I

Introduction

Let’s say you have this situation. The city holds an outdoor car show allowing a whole bunch of people to display their wares outside. One of the vendors blocks the curb ramps providing persons with disabilities access to the sidewalk in front of the hotel where a person was staying as he was in town for his grandson’s wedding. He was injured when he tripped and fell as he tried to walk around the display and step up onto the sidewalk. The city did not post any signs identifying alternative disabled access routes nor, for that matter, was the plaintiff aware of any alternative routes to the sidewalk. The plaintiff sues alleging violations of title II of the ADA and various California statutes. The city have a problem? The short answer is yes according to the Ninth Circuit in: Cohen v. City of Culver City, a decision selected for publication by the Ninth Circuit, which was handed down on June 6, 2014. As per usual, we have different categories: introduction; reasoning of the Ninth Circuit; some thoughts on the court’s reasoning; and takeaways. The reader is free to focus on any or all of the entry.

II

Reasoning of the Ninth Circuit

The court said that the city had a problem for the following reasons:

1. The ADA prohibits not only obviously exclusionary conduct, but also more subtle forms of discrimination interfering with individuals with disabilities equal enjoyment of public places and accommodations;

2. A city sidewalk is a service, program, or activity of the public entity within the meaning of title II of the ADA;

3. Title II of the ADA authorizes private suit for money damages;

4. 28 C.F.R. § 35.151 demands that newly constructed or altered streets, roads and highways have to contain curb ramps or other sloped areas at any intersection having curbed or other barriers to entry from a street-level pedestrian walkway. Further, that same regulation requires that newly constructed or altered street-level pedestrian walkways have to contain curb ramps or other sloped areas of intersections to streets, roads, or highways.

5. It was the city that allowed elimination of the disabled access that it had built.

6. The regulations demand that when a city builds new sidewalks or alters existing one for reasons other than retrofitting to achieve ADA compliance, that it is required to build a curb ramp at every intersection unless doing so is structurally impracticable;

7. It was the city that chose to alter the existing setup of the public sidewalk by allowing private vendors to set up displays for the purposes of holding a car show, and it would not have imposed additional burdens on the city if it required that the vendors locate their wares a few feet in either direction to avoid blocking disabled ramps;

8. When the city has already built a direct route accessible to persons with disabilities, it is reasonable to require that the city not force persons with disabilities to look for and take even a marginally longer route (emphasis added).

9. the city’s action created a genuine dispute of material fact as to whether the city denied the plaintiff access to the sidewalk on the basis of his disability. The court mentioned that the city may have violated a regulation requiring it to maintain disabled access features in good working order (28 C.F.R. § 35.133(a). That same regulation permits only isolated or temporary interruptions in service or access due to maintenance or repairs. To the Ninth Circuit, this regulation makes perfect sense because there is little point in building an accessible route it if it was not in a condition allowing persons with disabilities to use it;

10. The guidance accompanying the regulation mentioned in paragraph 9 above, makes clear that the city has to keep access routes for persons with disabilities free of obstruction. While temporary obstructions are allowed, obstructions persisting beyond a reasonable period of time do violate the statute;

11. The court found that a genuine dispute of material fact also existed as to whether the city failed to maintain this curb ramp in operable working condition by allowing the private vendor’s booth to block the ramp for more than a reasonable time. Whether the duration of the obstruction was reasonable is a question of fact;

12. Poorly maintained public sidewalks may be a form of discrimination prohibited by title II of the ADA because obstructive sidewalks exclude persons with disabilities from ordinary communal life and force them to risk serious injury to undertake daily activities. That is precisely the kind of subtle discrimination that the ADA aims to abolish.

13. The city could have reviewed and approved the placement of the vendors display before the car show, which the permit it issued to the vendors said it was going to do, but the city apparently did not follow through. The city could have also required vendors to not position the displays in front of disabled access ramps or to set the display back a few feet from the curb to allow pedestrians with disabilities to pass. For that matter, the city could have posted a temporary sign in front of this particular display directing pedestrian to the other curb ramp 20 yards down the block (but see, paragraph 8 above).

III
Some Thoughts on the Court’s Reasoning

14. It didn’t come up in this particular case, but what about the argument that the regulations can’t be a basis for a suit alleging violation of the ADA. I don’t think that argument would’ve worked and that may explain why it is not present in this case. As mentioned previously in another blog entry, the Supreme Court of the United States in Alexander v. Sandoval, 532 U.S. 275 (2001), discussed when a regulation will support a private cause of action. What the court said where there was a statute that creates a private cause of action and authorizes the issuance of implementing regulations, those valid and reasonable regulations carrying out that statute are equally as enforceable by a private cause of action as violations of the statute itself. With respect to this case, these specific regulations went through the formal commenting process and considering that, as mentioned in the paragraph immediately below. Further, architectural barriers are very much a part of the ADA and their removal is implicitly written into the ADA statute itself.

15. It also didn’t come up in this particular case, but what about the argument that the specific architectural requirements are not in the ADA itself and therefore went too far when it came to implementing the statute. However, that argument would not fly either because the ADA specifically references by statute that title II implementing regulations have to include architectural and design standards ensuring accessibility to public buildings and facilities by individuals with disabilities. Further, those regulations went through the proper process for becoming final regulations.

16. Sovereign immunity didn’t come up because cities and municipalities are not a sovereign.

17. The one thing that didn’t come up in this decision is deliberate indifference. This omission I find a bit odd because, as discussed in this blog entry, the remedies for violating title II of the ADA are tied into the Rehabilitation Act and to get damages under the Rehabilitation Act you need to show deliberate indifference. It is entirely possible that the facts of this case are such that a jury could find deliberate indifference. Even so, I find it curious that deliberate indifference is not discussed in the case.

18. The language used by the court in paragraph 9 above is interesting. In particular, they refer to discrimination on the basis of disability. However, title II of the ADA talks about discrimination by reason of disability. The distinction may be one without a difference, but nevertheless the explicit language is not the same.

IV
Takeaways:

1. The bottom line is if you were are a city or municipality granting a license to display on the public streets, your obligation does not end at the issuance of a display license. This case makes clear that the city or municipality has a continuing duty to make sure that things do not get set up in a way that discriminate against persons with disabilities.

2. The decision itself gives some excellent preventive steps that city or municipality can do. Those steps include: reviewing and approving the placement of vendor displays prior to the show opening; mandating as a condition of granting the display permit that the vendors avoid position the displays in front of access ramps for persons with disabilities or mandating that such displays be set back a few feet from the curb to allow pedestrians with disabilities to pass; posting temporary signs directing pedestrians to other curb ramps. With respect to the posting of temporary signs, this case suggests that it might depend upon just how much of a detour that the person with a disability has to make with respect to determining whether such a detour would be unreasonable. I might add that another preventive step would be sending out inspectors to review the activity once the activity is open to the public.

I
Introduction

My experience with law review articles is that for the most part they are very difficult to read, rarely practical, and rarely on the cutting edge of things with respect to how practitioners are concerned. There are exceptions. For example, in my book, in the ADA and Sports chapter, I spent quite a bit of time discussing an excellent article by Christopher Bidlack entitled The Prohibition of Prosthetic Limbs in American Sports: the Issues and the Role of the Americans With Disabilities Act 19 Marquette Sports Law Journal 613 (Spring 2009). Just a couple of days ago, I came across an article by David Knoespel entitled Biometric Testing in Employer Wellness Programs and the Unanticipated Consequences of Healthcare Reform: Why Challenges Under the ADA Medical Examination Provision Reach the Merits After Seff v. Broward County. David’s article was actually the second place article in the American Bar Association’s Section of Labor and Employment Law and the College of Labor and Employment Lawyers national law student writing competition. His article was easy to read, practical, and cutting-edge in the real world.

His thesis is essentially this: the Affordable Care Act, which mandates health coverage for everyone, and in many ways does away with underwriting, means that wellness programs may no longer be subject to the ADA safe harbor and that now employers will have to worry about complying with how the ADA deals with medical exams with respect to their wellness programs.

This particular blog entry is divided into various sections: introduction; the applicable provisions of the Affordable Care Act and the Americans with Disabilities Act; discussion of Seff v. Broward County; and conclusions. The reader is free to concentrate on any and/or all of the sections.

II
The Applicable Provisions of the Affordable Care Act and the ADA

It’s an excellent article and I think he is onto something. Here’s why (much of what follows is in his article, and I commend the reader to read it. I add some wrinkles as we go along):

1. The Affordable Care Act mandates that each health insurance issuer must offer health insurance coverage in the individual group market in the State to every employer and individual in that State that applies for coverage. 42 U.S.C. § 300gg-1(a).

2. With respect to network plans, coverage must be offered uniformly to all employers and individuals without regards to the claims experience of those individuals, employers and their employees (and their dependents) or any health status-related factor relating to such individuals, employees, and dependents. 42 U.S.C. §300gg-1(c)(3).

3. Under the Affordable Care Act, a health insurance issuer must renew or continue in force a person’s coverage at the option of the plan sponsor or the individual. There are exceptions to the rule, but none of those exceptions include termination because a person developed a health condition. See 42 U.S.C. § 300gg-2(a),(b)

4. 42 U.S.C. § 18022 mandates essential health benefits that insurers must include in their plans. It also sets forth different levels of plans, and gives the Health and Human Services Department after notice and public comment, the ability to revise what essential health benefits are.

5. The Affordable Care Act allows for variation in health insurance premiums, but only on the basis of age, tobacco use, geographical area, and family size. 42 U.S.C. § 300gg(a)

6. If an individual fails to obtain health insurance coverage, they have to pay a tax to the Internal Revenue Service. 26 U.S.C. § 5000A

7. 42 U.S.C. § 300gg-4 prohibits discrimination against individual participants and beneficiaries based on health status.

8. In short, as David mentions in his article, it would be correct to say that the guaranteed issue provision, essential benefit provision, and premium guidelines of the Affordable Care Act eliminate health status underwriting.

9. Even so, the Department Of Health and Human Services has recognized that the Affordable Care Act does allow for wellness programs.

10. As David mentions in his article, there are two kinds of wellness programs. In the first, you have a program that does not provide a reward or does not include any condition for obtaining reward based upon the individual satisfying a standard related to a health factor. In the second, you have a wellness program that does reward or penalize an individual based on satisfying a health-related standard related to a health status factor. The former is referred to as a participatory wellness program, while the latter is referred to as a health contingent program.

11. The Affordable Care Act does not override the ADA.

12. Under the ADA, a medical exam can be given after a conditional job offer. 29 C.F.R. § 1630.14(b). With respect to a current employee, a medical exam can be done if it is job-related and consistent with business necessity. Kroll V. White Lake Ambulance Authority, 691 F.3d 809, 820 (6th Cir. 2012)

III
Seff v. Broward County, 778 F. Supp. 2d 1370 (S.D. Fla. 2011), affirmed 691 F.3d 1221 (11th Cir. 2012).

A.
Facts

Broward County had a wellness program requiring employees to fill out a health risk assessment questionnaire and undergo a biometric screening. The questionnaire was confidential and conducted online. The biometric screening was also confidential and required a fingerstick blood tests to measure glucose and cholesterol levels. While participation in the program was not required for health coverage, beginning in June 2010, any employee not completing the questionnaire and undergoing the screening was charged $20 on their biweekly paycheck. In August of 2010, the plaintiff filed a class action arguing that requiring employees to undergo a medical examination and the making of medical inquiries of its employees violated the ADA.

B.

Court’s Reasoning

1. The ADA, 42 U.S.C. § 12201(c)(1),
contains a safe harbor that specifically allows a bona fide benefit plan based on underwriting risks, classifying risks, or administering such risks so long as they do it in a manner consistent with state law.

2. The court found that the wellness program was a term of the county’s group health plan because the insurer was paid to administer the program under its healthcare contract with the county. Also, only those enrolled in the county’s health plan could participate in the wellness program.

3. The wellness program was designed to develop and administer present and future benefit plans using accepted principles of risk assessment.

4. The reasoning of the Southern District of Florida was affirmed by the 11th circuit, as noted above.

IV
Conclusions

1. The Affordable Care Act does not preempt the ADA.

2. The ADA only allows a medical exam after a conditional job offer or with respect to current employees, if it is job-related and consistent with business necessity.

3. The EEOC has a seven factor test for determining whether something is a medical exam. Certainly, biometric screening, obtaining blood, would be considered a medical exam. It is also possible that the healthcare questionnaire for the wellness program might also be considered a medical exam.

4. The Affordable Care Act provisions discussed above clearly mean that a wellness plan can no longer be used for the purpose of underwriting, rather such a plan would be used for improving the health of the company’s employees. As such, the safe harbor is no longer applicable.

5. I am not a big fan of guidances for a couple of reasons. First, I have not always been convinced that the guidances are a fair reading of the law. Second, guidances do not go through the rulemaking procedure and therefore, can be ignored by the courts. Third, I have always felt that guidances become a crutch for attorneys and start substituting for the attorney’s independent judgment. However, in this case, I do believe a guidance on wellness plans is in order. Recently, I read that the EEOC will be coming up with the guidance on wellness plans. Considering the provisions of the Affordable Care Act and the prohibitions and restrictions on medical exams in the ADA, such guidance will become very helpful to the practitioner, though, as just mentioned, such guidance could not be the final say on the matter. If the EEOC were to adopt a rule through the proper rulemaking process rather than a guidance, then it would be more likely for their view on wellness plans to be taken as the final word by the courts.

6. Thanks to the terms of the Affordable Care Act and the ADA prohibition on medical exams, as David’s article points out, you clearly have a clash between the two. Accordingly, for those companies with wellness programs, you definitely want to evaluate whether the implementation of those programs involve medical exams in a way prohibited by the ADA. Also, hopefully the EEOC will issue guidance on this as soon as they can.

I recently came across this article on the Internet discussing a case where the parents of an 8-year-old boy who is deaf are suing Greensburg, Pennsylvania, for failing to provide an interpreter for the child while he plays in the city soccer program. According to the article, the suit was filed on May 29, 2014, in federal court in Pittsburgh for the child, who is referred to as “S.A.” in the complaint. His parents are identified only by initials, “A.A.” and “J.A.” They asked the court to rule the city discriminated against the boy by not supplying an American Sign Language interpreter and to order the city to supply one in the future. But the city contends it is under no obligation to provide an interpreter for a non-resident playing in a voluntary league. In addition, the parents seek compensatory damages and for the city to pay the costs to file the suit.

As everyone knows, I have long been interested in how the ADA applies to sports. Thus, I thought I would blog about this case. Keep in mind, we don’t know the facts except for what is contained in the article. Most assuredly, the facts are more complicated than what appears in the article. The article also says that the city estimates that it would cost between $6000 and $10,000 a year for the two season program (soccer is played in the fall and in the spring).

The blog entry is divided into two parts. In addition to the facts and introductory comments above, the other two parts discuss the relevant law and then, how the law might play out. The reader is free to focus on either or both of the sections.

I
The Relevant Law:

1. Again, we don’t know all of the facts, but I do have experience with city recreational leagues and they probably work similarly no matter where you are. That is, the city runs a recreational league. People who live in the city get a discounted rate to participate in a recreational league. People who live outside the city have to pay extra. The city is responsible for coming up with the schedule and making sure that the league runs properly. They are also responsible for paying the officials to referee the games. Otherwise, the coaches are entirely volunteers. What this means, is that both residents and nonresidents are accessing the programs and activities of the municipality in the same way, though at a different fee.

2. Obviously, the child is a person with a disability since he is deaf. That is, he has a physical impairment that substantially limits the major life activity of hearing.

3. Is the child otherwise qualified (Rehabilitation Act) or qualified (ADA)? Such a person would have to be able to show that he can with or without reasonable modification to rules, policies, or practices; the removal of architectural, communication, or transportation barriers; or the provision of auxiliary aids and services, meet the essential eligibility requirements for receiving services or participating in programs or activities provided by a public entity (28 C.F.R. § 35.104).

4. Auxiliary aids and services were not defined in the ADA as originally enacted. However, the amendments to the ADA do define auxiliary aids and services. In particular, such aids and services include: 1) qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments; 2) qualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments; 3) acquisition or modification of equipment or devices; and 4) other similar services and actions. (42 U.S.C. § 12103(1)).

5. As we have discussed previously,
the effective communication regulation requires the public entity to give primary consideration to the preferences of the individual with a disability.

6. Of course, a title II entity always has as a possible defense that the requested accommodation is either an undue burden or fundamentally alters the nature of the program or activity. However, for a title II entity to be successful in such a defense, the burden falls on the public entity and must be made by the head of the public entity or his or her designee after considering all resources available for use in the funding and operation of the service, program, or activity and must be accompanied by a written statement of the reason for reaching that conclusion (the Ninth Circuit in K.M. v. Tustin Unified School District _F.3d_, 2013 WL 3988677 (9th Cir. August 6, 2013), cited the written certification language with approval, but it is not a provision of the regulation that is commonly litigated)). Finally, that regulation requires that the public entity take any other action that does not result in an undue burden or a fundamental alteration, but nevertheless ensures to the maximum extent possible that the individual with a disability receives the benefits of the services, programs, or activities provided by the public entity.

II

7. So Where Do Paragraphs 1 to 6 Leave Us, or How Does the Relevant Law Play out?

A. Since the child is deaf and is otherwise able to participate in the soccer program absent the interpreter, the child’s certainly gets to first base.
Also, the fact that the child is a nonresident shouldn’t matter, since the child is trying to access the municipality’s programs and activities in the same way as residents, albeit probably at a higher fee.

B. It is extraordinarily difficult to believe that supplying an interpreter would fundamentally alter the nature of the soccer program.

C. That leaves the city with saying that supplying the interpreter costs too much money. Such a defense has several problems to it. First, the ADA in the statute itself, as noted above, specifically mentions interpreters as a reasonable modification of a program or activity. Second, the effective communication regulation requires that primary consideration be given to the request of the person with a disability. The Department of Justice technical assistance manual for title II of the ADA
says that “primary consideration,” means that the public entity has to honor the choice unless it can demonstrate that another equally effective means of communication is available or that using such means results in a fundamental alteration or undue financial or administrative burden to the service, program, or activity. Since with respect to the undue financial burden defense, all resources must be considered, it may be difficult to show that the cost of the interpreter, while considerable, would constitute an undue financial burden as the term is understood with respect to its legal meaning under the ADA.

D. In short, for the reasons explained here, this looks like it is going to be a very tough case for this particular municipality to win. Again, we don’t know all the facts.

My usual practice is to put up a blog entry on Mondays. However, Monday is Memorial Day, and so I thought I would put up a blog entry today, especially since there has been some big news this week. In particular, the Department of Fair Employment and Housing of the State of California, United States of America, individual plaintiffs, and the LSAC have entered into a consent decree. The terms of the consent decree, while no liability is admitted, are such that if you are a purveyor of standardized testing, the world as you used to know it has now ended and you are entering a completely new world. To see why, see below.

In a previous blog entry, I have been discussing the litigation against the LSAC regarding their administration of the law school admission test with respect to persons with disabilities. As mentioned in that blog entry, there is now a consent decree.

This consent decree actually run 78 pages, and what I plan to do is highlight many of the provisions of that consent decree, all of which go to show how the standardized testing world is in for radical change. The highlights appear below:

1. LSAC admits no liability. That said, considering what follows LSAC clearly believed there was a substantial risk of liability if it took it to trial.

2. The LSAC must administer the LSAT so as to best ensure that when an individual with a disability takes the test, the LSAT results accurately reflect the individual’s aptitude or achievement level or whatever other factor the examination purports to measure rather than reflects the individual’s disability.

The best ensure language is a critical point as that means the law school admission Council has to be sure to work with the individual to ensure that the individual with a disability is getting to the same starting line as a person without a disability.

3. The LSAC has to provide appropriate auxiliary aids for persons with impaired sensory, manual, or speaking skills, unless the LSAC can demonstrate that doing so would fundamentally alter the measurement of the skills or knowledge the examination is intended to test or would result in undue burden.

This is really nothing more than a restatement of the law.

4. The LSAC shall ensure the document requests are reasonable and limited to the need for assessing the accommodation requested.

This is huge. Many standardized testers require a tremendous amount of documentation before they will grant an accommodation. This particular part of the settlement means that any documentation requests has to be reasonable and limited to the need for assessing the accommodation.

5. The consent decree further explains the parameters the LSAC has to use with respect to documentation requests. In particular, candidates seeking to take the LSAT whose documentation showed that they were previously approved to receive testing accommodations on any standardized examination offered in the United States related to application for postsecondary admissions for which they were previously approved do not have to give the LSAT any documentation other than: proof of the approval for such testing accommodations; and certification by the candidate by checking a box on the candidate form that said the candidate is still experiencing the functional limitation caused by the disabilities for which the requested accommodation was approved. Also, the consent decree details the acceptable proof, which consists of a letter or similar documentation from the other test sponsor confirming that the testing accommodations were approved and specifically identifying what those approved testing accommodations were. In such a case, the LSAC has no choice under the consent decree but to grant those previously approved testing accommodations. The list of accommodations that fall under this automatic approval includes extended time, up to double time, and many other testing accommodations listed in an exhibit to the consent decree. This particular paragraph only applies if the testing can be administered on one day. If testing cannot administered on one day, then other provisions of the consent decree come into effect.

The double time piece is huge. Time and a half is typical, but double time isn’t necessarily so. Also, the list of accommodations that must be granted automatically by the LSAC is quite extensive (29 different accommodations fall into this category).

6. If the request for reasonable modification does not fall into paragraph 5 above, any request by the LSAC for documentation has to be reasonable and limited to the need for assessing the accommodation requested.

As mentioned above, this is huge. It means that the expansive documentation requests that are fairly typical are no longer in play.

7. The LSAC when reviewing accommodation requests is not allowed to reevaluate whether the candidate has a covered disability within the meaning of the ADA.

This is also big. It isn’t unusual for standardized testers to not only ask for extensive documentation but also question whether that documentation establishes a disability. That approach is severely curtailed by this provision.

8. With respect to a testing accommodation not subject to automatic approval, the LSAC has to consider all facts and explanations offered by the candidate regarding his or her history or the need for the requested testing accommodations, including factors such as late in life diagnosis of disability, recent onset of a disability, progression of the disability, lack of resources, or having a nontraditional educational background.

Another big thing here. It hasn’t been unusual for standardized testers to insist on a childhood diagnosis of a disability before they will accommodate. This particular provision eliminates that practice.

9. The LSAC has to give considerable weight to documentation related to prior testing accommodations received in similar situations not covered by the paragraph dealing with automatic approval of accommodations as well as to testing accommodations provided in response to an IEP or § 504 plan.

This is also big. This means that students who entered college having had an IEP or § 504 plan can now, which has not been true in the past based on my experience anyway, use that information to document the disability and to show what accommodations are needed.

10. The LSAC has to consider documentation provided by a qualified professional who has made an individualized assessment of the candidate.

This is also significant because this means that the LSAC is going to have to be flexible with respect to the documentation it considers from an applicant. That is, if the documentation is not in a format that they are used to seeing, this provision mean they cannot dismiss that documentation out of hand and insist on documentation in their preferred format.

11. The LSAC has to reach back five years instead of the three years with respect to the recency of testing to support testing accommodation based on a mental or cognitive impairment.

Reaching back five years instead of three years is incredibly significant.

12. LSAC cannot reject a request for particular testing accommodation based solely on the candidate’s average or above-average IQ score and/or high level of academic success.

This particular provision is nothing more than what we have already seen in the Department of Justice regulations implementing the amendment to the Americans with Disabilities Act. In particular, the Department of Justice took the position there and here that just because a person with a disability is smart or has achieved academically does not mean that disability doesn’t still exist.

13. The LSAC is prohibited from rejecting or denying a candidate’s application for a particular testing accommodation solely because the candidate has no formal history of receiving that testing accommodation.

Another provision with significant impact. This means that the LSAC cannot lock themselves into prior testing history to say that they don’t need to start something new because it has never been done before.

14. The LSAC website needs to be updated to reflect the terms of the consent decree.

15. The LSAC has to modify the deadline information on its website and in its accommodations request packet to make clear that students seeking accommodations must submit the request for testing accommodation together with all supporting documentation by the registration deadline in order to be considered for testing accommodations. That registration deadline is also the cutoff for the LSAC to receive any supplemental documentation requested by the LSAC or submitted by the candidate after the original request for accommodations were made. The LSAC, barring unforeseen circumstances, has to respond to each request for testing accommodation within 14 business days of its receipt.

Obviously, the big thing here is that the LSAC unless unforeseen circumstances exist, has 14 business days to respond to the request for accommodation.

16. LSAC will eliminate the language that insisted if a person was taking medication and was not evaluated while on medication, that deviation had to be explained by the evaluator. That said, the LSAC does have the right to continue to ask evaluators whether a candidate was on his or her prescribed medication during the evaluation and to ask the evaluator to comment if such commenting is relevant and appropriate.

This is a big change from prior practice.

17. Paragraphs 5-16 above, will go into effect at the very next administration of the LSAT following entry of the consent decree by the court unless the next administration of the LSAT is less than two months away from the effective date of the consent decree. In that case, the paragraph will go into effect for the second administration of the LSAT following the effective date of the consent decree.

18. The LSAC has to increase the number of expert consultants and diversify the areas of expertise of the expert consultants that it uses to review and evaluate request for testing accommodations.

Another significant provision because it means that the people evaluating requests for accommodations arguably will have to have specific and possibly high level training to evaluate those requests (see also discussion of the Panel below).

19. The LSAC has to implement best practices as established by a panel of experts. In particular:

A. The panel is going to consist of five people 2 selected by the LSAC and 2 selected by the United States and the Department of Fair Employment and Housing of California as well as a fifth person selected by those 4 experts prepared from a list prepared by the United States and the Department of Fair Employment and Housing of California. With respect to the experts, one of those experts must have expertise in the provision of testing accommodations within the context of standardized test administration and the other must have expertise in cognitive disabilities. The fifth panel member is a person with expertise in ADA compliance. That particular person is chosen by the four experts from a list of three people given to them by United States and the Department of Fair Employment and Housing of California. The fifth person cannot have assisted or consulted with any party involved in the litigation.

B. None of the panelists can be an attorney that has previously represented a party adverse to the LSAC or to United States in a lawsuit or government agency proceeding involving the LSAC.

C. Any members of the panel are prohibited from personally representing anyone or serving as an expert witness for anyone who is adverse to the LSAC in any pending lawsuit or government agency proceeding. This prohibition lasts through the period of service under the consent decree (the consent decree is for four years), as well as if the panel is reconvened pursuant to the consent decree.

D. The purpose of the panel will be to prepare a written report establishing best practices comporting with the best ensure requirements of the regulations. Once the panel decides that something is a best practice, that best practice becomes a safe harbor for the LSAC. The panel will determine how many of the five panel members have to agree in order for something to be imposed as a best practice.

E. The consent decree tells the panel that they have to address several issues including:

1)diversification of expert consultants, in terms of numbers and areas of expertise;

2)the type and scope of appropriate documentation that may be requested from candidates asking for an accommodation that might not fall within the automatic approval provisions;

3) reviewing of testing accommodation requests. In particular: considering and establishing the appropriate qualification for persons, such as LSAC staff and/or outside consultants, who make the substantive adverse decision on request for testing accommodations; determining whether more than one qualified professional needs to review a document of request for testing accommodations before the LSAC can deny the request in whole or in part;

4) establishing criteria and guidelines for use by persons who review and evaluate testing accommodation requests as well as considering whether there should be particular parameters for written recommendations from any outside consultant who reviews or evaluates requests for testing accommodations and what those parameters should be;

5) considering whether there should be particular parameters for internal documentation with respect to written decision by LSAC personnel who make substantive decisions on testing accommodations requests and what those parameters should be;

6) considering whether there should be particular parameters for written explanations provided by the LSAC to candidates whose testing accommodation requests are partially or fully denied and what those parameters should be;

7) considering whether there should be automatic review of partial and/or full denials and if so, how such reviews should be conducted;

8) considering whether there should be an appeals process beyond what is already provided by the LSAC with respect to candidates wanting to seek review of LSAC decisions denying their request for an accommodation and what that process should be relative to the LSAC’s existing registration deadline;

9) considering and establishing parameters, such as content and timing of, training for people who evaluate or review testing accommodation requests (both with respect to LSAC staff and to outside consultants).

Obviously, paragraph E will have a fundamental impact on how the LSAC goes about operating with respect to handling reasonable accommodation requests from applicants.

F. The panel has six months to complete the report, though additional time may be requested.

This panel for lack of a better word is essentially analogous to an administrative agency with respect to the regulatory process. That is, essentially what this panel is doing is writing regulations for the LSAC to follow (proposing the regulation). Once it does that, it sends out the regulation for commenting. That is, all the parties to the litigation will have at least two weeks to comment on the panel’s draft of the best practices. If the best practice somehow violates the ADA, it’s implementing regulations or California law, a party can take that up with the court.

G. Once the best practices are online, the LSAC has to implement them no later than six months following the expiration of the notice required for challenging the best practice or a written agreement by the parties not to challenge the best practices, whichever comes first.

H. The LSAC has to make annual reports with respect to how it is implementing the best practices established by the panel. The parties to the litigation have the ability to request that the panel be reconvened to make recommendations regarding whether revisions are necessary to a particular best practice and a timeframe is given for appealing to the court if the parties believe the best practices are not in compliance with the relevant laws.

I. The panel is given broad powers to accomplish its goals, including having ex parte communications with the parties (subject to certain limitations), requesting meeting with the parties, and speaking to anyone the panel deems necessary. If ex parte communications occur, all other panel members must be aware and approve those communications. Further, there has to be a log kept by the panel members as to who they communicated with and the date of those communications.

J. The report of the panel will be made publicly available. If there is any confidential information in the final report, a protective order can be sought.

K. Who bears the cost of this panel? How does a person serving on this panel get paid? Certainly, they don’t do it for free. The answer is that all reasonable fees, costs and expenses of the panel are the responsibility of the LSAC. How much do they get paid? Unclear. Panel members are to be paid a, “standard reasonable rate” to be determined by the parties following identification of the proposed panel members. If the party can’t reach agreement on the rate to be paid, the issue will be decided by the magistrate judge on this case. It is the responsibility of the LSAC to reimburse all reasonable expenses incurred by the panel or any of its members in the course of the performance of their duties as panel members. Any travel of the panel members is charged to the LSAC’s corporate account. The court is the final decider of what costs and expenses are reimbursed by the LSAC.

20. The LSAC has to establish a tracking and/or maintenance of testing accommodation database. What goes into that database is very specifically discussed in the consent decree and the LSAC has eight weeks after the effective date of the consent decree to have the database in place. The database also has to be put in place with regards to lawsuits or complaints filed with a governmental agency alleging that the LSAC improperly failed to provide testing accommodations.

21. A separate electronic mailbox must be set up and dedicated for the receipt of complaints alleging that the LSAC improperly failed to provide testing accommodations following the LSAC’s final determination of a test taker’s request for testing accommodations on the LSAT.

22. The LSAC has to permanently discontinue all forms of the practice of annotating score reports of candidates who received the testing accommodation of extended test time due to disability.

It is impossible to overstate the importance of this particular provision. As is well known, the LSAC has had a practice of flagging the scores of people who take testing with accommodations. The result of such flagging meant that the law schools knew that a person had a disability and also were given reason to believe that their test score was distorted. Such a practice goes against the very underpinnings of the ADA, which demands that a person with a disability be placed at the same starting line as a person without a disability. If the person with a disability is at the same starting line as a person without a disability, there should be no need to annotate the scores as the score should mean the same thing.

23. Damages and fees to be paid by the LSAC

A. The LSAC agreed to pay $55,000 as a civil penalty. The LSAC while paying the money did not admit to liability.

B. LSAC to pay $7,675,000 in compensatory damages. In particular: the Department of Fair Employment and Housing of California gets $585,000; the United States get $225,000; and the individual plaintiffs get $135,000.

C. A compensation fund for individuals who requested testing accommodation for the LSAT between January 1, 2009 and May 20, 2014 is established and that compensation fund to contain $6,730,000. The compensation fund to go about its business in a manner that compensation funds are run when massive claims are involved.

D. LSAC to pay $900,000 in attorneys fees to the Department of Fair Employment and Housing of California and $100,000 to the attorneys for the individual plaintiffs. Also, the Department of Fair Employment and Housing of California is entitled to reasonable attorney fees and costs for work performed on any prevailing motion with respect to enforcing the consent decree.

24. Individuals that requested testing accommodation from the LSAC between January 1, 2009 and the date of the decree who were denied accommodations are entitled to reregister and take the LSAT and to reapply for testing accommodations pursuant to the terms of the consent decree. Standard fees apply. With respect to the named plaintiffs, they get one free administration of the LSAT with their request for testing accommodation handled pursuant to the terms of the consent decree.

25. The consent decree has to be posted on the LSAC’s website.

26. The LSAC’s website must contain specific language specified in the consent decree stating that they do not annotate scores and that any scores earned as a result of testing accommodations are reported in the same manner as scores not involving accommodations.

27. In addition to the panel, an ADA monitor is set up.

A. The purpose of the ADA monitor is to assist United States, the Department of Fair Employment and Housing of California and the court in evaluating the LSAC’s compliance with the decree.

B. None of the parties have supervisory authority over the ADA monitor’s activities nor can they interfere with any of the functions of that person.

C. The ADA monitor cannot be an employee or current contractor of any party to the litigation. Person cannot be affiliated with any party and cannot be a person who has assisted or consulted with any party with respect to the litigation.

3. The person who is the ADA monitor unless the parties approved, cannot be offered or guaranteed employment or future benefits in any form, including a position as a consultant or independent contractor, during the term of the consent decree and for a period of two years following expiration of this decree. Further, during the term of the consent decree, the ADA monitor cannot personally represent anyone, or serve as an expert witness for anyone, who is adverse to the LSAC or of any of the plaintiffs in any pending lawsuit or government agency proceeding.

This particular provision is huge as it is going to restrict the pool of people that may be the ADA monitor. In particular, the ADA monitor cannot have dealings with any of the parties to the litigation during the consent decree and for a period of two years afterwards. Further, the “future benefits in any form,” language is extremely broad. For example, this language is so broad that it would seem to prohibit the ADA monitor from serving as a mediator during the course of the consent decree AND for two years after the consent decree is over if any of these parties are involved in regardless of what their particular suit might be about.

4. The ADA monitor is responsible for auditing the LSAC operations and must provide a written report of the audit.

5. The cost of the ADA monitor is the responsibility of the LSAC. The fee that the ADA monitor gets paid is the same process as how panel members would get paid. The ADA monitor does have to provide sufficiently detailed monthly of the invoices justifying any fees, costs, and expenses.

28. The court retains continuing exclusive jurisdiction to enforce the decree. There is also a procedure set up to deal with any disputes arising from the carrying out of the decree.

29. The LSAC’s website has to comply with the level A and level AA success criteria and conformance requirements of the web content accessibility guidelines 2.0 published by the World Wide Web Consortium. By website that includes all webpages, web applications, resources, and services within the website domain, its subdomain, and related domains as well as all the information, resources, files, databases, images, graphics, text, audio, video, multimedia services, cold, and any other communication sent by or retrieved from the website to the member to members of the public accessing it (i.e. everything).

Takeaways:
1) If you are a standardized test taker, your world has turned upside down. This consent decree is an excellent roadmap as to good preventive steps that can be taken. It is also an excellent idea of the risks involved if those steps are not taken.

2) The panel report is publicly available and so one wonders whether other testing agencies could not adopt the panel’s report best practices for themselves and then try to claim a safe harbor. Such an argument is interesting, but since this panel is not an administrative agency doing rulemaking, it arguably would not carry the day. Nevertheless, while it might not be a safe harbor, it could very well be strong evidence of ADA compliance for that other testing entity.

One of my favorite songs of all time is “The Gambler” by Kenny Rogers. For those who don’t know, it is a song about poker, but it might as well be a metaphor about litigation. The chorus of the song goes, “you gotta know when to hold em, know when to fold ’em, know when to walk away, know when to run….” My good friend and colleague Richard Hunt latest blog entry explore several cases where the ADA litigation strategy just made things much worse. That is, litigators made mistakes over the decision of when to hold ’em versus when to fold ’em. Along those lines, there is the case of Bresser v. Total Quality Logistics, 2014 WL 1872113 (S.D. Ohio May 8, 2014). This particular blog entry is also another example of how working from home may be a reasonable accommodation. It is, in my opinion, with respect to working from home, a much stronger situation than the case we previously discussed in this blog entry. As is my usual, the blog will be divided into facts, issues presented, court’s reasoning, and takeaways. The reader is free to concentrate on any or all of the categories.

I
Facts

What you have here is a person with social anxiety disorder that he had prior to starting work with his employer. For his social anxiety disorder, he took medication and also went to psychotherapy. During the course of his employment, he had several reviews with four different supervisors and all of them were quite good. He figured out a way to manage his social anxiety disorder by making efforts to work in secluded areas, increasing his medication usage, and even offering a coworker money to switch workstations so that he could be in a more secluded area. Either as a result of his good performance or because of a commitment to improve productivity by 20% by working from home (depending upon whether you believe the allegations of the plaintiff or the claims of the employer), the employer allowed him to work from home. The experiment was successful, with the plaintiff by the following summer after the work from home experiment began being second in the highest number of calls handled. However, some months later the plaintiff made a couple of mistakes (giving information to a truck driver when he was not supposed to, not reading notes associated with the shipment, improperly issuing electronic payments, missing an email regarding a shipment, failing to record bills of lading in the electronic system, and having provided his phone extension to a truck driver against company policy). The result of this was that the employer decided that the plaintiff should no longer work from home and directed his supervisor to prepare formal written corrective action. Plaintiff responded by disclosing his social anxiety disorder and mentioning the ADA. The employer responded by putting the plaintiff in an isolated workstation, but the plaintiff viewed that only as a temporary fix. The plaintiff then communicated further with the employer, which led to defendant requesting from the plaintiff a medical release and a current assessment of his condition by psychologists. The plaintiff did indeed furnish those letters, which said: that he had resumed treatment; working in the office was detrimental to his progress; and the best accommodation would be returning to the work from home arrangement. Two days after receiving that letter, the employer terminated the plaintiff ostensibly for not following policy in the month of July (including: failing to call a broker about a driver needing help in finding a pickup location; and not calling a broker about a driver reporting that he was waiting for part of a load that was not yet available and that the driver had concerns about being over the weight limit). The plaintiff then brought suit alleging violations of Ohio State law and the ADA. Of course, as is routine, the defense moved for summary judgment.

II
Issues

1. Is social anxiety disorder a disability?

2. Was plaintiff qualified to do his job?

3. Would a reasonable jury find that the defendant retaliated against the plaintiff for impermissible reasons rather than for lack of compliance with policy?

III
Court’s Reasoning

1. Social anxiety disorder is a bona fide disability, which is explained by the National Institute of Mental Health on their website. For that matter, any watcher of TV shows would know that certain medications treat social anxiety disorders, Paxil comes to mind. Further, the plaintiff had been treated for the condition for a decade prior to filing his complaint, was on medication, and medical professionals had indicated that he would have challenges in an office setting.

2. Plaintiff worked for defendant for more than five years during which he received positive evaluation from four different supervisors.

3. Other employees who violated policy were not fired and were treated differently from the plaintiff. The employer also skipped steps in warning the plaintiff that it afforded to others. Therefore, a jury could find that the employer terminated him on a fast track when it became annoyed with his asserting rights under the ADA. Other indicators of retaliation included negative email comments from his employer regarding the plaintiff’s work as a DJ. It also included disdain by employer’s legal counsel shown in their reply brief in which: they refer to plaintiff’s long history of policy mistakes despite his evaluation being good up until January of the year he was fired; referred to plaintiff’s “social anxiety”, specifically putting the word in quotes no less than 13 times; arguing that he was not qualified for his job despite a record to the contrary; and looking for contradiction in plaintiff’s deposition by attacking the plaintiff’s statement “that without medication he would be like a turtle without a shell”(a metaphor that the court found perfectly accurate).

IV
Takeaways

1. Considering the amendments to the ADA, it is extremely difficult to argue that a person is not a person with a disability. Further, if you are going to make that argument, be careful about how it is done. It shouldn’t be done in a demeaning way, such as putting the alleged disability in quotes. Also, it should only be done in the rare situation when the allegations reveal that it might actually be possible for a person not to have a disability under the ADA based upon the facts they allege. Such a situation will now only come up rarely. In those cases, of course, such a defense should be pursued. However, in other cases pursuing such a defense may create problems, such as it did in this case.

2. It is also worthwhile to note that the court held that the a jury could find that plaintiff had a record of a disability. It also said that whether a plaintiff is regarded as having a disability was also a jury question.

3. Don’t terminate the interactive process prematurely. Here, the plaintiff had furnished the appropriate medical documentation backing up what the employer already knew. Yet, the employer elected to terminate rather than go back to an arrangement that had proved successful in the past. In keeping with the theme of this blog entry, instead of going all in, the employer should have considered folding when they received the documentation from the plaintiff’s medical providers.

4. Treat employees alike. Here, there was evidence to suggest that the plaintiff was singled out for adverse treatment on the basis of his disability since other employees who have made mistakes were not treated in the same way. For example, they did not have their termination fast tracked for making the same or similar mistakes.

5. Given the proper facts, working from home as a reasonable accommodation should not be dismissed out of hand by the employer.

6. This case has broader impact than just social anxiety disorder. It would go for any disability that makes interacting with others difficult, such as autism.

Normally, when I am putting together a blog entry, what I do is that I find an interesting case that comes out during the week and then: analyze that case; discuss the court’s reasoning and my take on it; and then offer takeaways. This week I did see a case that met that criteria (it is § III below, which is done in that format). However, that case very much relates back to a previous blog entry of mine. Accordingly, I wasn’t entirely comfortable making it a separate blog entry by itself. I did think it would be useful to make it a part of a blog entry with other cases. Also, this week was the perfect time to blog on several cases at once because I found cases, including the one mentioned above, that update three different blog entries of mine. The three different cases include the following: 1) the latest in Argenyi v. Creighton University; 2) whether when you have a person covered by IDEA, is the exhaustion requirement jurisdictional or is it an affirmative defense?; and 3) when might the four year federal statute of limitations apply instead of the state’s personal injury statute of limitations. I will place a discussion of each of these in its own category and so the reader is free to just focus on that particular category or all of them depending on his or her preference.

I
Just Because a Defendant Is Successful in Warding off an Intentional Discrimination Claim, that Does Not Mean that the Defendant Isn’t on the Hook for Substantial Dollars

On May 7, 2014, the District Court of Nebraska in an opinion and order from Chief Judge Laurie Camp in the case of Argenyi v. Creighton University, which is also the subject of one of my most popular blog entries , the court awarded Argenyi’s attorneys $449,009 in attorneys fees as well as $18,998.42 in nontaxable costs, and $10,365 in expert fees. This case was tried to a jury and after more than two days of jury deliberation in deadlock, the lawyers for both sides agree to accept the verdict by a majority of eight jurors. That majority returned a verdict in favor of the plaintiff with respect to the university discriminating against the plaintiff based on a disability by failing to provide him with necessary auxiliary aids and services during his first two years of medical school and that it would not have been an undue burden for the University to provide such as auxiliary aids and services. However, the majority of eight jurors also decided that the university had not intentionally discriminated against the plaintiff and therefore awarded him no damages. That decision led to a request from the plaintiff for declaratory, equitable, and injunctive relief. The court acted on that request by awarding the plaintiff declaratory, equitable, and injunctive relief. In particular: beginning in the fall semester of 2014 and continuing until his graduation or the point in time when he discontinues enrollment as medical student, university had to provide the plaintiff with auxiliary aids and services for his effective communication, including CART in the classroom & supported oral interpreters in small group and clinical settings. Since the plaintiff was able to get this kind of relief, the court found that he had prevailed and was entitled to attorneys fees and costs. The rest of the opinion talks about why the court felt that the petition for fees have to be reduced in the manner that it did. In the end, the court settled on the figures noted above.

Thoughts:

1) In this case, the University was successful in fending off an intentional discrimination claim. However, the University wind up being on the hook for a considerable amount of money anyway, $478,363.42 to be precise.

2) With respect to determining the hourly rate for an attorney, it is going to be the prevailing market rate in the relevant community that is the key and not the community where the attorney is from. Considering that a person’s practice can be national, this is something to keep in mind.

3) The lesson here is that it isn’t unusual for discrimination, particularly at the graduate school level, to not be able to satisfy the deliberate indifference standard necessary for getting damages under title II of the ADA or § 504 the Rehabilitation Act, but nevertheless there is a strong case for discrimination short of that. In those situations, this case stands for the proposition that such discrimination can result in substantial costs to the defendant even if it does not take the form of damages per se to the plaintiff. Also, keep in mind, that the defense certainly paid an equivalent sum of money to its own attorneys for the defense of the case than what it wound up paying to the plaintiff’s attorneys in fees and costs.

II
The Four-Year Federal Statute of Limitations

One of my more popular blog entries concerns what is the applicable statute of limitations for ADA claims. In that blog entry, I posited that it may be possible under certain circumstances that the four-year federal statute of limitations might apply. Until May 7, 2014, that was nothing more than a theory. Thanks to an unpublished decision from the 11th Circuit, Horsley v. The University of Alabama, 2014 WL 1797019 (11th Cir. May 7, 2014), it is still a theory but one that is in play if it is set up right. In this case, a pro se plaintiff filed suit against the University of Alabama, the Board of Trustees, and several faculty members alleging violations of title II of the ADA, § 504 the Rehabilitation Act, FERPA, and also state law claims as well. Suit was filed after the state’s applicable statute of limitations had run. Here is the key part of the decision for our purposes:

“While Horsley argued in subsequent pleadings that her claim was not cognizable before the enactment of the ADA amendments act of 2008 and that she and the defendants had a contract under seal, our case law makes clear that dismissal under rule 12(b)(6) on statute of limitations grounds depends only on the face of the complaint. [Citations omitted] Thus, the District Court properly limited consideration to the face of Horsley’s complaint and ignored any argument in Horsley’s subsequent pleadings.”

What this means is that given a situation where a claim is now in play thanks to the amendments act that would not have been in play before the amendments act, the four-year federal statute of limitations is very much a possibility providing it is all set up in the complaint. What might be such a situation? For example, it is entirely possible that an institution of higher education could assume that a student with a particular disability would have a particular disability fully mitigated by medication, and therefore, they would treat that student as if they were a person without a disability. The result of that approach being that the University then takes adverse action against that student when the disability manifests itself, such as when the student misses classes, exams, etc. as a result of dealing with that disability. This case suggests that if in the complaint the plaintiff were to lay out what his or her disability is, the mitigating measures involved, and how the person now has a claim and before didn’t, the federal for year statute of limitations might apply.

III
Is the IDEA Exhaustion Requirement Jurisdictional or an Affirmative Defense?

In a previous blog entry, I talked about how where a person with a service dog that was covered under IDEA To exhaust the administrative remedies in that law before they can bring a cause of action alleging violations of title II of the ADA or § 504 the Rehabilitation Act. That is absolutely true, but the question remains is that administrative exhaustion requirement jurisdictional or is it up to the defense to allege it as an affirmative defense? It makes all the difference in the world because if it is jurisdictional, the defense can get it thrown out on a motion to dismiss. Whereas, if it is an affirmative defense, and before the case will be thrown out, substantial fact-finding, with considerable expenditure and attorneys fees by the defense, would have to occur first.

A
Facts:

In Everett H. Ex rel. Havey v. Dry Creek Joint Elementary School District, _F. Supp. 2d_, 2014 WL 1779340 (E.D. Cal. March 26, 2014), a student who had delayed myelination and a diagnosis on the autism spectrum disorder resulting in motor and neurological delays such as language impairment, attended the Dry Creek elementary school district for approximately 5 years. During that period there were disagreements about the special education program provided by the district to the student. According to the plaintiffs, the school district made various errors with respect to the provision of a free appropriate public education, including in the IEP process, the student’s disability designation placement, and in providing education to the student in the least restrictive environment. Further, the plaintiff alleged that once they began advocating for the student’s rights, the school district engaged in a series of retaliatory activity. The procedural aspects of the case are rather complicated but in the end no final administrative due process hearing decision was ever issued on any of the alleged education shortcomings raised by the plaintiffs.

B
Court’s Reasoning:

In deciding that the IDEA exhaustion requirement is not jurisdictional, but rather an affirmative defense, the court reasoned as follows:

1) Citing to a Ninth Circuit decision, nothing in the exhaustion provisions of the IDEA statute mentioned the jurisdiction of federal courts. Further, nothing in the statute mentioning the jurisdiction of federal courts relevant to a matter such as this required exhaustion either. Accordingly, in the Ninth Circuit, which is also the rule in the 7th and 11th circuits, IDEA’s exhaustion requirement is a claims processing provision that IDEA defendants may offer as an affirmative defense. As such, any assessment as to whether administrative remedies were properly exhausted is better addressed through a fact specific assessment of the affirmative defense rather than through an inquiry about whether the court had the power to decide the case at all.

2) In addition to due process hearings, IDEA matters can also be resolved through a more informal and less adversarial complaint resolution proceeding with a state education agency. In this particular situation, plaintiffs alleged in their complaint that they filed numerous complaint resolution proceedings against the California Department of Education but the California Department of Education refused to investigate those claims thereby making it difficult if not impossible for the plaintiff to exhaust administrative remedies. Further, the plaintiff alleged that they filed additional complaints with the office of civil rights and the US Department of Justice regarding their complaint against the school district and the California Department of Education. Given these facts and case law saying that a person does not have to complete the administrative exhaustion process where such efforts would be futile, the court found that dismissal of the complaint at this point would not be proper.

3) The exhaustion requirement doesn’t apply where matters are outside of individualized free appropriate public education issues. In this particular case, the complaint revealed a challenge to the overall policies and practices of the California Department of Education and not simply those related only to a particular student.

4) Exhaustion is also not required where an entity act contrary to federal law. In this case, the plaintiffs alleged in their complaint that the California Department of Education refused to investigate itself, contrary to the requirements of federal law.

5) IDEA exhaustion requirements do not apply to plaintiffs claiming that school officials inflicted physical and emotional abuse on their child.

C
Takeaways:

1. It is absolutely true that to proceed under § 504 and title II of the ADA where a person is also in the individual disabilities education act process, exhaustion of the IDEA process is a requirement. However, this particular case means that such a requirement is not jurisdictional. Rather, it is an affirmative defense to be raised. Therefore, since it is an affirmative defense, that means if the defense does not raise it in their answer, the affirmative defense is waived.

2. There may be multiple situations where administrative remedies were not exhausted but the facts are such that the non-exhaustion of the administrative remedies will be forgiven by the court.

Jon Hyman’s blog is in my blogroll and I want to thank him for calling to my attention the case of Sjostrand v. The Ohio State University. Jon, as always, did a great job in his blog entry, but I want to take a different approach. What I want to discuss is how this case may be a game changer with respect to plaintiff advocacy, and also how preventive law can come from anywhere. As is typical, I have several different sections of the blog entry and the reader is encouraged to focus on any and/or all of those sections. The particular section for this blog entry are: facts, game changer, preventive law tips, and takeaways.

I
Facts

There is some debate about the facts in the opinion, which also had a dissenting opinion with it, but some of the facts are clear. The plaintiff graduated magna come from Ohio State University in only 2 1/2 years. She then applied to the PhD program in school psychology where her grade point average, 3.87, was tied for highest in the applicant pool and her GRE scores, a combined 1110, exceeded the school’s requirements. She also suffers from Crohn’s disease and according to the plaintiff, her interviews with two of the program’s professors focused more on her ailment than they did anything else. Eventually, of the seven applicants interviewed by the school, the only applicant rejected was the plaintiff. She then sued alleging violations of title II of the ADA and the Rehabilitation Act. There is some debate in the opinion as to just how much time was spent in the actual interview discussing her disease. Also, there is some debate in the opinion about who brought it up first, the plaintiff through her application materials or the people doing the interviews. The lower court found for The Ohio State University and the plaintiff appealed.

II
Game Changer

The Sixth Circuit is on a bit of a roll with respect to pro ADA plaintiff decisions, this one and EEOC v. Ford,. This decision could be a game changer for the following reasons:

1. The parties assumed that since the case looked more like the typical title I claim than it did a title II claim, that the title I burden shifting scheme for proving discrimination applied. One wonders whether such an assumption had to be made by the parties.

2. The court stated that for the plaintiff to prevail under the Rehabilitation Act, that she must make the same case as for her ADA claim except that she must show that she was denied admission solely because of her disability rather than by reason of it (the actual language of the court). What this means is that the Sixth Circuit is clearly saying that “solely by reason,” and “by reason of,” are two different causation standards. If so, and it may not be so, this is momentous. For starters, it will have a huge impact on the claim that plaintiffs make. What it means if it is upheld is that with respect to a title II claim, there would be little reason for a plaintiff suing under title II of the ADA to even bother with suing under the Rehabilitation Act, especially since the remedies are the same anyway. That said, since the Rehabilitation Act allows for damages providing you can show deliberate indifference, it does make sense to allege a Rehabilitation Act claim with respect to a title III entity that takes federal funds (such as a private place of higher education). That said, what this case shows is that it is entirely possible for a plaintiff to be faced with two different causation standards at the same time even though the two different claims involve the same facts. For example, if a private university was involved here rather than the Ohio State University, the plaintiff would be suing under title III of the ADA and then trying to get damages under the Rehabilitation Act through a showing of deliberate indifference. It is quite possible under the discussion contained in this blog entry that mixed motive is available in a title III case in addition to a title I case because both Titles involve status discrimination and both Titles contain “on the basis,” language.

3. A close reading of the opinion really reveals that what is really being argued about between the majority opinion and the dissent is whether mixed motive applies to a title II case. Assuming that it does, which the majority does assume, then what you have here, if both of the opinions of the majority and dissent are taken at face value, is a situation where it is quite possible that the plaintiff will prevail on her ADA claim (plenty of evidence to suggest improper motive), but will not prevail on her Rehabilitation Act claim (evidence also exists to suggest that the disability was not the sole reason). Whether this particular plaintiff runs into the situation where she prevails under title II of the ADA but does not under the Rehabilitation Act, doesn’t really matter because the remedies for title II and the Rehabilitation Act claim are the same. However, as mentioned in the prior paragraph, this takes on different significance if a private university that took federal funds was involved.

III
Preventive Law Tips Can Come from Anywhere

As the court mentioned, this is not a typical title II situation. It really does talk more like a title I situation where preemployment medical inquiries were made. In the title I situation, employment involving an entity of 15 or more employees, there is an elaborate scheme dealing with medical inquiries before the offer, during the conditional job offer process, and postemployment. However, this was not an employment situation. What is an entity to do here? Also, especially in higher education when it comes to trying to get admitted into programs, it is not unusual for a person with a disability to bring the disability out front and center as a way of saying that he or she would add diversity and a unique perspective to the program (I certainly did that with respect to my application for my first law degree and probably my second as well). As a matter of preventive law, to my mind, it makes sense to take the title I principles dealing with preemployment medical inquiries and apply them out with respect to the admissions process, whether that be in the title III or title II contexts. Therefore, the only issue should be whether the person can meet the essential eligibility requirements of the program with or without reasonable modifications/accommodations. That does mean that the program very much want to have in place just what are the essential eligibility requirements for the program at issue.
If the applicant during the course of the interview brings it up, there are two possible approaches. First, ignore it. Second, a bit riskier, but within legal bounds, and as an alternative approach, you might ask something along the lines of, “any reason you cannot perform the essential eligibility requirements of the program with or without reasonable modifications/accommodations?” Again, such an approach presumes that you have in place just what are the essential eligibility requirements of the program. While title I does prohibits preemployment medical inquiries, it does not prohibit asking whether a person can do the essential function of a particular job with or without reasonable accommodations.

IV
Takeaways

1. It is possible that the causation standard for the rehabilitation act law and for title II of the ADA are different. If so, as discussed above, that has broad ramifications. It is also quite possible, if not probable, again as discussed above, that the causation standards for violation of title I and title III of the ADA are different than the causation standard for the Rehabilitation Act. Again, a conclusion with broad ramifications.

2. While admissions to higher education programs are not govern by title I of the ADA, it makes a lot of sense to take the preemployment medical inquiry, conditional job offer, and postemployment medical inquiry system and apply it over to title II and title III situations as a matter of practicing preventive law.

This particular blog entry will look at possible defenses that may be raised in a title II case. As is usual, there are different categories. Here we have case of the week, the court’s response to the arguments raised by the defendants in the case, and takeaways. Feel free to focus on any and/or all of the sections.
I
The Case of the Week

As discussed in a previous blog entry, principles of sovereign immunity also apply to other areas as well. For example, it could be a situation where an entity does not defend based on sovereign immunity but says that the law itself is unconstitutional because it is not an appropriate enforcement of the equal protection clause. That was partly the case in McBay v. City of Decatur, Alabama, 2014 WL 1513344 (N.D. April 11, 2014). In that case, three plaintiffs, all residents of the City of Decatur of Alabama (I know of at least two other Decaturs; I live in Decatur, Georgia and I am also aware of a Decatur, Illinois. I am fairly certain that there are others as well), sued the City of Decatur Alabama for violations of the Americans with Disabilities Act and the Rehabilitation Act of 1973. In particular, they claimed that Point Mallard was not accessible to them. They sought a declaratory judgment, attorney fees, injunctive relief, and costs. While the City of Decatur Alabama did not defend on the grounds of sovereign immunity (it couldn’t because cities are not sovereigns) ( see Board of Trustees of University of Alabama v. Garrett 531 U.S. 356, 369 (2001)), it did make various claims, including: 1) Iqbal/Twombly; 2) lack of standing to challenge identified violation; 3) failure to demonstrate that any particular City of Decatur of Alabama department, agency, entity or other instrumentality receive federal funding; 4) title II of the ADA exceeds congressional power; and 5) no private cause of action exists for enforcing title II regulations, especially with respect to transition plans and self-evaluation plans.

II
The Northern District of Alabama Discussion of the City of Decatur of Alabama Arguments

Iqbal/Twombly

1. In their complaint, the plaintiff’s stated that they visited Point Mallard and were denied full, safe and equal access as a result of ADA violations and that they continue to and desired and intended to visit the premises again but could not due to the existing barriers. With respect to those barriers, they listed 30 examples of alleged deficiencies in the facilities. They also alleged that the City of Decatur of Alabama failed to adequately meet its ADA obligations by not having a self-evaluation plan and failing to develop a transition plan for modification of existing facilities. They also did not fully implement all structural modifications. The result of which is the City of Decatur Alabama denied the plaintiff’s full, safe and equal access to their programs, services and activities that were otherwise available to those without disabilities. Finally, they mention that they were subject to discrimination with respect to accessing the program, services and facilities and that they desired to utilize the City of Decatur of Alabama programs and services as well as return to Point Mallard. The City of Decatur Alabama claimed that these allegations weren’t good enough because they didn’t explicitly lay out that the barriers caused the plaintiff’s harm. The court was having none of it since the injury to the plaintiffs was obvious or at least easily inferred as a result of the deficiencies listed in the plaintiffs complaint.

Lack of Standing to Challenge Unidentified Violations

The plaintiffs also allege in their complaint that there were other current barriers to access and violations of the ADA in Decatur not specifically identified in the complaint and that they were not required to engage in a futile gesture according to federal regulations. Therefore, the complaint said that only once a full inspection is performed by plaintiffs or plaintiffs representative could all violations in barrier access be identified. The defense argued that no standing existed with respect to future unidentified violations. The court agreed for the following reasons:

1. The court relied on unpublished decision of the 11th Circuit, Norkunas v. Seahorse NB, LLC,444 Fed.Appx. 412, 2011 WL 5041705 (11th Cir. October 25, 2011), which held that plaintiff did not have standing to raise violations of the ADA and rehabilitation act for violations they had not yet experienced.

Failure to Properly Allege That Particular City Departments, Agencies, Entities or Other Instrumentalities of the City of Decatur of Alabama Received Federal Funding

1. § 504 of the Rehabilitation Act prohibits discrimination against an otherwise qualified individual with a disability from being excluded from the participation in, denied the benefits of, or being subject to discrimination solely by reason of his or her disability under any program or activity receiving federal financial assistance.

2. The Rehabilitation Act statute defines program or activity as including all of the operations of a department, agency, special purpose district or other instrumentality of the state or of a local government or the entity of such state or local government that distributes such assistance in each such department or agency to with the assistance is extended.

3. Citing to a 1981 case from the Fifth Circuit (Brown v. Sibley, 650 F.2d 760 (5th Cir. 1981), the northern district of Alabama said that a private plaintiff in a § 504 case has to show that the program or activity with which he or she was involved, or from which he or she was excluded, itself received or was directly benefit by federal financial assistance. In a footnote, the northern district of Alabama noted that the 11th circuit as recently as 2011 said that they intended to follow Brown.

4. Plaintiff never specified any particular city program or activity that received federal funds.

5. Plaintiff never stated that any such program or activity actually caused the Rehabilitation Act violations complained of.

6. Since there was not even a minimal allegation that the plaintiffs were actually discriminatory affected by a specific program or activity receiving federal financial assistance, the plaintiff’s claim for violations of the Rehabilitation Act had to be thrown out.

Title II of the ADA exceeds congressional Power

1. While the question of whether Congress has the power to abrogate sovereign immunity is a different question from whether substantive provisions of the ADA are a valid exercise of congressional power, the analysis is essentially the same (the court refers to sovereign immunity cases as being instructive).

2. To figure out whether a law has gone too far with respect to § 5 of the equal protection clause, you have to consider: the constitutional right that Congress sought to enforce when it enacted the ADA; whether a history of unconstitutional discrimination existed to support the Congressional determination that prophylactic legislation was necessary; and whether title II is an appropriate response to that history and pattern of unequal treatment.

3. The city of Decatur of Alabama did not elect to present any substantive argument with respect to whether a history of unconstitutional discrimination existed to support Congressional determination that prophylactic legislation was necessary (I find that an interesting choice).

4. The 11th circuit in its decisions has not narrowed the scope of valid title II claim solely to those implicating a fundamental right per Tennessee v. Lane, 541 U.S. 509 (2004).

5. Entertainment and recreational facilities survive a congruence and proportionality challenge even if the use of such facilities by persons with disabilities would be subject to rational basis review because:

A) it is simply illogical that Congress would insist that places of public accommodations (private entities and which include recreational and entertainment facilities), be accessible, but they would not be worried about whether the same kinds of facilities owned by governmental entities would need to be accessible;

B) such a holding would contradict the stated purpose of the ADA, which is one of creating a clear and comprehensive national mandate to eliminate discrimination against persons with disabilities and to integrate them into an economic and social mainstream of American life;

C) title II of the ADA contains within it a great flexibility for determining the extent of reasonable modifications required by the implementing regulations and therefore, a title II entity is not unduly burdened by the remedial requirements. The court is probably referring here to the fact that with respect to title II, it is not necessary for each facility to be accessible, rather it is program accessibility that is the key.

D) congressional investigations into the cost of title II compliance found that retrofitting older facilities did not have to be an expensive proposition and that building new facilities to be accessible was not a burden either.

Private Right of Action

1. A private plaintiff cannot enforce the regulation through a private cause of action if the regulation imposes an obligation or prohibition that is not imposed generally by the controlling statute. The opposite is true where the regulation simply effectuates the express mandate to the controlling statute. Another way to look at it, which is the way the 11th circuit looks at it, is to say that no private right of action exists to enforce a statute’s implementing regulations unless Congress has clearly indicated, expressly or impliedly, that a private right of action exists.

2. The 11th circuit (American Association of People with Disabilities v. Harris, 605 F.3d 1124 (11th circuit 2010), has also said that regulations interpret and define the scope of the ADA, rather than provide any sort of private right of action already present within the ADA. Keep in mind, that this particular case involved the 11th circuit saying that voting booths were not subject to the ADA; a position some courts may disagree with. See this blog entry.

3. It is one thing to say, for example, that failing to having accessible programs and sidewalks contemplate injuries and remedies of the ADA, but it is another to say that a transition plan in and of itself similarly hindered the disabled.

4. In other words, an important distinction exists between claims seeking to enforce self-evaluation and transition plans v. a claim asserting a direct violation of title II.

5. Plaintiff’s also alleged that the city’s failure to complete required for changes needed for equal programs, services, or activity access violated the ADA. Accordingly, while the lack of a self-evaluation and transition plan doesn’t directly hinder the plaintiff, the defendant’s failure to make reasonable modifications does directly harm the plaintiff in a manner anticipated by title II of the ADA. Accordingly, title II does contemplate a public entity removing architectural barriers that prevent disabled individuals in securing the benefits of public services. Therefore, an enforceable private right right of action does exist with respect to the structural barrier allegations.

6. While the plaintiff cannot have a private right of action with respect to self-evaluation and transition plans regulations, nevertheless those regulations can be cited as evidence of overall ADA noncompliance

III

Takeaways:

1. Even though we have Iqbal/Twombly, courts will exercise some common sense with respect to figuring out whether sufficient allegations have been made.

2. At least in the northern district of Alabama, and most probably the 11th circuit as well, a plaintiff does not have standing to allege future violations of the ADA. However, if future violations of the ADA do occur or are found out during the course of discovery, the complaint can always be amended.

3. If you are alleging a § 504 of the Rehabilitation Act claim in the title II context, in the 11th circuit, you’re going have to show that the specific program or activity from which the plaintiff suffered discrimination received federal funds or was directly benefited by federal financial assistance. [It is interesting that the 1991 amendments to the Civil Rights Act were not mentioned here].

4. Title II of the ADA reaches past fundamental rights (jurisdictions may differ on this). From my read of ADA cases, this is a view that will probably withstand the test of time. That said, I could foresee a court holding that while title II of the ADA reaches past fundamental rights, that is not the same as saying that sovereign immunity would never apply in those instances.

5. On the plaintiff’s side, if a governmental entity is saying that the ADA goes too far, look to see whether the ADA addresses that situation in title III of the ADA, as a way of saying that it couldn’t possibly go too far if Congress was concerned about that same issue with respect to places of public accommodation.

6. If a governmental entity has violated title II/Rehabilitation Act a regulations, the question has to be asked whether the conduct being complained of is a direct violation of title II. In other words, do the regulations directly enforce the ADA or are they just interpreting and defining the scope of the ADA? Direct enforcement gives you a private cause of action, but regulations defining the scope and interpreting the ADA do not. I don’t find the “hinder the disabled,” language very helpful since such a standard is extremely subjective.

7. While there is no private cause of action with respect to self-evaluation and transition plans, the fact that it has not been done can be cited as evidence of overall ADA noncompliance with respect to matters for which there is a private right of action.

8. If you are a title II entity arguing that title II goes too far, what is the harm in arguing whether a history of unconstitutional discrimination existed?

When the ADA first was enacted back in 1990 and went into effect in 1992, the Internet was just getting started. Back then, it was pretty obvious to everyone that an essential function of the job must mean showing up for it. Since then, technology has evolved quite a bit so now many people can do their work from just about anywhere. Therefore, whether attendance is an essential function of the job is now a case-by-case decision. How does one go about figuring out whether attendance is an essential function of the job? In my opinion, the leading case on this issue is the case of Samper v. Providence St. Vincent Medical Center, 675 F.3d 1233 (9th Cir. 2012). In this case, a neonatal nurse had fibromyalgia (a rather hard condition for physicians and patients to get a handle on and one that can limit effective sleep and which has as one of its components chronic pain/nerve pain throughout the body). As a result of her fibromyalgia and how it affected her, Samper was unable to regularly come to work in accordance with the employer’s attendance policy. Eventually, she was discharged for several reasons, including having seven absences in the 12 month period as well as a general problems with attendance. She then filed suit alleging violation of the ADA.

In affirming summary judgment for the employer, the Ninth Circuit held that regular attendance is an essential function of the job where the job requires attendance. The court goes on to give some great preventive law tips as to how you could know when that job requires attendance. A job requires attendance according to Samper, where the employee must work as part of the team, the job requires face-to-face interaction with clients and other employees, or the job requires the employee to work with items and equipment that are on site. With respect to Samper, the Ninth Circuit said that all these requirements were satisfied considering the nature of being a neonatal nurse and the stakes involved for the hospital’s patients when the hospital is not staffed adequately.

A recent case that follows Samper is Mecca v. Florida Health Services Center, Inc., 2014 WL 408431 (M.D. Fla. February 3, 2014). In this case, the plaintiff was employed as a peripherally inserted central catheter nurse. Such a nurse inserts a peripherally inserted central catheter line into patients, which is an intravenous catheter that is typically inserted through a large vein generally in a patient’s upper arm and then threaded into the patient until it rests in the body directly next to the patient’s heart. It is a job that requires adherence to proper procedures and strict sterile techniques in order to avoid high risks of infection. Mecca’s disability involved panic attacks and anxiety. The accommodation he sought was in the form of leave. With respect to his particular symptoms, they included nervousness, anxiety, incontinence, and sleeplessness, among other things. After several consecutive weeks on FMLA leave, he brought a medical note from the doctor releasing him to work three days a week for 8 to 12 hours a day. However, on his first day at work back from leave, he did not respond to any request for consults, which are requests to assess a patient to insert a line. He also left for the day prior to the end of his shift. After numerous communications with the human resources department indicating that he would be subject to discipline, including termination, for failing to respond to consults, he submitted his resignation. He subsequently applied for Social Security disability benefits claiming he was unable to work as of May 8, 2010 and he was successful in that application.

In finding for the hospital, the Middle District of Florida found Samper persuasive. It also found that the role of the nurse that did what he did was very similar to one of a neonatal nurse. Accordingly, the court found that attendance at work was an essential job function of his job. The court also found that the plaintiff by filing for Social Security Disability Income was judicially estopped from pursuing his ADA case since he did not give an explanation sufficient to warrant a reasonable juror to conclude that he could perform the essential functions of the job with or without reasonable accommodation notwithstanding the representations made in the application for Social Security Disability Income.

Takeaways:

1. When trying to figure out whether an essential function of the job includes attendance, the first step should be to look at the Samper criteria.

2. Keep in mind that even a job that satisfies all these criteria upon initial review may not be a job where attendance is an essential function of the job. For example, the Fifth Circuit in Carmona v. Southwest Airlines Company, 604 F.3d 848 (5th Cir. 2010), held that a flight attendant for Southwest Airlines may not have been in a job where attendance was an essential function in light of the airlines extremely lenient attendance policy, which thereby created a question of fact for the jury to decide.

3. It would behoove the employer to have data to back up its contention with actual practice that attendance is an essential element of the job regardless of whether the particular job at issue meets the Samper criteria.

4. On the plaintiff’s side, if the plaintiff is taking on an ADA case, the plaintiff’s attorney needs to explain the risk of filing for Social Security Disability Income should the client be suggesting that that is something he or she wants to do. If the attorney is an SSDI attorney, that attorneys should make it a part of a routine part of his or her practice to explain how the filing of an SSDI claim may compromise a future ADA claim. Failure on the part of the plaintiff’s attorney or the SSDI attorney to make that explanation may lead to a legal malpractice claim. For a blog entry of mine discussing judicial estoppel, take a look at this particular blog entry. With respect to legal malpractice, I wrote an article on it for the DuPage County Bar Association Journal, The Brief. I expand on that article on pages 142-143 of my book. On the defense side, whenever a person sues for discrimination on the basis of disability in employment, it needs to be a discovery item as to whether that person filed an SSDI claim.

5. Is attendance an essential function of the job for a lawyer, especially if not a litigator. I just read an interesting article that suggests that it is not, and firms insisting that it is, are doing so for reasons other than objective facts, here.

I want to wish all those celebrating Passover, which started yesterday, and Easter, which is Sunday, a happy holiday.

This blog entry is divided into separate categories, but unlike my usual system, the categories are little bit different. Here we have: introductory comments, the case that is the subject of this blog entry (Burrage v. United States), whether a certain aspect of the court’s reasoning in that case (I call it reason 9), will become controlling as it might apply to ADA matters, and takeaways.

I
Introductory Comments

One of my most popular blog entries every day involves the United States Supreme Court decision in University of Texas Southwestern Medical Center v. Nasser where the United States Supreme Court in a 5-4 ruling, with Justice Kennedy being the swing vote, held that mixed motive is dead with respect to retaliation claims under title VII of the Civil Rights Act. As mentioned in that blog entry, the reasoning in that opinion is such that this decision most certainly means mixed motive is dead with respect to retaliation claims under the ADA; thereby, giving a huge victory to ADA defense lawyers. On the other hand, the reasoning of the majority is such, that mixed motive is now in play under title I of the ADA; thereby, giving a huge victory to ADA plaintiff employment lawyers. In a second blog entry, I discussed a case out of the District Court in Oregon holding that mixed motive is in play for employment discrimination claims under the ADA.

As anybody knows who has taken an introduction to law class, lower courts are bound by decisions of higher courts. Thus, if Nassar was the last word on mixed motive, there is, as I mentioned in my blog entries above, little doubt that mixed motive would apply to title I claims. However, what if the United States Supreme Court sends confusing messages, then what are the lower courts to do?

It is curious as to how I found out about the particular case that is the subject of this blog entry. My office is not far from the Emory Law school and I have had the privilege of benching various moot court teams as they prepare for their competitions. This year, I benched the criminal procedure team as they prepared for their competition. Their problem set was based upon two cases that were before the United States Supreme Court, which decisions came down before the regional competitions occurred.

II
The Case That Is the Subject of This Blog Entry (Burrage v. United States)

One of the cases that the problem set was based on was the case of Burrage v. United States.

Burrage is a criminal procedure case and therefore, would seem to have nothing to do with the ADA. However, that case is a causation case and that is where it becomes relevant for our purposes. In this case, a longtime drug user died following an extended binge that included using heroin purchased from Burrage. The purchase of the heroin from the defendant was a contributing cause to Burrage’s death but could not be said to be a but for cause. The controlled substances act imposes a 20 year mandatory minimum sentence on a defendant who unlawfully distributes a schedule one or two drug when death or serious bodily injury results from the use of such substance. Thus, the issue the U.S. Supreme Court was faced with was whether this statutory provision has any causation element to it. If so, what is that causation standard? Assuming a causation standard, the U.S. Supreme Court could have gone any of three ways. First, they could have applied a contributing factor test, which what was the grant of cert seemed to assume. Second, they could have applied a substantial factor test along the lines of what is commonly seen in tort law. Finally, they could have applied a but for causation test.

Scalia in coming to the conclusion that but for causation was the way to go and therefore reversing the Eighth Circuit’s imposition of the mandatory sentence reasoned as follows:

1. Because the enhancement increases the minimum and maximum sentences for a defendant, whether “death resulted,” is an element that has to be submitted to the jury and found beyond a reasonable doubt. Accordingly, the statutory phrase “resulting from,” must mean “death caused by.”

2. When the law speaks of causation, it speaks of both actual cause and legal cause.

3. Citing to the New Shorter Oxford English dictionary, Scalia says a fair interpretation of “results from,” is but for causation.

4. The Model Penal Code also says that conduct is the cause of a result if it is an antecedent but for which the result in question would not have occurred.

5. You can still use but for causation even where there is multiple causes so long as the other causes alone would not have produced a different result.

6. Scalia analogizes it to a baseball game where a team wins one to nothing and he goes on to say that every person competent in the English language and familiar with baseball would agree that the victory resulted from the home run and that it is besides the point that the victory also resulted from a host of other necessary causes, such as skillful pitching and the like. Therefore, it makes little sense to say that an event resulted from the outcome of some earlier action if the action merely played a nonessential contributing role in producing the event.

7. He cites to Nassar when he notes that they held that retaliation requires but for causation.

8. Scalia rejects the argument that contributing factor, which he equates with substantial factor, should be the rule because “results from,” requires that to result from use of the unlawfully distribute drug, not from a combination of factors to which drug use merely contributed. If Congress did not intend but for causation they could have specified as much and they didn’t. He also goes on to note that contributing factor, or substantial factor, is not a test that is easily applied.

What I find interesting about the court’s reasoning with respect to the rejection of contributing factor/substantial factor is that the court seems to assume that the two tests are the same. It doesn’t have to be that way. Contributing factor could conceivably refer to any factor while substantial factor could require a higher standard along the lines of tort law. In fact, Scalia mentions that very point in his opinion, when he says- citing to Prosser and Keeton’s Law of Torts- that even in tort law excepting the situation where two causes are independently effective-, no cases has been found where the act was a substantial factor when the event would have occurred without it. This isn’t quite the way I learned it back in law school and one wonders whether a scholarly analysis of tort law cases applying the substantial factor test would reach the conclusion that substantial factor and but for causation are really the same test.

9. Reasoning numbers 1-8 could be dealt with easily enough. However, Scalia also mentions in his opinion while discussing Nassar that but for causation is not limited to statutes using the term, “because of.” For example, the Supreme Court has held that “based on,” indicated but for causal relationship. They have also held that “by reason of,” requires at least a showing of but for causation.

III
More on Reasoning 9

If reason 9 become controlling, it could have a huge impact on ADA matters. First, both title I and title III of the ADA contain on the basis language. Second, title II of the ADA contains by reason of language. Are there arguments against reason 9 becoming controlling with respect to title I and title III ADA matters? In my opinion, there are and those arguments would be as follows:

1. Reason 9 is arguably dicta as this reason wasn’t necessary to the decision in Burrage

2. The reasoning of Justice Kennedy in Nassar suggests that reason 9 could not become controlling with respect to title I and, for that matter, title III matters. In particular in Nassar:

A. Justice Kennedy and the majority make a distinction between status-based claims and retaliation claims. Status-based claims are subject to a mixed motive analysis as a result of the Price Waterhouse v. Hopkins decision, which he discusses in some detail. He also discusses how the Civil Rights Act was amended in 1991 so as to allow for limited recovery for mixed motive situations.

B. Justice Kennedy spends some time talking about Gross v. FBL Financial Services and that but for causation is required for claims under the Age Discrimination in Employment Act. He notes that title VII is very comprehensive, and therefore, its specific structure needs to be taken as it is laid out. In particular, the structure of title VII of the Civil Rights Act makes clear that status discrimination gets treated in one way and that there is no indication that retaliation should be treated in the same way. What is critical here for our purposes is that disability discrimination is status discrimination. That is, the plaintiff is alleging that an employer has discriminated against him based upon his or her status, i.e. having a disability.

C. Justice Kennedy said that if Congress wanted mixed motive to apply to retaliation claims, “it could have inserted the motivating factor provision as part of the section applying to all such claims, such as 42 U.S.C. §2000e-5, which establishes the rules and remedies for all title VII enforcement actions.” (emphasis added). With respect to the ADA, this language is a virtual slam dunk that mixed motive is in play with respect to title I claims because the ADA specifically references 42 U.S.C. § 2000e-5 as the remedies available to a plaintiff alleging discrimination under title I of the ADA. See 42 U.S.C. § 12117(a). I should point out here that further support of the argument that the ADA’s reference to § 2000e-5 in title I means that Congress intended to include mixed motive is the legislative history of why “qualified individual with a disability,” was kept in. In particular, Congress wanted to make clear that the indirect burden of proof, which presumes a motivating factor, was still in play. H.R. Rep. 110-730(I) at discussion of, “Discrimination on the Basis of Disability.” Further, that same legislative intent also says that the reason why Congress went from “because,” from the original ADA to “on the basis,” in the amendments act was to make the ADA more like title VII so that the emphasis would be placed on the critical inquiry of whether a qualified person with a disability have been discriminated against on the basis of disability and not on the question of whether a particular person was even a person with a disability in the first place. Id.

D. Justice Kennedy specifically cites to the ADA. In particular, he notes that the ADA is also a comprehensive statutory scheme and that Congress in the ADA clearly spoke to retaliation separate and apart from status-based claims.

3. As mentioned by the Oregon District Court decision in a blog entry mentioned above, there is this:

A. The amendments act to the ADA dropped “because,” in favor of “on the basis of disability,” as the causation standard.

B. The amendments act to the ADA was done specifically for the purpose of broadening the scope of the ADA after the Supreme Court had interpreted the ADA narrowly.

C. The court referred to the legislative history regarding “on the basis of,” which, as we have talked about before, says that the ADA is meant to mirror the structure of nondiscrimination protection found in title VII of the Civil Rights Act. That legislative history, as we have mentioned before, also talks about how indirect evidence and mixed motive cases should be permitted under the ADA discrimination causes of action.

D. The court also noted plaintiff’s argument stating that under Nassar motivating factor applies to status-based claims, which a title I ADA suit most certainly is.

E. The court concluded that the ADA discrimination provision is substantially more similar to title VII status-based discrimination than to the retaliation provision, and accordingly, existing precedent in the Ninth Circuit, which uses motivating factor, had to be respected.

IV
Takeaways:

1. I am very glad that I benched (since I know that this term also applies to what members of the Jewish faith, particularly those tracing their ancestry to Europe – Ashkenazics- call grace after meals, I always do a double take when I hear the term in the moot moot court context), the Emory Law school criminal procedure moot court competition because this particular case has a definite impact on the world of ADA jurisprudence. In particular, it most likely means that mixed motive causation under title II of the ADA is dead because that title uses “by reason of,” language. Prior to this decision, I think an argument could have been made that the difference between “solely by reason of,” and “by reason of,” meant that the omission of the word solely in title II of the ADA was significant, particularly in light of the changes to title I and title III of the ADA with respect to getting rid of the “because of,” language in favor of, “on the basis language.” Therefore, title II arguably could get a mixed motive jury instruction but the Rehabilitation Act could not. I am not sure that this argument will work anymore in light of reason 9. I suppose a counter argument would be that title II still involves status-based discrimination. However, it’s remedies are tied into the Rehabilitation Act and the causation standard in title II of the ADA was not changed by the amendments. All of that when combined with reason 9 would make it very difficult, in my opinion, for this counter argument to succeed.

2. Will reason 9 become controlling with respect to title I and title III of the ADA? I don’t think so because of Justice Kennedy’s opinion in Nassar, which the Oregon District Court based their decision upon. Also, the nature of title III being what it is, mixed motive rarely comes up in title III matters. Even so, this decision now give defense attorneys permission to argue that Nassar notwithstanding, but for causation is the rule for title I claims. Again, as mentioned above, it is hard to believe that such an argument would succeed because it would mean doing away with the reasoning of Justice Kennedy in Nassar. That said, reason 9 arguably makes such an attempt no longer frivolous.

3. One wonders if this decision will have a huge impact on tort law with respect to cases involving substantial factor when it comes to causation. Will state courts revisit substantial factor cases using Scalia’s reasoning in this case? If so, will they get different results from what they currently do if they apply Scalia’s test of whether the multiple causes play an essential contributing role in producing the event. If so, is “essential contributing role,” the same as, “but for?”