I
Overview

The ADA has a whole scheme that deals with medical inquiries/exams/ disability related inquiries. Basically, the way it works is this:

1. Preemployment medical inquiries/ exams are prohibited. However, nothing wrong with asking whether a person can do what would be an essential function of the job. That said, if you are going to make a preemployment medical inquiry pertaining to an essential function of the job, you better be sure that your essential function of the job is airtight. Also, you need to be sure that you are not screening out persons with disabilities through your testing per 42 U.S.C. 12112(b)(6).

2. After a conditional job offer, just about anything is permissible. However, two caveats to that. First, don’t forget about the Genetic Information Nondiscrimination Act. Second, if the information from the medical exam subsequent to a conditional job offer leads the employer to revoke the offer, that revocation must be based upon information that is job-related and consistent with business necessity and the performance of the job cannot be accomplished with reasonable accommodations.

3. With respect to post employment medical inquiries/exams they can only be done when they are job-related and consistent with business necessity. 42 U.S.C. § 12112(d)(4)(A)

Therefore, we need to know several things: what is a medical exam? (II of this blog entry); What is a disability related inquiry? (II 3 of this blog entry); What is job-related? (III of this blog entry); and what is consistent with business necessity? (III of this blog entry)

Two recent cases from the Sixth Circuit (Bates v. DuraAuto Systems and Kroll v. White Lake Ambulance Authority answer both of these questions.

As is my usual practice, I have divided the blog entry into categories. They are: overview; Bates v. DüraAuto Systems; Kroll v. White Lake Ambulance Authority; and takeaways. The reader is free to focus on any or all of the categories.

II
Bates v. DuraAuto Systems

Turning to the first question as to what is a medical exam, Bates does a great job of discussing the area. they noted that the EEOC in their enforcement guidance pertaining to disability related inquiries and medical examinations of employees under the ADA defines a prohibited medical exam as any tests or procedures seeking information about an individual’s physical and mental impairment or physical or psychological health, and they identify several factors for making that determination including: whether the test is administered by a health care professional; whether the test is interpreted by a health care professional; whether the test is designed to reveal an impairment or physical or mental health; whether the test is invasive; whether the test measures an employee’s performance of the task or measures his or her physiological response to performing the task; whether the test is normally given in a medical setting; and whether medical equipment is used. In many cases, some combination of factors will be relevant in figuring out whether a test or procedure is a medical examination, but it is also possible that one factor may be enough. A nonexclusive list of medical examinations include: vision test, blood pressure and cholesterol screening, range of motion test, and diagnostic procedures such as x-rays, CAT scans, and MRIs. The guidance even identifies two qualifying urine tests (discovering alcohol use and detecting diseases that are genetic markers), as also being medical exams.

So is this a medical exam:

An employer orders a plant wide drug screening of a plant’s more than 400 employees. It instructs a third party to test for 12 substances (amphetamines, barbiturates, benzodiazepines, cocaine, ecstasy, marijuana, methadone, meta-amphetamines, opiates, oxycodone, phencyclidine, and propoxyphene). The third-party conducts the urinalysis testing in private at the facility’s technology center and reported to company representatives the result of the tests. Following the results of that test, the employer sent home those employees who tested positive. Where that test was positive, the third-party followed a certain procedure. First, it sent samples out for confirmatory testing to reveal which of the 12 substances triggered the positive result and the amount of that substance in the employee’s system. Second, a person then reviewed the chain of custody and interpreted the test results. In reviewing the results, that person questioned employees and sought medical explanations, sometimes requesting prescription information or documentation from the employee’s physician. If it was determined that the employee had a valid reason for the positive result, including use of prescription medication, the person changed the final test results to negative. That would then be forwarded along to the employer. However, regardless of the reason for the positive result, the employer opted to prohibit any employee from using machine restricted drugs. Further, the employer instructed positive testing employees to bring the medications into the third-party for documentation. The third-party would then report same to the employer and the employer would promptly inform the employee that they would terminate them if they continued to use those medications.

Exactly the facts in : Bates v. DuraAuto Systems.

1. The Sixth Circuit said that these particular facts raised a question of fact as to whether a preemployment medical exam/inquiries were occurring. Very importantly, it bears noting that the screen out provisions were not applicable because none of the plaintiffs were persons with disabilities. For a person to claim violation of the screen out provisions, that person must have a disability, which is not the case for the preemployment medical exam/inquiry provisions.

2. A question of fact existed because:

A. the employer refrained from asking plaintiffs about their medical conditions;

B. The plaintiffs offered no evidence showing how the third parties urinalysis of the posttest reporting of machine restricted medication revealed information to the employer about their medical conditions;

C. No one suggested that the consumption of prescription medication containing the chemicals that the test sought constituted protected medical information or even an impairment under the EEOC definition of medical examinations;

D. An employer would struggle to figure out medical conditions from the prescription drugs discovered through this testing regimen, and clearly the employer had designed the whole program in a way to avoid obtaining information about employees medical conditions and to avoid discriminating against all employees taking prescription drugs.

E. Inconsistencies between the employer’s written and actual drug testing policies, which existed, and disparate treatment of individual employees could show an impermissible motive;

F. It is possible that the plaintiffs could present evidence showing that the disclosure of machine restricted medication typically revealed confidential health information so that a jury would determine that the test targets information about an employee’s physical and mental health regardless of the employer’s intent.

3. But that isn’t the end of the matter because the ADA also prohibits disability related inquiries. A disability related inquiry is any inquiry likely to elicit information about a disability. The court said that a question of fact existed here as well because the system was designed in such a way so that a jury could reasonably conclude either way with respect to whether the ADA’s prohibition on disability related inquiries was violated.

A. Happy Trails to Employer?

So defendant wins? Pyrrhic victory and here’s why. First, since the court found that a question of fact existed with respect to whether a medical exam or a disability related inquiry occurred, that means the case has to go to trial, which will be very expensive with a very uncertain result. Second, for reasons we will explore in our next case, the Sixth Circuit affirmed the jury verdict finding that assuming a medical exam or a disability related inquiry occurred, such exams or inquiries were not job-related nor were they consistent with business necessity. Further, the court also said that certain facts supported the jury’s award of punitive damages, but that the jury needed to have meaningful opportunity to consider the employer’s defense that they tried to craft and carry out its policy in compliance with the law. Accordingly, yes the employer did win so to speak, but if they take this matter to trial and lose with respect to the medical inquiry or medical exam, they are without a defense and potentially facing punitive damages.

III
Kroll v. White Lake Ambulance Authority

The Sixth Circuit in Kroll v. White Lake Ambulance Authority, the prior decision of the Sixth Circuit in this case saying that a medical exam occurred is something I discuss in my book, discusses what it means for a medical exam/inquiry to be job-related and consistent with business necessity. Basically, what happened in this case, is that the plaintiff had an affair with a coworker and that affair went bad. There were then allegations about erratic behavior and without any information about poor job performance and without consulting a psychologist or other mental health professional, the employer decided to force the plaintiff into counseling. When she refused because she could not afford to pay for it, she was no longer scheduled for any additional shifts. As mentioned above, in the first case, the Sixth Circuit found that forcing someone into a medical examination, is a medical examination under the ADA. The question here was whether the medical examination was job-related and consistent with business necessity. With respect to that, the following bears noting:

1. With respect to job-related and consistent with business necessity, the burden of proof is on the employer.

2. In particular, job-related involves the employer showing that the employee requested an accommodation; the employee’s ability to perform the essential functions of the job was impaired; or the employee posed a direct threat to himself or others.

3. With respect to business necessity, an employer is not going to be able to make a bare assertion that a medical examination was merely convenient or expedient. Instead, an employer that decides to require medical examination of an employee has to have a reasonable belief based on objective evidence that the employee’s behavior threatens a vital function of the business.

4. Whether a medical examination [in this case mental examination], is job-related and consistent with business necessity is governed by an objective standard (the reasonable prudent person).

5. The employer also argued that direct threat existed, but the court was having none of it because the assessment of whether an employee poses a direct threat has to be individualized to the employee’s abilities and job functions and based upon a reasonable medical judgment relying on the most current medical knowledge and/or on the best available objective evidence. In this case, the facts were such that there was no evidence in the record that the employer made any kind of medical judgment at all let alone one based upon a reasonable medical judgment. Further, evidence existed that the employer made the decision based on moral convictions rather than on medical concerns, which the court found very troubling.

IV
Takeaways:

1. Both of these cases give a great deal of clarity as to what is a medical exam/disability related inquiry as well as what is job-related and consistent with business necessity.

2. With respect to medical exams/disability related inquiries, it is my opinion that an employer can kill two birds with one stone, and particularly so, if the employer is a governmental contractor. If the employer is a governmental contractor, they are required to have an affirmative action program in place designed to get 7% of their workforce to be persons with disabilities, though we will see how long those regulations stay in place for. It is my experience, that persons with disabilities are uniquely situated with respect to determining, or helping to assess, whether a medical exam or disability related inquiry has occurred. Therefore, if you have persons with disabilities on your payroll, whether it be as an attorney, or as a staff person, consider drafting them to help figure out whether a medical exam or disability related inquiry has occurred. You may get a conservative result, but that would not necessarily be a bad thing. Of course, by no means am I suggesting that all persons with disabilities be pigeonholed into this area as that would be wrong. Even so, it may be something that could work to the mutual advantage of both the employee with a disability and the employer.

3. If an employer is going to defend on the grounds that something is job-related and consistent with business necessity, they’re going to have to meet a fairly high standard and further, that standard is an objective one. The same can be said for the direct threat defense.

4. If you are in a union environment and jobs are involved that are highly dangerous, in addition to this blog entry, you also want to check out this other blog entry of mine as well.

5. If you are considering adopting the Bates drug testing regimen, you might want to consider this from the Sixth Circuit opinion:

“Dura’s drug testing protocol pushes the boundaries of the EEOC’s medical examination and disability inquiry definitions. It certainly goes further than what the ADA’s drug testing exemption specifically permits…” While it is true, as the Sixth Circuit noted, that the regimen does not clearly fit the EEOC’s definitions and examples of prohibited conduct, do you really want to take that chance?

I first found out about this case- Weaving v. City of Hillsboro, a published decision from the Ninth Circuit decided August 15, 2014- from reading Jon Hyman’s excellent blog entry on it, which can be found here.

Jon does an excellent job of describing the facts of the case and I quote from his blog entry on this:

“Matthew Weaving was diagnosed with ADHD as a child. As an adult, he pursued a career as a police officer, and later a police detective. He joined the Hillsboro, Oregon, Police Department in 2006. His performance record at the HPD was spotty. His co-workers complained that he was often sarcastic, patronizing, and demeaning. After a 2009 complaint by a subordinate about Weaving’s bullying, the HPD placed him on paid administrative leave. While on leave, Weaving sought a mental-health evaluation, which concluded that some of his interpersonal difficulties had been caused by his continuing ADHD. Shortly thereafter, the HPD finished its investigation, finding that Weaving had “fostered a hostile work environment for his subordinates and peers,” was “tyrannical, unapproachable, non-communicative, belittling, demeaning, threatening, intimidating, arrogant and vindictive,” and noting that he “does not possess adequate emotional intelligence to successfully work in a team environment, much less lead a team of police officers.” As a result, the HPD fired Weaving, who sued under the ADA, claiming that the HPD fired him after he disclosed his ADHD diagnosis. The 9th Circuit reversed a jury verdict of more than $500,000. Surprisingly, it did so based on a finding that Weaving’s inability to get along with others as a result of his difficult personality did not qualify as an ADA-protected disability.”

Jon was not the only one surprised. I will go even further than that. I believe that the Ninth Circuit majority and dissenting opinions both got it wrong and here is why:

1. The majority opinion says that the plaintiff’s mental impairment, ADHD, did not substantially limit a major life activity of interacting with others because it simply was not severe enough.

2. The dissenting opinion says there was plenty of evidence to indicate that the major life activity of interacting with others was plenty severe and that it was up to the jury to decide that issue as a question of fact, which they did in the plaintiff’s favor.

3. Both the majority opinion and the dissenting opinion are, in my opinion, wrong for the reasons that follow in the following paragraphs.

4. In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), the Supreme Court of the United States held that for a person to be substantially limited in the major life activity of performing manual tasks, that person has to be severely restricted or prevented from performing that major life activity. This severely restricted or prevented principal was then adopted by the courts across a whole range of major life activities. The result of which was to severely limit the number of people covered by the ADA.

5. The severe curtailment of the scope of the ADA led to the passage of the Americans With Disabilities Act Amendments Act signed by George W. Bush, which went into effect January 1, 2009.

6. The amendments to the ADA specifically state that the previous standard used by the EEOC to define what is a substantial limitation on a major life activity (“significantly restricted”), was too high of a standard. Further, the amendments to the ADA also specifically state that it is rejecting the Toyota Motor standard with respect to what it means to be substantially limited in a major life activity.

7. The amendments to the ADA also specifically state that regulatory bodies have the authority to implement definitional terms.

8. The EEOC took advantage of its authority to implement definitional terms by adding the major life activity of interacting with others to what would be considered a major life activity (the Department of Justice has taken the same approach with respect to its proposed regulations implementing titles II and title III of the ADA).

9. The EEOC defines substantial limitation as being whether a person is substantially limited in a major life activity as compared to most people in the general population.

10. As discussed in this blog entry and in this case, the EEOC regulations are entitled to Chevron deference by the courts.

11. What paragraphs 4-10 mean is that under the ADA as amended whether a physical or mental impairment is severe to some degree is not the issue. Rather, the issue is whether the individual is substantially limited in a major life activity as compared to most people in the general population. To say otherwise, means that you are either not giving the EEOC regulation the deference that it is due or you are bringing back the Toyota Motor standard, which was specifically overruled by the amendments to the ADA, neither of which makes any sense. Alternatively, I suppose you can make an argument that for EEOC added disabilities, the standard for what is a substantial limitation could be higher than the standard for disabilities specifically mentioned in the ADA. However, even that argument doesn’t fly because the EEOC was given the authority under the amendments to the ADA to implement definitional terms and the implementation of that authority is entitled to deference.

Okay, so now we know that the Ninth Circuit majority and dissenting opinions in this case, again in my opinion, got on the wrong highway. What would be next under this analysis?

11. In order to be protected under the ADA, you must have a disability and you must be qualified. Under title I of the ADA, a person with a disabling condition is qualified if he or she satisfies the requisite skill, experience, and education requirements of the position and can, with or without reasonable accommodation, perform the essential functions of the job. (29 C.F.R. § 1630.2(m)).

12. Was interacting with others an essential function of this person’s job? I don’t see how you could claim otherwise. After all, this person was a police officer which meant interacting with his peers, supervisors, and members of the public in order to do his job. Could he do the essential functions of the job with or without reasonable accommodations? On that, the dissent thought it was possible.

13. It is the jury that gets to decide what are the essential functions of the job and that determination is entitled to a high degree of deference. See Barber v. Nabors Drilling USA, Inc., 130 F.3d 702, 708 (5th Cir. 1997).

14. Accordingly, absent evidence that no reasonable juror could have found in the plaintiff’s favor, the jury verdict should have been allowed to stand if the proper analysis was used.

Takeaways:

1. I agree with Jon that even with Weaving, employers should not hold out much hope that they will be able to win many ADA cases on an argument that an employee’s medical condition is not an ADA disability. I also agree with John that in the right case, faced with the right employee, the right performance issues, and the right claimed medical condition, an employer might be able to prevail with arguing the employee’s medical condition does not rise to the level of a substantial limitation on a major life activity and therefore, is not a person with a disability.

2. However, Takeaway 1 leads to the question of who gets to frame the issues before the judge. Is it the parties or is it the judge. To confirm my own experience, I actually asked that question to a seasoned litigator, my friend and colleague Robin Shea who also has a blog in my blogroll. She told me that it is often the parties that get to frame the issues, but there are judges that will step in and direct the parties to go in a different direction. Therefore, if I am a plaintiff attorney and the defense is trying to frame the issue to argue that the plaintiff’s physical or mental impairment does not rise to the level of a disability using the Weaving construct, I would counter that argument with the approach in this blog entry. It should be an extraordinarily unusual case where the defense would be successful in successfully arguing that the medical condition does not rise to the level of a substantial limitation.

3. I do agree with John that the better (safer?) course of action, is to assume the medical condition is an ADA-protected disability, and instead argue the employer cannot offer any reasonable accommodation enabling the employee to perform the essential functions of one job.

4. I agree with John that you can get to the same place using the proper ADA analysis rather than the Weaving construct, BUT not always so. This case may be, and is in my opinion, one of those cases where the Weaving construct, which brings back Toyota Motor from the dead, and the proper ADA analysis, which would take you into essential functions of the job, do lead to different conclusions.

5. Finally, this blog entry may point out the need for judges to get training on the ADA so that they don’t get taken down the wrong highway by the parties.

In a previous post, I talked about how the Department of Justice had issued a letter to the Louisiana Supreme Court with respect to the way they went about dealing with bar applicants with a history of MH. This blog entry will talk about the settlement that DOJ entered into with the Louisiana Supreme Court.

Here are the salient provisions:

1. While the Louisiana Supreme Court did not admit liability, nevertheless they agreed to completely overhaul their practices and pay $200,000 to compensate seven people harmed as a result of their actions;

2. The Louisiana Supreme Court must refrain from requiring applicants to complete question 25-27 of the national conference of bar examiners request for preparation of a character report as that request form was in effect prior to February 24, 2014;

3. The Louisiana Supreme Court cannot inquire into the mental health diagnosis or treatment unless: A) an applicant voluntarily discloses a history of MH in order to explain conduct or behavior that might otherwise warrant denial of admission or the voluntary disclosure was made in response to the new questions 26 or 27 of the national conference of bar examiners request for preparation of a character report; or B) the character and fitness committee learned from a third-party source that the applicant had an MH diagnosis or treatment as an explanation for conduct or behavior that may otherwise warrant denial of admission;

4. Regardless of how the character and fitness committee finds out about the history of MH, any inquiry into that history must be narrowly, reasonably, and individually tailored;

5. If the character and fitness committee goes ahead and makes that inquiry, the character and fitness committee, or a medical professional retained by the committee, must first request a statement from the applicant and only if reasonably deemed necessary by the character and fitness committee or by the medical professional retained by that committee, the applicant’s treating professional.

The key here is the imposition of an objective standard on the decision-making process of whether to conduct a further inquiry into a person’s MH history after the applicant with an MH history has disclosed.

6. If information from the treating professional is sought, the treating professional’s statement has to be accorded considerable weight, and medical records cannot be requested unless a statement from, and any further dialogue with, the applicant’s treating professional failed to resolve the committee’s reasonable concerns regarding the applicant’s fitness to practice law.

A couple of keys here. First, considerable weight has to be given to the treating professional’s statement. Also, this kind of provision is similar to what the Department of Justice did in its settlement with the law school admission Council, which was discussed in this blog entry. Second, the punctuation in the settlement agreement makes it unclear whether before medical records can be requested, that the character and fitness committee must do both get a statement from the treating professional and dialogue with that treating professional before requesting medical records. Or, is it okay for the character and fitness committee to obtain medical records after receiving a statement from the treating professional assuming that the information they have from the treating professional has failed to resolve the character and fitness committee’s reasonable concerns regarding the applicant’s fitness to practice law. The critical language is surrounded by commas, and therefore, rules of grammatical construction would seem to suggest that a dialogue with the treating professional is not necessary providing the other criteria are met. Finally, note again the objective standard imposed upon the process. That is, the decision-making has to be reasonable.

7. In the event medical hospital records are properly requested, the request must be narrowly tailored and involve only information that is reasonably needed to assess the applicant’s fitness to practice law;

8. An independent medical exam is only a last resort and is only allowed where all other means have been exhausted so that the character and fitness committee still has reasonable concerns regarding the applicant’s fitness to practice law. In such an eventuality, the independent medical exam will occur at a time and location convenient to the applicant. All personal or health-related information has to be kept strictly confidential and accessible only by individuals with legitimate need for such access.

This particular paragraph doesn’t say anything about who is responsible for paying for that independent medical exam. To require the applicant to pay for the medical exam I arguably be construed as imposing an optical upon ADA enforcement. Again, that the settlement agreement doesn’t say, it would be reasonable to expect litigation on this point.

9. The Louisiana Supreme Court is prohibited from imposing conditional admission solely on the basis of mental health diagnosis or treatment;

10. The only time conditional admission for applicants who have revealed an MH diagnosis is proper, is when information properly obtained by the character and fitness committee indicates that: the applicant has a history of conduct that otherwise warrants denial of admission and the character and fitness committee believe that any conduct related concerns have not been fully mitigated by the applicant’s treatment or other factors; or B) the applicant has a condition that currently impairs the ability to practice law in a competent, ethical, or professional manner.

11. Where conduct that has occurred in the past would not warrant denial of admission when disclosed by applicants without a history of MH, that same conduct cannot be the basis for denial of admission or conditional admission when disclosed by the applicants with an MH diagnosis.

In other words, a person with an MH diagnosis should not be singled out for special treatment just because they have an MH diagnosis.

12. The Louisiana Supreme Court has to ensure that any conditions of admission imposed upon an applicant revealing an MH diagnosis, including the duration of any such conditional admission, are individually tailored to address the conduct or current impairment of the applicant’s ability to practice law that justified the recommendation.

In other words, a case-by-case analysis is required and just because a person has a certain MH diagnosis, doesn’t mean they automatically are subject to conditional admission or to specific conditional admission terms.

13. A person with an MH diagnosis that is conditionally admitted cannot be referred to monitoring by the entity that gets involved with the legal assistance program. Such applicants are subject to review by that entity only to the extent necessary for that entity to perform its customary enforcement function relating to an attorney’s compliance with a legal assistance program agreement.

14. Where a person is subject to ongoing review by that entity, the Louisiana Supreme Court has to ensure that any reporting requirements are reasonable and individually tailored to address the concerns justifying the conditional admission and that no additional fees or costs are paid to the court or to the lawyers assistance program by applicants on the basis of disability beyond any standard fees associated with conditional admissions;

15. Where there are reporting requirements, the ability of the entity monitoring such reporting to obtain further information about the attorney’s mental health treatment is also limited in much the same way as described in paragraph 5-7 above. That is: statement from the applicant have to be requested first; statement from the treating professional can only be requested if reasonably deemed necessary by the legal assistance program or the designated professional; the treating professional’s statement is accorded considerable weight; medical records cannot be requested unless the statement from the treating professional, and any further dialogue with that treating professional, fails to resolve reasonable concerns regarding the applicant’s fitness to practice law.

The same concerns raised in paragraph 5-7 above apply here as well.

16. The Louisiana Supreme Court cannot require or request attorneys and applicants to provide or authorize access to their health and mental health-related information except as described in the settlement agreement and only then by way of narrowly tailored releases limiting the scope of the released information reasonably needed to assess the attorney’s or applicant’s fitness to practice law. Further, the Louisiana Supreme Court has to limit the individuals having access to that information to those with a legitimate need for such access.

This particular provision is to do away with the practice where conditionally admitted attorney’s had their MH information freely exposed to the public.

17. Any and all personal health-related information (including information shared with the character and fitness committee, the legal assistance program, or a medical professional designated by the committee or the legal assistance program), has to be kept strictly confidential. Further, attorneys and applicants cannot be required or requested to waive confidentiality with respect to their private or health-related information except as detailed in the settlement agreement;

18. Applicants, attorneys and their employers cannot be required or requested to provide or authorize access to client files.

This should help eliminate the disincentive that employers had to hire a person with MH due to the monitoring requirements imposed by the Louisiana Supreme Court on such a person, where it wasn’t unheard of for the monitoring agency to ask for such files.

19. Louisiana Supreme Court cannot impose reporting requirements relating to an individual with an MH history conditional admission upon the employers of the attorneys or applicants.

Comments to paragraph 18 apply here as well.

20. Any reporting requirement relating to the conditional admission of an individual with an MH history cannot interfere with the applicant’s or attorney’s reasonable ability to practice law.

Comments to paragraph 18 apply here as well.

21. Any medical professional assisting the character and fitness committee or the legal assistance program must be given a copy of the settlement agreement and that medical professional has to comply with the settlement agreement;

22. The Louisiana Supreme Court has to provide training to the employees of the character and fitness committee, the monitoring entity, and the legal assistance program within 45 days of the settlement agreement and annually thereafter for the length of the agreement. That training has to be sufficiently detailed to enable staff to effectively implement all provisions of the agreement, including any policies and procedures developed pursuant to the agreement;

23. The national conference of bar examiners has a new 25-26 questions on their national conference of bar examiners request for preparation of a character report and the Louisiana Supreme Court will use that. With respect to 27, the court is going to use a new 27 and the wording will be substantively the same as specified in the settlement agreement. That particular question focuses on conduct and asks for a complete explanation including all defenses of any claims offering mitigation or as an explanation of that conduct;

24. The Louisiana Supreme Court within 45 days of the settlement agreement must ensure that all files of applicants disclosing MH diagnosis or treatment and whom were conditionally admitted have had their records sealed;

25. Within 45 days of the settlement agreement, Supreme Court of Louisiana must issue orders sealing: all previously entered orders conditionally admitting individuals disclosing MH diagnosis or treatment; any filings recommending probation of those individuals; and any orders terminating their probation. Within 50 days of the settlement agreement, copies of these orders to seal must go to legal databases (Lexis, Westlaw, fast case, and Bloomberg), with the request that they remove all the listed orders from their databases;

26. Within 45 days of the settlement agreement, the Supreme Court of Louisiana has to delete from its website copies of all orders conditionally admitting individuals that disclose their MH diagnosis or treatment and all references to those orders. Also, within that same timeframe, the Louisiana Supreme Court has to request the removal of that information from the Google and the Bing Internet search engines.

Interesting that Yahoo is not mentioned with respect to search engines. That must be an oversight.

27. Within 60 days of the date of the agreement, the Louisiana Supreme Court has to provide all individuals with a pending application that included an affirmative response to the old question 25-27 with new question 25-27. The evaluation of the applications of those individuals must be based upon their response to the new questions 25-27;

28. The Louisiana Supreme Court has to identify all individuals, including law student registrants, whom responded affirmatively to the old question 25-27 August 1, of 2008 and who were based upon the MH diagnosis or treatment conditionally admitted. With respect to those individuals, the Louisiana Supreme Court must: A) take all necessary steps to terminate the condition of admission unless the applicant engaged in conduct otherwise warranting conditional admission and the conduct related concerns have not been fully mitigated; or B) the individual has a condition currently impairing his or her ability to practice law in a competent, ethical, or professional manner. As above, court records pertaining to the conditional admissions have to be sealed, redacted or destroyed and that their individual medical records, medical history, diagnosis, prognosis, full names, and/or conditions of admission be not publicly available.

Under this particular provision of the settlement, it would be expected that attorneys with an MH diagnosis who took conditional admission because that was their only hope of practicing but whose condition have long since been mitigated, will have their conditional bar admissions removed.

29. With respect to applicants who responded yes to the old questions 25-27 and were denied admission, the Louisiana Supreme Court has to: reevaluate those original application to consider whether they may be qualified for the unconditional or conditional admission consistent with the settlement agreement; and for many individuals who are preliminarily determined to be qualified for possible unconditional or conditional admission that they may be qualified for unconditional or conditional admission under the revised policies for conducting character and fitness inquiries pursuant to the settlement agreement; invite such individuals to petition the Supreme Court of Louisiana for admission to the Louisiana bar without additional application expense for the character and fitness review; and reevaluate and process the updated applications and any additional information received on a priority basis in a manner consistent with the settlement agreement.

30. With respect to applicants, including law school registrants, who withdrew from the admission process following their affirmative response to all questions 25-27 because of an MH diagnosis or treatment the Louisiana Supreme Court has to: inform those individuals of the revisions to the process for conduct and character like as well the Louisiana Supreme Court and fitness inquiries per the settlement agreement; invite those individual to reapply for admission to the Louisiana bar without additional application expense for the character and fitness review; and subject to having passed the Louisiana bar examination, reevaluate and process their applications on a priority basis in a way consistent with the settlement agreement;

31. Within two weeks after each set of admission ceremony for the length of the agreement the Louisiana Supreme Court has to make detailed reports. That report is asking for very specific information the receipt of which would go a long way towards assuring the Department of Justice that the terms of the settlement agreement are being complied with.

32. Within 30 days of the settlement agreement, each party have to select and appoint a coordinator to oversee compliance with the agreement and to serve as a point of contact.

I find this particular provision a bit odd. A person from the Louisiana Supreme Court has to be appointed to oversee monitoring the agreement AND the same goes for a person from the Department of Justice. Therefore, the Department of Justice will select and appoint a single individual to oversee compliance with the agreement and the Louisiana Supreme Court will do the same. Interesting that they did not put in place independent monitoring, such as what happened with the law school admission Council. Further, nothing about whether the parties have to agree on who the coordinator is. It would seem that each party has unfettered discretion as to whom that individual might be.

33. The length of the settlement agreement is for four years.

In short, I sincerely doubt that the State of Louisiana is the only State Bar engaged in these kinds of practices. This settlement agreement is a wake-up call to any State Bar that is engaged in practices at all similar to what the Supreme Court of Louisiana was doing. What I suspect will happen here is that just as it is happening with the lost school admission Council and the LSAT, the settlement agreement will be used as a blueprint by plaintiff attorneys to structure their case in order to maximize their client’s chances of prevailing with Department of Justice involvement. Finally, I don’t see why the settlement agreement and the principles contained therein would not apply to other diagnoses besides the MH. For example, ADD and other learning disabilities.

Your client asked for reasonable accommodations/modifications and was retaliated against for doing so. Let’s assume that the retaliation is fairly obvious. The question becomes when you file a retaliation claim are you going to be able to get compensatory and punitive damages? Might it depend upon the title or law that you are suing under? The answer to that question is yes! And is the subject of this blog entry. As is my usual practice, I have broken down the blog entry into different parts: the argument that compensatory and punitive damages are not allowed for retaliation claims under title I of the ADA; the argument that compensatory and punitive damages are allowed for retaliation claims under title I of the ADA; the question of whether compensatory and punitive damages are allowed for retaliation claims under title II of the ADA; the question of whether compensatory and punitive damages are allowed for claims alleging violation of § 501 of the Rehabilitation Act; and takeaways. Of course, the reader is free to focus on any or all of the categories.

I
Title I of the ADA: The Argument That Compensatory and Punitive Damages Are Not Allowed For Retaliation Claims

The leading case saying that compensatory and punitive damages are not allowed for a retaliation claim involving title I of the ADA is Kramer v. Banc of America Securities, LLC 355 F.3d 961 (7th Cir. 2004). The Seventh Circuit reasoned that if you trace the ADA out in terms of the remedies that are described for retaliation with respect to title I of the ADA, the inescapable conclusion is that punitive and compensatory damages, i.e. legal remedies, are not mentioned. Accordingly, compensatory and punitive damages are not possible. As pointed out by the Seventh Circuit in this case, that also means a retaliation claim based on title I of the ADA does not contain within it a right to a jury trial unless the defendant consents and that consent is not withdrawn.

II
Title I of the ADA: the Argument That Compensatory and Punitive Damages Are Allowed For Retaliation Claims

Kramer is gaining wide acceptance, but not everywhere. The contrary view comes from the Western District of Tennessee in the case of Baker v. Windsor Republic Doors, 635 F. Supp. 2d 765 (W.D. Tenn. 2009). In this case, the Western District of Tennessee admitted that if you trace out the ADA in terms of the remedies that are described for retaliation with respect to title I of the ADA, you do reach the conclusion that compensatory damages are unavailable for ADA claimants alleging retaliation under title I of the ADA. However, the Western District of Tennessee felt that such a result should not be controlling if it produces a result that is absurd or contrary to other provisions of the ADA. The Western District of Tennessee then proceeded to rely on a US Supreme Court decision, Gomez-Perez v. Potter, 553 U.S. 474 (2008), where the Supreme Court of the United States held that where a statute provides remedies for intentional discrimination, it also necessarily includes retaliation in that calculus even where retaliation is not explicitly mentioned. Accordingly, the Western District of Tennessee reasoned since retaliation and intentional discrimination are both intentional discrimination, it would be an absurd result to hold that Congress intended compensatory damages to be available only under title I of the ADA but not under its retaliation provision.

III
With Respect to Compensatory and Punitive Damages under Title I of the ADA For Retaliation Claims, Who Is Right?

Baker is based upon Gomez-Perez and in particular the proposition that a claim of retaliation is not conceptually different from a claim of discrimination. However, that proposition may no longer be good law because a fundamental premise of the reasoning in University of Texas Southwestern Medical Center v. Nasser, as we have already discussed in this blog entry, is that retaliation and discrimination are conceptually very different from each other. Even so, the counter to that argument with respect to compensatory and punitive damages, would be that since both retaliation and intentional discrimination are intentional discrimination, the remedies shouldn’t be different. How will this shape up? Ultimately, the United States Supreme Court is going have to answer this question. The swing vote? You guessed it: Justice Alito! (Bet you didn’t see that coming:-) . I say that for three reasons. First, Justice Alito had a very straightforward record of deciding disability discrimination cases while he was on the Court of Appeals. Second, he is the author of the Gomez-Potter decision. Finally, it may come as a surprise, but Justice Kennedy when it comes to disability discrimination cases, has not been the swing vote, rather it was Justice Sandra Day O’Connor.

IV
With Respect to Compensatory and Punitive Damages under Title II of the ADA Are Compensatory and Punitive Damages Allowed for Retaliation Claims?

Taking the easy question first, punitive damages are not going to be allowed for a retaliation claim involving a violation of title II of the ADA. The United States Supreme Court in Barnes v. Gorman, 536 U.S. 181 (2002), made it clear that punitive damages are not allowed for violation of title II of the ADA or for violation of § 504 of the Rehabilitation Act.

However, with respect to compensatory damages, you get a different answer because the remedies of title II of the ADA trace back to the remedies for violating § 504 of the Rehabilitation Act, which does allow for compensatory damages providing, as we have discussed, if the plaintiff can show deliberate indifference.
 See Bennett v. Board of Education Joint Vocational School District, 2011 U.S. Dist. Lexis 116412 (S.D. Ohio, October 7, 2011) (holding that Kramer does not apply to Title II of the ADA).
V
With Respect to Compensatory and Punitive Damages under § 501 of the Rehabilitation Act, Are Compensatory and Punitive Damages Allowed for Retaliation Claims

With respect to punitive damages, Barnes v. Gorman would seem to preclude that. With respect to compensatory damages, the answer is very much up in the air and here’s why: On the one hand, § 501 is a part of the Rehabilitation Act which allows for compensatory damages and retaliation is intentional discrimination. On the other hand, § 501 relates back to Title I of the ADA both in its statute and in its implementing regulations. Therefore, it might be possible to argue the logic of Kramer.

VI

Takeaways:

1. Retaliation claims always relate back to the underlying law involved. Therefore, the answer to whether compensatory and punitive damages are allowed for a retaliation claim involving violating the ADA, is going to depend upon the particular title and/or law involved.

2. For a nonfederal employee alleging retaliation, that person can expect the defense to argue per Kramer that compensatory and punitive damages are not available. Plaintiff will counter with Baker v. Windsor Republic Doors and Gomez-Potter. Ultimately, the Supreme Court will have to figure it out.

3. With respect to a claim of retaliation alleging a violation of title II of the ADA or § 504 of the Rehabilitation Act, compensatory damages are likely to be allowed but punitive damages are definitely out.

4. With respect to a federal employee, arguments exist both ways.

5. In short, for anybody alleging retaliation for violating title I of the ADA, title II of the ADA, § 501 of the Rehabilitation Act, one can expect defense attorneys to litigate the question of whether compensatory damages are available for a retaliation claim. In the case of a title I claim, one can also expect litigation over whether punitive damages for retaliation claim are available. With respect to title II of the ADA and §§ 501, 504 of the Rehabilitation Act, it is hard to believe that compensatory damages would not be allowed for retaliation claims, but we do know that punitive damages are out. In a nutshell, a plaintiff alleging retaliation can expect litigation over the remedies that the plaintiff will receive if the retaliation claim is successful.

I
What is a good faith interactive process?

The ADA requires an interactive process whenever a person with a disability gives the employer, governmental entity, or business notice (broadly defined), that they are in need of reasonable accommodations/modifications as a result of a disability. What would a good faith interactive process look like in the employment context? It might involve the following: meeting with the employee who requested accommodation; requesting information about the condition and what limitations the employee has; asking the employee what he or she specifically wants; showing some sign of having considered the employee’s request; and offering and discussing available alternatives when the request is too burdensome. Goonan v. FRB of New York. As per my usual format, I have divided the blog entry into different parts: 1) what is a good faith interactive process; 2) what a good faith interactive process is not; 3) facts of the case; and 4) takeaways. The reader is free to focus on any or all of these sections.

II
What a good faith interactive process is not:

1. Only allowing the reasonable accommodation process to be used for those who are good performers;

2. Offering as an accommodation, accommodations that were put in place for someone else with the same or similar diagnoses while ignoring the individual with a disability that is seeking the accommodation;

3. Offering accommodations that either were not sincere or had no realistic chance of ever happening;

4. Offering accommodations where the person with a disability own doctors suggest that those accommodations might be ineffective or even dangerous;

5. Offering or strongly suggesting that an employee try out proposed accommodations to test their effectiveness even when that employee knows that the proposed accommodations being offered by the employer will not work;

6. The employer not actively participating, rather than just reacting or placating, in the reasonable accommodation process;

7. Demonstrating no flexibility throughout the reasonable accommodation process;

In this case, the court also allowed the retaliation claim to go forward because the accommodation the plaintiff was requesting, telecommuting, was being done by others but seem to go out the window once the plaintiff started making his accommodation requests.

III
Facts of the case

All of this is taken from the case linked to above. In this particular case, you had an individual who worked for 25 years for the Federal Reserve Bank of New York in the technology department. On 9/11 he was three blocks from the foot of the World Trade Center. He felt trapped and feared for his life as the towers burned and collapsed two blocks away from him. He sought out counseling and employee assistance over the next several years, all of which improved his condition and allowed him to work at the job site. However, in January 2010, the particular group he worked for moved to a site overlooking the site of the World Trade Center. Understandably, the move aggravated his pre-existing posttraumatic stress disorder leading to depression, anxiety, and nightmares. The plaintiff then contacted the federal director of medical services to ask for a referral to a posttraumatic stress disorder specialist for counseling. They had no such specialist and they referred the plaintiff to the employee assistance program, which was completely ineffective. This of course led to the plaintiff’s work performance declining and his depression deepening. What ensued is accurately summarized by the above.

Result: Federal Reserve Bank of New York’s motion for summary judgment denied.

IV
Takeaways:

1) This case is an excellent roadmap for how you might build a good faith interactive process. Also, it wouldn’t hurt to ensure that the person with a disability has access to needed medical professionals when necessary. One wonders how much of this could’ve been prevented if the Federal Reserve Bank of New York had access to a specialist that treated posttraumatic stress disorder.

2) Whether a person is a poor performer is absolutely irrelevant to whether they are entitled to reasonable accommodations. To make it relevant, as this court said, stands the ADA on its head.

3) If a person is seeking an accommodation that is already being done by others regardless of whether a disability is involved, such as telecommuting, make sure you have your ducks in a row before you deny that accommodation.

4) Be flexible during the interactive process and do not put people, and even those people with the same diagnoses, in the same box. The ADA requires an individual analysis.

5) While this case is an employment case, I see absolutely no reason why the lessons of this case cannot be applied in the title II and title III contexts as well.

I have been blogging now for almost 3 years. We recently passed the 50,000 views mark. Thanks!! The holy grail of legal blogs is the American Bar Association Blawg 100. They are taking nominations now and the deadline is August 8. The nomination form can be found here. If you really like what you see here, please take a moment to nominate me; the nomination form is very easy to fill out. I so much appreciate your support and readership!

One of the things that I have written about previously is the liability of police forces for disability discrimination. It started in this post with a comment to my service dog v. therapy dog post, where I talked about a case where the police made the wrong decision with respect to ADA compliance involving a person trying to access a chain restaurant. I also talked about it with respect to the ADA as well as to other theories of liability here and here.

I
Facts

In this particular case, Lynn v. City of Indianapolis, 2014 U.S. Dist. Lexis 96286 (S.D. Ind. July 16, 2014), the plaintiff, a long-standing epileptic, often had seizures, which was commonly triggered by exposure to intense light, such as sunlight, reflection of light off of snow or ice, or flashing lights. On the night of February 1, 2011 there was a snowstorm in Indianapolis. After the plaintiff was done clearing snow and ice from the doorway of a smoke shop managed by his sister, he left the smoke shop for the 15 to 20 minute walk home. The next memory is being placed in an ambulance. Sometime during the walk home he had a seizure. Turns out that a taxicab driver had called 911 stating there was a man lying down in the parking lot looking like he was having convulsions or seizures or something like that. The 911 dispatcher stated over the police radio that a person was down and that the subject down was possibly having a seizure and that emergency medical services was in route. The dispatcher also sent a message to the Indianapolis Metropolitan Police Department officers over the computer-assisted dispatch system stating that there was a man down possibly having a seizure. Officer Challis was approximately a mile away from the location when the call came in and responded to dispatcher that he was en route. However, the officer did not remember looking at the computer screen to see the message dispatched by the computer-assisted dispatch system. Another officer, Officer Huddlestone, who was even closer than that one, also proceeded to the scene after he heard the dispatcher statement and saw the message on his computer. Here are some of the specific things that happened after that:

1. Plaintiff walked up to Officer Huddlestone but not saying anything to him. Officer Huddlestone told the plaintiff that he needed to sit down because he was afraid the plaintiff was going to fall and that he didn’t want him to walk into the street. The plaintiff did not verbally respond to sit down as requested;

2. Officer Huddlestone believed that he saw blood and white substances over the plaintiff’s clothes and nose and that in combination with the plaintiff’s extreme strength concluded that the plaintiff was on narcotics;

3. Officer Challis then arrived on the scene, relieved a bus driver that was rendering assistance to Officer Huddlestone in subduing the plaintiff, and then as part of the effort to subdue the plaintiff tased the plaintiff, but that did not have the desired effect on him. When that didn’t work, the plaintiff was tased again.

4. That led to a struggle over the Taser between Officer Challis and the plaintiff leading Officer Huddlestone to hit the plaintiff on the side of his head three times while yelling at the plaintiff to let go of the Taser. When the plaintiff was not cooperative, Officer Challis then tased him again, which again did not appear to have a dramatic effect. In all, while the officer said the plaintiff was only tased on three occasion for five seconds the time, the Taser report from the Officer Challis’ Taser said that it was used five times for a total of 27 seconds;

5. Officer Challis did not notice any white substance on the plaintiff’s face nor did he notice any blood on the plaintiff. The only white powdery substance he noticed was snow located on his clothes. This was backed up by a lieutenant from the Indianapolis police force who arrived at the scene shortly after the altercation concluded and agreed with what Officer Challis saw.

6. The plaintiff was charged with resisting law enforcement and public intoxication, but all three of the charges were eventually dismissed.

7. Plaintiff brought suit alleging violation of title II of the ADA, fourth amendment (excessive force), § 1983 (failure to intervene), and state law claims.

II
Issues:

1. In this situation, is it possible for the police to be liable for violating the ADA?

2. Regardless of whether it is possible to be liable for violating the ADA, is their liability for excessive force in violation of the fourth amendment?

3. Regardless of whether it is possible to be liable for violating the ADA, is their liability for failure to intervene in violation of § 1983?

III
Court’s reasoning

1. With respect to excessive force, the key is assessing whether the seizure at a given moment in time is reasonable. Therefore, a seizure in the chain of events may be reasonable at one point in time but the chain of events may evolve so that the seizure was no longer reasonable at another point in time. In other words, a chain of events may be such that the amount of force used would be reasonable at one point but as the situation evolved became no longer reasonable.

2. The individual police officers claim qualified immunity, but the court wasn’t having it because they believed a reasonable jury could conclude that the plaintiff was an innocent citizen undergoing a medical emergency who was subject to force by law enforcement without any provocation whatsoever.

3. With respect to the failure to intervene claim, the court denied a grant of summary judgment because the court simply felt that it could not adequately assess, based upon the facts and arguments it had before it, whether either officer had a realistic opportunity to intervene to prevent the harm from occurring.

4. With respect to the ADA, the court found a Fifth Circuit case persuasive. In particular, the Southern District of Indiana agreed with the Fifth Circuit that title II does not apply to an officer’s on the street responses to reported disturbances or other similar incidents prior to the officer securing the scene and ensuring there is no threat to human life. In essence, the reasoning goes that law enforcement personnel conducting field investigations already have the very difficult task of having to instantaneously identify assess and react to potential life-threatening situations. Requiring officers in that situation to factor in whether their actions are going to comply with the ADA when faced with a variety of exigent situations and prior to securing their own safety, the safety of other officers, or nearby civilians, poses an unnecessary risk to innocents.

IV
Takeaways:

1. Police doing their training need to be aware of what is said on the computer-assisted dispatch systems. If they hear one thing or think they hear one thing, they should back that up with the information on their computer assisted dispatch system before throwing themselves into the situation. If they are working with a partner, they should have a system so that one of the partners at least knows what is on the computer-assisted dispatch system.

2. Police also need to be aware of the standards utilized by courts when trying to determine whether a failure to intervene claim or a claim for excessive force claim can proceed.

3. When a policeman or policewoman is doing his or her job, he or she needs to be aware of the evidence as it comes before him or her and not presuppose what the evidence is. Failure to do so runs the real risk of individual liability.

4. Just because an ADA claim may not fly (as you can see from the blog entries linked to above, courts are all over the place here), that doesn’t mean the police officers will be individually immune from liability nor does it mean necessarily that the police force is off the hook. Assuming ADA liability is not possible, which again may be a big assumption depending upon the facts, other theories of liability may be possible. Those theories include, malicious prosecution, excessive force, and failure to intervene to name a few.

5. Police forces need to have thorough training programs, which includes information on how to deal with persons with disabilities in the field under a variety of situations.

Three of my colleagues, Robin Shea, Eric Meyer, and Jon Hyman have written excellent blog entries on the latest EEOC guidance dealing with pregnancy discrimination. There is also a section of that guidance dealing with how pregnancy may also constitute disability discrimination under certain circumstances. I thought it would be informative if I did a bit of a different take from my colleagues on this by focusing on the disability discrimination aspects of the enforcement guidance in a true false format. So here goes:

1. Pregnancy is a disability

Answer: False

Pregnancy by itself is not a disability. However, if a pregnancy involves a physical or mental impairment that substantially limits one or more major life activities, then it is. You don’t think of pregnancy as being a physical or mental impairment. However, depending upon the pregnancy, it certainly can lead to a physical or mental impairment. The next question is whether a substantial limitation on one or more of life’s major activities is involved. This raises two other questions. First, what does it mean to be substantially limited? The EEOC in their final regulations defined substantially limits as being a matter of whether the person is substantially limited in a major life activity as compared to most people in the general population. Also, keep in mind that under the amendments to the ADA an impairment that is episodic or in remission is still considered a disability if it substantially limits a major life activity when active. Second, what is a major life activity? Under the amendments to the ADA, 42 U.S.C. § 12102(2), major life activities can include many different things (this list is not exhaustive): 1) caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working; and 2) including the operation of major bodily functions, such as but not limited to: functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions (the EEOC in its final regulations at 29 C.F.R. § 1630.2(I)(i),(ii) added the major life activities of sitting, reaching, and interacting with others). The EEOC in their guidance gives some examples of pregnancy related impairments that may substantially limit major life activities, such as but most certainly not limited to: pelvic inflammation, which may substantially limit the ability to walk; pregnancy related carpal tunnel syndrome, which may substantially limit the ability to lift or to perform manual tasks; disorders of the uterus or cervix necessitating certain physical restrictions to enable a full term pregnancy or resulting limitation following childbirth; pregnancy related sciatica, which may substantially limit musculoskeletal functions; gestational diabetes, which may substantially limit endocrine functions; and preeclampsia, which may substantially limit cardiovascular and circulatory functions.

In short, while pregnancy itself is not a disability, it is quite conceivable that pregnancy, the nature of it being what it is, will lead to a physical or mental impairment that substantially limits one or more major life activities.

2. There is no requirement under the ADA as amended that an impairment must last a particular length of time to be considered substantially limiting.

Answer: True

It is absolutely true that a temporary disability can be a disability under the ADA as I discussed in this blog entry. But you say, a disability has to last at least six months before it is considered a disability. That is not correct. The six-month provision only applies to allegations of being regarded as having a disability and in that situation the disability has to be both transitory and minor for the six-month rule to apply. If the disability does not satisfy both criteria, then the six-month rule, assuming allegations of regarded as, would not apply. If a person is alleging an actual disability, then the six-month rule doesn’t apply at all.

So what is an employer to do? Good question. First, as a preventive measure, the employer should strongly consider treating all disabilities, temporary or otherwise, as they would a permanent disability if that disability satisfies the actual disability prong of the ADA. Second, it has to be remembered that a person with a disability also needs to be qualified, i.e. capable of performing the essential functions of the job with or without reasonable accommodations, so that needs to be factored in as well.
3. How a person became impaired is irrelevant to the determination of whether an impairment is a disability.

Answer: True

People get disabilities for all kinds of reasons. Some are born with them and others get them later. The only question under the ADA is not how they got the disability, but rather whether they have a physical or mental impairment that substantially limits one or more major life activities. The EEOC and Department of Justice regulations specifically state this as well.

4. A reasonable accommodation is having someone perform an aspect of the employee’s essential job functions.

Answer: False

In this respect, I have to take issue with example 22 of the EEOC enforcement guidance. In particular, the example they give is this one:

“A warehouse manager who developed pregnancy related carpal tunnel syndrome was advised by her physician that she should avoid working at a computer keyboard. She is responsible for maintaining the inventory records at the site and completing a weekly summary report. The regional manager approved a plan whereby at the end of the week, the employee’s assistants input the data required for the summary report into the computer based on the employee’s dictated notes, with the employee ensuring that the entries are accurate.”

The critical question here is whether inputting the data required for the summary report into the computer is an essential function of the job. If it is not, then having someone else complete the task is not a problem. However, if it is, the employer is under no obligation to have someone else do that job for the employee. That said, under the ADA that person has to be a able to do the job with or without reasonable accommodations. If this is an essential function of the job, then the employer has to consider if there is a reasonable accommodation available. One that comes to mind, is voice dictation, particularly since the reference to carpal tunnel implies a problem with typing. What other reasonable accommodations might work would involve getting more information pertaining to why did the doctors say she should avoid working at a computer keyboard. Was it because she couldn’t type, which is what the examples seem to imply, or was it because of the sitting, or something else?

5. An employer is required to waive a workplace policy if a person with a disability cannot satisfy it.

Answer: False

It should be pointed out that there is a contradiction between the questions and answers about the EEOC’s enforcement guidance on pregnancy discrimination related issues and the actual enforcement guidance. That is, the question-and-answer in example 25 suggests that an employer has to allow a water bottle at a workstation even where water bottles at workstations are prohibited by company policy for good reasons. On the other hand, in one of the examples in 22 of the enforcement guidance, it says that the employer arranged for a person who needed regular intake of water because of a pregnancy related kidney condition to have a table placed just outside the file room where the employee could easily access water. The former, assuming following the policy is an essential function of the job, would not be a reasonable accommodation while the latter would be.

6. Granting leave in addition to what an employer would normally provide under a sick leave policy for reasons related to disability is a reasonable accommodation.

Answer: Maybe. Wait a minute, I can’t answer a true or false question with maybe can I? Okay, then I guess I have to say probably false. There I go again. Okay, I am going to say false because it would depend on the circumstances. Whew…….

We know that the family medical leave act grants 12 weeks of leave to care for a serious medical health condition. We also know that leave beyond that amount of time may also be a reasonable accommodation providing a person can give a definite date of when they will return to work. We also know that one court has said that anything more than six months of leave total is unreasonable as a matter of law. The thing about family medical leave is that there are requirements before a person is eligible to take that leave. For one thing, they have to work a certain number of hours in a calendar year. For another, the employer has to have at least 50 employees within a certain radius. So, the EEOC is saying that if a person does not have FMLA coverage or does not have sufficient sick leave coverage, it is a reasonable accommodation to grant leave, which may be unpaid, to deal with the pregnancy related disability. I don’t think the answer is so simple (see the link in this paragraph above). This will definitely depend upon the facts and circumstances of the situation.

7. It is a reasonable accommodation to temporarily assign an employee with a disability to light duty.

Answer: True

However, that assumes that the employer has a light-duty system. They are under no obligation to create such a system if they don’t have one. Also, it assumes that the person cannot do the essential functions of his or her job with or without reasonable accommodations. Finally, it assumes that the person can do the essential functions of the light-duty position with or without reasonable accommodations. One last thing, the employer may want to consider reassigning that person to a job where she can do the essential functions of the position with or without reasonable accommodation rather than a light-duty position (see the discussion of this blog entry).

BUT Don’T FORGET ABOUT THE PREGNANCY DISCRIMINATION ACT

The EEOC says in their enforcement guidance that if a pregnant employee needs light-duty (temporary work less physically demanding than her normal duties), the employer is required under the Pregnancy Discrimination Act to provide it because an employer cannot treat pregnant workers differently from employees were similar in their ability or inability to work based on the cause of their limitations. This I find terribly problematic. What this arguably says is that if you have a pregnant employee who does not have a disability, light-duty may still be demanded under the Pregnancy Discrimination Act because light-duty might be required in that situation if the person has a disability. If this is the reasoning, this is very bizarre. It is possible that this is not what is intended at all because the example that the EEOC mentions is that an employer may not deny light-duty to a pregnant employee based on a policy limiting light-duty to employees with on-the-job injuries. If the example is what the EEOC is trying to address by the confusing language, then I see no problem with it. Since the ADA does not care a hoot about how a person got a disability, I never understood policies that treat people differently depending upon how they got the disability and the same should go for pregnancy. Unfortunately, the literal reading of the language seem to suggest something else. At a minimum, this language creates a very confusing distinction between pregnancies and disabilities (I recognize that considering how broadly disability is defined under the amendment to the ADA the distinction may be more theoretical than practical. That said, the language is terribly confusing).

9. The EEOC enforcement guidance on pregnancy discrimination related issues is likely to be adopted by the courts.

Answer: Probably False

I believe the answer is false for several reasons, though I am hedging with probably since you never know what courts are going to do. First, when it comes to enforcement guidances, they have not gone through the proper rulemaking process. As a result, the courts are free to use them or not and many times they choose not to (for example, the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), specifically rejected EEOC enforcement guidances in reaching their decision. True, the amendments to the ADA specifically overruled this decision, but the point remains that when it comes to EEOC enforcement guidances, a court is free to accept or reject them as they wish because they have not gone through the proper rulemaking process. Second, some of the things in the guidances are problematic, as discussed here and by my colleagues mentioned above, and that may give courts pause. Third, this enforcement guidance was not adopted unanimously. In fact, it was only on a narrow 3-2 decision that it was adopted. Finally, the Supreme Court of the United States recently granted certiorari on a case where disability discrimination in the context of pregnancy could very well could come up.

In summary, I never liked guidances, with one exception. Guidances to my mind are often a crutch for attorneys and prevent deeper level reasoning. They also can make things unnecessarily confusing and promote even more litigation. With respect to what was discussed in this blog entry, I would expect both to become true. At any rate, dealing with pregnancy just got a lot more complicated.

One of my more popular blog entries is the blog entry that discusses suing a state court system for disability discrimination. I also have a second blog entry following up on that blog entry.

This blog entry explores a related topic. Let’s say a person with a disability finds themselves in the court system in a civil matter. The person with a disability because of their disability simply cannot access the court system properly without an attorney. Does the ADA or, for that matter, a state antidiscrimination law, mandate that an attorney be appointed for that person with a disability much in the same way as an attorney is appointed for someone who cannot afford an attorney in a criminal matter? A case that doesn’t specifically address this question, but raises this issue is, Weems v. Bd. of Indus. Ins. Appeals, 2014 Wash. App. LEXIS 1659 (Wash. Ct. App. July 8, 2014).

As is my usual practice, I have the blog entry divided into sections. These sections for this blog entry are: facts, court’s holding, what the court wanted to know more about, and takeaways. The reader is free to focus on any or all of the categories of this blog entry.

I
Facts

In 1973, the plaintiff suffered an on-the-job injury where he was struck in the head by a cable, broke cartilage in his nose, and bruised his nose and face. Over the years, the plaintiff suffered other injuries as well, including falling 75 feet off a water tower and having his face strike a wall at home in 1997. In 2007, the plaintiff applied to reopen his claim due to the worsening of injuries caused by the 1973 accident. From here, the facts get a little complicated. Suffice to say, what happened is at the trial level, the workers compensation system in the State of Washington made clear that he should have an attorney, but that it would have to be at his own expense. His wife tried to assist through the process, but was clearly uncomfortable and made it clear that the plaintiff did not have the ability to understand and participate in the proceedings the way he needed to without legal counsel. She expressed quite a bit of unhappiness that counsel would not be appointed for them. The plaintiff himself did not seem to want legal counsel, but on this point, the facts were murky. At any rate, what happened is once the lower-level decision was appealed, counsel was appointed for the plaintiff, but that obligation ended once the case got sent back down to the lower levels. This happened twice in the same way. After the second time, an appeal was taken into the state court system where the plaintiff claimed that the Superior Court erred because the Board discriminated against the plaintiff in violation of the ADA and the Washington Law against Discrimination.

II
Court’s Holding

The court said that they could not review the claim because the record lacked findings of facts on material issues.

III
What the Court Wanted to Know More About

The court wanted to know the following things:

1. Was the plaintiff a person with a disability as defined by the ADA as amended and under the Washington Law Against Discrimination?

2. Did the plaintiff requests that the Board appoint him counsel as an accommodation for his disability? If not, was the plaintiff’s need for accommodation obvious to the Board?

3. The Superior Court needed to figure out whether the Board’s alternative to the appointment of counsel at public expense (such as plaintiff’s ability to hire an attorney on a contingency fee basis, the plaintiff’s wife assistance as a lay representative, and the industrial appeals Judge’s questioning of witnesses), either: A. failed to provide the plaintiff with the level of service comparable to that enjoyed by nondisabled claimants; or B. deliberately failed to accommodate plaintiff’s disability so as to discriminate against him.

4. Would appointment of counsel at public expense unduly burden the Board?

IV
Takeaways:

1. If you are running a state court system or even a federal court system, make sure you have an ADA compliance manual that informs everyone what their obligations are. The Illinois Attorney General has developed an excellent one in this area, though it is not perfect. Regardless of the compliance manual that you use, it is worthwhile to have that compliance manual reviewed by an attorney with expertise in the ADA so that any gaps in the compliance manual can be filled in.

2. If a person has a disability and is involved in the state court system, judges and court personnel need to be on the lookout to decide whether that person’s disability is something in need of accommodation. If so, the court system should initiate the interactive process.

3. Keep in mind, that a court system failing to engage a person with a disability in order to make sure that they can access the court system, runs the real risk of not only violating title II of the ADA but also violating the equal protection clause of the 14th amendment because when it comes to accessing the courts, persons with disabilities are at least in the intermediate scrutiny or higher class for equal protection jurisprudence per Tennessee v. Lane, 541 U.S. 509, 533-34 (2004). In English, this means a state court system violating title II of the ADA also probably violates a person with a disability’s equal protection rights as well.

I know I generally blog on Mondays, but this has been a strange week between client matters and an unusual family schedule.

Also, it isn’t unusual for those who blog to wind up blogging on things that some other blogger has covered. I don’t mind doing that so long as we have different perspectives that we can offer. This particular case is one of those things that I did see in the blogosphere/Internet, though the specific place I saw it escapes me at the moment. As is typical with my blog entries, I have divided this blog entry into categories. In this case: facts, issue, the court’s reasoning, and takeaways. Of course, the reader is free to concentrate on any or all of the sections of the entry.

I
Facts:

The case is Isbell v. John Crane, Inc., 2014 U.S. Dist. Lexis 37182 (N.D. ILL. March 21, 2014). In this case, you had a chemical engineer with ADD and bipolar disorder who was on a number of medications all of which made it difficult for her to function in the early morning because they did not kick in until several hours after she awoke. Her first supervisor informally had no problems with her arriving late as she was getting the work done and regularly showing up to work. Another supervisor subsequently took over, and he acquiesced to her request that she could continue to arrive at work at 10 AM so long as she completed her projects on time, which she did. She also furnished a doctor’s note to her second supervisor supporting the request to show up for work late. Subsequently, she suffered an injury and was given medication, which also did not help with being able to get going in the early morning. Of course, a different supervisor eventually comes in, and the supervisor has a problem with the late start since a late start was not typical for everybody else. When the early start was in force, the plaintiff of course had trouble meeting the early start and started racking up the penalty points. The reasonable accommodation process did not reach a satisfactory end and eventually plaintiff was terminated. Plaintiff then sued alleging disability discrimination. She also sued for retaliation and sex discrimination as well.

II
Issue

Can you have disability discrimination where an employer takes away a reasonable accommodation that is working?

III
Court’s Reasoning

Yes (on this issue, the PLAINTIFF’S motion for summary judgment was granted), and here is why:

1. Absent evidence that an existing accommodation places an undue hardship (the court uses, “undue burden” interestingly enough even though this is a title I case and the proper term would be “undue hardship”), on the employer, it is not reasonable for an employer to withdraw an existing accommodation;

2. If the existing accommodation is creating problems for the employer, it is the employer’s obligation under the ADA to work with the employee to adjust the existing accommodation in an attempt to correct those problems and not simply alter the accommodation unilaterally to the plaintiff’s detriment;

3. Before the management change, the employer had already made a reasonable accommodation to enable the plaintiff to do her job for some 2 1/2 years by allowing her to start later. Further, the employer offered no real reason as to why the new management, who had no prior knowledge of the special arrangement or of the plaintiff’s need that prompted it, should be entitled to start subjecting her to a one-size-fits-all timing regimen. In fact, the ADA precisely rejects uniformity of treatment absent an individual analysis of a person with a disability’s situation and their essential job functions.

4. This was not a situation where the employee was absent routinely, and therefore raised the question of whether attendance was an essential function of the job, rather, this employee regularly showed up to work and did her job, albeit starting at a later time.

5. The employer’s sudden replacement of a start time that was working with the more onerous schedule without considering the plaintiff’s known disability constituted an unreasonable failure to continue to accommodate that disability under the ADA.

As an aside, the court did wind up granting summary judgment to the employer on the retaliation and on the sex discrimination claims.

IV
Takeaways:

1. I can’t tell you how often I see in the case law a situation where something is working with one supervisor and then everything goes crazy when a new supervisor comes in. The employer needs to have a system in place so that supervisors that are coming into a situation are briefed on the situation and are trained in how to deal with them. Every new supervisor should have training on the applicable laws and regulations, including but not limited to the ADA.

2. Employers need to focus on whether an individual is living up to their capabilities with or without reasonable accommodations for their disabilities. If they are and such an accommodation does not constitute an undue hardship, either logistically or financially, leave well enough alone. After all, what the employer should want is a productive employee and not a situation where a policy is slavishly followed at the expense of the individual employee and the ultimate expense of the employer. As the court says in this case, imposing uniformity without doing an individual analysis of the situation the person with a disability finds themselves in with respect to their disability and the essential functions of their job, is something that the ADA specifically rejects.

3. If an accommodation is working, don’t change it unless you can back up that the current accommodation is constituting a logistical or financial undue hardship. Even if you can back it up, engage in the interactive process with an employee first instead of making a unilateral change.

4. An employer should not encourage slavish devotion to policy.

In a previous blog entry, I discussed the case of the National Association of the Deaf v. Netflix, a decision from the District Court in Massachusetts. In that discussion, I expressed surprise that not only did Netflix not appeal, they settled for $900,000. The reason I expressed surprise was that this case broke new ground by holding that an Internet site was a place of public accommodation if it was doing one of the categories listed for places of public accommodations under 42 U.S.C. § 12181(7). Prior to that, the answers as to whether a place on the Internet could be subject to the ADA was either yes, no because only physical places are subject to the act, or depends if the Internet was a gateway to a physical place (brick-and-mortar). Now we have a case with a contrary view to National Association of the Deaf v. Netflix from the Central District of California that came down May 14, 2014. In this case, a deaf person sued Red Box Retail because its movies as well as its Internet service did not have much in the way of closed captioning. The case is Jancik v. Redbox Automated Retail, LLC, 2014 U.S. Dist. LEXIS 67223 (C.D. Cal. May 14, 2014). In the interest of full disclosure, I am quite aware of the importance of close captioning when watching television. As a deaf person that functions entirely in the hearing world thanks to lip reading and hearing aids, my closed captioning is always on. If I am watching a show that is not close captioned, it is definitely much more of a struggle than it needs to be. As is my usual practice, I have divided the blog entry into categories. The particular categories for this blog entry are facts, court’s reasoning, and takeaways. The reader is free to concentrate on any or all of the categories.

I
Facts

Red Box Retail owns and operates more than 42,000 kiosks, which are self-service automated machines allowing customers to rent and return DVDs by using a touchscreen interface. Surely, the reader has seen them at his or her local grocery store. These kiosks carry only a limited number of close captioned DVDs. They also have a digital service called Red Box Instant, which provides streaming popular entertainment content. The majority of the content available in Red Box Instant is not close captioned. Red Box Retail and Red Box Digital are actually separate companies, and the plaintiff sued them both. Of course, both of the defendants filed a motion to dismiss.

II
Court’s Reasoning

In holding that both of the motions to dismiss were to be granted for the most part, the court reasoned as follows:

1. Title III of the ADA regulates access to the goods at the place of public accommodation and not to the goods themselves. That is, the content of the goods offered by a place of public accommodation are not regulated by the ADA. In other words, title III does not apply to the goods in a retailer’s inventory.

2. 28 C.F.R. § 36.307(a) does not require a place of public accommodation to alter its inventory in order to include accessible or special goods that are designed for, or facilitate use by, persons with disabilities. Close captioned DVDs are just the kind of goods that are designed for individuals with disabilities and are therefore, encompassed by this regulation.

3. Subsection b of that regulation does provide that places of public accommodation have to order accessible or special goods at the request of an individual with disabilities if in the normal course of their operations, they make special orders on request for unstocked goods and if the accessible or special goods can be obtained from a supplier with whom the public accommodation customarily does business. The court said that this provision means the place of public accommodation is liable only if the goods involved were for types of goods for which the place of public accommodation normally makes special orders. In other words, a business that ordinarily takes special orders on unstocked DVDs also has to take special orders on close captioned DVDs if the DVD can be obtained from a supplier with whom the retailer customarily does business with. Accordingly, since there were not enough facts to figure out at the motion to dismiss stage whether Red Box Retail normally takes special orders for DVDs and whether such goods could be obtained from its suppliers, the court denied the motion to dismiss with respect to subparagraph b of 28 C.F.R. § 36.307.

4. The court did not buy Red Box Digital’s argument that the plaintiff lacked standing to pursue a title III claim against the streaming service because the plaintiff had made allegations that the significant lack of close captioning in its streaming service deterred him from signing up for the streaming service.

5. Despite National Association of the Deaf v. Netflix, the court holds that a place of public accommodation must be a physical space and said that is the law in the Ninth Circuit. One of the cases that they cite for that proposition is a case involving eBay, which was appealed to the Ninth Circuit and a decision is expected anytime.

6. Even though the court says the rule in the Ninth Circuit as it stands at this very moment is that a place of public accommodation must be a physical space, the court does spend quite a bit of time talking about National Federation of the Blind v. Target Corporation, 452 F. Supp. 2d 946 (N.D. Cal. 2006), which held that an Internet site could be subject to the ADA if it is a gateway to a brick-and-mortar store. Even so, the court said that the case didn’t apply because the Red Box kiosks and Red Box Instant could not be said to be heavily integrated with each other, rather they are two entirely separate services. The fact that the services are sold together does not mean they are heavily integrated.

III
Takeaways:

1. It is interesting to note that Red Box Retail conceded that the Red Box kiosks were places of public accommodation as it isn’t clear to me that such a concession was a foregone conclusion.

2. The gateway theory of when an Internet site is subject to the ADA definitely has currency in the courts of the Ninth Circuit.

3. If your company has a streaming entertainment product, it is far from clear whether that product would be subject to the ADA.

4. If you are on the plaintiff’s side in a case like this, it is important to frame the lack of accessibility as something pertaining to accessing one of the places of public accommodations listed in 42 U.S.C. § 12181(7). On the other hand, if you are the defense, it is important to frame the issue in terms of the goods themselves rather than in terms of accessing the place of public accommodation.

5. With respect to standing, it bears noting that this court adopted the deterrence test.

6.The E bay ruling expected any day now from the Ninth Circuit is going to have a big impact on all of this. Eventually, one figures that the Circuits could very well split and this will wind up in the Supreme Court. What is very interesting is to consider the impact of the decision that just came down from the United States Supreme Court holding that a warrant is necessary to search a cell phone (Riley v. California). That decision very much talks about how technology can change the world and the law must meet the challenges of that technology consistent with fundamental principles. Many a court has noted that the ADA was meant to evolve with technology, and one wonders if the cell phone decision isn’t an indicator that the Supreme Court might at a minimum be receptive to a National Federation of the Blind v. Target approach if not a National Association of the Deaf v. Netflix approach. Hard to believe that the Supreme Court would sign off on the physical space only approach. It is also hard for me to believe that the Supreme Court would sign off on an approach saying the Internet itself is always a place of public accommodation (an approach which comes from dicta in Doe v. Mutual Of Omaha Insurance Company, 179 F.3d 557 (7th Cir. 1999).