Recently, I talked about a decision from the 11th circuit which displayed a very good understanding of disability, in that case deafness, in a way that you do not often see in judicial decisions. Oftentimes when you are reading a case, you wonder whether a judge gets “disability,” so to speak. This particular blog entry is about one of those cases where you do wonder. In particular, consider the following statement: “the district court properly found that legitimate public safety concerns could provide a rational basis for Kansas to restrict the license of a nurse who has to take the licensing exam with accommodations in order to pass it.” Such a statement seems to suggest that a person with a disability who receives accommodations is receiving an unfair advantage by getting the accommodations. Such is not the case, as I have mentioned in my book over the years, a reasonable accommodation is anything that gets the person with a disability to the same starting line and is not about giving a person with a disability an unfair advantage.

In case you were wondering where the quote above came from, it comes from the case of Turner v. Council of State Boards of Nursing, Inc., 2014 WL 1303366 (10th Cir. April 2, 2014-an unpublished decision). As usual, the entry will be divided into four sections: facts, issues, court’s reasoning, and takeaways. The reader is free to focus on any or all of the sections.

I
Facts

Turner is a person with dyslexia and one of the common side effects of dyslexia is test taking anxiety. As a result of his dyslexia, Turner was given accommodations when taking exams in school, which included extra time, a private room, and someone to read the questions to him when necessary. Once he received his college nursing degree, he contacted the board to find out if he could take the licensing exam with those accommodations. He spoke to an individual who said that his request would be taken care of if he provided proof with school records that he suffered from dyslexia, confirmed that his college had given him the same accommodations he was seeking, and furnished a letter stating the specific accommodation requested. He then later applied to take the licensing exam, but the application did not provide a place to indicate the need of or for requesting accommodations. He contacted the individual at the board that he’d been talking to and was told that if he took the exam with accommodations and passed it, he would receive a restricted unlimited license. A month later when he tried to contact the individual again, he was told that the individual he had been talking to no longer worked at the board. Importantly, the plaintiff never alleged that he ever submitted to the board materials that the former employee of the board told him was necessary to obtain accommodations for the exam. Nevertheless, he took the the exam without accommodation and failed it. Also, he never alleged that dyslexia or resulting test taking anxiety either caused or contributed to his failure, but rather there was a problem with the administration of the specific test. After failing the exam, he then contacted both the board and the entity administering the test to see if he could appeal his test with both of them telling him that there was no point in appealing because no test result was ever changed. He then sued the board for damages alleging violations of title II of the ADA. He also sued the Council, which administers the test, alleging violation of title III of the ADA.

II
Issues

1. Did Congress validly abrogate the state’s sovereign immunity under title II of the ADA with respect to claims involving professional licensing examinations?

2. Can he proceed under Ex Parte Young?

3. Did the plaintiff allege enough facts to allow the case against the Council, which administers the exam, to go forward?

III
Court’s Reasoning

Issue 1

1. The court relied heavily on the case of Guttman v. Khalsa, 669 F.3d 1101 (10th Cir. 2012), a case involving a physician whose medical license was revoked based on his mental condition.

2. As we have discussed previously, sovereign immunity cases, come down to what equal protection tier a person with a disability falls into. We know with respect to employment, that persons with disabilities fall into a rational basis class as a result of Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356 (2001). We also know that persons with disabilities fall into a higher class with respect to the fundamental right of access to the courts as a result of Tennessee v. Lane, 541 U.S. 509 (2004). Finally, we also know that sovereign immunity is waived if the allegations reach a level of a violation of the constitutional right, such as equal protection, under U.S. v. Georgia, 546 U.S. 151 (2006). The court relying on Guttman reiterated the view they expressed there that: the constitutional right plaintiff was asserting was of a person with a disability’s right to practice in their chosen profession, which does not merit heightened scrutiny; Congress did not identify a history of irrational discrimination in professional licensing when enacting title II of the ADA; and with respect to the class of cases involving disability discrimination in professional licensing, the title II remedy was not congruent and proportional to the harm being redressed. In plain language, once a person with a disability is put in the rational basis class, everything else follows. That is, the title II scheme is simply too comprehensive to remedy harms of a person in the rational basis class, and accordingly, the defense of sovereign immunity prevails.

Also, I don’t know if it is dispositive that Congress did not identify a history of irrational discrimination in professional licensing when enacting title II of the ADA. It simply could have been that it never occurred to Congress to explore that. We do know from our own blog, such as the blog entry dealing with the Louisiana State Bar, that some states have engaged in what is arguably irrational discrimination in professional licensing.

3. Legitimate public safety concerns could provide a rational basis for Kansas to restrict the license of a nurse who has to take the licensing exam with accommodations in order to pass it.

As mentioned above, this statement fundamentally misunderstands what a reasonable accommodation is. That is, a reasonable accommodation is something that gets a person with a disability to the same starting line. It is not something that gives a person with a disability an unfair advantage. The court’s statement by itself would seem to suggest that either nobody should be allowed to take an exam with accommodations or that anybody who does take an exam with an accommodation gets an automatic license restriction. Again, that’s not right. The issue should be can the person perform the essential functions of the job of that the license grants him or her to do with or without reasonable accommodations. That is, in this case, could the person perform the essential functions of being a nurse with or without reasonable accommodations. That would mean knowing the essential functions of the job of being a nurse. It also means knowing whether any accommodations would either constitute an undue hardship/undue burden either in the financial or logistical sense. Finally, it would also mean knowing whether the person is a direct threat to himself or others.

Issue 2

1. The Ex Parte Young doctrine is an exception to 11th amendment immunity that permits suit against state officials seeking to enjoin alleged ongoing violations of federal law. It is based on the idea that when a federal court commands a state officials to do nothing more than refrain from violating federal law, he or she is not the state for sovereign immunity purposes.

2. An Ex Parte Young complaint must allege an ongoing violation of federal law and seek relief that is prospective.

3. Plaintiff did not allege any ongoing policy or conduct by the state defendants that violated the ADA, rather the allegations related solely to past conduct. Plaintiff did not ask for prospective relief, such as an order directing the defendant to admit him to retake the examination with accommodations. In fact, his counsel told the magistrate judge in an email following a scheduling conference that the plaintiff did not wish to take the exam again.

4. The amended complaint did not specify what declaratory and/or injunctive relief was being sought. Even if the plaintiff sought an injunction requiring the state defendant to allow them to appeal his failing test score, that relief would have not been prospective rather it would only have remedied the past alleged wrong and not prevented a future violation. Therefore, it would not fall within Ex Parte Young.

Issue 3

The court dismissed the claim against the Council as well because the plaintiff could not show that the discrimination he suffered was caused by his disability.

IV

Takeaways

1. If professional licensing matters fall within the rational basis class with respect to persons with disabilities, that means that the person with a disability that suffers discrimination in violation of title II of the ADA is going to be restricted to claims for prospective injunctive relief, and it must be clear from the complaint what prospective relief is being sought.

2. There are cases out there that say the receipt of federal funds waives sovereign immunity for purposes of the Rehabilitation Act. However, pursuing a Rehabilitation Act claim means that the person with a disability would have to show that they were discriminated against solely by reason of the disability, rather than by reason of disability (the ADA standard under title II, which may or may not be the same thing as the Rehabilitation Act standard). That may be a very tough road to go on because when it comes to licensing matters the disability may play just a part in the ultimate decision of the licensing authority.

3. Since the relief requested must be for prospective injunctive relief, a plaintiff is going to be much better off filing suit earlier than later. That is, once a plaintiff realizes that there may be an automatic restriction because of taking the test with an accommodation or realizes where the professional licensing process is headed by reason of/or on the basis of his or her disability, it may make sense to bring a title II/Rehabilitation Act/Ex Parte Young claim for injunctive relief sooner than later so that the court can be convinced that the relief is prospective and not reaching back into the past. On a policy level, one wonders about forcing a plaintiff into this kind of mode because it means that the chances for completing the matter internally in a collaborative way goes down rather than increases.

4. The portion of Turner talking about how a rational basis exists to impose restrictions whenever a person takes a test with accommodations is extremely problematic if there is an interest in diversifying a group of professionals to include persons with disabilities. It also may be a view that the Department of Justice would not agree with if their reaction to the State Bar of Louisiana is any indication. Thus, if a licensing authority does have a practice of imposing restrictions whenever a person takes a test with accommodations they may want to go very slow with respect to that practice and probably even reconsider it despite what this opinion seems to suggest.

5. In dealing with an ADA/Rehabilitation Act case, you always have to be cognizant of causation. Keep in mind, that causation between title III of the ADA and title II of the ADA are arguably not the same. Also, causation with respect to title II of the ADA and the Rehabilitation Act may or may not be the same (an argument on that can be made either way).

6. This decision is unpublished and so you have to check your rules as to the precedential value of the decision. That said, the decision does rely heavily on a published decision of the 10th circuit, Guttman, 669 F.3d 1101 (10th Cir. 2012).

Just what is the exposure to prisons with respect to discriminating against prisoners with disabilities? Prisons have several areas of exposure. First, if a prisoner is employed by the prison and suffers discrimination on the basis of a disability with respect to that employment, title I is involved. Second, the programs and activities of the prison need to be accessible to the person with a disability. Third, you may have a situation where the prison contracts with an entity that discriminates against persons with disabilities. Such a contract would violate both title II of the ADA and the Rehabilitation Act. Fourth, there may be constitutional violations. Prisons are subject to the Americans with Disabilities Act as a result of Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206 (1998). Also, a suit for money damages could overcome a sovereign immunity defense if the suit involved a violation rising to a constitutional violation per U.S. v. Georgia 126 S. Ct. 877 (2006). Furthermore, it is entirely possible that employees of the prison may be subject to personal liability for violation of constitutional rights. Of course, the plaintiff has to overcome qualified immunity, but that is not necessarily an impossible barrier.

Prisoners have medical needs. Is a failure to provide hearing aid batteries for a hearing impaired prisoner who wore hearing aids a violation of the due process clause of the 14th amendment? The 11th circuit in Gilmore v. Hodges, 738 F.3d 266 (11th Cir. 2013), held that it was but that the officers sued were able to claim qualified immunity. Per my usual practice, the blog entry is divided into the facts, the issues, the court’s reasoning, and takeaways. The reader is free to focus on any or all of the sections of the blog entry. Also, I recognize that a county jail is not the same thing as a prison, but for purposes of this blog entry, I am using the terms interchangeably.

I
The Facts

The plaintiff, Kenneth Weinberg, was a pretrial detainee at a county jail and wound up spending 20 months over a period of time in that jail. The two people he sued were the medical supervisor of the jail at the time and a corrections officer. The jail had a policy of not providing inmates with hearing aid batteries, rather inmates were allowed to bring them into the jail or have them sent in by family or friends. Weinberg was hearing-impaired and wore hearing aids. In particular, he had a mild to moderate severe bilateral sensorineural hearing loss which, in the absence of hearing aids, would interfere in all communication except face-to-face quiet. Upon his arrest, he supplied the prison’s medical department a copy of his audiology report so that the medical supervisor could supply the hearing aid batteries he requested. The audiology report was later confirmed by the county jail’s staff. During his two years in jail, he repeatedly asked jail officials both orally and in writing for hearing aid batteries and was denied each time. Further, he claimed that the Sergeant, which he wound up suing, advised him that hearing aid batteries were a security risk, and therefore, his friends and family would not be allowed to send or bring them into the jail. All of this resulted in him going without functioning hearing aids for the approximately 20 months he was in the jail. As such, he was: unable to adequately participate in church services held in the county jail; could not hear the TV for over two years; could not adequately communicate with his attorney; at court hearings only heard 50% of the words said by the judge; could not adequately communicate with the court, other prisoners or correctional officers; many times he left the court room not knowing what the court ruling was; and could not hear important testimony during court proceedings. Since Weinberg was a pretrial detainee, the suit proceeded under the due process clause of the 14th amendment. He also alleged violations of title II, the First Amendment, and the equal protection clause of the 14th amendment. The District Court found for the defendants and Weinberg appealed. Before the appeal, Weinberg died due to unrelated reasons and his daughters were substituted as appellants.

II
The Issues

1. Is a substantial hearing impairment that can be mitigated (the court used the term “remedied” and sometimes “corrected,” but I prefer the term mitigated since hearing aids never truly correct the hearing loss. It would be more accurate to say that they compensate for or mitigate the hearing loss), by hearing aids something that would amount to a serious medical need for purposes of the eighth and 14th amendment?

2. Can an officer’s refusal to treat a hearing loss, such as one the plaintiff had, give rise to a claim for deliberate indifference in violation of the 14th amendment? (since the concept is identical to the eighth amendment when it comes to deliberate indifference, the same facts could give rise to an eighth amendment violation for someone who is a prisoner rather than a pretrial detainee).

3. Were the defendants protected by qualified immunity?

III
Court’s Reasoning

Issue 1

1. A serious medical need is a need that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a layperson easily recognizes the necessity for a doctor’s attention.

2. In unpublished opinions, the fifth, second, and fourth circuits all held that a severe hearing loss may be a serious medical need for purposes of considering whether the eighth or 14th amendment was violated.

3. The ability to hear is a basic human need that materially affects daily activity and a substantial hearing impairment requires medical treatment by a physician.

4. The evidence presented showed that Weinberg could have also had trouble hearing fire or other alarms, responding to commands issued by guards, and reacting to a fight behind him or to a prisoner threatening his safety.

5. An inmate’s inability to hear may render the inmate extremely vulnerable to danger and harm from his unperceived surroundings.

6. While Weinberg did not allege that is hearing loss caused physical pain, other cases have seen allegations that the deprivation of hearing aids caused them pain and interfered with their ability to sleep.

7. The court says, and I certainly would agree, that it took no great leap of logic to suggest that nearly 2 years of isolation as a result of untreated hearing loss could do serious physical and mental harm.

8. The court citing to the personal record of Helen Keller said, “the inability to hear means the loss of a most vital stimulus namely the sound of the voice bringing language, setting thoughts, to stir , and keeping people in the intellectual company of man.”

Issue 2

1. Since the evidence, assuming it is true, was sufficient to establish that the defendant knew of the plaintiff’s hearing loss based on his medical records and the numerous medical grievance he filed and yet the defendants repeatedly refused to provide him with hearing aid batteries that easily would have corrected (see my comments about correction versus mitigation above), the problem while also preventing him from obtaining batteries from his family, the court had little difficulty concluding that the evidence allowed the inference that the response to the prisoner’s needs was done with deliberate indifference and caused him harm.

2. Not all hearing loss will rise to a serious medical need. You could have a situation where a plaintiff could carry on a normal conversation and hear and follow directions without the use of a hearing aid even if that person has a hearing loss (such a person, to my mind, would have to have an extremely mild hearing loss).

3. You could have a situation where hearing aids won’t work for the hearing impaired prisoners. Also, it is possible that even if a person wore hearing aids, an official of the prison may not be aware of the inmate’s condition or its extent (a situation that would be very unlikely in my opinion).

Issue 3

1. To overcome a qualified immunity defense, a person has to show that the constitutional right was clearly established such that a reasonable official would understand that what he is doing violated that right.

2. Hearing loss that can be corrected or mitigated with hearing aids had never previously been held to be a serious medical need by the United States Supreme Court, the 11th Circuit, or the Florida Supreme Court.

3. Officials are not obligated to be creative or imaginative in drawing analogies from previously decided cases.

4. A finding that vision impairment is a serious medical need is not something that conclusively would lead to the conclusion that a substantial hearing loss corrected by hearing aids would also be a serious medical need. Accordingly, pre-existing case law did not provide the defendants with fair warning that the plaintiff’s constitutional rights were being violated.

5. Reliance on unpublished case law from other Circuits and from district courts cannot be held to rise to the level of fair warning because only binding precedent clearly establishes a right for qualified immunity purposes.

6. No case law from the 11th Circuit, United States Supreme Court, or the Florida Supreme Court clearly applies to a failure to provide hearing aid batteries.

Takeaways:

1. We now know, in the 11th circuit anyway, that a hearing loss corrected by hearing aids involves a serious medical need. As a deaf person who functions entirely in the hearing world as a result of hearing aids and his ability to lip read, this conclusion is a no-brainer.

2. Jail and prison’s now arguably have the obligation to provide hearing aid batteries for prisoners who wear hearing aids. At a minimum, they certainly have to allow family to be able to get hearing aid batteries to that prisoner. Keep in mind, that hearing aid batteries can be expensive, though the Internet has made them much more affordable , and accordingly, not all families may have the resources to provide hearing aid batteries for the prisoner. Certainly, if they don’t, then the prison is going to want to supply the hearing aid batteries for the reasons mentioned in this opinion or run the real risk of violating a prisoner’s constitutional rights. Unanswered is the question of whether the jail or the prison would have any obligation to perform a cochlear implant and/or furnish hearing aids, both of which can get very expensive.

3. While the two officers were able to get out of this lawsuit on qualified immunity grounds, the next set of officers should they disregard someone in Weinberg’s situation, will not be so lucky since this is a public decision from the 11th circuit.

4. As a deaf person who functions entirely in the hearing world due to hearing aids and lip reading, this decision makes a lot of sense on a very personal level. It’s heartening to see the court truly get what it means to have a specific type of disability.

This blog entry explores whether an association discrimination claim applies to title II of the ADA, the Rehabilitation Act, and, for that matter, the California Disabled Persons Act. As is my practice, the blog is divided into the facts, the issue, the court’s reasoning, and takeaways. Feel free to zero in on any and/or all of the sections of the entry.

I
The Facts

Consider: Plaintiff’s granddaughter suffers from significant disabilities including chromosomal disorder, lack of motor skills, visual and hearing impairments, and epilepsy. She uses a wheelchair for mobility. Her grandfather decided to take her to watch his grandson play football at a sports complex owned by the City of Porterville, California. They experienced difficulty reaching the playing field because the only way to get from the parking facility to the playing field was by traversing over grass that was too high for the grandfather to push his granddaughter in a wheelchair safely. Accordingly, the grandfather carried his granddaughter across the grassy area while his wife pushed their granddaughter’s wheelchair. He carried his granddaughter from the parking facility all the way to the football field and to the playground thereby causing him physical difficulty and frustration. He then filed a lawsuit against the City of Porterville alleging that he was denied full and equal access (in violation of title II of the ADA, the Rehabilitation Act, and the California Disabled Persons Act), to the programs, services and activities offered by the City because of his association with a person with a disability, i.e. his granddaughter. The City brought a motion to dismiss for failure to state a claim.

These are the facts in Cortez v. City of Porterville_F. Supp. 2d_, 2014 WL 1101228 (E.D. Cal.).

II
The Issues

1. Does a person have the right to file a lawsuit alleging discrimination in violation of title II of the ADA on his or her own behalf on account of his or her associating with a person with a disability?

2. Does a person have the right to file a lawsuit alleging discrimination in violation of the Rehabilitation Act on his or her own behalf on account of his or her associating with a person with a disability?

3. Does a person have the right to file a lawsuit alleging discrimination in violation of the California Disabled Persons Act on his or her own behalf on account of his or her associating with a person with a disability?

III
Court’s Reasoning

1. With respect to title II of the ADA, title II provides a remedy to any (emphasis added), person alleging discrimination on the basis of disability in violation of the provisions of title II of the ADA. The use of the phrase, “any person” in the absence of any language limiting standing to persons with disability indicates, to the court’s mind, that Congress intended to interpret standing under title II as broadly as permitted by article 3 of the Constitution. Finally, the implementing regulations for title II of the ADA, 28 C.F.R. § 35.130(g), specifically state that a public entity cannot exclude or otherwise deny equal services, program, activity to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association with. Therefore, association claims are clearly permitted under title II of the ADA.

2. The plaintiff had standing to pursue the claim for several different reasons. First, he was forced to carry his wheelchair-bound granddaughter across a grassy area in order to access the playing fields and playgrounds. Second, he desired to continue to visit the sports complex with his granddaughter, but the City’s failure to make the place accessible causes him to experience difficulty, feel anxious, frustrated and certainly conspicuous (not surprising, since he has to carry his granddaughter across the field). Third, the plaintiff’s injury is traceable to the City’s failure to provide accessible pedestrian pathways from the parking facility to the playing fields and playgrounds. Finally, the plaintiff’s inability to have full and equal access to the sports complex is something that can be addressed by the court.

3. The plaintiff’s desire to access and enjoy the sports complex with his disabled granddaughter being foreclosed by the complex’s inaccessibility means that the plaintiff has had alleged an injury that is separate and apart from that of his granddaughter.

4. With respect to the Rehabilitation Act claim, the Rehabilitation Act also contains the “any person,” language in its remedies clause and therefore, just as under title II of the ADA, an association claim is permissible under the Rehabilitation Act. This conclusion really shouldn’t be surprising since the remedies for title II of the ADA are keyed into the Rehabilitation Act.

5. Plaintiff also brought a claim under the Disabled Persons Act of California and the court allowed the associational discrimination claim to proceed under that law as well for the following reasons. First, the Disabled Persons Act provides that individuals with disabilities have the same right as the general public to the full and free use of public buildings, public facilities, and other public places. Second, the Disabled Persons Act provides that if the ADA is violated so is the Disabled Persons Act. Therefore, since the ADA is incorporated into the Disabled Persons Act, associational discrimination claims are also available under the Disabled Persons Act.

IV
Takeaways

1. While associational discrimination does appear in the text of the ADA itself at 42 U.S.C. § 12112(b)(4), that text seems to suggest that it might only apply to employment since all the statutory language around it pertains to employment. The phrase in the statute is, “jobs or benefits.” Also, title III of the ADA does contain a provision prohibiting the exclusion or denial of equal goods, services, facilities, privileges, advantages, or accommodations, or other opportunities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association with. Now we have a precedential decision that for the reasons mentioned above (that reasoning, to my mind, is not far-fetched at all), states quite clearly that title II of the ADA as well as the Rehabilitation Act (for that matter, the Disabled Persons Act of California as well), allow for associational discrimination claims.

2. From the litigation perspective, allowing associational discrimination claims in title II and Rehabilitation Act claims is a bit of a game changer because it opens up more financial resources that can be brought to bear by a plaintiff who either because of his or her own disability or because of his or her association with the person with a disability suffered discrimination. In short, now a governmental entity that discriminates against a person with a disability may have two claims against it with respect to the same set of facts (one from the person with a disability him or herself and the other from the nondisabled person that accompanied the person with a disability).

3. Governmental entities are frequently reactive rather than proactive. That said, a decision like this should give a governmental entity the incentive to review its programs and activities to make sure that they are in compliance with title II of the ADA.

4. In addition to the Rehabilitation Act and the ADA, one always has to be aware that state antidiscrimination laws are lurking out there as well.

It is not unusual for companies of all sizes to outsource their HR functions and/or their benefit administration, though outsourcing their benefits administration is probably more common. What happens if the third party administrator starts making employment decisions for the company whose benefits they are administering? In that situation, there is a risk that the third party administrator will be deemed to be an employer under title I of the ADA with respect to employment discrimination claims and will not be protected by the safe harbor for insurance plans contained within the ADA. This is exactly what happened in an unpublished decision from the District Court of Maine in the case of Brown v. Bank of America, N.A., 2014 WL 901438 (D. Me, March 7, 2014). It is an unpublished decision and so you want to check your own local rules to see just how much influence this decision could have on your matter (if the reader is interested in how District Court decisions come to be published or unpublished, there is an excellent article from 2004 by Karen Swenson entitled Federal District Court Judges and the Decision to Publish, talking about what District Court judges consider in deciding whether to publish a case. It makes for very interesting reading. The citation for that article is 25 Justice System Journal 121).

I
The Facts

In this case, the plaintiff was sexually assaulted by a coworker, one Mr. Clukey (the offender), at a social event at the University of Maine campus. As a result, she became fearful of returning to work with the offender present and suffered from physical and psychological aftereffects of the assault, including situational depression, posttraumatic stress disorder, panic attacks, and extreme anxiety. The plaintiff tried to reach a workplace accommodation with Bank of America in several different ways, including: moving the offender to a more distant cubicle in the common room in which they worked; setting up a safety plan with the unit of Bank of America responsible for accommodating persons with disabilities; and keeping Bank of America informed by weekly status calls, which had been agreed to by the plaintiff and her manager. None of that worked. In particular: the manager refused the plaintiff’s request to move the offender to a more distant cubicle; The Bank of America department responsible for accommodating persons with disability refused to set up a safety plan for the plaintiff to allow her to return or to even discuss accommodations; and the weekly status calls were never returned. As a result of all this, the plaintiff applied for short term disability and FMLA leave. The plaintiff called Bank of America’s agent, Aetna, to find out what documentation she needed to provide to obtain short-term disability and FMLA leave. Aetna informed her that they needed medical records or counseling records stating why she was unable to perform her job. While Aetna did inform her of that, they didn’t tell the plaintiff that she needed to provide an evaluation from a psychiatrist. Accordingly her short-term disability was denied due to insufficient documentation. She appealed that determination and was denied again and so she got a psychiatric evaluation, and was again denied because the paperwork had been done at the incorrect time. The psychiatric evaluation showed that the plaintiff had posttraumatic stress disorder. On December 8, Aetna informed the plaintiff that they needed further documentation on why she required more leave, and the plaintiff said she would send it and asked them to let her know if that was enough. Aetna never responded to her as to whether more information was needed. Instead, Aetna emailed Bank of America informing them that the plaintiff was being placed on leave of absence closed and directing Bank of America to take action within three days. Three days after that email from Aetna to the Bank of America, the plaintiff received a letter telling her that she would be terminated a week later if she didn’t return to work or provide additional documentation. Plaintiff didn’t respond because there was nothing in the letter suggesting any willingness to talk to her about accommodations. Finally, Bank of America and Aetna did not make any efforts to work with the plaintiff to identify and make reasonable accommodations that would give her an opportunity to return to work.

II
Issue

1. Is Aetna an employer for purposes of title I of the ADA?

2. Is Aetna protected by the safe harbor?

III
The Reasoning of the Court

Issue 1

1. It is possible for an entity to constructively employ a person even though that person may not be technically an employee. ( Carparts Distribution Center, Inc. v. Automotive Wholesaler’s Association of New England, Inc. 37 F.3d 12 (1st Cir. 1994).

2. Carparts set for three possible theories as to when a person may be constructively employed by another. Those possibilities are: exercise of control; agent of the employer; and interference.

3. With respect to the exercise of control, critical questions are: do the plan providers exist solely for the purpose of enabling the employer to delegate the responsibility to provide health insurance for their employees; do the plan providers have the authority to determine the level of benefits provided to employees and whether any alternative health plans were available to employees; and whether the third party administrator and the employer share in the administrative responsibilities resulting from the employee’s participation in the plan. In this particular case, the plaintiff alleged: 1) Bank of America authorized Aetna to handle disability and FMLA claims for Bank of America; 2) Bank of America directed the plaintiff to provide information to Aetna to justify continued leave and that Aetna interacted with the plaintiff and directed the information she was to produce; and Aetna informed Bank of America that the plaintiff was being placed on leave of absence closed status and directed Bank of America to take action within three days.

4. With respect to the agent of the employer’s theory, that refers to a typical agency relationship where you have the third-party administrators acting on behalf of the employer with respect to providing and administering employee health benefits. On this point, the court refers to the EEOC compliance manual discussing whether an employer controls another so as to establish an employment relationship. The court also references Clackamas Gastroenterology Associates, P.C. v. Wells, P.C., 538 U.S. 440 (2003), where the United States Supreme Court held that a partner may be an employee if the employer was exercising sufficient control over that employee despite the person’s title to the contrary.

5. The court did not review the interference theory because subsequent to Carparts, that theory had been rejected in the First Circuit.

6. The issue of who is an employer will only be rarely resolved on a motion to dismiss.

Issue 2

The ADA does contain a safe harbor for insurers stating that title I of the ADA is not to be construed to prohibit or restrict an organization covered by the ADA from administering the terms of a bona fide benefit plan not subject to state laws regulating insurance. However, the court wasn’t buying it because the plaintiff was not alleging a problem with the administration of the plan, rather she was alleging that Aetna discriminated against her on the basis of disability as an employer because Bank of America delegated to Aetna certain personnel functions normally handled by an employer, such as whether an employee’s disability justified the leave of absence and whether Bank of America should accommodate the disability. Further, once Aetna made that decision, it refused to engage in the interactive process. All of these are employer issues and not issues pertaining to administration of the benefit plan.

IV
Takeaways:

1. For those third-party administrators that may be reading this blog, this case could be a real wake-up call. True, the decision is unpublished, but even so, depending upon the jurisdiction, it could be quite persuasive. Also, as Karen Swenson mentions in the article referred to above, unpublished opinions do not have a significantly different likelihood from published opinions of being reversed by a Court of Appeals.

2. If you represent a third-party administrator and you want to prevent liability under title I of the ADA for decisions that you make regarding leave and reasonable accommodations, make sure that it is the employer that has the final responsibility for those decisions. Also, the actual employer of the employee may want to think twice about slavishly following the decisions of third-party administrators in this area.

3. As we have seen many times before, failure to engage in the interactive process when placed on notice that a disability may be involved, is, from the employer perspective, a recipe for disaster and a boon for the plaintiff’s attorney.

4. HR and legal counsel need to work closely together. In addition to that, as a matter of preventive law, a company may want to consider a policy were no employee is terminated except for cause, even if you are in an at will state, and not without review of legal counsel prior to termination. You may find that such a policy, as I found, will not only result in HR and legal counsel working more closely together but also will reduce outside counsel fees dramatically.

5. Of course, training by a person with expertise is always called for.

6. An employer and/or third party administrator needs to fully disclose just what are the requirements for getting FMLA leave or short-term or long-term disability benefits.

I
Introductory Comments

Last week the Department of Justice as intervenor and the National Federation of the Blind on behalf of itself and two plaintiffs entered into a consent decree with H&R Block and the entity that runs its website. While the defendant did not admit any liability, they did agree to pay $22,500 to the two individual plaintiffs. They also agreed to pay a civil penalty of $55,000 to the Department of Justice. The consent decree is for five years.

The terms of the settlement should give people a real good idea of where the Department of Justice is headed with respect to its regulations on the accessibility of the Internet. Before getting to the terms of the settlement, a couple of things about the case should be noted. First, the case was filed in the United States District Court for the District of Massachusetts. That is no accident I’m sure because, as we have discussed previously, that is the district that decided the National Association of the Deaf v. Netflix , where that court held that whether a place was subject to title III of the ADA entirely depended upon whether one of the categories for a place of public accommodation were involved and not whether it had a physical space. It is also possible that the Department of Justice might have filed in California using the gateway theory. That is, the Internet site was a gateway to brick-and-mortar stores. After all, H&R Block has numerous stores all over the place. Finally, the Department of Justice might also have filed in the Seventh Circuit, but that may have been more problematic because the statement of Judge Posner’s that the Internet applies to the ADA is dicta. In short, while the Department of Justice had options as to where to file the suit, it can’t be a surprise that it was filed in the District of Massachusetts.

As is my practice, I have divided the blog entry into separate categories. In this case, there are the introductory comments, the terms of the settlement, and takeaways and thoughts. The reader is free to focus in on any and all of the various sections of this blog entry.

II
Terms of the Consent Decree

1. Settlement applies to the Internet site, its mobile applications, and its online tax preparation product;

2. By January 1, 2015, H&R Block has to ensure that its Internet site and the online tax preparation product conform to, at a minimum, the web content accessibility guidelines 2.0 level A and AA success criteria (you may see it also referred to as, “success criteria);”

3. By January 1, 2016, H&R Block has to ensure that it mobile applications conform to the success criteria;

4. Many websites use plug-ins, and if H&R Block uses or integrates third-party plug-ins or content, they have to have a method of obtaining and using such content conforming to the success criteria. The exception being that they have three years to provide a method of obtaining and using map content conforming to the success criteria (currently, the plug-in that H&R Block uses to display the map location with physical offices does not conform to the success criteria).

5. H&R Block by June 15, 2014 has to designate an employee reporting directly to the H&R Block’s enterprise chief information officer as the web accessibility coordinator for its Internet site, its mobile applications, and its online tax preparation product and that name and contact information has to be provided to the court.

6. What the web accessibility coordinator does is laid out in the agreement. Specifically: that person has to be knowledgeable about the terms of the consent decree, including but not limited to the success criteria; that person has to be responsible for overseeing, managing, and coordinating H&R Block’s implementation of the decree; that person is also responsible for reporting and documenting at least quarterly to H&R Block’s enterprise chief information officer that all new releases have been made accessible preproduction, any postproduction accessibility bugs have been fixed, and that the requirements set forth in the consent decree have been met and if not, what requirements have not been satisfied and why.

7. By June 1, 2014, H&R Block has to adopt and implement a web accessibility policy (the specifics are spelled out in an exhibit to the consent decree). Further, by June 1, 2014 H&R Block has to: distribute the web accessibility policy to all web content personnel and client service operation call-center agents; provide a copy of the policy to each new web content personnel, contractor responsible for web content, and client service operation personnel for the Internet site; redistribute the corporate web accessibility policy annually to all web content personnel, contractors responsible for web content, and client service operation personnel; make publicly available and directly linked from the website homepage a statement of H&R Block’s policy to ensure that persons with disabilities have full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of H&R Block through its website, its mobile application, and its online tax preparation product; and accompany the public policy statement with an accessible means of submitting accessibility questions and problems.

8. By July 15, 2014, H&R Block has to appoint a cross functional committee with the responsibility of monitoring and maintaining conformance of their Internet site, the mobile applications, and their online tax preparation product with the success criteria.

9. By July 15, 2014, H&R Block has to provide a notice that is prominently and directly linked from their Internet site’s homepage soliciting feedback from visitors to the Internet site of how the accessibility of their website, mobile application, and online tax preparation product can be improved. Several methods to provide feedback to ensure accessibility to a variety of people with disabilities have to be included.

10. By December 1 of 2014, H&R Block has to train its client service operation personnel to automatically move up calls from users with disabilities having difficulties with their website or online tax preparation product. H&R Block has to have trained sufficient personnel to handle such calls (a minimum of 5% of such staff at any given time). H&R Block has to establish procedures for promptly directing request for assistance to such personnel including notifying the public that customer assistance is available to users with disabilities and describing the process to obtain that assistance. H&R Block gets an extra year, December 1 of 2015, to do the same with respect to their mobile applications.

11. By August 15 of 2014, and at least annually thereafter, H&R Block has to provide mandatory web accessibility training to all employees writing programs or code or who publish final content for the Internet site, the mobile applications or their online tax preparation product in how to conform all web content and services with the success criteria and the terms of the consent decree. H&R Block also will ensure that contractors are familiar with the success criteria.

12. Performance reviews of the web accessibility coordinator and all employees subject to the consent decree has to include consideration of the degree and effectiveness with which the individual took accessibility considerations into account in the performance of their respective duties.

13. H&R Block has to perform automated web accessibility testing and a tool acceptable to the private plaintiffs and the Department of Justice has to be selected by October 1 of 2014. Then: beginning December 1, 2014, and at least once every three months thereafter H&R Block has to conduct automated accessibility test of their Internet site to identify any instances where the Internet site is no longer in conformance with the success criteria; automated accessibility test of the online tax preparation product needs to be conducted no later than June 1, 2015, and each year thereafter of the consent decree and at least once per month beginning June 1 of the year until the online tax preparation product is released in order to identify any nonconformance with the success criteria; by October 1 of 2015, H&R Block has to have an automated accessibility testing tool acceptable to all the parties to evaluate the conformance of mobile applications with the success criteria. Once an automated accessibility testing tool for mobile applications has been selected, then at least once every three months thereafter H&R Block has to conduct automated accessibility test of its mobile application to identify any instances where the mobile applications are no longer in conformance with the success criteria.

14. H&R Block by October 1, 2014, and at least once annually for the terms of the consent decree and whenever a substantial proposed change to the Internet site, its mobile application, or its online tax preparation product is made available to any group of H&R Block uses or customers have to have those changes tested by individuals with different disabilities including those who are blind, deaf, AND/OR have physical disabilities affecting manual dexterity (such as those limiting the ability to use a mouse), in order to identify any accessibility barriers not otherwise apparent through automated testing.

My highlighting the AND/OR is intentional because as a user of voice dictation technology, I have a strong suspicion that just because something is accessible to a person who is blind and uses a screen reader, doesn’t mean that it is necessarily accessible to a person who uses voice dictation technology, though in most cases if it is accessible for purposes of the screen reader, it seems to also work with respect to voice dictation technology. Also, there is another trap for the unwary here as well. That is, it is important to remember that some people have multiple disabilities. For example, a person may need voice dictation technology and also be deaf or hearing impaired. Thus, accessibility has to be tested with respect to whether a person with multiple disabilities can access the site effectively.

15. By December 1 of 2014, H&R Block has to modify existing bug fix policies, practices, and procedures in order to include the elimination of bugs causing things (Internet site, mobile application, and online tax preparation product), to be out of compliance with the success criteria.

16. By July 15 of 2014, H&R Block has to retain an independent consultant approved by all parties who has expertise concerning accessible web development and the terms of the consent decree. That person by September 15, 2014, and annually by August 15 thereafter, has to provide a written evaluation describing whether the Internet site, the mobile application, and the online tax preparation product are in conformance with the success criteria and make any needed recommendations to improve the accessibility of same. H&R Block then has to incorporate all the recommendations contained in that evaluation within 90 days of receiving it and with respect to any recommendation for the online tax preparation product, the changes have to be made 30 days prior to release.

17. The settlement agreement sets forth certain reporting requirements of the Department of Justice.

18. The court retains continuing jurisdiction. While I don’t see any mention of specific attorney fees, this continuing jurisdiction is important because it enables the private plaintiffs and the National Federation of the Blind to get their attorneys fees because of the court’s continuing jurisdiction means that the plaintiffs have prevailed.

III
Takeaways and thoughts:

1. It is interesting that the online tax preparation product is part of the settlement. After all, a product per se does not have to be accessible to persons with disabilities. However, context is everything. In this situation, one could argue that the product is a gateway to brick-and-mortar store. Also, one could argue that the product is in essence offering a professional service and therefore vis a vis National Association of the Deaf v. Netflix is a place of public accommodation. Therefore, the Department of Justice is serving notice that products offered online may be subject to the ADA in their opinion.

2. It is more than just the Internet site that has to be worried about, mobile applications also have to be considered. That makes sense since everything I have read says that people are moving away from PCs towards using mobile applications and tablets to access the Internet.

3. The Department of Justice regulations with respect to website accessibility may be coming down soon since the time frame given to H&R Block in many cases under the settlement agreement is quite tight. Thus, companies may want to start working on this immediately.

4. Standards for website accessibility and mobile application accessibility is going to be the web content accessibility guidelines 2.0 level A and AA success criteria.

5. Consider establishing a web accessibility coordinator position with the responsibility for ensuring that the Internet site, mobile application, and even products are accessible to persons with disabilities.

6. Establish a web accessibility policy and make sure it gets distributed to all necessary personnel and contractors.

7. Set up a web accessibility committee to assist the web accessibility coordinator.

8. Ensure that persons with all kinds of different disabilities have the ability to give feedback regarding the accessibility of the website.

9. Ensure that those dealing directly with customers with disabilities have a thorough understanding of how their website, mobile application, and even products works with respect to those using various technology (screen readers, voice dictation, etc.) used by persons with disabilities to access the company’s mobile application, Internet site, or even product.

10. Make it a part of every employee’s evaluation as to how they deal with disability access issues (either customer or product)..

11. Make sure that the coders and programmers are familiar with the success criteria and that they receive at least annual training with respect to that.

12. Periodically test the Internet site, mobile applications, and even products as to whether they are continuing to measure up to the success criteria and document same.

13. Set up a user accessibility testing group and include those who are blind, deaf, AND have physical disabilities affecting manual dexterity in order to identify any accessible barriers not otherwise apparent through automated testing. As a preventive measure, it would seem the settlement on its face would allow those with physical disabilities to be excluded, but to be safe and prevent problems later, I would include them.

14. Modifying existing bug fix policies, practices, and procedures so as to ensure the prompt elimination of violence that are out of conformance with the success criteria.

15. Depending upon the confidence the company has in its personnel with respect to the kind of issues, the company may want to consider hiring an independent web accessibility consultant.

The stereotype of judges is that they are boring and wouldn’t relate well to an audience. I have attended several CLE’s where judges were the speakers, and that stereotype is just not true. Of course, some are better than others, but that is true with every speaker you here. One of the great CLE speakers, who also happens to be a judge, is a gentleman named Mark Bennett, a District Court judge in the Northern District of Iowa. He speaks in a plain language, doesn’t take himself too seriously in a good way, and isn’t afraid to speak his mind. If you ever get a chance to attend a CLE where he is one of the speakers, you will not be disappointed.

At any rate, in a prior blog entry, we discussed what it means for a defendant to be on notice as to the type of charge that they may be facing when the EEOC complaint is filed. This particular case, the section of it that we will focus on anyway, contains a slightly different question. That is, when can a defendant be presumed to be on notice of an EEOC charge even if they are not technically the defendant named in the EEOC filing? This may happen more than you think as a lot of corporations have very complicated structures. As has been my usual practice of late, I have divided the blog entry into four sections: facts, Issue, Reasoning, and Takeaways. The reader is free to concentrate on any or all of those sections.

The case of Whitney v. Franklin General Hospital _F. Supp. 2d_, 2014 WL 360106 (N.D. Iowa, February 3, 2014), explores the issue of what happens when a plaintiff files an EEOC charge and the actual defendant, legally speaking, is not named in that charge because of the complexity of corporate structure. Does the legally responsible defendant then get a get out of jail free card?

I
Facts:

In this case, a medical records clerk and receptionists alleged that the medical director of the County Hospital medical Center for which she worked subjected her to sexual harassment, sexual assault, sexual abuse and sexual exploitation during her employment. In particular, according to the complaint, he sexually harassed her by propositioning her, making sexually offensive comment towards her, showing her pornography on his computer, and masturbating in her presence. While the plaintiff thought that she was the only one being subject to the abuse, in January of 2012, other women began reporting that the same person was sexually harassing and assaulting them as well. On June 1, 2012, the medical director was fired for sexually harassing, insulting, abusing, and exploiting at least eight women at the hospital. So far so good but what happened next is a bit strange. On June 28, 2012, the defendant disciplined the plaintiff for engaging in sexual relations on their premises and on company time based upon the medical director’s sexual abuse, assault and exploitation of her. Further, they went on to discipline his other victims for sexual relations on company property and on company time. As a result of the sexual abuse, assault and exploitation, the plaintiff suffered from major depressive disorder and posttraumatic stress disorder. When she requested Family and Medical Leave Act leave to deal with the mental health issues, she was instead greeted with disciplinary action. Plaintiff filed her administrative civil rights complaint against the defendants on September 12, 2012. About two weeks a later, the Iowa Board of Medicine suspended the medical director’s medical license for, among other things, a pattern of sexual misconduct including nonconsensual sexual conduct with female patients and coworkers. The defendant knew of this action by the Iowa Board of Medicine shortly after the Iowa board suspended his license. When the plaintiff returned from FMLA leave, she was again disciplined and the defendant refused to provide any instances of the alleged misconduct when asked to do so by the plaintiff. The complaint alleged that other employees that had not reported sexual harassment, abuse, and exploitation by hospital doctors or who had not filed civil rights complaints were not disciplined for such minor infractions. After receiving a right to sue letter from the EEOC, she brought suit against Franklin General Hospital, Franklin County Iowa, Mercy Health Services (Iowa Corporation), Mercy Health Network, Inc., and Kim Price. The EEOC filing did not name the Mercy defendants. Instead, the only defendant named in the administrative filing with the EEOC were Franklin General Hospital, Dr. Hansen (the medical director), and Kim Price.

II
Our Issue

The Mercy defendants claimed that since they were not named in the EEOC filing, that the right to sue letter the plaintiff received gave her no leave to commence a civil action against them.

III

Court’s Reasoning:

The court wasn’t buying Mercy’s defense for several reasons:

1. In the Eighth Circuit, the notice requirement is satisfied if a party sought to be included as a defendant knew or should have known that his or her or its conduct might be the subject of the administrative filing.

2. The plaintiff alleged that Mercy defendants operated and managed the hospital even though the hospital is owned and legally controlled by the county.

3. The plaintiff alleged that her amended complaint contained sufficient factual allegations to support an inference that the Mercy defendants were aware of the administrative complaints and had every opportunity to respond to them and to participate in the administrative process.

4. The Mercy defendants did not argue that they were unaware of her claims or that they were prevented from participating in the administrative process.

5. The plaintiff’s pleadings plausibly suggested that the Mercy defendants were substantially identical to Franklin General Hospital and that they knew or should’ve known that a claim was asserted against them.

6. Since the complaint alleged that the Mercy defendants managed and were doing business as the Franklin General Hospital and that certain supervisory personnel, such as Kim Price, were agents of the Mercy defendants, it was plausible to say that the Mercy defendants knew or should’ve known that the interrelationship between them and Franklin County General Hospital would result in them being implicated in the suit.

7. The court noted that failure to exhaust administrative remedies is an affirmative defense. Further, the affirmative defense of failure to exhaust administrative remedies where there is a complex relationship among the corporate entities that is not even apparent to an employee of the hospital, is a particularly inappropriate basis for dismissal.

IV
Takeaways:

1. In many ways, this case reminds me of the apparent agency theory that you often see in health law. That is, emergency room doctors are rarely employed by the hospital that they work at. Nevertheless, many courts have held over the years, that it is reasonable for the consumer to assume that the ER doctor was an employee of the hospital even though in fact that was not the case (apparent agency), and therefore, the hospital can be vicariously liable for the negligence of the employee.

2. This decision is published, or will be published shortly in F. Supp., and therefore, has precedential value.

3. With respect to the filing of the EEOC complaint with the EEOC, plaintiffs are going to have a little bit more leeway with respect to whom they named in the filing. Under this decision, a plaintiff could reasonably list all parties that they feel may have something to do with the case, but if they miss one, they still may be okay if the party they miss would reasonably be on notice as to the filing coming down at them. Considering that oftentimes the EEOC filing is not done by a lawyer, this leeway is very significant to plaintiffs. Of course, when it comes to actually filing the complaint itself, the plaintiff will want to add, via an amended complaint or otherwise, as soon as possible, all the parties that have something to do with the case. On the plaintiff’s side, this is really normal operating procedure. That is, a plaintiff wants to include as many defendants as possible from the get go that reasonably have something to do with the case and then worry about dismissing them later so as to ensure that they are within the statute of limitations.

4. On the defense side, this case makes it difficult for the defense to rely on a technicality that they weren’t named in the EEOC filing, especially where the EEOC filing is such that one could reasonably expect that other defendants not named in the EEOC filing are very much involved.

5. An interesting point is raised by the court referencing that the plaintiff pointed out that the Mercy defendant never argued that they were unaware of her claims or that they were prevented from participating in the administrative process. In fact, the plaintiff argued that the Mercy defendants had every opportunity to participate in the administrative process through their contracting hospital and the administrator, Kim Price, who was named in the EEOC filing. I will leave it to the defense lawyers who litigate these things to evaluate whether it is worthwhile for them to participate in the administrative process when they know they are very much involved from the get go even when they have not been named.

6. Will we see a new name, “Twom-bal,” for the cases of Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009)? Those cases, as I discuss in my book, arguably changed the pleading standards and federal courts from pure notice pleading to one of stating enough facts to put the defendant upon reasonable notice as to what the case is involved.

7. It is never a good idea to retaliate against an employee for seeking a medical leave under the Family and Medical Leave Act or as a reasonable accommodation. More generally, it simply isn’t a good idea to retaliate whenever an employee asserts their rights under the law. Also, where an employee(s) is subject to sexual abuse, exploitation, and harassment by another employee, the employer should be very careful about disciplining the person who was abused, exploited, or harassed. I can certainly understand why such a person may need leave and/or accommodation to deal with that, but disciplining that person where the incidents were clearly not consensual is not something to be recommended. One wonders how much coordination this company had between human resources department and the legal counsel’s office. On the preventive law side, a company would want to ensure that human resources and legal counsel have a very close working relationship.

One of my more popular blog entries is the blog entry that discusses suing a state court system for disability discrimination . Here is another case along those lines. In Phillips v. New Hampshire Circuit Court, Eighth Circuit, District Division, 2014 WL 495656 (D. N.H. February 5, 2014) (unpublished decision), the plaintiff had a severe mental illness and alleged that without taking strong antipsychotic medication he could not possibly understand legal proceedings. He was a defendant in a noncriminal proceeding during the course of which there were four hearings. At each hearing, the plaintiff requested some kind of accommodation for his mental health condition and the state court denied each request. Furthermore, the state court ordered the plaintiff NOT to take his prescribed medication. The plaintiff asserted the court’s directive greatly hindered his ability to understand the proceedings, affected his emotional state, and prevented him from defending himself properly. He brought suit against the state court, the state court clerk, and the presiding state court judge alleging that they all violated § 504 of the Rehabilitation Act and title II of the ADA when they ordered him not to take his medication and failed to provide him with reasonable accommodation for his mental illness. He sought both injunctive relief and damages. It is a short opinion, but even so, there were three issues before the court. First, was the judge immune from suit? Second, does title II of the ADA or § 504 of the Rehabilitation Act authorize a claim for damages against state officials in their individual capacities? Third, even assuming judicial immunity applies, can the public entity be vicariously liable for the acts of its employees?

With respect to judicial immunity, sound policy reasons exist for having judges immune from individual liability for money damages with respect to acts performed within the scope of their jurisdiction even if they make a mistake, or act with bad faith or malice. After all, it is hard to believe that a judge could do his or her job if he or she thought they might be individually liable for damages for their rulings. Or, as the District Court of New Hampshire noted, the power of the judge to control his or her own proceedings, the conduct of the participants before him or her, the actions of officers of the court and the environment of the court, is a power absolutely necessary for the court to function effectively and do its job of administering justice. Judicial immunity applies here because the judge issued rulings dealing with his request for accommodations, a judicial act.

With respect to individual capacity claims under title II of the ADA and the Rehabilitation Act, neither title II of the ADA nor the Rehabilitation Act authorizes claim for damages against defendants sued in their individual capacities. For that matter, there are numerous cases out there that say in the title I context, individual liability is not an option there either.

With respect to the last issue, while the judge may have judicial immunity with respect to individual liability for his or her acts, that doesn’t mean that the entity employing the judge is off the hook. When a plaintiff brings suit under the ADA and the Rehabilitation Act (§ 504), the public entity is vicariously liable for the acts of its employees, and plaintiffs with disabilities may sue to require state court to make reasonable accommodation to allow them to participate in legal proceedings. Accordingly, the court (citing to U.S. v. Georgia, 546 U.S. 151, 159 (2006) and to Tennessee v. Lane, 541 U.S. 509, 533-34 (2004)), found that the facts were sufficient to warrant service of the complaint with respect to the disability discrimination claims under the ADA and the Rehabilitation Act against the individual state court defendants in their official capacities and against the state court.

Takeaways:

While a judge may be off the hook for making discriminatory rulings against a person with a disability with respect to individual liability, the public entity employing the judge is not. Thus, training is absolutely critical. That training needs to take two forms. First, there needs to be a personal touch in some way so that personnel can see and hear just what it means to comply with title II of the ADA in the state court system. If that trainer is an attorney with a disability, all the better as a lot of ADA compliance, in my opinion, involves understanding the mindset of a person with a disability as well as knowing the law. Second, it is absolutely critical that a state court compliance manual be developed. There are some excellent resources that you can start with (for example, I have reviewed the title II compliance manual put out by the Illinois Atty. Gen.’s office, which is quite good, but, like many things, could be improved upon), but such a resource is not a substitute for having a qualified attorney make sure that the manual is comprehensive, accurate, clear, and not confusing. Finally, any such training needs to be sure to focus on the concept of what I have referred to over the years in my writing, including my book, as the, “starting line.” That is, reasonable accommodations/modifications is all about an interactive process that gets the person with a disability to the same starting line as the person without a disability. Therefore, it should be an unusual situation where a judge would have to completely deny any accommodation to a person with a disability before him or her.

I’m going to be off next week, and so I thought I would blog on this one since it is something I have talked about before.

Previously, I blogged on a South Dakota Supreme Court case and talked about the difficulty a person with MH has in passing the character and fitness gauntlet. I also in a separate entry blogged about a letter from the Department of Justice to the Vermont Commission on Human Rights talking about how four questions that are routinely asked by attorney licensing authorities, who often use the character and fitness format of the national conference of bar examiners, are in violation of the ADA. Now comes this letter from the DOJ to the State of Louisiana telling them that their discriminatory practices have to end.

Full disclosure: I Am President of the National Association of Attorneys with Disabilities and our organization signed on to a letter from the Bazelon Mental Health Center asking the DOJ to take the position that the way the state of Louisiana treated attorneys and prospective attorneys with MH violated the ADA.

In particular, the Department of Justice found that the Louisiana attorney licensure system discriminated against bar applicants with disabilities in the following way: making discriminatory inquiries regarding bar applicant’s mental health diagnosis and treatment; subjecting bar applicant to burdensome supplemental investigation triggered by their mental health status or treatment as revealed during the character and fitness screening process; making discriminatory admissions recommendation based on stereotypes of persons with disabilities rather than upon the actual facts; imposing additional financial burdens on people with disabilities; failing to provide adequate confidentiality protections during the admission process; and implementing burdensome, intrusive, and unnecessary conditions on bar admission based on the individual’s mental health diagnosis or treatment.

The first part of the letter talks about those questions on the character and fitness exam that we talked about in our previous blog involving DOJ’s response to the Vermont Commission on Human Rights. The reader is referred to that particular blog entry discussing why those questions are in violation of the ADA.

However, the state of Louisiana went much further. In particular:
1) Oftentimes, the only justification given by the admission committee for further investigation when a mental health diagnosis or treatment was disclosed was the applicant’s diagnosis rather than any problematic conduct by the applicant. In fact, the DOJ had a smoking gun from five applicants where the admissions committee told them that further inquiry was necessary given the nature of their diagnosis;

2) upon receiving a disclosure of an MH diagnosis, it was not unusual for the admissions committee to insist on an independent medical examination complete with extensive records, all at the applicant’s expense;

3) the admissions committee frequently recommended conditional admission in the event of an MH history even where there was no evidence of conduct suggesting that conditional admission was warranted and even where medical evidence and/or successful years in practice in another jurisdiction were to the contrary. In fact, the state of Louisiana would treat people with substantial misconduct more favorably than people with a history of MH when it came to getting admitted to the bar.

4) the conditional admission was a standard set up and not based upon the facts of the individual applicant. That standard set up often was a longer term of duration than for those who had engaged in serious financial, criminal, or other misconduct.

5) the conditional admission process and the documentation supporting the conditional admission process was public information. Accordingly, private information about applicants who happened to have MH was fully available to the public.

6) the monitoring agreement that went along with the conditional admission was referred to as a probation agreement and the person doing the monitoring was referred to as a probation monitor creating the inference that the applicant had committed misconduct.

7) the standard agreement required certain medical monitoring regardless of whether the facts justified that.

The Department of Justice was not happy with these practices. In particular, they found:

1) the decision to request medical records appeared to be based purely on diagnosis rather than on conduct. Such a decision ignored the admissions committee own statutory mandate that required it to evaluate an applicant’s conduct. It also, since conduct was not an issue, engaged in impermissible stereotyping, which is prohibited by the ADA.

2) the investigations based solely on the diagnosis of MH also violated the ADA because it imposes unnecessary burdens on applicants with disabilities that were not imposed on others. In particular, MH treatment very often involves a discussion of intensely personal issues not related to the practice of law and yet the admissions committee wanted to see all of that in their deliberations. In other words, Louisiana applicants with disabilities, and particularly those with MH issues, are required to disclose information that is highly personal and potentially embarrassing simply because they reveal that they were a person with MH. In essence, what the admissions committee is doing, according to the Department of Justice, is requiring an additional investigation solely because of an applicant’s disability, which violates the ADA.

3) it violates the ADA when the admissions committee recommended conditional admission for applicants where there is no evidence of conduct that warrants such a decision, but is instead based upon a person’s MH diagnosis. The DOJ cited to one case where besides the MH diagnoses, the only negative response concerned a traffic ticket and falling behind on credit card payments. This particular person had been practicing law without incident in another jurisdiction for six years. Such a decision is one based on stereotypes about people with MH diagnosis and violates the ADA. Any such decisions has to be based upon an applicant’s record of conduct and not their MH history.

4) attorneys who were conditionally admitted based upon their MH diagnoses had much more difficulty finding employment, had to share information about their MH diagnoses with employers, were treated differently because their employers and colleagues were aware of their MH status, had to disclose client files and be distracted from the work by inflexible monitoring requests. Also, since the monitoring is so intrusive regardless of whether the actual facts demand it, attorneys with MH have been less than candid with their psychiatrist or have refrained from considering a full range of treatment options. They also have been forced into making career decisions based on their conditional admission status and monitoring requirements rather than on talents and interests.

5) the ADA requires if you are going to conditionally admit someone because of their disability, that an individual analysis be performed and the state of Louisiana did not do that.

6) title II of the ADA, DOJ cited to an appendix here, prohibits imposing additional burdens on persons with disabilities not imposed on others. The state of Louisiana was violating that as well because they required an applicant with an MH history to pay the cost of any independent medical examination required by the committee. Further, once the monitoring agreement is in place, all costs associated with the monitoring agreement has to be paid for by the applicant. In essence, what the state of Louisiana was doing here is that they were passing along the cost of any reasonable modifications along to the bar applicant in violation of the implementing regulations.

7) the public nature of the conditional admission forces a conditionally admitted attorney to disclose a disability to employers and colleagues in order to avoid a presumption that they were conditionally admitted because of criminal history, financial delinquency, or other misconduct. That potentially violates a liberty interest that the individual has in such information (as an aside, I note that employers under title I of the ADA are required to keep disability related information confidential and apart from personnel files). Further, publicizing an applicant’s medical information has disastrous effects. In particular, it enables prospective employers, clients, or opposing counsel to act on stereotyped notions about individuals with MH. It also creates a chilling effect by deterring individuals from pursuing the legal profession and/or seeking treatment, reduces employment opportunities available to lawyers with disabilities by allowing the prospective employers to access information about the disability to which employers would not otherwise be entitled.

DOJ after all this then threw down the hammer insisting that the state of Louisiana cleanup their act so to speak. In particular:

1) Louisiana needs to stop using the character and fitness questions that go to a person’s MH diagnoses;

2) Louisiana needs to focus on applicant conduct and not on their MH diagnosis or treatment for such diagnoses when considering their fitness to practice law;

3) a person’s MH history cannot be used as the basis for determining whether further investigation is warranted. Conduct is the key not diagnoses;

4) conditional admission should be based upon conduct and not based upon stereotypes;

5) conditions of admission must be individually tailored to address the specific situation;

6) Louisiana has to stop imposing additional burdens on applicants with MH, including impermissible costs;

7) Pending applications must be evaluated without consideration of any affirmative responses to the prohibited questions asking about MH history in the national conference of bar examiner report;

8) require Louisiana to go back in time and fix any problems. For example, Louisiana has to take immediate steps to terminate the conditional bar admissions unless there are conduct concerns not mitigated by the applicant’s voluntary disclosure of information related to MH diagnosis and treatment;

9) for individuals whose conditional admissions are terminated, the state of Louisiana has to expunge all documents and records relating to the conditional admission and ensure that any references to the conditional admission are not publicly available;

10) any conditional admissions that are currently in place for nondiscriminatory reason must be reevaluated to ensure that the conditional admissions are tailored to address only the conduct warranting conditional admission and ensure that any and all medical or health-related information is kept strictly confidential;

11) with respect to applicants denied admission as a result of disclosing MH diagnoses pursuant to the prohibited questions, the state of Louisiana has to reevaluate their original applications without consideration of their affirmative responses; invite qualified individual to update their application for admission to the Louisiana bar without additional expense; reevaluate and process the updated applications on a priority basis without considering the MH diagnoses or treatment for that diagnoses;

12) for those applicants who withdrew from the admission process because of their response to the prohibited questions, the state of Louisiana needs to inform those individuals of the revisions with respect to character and fitness and invite them to reapply for admission to the Louisiana bar without additional expense. Also, they need to consider their application without considering their MH diagnoses or treatment and focus only on conduct.

13) PAY COMPENSATORY DAMAGES TO INDIVIDUALS WITH MH SUBJECTED TO DISCRIMINATION DURING THE BAR ADMISSION PROCESS

14) provide to the United States following each admission ceremony for the next five years information regarding Louisiana’s ongoing efforts to comply with title II consistent with the DOJ letter of findings.

Takeaways:

One word WOW!

Seriously, WOW!!!!

1) That said, it is now very clear that states engaged in similar conduct to Louisiana may want to seriously reconsider how they go about their business. The Department of Justice in this letter makes it very clear that they will bring the full weight of the Department of Justice down on attorney licensing authorities engaged in discrimination in violation of the ADA.

2) it may not be so easy for licensing authorities to rely on otherwise qualified/qualified, which the South Dakota Supreme Court did, as a vehicle to undertake a freewheeling investigation of an applicant’s MH history in light of this letter to Louisiana. That said, if I were representing the licensing authorities and wanted to have more freedom with respect to MH investigations, it is certainly the otherwise qualified angle that I would rely on.

3) any entity that licenses professionals needs to read this letter to see how their practices comport with this letter.

4) notice that the Department of Justice is insisting on compensatory damages for bar applicant that were discriminated on the basis of their disability by the state of Louisiana.

5) Clearly the letter is a huge victory for applicants with MH seeking to become attorneys.

Finally, the views contained herein are my own and do not necessarily represent those of any organization that I am affiliated with or am a part of or of any clients that I may represent.

In the first and second editions of my book, understanding the ADA, I cited to the case of Burch v. Coca-Cola Company, 119 F.3d 305 (5th Cir. 1997), for the proposition that temporary disabilities are not protected by the ADA. However, I did say as a preventive manner, it made sense to treat temporary disabilities as you would a permanent disability since what was a temporary disability was uncertain. By the time of the fourth edition, which has just been published by the American Bar Association in the last few months, things were quite a bit different. I still say that a temporary disability is not covered under the Americans with Disabilities Act as amended. However, I go on to say that just how long a temporary disability has to go on to no longer be a temporary disability for purposes of the ADA is far from clear. The EEOC in their final regulations implementing the amendment to the Americans with Disabilities Act does say that it is possible for a disability to arise even if it lasts, or is expected to last, for less than six months. Their view is that the reference to disabilities that are transitory and minor (a natural or expected duration of six months or less), that appears in the amendments to the ADA (ADAAA) is restricted to claims alleging that the person was discriminated against by an employer who regarded him or her as having a disability. The Department of Justice in their recently proposed regulations implementing the ADAAA adopts this view as well.

So, what does the case law say?

Many people have commented on the decision of the Fourth Circuit of January 23, 2014, Summers v. Altarum Institute, Corporation,, _ F.3d_, 2014 WL 243425, which found that temporary disabilities of a certain severity can be protected under the ADAAA, including two people whose blogs are in my blogroll (Jon Hyman and Robin Shea). Since this decision is a huge decision in ADA jurisprudence, I thought I would add my own comments. As has been my practice lately, this blog entry is divided up into different sections: facts, issue, the court’s reasoning, and takeaways. The reader is free to zero in on any or all of the sections.

I
Facts

In this case, the plaintiff, Karl Summers, was a senior analyst for a government contractor, where he conducted statistical research, wrote reports, and made presentations. The defendant did have a policy of authorizing employees to work remotely if the client approved. The particular client that he was working for preferred people to work on site during business hours, but did permit people to work remotely from home when putting in extra time on a project. On October 17, 2011, the plaintiff fell and injured himself while exiting a commuter train on his way to work. He had a heavy bag slung over his shoulder and lost his footing and struck both of his knees against the train platform. He was taken to the hospital where doctors determined that he sustained serious injuries to both legs. In particular, he had fractured his left leg and tore the meniscus tendon in his left knee. He also had fractured his right ankle and ruptured the quadricep-patellar tendon in his right leg. Repairing the left leg fracture necessitated surgery to fit a metal plate, screws, and bone into his tibia. Repairing his ruptured right quadriceps required yet another surgery to drill a hole in the patella and re-fasten his tendons to the knee. His doctors forbade the plaintiff from putting any weight on his left leg for six weeks and estimated that he would not be able to walk normally for seven months at the earliest. Without surgery, bedrest, pain medication, and physical therapy, the plaintiff alleged that he would likely not have been able to walk for more than a year after the accident. While hospitalized, the plaintiff contacted an HR representative of the defendant about obtaining short-term disability and working from home as he recovered. That representative agreed to discuss accommodations that would allow Summers to return to work but suggested that he take short-term disability and focus on getting well again. The plaintiff went ahead and sent emails to his supervisors at his company and at the company that his company was contracting for about how to return to work, even suggested a plan in which he would take short-term disability for a few weeks and then start working remotely part-time and gradually increasing until he was working full-time again. The defendant granted him short-term disability benefits but never followed up on the plaintiff’s request to discuss how he might successfully return to work. Neither did the defendant suggest any alternative reasonable accommodations or even engage in the interactive process with Summers, the plaintiff. For that matter, they didn’t tell the plaintiff that they had any problem with the plan for a graduated return to work, rather on November 30, the defendant simply terminated the plaintiff’s employment in order to place another analyst in his role at the company he was contracted out to. The district court dismissed his claim and the plaintiff appealed to the Fourth Circuit.

II
The Issue

Can a person with a sufficiently severe temporary impairment have a disability under the Americans with Disabilities Act as amended (ADAAA)?

III
The Court’s Reasoning finding that a temporary impairment can constitute a disability under the ADA as amended:

1. The court refers to the definition of a disability under the ADA. It then notes that the ADAAA broaden the definition of disability by explicitly stating that the amendments were meant to override Toyota Motor Manufacturing, Kentucky, Inc. v. Williams 534 U.S. 184 (2002), which adopted a strict construction of what a disability is under the ADA and also suggested that a temporary impairment does not qualify as a disability under the ADA (as mentioned above, other cases had held prior to that that a temporary disability was not protected under the ADA). In particular, the ADAAA specifically stated that Congress believed that Toyota Motor set the standard too high as to what constituted a disability for purposes of coverage under the ADA and goes on to say that the definition of disability has to be construed in favor of broad coverage of individuals under the ADA to the maximum extent permitted.

2. The ADAAA also goes on to say that the term substantially limits has to be interpreted consistently with the liberalized purposes of the amendment to the ADA and instructed the EEOC to effectuate that. The regulations issued by the EEOC implementing the ADAAA said that substantially limits has to be construed broadly in favor of expansive coverage and that the term is not a demanding standard (the DOJ in their proposed regulations implementing the ADAAA takes the same position). The final EEOC regulations (for that matter, the DOJ proposed regulations as well), says that an impairment lasting or is expected to last fewer than six months can be substantially limiting for purposes of proving an actual disability if sufficiently severe, which the plaintiff’s temporary impairment certainly was. After all, the plaintiff was left unable for seven months to walk. Further, without surgery, pain medication, and physical therapy, it would have been far longer.

3. Prior case law of the Fourth Circuit has never suggested that the ADAAA excluded temporary impairments from the definition of disability.

4. Another factor in the plaintiff’s favor that a temporary disability of sufficient severity is protected under the ADAAA, is that the ADAAA as well as the final regulations implementing that act, requires that a disability has to be considered without regard to mitigating measures such as medication, mobility devices, and physical therapy.

5. Interestingly enough, the plaintiff chose not to challenge the dismissal of his failure to accommodate claim. Nevertheless, the court addressed the issue because the issue of whether the plaintiff was otherwise qualified was likely to arise on remand of the plaintiff’s wrongful discharge claim. The court notes that an employee’s accommodation request, even an unreasonable one, typically triggers an employer’s duty to engage in the interactive process to determine a reasonable accommodation in collaboration with the employee.

A few things of note here. First, the court mentioned that even an unreasonable request for reasonable accommodation triggers the interactive process. Therefore, employers do not want to dismiss an accommodation request, however unreasonable it might be, once it is made. Instead, they need to take that as an initial offer. Second, the Fourth Circuit appears to be one of those circuits where there is a separate cause of action for failing to engage in an interactive process. Finally, it would seem on remand, that the defense is in big trouble here because they did not engage in the interactive process with the plaintiff, did not suggest any alternative reasonable accommodations, did not even tell the plaintiff that they had any problem with the plan for graduated return to work before terminating him.

6. While the ADAAA does impose a six month requirement with respect to regarding someone as having a disability, there is no durational requirement for actual disabilities. Accordingly, that suggested no such requirement was intended and not having such a requirement was consistent with legislative intent.

7. Also, the final EEOC regulations were a reasonable interpretation of the ADAAA. In particular, defining disability to include severe temporary impairments is consistent with purposes of the amendment to the ADA since the stated goal of the amendments was to expand the scope of protection available under the ADA as broadly as the text of the ADA permitted. Encompassing temporary disabilities advances that goal. Further, prohibiting employers from discrimination against persons with temporary disability is a burden on the employer for only as long as the temporary disability lasts. That is, temporary disabilities require only temporary accommodations.

8. In light of paragraph 6 and paragraph 7 above, the EEOC’s final regulations implementing the ADAAA were entitled to deference per Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

9. How a person suffers a disability is irrelevant to the analysis of whether a person has a disability under the ADAAA. Further, nothing in the EEOC regulations would suggest that an injury cannot be an impairment and in any event, would most certainly include broken bones and torn tendons, which would substantially limits the major life activity of walking.

III

Takeaways:

1. The Department of Justice proposed regulations implementing the ADAAA, which I discussed last week and which echo the EEOC final regulations with respect to temporary disabilities, would also likely, in light of this decision, be entitled to Chevron deference.

2. How a person becomes a person with a disability under the ADA is completely irrelevant to whether the person has a disability. The only question is whether a person meets one of the definitions of having a disability under the ADA as amended.

3. A request for a reasonable accommodation, however unreasonable that request might be, triggers the interactive process.

4. There seem to be a trend developing that failure to engage in the interactive process is a separate cause of action.

5. A temporary disability of sufficient severity can be protected under the ADA’s actual disability prong.

6. I have said this before, but in light of this decision, it becomes even more imperative for a plaintiff to allege actual disability if they are also alleging regarded as having a disability in their complaint, and especially so if the disability is a temporary one.

6. So what is an employer to do? Good question. It is absolutely true that an impairment that is both transitory and minor lasting less than six months is not protected if a person is alleging that they were regarded as having a disability. That said, as a preventive measure, the employer should strongly consider treating all disabilities, temporary or otherwise, as they would a permanent disability if that disability satisfies the actual disability prong of the ADA. Second, it has to be remembered that a person with a disability also needs to be qualified and so that needs to be factored in as well. Finally, another way/approach is to say that a disability that is transitory AND minor is not protected by the ADA as amended providing the term “minor,” refers to an individual that is not substantially limited in a major life activity as defined by the ADAAA, regardless of how long the impairment is expected to last. The only difference between the two approaches is one of terminology and not of substance since under this approach, “minor,” is being narrowly defined as to whether a person is substantially limited in a major life activity as defined by the amendments to the ADA.

Last week, the Department of Justice proposed rules implementing title II and title III of the ADA in light of the amendments to the ADA. I’m not going to go into depth here, but I thought I’d go over some particularly significant items in the proposed rule. Of course, what follows is not comprehensive and is not meant to be a substitute for thoroughly reading the rules yourself.

1. What DOJ essentially did was adopt the EEOC regulations implementing title I of the ADA. That includes adding the major life activities added by the EEOC of reaching, sitting, and interacting with others. In particular, the major life activity of interacting with others could have a huge impact on students with disabilities at all levels of education. There are many disabilities which would limit the ability of a person to interact with others, such as: anxiety, autism, possibly ADHD, etc.

2. With respect to physical and mental impairment, DOJ is proposing to add the immune system and circulatory system to those that may be affected by physical impairment.

3. Also, with respect to physical and mental impairment, DOJ is proposing to add a reference to dyslexia as an example of a specific learning disability falling within the phrase, “physical or mental impairment.” The reasoning is that they have become aware that some entities mistakenly believe that dyslexia is not a clinically diagnosable impairment. In fact, the Atlanta Journal-Constitution (to read the full article, unless you are a subscriber to the Atlanta Journal-Constitution, which I am, you will have to jump through some additional hoops to read it), just within the last couple of weeks, had a big article about how school systems are simply refusing to modify their programs and activities and/or offer special services under IDEA on the belief that dyslexia is not a disability (keep in mind that IDEA’s view of a disability is quite a bit different than the view of § 504 of the Rehabilitation Act and the ADA). That said, K-12 schools have to comply with § 504 of the Rehabilitation Act and title II or title III of the ADA as well. Using the phrase, “such as dyslexia” means that there is room for other learning disabilities besides dyslexia that may fall within the definition of specific learning disability. In fact, DOJ fully expects compliance costs to go up with respect to making modifications to accommodate students with learning disabilities.

4. DOJ is proposing to add several rules of construction with regards to determining whether an impairment substantially limits an individual in a major life activity. These rules of construction appear in virtually identical separate sections of the regulations, one devoted to title II and another devoted to title III. Those rules of construction are:

A. The term “substantially limits,” is to be construed broadly in favor of expansive coverage to the maximum extent permitted by the ADA. “Substantially limits” is not meant to be a demanding standard. By saying “substantially limits,” is not meant to be a demanding standard, that is likely to have a huge impact on colleges and universities , K-12, and on testing entities in two respects. First, many students that come into colleges and universities from the IDEA world have to submit new and independent documentation to their colleges and universities in order to receive accommodations from their colleges and universities for their disabilities. Now colleges and universities are going to have to be more careful as to just how much documentation they insist upon. Also, if the IDEA documentation is current or relatively new, one wonders about the viability of insisting upon new independent documentation with respect to the disability in light of these regulations.

Second, many testing entities, such as the LSAT, medical licensing examiners, etc. require extensive documentation before they will accommodate a student with a disability on their exams. That practice of requiring extensive documentation before a student will be accommodated on their exams is now called into question. That said, the testing entities are still under no obligation to fundamentally alter the nature of the test, but it should become much easier now for a person with a learning disability and/or MH issue to receive accommodations on these tests.

B. An impairment is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. That is, an impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. This is an identical position taken by the EEOC in their implementing regulations of the amendments act. See also paragraph D below.

C. The primary object of attention in cases under title II or Title III of the ADA should be whether the title II or title III entity has complied with their obligations and whether discrimination has occurred and not on the extent to which an individual’s impairment substantially limits a major life activity. Therefore, the threshold issue of whether the impairment substantially limits a major life activity should not demand extensive analysis. Again, this echoes the EEOC view. See also paragraph A above.

D. The determination of whether an impairment substantially limits a major life activity requires an individualized assessment. However, that assessment shall be interpreted and applied to require a degree of functional limitation the lower than the standard for substantially limits that applied prior to the ADA amendments act. This particular paragraph is referring to how the ADA amendments act overruled the case of Toyota Motor, Kentucky v. Williams, 534 U.S. 184 (2002), where the United States Supreme Court held that for a person to be substantially limited in the major life activity of performing manual tasks, that person has to be severely restricted or prevented from performing that major life activity. That standard was then being applied across all disabilities by a variety of cases.

E. The comparison of an individual’s performance of the major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical evidence, though such scientific, medical, or statistical evidence can be used where appropriate. This echoes the EEOC position. Also, see paragraph A above.

F. The determination of whether the impairment substantially limits a major life activity has to be made without regards to mitigating measures. The only exception being, ordinary eyeglasses or contact lenses are considered in whether an impairment substantially limits a major life activity. Ordinary eyeglasses or contact lenses are lenses intended to fully correct visual acuity or to eliminate refractive error. This is a provision actually demanded by the amendments to the ADA. As I point out in the fourth edition of my book, the provision makes sense because with the exception of ordinary eyeglasses or contact lenses, everything else that ameliorates a disability doesn’t cure a disability at all, rather it just compensates for it.

G. An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. Again, this echoes the EEOC, and it’s a change required by the amendments to the ADA, which specifically contains this mandate.

H. An impairment that substantially limits a single major life activity need not substantially limit other major life activities in order to be considered a substantially limiting impairment. Again, echoing the EEOC, and making the statement that case law holding otherwise is not correct.

I. The six-month transitory part of the transitory and minor exception that deals with a person being regarded as having a disability does not apply to the, “actual disability” or “record of,” prongs of the definition of disability. That is, the effects of an impairment expected to last less than six months can be substantially limiting within the meaning of this section with respect to a person alleging an actual disability or having a record of a disability. This also echoes the EEOC and gets behind the recent Fourth Circuit case of Summers v. Altarum Institute, Corporation. I would expect that this particular rule of construction would also be a game changer because, especially when it comes to students, they frequently injure themselves and over time can recover quite nicely. Some of those injuries can be quite serious.

In short, I encourage everyone to thoroughly read the proposed regulations and if you so desire, comment on them as well. The time for commenting ends March 31, 2014. In many ways, these regulations are expected because it is important for the EEOC and the DOJ to be on the same page, but since the context is different between DOJ, which has jurisdiction over title II and title III of the ADA, and the EEOC, which has jurisdiction over title I of the ADA, they impact things differently.