how a place of higher education can get their house in order;

4. Suing a state court system for disability discrimination: can be done but it’s complicated. This particular blog entry discusses what happens when a court system itself does not accommodate people with disabilities within the system. I have actually been involved in a case like this. In addition to what is noted in the blog entry, judicial immunity could be a real problem. Particularly so, if the system is set up so that the judges are making the decisions at to what the accommodations are rather than a non-judge administrator;

3. What do you have to show the get damages under title II of the ADA?. This particular blog entry discusses the standard for obtaining damages under title II of the ADA. The courts are not unanimous on this.

2. Service dogs v. therapy dogs. This particular blog entry discusses the difference between service dogs and therapy dogs and what that means with respect to ADA protection. I also discuss in other blog entries whether the service dog regulations could be successfully challenged as being arbitrary (the answer is no in my opinion) and the Texas approach to service dogs.

1. Drumroll……………………………………………………………………………………………….

The most popular blog entry of 2014 by far (over 300 views ahead of the second most popular blog entry), as determined by you the readers is: A huge victory for ADA plaintiff employment lawyers AND a huge victory for ADA defense lawyers. This particular blog entry discusses how University of Texas Southwestern Medical Center v. Nassar is a huge victory for plaintiffs bringing title I of the ADA claims, though it is a defeat for plaintiffs with respect to retaliation claims. In particular, a reading of this decision strongly suggests that mixed motive is very much in play with respect to title I claims of the ADA, though it is probably out with respect to retaliation claims involving the ADA. That said, this particular blog entry should be read in conjunction with this blog entry, which leads to some uncertainty as to how the Supremes may ultimately decide the question of mixed motive vis-à-vis the ADA. In Sherman v. County of Suffolk , the Eastern District of New York in an opinion dated December 29, 2014 mentioned that mixed motive has not been definitively decided by the Second Circuit and that depending upon how discovery plays out, it may wind up certifying the question to the US Court of Appeals for the Second Circuit.

Happy new year everyone! I look forward to another great year of blogging and hopefully a return to the ABA blog 100 at the end of the year.

I want to wish everyone a happy holiday, whether it be Hanukkah or Christmas or another holiday being celebrated this season. In keeping with the international spirit of the season, I thought I would focus this blog entry on international law.

Starting in the first edition of my book and continuing in all the subsequent editions, I have talked about how the ADA would play out with respect to the obese football referee. When I did a search of obesity in my blog, it doesn’t seem that I have talked about the subject before. With the decision from the European Court of Justice last week dealing with the case of an obese employee fired by his employer, I thought it would be time to revisit the issue. With respect to the Rehabilitation Act, we have known for some time, since 1993, that morbid obesity is a disability under the Rehabilitation Act. See Cook v. State of Rhode Island. Cases interpreting the ADA have followed these cases in a way. That is, they do find that morbid obesity is a disability, but that doesn’t really answer the question because is it sufficient for obesity to be the physical or mental impairment or must there be an underlying condition? On that, cases are all over the place. Also, in June 2013, the American Medical Association came out with the view that obesity is a disease. When that came out, there was much discussion about the impact of that determination with respect to whether obesity was a disability under the ADA. See for example this blog entry by Eric Meyer.

All this came to mind when I saw a news coverage of a case from the European Court of Justice involving a home healthcare worker alleging that his rights under the United Nations Convention on the Rights of Persons with Disabilities, which was ratified by the European Union, was violated when his employer terminated his employment as a result of his being obese. I have categories as always with respect to this blog entry. However, my categories are quite a bit different this time around. They are: Facts of the European Union case; issues before the European Union Court of Justice; its holdings; the reasoning of the European Court of Justice; American translation of the decision; similarities to the United States; United nation Convention on the Rights of Persons with Disabilities; and why it is so significant that several sections of United nation convention on the rights of persons with disabilities require legislation by the ratifying state.

European Union case
I
Facts:

The Municipality of Billund, one of the Danish public administrative authorities, hired the plaintiff in 1996 on a fixed term contract, as a childminder (we would call it a home healthcare worker), to take care of children in his home. He performed that function for approximately 15 years. During that entire time, he was obese within the meaning of the definition of the World Health Organization. The plaintiff made attempt to lose weight and his employer as part of its health policy provided financial assistance between January 2008 and January 2009 in order for him to attend fitness and physical training sessions. The plaintiff did lose the weight but he subsequently regained it (losing weight and regaining it is very typical for people who have obesity). In March 2010, the plaintiff resumed his work as a childminder after having taken leave of one year due to family reasons. He then received several unexpected visits from the head of the childminders inquiring into his weight loss. They observed that his weight had remained virtually unchanged. Owing to a decrease in the number of children in the municipality, a reduction in force was in order. The municipality decided to terminate the plaintiff. He was the only childminder to be dismissed. At the termination meeting, the plaintiff’s obesity was mentioned, though the parties disagree over how his obesity was mentioned during the meeting and the extent to which it may have been a factor in the decision-making process leading to his termination. Subsequently, the municipality did issue a letter basically saying that he was subject to a reduction in force. The plaintiff believing his obesity was a reason for the reduction in force brought suit alleging that he had been discriminated on the basis of obesity and he should receive compensation for that discrimination.

II
Issues

1. Is obesity per se protected by any law in the European Union?

2. If the answer is no, is obesity a disability under the United Nations Convention on the Rights of Persons with Disabilities, which was approved on behalf of the European Community on November 26, 2009?

III
Holdings

1. No

2. Obesity can be a disability under certain circumstances.

IV
Reasoning of the European Court of Justice

1. No provision of European law prohibits discrimination on the grounds of obesity.

2. Prior case law of the European Union has held, that the concept of disability refers to a limitation resulting from a long-term physical, mental, psychological impairment that in interaction with various barriers hinders the full and effective participation of the person concerned in professional life on an equal basis with other workers.

3. The concept of disability refers not only to the impossibility of exercising a professional activity but also to the hindrance of the exercise of such an activity.

4. How the disability comes into effect and whether he or she contributed to the disability has no bearing on whether a person has a disability.

5. Whether a person is accommodated or not is also not relevant to whether the person has a disability.

6. A disability would exist if the obesity of the worker hindered his full and effective participation in professional life on an equal basis with other workers on account of reduced mobility, or the onset in that person of a medical condition preventing him from carrying out his work or causing discomfort when carrying out his professional activity.

7. If the plaintiff can show that he has a disability as set out in this opinion, then under European Union law disability discrimination is presumed. Then, it is up to the respondent to prove that there was no disability discrimination.

8. It is for the national court to decide whether the plaintiff had a disability.

V
American Translation of Decision

1. Under European Union law, obesity may be a disability but not by itself. There has to be an underlying factor involved.

2. The definition of disability under the United Nations convention on the rights of persons with disabilities as interpreted by the European Union is a different one than the definition of disability under the ADA/Rehabilitation Act.

3. How a disability occurs and whether that disability is accommodated have nothing to do with whether the person has a disability.

4. Once a person makes out a case for discrimination based upon obesity, the burden of proof switches to the employer per European Union law.

VI
Similarities to U.S.

1. As mentioned earlier, there is plenty of case law saying that obesity by itself is not sufficient to be considered a disability. That is, there has to be an underlying factor.

2. The reference to once a case for discrimination based upon obesity is set forth then the burden of proof switches to the defendant, sounds remarkably similar to McDonnell Douglas and motivating factor.

VII

United Nations Convention On Rights of Persons with Disabilities

1. The United Nations Convention on Rights of Persons with Disabilities does contain a definition of disability discrimination, but does not contain a definition of what is a disability.

2. The United Nations Convention on Rights of Persons with Disabilities also uses the term reasonable accommodations but not in the same way that we are familiar with it with respect to the ADA/Rehabilitation Act.

3. Several sections of the United Nations Convention on Rights of Persons with Disabilities specifically require legislation by the nation state to effectuate the provisions of the convention. In particular, legislation is required for: article 4 (general obligations); article 7 (children with disabilities); article 9 (accessibility); article 16 (freedom from exploitation, violence and abuse); and article 27 (work and employment).

VIII

Why Is It so Significant That Several Sections of the United Nations Convention on Rights of Persons with Disabilities Require Legislation by the Ratifying State?

1. The reason it is terribly significant as to whether legislation is required to implement the treaty has to do with whether the treaty is self-executing or not. Under American jurisprudence, if the treaty is self-executing (does not require legislation to implement), then the treaty becomes the supreme law of the land under the United States Constitution. If the treaty is not self-executing (does require legislation to implement), then existing law stays the same (i.e. the treaty would be judicially unenforceable). For an excellent law review article discussing self-executing versus not self-executing treaties, see this article. The concept of self-executing versus not self-executing is not an easy one understand and that may be, as alluded to by the aforementioned law review article, because the courts haven’t been always clear that they are talking about different concepts but using the same terminology. At any rate, this law review article says that there are four possibilities as to why a treaty would not be self-executing. First, a treaty may be judicially unenforceable because the parties, or perhaps the US treaty makers unilaterally, make it judicially unenforceable. Second, a treaty might be judicially unenforceable because the obligation it imposes is of the type that under our system of separation of powers cannot be enforced directly by the courts. Third, a treaty might be judicially unenforceable because the treaty makers lack the constitutional power to accomplish by a treaty what they desire to accomplish. Finally, the treaty might be judicially unenforceable because it does not establish a private right of action and there is no other legal basis for the remedy being sought by the party relying on the treaty.

With respect to the first possibility, the law review article makes clear that it isn’t unusual for various people (treaty negotiators, president, or even the Senate) to make it clear that the treaty is not self-executing (which is the case in this instance as indicated below). With respect to the second principle, it is hard to believe that this treaty could be judicially unenforceable because it is not the kind of obligation that can be enforced directly by the courts since we already have the ADA/Rehabilitation Act. With respect to the third possibility, this would take some further research on my part as I am not exactly sure what is being driven at here. Offhand, it wouldn’t seem to fit the situation, but further research would be needed. Finally, as seen in the European Union case, the convention is most certainly establishing a private right of action and so the fourth factor would not apply. Since the factors seem to cut both ways, it would do well for those who want to be sure that this treaty is not self-executing and therefore does not override existing United States law, to explicitly specify, and indeed they have done so, that the treaty is not self-executing if future problems are to be prevented.

Finally, please note that the opinions contained herein are my own and do not necessarily represent any organizations that I am a part of or any clients that I may represent. It would be for those organizations and clients to make their own determination.

Does the ADA encompass a hostile work environment claim? (I have mentioned hostile environment before but that was in the context of the Office of Civil Rights and education). According to the Northern District of Oklahoma in Callahan v. Communication Graphics, 2014 U.S. Dist. LEXIS 172148 (N.D. Okla. December 12, 2014), the answer is yes. This case also has an interesting piece in it about pleadings with respect to ADA cases as well. As is my usual custom, I have divided the blog entry into categories: facts, court’s reasoning, and takeaways. The reader is free to focus on any or all of the categories.

I
Facts

In this particular case, the plaintiff worked for Communication Graphics for five years where he worked on two different machines, a wrapper and a slitter. More specifically, he alleged that his coworkers, supervisors and managers mistook his ADD for symptoms of old age, alcoholism and mental illness and intentionally harassed him to make him sick. He was called old, senile, crazy, psychotic, and spaz. He alleged that the harassment was instigated by a safety manager and caused him physical reactions, including high blood pressure and a mild stroke. Further, he alleged that after reporting their harassment, his supervisor did nothing to prevent the harassing behavior. Further, after enduring the harassment for a couple of years, he complained to three different people. Instead of the harassment stopping, the harassment escalated and he was: excluded from production meetings; no longer considered for employee of the month; and eventually terminated. Also, when the plaintiff tried to report a work-related neck injury, his supervisor tried to talk him out of it. The next day, he was told by two different people three reasons why he could be fired. Plaintiff alleged that they did this in order to prevent him from reporting his neck injury. Ten months later, when he finally saw a doctor for the injury and the doctor placed him on work restrictions, plaintiff alleged that the defendant required him to do work against the restrictions and then moved him from the wrapper to the slitter machine (the slitter machine did not comply with the restrictions and worsened his neck condition). He then started hearing rumors that he would be fired, and he was fired two months later. Finally, in his pleadings, the plaintiff did not explain how his ADD substantially limited a major life activity.*

* The case also contains a same-sex harassment claim but that is not addressed in this entry.

II
Court’s Reasoning

1. Citing to a 10th circuit case from 2004, the court holds that the ADA does encompass a hostile work environment claim because of the parallel purposes and remedial structures of title VII and the ADA.

2. Since a hostile work environment claim is actionable under the ADA, the court then had to set forth what you would have to show to make a prima facie case of that claim. In particular, a plaintiff would have to show: 1) he or she is a member of a protected group (in this case, a person with a disability as defined by the ADA); 2) he or she was subject to unwelcome harassment; 3) the harassment was based on the alleged disability; and 4) due to the harassment’s severity or pervasiveness, the harassment altered a term, condition, or privilege of the plaintiff’s employment and created an abusive working environment.

3. The court believed that the allegations were sufficient to get the plaintiff beyond Iqbal and Twombly.

4. With respect to the plaintiff not pleading that ADD substantially limited him in a major life activity, the Northern District of Oklahoma concluded that even under Twombly and Iqbal, a plaintiff is not required to provide particulars about the major life activity limited by the impairment or explain how the impairment limits that activity at the pleading stage.

III
Takeaways

1. The plaintiff was pro se. Thus, from the defense perspective, they should not assume that just because the plaintiff filed the claim on his or her own, that they can coast. I am seeing a surprising number of claims filed pro se that get to first base. That said, if a pro se plaintiff does get to first base, it is hard for me to believe that a pro se plaintiff could navigate discovery without an attorney. That said, having gotten to first base, it would probably make it easier for a pro se plaintiff to retain counsel for the discovery portion of the case.

2. A strong argument can be made that hostile work environment claims involving disabilities are actionable under the ADA because, as mentioned by the court in this case, of the parallel purposes and remedial structures of title VII and the ADA.

3. While this case says that pleadings do not have to contain a description of how the disability substantially limits a major life activity, preventing problems later demands that a plaintiff not rely on this. That is, to avoid unnecessary risks (it is not obvious to me as to why listing how a disability substantially limits a major life activity would not be required by Iqbal and Twombly), a plaintiff should list how the disability substantially limits one or more major life activities.

By the way, you still have the chance to vote, until December 19, 2014, for my blog to be the best of the category(niche) here, and please do so.:-)

Previously, I have blogged that with respect to title II, the critical question is whether a person has meaningful access to the services, programs, activities of the public entity. This week’s case, Medina v. City of Cape Coral (an unpublished decision), , 2014 U.S. Dist. LEXIS 168680 (M.D. Fla. December 5, 2014), stands for the proposition that meaningful access does not mean total access nor does it mean that plaintiff’s preferences determines meaningful access. As is my usual practice, I have divided this blog entry into categories: facts, court’s reasoning, and takeaways. The reader is free to focus on any or all of the categories.

I
Facts

A child who had participated in defendant’s school programs and summer camp since the age of five was diagnosed with type I diabetes. As a result, the child requires various treatments, including daily monitoring of her blood glucose levels and weekly maintenance of her insulin pump. The child is able to monitor her glucose levels independently but is unable to self administer insulin injections if needed. In anticipation of having the child participate in the defendant’s 2012 summer camp, plaintiff contacted the defendant’s risk manager informing him of her child’s diagnosis and requesting that they provide a staff member at the summer camp whom would be able to administer insulin injections if needed. While the defendant refused that request, the defendant did have a comprehensive diabetes accommodation policy, which they also amended during the course of litigation. In particular, the policy provided that: the defendant would assist in monitoring the child’s glucose levels; if the child’s glucose level fell outside the target range, the defendant agreed to take action such as providing fast acting carbohydrates and contacting the plaintiff so that she could take her to a physician; in the case of more serious symptoms, calling paramedics to the scene; and providing glucagon injections in the event of an emergency. Other important facts included: 1) it was rare that the child needed the requested insulin injections. In fact, plaintiff stated that the child only needed three insulin injections since her diagnosis in 2012, and in those situations, it was absolutely not an emergency because the child’s insulin pump kept the child regulated; 2) plaintiff could not remember a time in the last year when the child’s school nurse was required to give the child an insulin injection; and 3) plaintiff admitted that assuming glucagon injection could be given, her child would be able to attend camp with just an insulin pump.

II
Court’s Reasoning for Granting Defendant’s Motion for Summary Judgment

1. With respect to title II of the ADA, when it comes to deciding whether a modification/accommodation to a public entity’s service, program, or activities is reasonable, the question is whether the modification/accommodation results in meaningful access.

2. When an individual already has meaningful access to a benefit to which he or she is entitled, then no additional accommodation, regardless of whether it is reasonable or not, need be provided by the governmental entity.

3. The defendant’s diabetes accommodation policy, mentioned above, was quite extensive. That the policy did not provide access to trained individuals capable of administering insulin injections, did not prevent the child from enjoying meaningful access to the defendant’s program.

4. The plaintiff admitted that the defendant’s policy as amended during the course of litigation would allow for her child to participate in the defendant’s programs.

5. Even without staff available to administer injections, the child was able to participate in and enjoy the defendant’s program to the same extent as any other participant except for rare occasions when the child might miss a single meal.

6. The ADA entitles persons with disabilities to reasonable accommodations not to optimal ones finely tuned to their preferences.

7. Since the defendant already has a system so that the child can meaningfully access their programs, insulin injections are not a necessary accommodation.

III
Takeaways:

1. A defendant can go a long way towards becoming victorious in an ADA lawsuit by having a comprehensive policy based upon the best available scientific or medical evidence. That policy should lay out detailed steps that the defendant will take. Doing so, can go a long way in showing the court that the defendant’s policy ensures that meaningful access is granted to the person with a disability.

2. Meaningful access does not mean total access nor does it mean that a plaintiff’s preference has to drive the outcome (be careful here because if you are dealing with effective communications, it doesn’t work that way as seen in this blog entry).

3. It doesn’t say in the case that the plaintiff’s admissions were from a deposition, but one has to assume that such was the case. If so, one wonders just what the deposition preparation involved.

4. It is also curious as to why once the defendant amended their policy during the course of the litigation, that the case did not settle. For example, why not settle the case, insist on a consent decree to ensure that the amended policy is implemented, and then go for attorneys fees on the grounds that the plaintiff prevailed because the defendant changed their policy as a result of the litigation?

Lest I forget, you still have the chance to vote for my blog to be the best of the category(niche) here, and please do so, if you are so inclined. I am fortunate that there are so many great blog entries in the category. Also, I am even more fortunate that none of these blog entries in the niche category overlap with each other. That way, regardless of who wins in this category, I can’t get an inferiority complex:-)

It has been awhile since the United States Supreme Court dealt with an ADA question. A fact I am happy with as predicting what the United States Supreme Court does with an ADA question is impossible since the ADA does not break down along traditional liberal conservative lines.

This particular blog entry focuses on a case that I came very close to blogging on before. In fact, I came so close to blogging on this one before, that I was absolutely stunned to find out that I had not blogged on it. At any rate, the case is Sheehan v. City and County of San Francisco.

As is my usual practice, I have broken down the blog entry into categories: facts; issues presented; holdings; court’s reasoning; and takeaways. The reader is free to focus on any or all of these categories.

I
Facts:

The plaintiff, a woman in her mid-50s suffering from severe mental illness, lived in a group home. Her social worker became concerned about her apparently deteriorating condition to the point where he summoned police for help in transporting her to a mental health facility for 72 hour involuntary commitment for evaluation and treatment under California state law. The social worker deemed the plaintiff gravely disabled because she was not taking her medication and taking care of her self and was also a danger to others because she had threatened him when he attempted to perform a welfare check on her. When the police officers arrived, they entered the plaintiff’s room without a warrant in order to confirm the social worker’s assessment and to take her into custody. The plaintiff reacted violently to the officers presence by grabbing a knife and threatening to kill the officers. She also told the officer that she did not wish to be detained in a mental health facility. All of which forced the officer to retreat to the hallway outside the plaintiff’s closed door for their safety. The officer called for backup, but rather than waiting for backup or taking other actions to maintain the current situation or de-escalate the situation, the officers instead drew their weapons and forced their way back into the plaintiff’s room, presumably for the purpose of disarming, subduing, arresting, and preventing her escape. The plaintiff once again threatened the officers with a knife causing the officers to shoot the plaintiff five or six times. She then filed a § 1983 action against the officers and the city asserting violation of the fourth amendment and the ADA as well as tort and statutory claims under California law. The District Court granted summary judgment to the defendants and the plaintiff appealed to the Ninth Circuit.

II
Issues presented:

1. Did the first entry into the plaintiff’s room violate the fourth amendment?

2. Did the second entry into the plaintiff’s room create a triable issue of fact that the fourth amendment was violated?

3. Is there a triable issue of fact that the police officers used excessive force in violation of the fourth amendment when they resorted to using deadly force to shoot the plaintiff?

4. If the police officers arguably used excessive force in violation of fourth amendment when they resorted to using deadly force to shoot the plaintiff, are they protected by qualified immunity?

5. Does title II of the ADA apply to arrests?

6. If title II of the ADA does apply to arrests, is there liability for violating title II of the ADA when the officers forced their way back into the plaintiff’s room without taking the plaintiff’s mental illness into account or employing generally accepted police practices for peaceably resolving a confrontation with the person with a mental illness?

III
Holdings:

1. No

2. Yes

3. Yes

4. Not as a matter of law

5. Yes

6. There could be; a factual question for the jury to decide

IV
Court’s Reasoning

Issue 1

1. The emergency aid exception to the fourth amendment allows for a warrantless search or seizure in a person’s home where the officers have an objectively reasonable basis to believe that a person is in need of emergency medical assistance and the search or seizure is conducted in a reasonable manner. Under the facts of this case, while officers are expected to air on the side of caution, nevertheless, the officers could reasonably believe that the plaintiff’s situation presented a genuine emergency and that entering as they did was a reasonable means of providing her with assistance. After all, the officers knew that the plaintiff was off her medication, was not taking care of herself, had acted in a threatening manner towards the social worker, and was viewed by the social worker as being gravely disabled and in need of temporary, involuntarily hospitalization to receive psychological evaluation and treatment. They also knocked and announced that they were police officers, used a pass key supplied by the social worker to let themselves in so that they could assess the situation, did not have their weapons drawn when they entered, and had no reason to believe that their entry would trigger a violent confrontation.

Issues 2-3

1. If the officers were acting under the emergency aid exception, they are required to carry out the search or seizure in a reasonable manner.

2. If the officers were acting under the exigent circumstances exception, they are required to use reasonable force.

3. No meaningful distinction exists between a search or seizure being conducted in a reasonable manner and the fourth amendment’s requirement that such as search and seizure be carried out without the use of excessive force.

4. Even where there is a lawful defensive use of deadly force, there can be an independent fourth amendment violation when the officers intentionally or recklessly provoke a violent confrontation through their actions.

5. A reasonable jury could find that it was not reasonable for the officers to force a second entry without taking the plaintiff’s mental illness into account and to do so in an apparent departure from police officer training.

6. The court was persuaded by the plaintiff’s arguments: once the officers exited her room and her door was shut, the threat to the safety of the officers or others was under control and there was no need to force a confrontation; all of the information known to the officers suggested that the plaintiff only wanted to be left alone in her home since she had shown no desire to leave her room; even though she had acted in a threatening manner, she was doing that only to those who had entered her home without permission; and the officers were also aware that the plaintiff, whom they knew to be both mentally ill and emotionally disturbed, was not likely to respond rationally to police officers breaking down her door.

7. The police training that officers receive is contrary to the actions of what the officer did with respect to the second entry.

Issue 4

1. Relevant case law is such that a competent police officer would have been on notice that it is unreasonable to forcibly enter the home of an armed person with mental illness who has been acting irrationally and has threatened anyone who entered when there was no objective need for immediate entry. Accordingly, the court could not say that as a matter of law qualified immunity for the officers existed.

Issue 5

1. While there is a split among the circuits, the Ninth Circuit agreed with the majority of circuits addressing the question (11th Cir., 4th Cir., 10th Cir., and 6th Cir.), that title II of the ADA does apply to arrests since title II of the ADA applies to services, programs or activities, which has been interpreted to encompass anything a public entity does.

Issue 6

1. There are two types of title II claims when it comes to arrests. First, wrongful arrest where someone is arrested because the police erroneously perceives the effects of the disability as criminal activity. Second, reasonable accommodation where that police failed to reasonably accommodate a person’s disability in the course of investigation or arrest thereby causing the person to suffer greater injury or indignity in that process than other arrestees.

2. The plaintiff asserted that the officers should’ve respected her comfort zone, engage in nonthreatening communication, and used the passage of time to diffuse the situation rather than precipitate a deadly confrontation. The court recognized that assertion and also acknowledged that the officers were forced to make split-second decisions. Even so, a reasonable jury could find that the situation had been diffused efficiently following the initial retreat from the plaintiff’s room so as to allow the officers an opportunity to wait for backup and to employ less confrontational tactics, such as the accommodations mentioned by the plaintiff in her assertions.

V
Takeaways:

1. This is not the first time that had I have blogged on police liability with respect to persons with disabilities. You can find other blog entries on the subject here, here, here, and here.

2. Police training is critical. In this case, the City was able to escape liability for fourth amendment violations because the city had proper training in place and in this situation, the officers did not carry out the training.

3. I’m inclined to agree with the Ninth Circuit, based upon the overwhelming case law that title II basically applies to everything that a public entity does, saying title II of the ADA does apply to arrests. Even so, that isn’t the end of the matter because of the nature of what it means for a policeman or policewoman to do his or her job. For example, we have discussed previously that one line of thought might be to suspend the ADA until the situation is under control. Once the situation is under control, then all the rules of the ADA apply.

4. As mentioned previously in our other blog entries noted above, failure to accommodate a person with a disability in the context of police work may in addition to allegations of violation of title II of the ADA may also lead to allegations of violating constitutional rights, such in this case the fourth amendment. Therefore, police forces need to be thoroughly acquainted with the provisions of title II of the ADA and, for that matter, title III of the ADA as well.

5. The Supreme Court has now granted certiorari in this case. Here are the two questions before it:

A. Does title II of the ADA require law enforcement officers to provide accommodation to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody?

B. Was it clearly established under the fourth amendment that a search could be unreasonable even where excigent circumstances existed?

Very interesting as to how the questions are phrased. If the first question had been phrased in terms of whether title II applies to arrests, that might lead to one conclusion. The fact that it is phrased the way it is suggest that we may be looking at the approach of suspending the ADA until the situation is under control. That said, predicting the Supreme Court in ADA matters, and most certainly in ADA matters outside of employment, is extraordinarily difficult, and I am not going to wade into those waters.

With respect to the second issue, that is clearly going to the qualified immunity piece and the § 1983 claims of the fourth amendment violation. That will come down to whether the Supreme Court views the relevant case law cited by the Ninth Circuit in the same way as the Ninth Circuit.

Hope everyone had a great Thanksgiving. I certainly have a lot to be thankful for. A wonderful wife, a wonderful daughter, and a great place to live (Decatur, Georgia). Also, I have wonderful readers of this blog. The gold standard for any legal blog is the ABA blawg 100. Certainly, as I have gotten more deeply involved in blogging, I had that goal in mind. It is indeed quite humbling to find out last week while I was in Chicago for Thanksgiving with my family visiting family, that I have been selected for the ABA Blawg 100. I want to thank all my readers and those who nominated me for inclusion in this list. So, where does this blog go from here? Well, I think it is more of the same. I can’t imagine not doing this blog. Also, you now have the chance to vote for my blog to be the best of the category here. So, please go ahead and vote for me. The thing of it is, that unlike other blog categories where many of the bloggers in the categories are writing about similar things, the niche category is for those legal blogs that don’t fit in anywhere. There is absolutely no overlap between any of us. The distinguished list of blog topics in this category include: international judicial assistance in civil and commercial cases; Texas agricultural blog; a blog devoted to the Court of Appeals US Armed Forces (a court which interestingly enough I am admitted to); a blog devoted to increasing access to justice through technology; a blog focused on genealogy (I have been thinking about doing some genealogical research lately, and so I may want to read this one soon); cultural heritage; director and officers liability insurance; bankruptcy, and a blog devoted to wine. As you can see, these blogs have absolutely nothing to do with each other, but are all very interesting and quite different in their own way. Therefore, the victory is just being part of this group, though of course everyone wants to be the best:-). Congratulations to everyone in this category. I also want to congratulate my other fellow bloggers that made the list as well and whose blogs I read regularly including: Robin Shea’s blog; Jon Hyman’s Blog; Donna Ballman’s blog; Jeff Nowak’s Blog; and Eric Meyer’s Blog.

I’m not a big fan of guidances for several reasons: I find that lawyers rely on them as a crutch unnecessarily in many cases; the guidances oftentimes push an agenda and are not based on case law or regulations; as guidances they are not regulations and so therefore are subject to being ignored by the courts; and are frequently unnecessary, though not always so. However, none of these statements apply to the recent joint guidance from the US Department of Justice and the US Department of Education on effective communication. I find that the guidance is extremely easy to read, is a fair interpretation of the law, extremely practical, and contains a lot of useful information. This particular blog entry will go over that guidance.

I have previously discussed the effective communication regulation, including here here and here.

The Guidance

1. The guidance does a nice job of explaining that k-12 school need to worry about three different laws: IDEA, ADA, and § 504 of the Rehabilitation Act, and notes that the requirements of each are not the same necessarily.

2. The guidance does say that as a general rule violations of § 504 the Rehabilitation Act also constitute violations of title II and therefore, it didn’t make any sense to discuss § 504 protection separately as it would not provide additional guidance to public schools, all of which are subject to both laws. That is absolutely true. However, it should be pointed out that a violation of the ADA is not necessarily a violation of § 504 the Rehabilitation Act because the causation standard is different between the two laws.

3. Title II of the ADA and its implementing regulations require that a public school ensure that communication with students with hearing, vision, or speech disability is as effective as communication with students without disabilities. That means schools must provide appropriate auxiliary aids and services (what is an auxiliary aid and service can be found at 42 U.S.C. § 12103(1) as well is in the implementing regulations), where necessary in order to provide effective communication.

4. The effective communication regulation requires that public schools give primary consideration to the auxiliary aid or service requested by the student with a disability when determining what is appropriate for that student because it is the person with a disability, or his or her appropriate family member, who is most familiar with his or her disability and can provide the best information about which aids or services are most effective. Further, the school has to honor the choice unless the school can prove that an alternative auxiliary aid or service provides communication that is as effective as that provided to students without disabilities.

5. If providing the particular auxiliary aid or service constitutes a fundamental alteration in the nature of the service, program, or activity or is an undue financial or administrative burden, the school did not have to provide that of auxiliary aid or service, but they still have to provide, to the maximum extent possible, an effective auxiliary aid or service.

6. Interpreters for the deaf must be qualified and any such communication must be conveyed effectively, accurately, and impartially, using any appropriate specialized vocabulary.

7. It is very interesting that when the guidance talks about how a person who is deaf or hard of hearing may or may not use ASL, that hearing aids aren’t even mentioned. Rather, cochlear implants are mentioned. Cochlear implants are not a substitute for hearing aids. They are used in different situations. Nevertheless, it shows just how prevalent cochlear implants have become.

8. Auxiliary aids or services have to be decided on a case-by-case basis. That is, don’t put people with the same kind of disability in the same box as they may go about their world completely differently.

9. The effective communication regulations of title II apply to all of a student’s school -related communications and not just to those of teachers or school personnel.

10. For a deaf or hard of hearing student, a sign language interpreter or computer-assisted real-time (CART) may be appropriate where student comments and discussions are part of the class experience for all students. This is going to come down to a matter of choice by the particular student. ASL interpreters and CART do different things. ASL is a language just like French is a language. CART, which I had the privilege of using at a recent American Bar Association convention, essentially acts as a real-time transcript of what is going on. If the class is one where people are constantly talking and oftentimes at once, CART could be extremely helpful in addition to or in lieu of an ASL interpreter. An ASL interpreter is simply not going to be able to keep up with the different conversations but CART can. Thus, in this situation, the school is going to have to assess with the particular student whether one or the other or both should be employed.

11. Any auxiliary aids and services necessary to ensure effective communication have to meet several requirements. They have to be provided in an accessible format, in a timely manner, and in such a way as to protect the privacy and independence of a student with a disability.

A. With respect to accessible format, just because a student is blind does not mean that they know how to read braille (you would be surprised how many blind students do not read braille). Therefore, supplying materials in braille would be no good for that student.

B. With respect to timely manner, once the student indicates the need for an auxiliary aid or service or requested a particular auxiliary aid or service, the public school must provide it as soon as possible.

C. The auxiliary aid or service has to be provided in a way that protects the privacy and independence of the student with a disability. The example used in the guidance is a bit unfortunate. The example used is someone who is deaf and uses ASL should have their conversation containing sensitive information conducted privately where other people in the environment understand ASL. Here is the problem with that. Of the kids who are deaf, it is frequently reported that 90% of them have hearing parents. Also, it is frequently reported that 90% of deaf parents have hearing kids. Thus, it is entirely possible that there may be a hearing person in the classroom that knows ASL and that fact may or may not be known to the school. The auxiliary aid or service must also be provided in a way that the tax the independence of the student. For example, an e-book might foster more independence than a reading aide.

12. Should a school district try to defend on the ground that the auxiliary aid or service is a fundamental alteration or constitute an undue financial or administrative burden after considering all resources available for use by the school district in the funding and operation of the service, program, or activity, the head of the school district or his or her designee must make that determination (you can find the certification requirement discussed here. With respect to whether the school district had could delegate the decision regarding the undue burden certification to a designee, that designee would have to be a person with the authority to make budgetary and spending decisions and must have the knowledge necessary to consider all resources available to the school district for use in the funding and operation of the service, program, or activity.

13. The effective communication obligations are not limited just to students. Rather, schools have the obligation to provide effective communication to all individuals seeking to participate in or benefit from the school district’s services, program, or activities.

14. Title II of the ADA regulations expressly prohibit a public school from requiring an individual with a disability to bring another person to interpret for him or her except in the case of an emergency involving an imminent threat to the safety or welfare of the individual or to the public where there is no interpreter available or where the person with a hearing, vision, or speak disability specifically make the request that an accompanying adult may interpret or facilitate communication providing the accompanying adult voluntarily agrees to provide the assistance and providing the school’s reliance on the accompanying adult is appropriate under the circumstances. Regarding the second exception, careful consideration to both elements is called for. The school wants to make sure that the consent of the adult it truly voluntary. Second, the school wants to make sure that relying on the accompanying adult is appropriate under the circumstances. It may not always be. For example, it would not be appropriate to rely on the adult if the situation was a due process hearing, § 504 planning meeting, meeting of the IEP team, etc. Some may be close calls. For example, certain information may be so critical so that it is essential that any errors be minimized, such as a medical emergency.

15. Unlike the Americans with Disabilities Act, IDEA does not require a district to ensure that the effectiveness of communication for student with a disability matches the effectiveness of communication for students without disabilities.

16. The provision of a free appropriate public education under IDEA does not limit a student’s right to effective communications under the ADA. Also, to be protected under title II and to utilize the effective communication regulations of that title, does not require eligibility under IDEA.

17. A best practice is for a district to proactively notify parents and students about the effective communication regulations under title II and let the students and parent know just whom that official is. As pointed out in the guidance, it makes sense that the responsibility could, though it doesn’t have to be, given to the § 504 or ADA coordinator.

18. Parents do not have to make a specific request for different or additional auxiliary aids. Rather, the school district has the affirmative obligation to provide effective communication regardless of whether the parent request specific auxiliary aids and services.

19. School districts have a continuing obligation to assess auxiliary aids and services that it is providing the students in need of those services in order to ensure that those students are receiving effective communication.

20. If a student is IDEA eligible, a school district can also decide that a parent’s request under title II will be addressed by the IEP team. However, while that may be the case, the IEP team would not be making the determination based upon whether the auxiliary aids and services were reasonably calculated to enable the child to receive meaningful educational benefit. Instead, they would have to make the decision based upon the effective communication regulations under title II, an entirely different question since it demands that communications be as effective as those for without disabilities. This means that the IEP team has to receive training on the effective communication regulations.

21. A school district cannot wait for the IEP process to run its course before providing necessary auxiliary aids and services.

22. Guidance points out that if a person has an IEP, they must exhaust that process first before proceeding to a lawsuit alleging violations of the ADA or § 504. You can find more of that discussion here.

23. IDEA funds may be used only for auxiliary aids and services under title II where those auxiliary aids and services are also required to be provided under IDEA. If auxiliary aids and services under title II are not included in the IEP, then IDEA funds may not be used to pay for those services. Here is my concern with that. Since money drives everything, the concern is that school districts will push students with disabilities into the IDEA system. That decision has significant legal and day-to-day implications and should not be done lightly.

In summary, for those familiar with the effective communication regulations, there isn’t anything that is surprising here. What it does do is reiterate that school systems need to be aware that their universe is more than just IDEA but also includes ADA and § 504. Whether the regulation create the incentive of pushing people into the special education system when that is not necessary is something that should be followed.

In one of my most popular blog entries, ADA compliance auditing: higher education version, I mention technical standards in a comment to that entry. Many training programs as a condition of accreditation have developed technical standards that people in the program must meet in order to get into the program and stay into the program. My experience is that the standards are frequently written and/or interpreted in a way that screens out persons with disabilities in possible violation of the screen out provisions of the ADA. For those programs that have such technical standards, those standards can be rewritten, with expert help of an attorney knowledgeable in the area, so that the technical standards do not unnecessarily screen out persons with disabilities. Getting to that point means the attorney interfacing with the subject matter experts to make sure that the essential eligibility requirements of what the program is trying to accomplish are satisfied while simultaneously crafting the technical standards so that they do not unnecessarily screen out persons with disabilities. One of the approaches that the attorney may take is to make sure that the technical standards focus on the requirements meant to be accomplished and not on the various ways that the requirement could be accomplished.

All this said, what happens if you do have a technical standard that screens out persons with disabilities and it is challenged? A case that answers this question is McCulley v. The University of Kansas School of Medicine, an unpublished decision from the 10th Circuit. As is my usual practice, I have divided the blog entry into different categories: Facts; Court’s Reasoning; and Takeaways. The reader is free to concentrate on any or all of the sections.

I
Facts:

In this case, the plaintiff suffered from type III spinal muscular atrophy, which necessitated the use of a wheelchair for mobility and limited her arm strength. In 2011, she was admitted to the medical school. One of the technical standards for the medical school was that a student must be physically able to carry out diagnostic procedures and provide general care and emergency treatment to patients including CPR, opening affected airways and obstetrical maneuvers. Shortly after being admitted to the medical school, the medical school sent the plaintiff a form asking her to describe the accommodations she might need. That led to a period of discussion between the plaintiff and the school. In July of 2012, she completed the form indicating that she would need a staff person to assist her with lifting and positioning patients, stabilizing elderly patients, and performing basic life support. After reviewing the requested accommodation, the interim dean of the medical school concluded that the plaintiff could not meet the motor technical standard and rescinded her admission. She of course sued alleging violations of the ADA and the Rehabilitation Act. When the District Court granted summary judgment to the medical school, she appealed to the 10th Circuit, which affirmed the District Court’s grant of summary judgment.

II
Court’s Reasoning

1. Having a staff member interact with patients on the plaintiff’s behalf would fundamentally alter the nature of her medical education, which trains her to engage with patients, often in emergency situations where assistance is unavailable. To my mind, the analogy would be to title I of the ADA where it is not a reasonable accommodation to hire someone to do the essential functions of the job of another.

2. The motor technical standards are related to the medical school’s accreditation.

3. Although the plaintiff does not intend to pursue a physically demanding specialty, she must nevertheless meet the motor technical standards because the medical school uses a broad, undifferentiated medical curriculum that prepares students to serve as physicians in a wide range of practice areas.

4. The critical procedures that the plaintiff seeks to have staff members perform on her behalf are required as part of the United States medical licensure examination.

III
Takeaways:

1. The decision is unpublished and so it’s precedential value may be debatable. Check your local rules on that.

2. In the final section of the opinion, the 10th Circuit states that the disposition should not be read as holding the medical school cannot reasonably admit the plaintiff or other students with similar disabilities. If this unpublished decision is adopted across the Circuits, it may lead to precisely that. The critical question is whether the purpose of a medical curriculum is to prepare students to serve as physicians in a wide range of practice areas. Or, is it more accurate to say that the purpose of a medical curriculum is to enable the student to truly understand what it means to serve as physicians in a wide range of practice areas. Certainly, if you are on the plaintiff’s side, that is the approach you would have to take. On the other hand, if you on the defense side, you certainly want to argue that a medical curriculum’s purpose is to prepare students to serve as physicians in a wide range of practice areas.

3. Look for the technical standards even where they screen out persons with disabilities and are written to do so when they don’t have to be, to be defended on the grounds that the technical standards are related to accreditation. The response to that argument is that the technical standards may be related to accreditation, but that does not mean the technical standards have to be written in such a way so as to unnecessarily screen out persons with disabilities. As a preventive measure, a knowledgeable attorney should work with the program to determine precisely what are the essential eligibility requirements of the program and what are the specific purposes that the program is trying to accomplish with that particular technical standard. Staying away from how the task is being accomplished and focusing on what should be accomplished, will go a long way towards making that technical standard one likely to be successfully defended against a challenge. After doing all that, it is possible that the standard will still discriminate against some people with disabilities, but at least then the school can be fairly confident that the technical standard as written is essential to the fundamental nature of the program. Certainly, from the school’s perspective, if a particular technical standard is required so as to be able to accomplish the United States medical licensure examination, that would suggest that the standard may be fundamental.

4. The risk of this decision is that it may lead to confusion that a professional school should be thinking about whether that particular student can actually perform the essential functions of a doctor, lawyer, nurse, etc. upon graduation while ignoring the fact that it is their medical school or professional training school that has independent obligation to persons with disabilities under either title II or title III. Whether the person can perform the essential functions of the job that he or she is training for, is a question for that person’s employer and falls under title I of the ADA. Also, it is entirely possible that the student had no intention of practicing that profession at all, but rather wants to use that knowledge in a related way. Certainly, this decision supports some blurring of the lines, but I would suggest being careful about completely blurring the lines between the educational curriculum and the job that the person training for.