The terms of a collective bargaining agreement can play a critical role in analyzing the rights of the parties. For example, in a previous blog, the terms of the collective bargaining agreement played a critical role in the court allowing for random drug testing of current employees. That said, when it comes to collective bargaining the employer and a union are not free to bargain on terms that may violate the ADA.

An example of such a situation is the case of Trayling v. St. Joseph County Employers Chapter of Local # 2955, 2013 WL 3147314 (W.D. Mich. June 19, 2013). In this case, the plaintiff filed a disability discrimination claim through her union’s grievance process and then also filed a disability discrimination claim with the Michigan Department of Civil Rights against the county. The collective bargaining agreement had a clause in it that said that if the union member elects to pursue his or her remedies through any administrative or statutory scheme or procedure in addition to the grievance procedure in the collective bargaining agreement, then the grievance procedure would not be processed beyond step two of the grievance procedure. Further, if the union member elects to use the grievance procedure and then subsequently elects to utilize statutory administrative remedies, then the grievance procedure is no longer applicable and any relief granted under the grievance procedure is forfeited. Accordingly, the county allowed plaintiff’s grievance to continue through step two but refused to process the grievance any further in accordance with the collective bargaining agreement. As a result, the plaintiff filed suit alleging that such a process was per se retaliatory and therefore in violation of the ADA (she made the same claim with respect to the Age Discrimination in Employment Act).

First, the court explored two different cases from other circuits with opposite holdings ( EEOC v. Board of Governors of State Colleges and Universities, 957 F. 2d 424 (7th Cir.) and Richardson v. Commission on Human Rights and Opportunities , 532 F.3d 114 (2d Cir. 2008). Board of Governors took the approach that an election of remedies provision was a per se violation because the employee’s participation in the statutorily protected activity was the determining factor in the employer’s decision to take the adverse employment action (termination of the contractual remedies). St. Joseph County Employers Chapter of Local #2955, 2013 WL 3147314 at *5. On the other hand, Richardson held that the union withdrawing from the arbitration of the plaintiff’s claim was not an adverse employment action, rather what it did was avoid duplicative proceedings in two different forums maintained by the employer for adjudicating discrimination claims and it did so without affecting a complainant’s work, working conditions, or compensation. Id. at *6.

Second, after reviewing the two decisions, the Western District of Michigan winds up agreeing with the plaintiff saying that Board of Governors was the more cogent approach and concludes that the election of remedies provision was retaliatory per se because the employee’s participation in the statutorily protected activity of pursuing her legal remedies was the determining factor in the employer’s decision to take the adverse employment action of terminating the contractual remedy. Id. at 7. The Western District of Michigan was persuaded by the Seventh Circuit’s reasoning that an employer once having decided to provide grievance proceedings cannot then provide them only to employees who refrain from participating in statutorily protected activities. Id. at *5.

Since as discussed by the Western District of Michigan in this case, there is a split among the circuits, it is possible that this may eventually wind up in the United States Supreme Court. My standard line in such situations is that I don’t like to make predictions as to what United States Supreme Court does in those kind of situations. That said, the question remains is how does a plaintiff or an employer deal with the situation in the meantime. First, if you are in the Second Circuit, an election of remedies provision may be permissible. In the Seventh Circuit, it is not. In the Sixth Circuit, as discussed in Trayling, an election of remedies provision is probably not permissible. On a preventive level, it would seem that a union and an employer in negotiating a collective bargaining agreement would want to stay away from an election of remedies clause in their final contract unless they want to invite guaranteed litigation over the clause. Also, to my mind, one wonders if an election of remedies clause might be argued to be creating an incentive for the union to not vigorously advocate for the union member especially since they know that there is a good possibility that their efforts are not going to be required long-term (not saying that it would actually happen this way, but I am saying that an argument as such could be made). In short, it probably makes sense as a preventive matter to not have in the final collective bargaining agreement an election of remedies clause.

Today, the United States Supreme Court issued its decision in University of Texas Southwestern Medical Center v. Nassar. In that decision, the United States Supreme Court in a 5-4 ruling with Justice Kennedy being the swing vote, held that mixed motive is dead with respect to retaliation claims under title VII of the Civil Rights Act. The reasoning is such that this decision most certainly means mixed motive is dead with respect to retaliation claims under the ADA; thereby, giving a huge victory to ADA defense lawyers. On the other hand, the reasoning of the majority is such, that mixed motive is now in play under title I of the ADA; thereby, giving a huge victory to ADA plaintiff employment lawyers. To understand how this could be is the question we explore in the rest of this blog entry.

In this case, a physician of Middle Eastern heritage brought a claim against his employer alleging that he was discriminated against because of his heritage by his supervisor and also brought a retaliation claim alleging that he was retaliated against for complaining about the treatment he was receiving from his supervisor. The jury found for him on both claims. The United States Court of Appeals for the Fifth Circuit vacated the portion of the jury’s verdict with respect to his constructive discharge claim but affirmed the jury’s verdict with respect to his retaliation claim, adopting a mixed motive standard as the causation standard. University of Texas Southwestern Medical Center appealed to the United States Supreme Court. As mentioned above, in a 5 to 4 decision United States Supreme Court held that with respect to alleging a claim for retaliation under title VII of the Civil Rights Act, mixed motive is out and but for causation is in. However, the reasoning of their decision can only lead to the conclusion that mixed motive with respect to title I claims of the ADA is now in and with respect to retaliation claims of the ADA is now out. Here’s why.

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

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

Third, Justice Kennedy said that if Congress wanted mixed motive to apply to retaliation claims, “it could have inserted the motivating factor provision as part of the section applying to all such claims, such as 42 U.S.C. §2000e-5, which establishes the rules and remedies for all title VII enforcement actions.” (emphasis added) (Page 14 of decision from the opinion available at United States Supreme Court website, linked to above). With respect to the ADA, this language is a virtual slam dunk that mixed motive is in play with respect to title I claims because the ADA specifically references 42 U.S.C. § 2000e-5 as the remedies available to a plaintiff alleging discrimination under title I of the ADA. See 42 U.S.C. § 12117(a). I should point out here that further support of the argument that the ADA’s reference to § 2000e-5 in title I means that Congress intended to include mixed motive is the legislative history of why “qualified individual with a disability,” was kept in. In particular, Congress wanted to make clear that the indirect burden of proof, which presumes a motivating factor, was still in play. H.R. Rep. 110-730(I) at discussion of, “Discrimination on the Basis of Disability.” Further, that same legislative intent also says that the reason why Congress went from “because,” from the original ADA to “on the basis,” in the amendments act was to make the ADA more like title VII so that the emphasis would be placed on the critical inquiry of whether a qualified person with a disability have been discriminated against on the basis of disability and not on appointment preliminary question of whether a particular person was even a person with a disability in the first place. Id.

Fourth, Justice Kennedy specifically cites to the ADA. In particular, he notes that the ADA is also a comprehensive statutory scheme and that Congress in the ADA clearly spoke to retaliation separate and apart from status-based claims. This reasoning necessarily means that mixed motive with respect to retaliation claims under the ADA is dead (a huge victory for defense lawyers).

Fifth, Justice Kennedy and the majority discuss that there are sound policy reasons for making retaliation claims difficult to prove. In particular, the number of retaliation claims filed with the EEOC has outstripped those for every type of status-based discrimination except for race. Failing to hold otherwise, would contribute to the filing of frivolous claims. It would also raise the costs, financial and reputational, on an employer whose actions were not in fact the result of any discriminatory retaliatory intent. Finally, to hold otherwise would be inconsistent with the text and purpose of title VII.

Sixth, while the EEOC had a technical assistance manual saying that mixed motive applies to retaliation claims, Justice Kennedy was having none of it. In particular, he believed that the manual failed to address the specific provisions of the title VII statutory scheme, the amendments to title VII of the Civil Rights Act, and the Gross decision.

This decision was one of those decisions with the 5-4 breakdown with the liberal justices and the conservative justices being evenly split and Justice Kennedy being the swing vote. Accordingly, there was a vigorous dissent by the liberal justices. Their reasoning was that the majority decision doesn’t make any sense for a variety of reasons. First, retaliation for complaining about discrimination is tightly bonded to the core prohibition of discrimination based upon status and cannot be disassociated from it.

Second, jurors are going to have one heck of a time figuring out why retaliation has one set of causation standards and status-based decisions has another set of causation standards.

Third, until this decision, the Supreme Court had always held that a ban on discrimination encompasses retaliation.

Fourth, the dissent found it strange that 42 U.S.C. §2000e-2(m), the employment practices provision of the 1991 Civil Rights Act, which was designed to strengthen the act, was instead being used to actually limit the scope of remedies under that act.

Fifth, the dissent talks about how the statute the majority refers to in §2000e-2 actually goes beyond just retaliation provisions.

Finally, the dissent believes the EEOC technical assistance manual was entitled to deference.

So what does this all mean for the practitioner and ADA plaintiffs and Employers? It breaks down this way. Mixed motive is now available under title I of the ADA. Mixed motive is not available for retaliation claims (title V). What this means of course is that the possibilities for plaintiffs with respect to what they might be able to obtain in a title I matter has just expanded as has the costs of litigation and its ultimate resolution to the defendant. On the other hand, the ability of the plaintiff to successfully prove a retaliation claim just got more difficult. All this said, this case still does not answer the question as to whether when dealing with but for causation you could still have more than one cause, an issue that I discuss in another blog entry.. On a practical level, this means an employer taking adverse action against an employee needs to make sure that they have good cause for that action independent of any possible discriminatory animus or run the risk of at least some liability per the remedies that exist if the plaintiff can show motivating factor under 42 U.S.C. §2000e-5.

Just recently, the Department of Justice, the Department of Health and Human Services, and the Department of Education joined forces to issue a letter (the link will take you to the press release. In that press release, there is another link to the letter itself), to schools of medicine, schools of dentistry, schools of nursing, and other health-related schools with respect to their views on these kinds of schools discriminating against students with hepatitis B. In short, all three agencies make it clear that discrimination against students with hepatitis B is in violation of the ADA and “will not be tolerated” (those words are actually used in the press release). This blog entry discusses a preventive system that educational institutions can set up so that they can deal effectively with direct threat issues whenever they arise. That preventive system. the two-step (with apologies to country music and the great State of Texas), works as follows.

First, in an article that you can find on my blogroll, I discussed the first step, which is how a college, university, or graduate program needs to go about determining what are their essential eligibility requirements. The process has to happen because otherwise the institution is going to be on very flimsy ground with respect to denying a request for an accommodation. That article discusses a five step process. While that process is described in the article, just to reiterate it here it includes:

1) setting up a departmental committee to assess what are the essential eligibility requirements of the program. That is, what are the fundamental things that the Department wants the student to be able to do with respect to that course of study;

2) consulting with legal counsel to make sure that those essential eligibility requirements are fundamental and that the essential eligibility requirements do not create a situation where persons with disabilities are being screened out. Legal counsel will also want to make sure that essential eligibility requirements are not confused with major life activities and that essential eligibility requirements of the course of study are not confused with the profession itself;

3) having the departmental committee in conjunction with legal counsel draw up the essential eligibility requirements and then having them submitted to the department for a vote;

4) once the Department has signed off, make sure the University or college disability services Department have a copy of those essential eligibility requirements. If at that Department vote, changes are made to the essential eligibility requirements, then repeat steps 2 (legal counsel), and step 3 (departmental vote).

5) make sure those essential eligibility requirements are known to all stakeholders throughout the college and University system.

Adopting this approach means that you should be able to successfully fend off arguments that the essential eligibility requirements were not determined by knowledgeable stakeholders. There has been case law as well as OCR letters creating problems for colleges, universities, etc. when the necessary expertise is not involved. Of course, critical for this system working is that everybody understand their role. The people in the department are the subject matter experts (figuring out what is fundamental), while legal counsel is the legal expert (in addition to what has already been mentioned above, making sure that the department understands the nature of what is fundamental under the ADA, and by making sure that the criteria the department comes up with do not screen out persons with disabilities).

Before moving on to the second step, it would also be well worth considering to have an ADA grievance procedure in place. If the place of higher education is a public entity with 50 or more employees, they need to have such a procedure in place anyway. Having a grievance procedure in place would allow for the problem being solved long before it ever gets to litigation, especially if you have knowledgeable people involved in the resolution process. For that reason, even if you are not mandated to have an ADA grievance procedure, it makes sense to do so.

The second step is figuring out whether that person is a direct threat. The ADA does not protect someone if they are direct threat to themselves (Title I regs) or others (Title I, II, and III regs). See Chevron v. Echazabal 536 U.S. 73 (2002) (Title I case). How do you go about determining whether someone is a direct threat to themselves or others? Any determination of direct threat must be based upon a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence. Id. at 86. That’s all fine, but what are you considering when you are trying to determine what is a reasonable medical judgment based upon the most current medical knowledge and/or the best available objective evidence? The answer to that question come from another U.S. Supreme Court case, School Board of Nassau County, Florida v. Arline, 480 U.S. 273 (1987). In particular, the Supreme Court said (on page 288 of their decision), that in determining direct threat you had to consider all of the following:

1) the nature of the risk (how the disease is transmitted);

2) the duration of the risk (how long the carrier is infectious);

3) the severity of the risk (what the potential harm is to third parties);

4) the probability the disease will be transmitted and will cause varying degrees of harm.

5) whether reasonable modifications of policies, practices, or procedures will mitigate the risk.

All of this leads to the next question which is how do you go about figuring out the nature of the risk, the duration of the risk, the severity of the risk, the probability the disease will be transmitted and will cause varying degrees of harm? The Department of Health and Human Services, the Department of Justice, and the Department of Education in their joint letter say that one place you can look to is the CDC guidelines on a matter. With respect to hepatitis B, the CDC has specific recommendation for managing students who have hepatitis B. Those recommendations include: 1) chronic hepatitis B virus infection in and of itself should not preclude the study or practice of medicine, surgery, dentistry, or allied health professions; 2) any practices, policies, or procedures restricting students from the study of medicine, dentistry, or surgery (such as the notification to patients of the hepatitis B status of the health care provider) should be discouraged; 3) medical and dental students with chronic hepatitis B virus infection who do not perform exposure prone invasive procedures but who practiced non-invasive or minimally invasive procedures should not be subject to any restrictions of their activities and studies. (CDC classifies exposure-prone invasive procedures as those limited to major abominable, cardiothoracic, and orthopedic surgery, repair of major traumatic injury, abdominal and vaginal hysterectomy, cesarean section, vaginal delivery, and major oral or maxillofacial surgery); 4) while medical and dental students with chronic hepatitis B virus infection may have restrictions imposed on their participation in exposure-prone invasive procedures, exposure-prone invasive procedures are not ordinarily performed by students fulfilling the essential functions of a medical or dental school education); and 5) standard precaution should be rigorously adhered to in all health-care settings.

The phrase “while medical and dental students with chronic hepatitis B virus infection may have restrictions imposed on their participation in exposure-prone invasive procedures, exposure-prone invasive procedures are not ordinarily performed by students fulfilling the essential functions of a medical or dental school education,” bears particular discussion for a couple of different reasons. First, this phrase is obviously a statement saying that these three agencies are going to be very skeptical of any essential eligibility requirement that says a student must perform exposure-prone invasive procedures. Not only that, a direct threat defense for a student that is not performing exposure-prone invasive procedures is likely to get short shrift from these agencies because the CDC notes that since 1991 there have been no reports of hepatitis B transmission in the United States or other developed countries for medical or dental students or any others who would not normally perform exposure-prone invasive procedures. Second, the use of the term essential functions is curious because essential functions is an employment term under title I of the ADA and students are not employees with respect to the education they are getting. Rather, it would have been more appropriate to use the term “essential eligibility requirements,” instead. While title III of the ADA, does not have essential eligibility requirements language in it, nevertheless, as I have written elsewhere, you get to the same place because you can’t use the fundamental alteration defense unless you know what are the essential elements/requirements of the business.

In summary: if you are going to dismiss a student from your program because they are a direct threat, you want to make sure that you have your essential eligibility requirements of the program in order. Second, you need to make sure that the student is indeed a direct threat as the term is understood by the U.S. Supreme Court. Finally, in assessing direct threat make sure you look for whatever medical resources are out there, such as CDC guidelines, to make sure that the direct threat determination is consistent with an individual determination of the situation and based upon the most current medical knowledge and/or the best available objective evidence.

In a previous blog, we talked about marijuana and the ADA. What about narcotics that are prescribed by a physician subsequent to a surgery? Would it be a reasonable accommodation to allow the plaintiff to return to work while using narcotic medications? It’s a justiciable question given the facts it had before it says the Western District of Oklahoma.

In Holmes v. Board of County Commissioners, (2013 WL 2368394 (W.D. Okla. May 28, 2013), the plaintiff began working as a deputy clerk in the County Clerk’s office on December 11, 2016 (while the Board of County Commissioners was the named defendant in the case, this was due to the pleading requirements. The actual defendant was Cleveland County.) Her job duties was to index daily documents, which required accuracy and inputting the data. In 2008, she had back surgery, and her doctor imposed a 30 pound lifting restriction for her return to work. In July and August 2010, the plaintiff began exhibiting characteristics of intoxication or impairment at work. Those characteristics included slurred speech or other behaviors suggesting an altered state or being out of it. Plaintiff claimed this was due to her medication being changed, a change she did not tolerate well. Her last day of work was August 16, 2010 and she was placed on unpaid leave from August 17, 2010 until she was terminated on May 1, 2011. On August 23, her employer received a phone call from the plaintiff, during which the plaintiff appeared to be in an intoxicated state. The employer on August 24, 2010, received another note from the plaintiff doctors saying that the plaintiff was under their care and could return to work on August 30 with a 5 pound lifting restriction and the use of a wheelchair. The plaintiff’s doctor also told the employer that the plaintiff’s medication should not affect her work. The employer then requested that the plaintiff fill out a medical authorization form, which she did. The employer also sent a letter to plaintiff’s doctors indicating that the information previously provided was insufficient and incomplete and requested more detailed information about the plaintiff’s medication, the side effects, and any recommendation for restrictions. The employer also sought information as to the length of time plaintiff would be on the medication or in need of a wheelchair. In response to those requests, the plaintiff’s doctor told the employer: that the plaintiff no longer had any slurring of speech; provided the requested list of medications, indicated that she would need a wheelchair to prevent falls for the foreseeable future, that she should not lift over 20 pounds or anything over 10 pounds above her head, and that she should avoid stooping of bending more than five times an hour. At some point, the defendant sent a letter to the plaintiff’s doctors stating that it required a complete release for plaintiff to return to work, a certification that she was free of narcotic medications, and that she could not return to work without that certification. Plaintiff’s employer did not have a “no narcotic,” policy at the workplace apart from plaintiff’s particular situation. Plaintiff brought suit alleging violations of the ADA with respect to both the actual and regarded as prongs.

In denying the employer’s motion for summary judgment, the court reasoned as follows. First, the employer argued that the plaintiff was not disabled under the ADA. Whether this argument could possibly be successful is entirely dependent upon when the actions occurred. If the actions occurred prior to January 1, 2009, the date the amendments to the ADA went into effect, then this argument could be in play. Afterwards, which was the case in this situation, that argument is extraordinarily difficult to pull off, and the defendant could not do so in this case. The plaintiff certainly had a physical impairment (a back problem that necessitated surgery and long-term restrictions after that), and it was one that substantially limited a major life activity as defined by the amendments act.

Second, the plaintiff alleged that the employer regarded her as having a disability and the court found the evidence sufficient to fend off the motion for summary judgment. The key here being how the amendments act changed the paradigm. In particular, a person is regarded as having a physical or mental impairment under the ADA as amended when the employer perceives a physical or mental impairment regardless of whether that impairment limits or is perceived to limit a major life activity.

Third, the defendant argued that the plaintiff was not otherwise qualified (not capable of performing the job with or without reasonable accommodation). The court wasn’t buying it. They found evidence existed that the plaintiff was qualified to perform the essential functions of the job before medications were changed in July and that she was qualified to perform those functions again after the medications were changed again in mid-August. Whether allowing the plaintiff to perform her job while using narcotic medications was a reasonable accommodation, was a justicciable question, especially since the employer did not have an explicit no narcotic policy aside from the plaintiff’s situation.

Fourth, the court found that the plaintiff had offered sufficient evidence to withstand summary judgment by showing evidence that the defendant refused to allow her to return to work until she was narcotic free, even though her doctor’s had indicated that she could function appropriately on the medications that she was on.

Finally, the defendant argued that she was terminated because of her inability to perform the essential functions of her job or because of her refusal to submit to a fitness for duty examination, the latter was disputed by the parties. However, there was no meaningful showing by the employer as to their claims, and so the court said that the plaintiff’s evidence was deemed to be sufficient to show pretext.

Before moving on to breaking it down, the plaintiff also sued for violation of title II of the ADA as well as the FMLA. Suffice to say for purposes of this entry, the court granted the defendant’s motion for summary judgment on those claims.

Breaking it down: There are many things that the employer did right here. For example, it tried to get as much information as it could since it was on notice that the plaintiff seemed to be on narcotics. However, there are things that an employer can take from this. First, an employer might want to consider a no narcotic policy. Second, even if such a policy exists, the employer is going to want to have a mechanism in place so that the policy is flexible if a person is capable of doing the essential functions of the job even while on narcotics. Third, if the employer does have a no narcotic policy and does not want to deal with the issue of an employee working while on narcotics, finding out how long the employee will be on the narcotics and offering leave for that amount of time may be a reasonable accommodation. Fourth, a complete release is always dangerous business for an employer to require. Fifth, an employer is entitled to insist upon a drug-free workplace. Sixth, an employer wants to be aware of other regulations that may be out there that may deal with narcotics in the workplace even where they are legally prescribed. For example, there may be regulations out there that would prohibit an employee from driving machinery while on narcotics, and even if there aren’t, an employer may want to evaluate whether driving was an essential function of his or her job. If so, direct threat would come into play. Finally, the key focus must be on whether the person can do the essential functions of the job with or without reasonable accommodations and not jumping to conclusions.

The United States Supreme Court and the regulations implementing title I of the ADA allow for a complete defense to discrimination against persons with disabilities when the discrimination is necessary in order to comply with other federal law or regulations. Albertsons v. Kirkingburg 527 U.S. 555, 570, 570 n.16; see also id. at 578 (J. Thomas concurring). For example, laws and regulations pertaining to airline pilots and to drivers of commercial vehicles frequently talk about certain physical conditions that a person cannot have in order to be an airline pilot or to be a driver of a commercial vehicle. What happens when a State adopts one of those regulations on its own? Will that regulation then give the State an absolute defense against an ADA lawsuit? That was precisely the issue in the case of Zei v. Maryland Transit Administration _ A.3d_, 2013 WL 2149975 (Md. May 20, 2013). In this case, the State of Maryland adopted and applied federally created safety regulations governing the physical qualifications of drivers of commercial motor vehicles so that a bus driver with one of those conditions, happened to be cardiovascular in this situation, was no longer eligible to drive a bus. Also relevant to this discussion, is that States do not have to comply with Federal Motor Carrier Safety Regulations, though if a State wishes to receive federal grant money under the motor carrier safety assistance program, the State must comply with the Federal Motor Carrier Safety Regulations by adopting compatible State regulations.

Under these circumstances, the highest court of the State of Maryland held that the plaintiff was disqualified as a matter of law from being a commercial bus driver, and that an individual analysis of whether the physical requirement was job-related and consistent with business necessity was not necessary. They came to that conclusion in the following way. First, they explored the legislative history of the ADA and the cardiovascular disease standard, which was the condition at issue in this case, in the Federal Motor Carrier Safety Regulations. In particular, the court noted that the cardiovascular disease language was originally put in the Federal Motor Carrier Safety Regulations in 1970 as part of creating guidelines for, “high risk medical categories.”

Second, the court noted that when the ADA was enacted, Congress was definitely aware of the Federal Motor Carrier Safety Regulations, but yet did not abolish those regulations. Rather, Congress viewed those regulations as qualification standards satisfying the job-related and business necessity requirements of the ADA. In particular, the legislative history said that the committee expected within two years of the date the ADA was enacted, that the Sec. of Transportation would undertake a thorough review of the regulations to make sure that the standards in the Federal Motor Carrier Safety Regulations conformed with current knowledge about capability of persons with disabilities and that any necessary changes would be made to bring the regulations into compliance with the law. The Federal Highway administration did precisely that and then conducted an entire review of all the regulations for the purpose of reconsidering the underlying basis of all the safety rules and identifying a performance oriented regulatory structure that enhanced safety while minimizing the burden placed on the industry. Even after doing all that, the Federal Highway administration elected to retain the cardiovascular disease standard as being job-related and consistent with business necessity.

Third, the court pointed out that while subsequent to the Motor Carrier Safety Act of 1984, the Federal Highway administration decided to exempt motor vehicles operated by federal and State governments from the requirements of the regulations, the regulations implementing the Motor Carrier Safety Act did say that it was their intent to have governmental entities comply with the Federal Motor Carrier Safety Regulations to the greatest extent possible. As mentioned above, Congress took it a step further by creating a grant program that ties monies awarded to a State adopting compatible State regulation to the Federal Motor Carrier Safety Regulations. Thus, the court found there was a clear federal policy to have State governments adopt and implement the qualification standards of the Federal Motor Carrier Safety Regulations even if State governments were technically exempt.

Finally, the court said that it would not be a reasonable accommodation to demand a waiver of requirements that the federal government views as essential to the safety of the highways and crucial to reducing the number of accidents involving commercial vehicles. Also, to hold otherwise, would unreasonably force the Maryland Transit Authority to lower its standards regarding minimal qualifications for commercial motor vehicle drivers.

What does this all mean? First, if you have a federal statute or a federal regulation that specifically calls for discrimination against persons with disabilities due to safety concerns, such as airline pilots or commercial bus drivers, those statutes and/or regulations may be a complete defense to a disability discrimination claim. In dealing with this kind of situation, the argument is going to be over whether there truly is a conflict between the ADA and the other safety statutes or regulations. If the conflict exists and the conflict is mandatory, the ADA will give way. Second, if a State adopts on its own a requirement from the federal government that calls for discrimination based upon disabilities (invariably that is going to be safety-based statute or regulations), it is possible the ADA will give way there too. Especially so, if there are incentives from the federal government to encourage the State to adopt those kind of standards. Finally, the discussion about a waiver is very interesting. For example, one court has held that the ADA may require that zoning ordinances be waived under certain circumstances (Kulin v. Deschutes County, 872 F. Supp. 2d 1093 (D. Or. 2012). One wonders if the discussion of waiver in this case could not be used by governmental entities to argue against a court following the decision that zoning waivers may be called for by the ADA.

In a comment to the service dog v. therapy dog blog entry, I promised that I would follow-up with an exploration of whether the Department of Justice regulations with respect to service dogs and how they differ from therapy dogs and the corresponding difference in treatment with respect to the ADA, would survive a challenge under either the administrative procedure act or the equal protection clause of the 14th amendment to the U.S. Constitution. This blog discusses that.

It is very difficult for a regulation that has gone through proper rulemaking to be thrown out by the courts. For a regulation that has gone through proper rulemaking to be thrown out by the courts, that regulation must be found to be arbitrary, capricious, or manifestly contrary to the statute. Chevron, USA, Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837, 844 (1984). Manifestly contrary to the statute is the easier term, but what does it mean for a regulation to be arbitrary and capricious? An agency action is arbitrary and capricious if the agency relies on factors that Congress did not intend for it to consider, offers an explanation for its decision that runs counter to the evidence before the agency, fails to consider an important aspect of the problem, or is so implausible that it cannot be ascribed to a difference in view of or the product of agency expertise. Air Transport Association of America, Inc. v. National Mediation Board, 719 F. Supp. 2d 26, 30 (D.C. Cir. 2010).

Does the Department of Justice meet this burden? They probably did. Whenever a final regulation comes into place, the agency is required to do a section by section analysis in response to public comments. As can be expected, the Department of Justice received extensive comments with respect to service dog v. therapy dogs. These comments were so extensive that the Department of Justice literally spends over 7 pages discussing the particular rules pertaining to service dogs, the comments submitted, and why the Department of Justice decided to do what it did. See e.g. Appendix a to Part 35-Guidance to Revision to ADA Regulation on Nondiscrimination on the Basis of Disability in State and Local Government Services at discussion of “service animal.” In the end, the Department of Justice says that it wants to make sure that any such dog is working (recognition and response), rather than providing comfort, and so long as that is the case, it doesn’t matter what the disability is. Id.

The harder question is whether such a distinction is contrary to the statutory intent of the ADA. As we know from a discussion of Olmstead, the ADA requires that people with disabilities be integrated into the community. Is the Department of Justice through this regulation violating that intent. In order to show that, the plaintiff would have to show that the choice the Department of Justice made in insisting that a dog engage in recognition and response rather than just comfort is a choice that Congress would not have sanctioned. Chevron 467 U.S. at 845. If that choice was a reasonable accommodation of conflicting policies committed to the agency’s care by statute, then the court will not disturb it. Id. Which one is it? Recognition and response v. comfort certainly seems like a reasonable distinction. However, that distinction may be narrower than it seems. For example, a person with anxiety may need just some kind of a cue so as to redirect themselves. Would simply looking at the dog do the trick or would the dog need to do something, however subtle, to redirect the person? That may depend upon the person. That “however subtle,” would that be enough to meet the recognition and response language of the Department of Justice? If not, an argument might be able to be made that the regulations is contrary to statutory intent because it is not allowing for the service animal to perform cognitive behavior therapy techniques (anything whatsoever that can be done that redirects the person so the attack doesn’t continue). In short, it is hard to believe that the Department of Justice regulation could be considered arbitrary and capricious considering their extensive response to all the comments that were sent into it, and considering the recognition and response standard that it came up with, which seems on its face to be reasonable. That said, there is a concern about whether the standard is not broad enough so as to allow for cognitive behavior therapy techniques (that name sounds a little bit scary, but it is really quite simple. For example, it may be as simple as when a person recognizes an attack is coming on, that they do breathing exercises or react to a visual cue from someone else or an animal).

What about the equal protection clause? The problem there is that we never know what category of equal protection jurisprudence persons with disabilities fall into. With respect to employment, per Board of Trustees of the University of Alabama v. Garrett , they fall into the rational basis class. With respect to accessing the courts, persons with disabilities fall into the intermediate scrutiny class or higher. We also know per Tennessee v. Lane, that the classification of persons with disabilities with respect to equal protection jurisprudence depends entirely upon the facts. What class would persons with disabilities fall into with respect to a Department of Justice regulation. If persons with disabilities would fall into the rational basis class, then the regulation would stand as the regulation is most probably a rational way to carry out the ADA. If persons with disabilities fall into the intermediate scrutiny class, then the Department of Justice would have to show that the regulation is based upon very good reasons. Could they show that? It’s possible they could, though the narrowness of the definition of recognition and response with respect to persons with psychiatric disabilities may be an issue. If the person with disabilities for these purposes was in the highest class, suspect class, then the Department of Justice would have to show a compelling reason for its definition. While it would be unlikely to Department of Justice could meet such a standard, it would also seem to be unlikely that persons with disabilities would fall into a suspect class for purposes of the Department of Justice regulations. With respect to deciding the class that persons with disabilities would fall into, it would be very helpful to know just what is the history of the federal government with respect to discriminating against persons with disabilities. We know from Tennessee v. Lane that there is an extensive history of the State’s discriminating against persons with disabilities. However, since this is a federal regulation, we would need to know what is the history of the federal government with respect to discriminating against persons with disabilities before we could begin to decide what equal protection class persons with disabilities would fall into with respect to this fact pattern. If the person with a disability could show that the Department of Justice regulation involves any of: basic constitutional guarantees, basic rights, class of cases implicating judicial services, or fundamental rights- Tennessee v. Lane 541 U.S. 509, 522, 524, 529, 531, 534 (2004)-, then the Department of Justice regulations would be much easier to challenge.

So, how can we break this down? With respect to the Department of Justice regulations, it’s hard to believe that the regulation could be considered arbitrary and capricious considering how the case law defines that phrase. It is possible that you could argue that the regulation goes beyond statutory intent since it seems to involve a distinction that may unduly restrict certain techniques oftentimes used by people with psychiatric/mental disabilities to deal with the situation, of which a service dog/comfort dog may play a critical role in. With respect to the equal protection clause, we need to figure out just what class persons with disabilities would fall into under this fact pattern. Unlike any other class of people, persons with disabilities equal protection class that they fall into depends entirely upon the facts. Id. at 530. In determining that, it would be very helpful to know just what is the history of the federal government with respect to discriminating against persons with disabilities. Then, we would also have to consider whether the regulation encompasses basic constitutional guarantees, basic rights, class of cases implicating judicial services, or fundamental rights. It would seem that for the Department of Justice regulation to fail under an equal protection clause analysis, the court would have to be convinced that persons with disabilities in the situation fall into a class of people higher than rational basis. For the reasons discussed above, even then, it still may be difficult to be successful in an equal protection challenge if people with disabilities were found to be in the intermediate scrutiny class, and it is hard to believe that in this scenario, people with disabilities would be found to be in the suspect class.

In short, a challenge to this regulation under the administrative procedure act is going to be really tough. The best approach is going to be to try to show that the service dog regulation is not consistent with the ADA’s statutory intent. With respect to the equal protection clause, due to the thoroughness of the response to comments from the Department of Justice, any equal protection challenge is going to be extremely difficult.

Finally, please note that this blog entry deals with title II and title III of the ADA strictly. The title I regulations, which are the obligation of the EEOC and not the Department of Justice, have not taken this approach with respect to service dogs and comfort dogs.

It has been a little while since we talked about employment law here. Now, it is time to get back to it. Recently the EEOC issued four guidances on four different disabilities, diabetes, intellectual disability, cancer, and epilepsy. They also issued a fact sheet on the mental health provider’s role in a client’s request for a reasonable accommodation at work.

The guidances pretty much all follow the same format. They are all in plain language and are very easy to read. They also all have the same structure. They start out with an introduction about the condition, talk about pre-and postemployment medical exams and disability related inquiries, give examples of specific accommodations for the condition being discussed, talk about direct threat, mention retaliation and harassment, and then talk about how to file a claim with the EEOC. Particularly helpful, is the discussions about the various conditions in plain language. Also helpful, is a discussion in each of the disabilities of the kind of accommodations that an employer might make.

For example, some of the accommodations that might be in order with respect to a person with diabetes include: private area to test their blood sugar levels or to administer insulin injection; a place to rest until their blood sugar levels become normal; break to eat or drink, take medication, or test blood sugar levels; leave for treatment, recuperation, or training on managing diabetes; modified work schedule or shift change; allowing a person with diabetic neuropathy that makes it difficult to stand for long periods of time the ability to use a stool; reallocation or redistribution of marginal task to another employees; and reassignment to a vacant position when the employee is no longer able to perform the job.

Some of the reasonable accommodations that might be in order with respect to a person with an intellectual disability include: providing someone to read or interpret application materials for a person with limited ability to read or to understand complex information; demonstrating, rather than describing, to the applicant what the job requires; modifying test, training materials, and/or policy manuals; replacing a written test with an expanded interview; reallocation of marginal task to another employees; giving instructions at a slower pace; allowing additional time to finish training; breaking job task into sequential steps required to perform the task; using charts, pictures, or colors; providing a tape recorder to record directions as a reminder of steps in a task; using detailed schedule for completing tasks; providing additional training when necessary; allowing for a job coach that might assist with various things (such as: assisting the employee in learning how to do the job; providing intensive monitoring, training, assessment, and support; helping to develop a healthy working relationship between management and the employee by encouraging appropriate social interaction and maintaining open communications; and assisting the parties in determining what reasonable accommodation is needed); modified work schedule or shift change; helping understanding job evaluations or disciplinary proceedings; acquisition or modification of equipment or devices; workstation placement; and reassignment to a vacant position when the employee is no longer able to perform the current job.

Some of the reasonable accommodations that might be in order with respect to a person with cancer include: leave for doctors appointments and/or to seek or recuperate from treatment; periodic breaks or private area to rest or to take medication; modified work schedule or shift change; working from home; modification of office temperature; permission to use work telephone to make doctor’s appointment where the employer’s usual practice is to prohibit personal calls; reallocation or redistribution of marginal task to another employees; and reassignment to a vacant position when the employer is no longer able to perform her current job.

Some of the reasonable accommodations that might be in order with respect to a person with epilepsy include: right to take medication; leave to seek or recuperate from treatment or adjust to the medication; private area to rest after having a seizure; a rubber mat or carpet to cushion the fall (this particular suggestion strikes me as odd because you never know where the person with epilepsy is going to be and where he is going to have the seizure); adjustments to a work schedule; a consistent start time or schedule change (changing from the night shift to the day shift); a checklist to assist in remembering tasks; permission to bring a service animal to work; someone to drive to meetings and other work related events; permission to work at home; and reassignment to a vacant position where the employee is no longer able to perform their current job.

The list of accommodations is nice. However, my concern is that employers will take this list and put everybody in boxes. It is important to remember that the ADA requires an individual analysis and no two disabilities, even the same ones, are the same. The key is to remember a reasonable accommodation is anything that gets the person with a disability to the same starting line as those without disabilities. Getting the person to the same starting line means an interactive process. It is important in that process to have open communication and to be creative. The worst thing an employer can do is to put people in boxes and say think you are person with this condition here is what you get take it or leave it. It just doesn’t work that way.

Going a bit deeper into the guidances, one thing that jumps out is the way EEOC goes about dealing with preemployment medical exams and disability related inquiries as well as the way it goes about dealing with postemployment medical exams and disability related inquiries. The ADA prohibits preemployment medical exams and preemployment medical inquiries, 42 U.S.C. § 12112(d)(2)(A), though it does allow an employer to make preemployment inquiries into the ability of an applicant to perform job-related functions. 42 U.S.C. § 12112(d)(2)(B). With respect to medical exams after a conditional job offer by the employer, the employer pretty much has free reign in that respect (though the employer would do well to remember that Genetic Information Nondiscrimination Act is also working out there). However, if an employer were to take back the conditional job offer they can only do so if the condition they found in the medical exam was job-related, consistent with business necessity, and the person could not perform the job with reasonable accommodations. With respect to an employee, an employer cannot make inquiries of an employee as to whether the employee is an individual with a disability or as to the nature or severity of that disability unless that an examination or inquiry is made necessary because it is job-related and consistent with business necessity. 42 U.S.C. § 12112(d)(4)(A).

Accordingly, it makes sense for the EEOC to say that if an applicant voluntarily discloses she has a particular condition and the employer reasonably believes that person needs an accommodation due to perform the job because of that condition, the employer can ask the applicant whether they would need an accommodation and what type since in that situation, the employer is making an inquiry into the ability of an applicant to perform job-related functions. That said, going beyond inquiries to the ability of an applicant to perform the essential functions of the job will be very problematic, as the EEOC guidances point out.

One thing that is interesting about the guidances, is that the EEOC definitely has something in mind with respect to what is job-related and consistent with business necessity. In the guidances, the EEOC’s view is that an employer can ask disability related questions or require an employee to have a medical exam when the employer knows about a particular employee’s medical condition, has observed performance problems, and reasonably believes the problems are related to a medical condition. Two problems with this statement are what does “reasonably believe,” mean and the formulation doesn’t exactly match some of the case law, as we have discussed previously in other blog entries.

Another point that bears noting about the guidances in general, is that they all mention reassignment to a vacant position as being a possible reasonable accommodation. As readers know, this is a hot issue, and one that has been talked about on this blog in March, August, and September of 2012. While reassignment to a vacant position is certainly a reasonable accommodation, how that works specifically, as a review of those blog entries reveal, can be quite complicated and how it will eventually shake out is uncertain.

All the guidances make the point that a request for reasonable accommodations does not have to be explicit. It is enough for a person to make a request that would tip off the employer that a reasonable accommodation request is being made.

All the guidances also share a similar analysis with respect to the question of whether an employer has to grant every request for an accommodation. The answer the EEOC gives is no if it results in significant difficulty or expense. The term fundamental alteration actually appears in title II and title III of the ADA but does not appear in title one. That term does come from Rehabilitation Act cases. Another term I have heard the EEOC use with respect to title I, is undue hardship with respect to logistical operations. Regardless of the term, you are in the same place (fundamental alteration of the employer’s business or operations).

Turning to specific concerns about the specific disabilities, one thing that immediately come to mind with respect to intellectual disabilities is the conflict between the employer setting up educational requirements versus what the essential functions of the particular job require. That particular problem was discussed in the blog entry concerning whether the EEOC has gone too far with respect to their view of employers requiring a high school diploma for jobs. Therefore, when dealing with intellectual disabilities, the employer has to make sure just what are the essential functions of the job and they also have to make sure that they can stand behind the educational requirements they are insisting on for that job. The question that remains to be answered is while the job’s essential functions may not require a certain level of education, it is possible that the employer might say that having a certain educational credential brings critical intangibles to the workplace regardless of the job’s essential functions. The best preventive approach would be to insist on the educational credential when it can be fairly said that the job’s essential functions require such an educational credential. Also, with respect to intellectual disabilities, it is not a reasonable accommodation to have someone do the job of the employee (an issue discussed in our deaf lifeguard blog entries). In the intellectual disability world, a job coach is supposed to assist the employee with respect to the particular job. However, the line between assisting and doing that job might be hard to discern at times. Finally, in the intellectual disability guidance, there is an example about how a particular individual usually counts the money, though not always, and that reassigning that particular task to someone else is a reasonable accommodation. Certainly, reassigning marginal functions of the job to someone else is a reasonable accommodation. However, there is case law out there saying that just because something doesn’t happen frequently, that does not preclude the particular function from being an essential one.See Carroll v. Holder 2011 WL 7091804, *29 (D. Or. September 30, 2011).

With respect to the cancer guidance, there is an example given of a receptionist with job performance issues due to cancer treatment. In that situation, an attorney complained to a law firm partner about the problems saying to the law firm partner that she has been reluctant to say anything because she knows that the person has been undergoing treatment for cancer. The EEOC guidance says that the partner can ask the receptionist questions about whether her cancer treatments are causing her performance problems and if so how long the treatments are expected to continue and whether she needs a reasonable accommodation. This particular example is problematic on a couple of different levels. First, to my mind, one wonders if there is an issue with the attorney divulging this information to the partner in the first place due to confidentiality, though I don’t see the issue if the supervising attorney makes that inquiry him or herself. On the other hand, the partner is certainly entitled to know about this. The best way around this is if the firm is big enough for the attorney to go to the firm’s general counsel or for the attorney to go to the firm’s human resources department and mention a general performance issue problem. Another approach may be for the attorney who is supervising this receptionist to encourage the receptionist to bring the situation up to the chain of command vis a vis the reasonable accommodation process. In short, in this kind of situation, the employer wants to handle it as delicately as possible and respect the confidentiality of the employee to the maximum extent feasible.

With respect to epilepsy and diabetes, the issue of direct threat comes up. The general rule with direct threat is that direct threat must be based on the most current medical knowledge and/or the best available objective evidence and that assessment has to be based upon an individualized assessment of the individual’s present ability to safely perform the essential functions of the job. Chevron v. Echazabal, 536 U.S. 73, 86 (2002). As another blog entry discussed, the issue of direct threat is not so simple. Direct threat may be construed differently depending on the context, especially where public safety is involved.

Finally, the EEOC guidances point out that there may be federal regulations out there that discriminate against persons with disabilities and if they are mandatory and control, those regulations will prevail. See Albertson’s v. Kirkingburg 527 U.S. 555, 578-80 (J. Thomas concurring). In that situation, the employer is not at risk of violating the ADA. As the EEOC points out, the employer wants to make sure that such compliance is mandatory and that no waivers are in order.

Turning to the EEOC fact sheet regarding the mental health provider’s role in a client’s request for reasonable accommodation at work, there are a couple of things that particularly bear highlighting. First, the fact sheet says that a reasonable accommodation may be obtained for any condition that would, if left untreated, substantially limit one or more major life activities. It then goes on to talk about what those activities may be. This is terribly confusing because as phrased it tends to suggest that if the condition is treated, the person may not be protected by the ADA or may not be entitled to reasonable accommodation . Either of which is false. Obviously, the phrasing is problematic. No doubt, the EEOC did not mean to imply any such thing. It would have been much better to say that a person has a disability if they have a physical or mental impairment that substantially limits one or more of life’s major activities and that in making that determination, mitigating measures are not to be factored in. A similar problem exists with respect to the fact sheet when the EEOC talks about what the mental health professional to say with respect to the client’s functional limitations in the absence of treatment. Again, this could have been made much clearer. The issue, of course, is whether the person has a disability regardless of whether they use mitigating measures. Also, if the condition is episodic, then the mental health professional needs to describe the limitations on a major life activity during that episode as well. Again, absolutely nothing wrong with what the EEOC says here, it is just terribly confusing and the inferences are unfortunate.

Second, the fact sheet says that a person does not have to have a high degree of functional limitation to be substantially limiting. For example, a person, according to the fact sheet, may qualify if the condition makes activities more difficult, uncomfortable, or time-consuming to perform compared to the way that most people perform them. This isn’t the law either. While it is true, that the EEOC says in the regulations that an impairment need not prevent, or significantly, or severely restrict the individual from performing a major life activity in order to be considered substantially limiting, nevertheless, the person still has to be substantially limited in the ability to perform a major life activity as compared to most people in the general population. See 29 C.F.R. § 1630.2(j)(ii).

Summarizing: the guidances contain a lot of useful information, but be sure to avoid the trap of putting people into boxes and sticking to the accommodations listed in the guidance rather than the accommodations that are brought up in the interactive process. Also, when the situations do occur, as discussed above, the situation may be deceptively complicated. Thus, always be sure to consult with knowledgeable legal counsel when necessary. Finally, the EEOC fact sheet dealing with how the mental health professional can assist in the reasonable accommodation process is helpful but is also, very unnecessarily in my opinion, extremely confusing.

A mobility impaired person uses a motel. It turns out that motel does not meet the ADA guidelines for architectural accessibility. As a result, a person suffers personal injuries as a result of that inaccessible feature. Or, a person goes to a theater and despite asking for help from theater personnel does not receive any. It turns out, that the theater also does not meet ADA architectural accessibility standards and as a result of that particular standard not being met, the person suffers severe personal injuries. Can both of these individuals bring a cause of action for personal injuries alleging that the motel or theater was negligent because they did not meet the ADA architectural standards? The answer in both of these cases is yes though they get there in different ways using different theories.

The motel case is Val D’Aosta v. Cross 526 S.E.2d 580 (Ga. App. 1999). Georgia law requires that any facility used by the public constructed or renovated after 1995 must meet ADAAG standards for accessibility. If construction or renovation occurred after July 1, 1984, but before July 1, 1987, that construction or renovation has to comply with the American National Standards Institute specifications A117.1-1980 or A117.1-1986 for making buildings and facilities accessible to and usable by people with disabilities. If construction or renovation occurs after July 1, 1987 but before July 1, 1995, the construction or renovation has to comply with the American National Standards Institute specifications A117.1-1986 for making buildings and facilities accessible to and usable by people with disabilities. Ga. Code § 30-3-3 (Current Through the 2012 Regular Session). Violation of these standards is a misdemeanor. Ga. Code §30-3-8 (Current Through the 2012 Regular Session). Georgia also has a negligence per se statute that allows an injured party to recover damages for breach of legal duty whenever the law requires a person to perform an act for the benefit of another. Ga. Code § 51-1-6 (Current Through the 2012 Regular Session).

In Val D’Aosta, the Georgia Court of Appeals held that the plaintiff could proceed with a negligence per se claim because: 1) the accessibility standards were mandatory and imposed a continuing obligation at the risk of criminal penalties for noncompliance on the owner and therefore, the owner would be deemed to have superior knowledge over the plaintiff about whether the accessibility standards were violated; 2) the statute and regulations created a factual question as to whether these particular statutes and regulations were intended to protect the class of persons from certain risk of injury; and 3) a factual question existed as to whether the violation of the statute and regulation pertaining to accessibility constituted the proximate cause or a concurrent proximate cause of any injury and damages. Val D’Aosta 526 S.E.2d at 584-585. The superior knowledge piece of this opinion is a bit confusing as the case that the majority cites to, Alterman Foods, Inc. v. Ligon, 272 S.E.2d 327 (Ga. App. 1980), is clearly distinguishable since it dealt with a foreign substance and not with premises liability. Nevertheless, whether the owner has superior knowledge in a case like this is clearly in play as pointed out by the vigorous dissent in Val D’Aosta of Presiding Judge Andrews when he cites to Parks-Nietzold v. J.C. Penney, Inc., 490 S.E.2d 133 (Ga. App. 1997).

So, how do you make sense of the Georgia situation. First, it bears noting that negligence per se may vary from state to state. That is in some states, it is possible that if you can show a violation of the statute, that the statute was meant to protect the person from certain risk of injury, and that the violation was the proximate cause of the injury, the plaintiff automatically wins. In other states, such as Nevada, all this would do is get you a presumption which the defendant can rebut if they can show a good reason as to why the statute or regulation not complied with in this individual case. Barnes v. Delta Lines, Inc. 669 P.2d 709, 710-711 (Nev. 1983). Therefore, you want to check your state law and how it deals with negligence per se. Second, in Georgia, you might be able to argue that superior knowledge is part and parcel of the negligence per se case. It is also possible that you might be able to argue that superior knowledge just goes to causation and not to whether the duty was breached at all. Complicating matters further is Georgia Code § 51-11-7 which provides, “If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover. In other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained.” Georgia Code § 51-11-7 (Current Through the 2012 Regular Session). Therefore, in GA, if a person suffers injury as a result of the accessibility standards not being complied with, the person bringing a personal injury cause of action is going to have to show a myriad of things: 1) knowledge of noncompliance that is not superior to the owner; 2) violation of the statute or its regulations and its proximate cause of injuries; 3) plaintiff was meant to be protected by the statute or regulations from the injuries resulting from that violation; and 4) plaintiff exercised ordinary due care to avoid the injury. The superior knowledge requirement and the plaintiff being required to exercise ordinary care would seem to go a long way court preventing the person with a disability with superior knowledge of ADA architectural standards from recovering for personal injuries should they be injured by a facility that is not in compliance with the ADA standards. Nevertheless, in GA anyway, a plaintiff that suffers injuries as a result of ADA noncompliance with the architectural standards, will have a cause of action for personal injuries under Georgia law, but proving it up will not be an easy task.

There is another possibility, which is the approach taken by the District of Columbia Court of Appeals in the theater case mentioned above, Theater Management Group, Inc. v. Dalgliesh 765 A.2d 986 (D.C. App. 2001). In that case, the approach the District of Columbia Court of Appeals took was to say that the architectural standards can be used not to show negligence per se but to show the standard of care. Id. at 991. Depending upon how your jurisdiction goes about the concept of negligence per se, the distinction may be theoretical rather than practical. Thus, if you are in a Theater Management Group, Inc. type of jurisdiction, the analysis for proving negligence may go like this: 1) was there a duty owed (ADA architectural standards); 2) was there a breach of duty (were the ADA architectural standards not complied with); 3) was the breach of duty the proximate cause of the injuries (actual and legal cause); and 4) were there damages. In short, call it what you want, but it it would seem that under traditional negligence per se concepts and under Theater Management Group, Inc. approach you would get to the same place though the concepts being used are not precisely the same.

Finally, you might argue that there are good policy reasons as to why personal injury plaintiff attorneys need to get involved. By getting involved, they would increase accessibility for persons with disabilities, through principles of spreading the loss, because the owners of the facilities would be at risk of facing damages suits rather than just injunctive relief and attorneys fees, which are the options entitled to a person alleging violations of title III of the ADA. Also, personal injury plaintiff attorneys are used to dealing with things on a contingency fee basis. Would such suits be easy? The answer is depending upon the jurisdiction, such suits may be very complicated, but nevertheless suits would be meritorious and may be worthwhile proceeding with depending upon the facts.

Julie Mills, a Columbus, Ohio attorney whose blog appears in my blogroll, brought to my attention in a linked in group that we are both members of (ADA for Attorneys, Architects, and Access Professionals), a case which discusses several key issues under title III of the Americans with Disabilities Act. That case is Parr v. L & L Drive-Inn Restaurant, 96 F. Supp. 2d 1065 (D. Haw. 2000). In that case, the plaintiff, who was mobility impaired, filed suit alleging that the defendant violated title III of the ADA by failing to remove architectural barriers to access. Ultimately, the court decided in favor of the plaintiff on most of his claims as the court found that it was readily achievable for the defendant to fix just about all the problems. In reaching that conclusion, the court had several issues before it. They were in no particular order: 1) Does title III require exhaustion of administrative remedies prior to filing suit?; 2) Can a plaintiff’s sue for violations of the ADA where those violations are not related to his or her disability?; 3) For purposes of being able to obtain injunctive relief under title III, what does actual notice to the plaintiff mean?;and 4) Is good faith a defense to a title III action?

With respect to exhaustion of administrative remedies prior to filing suit under title III of the ADA, (we have discussed that one before), as mentioned in that blog entry, only one judge is holding that exhaustion of remedies is required for non-title I claims. Parr also agrees with the majority by saying that the ADA does not incorporate the section of the Civil Rights Act that would require such notice. That is, title III of the ADA expressly incorporates 42 U.S.C.A. §2000a-3(a) and not 42 U.S.C.A. § 2000a-3(c), which is the section with the notice requirement. See id. at 1077.

With respect to the second issue, the court found that a plaintiff cannot sue for violations of the ADA where those violations are not related to his or her disability. The plaintiff had argued otherwise, but the court wasn’t buying it for several reasons. First, for the plaintiff to be able to pursue a claim, there must be an injury in fact, which requires that the party himself or herself be among the injured. Id. at 1082. In other words, the plaintiff must have suffered a distinct injury to himself that is likely to be redressed if the requested relief is granted. Id. Second, since a person could not be injured by a barrier not related to his disability, the possibility of reinjury, which is necessary to get injunctive relief, does not exist. Id. at 1083. Finally, the court cited to a case stating a person with a disability cannot vindicate the rights of people with disabilities generally, rather that is for the Department of Justice to do. Id. That particular statement may not be a correct statement of the law anymore, nevertheless, as a practical matter, for reasons we have discussed in a prior blog entry, it may not be far from the mark even if it is not literally correct.

With respect to the actual notice issue, this is not an issue that you readily think of. However, it is nevertheless there. Another colleague of mine, Richard Hunt, a Dallas Texas attorney, who is the author of a blog on the fair housing act and issues relating to title III of the ADA that can also be found on my blogroll, has been discussing this issue quite a bit in the abovementioned LinkedIn group- ADA for Attorneys, Architects and Access Professionals mentioned above-that we are both members of. In particular, 42 U.S.C.A. § 12188(a)(1) says that a private action under title III is available to any person being subjected to discrimination on the basis of disability. 42 U.S.C.A. § 12188(a)(1). That same section goes on to say, “Nothing in this section shall require a person with a disability to engage in a futile gesture if such person has actual notice that a person or organization covered by this subchapter does not intend to comply with its provisions.” Id. The question is what does it mean to say, ” if such person has actual notice that a person or organization covered by this subchapter does not intend to comply with its provisions?” Does that mean or should it mean that the defendant must receive notice prior to being sued by the plaintiff or does it mean something else? The Parr court said that it meant something else for several different reasons. First, discrimination occurs as soon as plaintiff encounters an architectural barrier. Parr 96 F. Supp. 2d at 1081. Second, once plaintiff encounters discrimination or learns of the alleged violations through expert findings of personal observation, he has actual notice that the defendant does not intend to comply with the ADA. Id. Third, the ADA is meant to be read broadly. Id. at 1081-1082. Fourth, the court noted that the ADA covers the discriminatory effects of benign neglect, apathy and indifference , and that Congress did not intend to limit the ADA’s protection from discrimination to circumstances involving deliberate discrimination. Id. at 1084. Finally, the court noted that Congress delayed the effective date of title III of the ADA (1992 was the effective date; It is now of course 2013), to allow businesses to learn about the ADA and to voluntarily comply. Id.

With respect to the final question, good faith with respect to reasonable accommodation process, is a defense to a full on damages claim under title I of the ADA. 42 U.S.C.A. § 1981A(a)(3). However, under title III of the ADA good faith only comes up in civil action brought by the Department of Justice when considering the amount of civil penalty and there is no other mention of good faith within title III of the ADA. Parr 96 F. Supp. 2d at 1084.

So where does this leave us. First, for title III matters, it is not necessary to exhaust administrative remedies. Second, a person with a disability alleging violations of the ADA, and I would say regardless of title, is going to be able to sue only for violations related to his or her particular disability. As mentioned previously, there is the possibility of class action suits, but that is going to be very difficult to pursue. Third, with respect to actual notice, while it is true that this court said simply encountering the barrier related to his or her disability is actual notice that the defendant did not intend to comply with the ADA and that the ADA has been around a long long time so as to give people time to get themselves into compliance, an argument (my colleague Richard Hunt has made this argument in the above-mentioned LinkedIn group), can be made that actual notice to a plaintiff of a defendant refusing to comply with the ADA means something more than just encountering the barrier. To date, no courts that I am aware of has accepted this argument, but I wouldn’t be surprised to see that argument made. Fourth, unless a civil penalty is involved, good faith is generally not a factor in title III situations. Finally, it always pays to remember, that it simply may be a better plan, as we have discussed previously, to fix the issue rather than pay all the legal fees associated with contesting this.

Here’s a fact. No two disabilities even the same ones are the same. Accordingly, it makes perfect sense that the ADA requires an individual analysis throughout. Further, under both title I and title II of the Americans With Disabilities Act, in addition to having a disability, the person must be qualified. That is, capable of performing the essential functions of the job with or without reasonable accommodations with respect to title I. Or, with respect to title II, capable of meeting the essential eligibility requirements with or without reasonable modifications. Title III does not have any such “qualified,” language, but a similar analysis has to occur because you have to assess whether the nature of the business is being fundamentally altered. It is for all these reasons that class actions involving persons with disabilities are going to be extremely difficult, if not almost impossible, to pull off. Let’s take a look at the case law to see why this is the case.

Class actions are governed by Federal Rules of Civil Procedure 23(a),(b). Under that rule, the party seeking certification as a class has to demonstrate that: 1) the class is so numerous that joinder of all members is impracticable; 2) there are questions of law or fact common to the class; 3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and 4) the representative parties will fairly and adequately protect the interests of the class. Once that is done, the proposed class has to satisfy at least one of three requirements in federal rule 23(b). Those requirements allow the class to be maintained in any of three different circumstances: 1) where prosecuting separate actions by or against individual class members creates a risk of either inconsistent or varying adjudications or adjudications that, as a practical matter, would be dispositive of the interests of the other members who are not parties to the individual adjudications or which would substantially impair or impede their ability protect their interests; 2) where the party opposing the class has acted or refused act on grounds applicable generally to the class so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; 3) where questions of law or fact common to class members predominate over any questions affecting only individual members and a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.

Before moving further, when the EEOC brings an enforcement action, they are not subject to rule 23. See General Telephone Company v. EEOC, 446 U.S. 318, 320, 333-334. That said, prior to bringing suit, the EEOC must conciliate (that is give the opposing party a chance to resolve the claims). There is a conflict among the circuits as to how far the EEOC must go in conciliating the claim prior to bringing suit. In the Sixth Circuit, all the EEOC has to show is that they made a good-faith effort to conciliate the claim they are asserting, thereby providing the employer with ample notice of the prospect of suit. Serrano v. Cintas Corporation 699 F.3d 884, 904 (6th Cir. 2012). However, in the Eighth Circuit, the law is quite a bit different. The Eighth Circuit found a clear and very significant distinction between facts that are gathered during the scope of an investigation and the facts that are gathered during the discovery phase of an already filed lawsuit. Therefore, the Eighth Circuit said that the EEOC cannot use discovery and a resulting lawsuit as a fishing expedition to uncover more violations. EEOC v. CRST Van Expedited, Inc., 679 F.3d 657, 675 (8th Cir. 2012). In short, the Eighth Circuit said that the EEOC had the responsibility of making a reasonable investigation of the charge. Id. at 676. To phrase it another way, in the Eighth Circuit, an argument can be made that each claim of class members must be reasonably investigated before they can become part of a subsequent suit. The difference between the two approaches is rather stark and presents a conflict among the circuits. Will the Supreme Court be asked to step in? It isn’t clear. Also, considering the hostility that the United States Supreme Court can display towards the EEOC, the EEOC may not feel it is in its interest to appeal to the United States Supreme Court. Finally, I attended the national convention of the EEO section of the labor and employment action of the American Bar Association in the spring of 2013. At that conference, the EEOC commissioners indicated that the message of the Eighth Circuit was being heard and that they were going to work hard to improve the investigation process. Thus, I am not sure you will see this go to the United States Supreme Court. Do expect to see developments with respect to the EEOC investigation process.

However, if you are not the government carrying out an enforcement action, you have to deal with rule 23 of the federal rules of civil procedure. The class action world changed in June 2011 with the decision of the United States Supreme Court in Wal-mart stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011). In particular, focusing on the commonality requirement of class action litigation, the United States Supreme Court made several statements that are very problematic with respect to persons with disabilities being able to prosecute class actions. First, in a series of sentences all on the same page they said that commonality requires a plaintiff to demonstrate that the class members have the same injury. Second, there must be a common contention and that common contention must be capable of class wide resolution, which means a determination of the truth or falsity resolves an issue central to the validity of each one of the claims in one stroke. Finally, what matters to class certification is not the raising of common questions, but rather the capacity of the class wide proceeding to generate common answers apt to drive the resolution of litigation. All three of these critical statement can be found at Id. at 2551.

With respect to the same injury, I suppose you could have a class of people that were not hired or class of people that were wrongfully fired. With respect to the common contention, that is a lot more problematic with respect to people with disabilities because as mentioned above, a person with a disability must have a disability and also must be qualified as well. See Hohider v. United Parcel Service, Inc. 574 F.3d 169, 192 (3d Cir. 2009) (while she did not write the opinion, Justice O’Connor, sitting by designation, was part of this panel that wrote the decision). Finally, with respect to generating common answers, that individual analysis required by the ADA (whether it be under the qualified language of title I or title II or whether it be trying to determine a fundamental alteration under title III), necessarily means that you will not have common answers.

Typicality is also going to present problems in the typical ADA case. The typicality requirement is met if the class representative’s claims are generally the same as those of other class members both with respect to the legal theory at hand and with respect to the factual circumstances underlying the theory. Semenko v. Wendy’s international, Inc. 2013 WL 1568407, *8 (W.D.Penn. Table 12 2013). Typicality is typically measured through a three part test that looks at: whether the representative’s claims are generally the same as the class members claims with respect to both the legal theory at issue and the underlying facts; whether the class representative is subject to a defense that may not be alleged against many other class members and that may become a major issue in the litigation; and whether the class member representative’s interests are sufficiently aligned with other class members. Id. Again, the nature of the ADA is such, that it’s going to be extremely difficult to meet the typicality requirement as well for several reasons. First, each ADA inquiry is by its very definition highly individualized and the facts involving one person may be on key particulars different from the facts involving other class members. Id. at *8.

Second, it is quite possible that class members may be subjected to different defenses. For example, judicial estoppel per Cleveland v. Policy Management Systems Corporation , 526 U.S. 795 (1999), statute of limitations, and whether an accommodation is reasonable or not, may all differ depending upon the class member and the particular facts base by that class member.

Third, what class members want may vary from situation to situation. Some, may want to return to work, others may want specific accommodation, and yet others may want to transfer. All of those are very fact specific inquiries.Semenko at *9.

Finally, the individual inquiries necessitated by the ADA also make satisfying Rule 23(b) of the federal Rules of Civil Procedure extremely difficult even if somehow the person with a disability could have their class get by federal Rules of Civil Procedure 23(a). After all, since everything is so individualized, it would be hard to argue that the adjudication would be inconsistent since it is all turning on its own facts. Also, it would be hard to argue that an individualized decision would also be dispositive of the interest of other members not parties again because of the individualized factual determination necessary in ADA litigation. It would also be hard to argue, again, because of the individualized determinations required, that question of law or fact common to class members predominate over any questions affecting only individual members. Lastly, if monetary damages are involved, that necessarily requires an individual determination.Semenko at **10-11.

So is a class certification even possible anymore? It may be possible if people have a common disability or a common requested accommodation Id. at *8, though I am skeptical about the common disability even making the cut, since people with the same disabilities can be very different from each other. What about a pattern or practice claim, such as a 100% return to work healed policy seen in Powers v. USF Holland Inc. and Hohider v. United Parcel Service, Inc.. Even that may be problematic because according to the Third Circuit you still would have to figure out whether the individual claiming discrimination had a disability and was able to perform the essential functions of the job with or without reasonable accommodations, an individualized fact inquiry. Hohider 574 F.3d at 195. The only out may be a “regarded as,” claim. That is, you would have to argue that if an employer regards a person as having a disability, the otherwise qualified analysis does not apply because a person who is regarded as having a disability is not entitled to a reasonable accommodation. Further, to show that a person has been regarded as having a disability, that person only has to show a physical or mental impairment and not whether physical or mental impairment which substantially limiting; therefore, the otherwise qualified argument does not apply and a class action could proceed since the individualized determinations are therfore not critical when the class is limited to those who have been regarded as having a disability.

In summary, the EEOC since they do not have to deal with federal Rules of Civil Procedure rule 23 is going to have a better shot with respect to “class action” litigation. Even so, they well may have to investigate in a reasonable way each of the claims that they use as part of the “class action.” With respect to individuals, it is going to be extraordinarily tough for individuals with disabilities to maintain class actions. Even if they allege a “pattern or practice,” they are still going to have to deal with the “qualified,” problem. Hohider 574 F.3d at 196.