In a previous blog entry, I talked about how a person with an MH history desiring to be an attorney faces an uphill climb with respect to the State Bar’s character and fitness gauntlet that has to be run. In particular, I talked about a case from the Supreme Court of South Dakota that denied a person with MH a license to practice law in South Dakota despite having passed the bar and having obtained a license to practice law in another jurisdiction. Now, the Department of Justice has weighed in via a response to a letter from the Vermont Human Rights Commission inquiring about whether the questions contained in the typical request for preparation of a character report violate the ADA. The Department of Justice letter concludes that it does.

The questions at issue, which are found in the National Conference of Bar Examiners standard request for preparation of a character report, are:

25. Within the past five years, have you been diagnosed with or have you been treated for bipolar disorder, schizophrenia, paranoia, or any other psychotic disorder?

26A. Do you currently have any condition or impairment (including, but not limited to, substance abuse, alcohol abuse, or a mental, emotional, or nervous disorder or condition) which in any way currently affects, or if untreated could affect, your ability to practice law in a competent and professional manner?

26B. If your answer to question 26A is yes, are the limitations caused by your mental health condition or substance abuse problem reduced or ameliorated because you receive ongoing treatment (with or without medication) or because you participate in a monitoring program?

27. Within the past five years, have you ever raised the issue of consumption of drugs or alcohol with the issue of a mental, emotional, nervous, or behavioral disorder or condition as a defense, mitigation, or explanation for your actions in the course of any administrative or judicial proceeding or investigation; any inquiry or other proceeding; or any proposed termination by an educational institution, employer, government agency, professional organization, or licensing authority?

People who respond affirmatively to question 25 or 26 have to complete a form authorizing each of the treatment providers to provide information without limitation relating to mental illness, including copies of their records pertaining to advice, care, or treatment provided. They also have to complete a form describing the condition and treatment or monitoring program. Finally, they are required to furnish a thorough explanation.

The Department of Justice in their letter from Jocelyn Samuels, Acting Assistant Attorney General, to the Executive Director of the Vermont Human Rights Commission said that these questions are unnecessary, overbroad, and burdensome for applicants. The letter reasoned as follows:

1. Conduct related questions enable states to assess effectively and comprehensively an applicant’s fitness to practice law in response to conduct related questions can be taken into account by the State Bar. Numerous questions on the standard form seek information concerning an applicant’s conduct. For example, the questions go to whether a person has been the subject of charges, complaints, grievances, or other discipline related to professional conduct or complaints in an administrative forum. Other questions go to whether a person has been cited for, arrested for, charged with, or convicted of any violations of the law. Yet other questions go to whether a person has had adverse action taken against him or her by a college or university. Then there are questions going to whether a person has been terminated, laid-off, permitted to resign, or disciplined by an employer and whether the person has managed debt and credit responsibly. All of which go to in a nondiscriminatory manner whether an applicant is currently fit to practice law.

2. While states often use the National Conference of Bar Examiners character and fitness application as a tool for conducting character and fitness screenings, using a third party to gather that information does not insulate a public entity from complying with the ADA. Also, it is state offices that determine how to interpret the National Conference of Bar Examiner report, what actions to be taken based on that report, and how the information in that report is applicable to the applicant’s fitness to practice law. Thus, the State Bar licensing authorities have the obligation to comply with the ADA (a point that the South Dakota Supreme Court agrees with, though not necessarily as to what it means).

3. Questions as to conduct are one thing but questions as to status are quite another. That is, the applicant’s MH diagnosis and treatment history are being presumed to be questions appropriate for further investigation. As such, the inquiries are based upon mere speculation, stereotypes, or generalizations about people with disabilities and are prohibited by the ADA. Such questions screen out persons with disabilities in violation of the ADA and the implementing regulations.

4. The questions are not necessary to achieve the objectives of whether individuals applying for admission to the bar are fit to practice law because there are other effective nondiscriminatory methods for identifying unfit attorney applicants already covered in the standard request for preparation of a character report. In addition to not effectively identifying unfit attorney applicants, the questions also have an effect counterproductive to the objective of ensuring that license attorneys are fit to practice.

5. In addition to the numerous questions in the standard application for character and fitness that go to conduct, prospective attorneys are also required to provide at least six personal references as well as contact information for every employer and residence for the past 10 years. Between all of that, a comprehensive basis for determining an individual’s fitness to practice law exists and it is not necessary to resort to discrimination regarding a person’s mental health history. Also, follow-up questions are permitted if a state bar licensing authority determines that the response to the standard questions going to conduct do not provide enough information to determine whether the person possesses the character and fitness to practice law.

6. The best predictor for present and future mental fitness is past behavior and not diagnosis. Further, history of mental health diagnosis or treatment does not provide, according to the experts, any basis for predicting future misconduct. In fact, both Rhode Island and Virginia have agreed that attorney licensing question related to MH status of treatment are unnecessary because they have little if any predictive value.

7. Question 26A, which inquires into the possible effect of an applicant’s disability if untreated, focuses the question on the diagnosis and not the real effect of that diagnosis on his or her fitness to practice law. It also focuses on the hypothetical future and not on the applicant’s future ability to practice law. In essence, it assumes a worst-case scenario, which may never happen. Further, the question is intended to single out individuals with an MH condition or substance abuse problem because it assumes that a yes answer is related to those conditions. The Department of Justice did note that if the language, “if untreated could affect” were taken out, then the question becomes focused on conduct and would be permissible.

8. Question 27 also singles out MH diagnoses unnecessarily because numerous other questions in the standard report would get the bar to the same place. Therefore, question 27 is unnecessary.

9. The effect of the questions is likely to deter applicant from seeking diagnosis, counseling and/or treatment for mental health concerns since disclosure would make it extremely difficult for them to become members of the bar. That doesn’t make a lot of sense to the Department of Justice if the purpose is ensuring the fitness of licensed attorneys. In particular, the court referenced the case against the state of Virginia, Clark v. Virginia Board of Bar Examiners, where a law school counselor testified that many students with MH issues are deterred from seeking treatment for MH matters. Any questions that deter applicants from seeking mental health treatments rather than ensuring that licensed attorneys are fit to practice sends the message that a person with an MH history cannot come out if they want to be a licensed attorney. Such a message, according to the Department of Justice, has the perverse effect of preventing those who could benefit from treatment from attaining it while penalizing those who are better able to successfully practice law because they have acted responsibly in taking steps to manage their condition.

10. While investigation into conduct is permissible, a history of MH cannot be used as a screening device to determine whether further investigation is needed because that places additional burdens on applicants with disabilities that are not placed on applicants without disabilities and as such violates the ADA.

11. MH diagnoses cannot be used as the basis of restrictions or conditions on applicant’s license to practice law because of that diagnosis. (Full disclosure here. I am the president of the National Association of Attorneys with Disabilities and our organization signed on to a letter from the Bazelon Center For Mental Health Law to the Department of Justice saying that this practice, which is happening in Louisiana, violates the ADA). That is, a person qualified to be admitted to the bar as an attorney cannot be relegated to a separate admission status solely on the basis of the MH diagnosis unless conduct indicates otherwise. However, if such conduct indicates otherwise, then separate admission status is permissible providing it is justified by objective evidence of the applicant’s conduct and not based upon generalization or stereotypes because of the applicant’s MH diagnosis.

12. MH information can be requested only in the situation where an applicant’s mental health condition currently affects his or her fitness to practice law. Also, the bar licensing authorities do have the option to request voluntary disclosure of disability related information as a mitigating factor in the admission process if the bar licensing authority intends to recommend denial or restriction of admission because of conduct. It is in those situations that the Department of Justice believes an applicant should be provided with a voluntary opportunity to present disability related information explaining the conduct.

13. With respect to 12, such request by the bar licensing authorities has to be limited and narrowly tailored to assess the impact of the condition that was voluntarily disclosed on the applicant’s current fitness to practice law application, and any health-related information or records has to be kept strictly confidential. The Department of Justice views the confidentiality piece as being particularly important because if there is a lack of confidentiality, additional burdens are placed on the applicants in violation of the ADA. It also may violate an applicant’s liberty interest. Finally, exposing the information prevents individuals with disabilities from pursuing the legal profession, seeking treatment, and also reduces employment opportunities by allowing prospective employers to find out information about the disability which they would not be otherwise entitled to have.

Takeaways:

1. I don’t know what the timeframe is for reconsidering a decision of the South Dakota Supreme Court, but it seems that this particular individual, if it is not too late, would want to see if he could not get the Department of Justice involved in light of this letter. The problem this particular applicant would have is that the South Dakota Supreme Court had many issues before it pertaining to the applicant’s conduct and it wasn’t simply a matter of an MH diagnosis. That said, there are aspects of the decision that would be considered problematic in light of the Department of Justice letter.

2. It will be interesting to see whether state bars push back against the Department of Justice. After all, it is the courts that are going to have the final say. The stigma associated with MH being what it is, it is unclear just how the courts would react. As the South Dakota Supreme Court mentions in their decision, the way the ADA is structured, where a person has to be a person with a disability as well as a qualified individual, that could give the state bars considerable latitude in their investigation. Where that latitude turns into discrimination, may be a point that some state bars choose to determine in the courts. Finally, there are decisions out there that allow state licensing authorities for attorneys to inquire into an applicant’s mental health diagnosis, but the Department of Justice believes that those decisions are wrongly decided and are inconsistent with the ADA. That said, state bars may disagree with that premise and attempt to rely on those decisions upholding the questions. The final answer will have to be worked out in the courts.

3. The letter is certainly a victory for persons with MH as it shows where the Department of Justice stands on the matter and is a wake-up call to state bars so that they now know there are additional risk to some of their ongoing practices.

4. As a preventive manner, a bar licensing authority is probably better off if it wants to prevent litigation eliminating the MH questions mentioned above and ensuring that any investigation is narrowly focused on conduct going to whether the person can practice law. Alternatively, if a state bar licensing authority wanted to rely on the decisions allowing these questions, which probably means expensive litigation via taking on the Department of Justice at some point, then any investigation as a result of these questions being answered should be extremely narrowly tailored to finding out how the condition affects current fitness to practice law. Any investigation going beyond that would be extremely problematic.

5. I look for a lot of litigation going forward in the area of persons with MH trying to get admitted to state bars and to being able to practice law without restrictions.

6. Other licensing bodies for other professions are going to want to read this letter to see if their practices, particularly if they are inquiring as to MH history, are exposing them to ADA liability.

Finally, as my disclaimer to my site says, the opinions expressed here are my own and not necessarily representative of any organization that I am a part of.

Erik Beard, an attorney with the law firm of Wiggin and Dana and who has a blog on legal issues affecting amusement parks , has been talking for some time about a case out of the central district of California that squarely presents the issue of whether amusement park rides must be accessible to persons with disabilities. That case is Castelan v. Universal Studios Inc. out of the central district of California. Erik graciously shared with me the summary judgment decision in favor of Universal Studios Inc., which was rendered by the court, Judge O’Connell, on January 10, 2014. Erik does a fabulous job in his blog of talking about this case and analyzing it, but I thought I would offer my own perspective.

The case involved two plaintiffs with disabilities. One of the plaintiffs has no arms or hands while the other plaintiff has no legs. Universal Studios Inc. is the owner and operator of a major amusement park, whose attractions, among others, includes roller coasters. One of the roller coasters, “the mummy,” requires that a person must have a minimum of one functioning arm and hand and at least one leg. The plaintiffs were precluded from riding that particular roller coaster and believing they were wrongfully discriminated against on the basis of disability, they filed suit.

In granting the motion for summary judgment on behalf of Universal Studios Inc., the court reasoned as follows:

1. § 3195.3 of the California Code of Regulations requires the owner and operator of a permanent amusement park ride to maintain procedures for implementing patron safety measures necessary to ensure the operation of the ride in a manner safe for everybody. Those safety measures according to that regulation, must at a minimum implement all specific manufacturer recommendations. The restrictions for the mummy roller coaster issued by the manufacturer includes that a rider must have one functioning arm/hand and be capable of grasping handle points and maintaining safe posture. Those restrictions also include that the rider have at least one leg that can be placed behind the shin pad and at least one foot placed flat on the floor.

2. Interestingly enough, the court noted in a footnote that the manufacturer restriction didn’t actually say that a rider must have at least one leg and foot. That said, the court believed that the manufacturer restriction required it implicitly because the manufacturer’s restriction required that guests must place their leg or legs behind the shin pad and where possible place his or her feet flat on the floor. The manufacturer restriction also said that it would be unacceptable to have a cast on the foot preventing the foot from getting under the shin pad.

3. Very importantly, the court noted that the issues before it had evolved over time. The latest evolution, which was before the court, was that plaintiffs were contending that the defendant violated by the ADA by failing to design a ride without rider eligibility criteria that excludes patrons with disabilities. That is, did the defendant discriminate against persons with disabilities in the ride, design, alteration and procurement process, which occurs way before the operations manual for the ride is even put together by the manufacturer.

To my mind, placing the case in this way was a critical strategic decision, and one which backfired on the plaintiffs. That is, it one thing to say that title III prohibits discrimination on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. It is quite another to say that the ride itself must be accessible to persons with disabilities.

4. California law requires enforcement of the manufacturer’s recommendation.

5. Citing to Weyer v. 20th Century Fox Film Corp. 198 F.3d 1104 (9th Cir. 2000), a case that I discussed in my book, the court said that the ADA does not require the provisions of different goods or services, rather it requires the nondiscriminatory enjoyment of the services that are provided.

That is true. However, it is hard for me to understand how a person could enjoy the full and equal enjoyment of the goods, services, facilities, privileges, advantages, of an amusement park unless the ride was accessible. But again, the critical piece is that the plaintiff focused on ride accessibility and not on the full and equal enjoyment of the amusement park.

6. While title III does not govern the goods and services that a place of public accommodation offers, it does govern how the place of public accommodation provides them. Accordingly, Universal Studios was under the obligation to ensure that the goods, services, and roller coasters are physically accessible to persons with disabilities even if those persons were not able to actually ride the ride itself due to the ride’s design and safety requirements.

7. The court also went on to say that the Code of Federal Regulations implementing the ADA allows for an amusement park to exclude persons with disabilities due to safety concerns. In particular, the court cited 28 C.F.R. § 36.301(a)-(b), which states that a public accommodation may impose legitimate safety requirements that are necessary for safe operation. The court also cited to the Federal Register (the Court in the opinion on Pacer uses a CFR reference here but in actuality it should be a federal register cite), for talking about two examples DOJ gives for what might be safety requirements (height requirements for certain amusement park rides and a swimming requirement with respect to recreational rafting expeditions).

All true enough. However, there is a second sentence of 28 CFR § 36.301(b) that is not cited by the court. In particular, that section says, “safety requirements must be based on actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities.” That sentence seems very analogous to the concept of “direct threat,” which is found in title II of the ADA at 42 U.S.C. § 12182(b)(3) and in title I of the ADA at 42 U.S.C. § 12111 (3). “Direct threat,” is not a concept that you see in title III of the ADA , but nevertheless the second sentence of 28 C.F.R. § 36.301(b) arguably seems to be referring to Chevron, U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002), where the court said that any direct threat defense has to be based on a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence. Of course, if this is what the Department of Justice is referring to, it would place an impossible burden on the operator of the amusement park’s as the park’s personnel would have no way of evaluating whether the particular person with a disability was indeed a direct threat. I suppose it is theoretically possible that some kind of advanced system could be set up where the amusement park would evaluate each person with a disability on an individual basis in advance. However, that would put a tremendous burden on the amusement park operator and it would also eliminate any spontaneity by the person with a disability. Nevertheless, it does seem to suggest that any ride restrictions need to be based upon actual risks, however that might be determined.

8. The court said that they were unwilling to second-guess the manufacturer’s safety requirements and that California law requires enforcement of the manufacturer’s safety requirements. The problem with this is that if there is an actual conflict between federal law and state law, federal law prevails. Even so, in this situation, it is extremely complicated. First, there is the issue of whether the federal regulation talking about actual risks is clearly consistent with the ADA (it well could be). Second, there may not even be a conflict. It is not necessarily a conflict for the federal regulation to insist upon actual risks and for California law to insist upon following manufacturer’s restrictions, which are presumably based on actual risks. That said, the answer could well be different if the manufacturer’s restrictions are not based on actual risks, but rather are based upon speculation, stereotypes, or generalizations about individuals with disabilities.

9. With respect to the manufacturer’s restrictions, if the plaintiff believed that the restrictions are overprotective, the court said that the plaintiffs were free to initiate an action against a manufacturer.

10. The court said that the restrictions themselves are such that a person in a wheelchair may still satisfy the requirement for riding the roller coaster at issue. In particular, someone who is confined to a wheelchair may indeed have a functioning arm or hand or even more. They also may have legs. As an aside, it is unclear from the case as to whether the leg requirement means that the legs has to be functional (the court seem to believe that the leg does not have to be functional, otherwise just about all persons in wheelchairs would be excluded from the ride.

Takeaways:

Does this case mean that amusement parks have carte blanche to have their rides do whatever they need to do regardless of whether the ride is accessible to persons with disabilities? The answer is complicated because:

1. The court did not cite to the second sentence of the federal regulation, which says that safety requirements must be based upon actual risks. Therefore, it is an open question as to what actual risks means. Also, is that standard the same as the Chevron standard or is it something else?

2. This case was styled as a failure to design a ride problem, rather than a full and equal enjoyment issue. To my mind, the full and equal enjoyment issue could well change the direction of the case completely.

3. The effect of the court’s decision is to shift the burden of ADA compliance with respect to the rides from the amusement park to the manufacturer of the rides themselves. That raises the issue of whether the court is in essence delegating a non-delegable duty.

As is my practice, I have divided this blog entry into four parts: the facts of the case; the issues; the court’s reasoning; and the takeaways. Feel free to read some or all of the blog entry.

Consider the following:

I
Facts:

Person has a favorite restaurant. Subsequently, he is involved in an accident and becomes paralyzed. He then desires to go back to that restaurant since he has fond memories of it. Since he is mobility impaired, the person he is with goes into the restaurant to check it out to see if it is accessible to him. That person comes back with a report that the restaurant is not accessible in many different ways, many of which relate to his disability and some which don’t. The mobility impaired person sues alleging violations of both the architectural standards of the ADA and the architectural accessibility rules of California. Other facts include: building was constructed in 1908 as a residence and remained a residence until 1985 when the San Jose building department reclassified it as an office space; significant modifications pursuant to the 1985 change in occupancy occurred in 1986 but those modifications did not include making the front entrance accessible; the prior owners of the restaurant back in 1986 requested an exception from compliance with the handicapped accessibility laws from the city of San Jose; the city apparently granted the owners request with respect to 1985 change in occupancy and the 1986 remodeling; the current owners of the restaurant were unaware of any such activity and never made an attempt to figure out if the restaurant was compliant with federal and state disability access obligations; at least three different restaurants have operated within the building before the current restaurant that the plaintiff wanted to get into was in existence; and in 2007, a fire broke out costing the owners $100,000-$110,000 to repair the resulting damage. Finally, subsequent to the lawsuits, some of the violations, though not all, were remediated by the defendant. The facts are taken from the case of Rodriguez v. Barrita Inc., _ F. Supp. 2d_, 2014 WL 31739 (N.D. Cal. January 3, 2014).

II
Issues

The issues before the court included (in no particular order):

1) Were the repairs made subsequent to the fire such that the architectural guidelines required by the ADA were activated? Does California law reach a different conclusion?

2) If not, did the restaurant still have the obligation to make repairs to the restaurant so as to improve the restaurant’s accessibility to persons with disabilities and who has the burden of proof with respect to showing that such repairs cannot be done? Also, if such repairs cannot be done consistent with architectural guidelines, is the defendant obligated to put in a solution that works for persons with disabilities even though such repairs are not fully compliant with the architectural guidelines?

3) To show standing, is intent to return the key or is deterring people with disabilities from using the facility the key?

4) Can the plaintiff sue for violations of architectural guidelines that have nothing to do with his disability?

5) With respect to the numerous violations of the architectural standards, does the plaintiff under California law get damages for each one or is it is it a single violation based on the visit?

6) Can the accessibility waiver granted in 1986 by the city of San Jose be used by the current owners as a, “get out of jail free card?”

III
Reasoning of the Court

1. For the ADA architectural guidelines to come into effect when an existing facility is being worked on in some respect, that alteration must be one that affects or could affect the usability of the building or facility or any part of that building or facility. While the Department of Justice regulations talk about what an alteration might be, they do not talk about what “usability,” means. In determining what “usability,” means the court looked to a decision from the Second Circuit ( Robert v. Royal Atlantic Corporation, 542 F.3d 363 (2nd Cir. 2008), where that court said that alteration with respect to the ADA would seem generally to include modification that render the facility materially new in some sense rather than modifications that essentially preserve the status and condition of the facility. When the court reviewed the evidence, if found that the repairs made after the fire essentially preserved the status and condition of the building and that the remaining changes appear to have been mostly superficial nature. Therefore, the court concluded that the post-fire repairs did not constitute an, “alteration” for purposes of the ADA.

With respect to the front entrance, California law took the court to a different place than where the ADA would take it. The California regulatory code applies to all alterations made in places of public accommodations after January 31, 1981. It specifically requires that any altered portion of a place of public accommodation, including entranceways, path of travel, and public restroom, be brought into compliance with the applicable accessibility standards at the time. Further, an alteration is any change, addition or modification in construction or occupancy. Accordingly, since the 1985 change in occupancy and the 1986 modifications were an alteration under the California statute, the buildings owners were obligated to comply with the applicable disabled access standards existing at the time. Therefore, the buildings prior owners were required in 1985 and 1986 to make the building’s primary entrance accessible to and usable by persons with disabilities.

2. While the repairs as the result of the fire did not activate the architectural guidelines of the Americans with Disabilities Act, nevertheless, as a title III facility the defendant was obligated to make modification to the extent those modifications were readily achievable. Where a defendant claim that modifications are not readily achievable, it is the defendant that bears the burden of production as well as the burden of persuasion to establish that. Further, that burden applies with respect to each identified barrier to access in the facility. With respect to the restroom, an automatic door opener would make the restroom accessible. An automatic door opener could easily be accomplished and carried out with minimal difficulty or expense and would directly solve the problem posed by the inaccessible restroom. Finally, the Department of Justice recognizes that where compliance with federal accessibility standards is not readily achievable, it is certainly permissible to take barrier removal measures that do not fully comply with the standards so long as those measures do not pose a significant risk to the health our safety of persons with disabilities or others. Also, until the front entrance to be made accessible as required by California law, the restaurant was required to engage in readily achievable measures that would allow accessibility to persons with disabilities with respect to the restaurant. Such a readily achievable measure would include providing curbside takeout service.

3-4. The court without much explanation adopts the standard that intent to return isn’t the key, but rather the key question is whether a person is deterred from entering the facility for purposes of establishing standing. That is, did the encountered barrier interfere with the particular plaintiff’s full and equal enjoyment of the facility thereby making use of the facility more difficult for him or her than it would be for a person without a disability. To the court, that means that standing can only be established with respect to barriers that go to the plaintiff’s particular disabilities. Such a conclusion is also supported because the ADA doesn’t permit private plaintiffs to act as a private attorney general to redress the rights of other people.

With respect to the deterrence v. the intent to return debate, a case that explores why deterrence is meant to be preferred over the intent to return is Kramer v. Lake Hills South, LP 2014 WL 51153 (W.D. Tex. January 7, 2014). That particular court rejected the intent to return theory in favor of the deterrence theory on several grounds. First, allowing standing in most title III cases makes sense since the odds of the injury occurring again are certain where the building is not in compliance with the ADA and the plaintiff and every other person with the same disability is going to confront the same barrier on every future visit. Second, a plaintiff with a disability shouldn’t have to establish imminent future injury because they have an actual and present injury i.e. being deterred from visiting the building. Third, a plaintiff who is deterred from patronizing the store suffers the ongoing actual injury of not being able to access that store. Finally, in a title III case the risk of injury in fact is not speculative so long as the discriminatory barriers remain in place, the plaintiff remains disabled, and the plaintiff is able and ready to visit the facility once it is made compliant.

5. With respect to damages for violating the California accessibility rules, the statute was such that it grants damages per visit and not for each violation.

6. The owners of the restaurant argued that since an exemption was issued in 1985 and 1986 by the City of San Jose, they had a right to rely on that exemption and therefore were simply given a, “get out of jail free card.” Such a defense raises the question of whether the occupant or an owner can avoid state statutory liability by relying upon a municipal building department’s approval of a prior owner’s undue hardship application. However, the court said it wasn’t necessary to address the issue because the evidence established that no defendant actually relied on the city of San Jose’s building department’s 1986 approval. In fact, it wasn’t until after the plaintiff filed a lawsuit, that the defendants even became aware of the application. The fact that the restaurant continued to operate in an out of compliance manner is not enough to use compliance according to the court.

IV
Takeaways:

1. We now have some indication as to what usability means. In particular, you need to evaluate whether the modifications render the facility materially new in some sense.

2. Be aware that state statute and state regulations may go beyond the ADA or they may not. Each state is going to have a different perspective on that.

3. There are two lines of thought with respect to standing (intent to return and deterrence). Check out your jurisdiction as to which standard is being used. Also with respect to what barriers a person has a right to sue under for violating the ADA, my colleague and friend Richard Hunt, who has a blog focusing on title III and the fair housing act that you can find in my blog roll, has long argued that a person only has standing with respect to barriers that specifically relates to his or her disability. This decision gives support to that argument.

4. If a company is going to claim that remediation of certain barriers is not readily achievable, then that company bears the burden of production and the burden of persuasion as to each barrier claimed not to be readily achievable to remediate.

5. Finally, ignorance of the law is no excuse even where you have a situation of multiple owners and where the non-accessible nature of the facility was allowed to go on for some time. This raises the question of whether the risk can be allocated be an indemnity clause, which is an issue we have visited before.

The ADA and alternative dispute resolution are two concepts that mesh very well together. The ADA itself has language in it encouraging dispute resolution. In fact, both the EEOC and the Department of Justice have mediation programs dealing with ADA lawsuits. Also, with the courts having a very favorable view towards arbitrating claims, arbitration has become more common than ever with many employers requiring that their employees to sign arbitration agreements. In addition to the ADA and alternative dispute resolution being such a good fit, alternative dispute resolution has its own advantages. First, it is less expensive than proceeding to trial. Second, it saves time and has less of an impact on a business than litigation does. Finally, mediation in particular allows for the parties themselves to craft their own solutions rather than have a solution imposed upon them by the legal system.

Some of the questions that come up with the ADA and alternative dispute resolution are: what style of mediator do you want; preparing for an ADA mediation/arbitration; what strategies might be used in an ADA mediation; whether a claim should be mediated or arbitrated, and what kind of ADA issues are better mediated versus arbitrated.

Mediator categories: Facilitative or Evaluative

With respect to mediators, mediators break down into two broad categories. Also, there is the question of how important is it that the mediator have substantive expertise in the ADA. With respect to the categories that mediators break down into, they break down into either facilitative or evaluative. A facilitative mediator is a mediator that lets the two parties come to their own conclusions through the mediation process. A true facilitative mediator is a true neutral and lets the party seek their own solutions. On the other hand, an evaluative mediator is a mediator who makes it clear which way he or she believes the case is likely to wind up. By doing so, an evaluative mediator helps the parties reach their own solutions through the mediation process. With respect to the ADA, I believe that in general a facilitative mediator possessing substantial substantive expertise (the evaluative component), in the ADA is the best way to go for several reasons.

First, as readers of my blog know by now, the ADA is an extraordinarily complex law that is extremely broad in its reach. As we have seen in the blog, there are few areas of law that are left untouched by the ADA and many of the issues are esoteric and quite complex.

Second, the ADA is full of shades of gray and contains a lot of elastic principles. In fact, the beauty of the ADA lies in its elasticity. However, that elasticity also means an increased premium on substantive knowledge of the ADA since elasticity increases complexity.

Third, prior to the amendments to the ADA, many of the cases never moved beyond the stage of whether a person had a disability. Therefore, a mediator having knowledge of the ADA itself may not have been that big of a deal. It may have been more important for the mediator to have the ability to figure out whether a disability as defined by the case law existed. However, the amendments to the ADA have moved us beyond whether a person has a disability to the merits of the case. Therefore, a mediator/arbitrator with knowledge of the substantive provisions of the ADA becomes more important because it is extremely unlikely that a case can get thrown out on the question of whether a person has a disability. As we have seen from this blog, it does happen post ADA amendments that a case may get thrown out because a person does not have a disability, but it is becoming very rare.

Fourth, a facilitative mediator with substantive expertise makes a great deal of sense for another reason. That is, disability discrimination is about real feelings on both the plaintiff and on the defense side. Plaintiff is likely to be upset that his rights and feelings as a human being with a disability have been ignored or taken advantage of. On the other hand, the defense is likely to be extremely frustrated and confused, especially if they have tried many different accommodations and a lawsuit resulted. A facilitative mediator would allow the feelings of both sides to come to the fore. That is important because the ADA is at its core about what it means to an individual with a disability to have a disability and how that person needs to get to the same starting line as a person without disabilities. On the defense side, the ADA is all about accommodating the person with a disability but not by fundamentally altering the essential nature of: the job, business, program, or activity. Both views engender quite a bit of feelings when expressed and can be very hard to evaluate.

Finally, this is not to say that an evaluative element to a facilitative mediation is not in order. With respect to the ADA, I am not convinced that a true facilitative mediator, without an evaluative component, is the answer either. As mentioned above, and as seen throughout the blog, the ADA is extraordinarily complex and if there is no evaluative piece, it may be hard to get the parties to figure out what is their win-win situation.

Preparing for an ADA mediation/arbitration

How do you prepare for an ADA mediation? Consider doing several things. First, make sure you know the applicable law. Second, recognize that the ADA is very comprehensive, somewhat esoteric, and very elastic and so you need to be flexible in your thinking. Third, know your mediator. Is the mediator selected one that has, “locked down” knowledge of the ADA or you going to have to educate the mediator? If your mediator has, “locked down” knowledge of the ADA, be prepared to find out the unexpected. On the other hand, if the mediator needs quite a bit of education about the ADA, be prepared for things to get confusing. For example, on the defense side in an employment ADA suit, the defense may try to convince the mediator, especially if the mediator is not fully in command of the ADA, that working is the operative major life activity. The plaintiff’s attorney will then have to educate that mediator that working is only a last resort and that his or her client is a person with a disability as defined by the ADA and its amendments since he or she is no doubt substantially limited in a major life activity outside of working as defined by the ADA as amended. Similarly, if a mediator does not have the substantive expertise, the defense might try in a case where the essential functions of the job are at issue, to convince the mediator that major life activities and essential functions of the job are the same thing, which they are not. Fourth, know the facts of the case since the ADA is fact intensive. That is, the ADA requires an individual analysis. Fifth, prepare the client that while mediation is nonbinding, he or she may very well find his concerns addressed by the end of the process since mediation gives the client the opportunity to get his feelings out there. Sixth, know the client’s goals and be prepared to allow the client to go one-on-one with the mediator without an attorney present. The most critical piece for preparing for mediation involving the ADA is for you and your client to keep an open mind about what the ADA may or may not require and to be flexible about how the situation can be resolved. Flexibility is critical. For example, when it comes to reasonable accommodations/modifications, creativity is the key and the key question is going to be what accommodation out there allows the person with a disability to reach the same starting line without it fundamentally altering the essential functions of the job, fundamentally altering the nature of the program or the activity, or fundamentally altering the nature of the business.

What about preparing for an ADA arbitration? It, in my opinion, requires a similar approach as to preparing for an ADA mediation. First, know your facts inside and out since the ADA is fact specific. Second, especially if the arbitrator is not all that comfortable with the ADA, you might consider expert testimony in the form of ADA compliance. That is, bringing in an expert to talk about whether the actions were or were not in compliance with the ADA. Third, know your arbitrator and the same concerns about how you might deal with a mediator with comprehensive knowledge about the ADA versus a mediator needing education about the ADA apply to the arbitrator as well. Fourth, argue your case appropriately knowing the background of the arbitrator. For example, it may not be helpful to make an argument that an arbitrator with comprehensive knowledge of the ADA would know would fail. For example, you might hear an argument that hearing is an essential function of being a lifeguard. However, as we know from our blog, a person who is deaf is certainly capable of performing the essential functions of being a lifeguard, and the mediator with command of the ADA is not likely to be receptive to such an argument.

Dynamics of an ADA Mediation/Arbitration

To see how the process of an ADA mediation might work, let’s take the following hypothetical: a deaf person loves basketball and played it. Now that his or her playing days are over, he wants to be a basketball referee. He is certainly willing to start out at the bottom and decides to join a referee Association so that he can referee junior high and high school games and then move up once he is able to demonstrate his expertise. The referee Association upon finding out that he is deaf refuses to even provide an interpreter, our hypothetical person uses ASL, as part of the training that all the referees need to go through. The deaf person sues the referee association alleging violation of title III of the ADA and also makes it clear that the referee Association, should they not give him every chance to succeed once he completes his training, may also be subject to a suit under title I of the ADA. The judge refers it to mediation. How might this play out?

First, there is little argument that the plaintiff has a disability per the ADA.

Second, the defense might argue that a person who is deaf is not going to be able to do the essential functions of being a basketball referee, and therefore, they have no duty to accommodate the person with respect to the training. This is where substantive expertise of the mediator is critical. In particular, the defense has it wrong. That is, at this point, the question is whether the deaf referee can be accommodated without it fundamentally altering the nature of the business and not whether the deaf referee is able to do the essential functions of being a basketball referee. I see this issue all the time with respect to academic institutions where an academic program in that institution says that they are off the hook because a person with disability cannot do the essential functions of the job for which that person is studying for in the academic program. It doesn’t work that way. Rather, the question is whether the person involved in the training can be reasonably accommodated. In this situation, having gone through a basketball referee training program myself (I did some refereeing at the junior high and high school level many years ago), I don’t see why a deaf person could not be reasonably accommodated in the training of being a basketball referee.

Third, the defense might also argue that the referee Association is not a place of public accommodation under title III of the ADA. Again, here is where substantive expertise may be very helpful. As we have seen, case law is evolving so that it isn’t necessarily the case that a place of public accommodation must be a physical space.

Fourth, with respect to the title one piece against the referee Association, the defense might also argue that the referee Association is off the hook because they are not an employer of the referee since most referees are independent contractors and not employees of the referee Association. Again, substantive expertise of the mediator/arbitrator is critical. As set forth in this hypothetical, the case is currently a title III suit and not a title I suit at all. Also, case law does exists saying, for example, that a person seeking privileges at a hospital could use title III as the vehicle for redressing disability discrimination. (See Mentkowitz v. Pottstown Memorial Medical Center, 154 F.3d 113 (3rd Cir. 1998)). Furthermore, it may be possible to show that the referee Association exercises sufficient control over the referee so that the referee would be considered an employee (See Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003). While this particular issue, wouldn’t be germane to the title III suit per se, it might be helpful for the mediator/arbitrator to discuss so that the defense is aware, if the pleadings hasn’t already made them aware as mentioned below, that their liability starts with title III but also may involve into a title I liability issue after the referee has completed the training. It is also possible the title one piece could be part of such a suit if the plaintiff was also moving for injunctive relief to prohibit the Association from discriminating against the plaintiff once he complete the training. Regardless, such discussion may push settlement.

Fifth, the plaintiff is going to want to argue that they can go through the training without it fundamentally altering the nature of the business. Further, for the plaintiff to get a comprehensive resolution to the matter they are going to want to show that once they do go through that training, they will be able to perform the essential functions of being a basketball referee. Here, the mediator/arbitrator may need to do some education to show that major life activities and essential functions of the job are not the same thing. Also, in the mediation process the essential functions of being a referee may need to be hammered out. That discussion should focus on the essential functions rather than on the major life activities.

Mediate or Arbitrate

While both mediation and arbitration are categories of alternative dispute resolution, they are very different from each other. Mediation is where the neutral facilitates a process where the parties create a win-win solution. Whether a particular party is right or wrong is not the issue. Rather, the focus is on reaching an understanding agreed to by the parties based upon shared interests. On the other hand, arbitration is an adversarial process and one side is the winner. The arbitrator is much like a judge in deciding the matter before him or her.

As mentioned above, the ADA is an extraordinarily broad, often esoteric, an extremely complex law. Thus, the question becomes are there certain issues better off mediated rather than arbitrated and vice versa.

Issues ideal for mediation:

This list is not exclusive, but rather it is what immediately come to mind as issues ideal for mediation under the ADA.

1. What are the essential functions of the job or the essential eligibility requirements of the program or activity? For that matter, what are the fundamental aspects of a business? All are issues ideally suited to mediation because you need to get into the head of what the business is trying to accomplish and what the person with a disability is trying to do.

2. Are reasonable accommodations possible is another ideal topic for mediation since just about anything goes providing you can get a person to the same starting line as those without disabilities without fundamentally altering the essential functions of the job, fundamentally altering the essential eligibility requirements of the program or activity, or fundamentally altering the nature of the business.

3. When does an accommodation for a licensing exam fundamentally alter the nature of that exam? This particular one may also be one suited for arbitration. It could go either way because of the education needed that a person is just trying to get to the same starting line and is not seeking an unfair advantage. On the other hand, there is also education needed that the integrity of the test cannot be compromised.

4. Whether a high school athlete with a disability can participate in a school sport.

Issues ideal for arbitration:

This list is also not exclusive, but, as above, it is rather what immediately comes to mind as issues ideal for arbitration under the ADA.

1. Is an alleged service dog engaged in recognition and response?

2. Whether a person is a direct threat to self or others.

3. Was there a pre-employment medical inquiry or exam?

4. Is there an undue burden in the financial sense?

5. Have the equal protection rights of a person with a disability been violated?

6. Is the person a recovering addict or alcoholic?

Issues that can go either way:

This list is also not exclusive, but it rather what immediately come to mind is issues that could either be arbitrated or mediated.

1. Is a place of public accommodation involved.

2. Is a structural modification readily achievable.

3. Can a zoning requirement be waived without a fundamental alteration to the program.

4. Whether a person with a history of MH is of sufficient character and fitness to be a member of the State Bar

Does the Americans with Disabilities Act apply to bar examiners? If it were only that simple. Taking the approach with respect to entries that I’ve developed recently, part one discusses the facts of the case. Part two discusses the court’s reasoning and my responses. Finally, part three give the reader takeaways. The reader is free to delve into any or all of the various parts. Finally, please note that the opinions contained in this blog entry are my own and do not necessarily represent the views of any organizations that I may be a part of or of clients that I represent.

Consider:

I
The Facts

1. Person in law school visits the student counseling center and reports that he has experienced racing thoughts followed by a great deal of energy followed by a period of feeling down.

2. He then takes the Mini International Neuropsychiatric Interview, which indicates that he met the criteria for major depressive episode and manic episode thereby making a diagnosis of bipolar disorder most likely. In fact, he is given a formal diagnosis of bipolar two disorder.

3. Subsequently, he visits the clinic to address his level of depression and anxiety and is prescribed an antidepressant mood stabilizer, which he takes for two weeks but then stops due to financial constraints or perhaps due to the side effects of the medication. He also reports that he was depressed and that his mood fluctuated frequently.

4. Student completes his second year of law school and this continues counseling because: he had not had any episodes; was no longer affected in any way; and didn’t really see the point in wasting the counselor’s time.

5. Student returns for the third year law school and informs the student counseling center that his prescribed medications seem to be stabilizing and he was not as fatigued. That was the last counseling session of record while he was at the law school.

6. During the winter of his third year of law school, he consumed two alcoholic drinks prior to driving home and was stopped by law enforcement and was arrested for DUI with a blood-alcohol content of .09. He subsequently pleaded guilty to the reduced charge of reckless driving and paid a fine.

7. A month later, while drinking with some friends, he received a call from another friend requesting a ride home and despite being inebriated, decided to give her a ride home. Of course, he was stopped by law enforcement on the drive home with a blood-alcohol content of .104 and was arrested and charged with DUI. He pleaded guilty to that charge as well paid a fine, and lost his license for 30 days.

8. Student graduated from law school and prior to graduation, had applied to take the Iowa bar examination. However, because of the DUI arrests, the Iowa board of law examiners requested that he complete a substance use and need for treatment evaluation. That evaluation determined that he did not meet the criteria for substance abuse related disorder and there were no indications of substance use interfering with his ability to practice law. Even so, the Iowa board refused to allow him to sit for the exam because his arrests were too recent to allow for admission. They also requested a psychological evaluation, which revealed that he exhibited low levels of anxiety and that he did not presently meet the criteria for any psychological disorders. It also stated that his bipolar two disorder was considered to be in full remission since he had not experienced either a depressed or hypomanic episode in approximately one year. That evaluation concluded that there was no evidence to suggest any impairment in his ability to practice law in the state of Iowa due to problems in his psychological functioning. Iowa allowed him to sit for the Iowa bar exam and he passed and was admitted to practice law in Iowa.

9. He then sought admission to the South Dakota’s bar and took the bar examination a year after being admitted to the Iowa bar. He passed the exam. However, the South Dakota board of bar examiners determined that his application did not meet his burden to prove by clear and convincing evidence that he possessed a good moral character necessary for admission to the South Dakota bar and as a result scheduled a hearing.

10. Shortly after taking the South Dakota bar exam, he went to a clinic at the University of Iowa to follow up on his bipolar disorder since he had just acquired health insurance. At the time, he was experiencing some depression and indicated that he had one episode of low mood about once a year with each episode lasting about two weeks. He also thought he might have a milder form of mania. The evaluation concluded that he had clear manic/hypomanic symptoms in his lifetime but that it was less likely for him have bipolar disorder. He was prescribed medicine for anxiety and low mood and expected to follow up in six weeks, but did not do so. He reported that he discontinued the medication due to severe side effects and since he believed that he did not have bipolar disorder and the disorder was not affecting his quality of life or abilities, he decided that it was not worth the money to continue.

11. The hearing before the South Dakota board of bar examiners went on and the South Dakota board of bar examiners concluded that he did not meet his burden to show good moral character by clear and convincing evidence. In particular, the Board noted that he did not appear to be forthright in his presentation to the board; the board believed that he withheld some of his mental health records ; his decision to discontinue recommended treatments without consulting the prescribing physician were found to be problematic; there were periods in his life affected by mental health condition; he showed, at least the board of examiners believed so, disrespect to its members; and he evidenced poor judgment and lack of maturity. Accordingly, despite having passed the bar exam, he was denied admission to the South Dakota Bar. He then filed suit arguing that the South Dakota board of bar examiners violated title II of the ADA by denying him the ability to practice law in South Dakota due to his disability.

12. Prior to law school and for a time during law school, the plaintiff had a substantial number of littering and speeding violations.

All these facts are taken from the case of In re Application of Henry

II
The Court’s Reasoning and my responses:

1. Since the board of bar examiners is a public entity, it is subject to the ADA and both the court and the board of bar examiners have to comply with its provisions.

2. In order to be a person with a disability, a person must have a physical or mental impairment that substantially limits one or more major life activities. However, the record is very unclear as to whether he had bipolar disorder. He even agreed that the diagnosis was uncertain. Further, his medical records appeared to confirm that he may not be bipolar. Accordingly, the court could not conclude that he was a person with a disability under the ADA.

Response: There are two things that are interesting about this. First, there is a footnote that cites a case from the Seventh Circuit long before the amendments to the ADA, which held that a person with bipolar disorder may not be substantially limited in any major life activity and therefore, would not be protected under the ADA. However, it is hard to believe that a person with either bipolar one or bipolar two , especially with the advent of the amendments to the ADA, would not be considered being substantially limited in a major life activity when compared to most people in the general population. Further, the amendments also provide that an impairment that is episodic or in remission is still considered a disability if it substantially limits a major life activity when active. Second, I find it very interesting that the record of a disability prong was not discussed by the court considering at one point the plaintiff did have a diagnosis of bipolar disorder.

3. The court found that the board of bar examiners perceived that the plaintiff was bipolar. In particular, the court noted that the plaintiff’s character and fitness hearing was prompted in part by indication on his bar application that he had suffered from bipolar disorder in the past. Also, the board made a number of inquiries into his mental health. Finally, the court’s reading of the board’s conclusion clearly show that the board had concerns about the status of his mental health. Accordingly, the plaintiff was covered by the ADA under the regarded as prong.

4. However, that is not the end of the matter because besides having a disability as defined by any of the prongs under the ADA, a person must also be qualified. With respect to a title II situation, qualified refers to whether the individual meets the essential eligibility requirement for the receipt of services or the participation in programs or activities provided by a public entity with or without reasonable modifications. An essential eligibility requirements for receiving a license to practice law in South Dakota is being of good moral character, which the plaintiff bears the burden of showing by clear and convincing evidence. The term good moral character includes but is not limited to qualities of honesty, candor, trustworthiness, diligence, reliability, observance of fiduciary and financial responsibility, and respect for the rights of others and for the judicial process. Also, statutory authority provided that certain conduct may prompt further inquiry into a person’s good moral character. Such conduct includes: unlawful conduct; making a false statement, including omissions; misconduct in employment; acts involving of dishonesty; evidence of mental or emotional instability; and denial of admission to the bar in another jurisdiction on character and fitness grounds.

Response: First, clear and convincing evidence is a high burden to show. One wonders why the burden is not placed upon the people seeking to deny admission. I suppose that is because practicing law is a privilege and if a person wants to be granted that privilege, it would be up to them to show that they are entitled to the privilege. Even so, clear and convincing is a high standard. Second, the essential eligibility requirements of a job or of a program or activity are usually not so vague. Could everyone really agree on what honesty, candor, trustworthiness, diligence, reliability, and respect for the rights of others and for the judicial process means? I do think broader agreement could be reached on fiduciary and financial responsibility.

5. The court said that the board of bar examiners at no point said that he cannot practice law in the state of South Dakota solely because of a diagnosis of bipolar disorder, but rather the board considered a variety of factors in recommending that admission be denied for the practice of law in the state.

Response: Causation under the Americans With Disabilities Act and under the Rehabilitation Act are different animals as we have discussed previously. Under the Rehabilitation Act, causation is, “solely by reason of disability.” However, under title II of the ADA, causation is, “by reason of disability.” As we have discussed, and other courts have noted, the two standards are not the same. The court seems to be focusing on the Rehabilitation Act, which was not at issue in this case, rather than on the causation language of title II of the ADA.

6. The court distinguished between a general denial of all applicants with a history of bipolar disorder versus an individualized assessment to determine whether a person meet the essential eligibility requirements to practice law in the state. Since the board did the latter, there was no violation of the ADA’s prohibition on screening out persons with disabilities from a governmental service, program, or activity.

7. When questions of public safety are involved, whether a person meets an essential eligibility requirement also involves consideration of whether the person is a direct threat to the health and safety of others. The court then cites to the Code of Federal Regulations as to what direct threat means.

Response: This is curious. Usually when one thinks of public safety, one thinks of things like fire, police, air traffic controllers, and the like. One doesn’t usually think of lawyers, though I can see the logic of it. Also, while the court cited to the federal regulations as to how direct threat is determined, which regulation is based upon a U.S. Supreme Court opinion ( School Board of Nassau County, Florida v. Arline, 480 U.S. 273 (1987)), there isn’t any application in the opinion of direct threat, let alone using current medical evidence or the best available objective evidence, that the applicant was a direct threat to the public.

8. An individualized assessment of an applicant with a history of bipolar disorder is necessary to protect the public and courts have routinely upheld applications that asked whether an applicant has been treated for bipolar disorder, schizophrenia, paranoia, or any other psychotic disorder within a specific timeframe, usually five years. The court says that the particular conditions, are serious mental illnesses that may affect a person’s ability to practice law. In particular, the court said that:

“One can only imagine the risk this may pose to clients, who often entrust an attorney with their livelihood, freedom, or even life. Clients suffer as much from an unintentional misconduct such as neglect as they would from the acts of an attorney caused by an intentional evil motive. [Citations omitted]. Additionally, the fact that a person may have experienced an episode of one of these mental illnesses in the past but is not currently experiencing symptoms does not mean that the person will not experience another episode in the future or that the person is currently fit to practice law.”

Response: I find paragraph 8 and the quote that follows problematic. It is absolutely true that the particular conditions are serious mental illnesses that may affect the person’s ability to practice law. However, it is also true that if these mental illnesses are being properly managed, then that may not be the case at all. Further, it is extremely problematic that a past history of MH is deemed to be indicative of a strike against a person’s ability to practice law because that episode may or may not happen in the future. Recently, we discussed a case in the title I context, that said an employer cannot consider where a person may be within a couple of years when deciding whether to hire that individual. The quote basically allows for speculation instead of current medical evidence or the best available objective evidence at the time of the application to determine the outcome, which is arguably contrary to what is called for by Arline as well as by the implementing regulations.

8A. Perhaps, realizing that they may have gone too far, the court acknowledges that a past diagnosis of mental illness does not necessarily predict the applicant’s future behavior, but nevertheless, mental health history is important so as to provide the board of bar examiners with information regarding the applicant’s insight into his or her illness and the degree of cooperation and control he or she has over it through counseling and medication.

9. The court says that to maintain public confidence, the court must only license attorneys that are emotionally and mentally fit to practice law and that it would be derelict in its duty if it did not have the board of bar examiners investigate the mental health of prospective lawyers.

Response: The statement goes too far. Agreed that attorneys need to be emotionally and mentally fit to practice law. However, investigations into a person’s mental health should be narrowly focused on the person’s mental health in so far as figuring out how that condition would affect that person’s ability to practice law. Further, such a conclusion should not be based upon speculation, but rather upon current medical evidence or the best objective evidence available.

III

Takeaways:

1. The ADA applies to the Board of Law examiners of the various states.

2. There is a tremendous loophole that the Board of Law examiners have with respect to character and fitness investigations. That is, character and fitness is considered an essential eligibility requirement for becoming a licensed attorney. Further, as discussed above, character and fitness can be quite vague.

3. Clear and convincing evidence is a tough burden for an applicant to the bar to meet if that person has a history of MH. A person applying for the bar in a particular state will want to check if their particular jurisdiction uses the clear and convincing evidence burden of proof.

4. Numerous blog entries of mine have discussed mixed motive with respect to the various titles of the ADA. Whether a mixed motive applies may be determinative to an applicant’s ability to run the gauntlet of the character and fitness committee if that person possesses a history of MH.

5. Lawyers are not generally thought of as engaged in public safety activities, at least I hadn’t thought of it that way. Nevertheless, from the applicant’s point of view, insisting that any decision be made upon current objective evidence or the best available medical evidence may be helpful to the applicant.

6. From the applicant’s point of view, making an analogy to title I of the ADA may be helpful. In particular, what are the essential functions of being an attorney and of being able to survive being an attorney? Also, what is the applicant’s current condition rather than his or her condition in the future. Both of these questions are relevant to title I cases and arguably should also be relevant in the case of becoming an attorney. That is, is the investigation into a person’s MH history focused on these two concerns or does it go considerably broader?

7. Finally, the applicant in the case that has been discussed here actually did this pro se. He may have underestimated just how complicated the ADA can be. Whether having a lawyer familiar with the ADA would have made a difference is hard to say, but a lawyer familiar with the ADA may have been able to do some of the advocacy mentioned in my responses and in my take away section.

8. Depending on how the state goes about dealing with applicants with mental health conditions, I could see an equal protection claim. Such a claim would rise or fall based upon the classification that the court put persons with disabilities in for purposes of for applying to be a member of the bar. If the court were to put persons with disabilities in the lowest equal protection class with respect to applying for the bar, the person with a disability would most certainly lose. Such a case would inevitably have as its fulcrum the case of Tennessee v. Lane, 541 U.S. 509 (2004).

Happy New Year everyone!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

This is my 100th blog entry! Wow!! Many thanks to all of you!!!

Previously, I have had several entries dealing with service dogs. In the first, we talked about what was a service dog and what was not. In the second, we talked about the regulations of the Department of Justice on service dogs and the likelihood they would withstand legal scrutiny. Finally, in the third entry, we talked about the Texas approach to service dogs. Here, the issue is whether the breed restrictions that some towns have on the type of dogs that can reside in their town will withstand scrutiny if the dog is a service dog. It isn’t unheard of for some towns to restrict the breeds that will be allowed in their town. Oftentimes, the breed restricted is a pit bull. The purpose here is not to discuss the merits of such restrictions, but to discuss whether such a restriction would withstand a challenge if that breed was a service dog.

Nothing in the federal regulations of the Department of Justice talking about service dogs restricts the type of dog that may be a service dog. Rather, the question is whether the dog is engaged in work. That is, is the dog engaged in recognition and response. Further, there isn’t any certification requirement associated with being a service dog since it is entirely possible (I do know of individuals who have done this), that a person could train a dog to work (engage in recognition and response) without a formal training program.

Thus, if the town does have a breed restriction and that individual owns such a breed that would be deemed a service dog as defined by the regulations, the town may want to think twice about taking adverse action against an individual unless it wants to run afoul of the ADA and possibly state laws as well. While a town is free to make laws in the interest of their citizens to protect their welfare, that town still has to comply with state laws (which may track or go further than the ADA), as well as with the ADA. If adverse action is taken, it would be a good idea for the town to have a system in place where the individual could show that the dog performs work for that individual in order to assist an individual with his or her disabilities before the town removed the dog.

This is not an academic discussion. In Grider v. City of Aurora, 2013 WL 6633404 (D.Colo. December 16, 2013), the plaintiff brought suit against the city alleging that the ordinances restricting certain dog breeds violated title II of the ADA. This resulted in two years of litigation whereupon the defendant moved to dismiss and also moved for summary judgment. Due to the way the case was pleaded and the nature of the facts, the court granted both motions. The city then brought suit seeking reimbursement for their attorneys fees of $132,447.33 (gives you an idea of how expensive defending this kind of litigation could be).

In order for a defendant to recover attorneys fees the court must find that the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith or where the plaintiff continued to litigate after it clearly became so. As the court says, it is a very difficult standard to meet since the court must find that the action was meritless in the sense that it was either groundless or without foundation. The court found that an award of attorneys fees was not warranted because the claims and theories as presented were not flawed from the inception of the case and the record was not completely devoid of evidence so as to find that the plaintiff’s action was frivolous, unreasonable, or without foundation. The court also said that their conclusion did not change even though plaintiff’s counsel struggled to adequately plead their claims and their counsel probably should’ve put forth a better effort in analyzing the jurisdictional requirements, the elements of the claims, and the facts necessary to support the claims (Iqbal type concerns).

In short, if you represent a town with breed restrictions unless you have developed a system so as to ensure that the individual has a way to show that their dog meet the definition of a service dog as defined in the Department of Justice regulations prior to removing the dog, you are asking for a very expensive litigation fight involving the ADA and/or possibly state laws as well.

The ADA allows a physical exam to be made after a conditional job offer. That is, it is perfectly permissible under the ADA to offer a person a job conditionally subsequent to taking a physical. If the employer denies employment after the physical exam (i.e. takes back the conditional job offer), the employer must do so by showing that the denial was job-related, consistent with business necessity, and no reasonable accommodations existed to allow the person to perform the job.

We have already seen what can happen when an employer relies on a physical exam subsequent to a conditional job offer but ignores essential functions of the job and whether reasonable accommodations are possible. Here is another case along those lines. In the first part of this blog entry, I go into detail on the facts of the case since there are lots of critical facts. After that, I discuss the court’s reasoning. Finally, I talk about the lessons that can be learned from this case. The reader is free to explore any and all of the parts of the entry.

I
The Facts:

In Lafata v. Dearborn Heights School District No. 7, 2013 WL 6500068 (E.D. Mich. December 11, 2013), the plaintiff submitted an application for the position of Plant engineer with the school district. His application revealed that he was the building supervisor for 10 years. In that position, he was responsible for complete maintenance of the inside and outside of the building, HVAC, minor plumbing and electrical work, roof repairs, maintenance of refrigeration equipment for the ice rink, set up and care of the community pool, closing the pool, set up and resurfacing of the ice rink, operating and repairing the Zamboni, set up and tearing down for ice shows and events, and selling and scheduling of ice time. He regularly used ladders and carried objects weighing more than 40 pounds in the building supervisor position. During his interview for the plant engineer’s position, the duties of the position were described including that the job required physical labor, such as climbing ladders and lifting more than 55 pounds. The plaintiff was asked if he would any have any problem with the physical labor involved, and he answered that he would have no problems. A conditional job offer was made subsequent to passing a physical. The plaintiff went to that exam. During that exam, the examining physician noted that the plaintiff had muscle atrophy in his legs and that he could not walk on his heels or toes. He also asked the plaintiff if he wore leg braces, and the plaintiff responded that he did sometimes but had not worn them that day. He also noticed muscle atrophy in his hands, but that his strength seemed to be adequate. As a result of his examination, the examining physician decided that the plaintiff had a genetic disorder that causes muscle deterioration and gradual loss of strength. He shared that diagnosis with the plaintiff but did not ask him if he had any physical symptoms or limitations. For that matter, he did not ask the plaintiff any questions concerning his current employment duties or employment history because he believed that such information was not relevant in determining whether a prospective employee could physically do the job for which he or she was applying for. After being given a note by the examining physician of his conclusion to take to his family doctor, the plaintiff did go to his family doctor. His family doctor agreed with the examining physician’s diagnosis, however she also believed that his strength was more than adequate for the job and his daily activities and provided that report to the examining physician. The examining physician then requested a job description for the plant engineer position. As a result of reviewing that job description, , which was very general, the examining physician concluded that the plaintiff could only do ground-level work and should be restricted from climbing ladders and from lifting more than 40 pounds. The examining physician’s deposition, which was confirmed by the notes of the school district’s human resources personnel, said that the plaintiff was healthy for now but may deteriorate over time. Further, the evidence revealed that the disqualification (i.e. the taking back of a conditional job offer), was made by the examining physician and the HR department completely devoid of any information as to what the plaintiff was currently doing in his job and without exploring whether any reasonable accommodations would work. Plaintiff then filed a lawsuit alleging violations of the ADA, the genetic information nondiscrimination act and Michigan’s PWDCRA law. The plaintiff subsequently dropped the claim of violation of the genetic information nondiscrimination act.

II

In granting the motion of the plaintiff for summary judgment (it is rare for a plaintiff to have their motion for summary judgment granted), the court reasoned as follows:

1. The Americans With Disabilities Act Amendments Act amended the ADA so as to describe a variety of major life activities, including musculoskeletal functions, which would seem to cover muscle wasting caused by the plaintiff’s diagnosis.

2. Regardless, of whether the plaintiff had an actual disability, the evidence was such that the school district clearly regarded the plaintiff as having a disability per the ADAAA.

3. The school district lacked sufficient information to assess whether the examining physician’s opinion was reasonable.

4. Neither the examining physician nor the school district engaged in any analysis to determine whether reasonable accommodations would enable the plaintiff to perform the essential functions of the job.

5. The ADA requires an individualized inquiry in determining whether an employee’s disability or other condition disqualifies him from a particular position.

6. The examining physician’s examination of the plaintiff was neither lengthy nor comprehensive.

7. The school district had a duty to review the examining physician’s report to assure itself that the examination and analysis was thorough and/or reasonable.

8. An employer cannot slavishly adhere to a physician’s opinion without stopping to assess the objective reasonableness of the physician’s conclusions.

9. Employers do not escape their legal obligations under the ADA by contracting out certain hiring and other functions to third parties.

10. No analysis was done whether the restrictions suggested were reasonably based on the plaintiff’s actual physical limitations.

11. The school district had evidence available to it and known to it that it did not consider such as: the plaintiff was performing the very functions at his current position that the examining physician said he could not do; the plaintiff specifically told the interviewer that he would have no problems with the physical requirements of the job after receiving a description of those requirements; and the plaintiff’s family physician said that the plaintiff’s strength was more than adequate for the job and daily activities and that he could work without the restrictions.

12. It was undisputed that the examining physician and the school district did not engage in any analysis to determine whether reasonable accommodations were available that would allow the plaintiff to perform the essential functions of the position despite his disability and the so-called necessary physical restrictions imposed by the examining physician.

13. The school district failed to rebut the plaintiff’s showing that numerous reasonable accommodations existed so that he could perform the essential functions of her job.

14. The direct threat defense does not fly because one of the elements of that defense is that they have to show that the direct threat cannot be eliminated by reasonable accommodations, something which could not be done in this case.

III
Takeaways:

This case gives you a laundry list of what to do with respect to a physical exam subsequent to a conditional job offer and how to deal with that information, including:

1. Have the examining physician do a complete history of the patient, including what the applicant is currently doing while recognizing that such an analysis should be narrowly focused on the job at hand and its essential functions so you don’t run afoul of various things, such as the ADA and the genetic information nondiscrimination act;

3. Are the essential functions of the job precise and is the examining physician aware of those essential job functions;

4. The exam should be comprehensive and narrowly focused;

5. If the examination raises a red flag, are the red flags that are raised such that they would be job-related and consistent with business necessity;

6. Assuming the red flags, has there been an independent evaluation of whether any reasonable accommodations exists so as to allow the applicant to perform the essential functions of the job with or without reasonable accommodations. Has the employer talked to the applicant about what reasonable accommodations might work?;

7. Is the decision-making regarding removing a conditional job offer being based upon the plaintiff’s actual condition rather than the plaintiff’s possible condition in the future;

8. Does the person actually have a disability or is the examining physician regarding him or her as having a disability;

9. Has there been an independent evaluation of whether the physician’s opinion was reasonable in light of what is known;

This blog entry can be divided neatly into two parts. In the first part, I play a game of true false based upon the issues that arose in the recent case of Attiiogbe-Tay v. Southeast Rolling Hills LLC, which recently came down from the United States District Court of Minnesota. The second part explores the reasoning of the United States District Court of Minnesota in this case. Think of part one as the users guide and part two as the in-depth analysis. You are free to focus on either part one, part two, or even both depending upon your preference.

Part I

Let’s play a game of true-false.

1. The term “fundamental alteration” appears nowhere in title I of the ADA.

2. Proving undue hardship in the financial sense is impossible.

3. If a physician gives you restrictions on a particular job that you have and those restrictions are different from the essential functions of that job, that necessarily means that you can not perform the essential functions of the job without reasonable accommodation.

4. Transferring essential functions of a job to another employee is not required by the ADA.

5. Circumstances exist where it may not be necessary to engage in the interactive process and immediate termination can proceed.

6. Full return to work policies are still around but are deeply problematic.

7. If a person cannot do the essential functions of the job with or without reasonable accommodations at the end of FMLA leave, it is perfectly consistent with the FMLA to terminate that person though that may run you into trouble with the ADA.

Answers:

1. True

2. False

3. False

4. True

5. True but incredibly risky.

6. True.

7. True.

Explanation:

1. The term fundamental alteration appears nowhere in title I of the ADA. Rather, that is a term that is used in title II and title III of the ADA. However, it would be a mistake to say that the term fundamental alteration cannot be found in disability discrimination employment law. Rather, fundamental alteration in disability employment law has long been a staple of the Rehabilitation Act cases alleging discrimination in employment in violation of the Rehabilitation Act (see for example School Board of Nassau County, Florida v. Arline, 480 U.S. 273, 288 n. 17). Since the ADA and the Rehabilitation Act are substantively the same, a strong argument can be made that fundamental alteration is also a part of title I when it comes to analyzing the concept of undue hardship.

2. Proving undue hardship in the financial sense is extremely difficult because under 42 U.S.C. § 12111(10)(a), whether an accommodation constitutes an undue hardship mean showing that it requires significant difficulty or expense. Such factors include considering the nature and cost of the accommodation and more importantly, the overall financial resources of the facility and the overall financial resources of the covered entity. 42 U.S.C. § 12111(10)(b)(ii),(iii) Thus, I have maintained for years that undue financial hardship is extremely difficult to show and that an entity would be much better off arguing undue hardship in the logistical sense (i.e. fundamental alteration), than it would be going with undue hardship in the financial sense.

3. Just because you have essential functions of the job and a person can no longer do those essential functions does not mean that they cannot do those essential functions with or without reasonable accommodations. You have to differentiate between assigning essential functions of the job to someone else, which is not required, v. exploring a reasonable accommodation that might work, which is required. Thus, you want to ask yourself is the only alternative to give an essential function of the job to someone else? If so, that is not required. However, if there are other means short of that for the person to accomplish the essential functions , then reasonable accommodations have to be put in place.

4. The ADA is full of cases, including this one, that say transferring essential functions of the job is not required by the ADA.

5. We have seen already that some circumstances may occur when an entity might terminate someone without engaging in the interactive process and escape liability. It’s an incredibly risky maneuver as the ADA demands that an entity engage in the interactive process once they are informed that a person with a disability is seeking reasonable accommodations, and in some Circuits, failure to engage in the interactive process is an independent cause of action. It is also possible, as the dissent makes clear in the case reference by the blog entry in this paragraph, that a plaintiff might argue that the request for extended leave is nothing more than a request to initiate the reasonable accommodation interactive process.

6. See my blog entry of December 18, 2011.

7. See this blog entry (doing this might be evidence of a lack of good faith).

Part II

The United States District Court for the District of Minnesota has made quite a splash with a decision that came down on November 7, 2013. Two separate bloggers, workplace safety and health law blog put out by Fisher Phillips and one in my blogroll (Ohio employers blog), have written on this case, and I thought it would be useful to offer my own perspective.

In this case, Attiogbe-Tay v. Southeast Rolling Hills LLC, 2013 WL 5954685 (D. Minn. November 7, 2013), the plaintiff was a licensed practical nurse employed at a senior living facility and worked the overnight shift where she was responsible for caring for 160 assisted living patients. During her employment, she began experiencing severe knee pain due to degenerative joint disease and arthritis, and on several occasions her employer questioned her about her knees asking her if she was able to complete her assigned duties. Plaintiff elected to have knee replacement surgery and was granted 12 weeks of family medical leave act leave. The employer informed her when her FMLA leave would expire and that she needed to return to work without restrictions by that date. On that date, the plaintiff returned to work and provided a note from her physician saying that she could not kneel, squat or lift more than 50 pounds, but that she was otherwise cleared to return to work. The restrictions were to be in place for six weeks.

Some other points are worth noting. First, the employee handbook said that if medical restrictions existed at the end of FMLA leave, the employer was to review and discuss the situation with the employee and determine whether the work restrictions could be reasonably accommodated. The employer never initiated a discussion of potential reasonable accommodations with the plaintiff instead terminating her and inviting her to reapply once the temporary restrictions were lifted. Second, the job description said that she was required to occasionally (between one and 33% of an eight hour shift), kneel, squat and lift up to 100 pounds and she was the only licensed practical nurse schedule for the overnight shift. Finally, the employer had spent $8000 in additional staffing costs in addition to experiencing an uneven level of care to its residents and fatigue to the other licensed practical nurses while she was on family medical leave act leave.

The court in granting the motion for summary judgment reasoned as follows:

1. The court referred to EEOC regulations as to when a function is essential. Those regulations say that a function is essential when: the position exists to perform that function; the function may only be performed by a limited number of employees; or it requires special expertise. 29 C.F.R. § 1630.2(n)(2). The employer had a document referring to the plaintiff’s position and signed by her when she began her employment stating that the employer expected her to kneel, squat, and lift up to 100 pounds were between 1% and 33% of each shift. Further, those physical tasks were inherently connected to attending to patients and failing to carry out those tasks could have dire consequences. Therefore, the plaintiff was unable to perform the essential functions of the job without reasonable accommodations.

Response: As mentioned in part one, to my mind, there is a leap of logic here. While it is true that even occasional tasks can be essential functions of the job and that it is also true that she could not do the required lifting, that does not necessarily mean that there was no reasonable accommodation whatsoever (short of transferring an essential job duty to someone else), that could be employed. For example, was there a machine available that could lift these patients? We will never know because they never explored this. It would be interesting to see what a phone call to the job accommodation network (see link in my ADA resources section), would come up with.

2. The ADA does not require an employer to reallocate or eliminate an essential function of the job to accommodate a disabled employee.

Response: No argument here.

3. An undue hardship existed because while the plaintiff was on FMLA leave the employer incurred $8000 in additional staffing costs, uneven level of care to its residents, and fatigue to the other licensed practical nurses while dealing with a relatively small staff size.

Response: As mentioned in part one, this is a lot more complicated than it looks. It is absolutely true that fundamental alteration does not appear in title I of the ADA. It is also true that employment cases dealing with the Rehabilitation Act have used that term for years. The EEOC would tell you that there are two kinds of undue hardship. The first is financial and the second is logistical. The court seem to be combining the two here. With respect to financial, it is hard to believe that $8000 for a senior living facility with hundreds of patients would be an undue financial hardship if, per the EEOC regulations, the overall financial resources of the facility and the overall financial resources of the covered entity were factored in. Second, the argument may be stronger with respect to undue hardship in the logistical sense (fundamental alteration), because of the uneven level of care to the residents and the fatigue to the other licensed practical nurses that resulted while the plaintiff was on leave.

4. The court noted in a footnote that to pursue a claim under the theory that failing to participate in the interactive process violated the ADA, the plaintiff has to show that the employee could have been reasonably accommodated but for the employer’s lack of good faith. The court said that no reasonable accommodations were available; therefore, any claim premised on failure to participate in the interactive process failed.

Response: Couple of things here. First, as we have mentioned elsewhere, it depends upon the circuit as to whether failure to engage in the interactive process is a separate cause of action under the ADA. Second, as mentioned above, before we could say that no reasonable accommodation possibly existed, I would certainly want to know what the job accommodation network might say.

Finally, two other things bear noting. First, it is too bad that the plaintiff was not in the state of Illinois because Illinois is one of those states that has a very strong tendency for finding a contract with respect to an employee handbook (see Duldulao v. St. Mary of Nazareth Hospital Center, 115 Ill. 2d 482 (1987)). Clearly, it is undisputed, that the employer did not follow its own employee handbook with respect to exploring reasonable accommodations once the FMLA leave was used up. Accordingly, in some jurisdictions, the plaintiff here could have a breach of contract claim. Second, this court has now opened up litigation as to what an undue financial hardship might mean. In this situation, they say that $8000 when combined with certain other factors will work. It remains to be seen what other dollars might work. The only disadvantage I see to undue financial hardship being used by the defense is that it would open up the defense to having to reveal its entire financial situation, which they may not want to do. The way around that of course is to not argue undue financial hardship at all, but rather focus on undue logistical hardship (i.e. fundamental alteration).

Ever since the first edition of my book in 2000 and in every edition since, I have discussed the case of Miners v. Cargill Communications, Inc., 113 F.3d 820 (8th Cir. 1997). That case illustrates the perils of what can happen when an employer perceives someone as being an alcoholic. In that case, the plaintiff worked as a promotions director for a radio station, where part of her job involved going to bars to promote the radio station in the company van. After a while, her supervisor, who happened to be a recovering alcoholic, became suspicious that the plaintiff was drinking while at the bars and hired a private investigator to follow the plaintiff. A private investigator observed her drinking and then called the supervisor. The supervisor showed up at the bar and when the plaintiff left, demanded the keys to the company van. The next day the president of the radio station informed the plaintiff that she was facing termination unless she entered a chemical dependency program. She declined to enter the program and was terminated. The plaintiff brought suit alleging that she was terminated on the basis of a perceived disability, alcoholism, and the Eighth Circuit found sufficient evidence existed that the plaintiff had been fired because of a perceived disability.

With that case as background, let’s look at the recent case of Scheffler v. Dohman, 2013 WL 6179381 (D. Minn. November 26, 2013). In this case, the plaintiff was arrested for DWI multiple times in 1997. After the last incident in 1997, the plaintiff’s driving privileges were canceled, and as a condition to regaining his driving privileges he was required to complete a one-year abstinence-based alcohol rehabilitation program. He successfully completed that program and was issued a drivers license at the end of 1998 with the restriction that he abstain from the use of alcohol. In 1999, his driving privileges were canceled again. As a condition to regaining the driving privileges, the plaintiff was required to complete a three year alcohol rehabilitation program and he did so. Accordingly, at the end of 2002, the plaintiff was issued a drivers license again on the condition that he not consume alcohol. At the end of 2010, plaintiff was arrested for DWI and his driving privileges were again canceled. He was required to complete a six year alcohol rehabilitation program or he could elect to participate in the ignition interlock program in order to be issued a restricted driver’s license.

The plaintiff sued saying that this statutory and regulatory scheme violated title II of the ADA because it perceived him as having a disability, alcoholism. In particular with respect to alcoholism, the plaintiff pleaded the following: 1) he had a record of alcohol-related driving offenses; 2) the Commissioner of Public Safety compelled the plaintiff to sign a pledge of alcohol abstinence as a condition of receipt of driving privileges; 3) that his license stated that any use of alcohol one validated license; 4) plaintiff’s last consumption of alcoholic beverages took place on November 1, 1999; 5) an acknowledgment that his driving privileges would be canceled if there is sufficient cause to believe that he consumed alcohol; and 6) pledging to not drink alcohol prevented the plaintiff from partaking of the sacrament of holy Communion.

The question before the court was whether the plaintiff had a disability. While the court acknowledged that under Miners, an employer could be liable for regarding someone as being an alcoholic, alcoholism is not a disability per se. That is, a plaintiff asserting an ADA claim based on alcoholism still has to establish a disability under one of the definitions of disability in the ADA (actual, record of, or regarded as). In this case, with respect to actual disability, the plaintiff made no allegations supporting a finding that he had a physical or mental impairment due to alcoholism that substantially limited of one or more major life activities. In fact, the plaintiff did not even allege that he was an alcoholic.

With respect to record of impairment, the court found that the plaintiff did not make that showing either. The plaintiff did not allege that he had a past record of alcoholism, how any such diagnosis, if such was the case for the plaintiff, limited a major life activity, or even if his decision to drive while intoxicated was due to the disease of alcoholism.

With respect to regarded as, just because the plaintiff had a record of DWI’s, that not mean that the state perceived him as being an alcoholic. After all, there are many reasons for such a conviction besides alcohol.

Finally, even if the plaintiff was somehow a qualified person with a disability, the plaintiff still loses because the state offered reasonable accommodation through its alcohol rehabilitation program and the ignition interlock program.

Takeaways:

1. If this case does anything, it shows the importance of pleadings. In a disability discrimination case, a person is going to have to plead enough facts to show that the person either has an actual disability, a record of a disability or is regarded as having a disability. Just saying that the client is either perceived as being an alcoholic or is an alcoholic, without more, isn’t going to cut it.

2. Even so, it shouldn’t be impossible to be able to plead that an alcoholic is a person with a disability, particularly after the ADAAA, because major life activities under the ADA as amended now includes major bodily functions such as neurological and brain. Also, a person who has been in an alcohol rehabilitation program is protected under the ADA.

3. In chapter 4 of my book, I discuss Miners v. Cargill Communications, Inc. and some preventive steps an employer can take when dealing with an employee that may or may not be an alcoholic. I also discuss in that chapter two other issues of importance with respect to drug and alcohol addiction: First, how the courts define a current user of drugs or alcohol (the ADA does not protect people who are using drugs or alcohol); and second, from what point in time the courts measure whether the person is a current user of alcohol or drugs. That is, the second question, in which there is a split among the circuits, deals with the situation where a person could be using drugs or alcohol one day and goes into a rehabilitation program the next day all prior to termination, would such a person then not be considered a current user of drug or alcohol and therefore, be protected as a person with a record of an impairment?

Consider whether you would want to be involved in the following: a six-day bench trial; 35 witnesses, including city officials, experts, and persons with disabilities; 25,000 pages of documentary exhibits; several hundred pages of briefing and proposed findings of fact; and an additional trial to assess whether the city can justify its lack of accessibility on the grounds of fundamentally altering the nature of the program or the activity. I didn’t think so. Nevertheless, this is exactly what was the case in Brooklyn Center for Independence of Disabled v. Bloomberg, _ F.Supp.2d_, 2013 WL 5943995 (S.D. NY, November 7, 2013), where a successful suit was brought against the Mayor of New York for violating title II of the ADA because persons with disabilities did not have meaningful access to the City of New York’s disaster plan.

To ensure that your client does not face the same situation as the City of New York, what might a disaster plan audit look like? That case lays out a whole litany of things that such an audit could entail including:

1. Does the evacuation of persons with disabilities when dealing with an emergency take into account all the settings that persons with disabilities reside in, including high-rises and the like?

2. Has each Department of the city designated a person to ensure that the department’s emergency plan and policies accommodate persons with disabilities?

3. Were persons with disabilities involved in the emergency planning process?

4. Are persons with disabilities able to use available transit that is provided in emergencies? That is, is such transportation sufficient and accessible?

5. Are persons with disabilities informed about all options available to them in case of emergency?

6. Are the emergency shelters accessible to persons with disabilities both with respect to entry and use? Is the system set up to ensure persons with disabilities needing accessible shelters can get one?

7. Do shelters used for persons with disabilities have effective ways of communicating with persons with disabilities so that persons with disabilities are able to communicate and understand the information at the shelters?

8. Does the shelter plan allow for persons with disabilities to stay in the emergency shelter with their caregivers (such as by way of example, with their service animal)?

9. Do the shelter plans include a strategy to provide backup power generators or otherwise ensure electricity will be available at shelters for those persons with disabilities who depend on electricity for their independence?

10. Is there a process for locating, purchasing, and storing as much of the supplies and equipment as possible and practical to meet persons with disabilities needs in the event of an emergency?

11. Is there a plan for implementing corrective action to ensure the shelter system is accessible?

12. Does the city have a system of canvassing after a power outage or other emergency in order to find persons with disabilities at risk due to the lack of power?

13. Are communications at commodity distribution points accessible to persons with disabilities?

14. Are communications at disaster assistance centers (a place providing services such as telephone, Internet, financial assistance, relocation assistance, etc.), accessible to persons with disabilities?

15. Is there a plan in place for directing the provisions of prescription medicine assistance in the event of an emergency?

16. Does the debris management plan provide guidance on how the needs of persons with disabilities will be taken into account?

17. Is there an emergency plan for housing recovery after a disaster that ensures persons with disabilities have meaningful access to that plan?

18. Is information provided to persons with disabilities about accessibility of the shelter system and how to access it?

19. Are the city’s websites that have disaster information on them accessible to persons with disabilities?

20. Does any advance warning system reach persons with disabilities directly and not just the providers serving persons with disabilities?

21. Are any flyers used to notify people about emergencies accessible to persons with disabilities and if not, is there a system in place to ensure that the information in those flyers is communicated in other ways to those persons with disabilities who cannot read the flyers?

22. Does the plan provide that information about shelter accessibility, accessible transportation, evacuation assistance, or any other information required by persons with disabilities in order to respond to an emergency be given persons with disabilities? Is that information complete, accurate, and reliable?

23. Is sufficient information given out about evacuation and transportation assistance for persons with disabilities?

24. Are there plans or agreements to ensure that paratransit remains open for as long as other forms of public transportation are in order to allow persons with disabilities the same amount of time to evacuate as others.

25. Is there a requirement that the number of shelters that are accessible to persons with disabilities will be a sufficient number to serve persons with disabilities in the city?

26. Does the city even know how accessible each shelter is? Is there a plan in place to assess the accessibility of each shelter?

27. Does the plan allow for accessible transportation between shelters?

28. Is a person with a disability able to in advance identify accessible evacuation center as close as possible to where they live?

29. If an interim housing plan is used or in place, does such a plan include ensuring that persons with disabilities have meaningful access to that plan?

30. Has the city taken the no for an answer in the planning process with respect to accommodating persons with disabilities only where it can be shown that to do otherwise would fundamentally alter the nature of the program or activity or it would constitute an undue burden? If undue burden is found, has the CEO of the city certified as such?