The issue of whether the Internet has to be accessible to a person with a disability is an issue that we have discussed before. One of the cases out there is the case of Access Now v. Southwest Airlines, 227 F. Supp. 2d 1312 (S.D. Fla. 2002), where the Southern District of Florida held that the ADA only applies to physical places. That case has now been overruled by regulation. One doesn’t normally think of regulations overruling a case. After all, it is the job of the legislature to make laws and to correct court decisions. However, where the law itself gives broad regulatory authority to the agency and the agency conducts that regulatory authority within the framework of that law, you may get to the same place as if there was a legislature overruling the court decision. That is exactly the situation that has happened with the Department of Transportation and their final regulations, just out, implementing the Air Carrier Access Act. As mentioned in another post, the Air Carrier Access Act doesn’t say much. Rather, it just lists the definition of a disability as defined in the ADA/Rehabilitation Act and then says it is a matter for the Department of Transportation to implement and enforce through regulations.

Let’s turn to these regulations and look at the salient points. Keep in mind, the comments alone are 116 pages and so what follows is not meant to be comprehensive, but rather just hits the highlights. The regulations require the following:

1. Requires U.S. and foreign carriers that operate at least one aircraft having a seating capacity of more than 60 passengers, and own or control a primary website that markets to air transportation consumers in the U.S. to ensure that public facing pages on the primary websites are accessible to individuals with disabilities. Keep in mind, the one aircraft having a seating capacity of more than 60 is based on the manufacturer and not upon how the airline might use the particular aircraft.

2. Requires ticket agents that are not small businesses to disclose and offer web-based fares to passengers who indicate they are unable to use an agent’s website due to a disability. This particular rule is done through an amendment of the Department of Transportation rules dealing with unfair and deceptive practices of ticket agents.

3. Requires carriers to ensure that webpages on its their primary websites associated with core travel information and services conform to Level AA success criteria of the Web content accessibility guidelines 2.0 within two years of the rules effective date and that all other webpages on the primary websites are conforming within three years of the rule’s effective date. “Core travel information,” refers to booking, changing reservation in any way (including amenities), check in for flights, accessing a personal itinerary, accessing status of a flight, accessing personal frequent-flier account, accessing flight schedule, and accessing carrier contact information.

4. The requirement for webpage accessibility does not apply to mobile applications.

5. If the site of the air carrier has links to third-party websites, those third-party websites must be accessible or the person linking to those sites must be told that the site being linked to is not accessible.

6. The Web accessibility rules do not apply to ticket agent sites as those sites will be subject to future DOJ rulemaking since ticket agents are places of public accommodations under title III of the ADA.

7. If an air carrier is going to argue the making the webpages accessible is an undue burden, the factors that the Department of Transportation is going to look at are: the size of the carrier’s primary website; the type of change needed to bring the particular webpage into compliance; the cost of making the changes compared to the cost of bringing the website as a whole into compliance; the overall financial resources of the carrier; the number of carrier employees; the effect that making the change would have on the expenses and resources of the carrier; whether the carrier is part of a larger entity and its relationship to the larger entity; and the impact of making the change on the carrier’s operations. Clearly, undue burden under these regulations is a very tough standard, but it bears striking similarities to how undue hardship is determined under title I of the ADA, 29 C.F.R. § 1630.2(p)(2), and thus, the standard is somewhat familiar to the ADA practitioner.

8. Requires carriers to test the usability of their accessible primary websites in consultation with individual organizations representing visual, auditory, tactile, and cognitive disabilities. Recommends a feedback form for the site to ensure that the site is continually accessible. Finally, the Department of Transportation will engage accessibility experts to check for conformance and will notify carriers of noncompliance. Failure to take corrective action may result in enforcement actions.

9. Requires carriers to provide applicable web-based fare discounts and other web-based amenities to customers with disabilities who are unable to use their website due to a disability.

10. Requires ticket agent to provide applicable web-based fare discounts on and after 180 days from the rule’s effective date to customers with a disability who cannot use an agent’s website due to a disability.

11. Requires carriers to make an online service request form available within two years of the rule’s effective date for passengers with disabilities to request services including, but not limited to: wheelchair assistance; seating accommodation; escort assistant for visually impaired passengers; and stowage of an assistive device.

The regulations also deal with airport kiosk accessibility. Nowadays, when you go into the airport a lot of what was done by a person is now done by kiosk. For example, you can use a kiosk to check in. These regulations also have rules dealing with kiosk accessibility. The highlights of these rules follow below.

1. Requires U.S. and foreign air carrier that own, lease, or control automated airport kiosks at U.S. airports with 10,000 or more annual enplanements to ensure that all new automated airport kiosks installed three or more years after the rule’s effective date meet required technical accessibility standards until at least 25% of automated kiosk in the location at the airport is accessible. By each location, the regulations mean every place at a U.S. airport where there is a cluster of kiosks or a stand alone kiosk. Accessible kiosks provided in each location at the airport must provide all the same functions as the inaccessible kiosks in that location. The air carriers and airports have 10 years to meet these goals after the rule’s effective date.

2. Requires airlines and airports to ensure that all shared use automated airport kiosks installed three or more years after rule’s effective date meet required technical accessibility standards until at least 25% of automated kiosk in each location at the airport is accessible. Accessible kiosk provided in the location at the airport must provide all the same functions as the inaccessible kiosks in that location. This goal must be met within 10 years after the rule’s effective date. Note, that the air carriers and airports have three years from the date of the rule to begin installing accessible kiosk at U.S. airports.

3. Requires carriers and airports to ensure that accessible automated airport kiosks are visually and tactilely identifiable and maintained in working condition. Keep in mind, that specific requirements exist in the regulations with respect to inputs, outputs, and the display.

4. Make carriers and airport jointly and severally liable for ensuring the shared use automated airport kiosks meet accessibility requirements.

5. Requires carriers to give passengers with a disability requesting an accessible automated kiosk priority access to any available accessible kiosk the carrier owns, leases, or controls in that location at the airport.

6. Requires carriers to provide equivalent service upon request to passengers with a disability who cannot readily use their automated airport kiosks.

Takeaways:

1) The Department of Transportation rules may be a hint of where the Department of Justice is going to go with respect to their Internet accessibility rules that keep getting delayed. Thus, if you are a title II or title III entity, and want to get ahead of the game, you may want to start exploring how your website with respect to what the public sees, conforms to Level AA success criteria of the Web Content Accessibility Guidelines 2.0.

2) Title II and Title III of the ADA are in a bit of a different situation than the Department of Transportation is with respect to the Air Carrier Access Act. This is because the Air Carrier Access Act is written in such a way so as to give the Department of Transportation extremely broad authority with respect to the regulations it issues to carry out that act. In fact, in these regulations, the Department of Transportation reiterates its strong belief that the Air Carrier Access Act preempts state and local nondiscrimination laws that apply to aviation. Whereas, with title II and title III of the ADA, as we have talked about in other blog entries, there is some debate as to whether the ADA can be fairly read to include the Internet in its coverage. Accordingly, any litigation saying that regulations over the Internet exceed statutory authority would have a better chance to succeed with respect to the ADA (I am not saying that it would, only that it has a better chance), than it would with respect to the regulations implementing the Air Carrier Access Act.

3) The Department of Transportation realizes that there are a variety of disabilities and those disabilities may access the Internet in different ways. Thus, it is important to note that the Department of Transportation requires that the air carrier consult with organizations representing visual, auditory, tactile, and cognitive disabilities in making sure their sites are accessible. This is important because technology doesn’t always work the same. For example, what works for a person who uses a screen readers may or may not work for a person who uses voice dictation technology.

4) The air carriers and airports have three years to begin getting accessible kiosks into the airports and there is joint and several liability between the airports and the air carrier if those kiosks are not accessible.

5) If a title II or title III entity wants to get a head start on what might constitute an undue burden with respect to webpages, you might want to review the Department of Transportation regulations on this point.

As always, this is just an overview of the regulations. For those with specific concerns needing legal advice, competent legal counsel should be consulted.

Without exception, or maybe a rare one, every day my blog entry on service dogs and the Department of Justice regulations dealing with them with respect to title II and title III entities, gets at least one visit from someone. That blog entry deals with the federal approach to service dogs with respect to title II and title III entities. However, states are free to come up with their own schemes and Texas, via House Bill number 489 just signed by Gov. Perry, has amended their statutory scheme. I thought it would be interesting to talk about the Texas approach here.

House Bill number 489 amends several different statutes:

1. It adds a § 437.023 entitled service animals to the Health & Safety Code. That section, § 437.023(a), prohibits a food service establishment, retail food store, or any entity regulated under Chapter 437 of the Health & Safety Code from denying the service animal admittance into an area of the establishment or store or of the physical space occupied by the entity that is open to customers and not used to prepare food providing the service animal is accompanied and controlled by a person with a disability or the service animal is in training and is in the company of and controlled by an approved trainer.

2. § 437.023(b) of the Health & Safety Code also contains a provision that matches up with the Department of Justice regulations regarding the inquiries that can be made of service dogs. As with the federal regulations, if the service animal is accompanied by a person whose disability is not readily apparent, it allows for a staff member of the establishment, store or entity to only inquire if the service animal is required because the person has a disability and what type of work the service animal is trained to perform. House Bill number 489 added a § 121.003(k) to the Human Resources Code, which contains the same language as § 437.023(b) of the Health & Safety Code.

3. § 437.023(c) of the Health & Safety Code defines a service animal as a canine that is specially trained or equipped to help a person with a disability and specifically excludes animals providing only comfort or emotional support to a person. What we don’t know from the legislation is what does, “specially trained” mean? For that, we will have to wait developments from the regulatory body with responsibility for this particular section of the Health & Safety Code. Another possible place that guidance might come from on this, is an opinion of the Texas Atty. General (the reader is also referred to paragraph 5 below).

4. § 437.023(c),(c)(1-6) of the Health & Safety Code also set forth tasks that a service animal may perform with respect to helping a person with a disability so long as the animal is doing tasks directly related to the person’s disability. Those tasks may include: guiding the person with the visual impairments; alerting a person with a hearing impairment or who is deaf; pulling a wheelchair; alerting and protecting a person with a seizure disorder; reminding a person with a mental illness to take prescribed medication; and calming a person who has post-traumatic stress disorder. The legislation specifically uses the term “may include,” and therefore, an argument can be made that this list of tasks is not exclusive. It will be interesting to see if the regulatory body for this section adds to this list. As to what is “directly related to the person’s disability,” it should be fairly obvious most of the times. It remains to be seen whether any regulatory guidance will also be forthcoming on that.

5. § 121.002 of the Human Resources Code is amended by the act. In particular, § 121.002(1) now defines an assistance animal and a service animal in the same way i.e. a specially trained or equipped canine that helps a person with a disability and that is used by a person with a disability. While the term “specially trained or equipped,” currently exists in the Human Resources Code, I was unable to find, through a Westlaw search, any definition of that term in the Texas Administrative Code with respect to the Human Resources Code. Also, it is possible that the regulatory body for the Health & Safety Code would not be the same as the regulatory body for the Human Resources Code. Thus, if so, it is theoretically possible that, “specially trained or equipped” may wind up having different meanings depending upon the statute involved. Hopefully, that wouldn’t happen because it would create a mess, but it is a theoretical possibility. When I did a search on Westlaw to find out how “specially trained,” might be defined in the Texas Administrative Code, the only entry I came up with was § 169.22 of the Texas Administrative Code dealing with rabies control and eradication. That particular section does say that a person with a disability has to have taken a course in the training of such an animal. It also says that the training has to be from an organization generally recognized by agencies involved in the rehabilitation of persons who are disabled as reputable and competent to provide training for assistance animals and/or their handlers (but see #9 below).

6. § 121.002(4) of the Human Resources Code defines a disability as a person who has any of the following: a mental or physical disability; an intellectual or developmental disability; a hearing impairment; deafness; speech impairment; visual impairments; post-traumatic stress disorder (coverage of post-traumatic stress disorder was specifically cited by Gov. Perry when signing the legislation); or any health impairment that require special ambulatory devices or services. What is important to note about this definition is that it doesn’t correspond to the definition of a disability under the ADA.

7. § 121.002(5) of the Human Resources Code makes clear that a public facility also includes a retail business, commercial establishment, or office building to which the general public is invited.

8. § 121.003(h) of the Human Resources Code, which deals with full and equal access to housing, is amended so as to prohibit requiring a person with a total or partial disability who uses a service animal from being required to make a deposit for the animal. It also goes on to say that such a person is liable for damages done to the premises by the animal, except for reasonable wear and tear (the language pertaining to a deposit and to liability excepting reasonable wear and tear were added by House Bill number 489 to previous law).

9. § 121.003(i) of the Human Resources Code is amended so that an animal in training cannot be denied admittance to any public facility when that animal is accompanied by an approved trainer. The importance of this amendment is that prior law, deleted by House Bill number 489, restricted an approved trainer to a person who was an agent of an organization generally recognized by agencies involved in the rehabilitation of persons who are disabled as reputable and competent to provide training for assistance animals and/or their handlers. Thus, House Bill number 489 expands who an approved trainer can be from prior existing law.

10. § 121.004(a) of the Human Resources Code is amended so that a person who violates a provision of § 121.003 commits a misdemeanor punishable by a fine of not more (it used to be not less) than $300 and-added by House Bill number 489- 30 hours of community service to be performed for a governmental entity or nonprofit organization primarily serving persons with visual impairments or other disabilities (the court has discretion to choose another entity or organization as well), to be completed in not more than one year.

11. § 121.004(b) of the Human Resources Code is amended so that a person, including a firm, association, corporation, or other public or private organization, or the agent of the person who violate provisions of § 121.003 is deemed to have deprived the person with a disability of his or her civil liberties and that person can then maintain a cause of action for damages in a court of competent jurisdiction with a conclusive presumption of damages in the amount of at least $300 (the prior law had it as $100), to the person with a disability. [In this paragraph, I am using the italics to indicate the changes to the existing laws].

12. § 121.006(a) of the Human Resources Code imposes penalties upon a person claiming that they are using a service dog when the dog does not meet the definition of a service dog. First, if a person uses a service animal with a harness or leash of the type commonly used by the person with disabilities who use such animals and does so in order to represent that his or her animal is a specially trained service animal when training has not in fact been provided, that person is guilty of a misdemeanor and is subject to a fine of not more than $300 and the 30 hours of community service. With the exception of the civil damages piece, the penalty for misrepresenting a dog as a service dog and for denying a person with a service dog the right to use a facility is the same. The lack of the civil damages piece against a person who misrepresents a dog as a service dog can be a bit problematic. That is because it is a standard rule of attorney conduct that an attorney cannot threaten criminal prosecution solely for civil advantage. Without the civil damages piece against a defendant misrepresenting a dog as a service dog, this particular ethical rule may be in play. After all, since the questions that can be asked in order to ascertain whether a dog is a service dog are so limited, it would take discovery to determine the nature of the alleged service dog’s training, one wonders how a criminal statute wouldn’t be used solely for civil advantage. Also, it is interesting that the statute has as a preliminary statement that “a person is using a service animal with a harness or leash of the type commonly used by the person with disabilities,” because that creates the argument that the statute does not apply unless such a leash or harness is involved in the first place.

If there is a moral to this blog entry, it is that state laws always have to be looked at. Also, it is important not to assume what the nature of those state laws might be (a red state or a blue state), as you might be surprised. Finally, whenever a statute is passed, federal or state, regulatory developments follow. Those regulatory developments need to be monitored during the rulemaking process so that the regulatory bodies are aware of the client’s concerns.

In a prior blog entry, we discussed whether indefinite medical leave was a reasonable accommodation under the ADA. In that blog entry, we discussed a case from the 10th circuit, where they held that indefinite leave was not a reasonable accommodation under the ADA. But that isn’t the end of the matter. What about state law? What about municipal law? The answer may very well depend upon the state and municipality.

Such a case is Romanello v. Intesa Sanpaolo. In this case, the plaintiff was a former executive of a financial services firm and worked there for 25 years until he became ill and unable to work. He was diagnosed with a series of disorders, including major depression. After he had been absent from work for almost 5 months, during which the financial services firm continue to pay his full salary, the financial services firm sent the plaintiff’s lawyer a letter stating that his family and medical leave act was set to expire soon and they would appreciate knowing whether he intended to return to work or abandon his position. The plaintiff’s lawyer responded saying that the plaintiff had been suffering from severe and disabling illnesses that had prevented him and continued to prevent him from working in any capacity, let alone the capacity that he had been serving in. Further, the letter went on to say that the plaintiff had never expressed any interest or intention in abandoning his position. Instead, it noted that he had been sick and unable to work, with an uncertain prognosis and a return to work date that was indeterminate. Instead of engaging in an interactive process, upon receipt of this letter, the financial services immediately terminated the plaintiff, although the plaintiff did seek and eventually receive long-term disability payments under a policy of insurance provided by the financial services company. Plaintiff sued alleging violation of the New York State Human Rights Law and the New York City Human Rights Law. The ADA was not a part of this suit.

So, why are we covering this particular case then? It is important to know that the ADA may not always be the only option for a particular plaintiff. For example, the ADA applies to 15 or more employees. It is not unusual for a state law protecting against discrimination against persons with disabilities to apply to less than that. Also, as is always the case, state and municipal laws are able to go further than federal laws if they so desire. That said, state laws and municipal laws may not define disability the same way as the ADA and the practitioner or a plaintiff need to be aware of that. For example, the highest court of New York noted that the New York State Human Rights Law limits the term “disability,” to a person whom upon the provision of reasonable accommodation does not prevent a person from performing in a reasonable manner the activities involved in the job or occupation sought or held. From the highest court of New York’s discussion, it is reasonable to say that reasonable accommodation under the New York Human Rights Law is defined similarly to the ADA. More specifically, it refers to action taken that permit an employee with a disability to perform in a reasonable manner activities involved in the job and which do not impose an undue hardship on the business. With respect to the New York City Municipal Law, that law requires an employer to make reasonable accommodations that enable a person with a disability to satisfy the essential requisites of a job provided that the disability was known or should have been known by the employer. Further, under the New York City municipal anti-discrimination law for persons with disabilities, the burden is on the employer to prove undue hardship. That is, it is an affirmative defense for the employer that the employee cannot with reasonable accommodation satisfy the essential requisites of the job.

In light of all this, the court decided that indefinite leave under the state Human Rights Law was not a reasonable accommodation. They also decided that indefinite leave under the New York City municipal antidiscrimination law for persons with disabilities might be a reasonable accommodation unless the employer could show, through its affirmative defense, that the plaintiff could not perform his essential job functions with an accommodation, which the employer had not done in this case. In reaching these conclusions, the highest court of New York, the New York Court of Appeals, noted the following:

1. The court cited to a case by way of analogy (the court used the citation signal,”cf.”, which means by analogy), saying that reasonable accommodation under the New York Human Rights Law does not include indefinite leave. Further, nothing in the plaintiff’s communication with his employer or in his complaint gave any indication as to when the plaintiff planned to return to work. Finally, the court looked to a standard dictionary for the meaning of the term, “indeterminate,” the term used by the plaintiff’s lawyer in his letter. The dictionary defined it as not definitely or precisely determined or fixed.

2. With respect to the New York City Human Rights Law, the city human rights Law afforded protection broader than the state human rights law. The court noted that the city human rights law had a provision in it saying that it was to be construed liberally for the accomplishment of the uniquely broad remedial purposes of the law even if that meant going beyond federal and New York State civil and human rights laws. Accordingly, the court said that was the reason why it had previously held that the city human rights law needed to be construed broadly in favor of discrimination plaintiff whenever such a construction was reasonably possible.

3. The city human rights law definition of disability does not include reasonable accommodations or the ability to perform a job in a reasonable manner. Instead, the city human rights law defined disability solely in terms of impairments. Also, the city human rights law does require that an employer make reasonable accommodations to enable person with a disability to satisfy the essential requisites of the job providing the employer knows or should have known of that disability. Finally, as mentioned above, the New York City Human Rights Law imposes the burden on the employer to show, through an affirmative defense, that the employee cannot with reasonable accommodations satisfy the essential requisites of the job.

The Dissent: There was a partial dissent in this decision. Justice Abdus-Salaam said that he agreed with the court’s decision with respect to the New York City Human Rights Law. However, he disagreed with the decision of the majority with respect to the State Human Rights Law in that the financial services company the plaintiff worked for should not have been left off the hook so easily. That is, the letter saying that the plaintiff’s return to work was indefinite should have activated the interactive process to see if any reasonable accommodation would work and that it was not consistent with the State Human Rights Law for the financial services company to terminate the plaintiff upon receipt of the letter without engaging in the interactive process.

Takeaways:

1. Under the ADA, as mentioned in a previous blog entry noted above, indefinite medical leave is not going to be a reasonable accommodation.

2. State laws may vary as to whether indefinite medical leave is going to be a reasonable accommodation. Most, will probably take the view of the highest court of the state of New York in saying that indefinite medical leave is not a reasonable accommodation under their state law.

3. Always be aware that municipal laws may be involved as well. Those municipal laws may go beyond federal and state laws in their protection for persons with disabilities. New York City is currently in the process of transitioning mayors and so it would be hard to say whether you might see a push to amend the New York City antidiscrimination laws with respect to persons with disabilities so as to not allow for an indefinite medical leave of absence to be a reasonable accommodation. Or, alternatively, whether there would be a push to amend the New York City antidiscrimination law to more closely track the wording of the State Human Rights Law.

4. The partial dissent has now given plaintiffs ammunition to argue, certainly under state laws and municipal laws if not the ADA, that a request for indefinite leave should only be considered as the opening parlay into the interactive process. Therefore, before an employer automatically terminates someone who says that they have every intention of returning to work but has no idea when, the employer should check their jurisdiction’s view of their state laws and municipal laws. Also, the employer would want to check into just how receptive their jurisdiction might be to the argument that a request for an indefinite leave under state laws, municipal laws, and even the ADA, should be considered an opening gambit in the interactive process.

One of my more popular blog entries is the blog entry discussing University of Texas Southwestern Medical Center v. Nassar. In that blog entry, I talked about how that decision necessarily means that mixed motive jury instructions are available with respect to ADA title I (non-retaliation) claims. We now have a case, Siring v. Oregon State Board of Higher Education ex rel. Eastern Oregon University, _ F. Supp. 2d _, 2013 WL 5636718 (D. Or. October 15, 2013), saying exactly that.

There were a few different issues before the court, but for our purposes the question is whether University of Texas Southwestern Medical Center v. Nassar changed the causation standard so as to not allow for a mixed motive jury instruction in a title I case. Before proceeding further, it is important to note that no ADA retaliation claim was at issue in this case. Also, it is important to note that the court did say that but for causation was the standard for Rehabilitation Act claims because of the “solely by reason of disability,” language that appears in that law.

The court reasoned that the Supreme Court in the aforementioned decision, had not changed the causation standard for ADA title I claims, which in the Ninth Circuit allowed for mixed motive jury instructions. The court reasoned as follows:

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

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

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

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

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

Takeaways: I don’t view this decision as remarkable. The key being that there was no ADA retaliation claim in this case. For the reasons mentioned above, which we have also discussed in other blog entries and which I also discuss in the latest edition of my book, the Nassar decision compels the conclusion reached by the court in Siring. Also, as we have talked about previously as well, the fact that the Rehabilitation Act requires a but for causation standard is also not remarkable because of the specific statutory reference in that law, “solely by reason of disability.”

An employee learns that she has cancer. Shaken up by the diagnosis she returns to work the same day and tells the on-site coordinator of her diagnosis. The on-site supervisor then communicates same to the company’s administration and on-site operations manager for the regional area explaining that the employee has been sent home because of she just been diagnosed with cancer and needed some time off. The following day the employee and the on-site operations manager for the regional area’s have a conversation in which the employee tells the regional supervisor that she has cancer, that she has not seen a specialist yet, does not know what treatment would be, but is assuming it will be a long road ahead and anticipates needing to time to attend Dr.’s appointments. The employee also expressed concern about the upcoming season when the print shop is busier. At the end of the conversation, parts of which were in dispute, the regional area supervisor asked the employee if the employee was giving her two-week resignation notice. The employee responded that she did not want to stop working and asked the regional supervisor if she knew of any easier jobs available at the company. The regional supervisor said that she did not know of any and that all the jobs available in her division were the same kind of work the employee was doing. The regional supervisor claimed, which claim was disputed by the employee, that she then referred the employee to the company’s website where a complete listing of jobs could be found and instructed her to call the HR department with any questions. The employee’s version was that she had no memory being referred to the company’s website or to human resources, and she stated that she most certainly would’ve gone to the website to look for job openings if she had been told to do so. Thus, the employee never went to the website to look for another job openings nor did she discuss with anyone from the company the possibility of taking a leave of absence or talking to HR about her cancer diagnosis or going on short-term disability. Less than 20 minutes later, the employee sent an email to the regional supervisor resigning her position. Her explanation was that she decided to resign because she didn’t see any other options and that her resignation with the only way to avoid, “screwing her co-workers over.” Despite the resignation, the employee filed a claim alleging violations of the Americans with Disabilities Act, the Illinois Human Rights Act, and the Employee Retirement Income Security Act, and eventually the defense move for summary judgment. These are the facts taken from Suvada v. Gordon Flesch Company, 2013 WL 5166213 (N.D. Ill. September 13, 2013).

In rejecting the defense motion for summary judgment on the ADA claim, the court, northern district of Illinois, Eastern division, Judge Chang, reasoned as follows:

1. To prove a failure to accommodation claim, a plaintiff has to show: that she is a qualified individual with a disability; that the employer was aware of a disability; and that the employer failed to reasonably accommodate the disability. Both parties agreed that for purposes of the summary judgment motion, the only question was whether the employer failed to reasonably accommodate the disability.

2. The ADA requires very little of the employee to trigger the employer’s duty to engage in the interactive process. All the employee has to do is notify the employer of her disability, which the employee did in this case. That was enough to give notice to the employer of the employee’s disability and enable the employer to ask follow-up questions.

3. The employee went beyond notifying the employer, through the regional supervisor, of her disability since the employee also asked for an accommodation and asked if there were any easier jobs available.

4. That the employee did not specify the type of job she desired, did not mean that the employee did not trigger the interactive process and it also did not absolve the company of asking further questions to search for a reasonable accommodation. Accordingly, when the employee notified the employer of a disability and requested an accommodation, the employer’s obligation to engage in the interactive process was triggered.

5. The court noted that at the end of the conversation, the regional supervisor asked the employee if she was giving her two-week resignation notice, and the employee responded that she didn’t want to stop working. The court believed that that in of itself should’ve been enough to prompt the employer to consider whether there was a reasonable way to accommodate the employee’s limitations in her current job and if not that, whether the employee could be reassigned to a position that she could perform.

6. The ADA requires an employer to consider reassignment as one form of accommodation if the employee is unable to perform his job. (We have discussed this issue of reassignment numerous times in this blog).

7. The employee needed direction from the regional supervisor and what her options were and the regional supervisor failed to provide adequate guidance as to those options.

8. In light of the above, the court believed there was a genuine issue of material fact as to whether the regional supervisor obstructed the interactive process by withholding information about alternative job openings and therefore, it was a factual question as to whether the employer was responsible for the breakdown of the interactive process.

9. It isn’t enough for the employer to say that the employee knew of the company’s website and that the website contains job openings because the ADA imposes an affirmative duty on the employer to make reasonable accommodations for otherwise qualified, the ADA uses the term qualified now, employees with disabilities.

10. Since failure to engage in the interactive process by itself does not give rise to relief under the ADA, the plaintiff still has the obligation to prove at trial that a reasonable accommodation was actually available.

Having finished with the failure to accommodate claim, the court then turned to whether the employee was constructively discharged from her employment. Constructive discharge essentially means a person is involuntarily terminated but resigns instead.

1. Citing to a case, which I have frequently discussed in the editions of my book, the latest of which is now available from the American Bar Association, EEOC v. Sears, Roebuck and Company, 233 F.3d 432 (Seventh Circuit 2000), constructive discharge claims are allowed under the ADA.

2. To prove a constructive discharge claim a person has to show that she was constructively discharged and that the constructive discharge was motivated by discriminatory intent.

3. The court discussed the various forms that constructive discharge can take. The court said there were two different forms. First, the harassment is so intolerable that a reasonable person would have no choice but to quit. Second, where an employer acts in a manner so as to communicate to a reasonable employee that she will be terminated and accordingly that employee resigns, constructive discharge can occur there as well. The court referred to this as the handwriting on the wall with the ax about to fall situation. The court felt that in light of the facts, discussed above, that the employee could have reasonably felt that her choice was to resign or be terminated and that is why she emailed the written resignation letter shortly after the phone conversation ended.

4. The court recognized that if this were the typical title VII constructive discharge claim the employee’s claim in this case would not survive. However, the court believed that because the ADA imposes an affirmative duty on employers to provide a reasonable accommodation, the standard for reasonableness has to be more forgiving for an employee bringing in ADA constructive discharge claims than it would be for an employee bringing a title VII constructive discharge claim.

Takeaways: There are several important takeaways from this case. First, a resignation letter does not necessarily end an employer’s duty to accommodate. Second, it doesn’t take much for an employee to activate the interactive process. Third, the duty to engage in the interactive process is an affirmative obligation on the part of the employer. Fourth, it may be easier for a plaintiff to prove constructive discharge with respect to an ADA claim than it would be for that plaintiff to prove constructive discharge under title VII. Finally, if the employee gives the employer an opening to pursue the interactive process, the employer should take advantage of it.

Person works for a company of over fifteen employees, develops a disability, and is terminated from her position because of that disability. She then files for SSDI. She then brings suit under the ADA for failure of the employer to reasonably accommodate her disability.

In these type of situations, the employer will invariably defend using the case of Cleveland v. Policy Management Systems, 526 U.S. 795 (1999), to argue that the claims made in the SSDI application were such that the plaintiff is estopped, or prevented, from claiming that he or she can do the job with or without reasonable accommodation and therefore, is no longer qualified and therefore is not protected by the ADA. In Cleveland, plaintiff filed for Social Security Disability Benefits and obtained them. Subsequently, he filed an ADA suit and claimed that he was not reasonably accommodated. To obtain SSDI, a person has to show that he is unable to perform any job in the economic marketplace.

In holding that judicial estoppel might apply but also might not apply in such situations, Justice Breyer, writing for the United States Supreme Court, reasoned as follows:

1. The pursuit and receipt of SSDI benefits do not automatically estop the plaintiff from pursuing an ADA claim. For that matter, the law does not erect a strong presumption against the plaintiff’s success in filing an ADA claim either. However, an ADA plaintiff cannot simply ignore her SSDI contention. To survive a motion for summary judgment, the plaintiff must explain why the information in the SSDI filing is consistent with showing that the plaintiff is otherwise qualified for the position at issue.

2. Justice Breyer took note of the apparent conflict between the ADA and SSDI, but proceeded to say the inherent conflict (the ADA saying, “I can do the job if I am reasonably accommodated” v. SSDI saying, “I can’t do any job in the economic marketplace), was not so severe that courts should apply a special negative presumption.

3. The ADA and SSDI systems operate completely differently from each other. For example, the SSDI system does not factor reasonable accommodation into its calculus. Thus, an ADA suit claiming that the plaintiff can perform the job with reasonable accommodation may be consistent with claiming the inability to perform a job or jobs without it.

4. Justice Breyer noted that people receiving SSDI can work under certain parameters.

5. Even with all this said, an ADA plaintiff cannot ignore the SSDI and ADA apparent contradiction; a sufficient explanation must be forthcoming. In order to defeat a summary judgment motion, the explanation must be sufficient to warrant a reasonable juror concluding that (assuming the truth of the claims made or the plaintiff’s good-faith belief in the truth of those claims made in the SSDI filing), the plaintiff would nonetheless perform the essential functions of the job with or without reasonable accommodation.

But this isn’t the end of the matter. The question becomes what can be said in the SSDI application so that judicial estoppel is not activated. For example, if a person in their SSDI application makes a general statement that they are unable to work, does that activate judicial estoppel? A case that directly dealt with this question is Molina v. Pocono Medical Center, 2013 WL 4520458 (M.D. Pa. August 26, 2013). In this case, the plaintiff was a registered nurse who suffered from an autoimmune deficiency. As a result, she frequently fell ill (for example, she had pneumonia 16 times between 2006 and 2009), and as a result she had to take vacation or medical leave a number of times throughout her employment. On May 24, 2010, she was exposed to a patient with MRSA, which caused her to contract MRSA pneumonia. As a result, she went on FMLA leave and was hospitalized for approximately 90 days. Her primary doctor, an internal medicine specialist, wrote her a note saying that she could return to work on June 19, 2010 providing she was not exposed to infected patients. That note was presented to the plaintiff’s immediate supervisor. The plaintiff’s supervisor would not allow her to return to work as a nurse, and the plaintiff then filed an ADA claim with the EEOC. Critically, for our purposes, she also applied for and was granted SSDI. In the application she simply stated that she was, “unable to work.” Naturally, the first thing the defense did was to defend on the grounds that the claim should be thrown out as a result of judicial estoppel vis-à-vis Cleveland . The court said that viewing the evidence in light most favorable to the plaintiff, that the SSDI grant did not preclude the plaintiff’s ADA claim and reasoned as follows:

1. The court began by noting that the ADA focuses on reasonable accommodations while SSDI focuses on the inability to work.

2. The court cited to Cleveland for the proposition that there are many situations where an SSDI claim and an ADA claim can comfortably exist side-by-side since SSDI claim to not take the possibility of reasonable accommodations into account.

3. As mentioned above, while an ADA plaintiff cannot ignore any contradiction between his or her SSDI and ADA claims, the plaintiff can still satisfy his or her burden by offering a sufficient explanation as to the discrepancy. IMPORTANTLY, the Molina court goes on to say that where there is no discrepancy between the ADA and SSDI claim, there is no need for an explanation. That is, the proper focus is not whether there was a general claim of inability to work on the SSDI claim, but rather on the factual contradiction between the two claims. Accordingly, the general assertion in an SSDI claim that an individual is unable to work due to a disability does not commit that plaintiff to any position as to whether the plaintiff could work if reasonably accommodated. Ultimately, if a plaintiff wishes to defeat summary judgment, the plaintiff’s explanation of the contradiction, if any, between SSDI and ADA claims must enable the reasonable juror to conclude that, assuming the SSDI claim was made in good faith, the plaintiff could still perform the essential functions of the job with or without reasonable accommodations.

4. Citing to a Third Circuit decision, Turner v. Hershey Chocolate USA , 440 F.3d 604 (3rd Cir. 2006), the Molina court said that any statements made in an SSDI application must be inferred to include the language of, “without reasonable accommodation.”

5. Aside from general claims of inability to work, the plaintiff provided the same information in her SSDI application that she provided in her complaint regarding her condition and ability to work vis-à-vis the ADA requirements of being able to perform the essential functions of the job with or without reasonable accommodations.

Molina takeaways:

1. At least in the M.D. of Pennsylvania, a general statement of being unable to work in an SSDI application will not run a plaintiff into the buzz saw of judicial estoppel.

2. A plaintiff when faced with a judicial estoppel claim from the defense will still need to show that they can perform the essential functions of the job with or without reasonable accommodations (i.e. that they are qualified or in Rehabilitation Act parlance, otherwise qualified).

3. At least in the Third Circuit, it will be assumed that an SSDI filing implicitly contains the language, “without reasonable accommodation.”

4. Outside of general claims of inability to work, from the plaintiff perspective, if the plaintiff can provide the same information in her complaint that she provided in the SSDI application regarding her condition and ability to work with respect to performing the essential functions of the job with or without reasonable accommodations, all the better. Keep in mind, that the one thing we don’t from this opinion is the context. That is, while we do know that she made a general statement about being unable to work in the SSDI application, we don’t know what was said with respect to performing the essential functions of a particular job in the SSDI application that she filed. Absent that knowledge, it is not exactly clear what the M.D. of Pennsylvania is asking SSDI counsel to do by this statement.

5. If you are an SSDI practitioner, it is imperative that the Cleveland case be thoroughly read and understood. Also, it is important to understand the real risk of legal malpractice if the attorney does not advise the client on the implications of filing for SSDI when an ADA claim is foreseeable. While I have written on that topic previously,in the fourth edition of my book coming out from the American Bar Association in just a few weeks, I expand on why the risk of legal malpractice exists in this situation. Keep in mind, the plaintiff employment lawyer also needs to be aware of judicial estoppel as well because it is quite possible that a client may say that they would like to go ahead and file for SSDI where they come to you for a situation involving discrimination on the basis of disability in violation of either the Rehabilitation Act or the ADA.

Many years ago I represented a public entity that was the subject of an adverse licensing decision. In that particular situation, the public entity had a group home for persons with a certain type of disability. The Medicaid certification inspection was done in such a way so that the disabilities of the people living in the home was not accommodated. This resulted in the inspection leading to a decertification finding. On behalf of my client, I was able to successfully argue that conducting the certification inspection in a way whereby the residence with disabilities were not properly accommodated not only distorted the results but arguably violated the ADA. The particular case of this blog entry is related but a bit different.

In Kelly v. Mayhew, an unpublished decision that can be found at 2013 WL 5347718 (D. Me. September 23, 2013), Maine’s Department of Health and Human Services Division of Licensing and Regulatory Services mandated that the plaintiff’s employer discriminate against her by telling her employer that they would not allow her to be counted with respect to their staff ratio because of her disability (hearing loss). By saying that she could not be counted for purposes of staff ratio, the Department of Health and Human Services effectively precluded her from working in the field, which she had done for 30 years.

What happened in this case was the following: The plaintiff worked at Sonshine nursery school in Friendship, Maine for 31 years prior to being terminated. In September 2010, the Division of Licensing and Regulatory Services came out to the school to conduct a survey for the school’s application for renewal of a license to operate a childcare facility. During that survey, the surveyor became concerned that the plaintiff was unable to effectively supervise the children because of her hearing loss. The surveyor did not possess any training or expertise in hearing loss nor did he request any information from the plaintiff about her hearing loss. Further, at no point did he ask for a report from her audiologist or ask her for any audiograms. When the plaintiff asked if there was anything wrong, the surveyor said there was no problem. But there very much was a problem. The surveyor told the director of the nursery school that he was concerned that the plaintiff would not be able to hear and respond to the children in an emergency and then determined that she could not be counted as a staff member for purposes of the staff to child ratio. This led to the division of licensing and regulatory services renewing the nursery school’s license with the understanding that the nursery school would hire a new employee in order to comply with the staff to child ratio. Of course, this meant that the nursery school would have to hire someone else. Accordingly, the chairman of the board of the nursery school told the plaintiff that she would be replaced on December 23, 2010 because of the licensing issue. The plaintiff asked the nursery school for a chance to get new hearing aids, but the school was too concerned about their licensing to even consider the request. The plaintiff then contacted the surveyor at the Division of Licensing and Regulatory Services and told the surveyor that she had been wearing hearing aids for the entire 31 years that she worked at the nursery school, that being fired was a nightmare because she loved the children at the nursery school, but she needed new hearing aids, and would get them shortly. She told him that she would correct anything she was doing wrong so she could continue working with the children. The Division of Licensing and Regulatory Services was unresponsive to her pleas. She then filed suit under the Maine Human Rights Act, title II of the ADA and §504 the Rehabilitation Act. Naturally, the case was removed to federal court.

Before proceeding to the merits of the claim, it is important to note a couple of things about this case. First, the plaintiff proceeded pro se, without legal representation i.e. she represented herself. Considering the issues, what she was able to do is actually quite amazing. Second, the defense defended on the grounds that the plaintiff had failed to state a claim under the ADA and § 504 of the Rehabilitation Act as well as on the grounds that any such suit, if the claim was stated, was precluded by the 11th amendment (sovereign immunity). Thus, the court was faced with two issues before it. First, was there a valid claim for violation of the ADA? Second, if there was a valid claim, was that claim precluded by sovereign immunity?

Turning to the first issue, whether the plaintiff had a valid claim for violation of the ADA (title II) and § 504 of the Rehabilitation Act, the court, while noting that they were not aware of any case quite like this one, reasoned that a valid claim existed. Their reasoning was as follows:

1. Title II of the ADA provides that no qualified individual with a disability shall, by reason of that disability, be excluded from the participation in or be denied the benefits of the services programs or activities of the public entity or be subjected to discrimination by any such entity. 42 U.S.C. § 12132.

2. The protection afforded under title II of the ADA is one of meaningful access to governmental benefits and programs, which means that public entities must take reasonable steps to ensure that individuals disabilities are able to take advantage of public undertakings.

3. Proving a prima facie case under title II of the ADA means establishing: that a person is a qualified individual with a disability; that the person was excluded from participation in or denied the benefits of the public entity’s services, programs, or activities or was otherwise discriminated against; and that such exclusion, denial of benefits, or discrimination was by reason of the plaintiff’s disability.

4. The court noted that public entities certainly have the right to consider whether a person with a disability poses a direct threat to the health and safety of others. However, the Department of Justice regulations insist that any such direct threat finding must be based on reasonable medical judgment relying on current medical knowledge or on the best available objective evidence. (As we have discussed elsewhere in this blog, these regulations come directly from the United States Supreme Court case law. See School Board of Nassau County Florida v. Arline 480 U.S. 273 (1987); See also Chevron v. Echazabal, 536 U.S. 73 (2002)). The complaint specifically noted that the surveyor had no training or expertise in hearing loss and that he made no inquiry into the plaintiff’s condition either by speaking to her audiologists or by asking to look at her audiograms. Therefore, it was reasonable to infer from the plaintiff’s complaint that the surveyor’s assessment that she was unable to supervise children because of her hearing loss was not based on a reasonable judgment relying on current medical knowledge or upon the best available objective evidence as required by the regulations (which, as noted above, would also be required by the case law as well).

5. Since the plaintiff worked at the nursery school for 31 years and wore hearing aids during her entire time there, it was reasonable to infer that she was qualified for the position. Also, it was reasonable to infer that improved hearing aids would’ve corrected any hearing difficulties that the surveyor observed.

6. Title II regulations prohibit a public entity from administering a licensing program in a manner subjecting qualified individuals with disabilities to discrimination on the basis of disability. In addition to citing to the Code of Federal Regulations stating this principle, the court also referred to the Department of Justice’s title II technical assistance manual that says a public entity may not establish requirements for programs or activities of licensees resulting in the discrimination against qualified individuals disabilities. For example, the technical assistance manual says that a public entity’s safety standards may not require the licensee to discriminate against qualified individuals with disabilities in its employment practices.

7. The defense argued that this was an employment matter covered by title I and not by title II, especially since the plaintiff was not their employee. However, the court was not buying this argument. The court said that since title II prohibits a public entity from subjecting to discrimination a person with a disability, that title II of the ADA does not necessarily exclude employment in the context of a case such as this one.

8. The plaintiff made numerous reasonable accommodation requests for her disability, i.e. being granted time to obtain new hearing aids and to do whatever it took to allow her to be counted as part of the staff ratio, all of which were denied.

9. The defense also argued that the request for accommodation came too late, after she had been terminated, but the court did not go for that argument because this really wasn’t an employment discrimination case, rather the plaintiff was alleging that the Division of Licensing and Regulatory Services was preventing her from working in any Division of Licensing and Regulatory Services licensed day care center. Accordingly, the plaintiff was under no obligation to request the accommodation prior to being terminated.

10. As we have mentioned elsewhere in this blog, when it comes to intentional discrimination under title II of the ADA, there are two possible standard that a court might use. First, there is the deliberate indifference standard. Second, there is the discriminatory animus standard. The court noted that the First Circuit hasn’t taken a position on which standard to use. Even so, it didn’t matter in this case, because the plaintiff had alleged sufficient facts in her complaint to satisfy either standard.

Thus, the court held that the plaintiff had alleged sufficient facts to state a valid claim under title II of the ADA and § 504 to Rehabilitation Act. It then had to turn to the second question. That is, since the plaintiff had alleged sufficient facts to support a valid claim under title II of the ADA and § 504 the Rehabilitation Act, were those claims precluded by sovereign immunity? The court held that at the motion to dismiss stage, the plaintiff had alleged sufficient facts to overcome the sovereign immunity defense and they reasoned as follows:

1. There are two possibilities for overcoming a sovereign immunity defense. First, under United States v. Georgia 546 U.S. 151 (2006), sovereign immunity is waived where the facts rise to the level of a constitutional violation. Second, if the facts do not rise to the level of a constitutional violation, then you wind up dealing with the principles laid out in Tennessee v. Lane 541 U.S. 509 (2004). That is, as we have discussed various times in this blog, you get into the whole issue of the equal protection class that persons with disabilities fall into and whether the scheme is a proportional response to the harm being redressed. For the reasons discussed below, the court since it found a constitutional violation, felt no need to explore the Tennessee v. Lane type of analysis.

2. Maine’s Division of Licensing and Regulatory Services conferred on the plaintiff unfavorable status based on her disability. That unfavorable status was that she would not be counted in the staff to child ratio at the nursery school where she had worked for 31 years. The unfavorable status not only cost her her job but she was also left with no way to appeal that status because she was not the licensee. As such, the court found that the plaintiff was fairly asserting a claim for violation of procedural due process under the 14th amendment. Such a claim, if sufficiently alleged-more discuss below-would fall under the U.S. v. Georgia analysis with respect to sovereign immunity being waived.

3. The plaintiff had a constitutionally protected liberty interest either because she was stigmatized or because she had a property interest and in neither case was she given any notice and opportunity to be heard. With respect to being stigmatized, the court, citing to both Wisconsin v. Constantineau, 400 U.S. 433 (1971), and to Paul v. Davis , 424 U.S. 693 (1976), noted that the United States Supreme Court has said that wherever a person’s good name, reputation, honor or integrity is at stake because of what the government is doing, notice and opportunity to be heard is essential. That is, the plaintiff had to show stigmatization plus some type of change in the injured person status or rights under the substantive state or federal law. With respect to property interests, the court noted that a de facto licensing scheme could be considered a property interest under case law. Since the plaintiff’s claim amounted to a claim that she was unlawfully deprived of her constitutionally protected liberty interest in her job related reputation and that the deprivation resulted in a change in her legal rights, the court applied the stigma plus standard.

4. Sufficient facts were alleged to meet the stigma plus standard. In particular, the regulations required staff to provide safe and compassionate services and to be supervised by a person who was aware and responsible for the ongoing activity of the child and who was near enough to intervene when needed. The court noted that the regulations had nothing to do with hearing whatsoever. The court said that such a conclusion by the Division of Licensing and Regulatory Services amounted to a factual finding that the plaintiff was incapable of satisfying these regulations despite 31 years of successful service in doing so. Therefore, such a finding was stigmatization in the legal sense.

5. The plus element of the test was satisfied under either because she was being refused a license to practice her craft (in a footnote, the court noted that the plaintiff would likely be able to show that she was entitled to that de facto license considering her successful experience in the field), or because of the burdens the decision put on her future employment prospects.

6. Accordingly, the state had the obligation to at a minimum give some kind of notice and some kind of opportunity to be heard and since they didn’t, the plaintiff had made out a valid claim of her procedural due process rights under the 14th amendment being violated.

7. Finally, the court did not rule out the 11th amendment not applying down the road if the facts, through discovery, established that the state’s conduct was different than what the plaintiff alleged in the complaint. That is, a constitutional violation is a high standard and it may be possible that the facts will show that the plaintiff’s 14th amendment rights were not violated should the facts be different.

Takeaways:

1. This case is both a title II of the ADA case and a constitutional law case, which happens fairly often in the title II arena. It is absolutely amazing to me that this particular plaintiff was able without legal representation to survive a motion to dismiss considering the complexity of the legal issues involved. In short, a defendant would be wise to take seriously all claims, even those of a pro se defendant. Please note, I am no way saying that the defense in this case did not take the claim seriously, rather I am just making a general point.

2. State entities in doing their regulatory activities have the obligation to carry out their activities in a way that do not discriminate against persons with disabilities. That can either mean making sure that their inspections are done in a way that complies with the ADA, the example of the case that I worked on many years ago. It could also mean, as in this case, that the state needs to be very careful about mandating as a condition of licensure that the licensee discriminate against a person with a disability.

3. Sovereign immunity will be waived if the conduct rises to the level of a constitutional violation. If not, then you get into the whole issue of the equal protection class of the person with a disability given the facts and whether the situation is a proper enforcement of the 14th amendment to the U.S. Constitution.

4. It is interesting that the nursery school was not sued. Perhaps, that was because she did not feel comfortable doing so in light of her long tenure there. Also, the ADA does contain a provision that discrimination occurring as a result of licensing requirements is not discrimination under the ADA.

5. It is curious that this decision is unpublished since it has many incredibly significant points in it and deals with a case of first impression. There can be many reasons why a case goes unpublished. Regardless of what those reasons may be in this case, counsel need to be aware that jurisdictions have rules in terms of the precedential value of unpublished cases. Even so, for anyone representing public entities engaged in licensing activities, this case is a must read.

In the employment context, in order to be protected under the ADA, you have to have a disability and you also have to be qualified (until the amendments act the term was otherwise qualified but the meaning remains the same). Whether a person is qualified under title I of the ADA, depends upon whether that person possesses the requisite skill, training, and experience for the job and can perform the essential functions of the job with or without reasonable accommodations. Here’s the question. Let’s say you have a person with a disability who can perform the essential functions of the job with or without reasonable accommodations. However, the accommodation requested by the person with a disability doesn’t have anything to do with the essential functions of the job. Is that person entitled to the accommodation? The Fifth Circuit says that it’s a question of fact.

In Fiest v. State of Louisiana a former Assistant Attorney General for the Louisiana Department of Justice alleged that her employer discriminated against her by declining to provide her a free on-site parking space to accommodate her disability, osteoarthritis of the knee. She also alleged retaliation as well. District Court granted summary judgment to the defense because the plaintiff failed to explain how the denial of on-site parking limited her ability to perform the essential functions of her job. The plaintiff appealed arguing that the ADA does not require a link between a requested accommodation and the essential job function.

The Fifth Circuit- a unanimous decision of a panel consisting of Judges Davis, Jones, and Benavides- agreed with the plaintiff’s view that reasonable accommodations are not restricted to modifications enabling performance of essential job functions and reasoned as follows:

1. The text of the ADA says that reasonable accommodations can include making existing facilities used by employees readily accessible to individuals with disabilities. It also may include job restructuring, part-time or modified work schedules, reassignment to a vacant position acquisition or modification of equipment or devices, appropriate adjustment or modifications of examination, training materials or policies, etc. 42 U.S.C. § 12111(9)

2. The ADA text itself gives no indication that an accommodation has to facilitate essential functions of a person’s position.

3. The plaintiff’s accommodation request could well have made her workplace readily accessible to and usable by her, and therefore, be a reasonable accommodation under a separate provision of the ADA (see #1 above).

4. The implementing regulations of the ADA indicate that reasonable accommodations do not have to be related to the performance of essential job functions. For example, the implementing regulations require modification or adjustment to job application processes so as to enable a qualified person with a disability to be considered for positions that the qualified person with a disability desires. Another example from the same implementing regulation, is that the regulations require modification or adjustment to enable a person with a disability to enjoy the same equal benefits and privileges of employment as that are enjoyed by those without disabilities. 29 C.F.R. § 1630.2(o)(1). Therefore, to the court’s view reasonable accommodations break down into three categories, only one of which pertains to essential functions of the position.

5. EEOC guidance explicitly provides that providing reserved parking spaces may constitute reasonable accommodation under some circumstances.

The plaintiff also sued for retaliation. On this claim, the Fifth Circuit affirmed summary judgment for the employer because the employer was able to show a non-pretextual for the plaintiff’s dismissal and the plaintiff presented no evidence of pretext. In particular, the employer presented evidence that the plaintiff’s performance in her job was substandard and therefore, they had a legitimate non-pretextual reason for terminating her.

Takeaways: As far as I am aware, this is a case of first impression. I can’t recall coming across a case where the issue was whether reasonable accommodations in the employment context extended beyond the essential functions of a person’s job. Nevertheless, this case makes the argument that otherwise qualified (whether a person can do the essential functions of the job with or without reasonable accommodations), is an entirely different concept than reasonable accommodations. That is, under other provisions of the ADA, it may be possible to argue now by way of this decision, that a person is entitled to a reasonable accommodation even where that accommodation is not linked to the essential functions of the person’s job. Will this argument carry the day eventually? It’s hard to say. As mentioned above, to the best of my knowledge, this is the first case of its kind. Will you see the circuits eventually split? I think an argument can be made that a court could justifiably disagree. As many decisions have said title I is all about employment and therefore, reasonable accommodations should relate to the employment and must be read in the larger context of how it relates to the essential functions of the job. On the other hand, the equal benefits and privileges section of the implementing regulations does lead one to wonder whether reasonable accommodations would in fact extend, at least in some circumstances, beyond the essential functions of the job.

Under Tennessee v. Lane, the equal protection class persons with disabilities fall into is going to depend upon the facts and circumstances of the individual case. That equal protection class is also going to dictate how likely a state is going to be able to defend on the grounds of sovereign immunity. The question raised by this blog entry is whether a plaintiff can get around that by focusing on the Rehabilitation Act instead of or in addition to title II of the ADA.

A case that explores this question is Gaylor v. Georgia Department of Natural Resources, 2013 WL 4790158 (N.D. Ga. September 6, 2013). In this case, the plaintiff suffered from multiple sclerosis and desired to access various state parks in Georgia, but during his visits to those various state parks he faced difficulties accessing their goods, services, programs and activities within the parks due to architectural barriers. Accordingly, he sought declaratory relief that the parks were inaccessible in violation of the ADA and the Rehabilitation Act. He also sought injunctive relief against the state of Georgia to stop them from the discriminatory practices and to require them to make the necessary improvements to correct the violations. Importantly, he also sought compensatory damages as well as attorneys fees. The state of Georgia defended on the grounds of sovereign immunity, among other arguments.

The particular decision cited above is actually the second decision. In the first decision, the court said that the plaintiff had adequately pled the waiver of immunity as to his Rehabilitation Act claim because defendant received federal funds. There is a line of cases saying that if you can show that the particular state agency or State Department being sued takes federal funds, then that particular state agency or State Department waves its sovereign immunity under the Rehabilitation Act. With respect to Rehabilitation Act cases, it is not statewide but rather individual to each department or state agency as to the waiver of sovereign immunity.

Whenever a court considers sovereign immunity vis-à-vis the ADA, they will look at three factors per City of Boerne v. Flores, 521 U.S. 507 (1997): 1) The constitutional right(s) Congress sought to enforce in enacting the ADA; 2) whether there is a history of unconstitutional discrimination to support Congress’s determination that prophylactic legislation was necessary; and 3) whether title II of the ADA was an appropriate response to that history and pattern of unequal treatment.

With respect to the ADA, in its first decision, the court said that while persons with disabilities may be in the rational basis class, nevertheless, persons with disabilities had a right to be free of irrational discrimination in accessing state parks and recreational facilities under the equal protection clause of the 14th amendment. The court also said in its first decision that Congress had documented a sufficient history of unconstitutional disability discrimination in the providing of public services in order to justify enactment of title II of the ADA. In its first decision, the court left it for another day as to whether title II and its regulations were an appropriate response to the history of discrimination faced by persons with disabilities since the plaintiff was not specific in alleging what regulations the state violated. The plaintiff then responded with an amended complaint specifying the regulations that were violated. Once again, the state of Georgia defended on sovereign immunity grounds, among other reasons. The United States then intervened in the case and filed a brief against the State of Georgia arguing that the court need not decide whether title II and its regulations were a proportionate response since the Georgia Department of Natural Resources had waived its 11th immunity under the Rehabilitation Act and the Rehabilitation Act (the two acts being essentially the same except for causation language).

The court agreed with the Department of Justice that whether title II of the ADA and its regulations were a proportional response was purely an academic matter that did not need to be decided in this case. In reaching that conclusion, the N.D. of Georgia reasoned as follows:

1. The court cited to a Fifth Circuit case, there are others, saying that receipt of federal funds waived sovereign immunity under § 504 of the Rehabilitation Act.

2. The only material difference between the rights and remedies that a plaintiff has under § 504 of the Rehabilitation Act and title II of the ADA is in their causation requirements. However, that difference is immaterial where the plaintiff’s claim is based on a failure to make reasonable accommodations for persons with disabilities.

3. Since the plaintiff was challenging architectural barriers in the parks, title II of the ADA and § 504 of the Rehabilitation Act have the same rights and remedies. Accordingly, unless the state of Georgia could show that the Department of Natural Resources did not take federal funds, it would seem very unlikely that they could do that, the N.D. of Georgia felt no need to visit the title II sovereign immunity issue.

This case involves more than just sovereign immunity. Once the court got beyond sovereign immunity, the state of Georgia defended on the ground that no private right of action existed for violating the regulations themselves. The court was having none of that argument either and reasoned as follows:

1. The court noted it had already found that the plaintiff was not attempting to alleged violations of specific regulations as the basis for a private cause of action.

2. As mentioned previously in another blog entry, the Supreme Court of the United States in Alexander v. Sandoval, 532 U.S. 275 (2001), discussed when a regulation will support a private cause of action. What the court said there was where a statute creates a private cause of action and authorizes the issuance of implementing regulations, those valid and reasonable regulations carrying out that statute are equally as enforceable by a private cause of action as violations of the statute itself. The specific regulations alleged by the plaintiff in this case where the kinds of regulations that validly and reasonably carried out the statute and therefore, allowed for private cause of action for their violation.

Another issue that Georgia brought up was perhaps the regulation went too far or exceeded statutory authority. The court was having none of that argument either.

1. The court said that the definition of qualified in title II of the ADA, which echoes the Rehabilitation Act, as well as the findings that Congress made in enacting title II of the ADA where they noted the discriminatory effects of failure to make modification to existing facilities and practices, meant that the Department of Justice regulations requiring reasonable modifications to procedures to avoid discrimination prohibited by title II were consistent with their statutory authority to implement the statute.

2. Georgia also tried to argue the architectural requirements were not in the statute and therefore went too far when it came to implementing the statute. However, the court dismissed that argument because the ADA specifically references by statute that title II implementing regulations had to include architectural and design standards ensuring accessibility to public buildings and facilities by individuals with disabilities. Further, those regulations went through the proper process for becoming final regulations.

The last issue was whether the plaintiff had properly pleaded his claim. The court said that the plaintiff had in the given the defendant sufficient notice as to the facts of the claim and therefore, that argument failed as well.

Takeaways:

1. Title II of the ADA and § 504 of the Rehabilitation Act are substantially the same BUT causation is different. Accordingly, if you don’t mind dealing with the stricter causation standard of the Rehabilitation Act and you can show that the State Department or state agency you are suing received federal funds, adding a claim under the Rehabilitation Act could very well get you around sovereign immunity;

2. The ADA regulations pertaining to intentional discrimination supports private causes of action alleging violations of those regulations;

3. With respect to the Rehabilitation Act and sovereign immunity, the plaintiff will have to show that the particular state agency or State Department being sued takes federal funds

Previously, I have talked about service dog v. therapy dogs. I have also talked about the administrative regulations from the Department of Justice with respect to the difference between service dogs and other kinds of dogs that a person with a disability may have with respect to how they would likely hold up under both the administrative procedure act and the equal protection clause of the 14th amendment to the U.S. Constitution. I got the idea for this blog entry from a colleague, Julie Mills, whose blog can be found in my blogroll. She also has a group on LinkedIn where this issue was discussed. Since service dog v. therapy dog is one of my more popular blog entries, I thought I would pursue it further here. Thanks Julie!

Here is the situation. Child in a public school with an individual education plan (IEP) gets a service dog. The parents want the child to be able to bring the service dog with them to school because the service dog will help them in all kinds of ways. The school resists. Without exhausting the IDEA process, the parents of that child go directly to court and sue saying that the school is violating § 504 of the Rehabilitation Act as well as title II of the ADA. The school defends on the grounds that the suit should be tossed out because the parent did not exhaust administrative remedies under IDEA. Does the school win? Before we get to that answer, we first need to know that IDEA has a rather peculiar clause in it with respect to being able to pursue § 504 and ADA suits. That clause states:

“Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990 [42 U.S.C. 12101 et seq.], title V of the Rehabilitation Act of 1973 [29 U.S.C. 790 et seq.], or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this subchapter.” 20 U.S.C. § 1415(I).

The critical question is what does “laws seeking relief that is also available under this subchapter,” mean? Does it mean, for example, that it is a kind of relief that IDEA simply does not provide for? If that is the case, then the parents should be able to go directly to court since whether the child could have a service dog is a discrimination issue and not an issue of whether they are receiving a free appropriate public education under IDEA. Also, assuming deliberate indifference, both Title II of the ADA and the Rehabilitation Act would allow for damages, which is not how IDEA works. On the other hand, if that clause really refers to anything related to the IEP necessitates going through the IDEA process, then the parents will not be able to go directly to court without exhausting remedies first under IDEA. So which is it?

There are, as Julie ably pointed out, two views on this. That is, one view says the parent does not have to exhaust remedies, while the other view says that they do. Judging from my research on Westlaw, the minority view is represented by Sullivan by and through Sullivan v. Vallejo City Unified School District, 731 F. Supp. 947 (E.D. Cal. 1990). In that case, the Eastern District of California held that whether the child could have a service dog with him or her in the school had nothing to do with their IEP since the child was happy with that plan. Rather, this was a substantive question arising under, in this case, § 504 of the Rehabilitation Act. In fact, IDEA doesn’t have anything to do with whether a court could mandate a service dog on a school district regardless of whether that service dog was educationally necessary.

The majority view is that if the child has an IEP, then the remedy clause mentioned above applies if the situation is related to or has an impact on the IEP. The fact that relief may be sought that is different than what can be obtained under IDEA is of no matter. The case that represents this view is Cave v. East Meadow Union Free School District , 514 F.3d 240 (2d Cir. 2008). In this case, the Second Circuit said that exhaustion is required because:

1. Allowing a service dog would have a substantial impact on the child’s IEP in a variety of ways and therefore, is best dealt with through the administrative process under IDEA;

2. Education encompasses more than simply academics;

3. A request to have a service dog be permitted to assist the child is not entirely beyond IDEA’s educational scheme;

4. The language of the remedies provision noted above is sufficiently broad and encompasses complaints asserted under any federal statute, such as even § 1983, so long as they are seeking relief available, as described by the Second Circuit, under IDEA;

5. While there is a futility exception to having to go through the IDEA process, there was no evidence in this particular case that futility could be presumed.

Which is the better rule? The answer to that question is going to depend upon whether you are advocating for the rights of persons with disabilities or you are defending school systems. I can say that Sullivan is not finding much currency, while Cave has been cited 168 time with fully 72 of those times in cases that adopt the Second Circuit’s view of when a person has to exhaust administrative remedies under IDEA. That said, I was not able to find much in the way of cases dealing with the issue of service dogs and exhaustion of administrative remedies. Also, as of yet, there is no circuit split on this question. Thus, it may be a while before this question makes its way to the United States Supreme Court. By the time it does make its way to the United States Supreme Court, who knows what the composition of that court will be. That said, if the current composition is assumed, one would think that a broad reading of the remedies clause, Cave, would have an excellent chance of becoming a prevailing view, though, of course, one never wants to bet on what the United States Supreme Court will do.

Takeaways:

1. Service dog litigation is going to explode in light of the complexity of the Department of Justice regulations. Thus, if you have a child with an IEP and that child obtains a service dog, the better practice is to go through the IEP process and exhaust that first. Once that is exhausted, then go to the courthouse alleging violations of § 504 and title II of the ADA.

2. Keep in mind, that not every child with a disability is protected under IDEA. It is quite possible that the child may be protected under § 504 of the Rehabilitation Act and the ADA and not IDEA. In that case, they would have a § 504 plan. § 504 plans are very informal: Documentation is submitted, a team meets, plan is formulated, and the team meets as needed to refine the plan when it is necessary to do so. However, all the procedural aspects of IDEA are not present in § 504 plans. Thus, a question does arise as to whether if the child has a § 504 plan but no IEP and obtains a service dog, would that child first have to exhaust the § 504 process? It isn’t much of a process to begin with. Therefore, the better course of action would be to raise it with the 504 team first and proceed from there. That said, a strong argument can be made that such exhaustion would not be required in this particular situation.

3. It is possible that a child who might be eligible to be covered under IDEA chooses not to be and has a § 504 plan instead. If that child gets a service dog and the school resists, that child, as mentioned above, could likely go directly to the courthouse without going through the 504 team first. Since this is the case, you may see the bizarre situation of a school actually encouraging a parent who was otherwise happy with the § 504 system to enter into the rather complicated procedural thicket and more adversarial system of IDEA so that the school system can keep the parent in the IDEA administrative system as long as possible before having to litigate in court.