One of the confusing issues out there is the difference between a service dog, emotional support animal, and a therapy dog and why it matters. 28 C.F.R. § 35.104 and 28 C.F.R. § 36.104 (the sections of the federal regulation that apply to service animals for public entities and for places of public accommodations respectively), both define service animal in the same way. Under those regulations, a service animal is any dog individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. 28 C.F.R. § 35.104 and 28 C.F.R. § 36.104. The work or task performed by the service animal has to be directly related to the handler’s disability. Id. The regulations go on to give examples of what such work or tasks may include. According to the regulations, such work or tasks may include but is not limited to: assisting individuals who are blind or have low vision with navigation and other tasks; alerting individuals who are deaf or hard of hearing to the presence of people are sounds; providing nonviolent protection or rescue work; pulling a wheelchair; assisting an individual during a seizure; alerting an individual to the presence of allergens; retrieving items such as medicine or the telephone; providing physical support and assistance with balance and stability to individuals with mobility disabilities; and helping persons with psychiatric and neurological disability by preventing or interrupting impulsive or destructive behaviors. Id. Very importantly, for purposes of this particular blog entry, the regulations go on to say that, “the crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.” Id. (emphasis added).

Before moving on further, a couple of points are in order. First, while not specifically listed in the definition of a service animal, in a separate section of the regulations, miniature horses get protection. See 28 C.F.R. § 35.136(i) and 28 C.F.R. § 36.302(c)(9) (the Department of Justice regulations pertaining to the inclusion of miniature horses with respect to title II and title III entities respectively). Second, this blog entry is specifically focused on the Americans With Disabilities Act and the Department of Justice regulations. Other laws out there, such as the fair housing act, have different statutory provisions and regulations that may also impact on the situation. Nevertheless, I do not address those here.

28 C.F.R. § 35.136(f) and 28 C.F.R. § 36.302(c)(6) (the sections of the regulations that apply to the inquiry that may be made of service animal by public entities and places of public accommodations respectively), both limit the inquiries that can be made when someone shows up with an animal at the public entity or at the place of public accommodation. The inquiries they can make are whether the animal is required because of a disability and what work or task the animal has been trained to perform. 28 C.F.R. § 35.136(f) and 28 C.F.R. § 36.302(c)(6). However, those inquiries cannot be made if it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability. Id.

So here’s the problem. Under the Americans with Disabilities Act, service dogs must be allowed into the place of public accommodation or into the public entity. However, dogs that are not working or providing a task, as the Department of Justice sees it, but are there to keep the person with a disability calm, are not protected by this regulation because those animals are providing emotional support, well-being, comfort, or companionship rather than are working or performing a task for the handler. The other problem is that the ADA is not the only law in play. For example, the Fair Housing Act and HUD’s interpretation of the FHA does allow for emotional support animals.

All of this leads to the following. First, if a public entity or a place of public accommodation is faced with the situation where a person shows up with a dog and wants to take it into the public entity or a place of public accommodation and it is not obvious that the dog is performing work or a task for the handler, the public entity or the place of public accommodation can make the inquiries noted above. However, since the inquiries are limited, making the inquiries may not be terribly helpful. For example, if the person with a disability is knowledgeable enough about the distinction between service dogs and emotional support, the person with a disability may very well phrase their response in terms of the dog performing work or a task even though the dog is in fact a dog providing emotional support and not a service dog. At that point in time, the public entity or place of public accommodation is in a very difficult position. In such a situation, will the public entity or place of public accommodation really pick up the phone and ask the appropriate person, preferably legal counsel, whether the response the person with a disability gave them was in fact a dog performing work? Maybe, such a person would; it is certainly not practical. All this does serve to state the need for training of personnel when dealing with these situations.

The other thing that all this does is set up a situation where a person may sue under laws that do allow for emotional support dogs and completely ignore the ADA. That is exactly what happened in United States v. University of Nebraska at Kearney, 2013 WL 1694603 (D. Neb. April 19, 2013). In that case, the Department of Justice brought suit on behalf of a person who enrolled at the University and wanted to stay in a dormitory with her therapy dog (the court refers to the dog as a therapy dog, but in actuality it may have been a service animal). The University denied the request. As a result, after a few weeks, the plaintiff withdrew from classes and moved out of the dormitory. The Department of Justice filed suit under the Fair Housing Act and sought summary judgment for the principle that the Fair Housing Act applied to the dormitory.

The University argued that a dormitory was not a dwelling under the Fair Housing Act since no residence was involved. However, the court was having none of it for several reasons. First, it noted that courts have said that the ordinary meaning of the word residence refers to a temporary or permanent dwelling place, abode, or habitation to which a person intends to return and is not a temporary sojourn or transient visit. In other words, the court said, a house, apartment, condominium or co-op that you reside in is a residence, but the hotel you stay in while you are on vacation is not.

Second, students in a dormitory do all the things that they would do as if they were in a place called home.

Third, while a temporary sojourn or transient visit would not be a residence, a resident can be temporary or permanent.

Fourth, a person lives in a dormitory in university housing for extended period of time that is very similar to many other residential living situations.

Fifth, courts have held that housing provided for migrant workers are residences within the meaning of the Fair Housing Act.

Sixth, the court noted that the particular place that the plaintiff’s particular dormitory was actually less seasonal than students in other university housing (the “dormitory,” was off-campus and more like apartments than they were traditional dormitories).

Seventh, the court said that the university making the analogy to a jail simply didn’t hold up because in the context of the university, freedom of choice as to where to live was involved, which is not the case with a jail, and that also just because they are residing in a dormitory as part of the educational process, does not fundamentally change the nature of the dormitory being a residence.

Eighth, the Department of Housing and Urban Development’s own regulations specifically talk about a dormitory being a dwelling and since those regulations were properly promulgated and consistent with the statute that the Department of Fair Housing and Urban Development was implementing, those regulations were persuasive.

I read that the University Nebraska Kearney was considering this opinion and deciding whether they should appeal. As this particular decision seems to be pretty strong in its reasoning even though it is a case of first impression, it will be interesting to see whether the University does in fact appeal.

To summarize: service dogs, therapy dogs (a dog that provides therapy for others and does not perform work or tasks for the handler), and emotional support animals (a dog that just by being there provides emotional support to its owner), are not the same thing. Also, it would be wise for a public entity and a place of public accommodation to conduct trainings so that staff members are aware of the difference between a service dog, a therapy dog, and an emotional support animal so they know how to handle situations when a dog shows up. Also, that training would need to discuss permissible inquiries and how to deal with the information gleaned from those inquiries. Finally, especially if you are responsible for dwellings as the term would be understood by the Fair Housing Act, don’t assume that you can do stand behind the service animal definition under the ADA. Other laws, such as the Fair Housing Act, and for now anyway, the Air Carrier Access Act, may go quite further than the ADA.

The whole idea of the statute of limitations is to prevent stale claims. Just about everything has a statute of limitations (the only two exceptions that I can think of our claims arising under USERRA and capital murder claims). The ADA does have statute of limitations to deal with, though it is not stated in the statute itself. Just what is the statute of limitations for an ADA claim? The answer to that question depends upon the title of the ADA involved as well as on an interpretation of a Supreme Court opinion. Let’s look at how each of the titles break down.

Title I
With respect to a claim of employment discrimination (title I), a person needs to file a charge within 180 calendar days from the date the discrimination took place. The 180 calendar day filing deadline is extended to 300 calendar days if a state or local agency enforces a law that prohibits employment discrimination on the same basis. Once a Notice-of-Right-to- Sue from the EEOC is received, a plaintiff must file her lawsuit within 90 days.

Titles II, III, and Retaliation

With respect to the statute of limitation for title II and title III claims as well as retaliation claims, the situation is a bit more complicated. With respect to title II and title III claims, the applicable statute of limitations is going to be the state’s personal injury statute of limitations. See Cordova v. University of Notre Dame Du Lac, _F. Supp. 2d_, 2013 WL 1332268, *3 (N.D. Ind. March 29, 2013). With respect to retaliation claims, the retaliation claim going to be derived from whatever title is at issue. See Stamm v. New York City Transit Authority 2013 WL 244793,*9 (E.D. N.Y. January 22, 2013). Thus, if a person is alleging retaliation with respect to a title II or title III matter, the statute of limitation would be the state’s personal injury statute of limitations.

However, as with the law often times, it is never so simple. Might an argument be made that in some cases as a result of the ADAAA, that the statute of limitations would be a four-year federal statute of limitations rather than the personal injury statute of limitation of the respective state? 28 U.S.C. § 1658 sets forth a catchall four-year statute of limitations for actions arising under federal statutes enacted after December 1, 1990. Obviously, since the ADA was signed by George HW Bush in July 1990, this catchall provision is not going to apply to the ADA. However, the ADAAA went into effect in January, 2009, and thus, arguably might be subject to this catchall provision. How do we know if a particular state’s statute of limitations for personal injury is in play or whether the four-year federal catchall statute of limitations is in play? To answer that question, the United States Supreme Court decision of Jones v. R.R. Donnelly and Sons Co., 541 U.S. 369 (2004), must be considered. In that case, the question was whether the amendment to the Civil Rights Act and a claim subsequently brought under the amendment to the Civil Rights Act was governed by the Illinois personal injury statute of limitations or by the four-year federal catchall statute of limitations. In deciding that the particular claim before it was subject to the federal catchall limitation, the court used a variety of terms as the standard for deciding when the catchall statute of limitations would apply. The terms that the court used include: “creation of new rights of action and corresponding liabilities;” whether “the plaintiff’s claim against the defendant was made possible by a post-1990 enactment;” and “whenever a post-1990 enactment creates a new right.” Id. at 381-382.

Does the ADAAA create any new rights and corresponding liabilities or new claims? One court has suggested that it does not, rather all the ADAAA does is clarify what was originally intended by the ADA. Cordova 2013 WL 1332268, at *5. That said, does that statement hold upon further analysis. After all, the Supreme Court in Jones recognized that the decision in a particular case as to whether new rights, corresponding liabilities or new claims were involved might be very complicated. When you review the ADAAA, it certainly seems that the vast majority of it is really nothing more than clarifying the statute and letting the court know that prior interpretations of the ADA were just not what Congress intended. However, there may be two situations where it might be possible to argue that new rights and corresponding liabilities or new claims were created by the ADAAA. The two areas I believe that may be subject to such an argument are mitigating measures and regarded as. With respect to mitigating measures, the ADA as originally enacted had no such language in it at all. Rather, the whole question of mitigating measures came up to the United States Supreme Court with the Sutton trilogy. The ADAAA makes clear that mitigating measures are not to be considered in the analysis of whether a person has a disability unless the person is dealing with the situation of corrective lenses. 42 U.S.C. § 12102(4)(E)(i),(ii),(iii). This can make a huge difference for a particular individual with a disability. For example, in past editions of my book Understanding the ADA, I have discussed my own hearing loss (I am bilaterally congenitally deaf (65 db-90+db) and through the use of hearing aids and lip reading function entirely in the hearing world)). Before the amendments act, the answer as to whether I had a disability could well have depended upon the time of day (daytime or nighttime depending on whether I was wearing my hearing aids or not). However, I most certainly would have a disability regardless of the time of day with the advent of the ADAAA. Did that create a new right for me? Arguably, yes.

The other area that may have created new claims and corresponding liabilities is in the area of regarded as. Under Sutton, for a regarded as claim to work, an employer has to perceive both a physical or mental impairment AND a substantial limitation on a major life activity. Sutton v. United Airlines 527 U.S. 471, 489 (1999). Now, under the ADAAA, the plaintiff only has to show that a physical or mental impairment was perceived and does not have to worry about whether an employer perceived a substantial limitation on a major life activity. 42 U.S.C. § 12102(3)(A). That change, means that many more people are going to be able to show that they are protected under the regarded as prong, which raises the argument that new rights and corresponding liabilities or claims were created. All this said, you don’t even have to reach this issue if the claim is filed within the statute of limitations for personal injury in your respective state’s jurisdiction. Before leaving this topic, another thing to be aware of, is that utilizing an internal grievance procedure does not toll the statute of limitations. Cordova at 2013 WL 1332268 at *6.

Breaking it down: Here is how the statute of limitations works with respect to the Americans with Disabilities Act. First, if it is a title I case, then you have strict EEOC timelines to deal with. That is, a person has 180 days from the date of the alleged discrimination to file a claim with the EEOC, though it is possible where an equivalent state agency exists, that the deadline might extend to 300 days. With respect to title II and title III claims, you need to check the personal injury statute of limitations in your respective jurisdiction. If for some reason, the claim is outside the personal injury statute of limitations, then you need to focus on whether the case involved mitigating measures or is a, “regarded as” claim. In either of those events, for the reasons mentioned in this entry, it may be possible to argue that the claim would be subject to a four-year federal statute of limitations rather than the particular state’s personal injury statute of limitations.

In this blog, I’ve written about mixed motive jury instruction twice. In the first entry, we explored whether mixed motive jury instructions with respect to the ADA were even possible after Gross v. FBL Financial. In the second, we explored whether where there is more than one cause of action to be alleged and mixed motive was treated differently with respect to the laws involved, a mixed motive instruction would still be possible. Gross said that with respect to the age discrimination in employment act, that, “but for” is the standard that must be used for causation purposes. However, that doesn’t answer the question as to what happens if you have more than one cause. You will see, as our prior blog entries on mixed motive make clear, some case law out there that says that, “but for” does not mean sole cause since you can have more than one necessary cause. Also, most employment decisions have more than one cause. Oftentimes, there may be a mix of bad performance and discriminatory conduct. If sole cause is the standard, then many of these plaintiffs are going to be out of luck. Problem is, is that if you do allow for multiple causes, what is the standard you use. Perhaps, we can analogize to tort law. Everybody who goes to law school learns in tort law (civil wrongs), that if you have one cause, the standard is, “but for” causation. If you have more than one cause, the standard is, “substantial factor.” Might a similar system work with respect to employment discrimination?

Before moving further, in the last entry that I wrote dealing with mixed motive, I alluded to legislative history that indicated the indirect burden of proof was still in play with respect to ADA claims. That same legislative history also indicates that at least whenever the words “on the basis of” appears, that mixed motive, whatever that may mean, is also still in play. In particular, the house report on the ADA amendments act says that the reason why “on the basis,” was inserted into the ADA was to ensure that the, “more direct language, structured like title VII” placed the emphasis on the critical inquiry of whether a qualified person with a disability had been discriminated against on the basis of disability and not on the preliminary question of whether a particular person was even a person with a disability and therefore subject to the protection of the act in the first place. H.R. Rep. 110-730(I) at discussion of, “Discrimination on the Basis of Disability.” That same legislative history immediately after this makes clear that the indirect burden of proof is also in play and that is why Congress purposely left in the term, “qualified” when they amended the ADA with the ADAAA. Id.

The California Supreme Court in Harris v. City of Santa Monica, 294 P.3d 49 (Cal. 2013), was faced with this situation where a person sued under their antidiscrimination law, the fair employment and housing act, for prepregnancy discrimination. It was one of those situations where the employer clearly had dual motives. That is, they terminated her for work performance issues, but they also terminated her due to discrimination based on pregnancy. See id. at 51-53. In this case, it was the defense that asked for a mixed motive instruction. That is, they wanted an instruction that said it was a defense if it could show that it had a legitimate reason to make the same decision and that it would’ve made that decision regardless of the pregnancy discrimination. The court rejected that instruction and instead gave an instruction saying that the plaintiff could prevail if they showed that the pregnancy discrimination was a motivating factor in the adverse action.

The California Supreme Court begins their discussion by noting that the fair employment and housing act contained the phrase “because of,” with respect to causation. However, the California Supreme Court said that isn’t the end of the matter because when you investigated, three possible meanings of, “because of” are possible. First, it could mean, “but for.” second, it could mean, “substantial factor.” Finally, it could mean, “motivating factor.” The court said that the legislative history with respect to the Fair Employment Housing Act was absent with respect to what, “because of” might mean. Accordingly, it looked to title VII of the Civil Rights Act.

In looking to title VII of the Civil Rights Act, the court referred to the Price Waterhouse v. Hopkins case, 490 U.S. 228 (1989), where the United States Supreme Court held that a defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff’s prohibited characteristic into account. The Supreme Court of the United States also held that the burden shifted to the defendant once the plaintiff was able to show a motivating factor whereupon the defendant would have to show that they would have made the same decision at the time even without the discrimination in order to escape liability. The California Supreme Court then notes that the Civil Rights Act of 1991 overturned Price Waterhouse with respect to the liability phase when it added language to the statute saying that while liability cannot be completely circumvented if an employer acted in motivation based on the prohibited characteristic, the remedy would be limited (a conclusion backed up both by the legislative history of the civil rights amendments and by what Gross says with respect to how the age discrimination in employment act is not hooked into motivating factor while the Civil Rights Act is).

The California Supreme Court goes on to mention particular sections of the Fair Employment Housing Act that talk about the purposes behind that Act. In particular, the Act says that it is a public policy of the state of California to ensure that discrimination in employment does not occur when it is based upon discrimination on the basis of various prohibited characteristics. That Act also goes on to say that to be free of discrimination in employment on the basis of a prohibited characteristic, is a civil right in California. The California Supreme Court noted that in light of those purposes, they have held that the policy promoting the right to seek and hold employment free of prejudice is a fundamental one.

The California Supreme Court then turned to how mixed motive was going to work. In particular, they noted that the Fair Employment Housing Act has specific language in it talking about how the remedies need to be effective so as to deter and prevent unlawful employment practices (with respect to remedies, the ADA does not contain as strong of a statement. However, it does say that one of the purposes of the law is to, “provide clear, strong, consistent, enforceable standards addressing discrimination by reinstating a broad scope of protection to be available under the ADA.”). See 42 U.S.C. 12101(b)(2).On the other hand, the court was not looking to grant plaintiff a windfall either. Therefore, to the California Supreme Court, “substantial factor” was the standard that makes the most sense to strike the suitable balance between effective remedies and not providing a windfall to plaintiff. The California Supreme Court then goes on quite a bit about the justification for reaching the conclusion that “substantial factor,” is the way to go. In short, the way it will work in California with respect to the Fair Employment Housing Act is that a plaintiff must first show by a preponderance of the evidence that discrimination was substantial factor motivating his or her termination. Once that happens, the employer gets to demonstrate that legitimate, nondiscriminatory reason would’ve led it to make the same decision at the time. If they can do that by a preponderance of the evidence, then the plaintiff can still prevail, but like title VII the remedies are limited.

What does this all mean for the Americans with Disabilities Act? First of all, substantial factor is a much easier concept to deal with then motivating factor, which is consistent with the purpose of the ADA desiring clear enforcement standards. Lawyers hate uncertainty unless it is to their advantage. It is becoming increasingly clear, that “but for,” does not mean sole cause. See my blog first blog entry on mixed motive.. The second blog entry on mixed motive echoes this point as well. Further, as mentioned above, the legislative history is such that Congress had a very specific intent in mind when a change “because of,” to, “on the basis of” with respect to causation. That is, Congress wanted that change to signify language more in tune with the Civil Rights Act. Finally, the Supreme Court has agreed to hear a case to decide the mixed motive question with respect to a retaliation case under title VII, Nassar v. University of Texas Southwestern medical Center(title V of the ADA, which covers retaliation, also uses “because of,” language).

Once again, this post looks a little bit differently than the others. As mentioned previously, I have not seen blogs that use the formal citation style for formal legal writing. Thus, I have moved away from that quite a bit in this entry. That said, there are times when a cite is absolutely needed and for those times you will find the citation. Otherwise, I am going to try and stay away from formal citation in blog entries in the future (I know I said this once before the this time I think I mean it:-)

In employment discrimination cases, there are two kinds of cases (those involving direct evidence and those involving indirect evidence). Direct evidence cases are the proverbial smoking gun. That is, the plaintiff has explicit evidence that discrimination occurred. However, in most situations, it is difficult if not impossible to find direct evidence, rather things taken together (indirect evidence), indicate discrimination. To deal with the situation of indirect evidence, the United States Supreme Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), set forth a paradigm that works as follows. First, the plaintiff has to establish a prima facie case of discrimination (see blog entry on motion to dismiss for some helpful thoughts on that). Second, if the plaintiff succeeds in establishing a prima facie case, the burden then shifts to the defendant to articulate a legitimate nondiscriminatory reason for the employee’s rejection. Third, if the defendant is able to articulate a legitimate nondiscriminatory reason for the employee’s rejection, the plaintiff must then prove by a preponderance of the evidence that the legitimate, nondiscriminatory reason offered by the defendant were a mere pretext for discrimination. Throughout, the plaintiff has the ultimate burden of persuasion at all times. McDonnell Douglas has a fourth step, which said that after the person have been rejected, position remained open and the employer continue to seek applicant from persons of the plaintiff’s qualifications.

If you are looking for a cite to the above, look at Id. at pp. 802-803, 805. See also Golembeski v. Moorestown Township Public Schools, 2013 WL 1007672, *4 (D. N.J. March 13, 2013).

All this raises two questions. First, if you have a person already working for you and that person is discriminated against on the basis of a disability, is it a defense to say that the position was phased out and therefore, the plaintiff cannot meet a prima facie case because the company did not continue to seek applicants? Second, let’s say that the position was continued to be advertised and that a person was hired to replace the discriminated individual, must the discriminated individual, in order to make out a prima facie case, show that the person hired was outside of the protected class?

Golembeski addresses both issues. Before proceeding further, this case is in unpublished case. Thus, anybody seeking to rely on this should be aware that the various jurisdictions have restrictions on how you can cite unpublished decisions. Thus, while this decision is very useful for guidance, how persuasive it is going to be in a particular court is going to depend upon the court’s jurisdiction rules and upon whether any published authority is out there that might be better than this particular case for the situation at hand.

In Golumbeski, the plaintiff was hired by the defendant in 2004 to be an auditorily impaired paraprofessional whose job was to assist the classroom teacher and work one-on-one with deaf and hard of hearing children requiring more individualized attention than they would otherwise receive. She was expected to help assist the classroom teacher and work one-on-one with deaf and hard of hearing children requiring more individualized attention. When she was hired, the plaintiff alleged that she was told that she would be working primarily with one student and that is what she did. While the plaintiff’s contract stated that her employment terminated at the end of each year, the plaintiff alleged that she did not have to reapply for a position after the 2004-2005 school year and after the 2005-2006 school year. At the end of 2005/2006 school year, the school district informed the plaintiff that she would be transferred to a high school to continue working with the student that she has been working with. However, upon transferring to the high school, the school district informed her that the student she had been working with was going to work with an interpreter instead of a one-on-one aide. She then began working at the high school with a new student who had Downs Syndrome and was also deaf, but after one month, realized that she was not equipped to handle the particular needs of the student and requested a new assignment. She was then transferred to another school, where she worked as an aide and then subsequently transferred to yet another situation where she remained as an aide in the classroom environment until the end of the 2006/2007 school year. At some point during that year, the school district informed the plaintiff that there was going to be a change in the way the deaf classroom works. They informed her that each classroom would have two aids, one of which would be deaf and the other hearing. Since plaintiff worked in a room with another deaf aide, she was informed that the position would not be available for the next school year and she would have to reapply for the 2007/2008 school year. Plaintiff was able to show that at least one other classroom continued to have two non-deaf aides due to the classroom teacher’s preference for hearing assistant despite the change in the paradigm. During the summer 2007, she was told that there were not going to be any positions available for her. Since her benefits were tied to a job at the school district, she decided to apply to any available position in order to remain employed with the school district. She did find and accepted a position as a one-on-one aide with a student with cerebral palsy where she received less pay than she was making prior. She also applied for other positions and then in the process discovered that the school district was continuing to advertise for two openings for the position she originally had, auditorily impaired paraprofessional, and she inquired of her former supervisor why she had not been given one of those assignments if they were available. The former supervisor responded that one was at a school in which she had asked for a transfer and the other was for the classroom she had previously worked in and reiterated the paradigm they were using, saying that the setting was not a good fit for her. She then was placed in several positions for which she wasn’t qualified. After inquiring as to why she was not being given an interview for an auditorily impaired paraprofessional, a job where she had worked successfully in for years, she was granted an interview but did not ultimately get hired. Instead, they hired another person who was hearing impaired. The person hired was also deaf but used a cochlear implant to function like a hearing person. Whereas, the plaintiff was culturally deaf and used ASL to communicate.

As a result of all this, the plaintiff brought suit alleging violations of the ADA for failing to renew her contract, failing to accommodate her in various positions and, failing to hire her to do the type of job she was originally qualified for.

You can find all these facts at Golembeski at **1-2.

With respect to the first issue, the defendant argued that since they did not seek another person to perform the same work that the plaintiff had been doing during the 2006/2007 school year as a result of the position being eliminated, the plaintiff could not meet her prima facie case. The court wasn’t buying this for a couple of different reasons. First, the school district internal emails were inconsistent in terms of how it referred to the position thereby creating an issue of fact as to whether the position had been eliminated at all. Id. at *4.

Second, to the court, the whole argument was a bit of a red herring because in order to make out a prima facie case under the ADA, all the plaintiff has to show is that she: 1) had a disability within the meaning of the statute; 2) was a qualified individual; and 3) had suffered an adverse employment action because of that disability. Id. at *4. The court said that the facts were such that the plaintiff had satisfied a prima facie case. While McDonnell Douglas does refer to continuing applications, the court noted that it was following McDonnell Douglas with respect to the burdens but not because the claim was identical. That is, they specifically noted that McDonnell Douglas explicitly said what is a prima facie case cannot be the same standard with respect to every different factual situation. Id. at *4 at n.5.

Finally, the court said that while it was going through the McDonnell Douglas paradigm anyway, it wasn’t sure that it had to since the defendant admitted that the plaintiff was not rehired because of her disability as well as, to an extent to be determined, her incompatibility with the new model for the program for deaf education (arguably, direct evidence). See Id. at *4 n.2.

With respect to her failure to hire claim for the 2008/2009 school year, the defendant argued that since they had hired a deaf person, there was no way the plaintiff could meet her prima facie case. That is, the argument was that the plaintiff was not able to show that they were ultimately replaced by a person sufficiently outside her protected class to create an inference of discrimination. The court wasn’t buying this either for three reasons. First, the plaintiff noted that the were critical distinction between a person who is deaf with a cochlear implant and a person like the plaintiff who is culturally deaf, and relies on ASL, and therefore a resolution was particularly inappropriate on a motion for summary judgment. See Id. at **5-6.

Second, the court noted that the Third Circuit specifically rejected the requirement that a person in a title VII situation must be ultimately replaced by a person sufficiently outside the protected class because such a requirement was particularly inappropriate when the classification of such individuals was categorical and not continuous. Id. at *6 n.6.

Third, such a requirement was not mandatory in the Third Circuit to begin with. That is, to establish a prima facie case under the ADA for failure to hire, all the plaintiff has to show was that: 1) she belonged to the protected category (person with a disability); 2) she applied for and was otherwise qualified for the job for which the employer was seeking applicants; 3) despite her qualification, she was rejected; and 4) after her rejection, the position remained open and the employer continue to seek applicants. Id. at *5. Filling the position with someone from outside the protected class was not a mandatory thing to show but rather could be shown in the alternative, if the person could not show that after her rejection, the position remained open and the employer continued to seek applicants. Id.

The Third Circuit approach of specifically rejecting a requirement that person needs to be ultimately replaced by a person sufficiently outside the protected class in order to make a prima facie case, has very good policy reasons to support it, particularly with respect to ADA matters. First, the ADA has been amended so that many more people are included within the definition of a person with a disability. Second, and more importantly, no two disabilities, even the same ones, are handled the same by different people. For example, a person who is culturally deaf (born deaf, state schools for the deaf, and ASL) may have the same hearing loss as a person with a cochlear implant, but the way they go about their business is going to be dramatically different. Also, you may have people of the same hearing loss but function entirely differently. In both of these situations, I am referring to people of the same type of disability and even here, it would be very difficult to show true comparability. Let alone, what would happen, if you try to compare different kinds of disabilities with each other.

For the reasons discussed here, I have never really understood how some opinions, and they are not many, try and look for comparatives with respect to ADA matters. Since disabilities are very different, both across disabilities and even within the same disabilities, the full on McDonnell Douglas paradigm fails. Furthermore, this case makes clear that such a paradigm isn’t required in the first place. What this case does, it returns the inquiry to whether the person with a disability of otherwise qualified and whether they were in fact discriminated against rather than focusing on extraneous matters which don’t deal with the question of whether the discrimination of an otherwise qualified individual with a disability took place in the first place. In short, a company, in light of this case, has two choices. The preventive approach would be to narrowly focus on what is a prima facie case as laid out in this decision. That said, a company would be perfectly within its rights to continue with advocacy with respect to positions being eliminated and with respect to hiring people outside of protected classes as being necessary elements of a prima facie case, but such litigation would likely be very costly and complicated, particularly when it comes to comparing disabilities across the spectrum and even within the same disabilities.

In our system, the judiciary, in general, does not render advisory opinions . There are a couple of exceptions. Some states have a system, such as Massachusetts, whereby a legislature can request an advisory opinion from their Supreme Court with respect to the constitutionality of proposed legislation. A couple of other instances look like advisory opinions, but really aren’t. For example, a federal court could ask a state court for their view of the state law with respect to a matter before the federal court. A party could also ask for a declaratory judgment, i.e. a declaration of rights, of the parties. However, in both of those cases an actual dispute is involved. Thus, in order to proceed with a lawsuit, a person must have a sufficient stake in the matter before being able to sue. Two recent cases address the issue of how you go about showing the court that standing exists so that a plaintiff can proceed with his or her claim in a title II or title III case where they face access barriers.

In Hamill v. North Wildwood City, 2013 WL 1007297 (D. N.J. March 11, 2013), the plaintiff, Hamill, sued North Wildwood City for violations of the ADA and the Rehabilitation Act because its facilities were not accessible to persons with disabilities. In particular, when he visited North Wildwood in December, 2010, he did so for the purpose of checking out the boardwalk, checking out the beach and the streets to see if there were areas that would enable him to be able to access the beach, checking to see if he would be able to hand cycle on the streets, and checking to see if you would be able to access the boardwalk. In the process of checking it out, he noticed that there was an area of sand between the ramp and the boardwalk so he would not have been able to make it to the ramp in any event. He also noticed many curb cuts that were problematic (for example, curb cuts led to grassy areas), and also really dangerous as well. Hamill lived in Voorhees, New Jersey and frequently visited the Jersey shore, including trips to North Wildwood. Another plaintiff, Lasky, visited North Wildwood in 2010, to see if he could find any places to rent. He also experienced difficulty with curb cuts and had to use his wheelchair in the streets. The open bathroom, a porta potty, was also not accessible. Lasky lived in Broward County, Florida and had visited North Wildwood on numerous occasions. Both plaintiffs were members of the Advocates for Disabled Americans and that group held a yearly meeting at a restaurant in North Wildwood. Lasky also intended to return to North Wildwood with his family for enjoyment, as it is a major tourist attraction. Further, both plaintiffs intended to return in the capacity of testers.

The above facts can be found at Hamlin v. North Wildwood City, 2013 WL 1007297, at **1-3 (D. N.J. March 11, 2013).

In order to have standing, the plaintiff must show an injury in fact that is: 1) concrete and particularized; and actual or imminent, not conjectural or hypothetical; 2) fairly traceable to challenged action of the defendant; 3) and is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. The defendant tried to argue that the plaintiffs actually had not suffered any injury because they didn’t actually try out the inaccessible places. Id. at *4. However, the court said that the ADA does not require a person with a disability to engage in futile gestures if the person with a disability has actual notice of a facility’s noncompliance with the ADA. Id. Rather, the person with a disability must prove knowledge of the barriers and that they would visit the facility in the imminent future but for those barriers. Id. The court said that the plaintiff had presented sufficient evidence showing that North Wildwood’s facilities were inaccessible and that they had actual notice as a result of the visual inspections of the facilities. Id. at *5. The court said that the plaintiff did not need to engage in futile and possibly unsafe activities just to be able to establish that they suffered an injury in fact. Id. The court didn’t address explicitly whether the injury was fairly traceable to the challenged action of the defendant and whether it was likely that the injury would be redressed by a favorable decision, however, the decision clearly assumes that both of those elements were satisfied.

Thus, both plaintiffs were able to get to first base with respect to their title II claim. However, it might perhaps be better to say that both plaintiffs were able to get halfway to first base because an injunction was at issue in this case. Whenever a person sues for an injunction, that person must demonstrate a real and immediate threat of future harm. Id. It is simply not sufficient for an ADA plaintiff seeking an injunction mandating removal of architectural barriers to manufacture standing by simply claiming that he or she intends to return to the defendant’s establishment. Id. With respect to considering whether standing exists for obtaining injunctive relief, courts look to four factors: 1) plaintiff’s proximity to defendant place of public accommodation; 2) plaintiff’s patronage; 3) definiteness of the plaintiff’s plan to return; and 4) the plaintiff’s frequency of nearby travel. Id.

The court held that both plaintiffs, Hamill and Lasky, were likely to return and therefore, had standing to seek injunctive relief. With respect to Lasky, while he lived 1206 miles away from North Wildwood, he did plead that North Wildwood was a major tourist attraction. Id. at *6. Second, Lasky had a prior history of making multiple visits to North Wildwood. Id. Third, he also alleged that he intended to return for the yearly meeting of the Advocates for Disabled Americans, which is held in North Wildwood every year at a local restaurant and of which he was president. Id. Fourth, he also intended return to look for vacation rentals for his family. Id. at *7. Fifth, he intended to return to ask to assess accessibility problems (tester) in the North Wildwood area. Id. Interestingly enough, the fact that Lasky was a tester actually weighed in his favor with respect to standing because that meant he had real incentive and a higher likelihood of actually returning to North Wildwood. Id. Sixth, Lasky also planned to return to North Wildwood with his family for enjoyment. Id.. The court also noted that Lasky visited New Jersey up to four times a year due to his role as president of the Advocates for Disabled Americans and in his role as a guardian ad litem for disabled man in Camden New Jersey. Id. He also enjoyed attending Philadelphia sporting events, and his wife’s best friend lived in New Jersey. Id.

With respect to plaintiff Hamill, he had attended the yearly meetings of the Advocate for Disabled Americans held in North Wildwood. He also alleged that he wanted to access the boardwalk for hand cycling but could not do so because of the barriers. Id. at *8. The court found it absurd to require Hamill to specify dates when he wanted to return to do hand cycling when he could not do so because the barriers did not allow him to hand cycle in the first place. Id. Finally, while he did alleged that he frequently visited the Jersey shore, he did not provide details about these other trips. Id. However, since he lived in general proximity to North Wildwood, the court found the proximity to North Wildwood indicated, albeit not strongly, that he intended to return to the Jersey shore. Id.

Breaking it down: The standing requirements with respect to title II and title III, especially when injunctive relief is involved in both cases, are essentially the same (for a recent title III case dealing with standing, see Harty v. Bull’s Head Realty, 2013 WL 1131625 (D. Connecticut March 18, 2013)). With respect to establishing standing involving architectural accessibility issues under title II or title III, the biggest hurdle for the plaintiff is going to be showing that they suffered an injury in fact that was concrete and particularized and that was also actual or imminent. While the plaintiff does not have to engage in a futile act, they are going to have to show knowledge of the barriers, not particularly difficult, especially for testers, and that they would visit the facility in the imminent future but for those barriers. The argument is going to be over whether they would visit the facility in the imminent future but for those barriers. On the plaintiff’s side, that can be done by showing that the plaintiff has an ongoing connection to the community both in the past and in the future. Whether that ongoing connection is sufficient, may vary from judge to judge. Certainly, on the plaintiff’s side, the more specific connection that can be alleged, the better off the plaintiff is going to be. On the defense side, boilerplate pleadings showing only general and tenuous connections, are ripe for being attacked. Finally, if the person is only a tester, there may still be an argument as to whether a tester can have standing. However, in both of the cases mentioned in this blog entry, being a tester was actually favorable to the plaintiff because it indicated the plaintiff had every intention of returning to the site.

Previously, I have written two different blog entries dealing with the Air Carrier Access Act. In the first, I talked about whether a private cause of action existed. In the second, I talked about whether the Air Carrier Access Act regulations being so pervasive preempted state laws. This entry concerns a slightly different issue. That is, assuming preemption exists, does that mean the preemption applies to the standards what does it mean the preemption applies to the remedies for both?

A recent case from the Ninth Circuit, Gilstrap v. United Airlines,_F.3d_, 2013 WL 930170 (9th Cir. March 12, 2013), addresses this very question. In this case, the plaintiff had difficulty walking due to a collapsed disc in her back, a knee replacement, another knee in need of replacing, and osteoarthritis. Id. at *1. In August 2008, she flew on United from Los Angeles to Calgary, from Calgary to Chicago, and from Milwaukee back to Los Angeles via Denver. Id. In December 2009, she flew from Burbank, California to Madison, Wisconsin by way of Denver. Id. When she booked both flights, she requested that United provide her with wheelchair assistance for moving through the airport. Id. During both trips, United repeatedly failed to provide the plaintiff with the assistance that she requested. Id. In particular: at one airport, she had to locate a wheelchair on her own; at another airport she only obtained a wheelchair from United after prolonged assistance and up to 45 minutes of waiting; and still at other airports she was never able to locate a wheelchair at all and had to walk. Id. Further, she alleged that a United agent yelled at her, expressed skepticism that she actually needed a wheelchair, and on two occasions, directed her to stand in line, which she was not able to do because of her disabilities. Id. At one point, a United agent from whom she asked for assistance, unilaterally revoked her ticket and booked her for a later flight after telling her that that is what she got for refusing to stand in line. Id. She sued United in tort alleging several different causes of action under California law including: negligence, negligent misrepresentation, breach of duty of a common carrier, intentional infliction of emotional distress, and negligent infliction of emotional distress. Id. She also alleged that United Air Lines violated title III of the ADA as well. Id. She did not sue alleging violations of the Air Carrier Access Act, rather the claim was that the Air Carrier Access Act was relevant to establishing negligence on the theory of negligence per se. Id.

Before proceeding further, a brief comment is in order about negligence per se. Negligence per se is a legal concept that basically says that violation of one statute can be used as a means of saying that the defendant was negligent. It is basic black letter law that everybody learns in law school. Many states, such as California and Georgia to name just two, have a statute that says violation of a statute, ordinance, or regulation can be used as a means to establishing negligence. The state statutes vary in their wording. They also vary in what happens once you show that the statute, ordinance, or regulation is violated. Basically, what can happen might vary from winning your case if you can show that the statute was violated and the person alleging the violation of the statute, regulation, ordinance was meant to be protected by that ordinanceVal D’Aosta v. Cross, 526 S.E.2d 580, 585 (Ga. App. 1999), to creating a rebuttable presumption of failure to exercise due care. See Gilstrap at *1.
The court had several potential issues before it. First, are the remedies under the Air Carrier Access Act exclusive. That is, do those remedies preclude other remedies? Second, if the remedies are not exclusive, what role does the extensive regulations implementing the Air Carrier Access Act play in any subsequent state law-based negligence suit? Third, does the Air Carrier Access Act provide for a private cause of action? Fourth, does the ADA apply to airline terminals?

With respect to the first issue, the Ninth Circuit found that the remedies in the Air Carrier Access Act are not exclusive. That is, the Air Carrier Access Act does not preclude other kinds of causes of action such as those lying in tort. The court found it extremely significant that the Federal Aviation Act, of which the Air Carrier Access Act is an amendment to, specifically says that any remedy under the Federal Aviation Act is in addition to any other remedies provided by law, and it also says that Department of Transportation certified air carriers have to maintain liability insurance sufficient to cover bodily injury, death, loss of property, or damage to property resulting from the operation or maintenance of the aircraft. Id. at *5. Therefore, the Federal Aviation Act on its face explicitly anticipated that other remedies besides those under the Federal Aviation Act may be utilized. Also, the court found that no conflict existed between federal and state liability standards in this case nor did allowing causes of action lying in tort frustrate the objective of the federal law. Id. at *11.

With respect to the second issue, the regulations are indeed extensive and pervasive. The court said in that kind of case, where the statute clearly says that the remedies are not exclusive, but you do have extensive and pervasive federal regulations, what happens is that those extensive and pervasive federal regulations establish the standard of care for the state law cause of action. Id. at **8-9.

With respect to the third issue, the court noted that there are opinions out there, which we have also discussed in another blog entry, that say the Air Carrier Access Act, does not give rise to a private cause of action. Id. at *5. However, since the plaintiff did not sue under the Air Carrier Access Act, the court said that that was a question they did not have to reach. Id.

With respect to the final issue, as we have also discussed in a prior blog entry, the court found that the Americans with Disabilities Act was quite explicit that title III does not apply to airport terminals. Id. at *14. However, in a footnote, the court said that the implementing regulations under title II of the ADA do note that airports operated by public entities are covered by title II of the ADA, but since the plaintiff did not make any claims under title II it wasn’t necessary to visit that question. Id. at n. 11.

So what does this all mean?: First, the Air Carrier Access Act does not preempt both standards and remedies because the Federal aviation act, of which the Air Carrier Access Act is a part of, allows for other remedies, and allowing for other remedies does not conflict with the purpose of the Federal aviation act. Second, while remedies under the Air Carrier Access Act are not exclusive, the standards contained in the regulations implementing the Air Carrier Access Act are the standards that will have to be used in any subsequent state law cause of action alleging injuries from violation of the Air Carrier Access Act regulations. Third, while this case doesn’t address the question of whether a private cause of action exists, for reasons mentioned in another blog entry, it probably doesn’t. Third, it is quite clear from the cases that title III of the Americans With Disabilities Act does not apply to airport terminals, but it may be possible that title II of the ADA applies to airport terminals.

Plaintiff/Defendant think: On the plaintiff’s side, this case is a real positive jolt for plaintiffs. A person with a disability who is not properly accommodated during their time in an airport is quite likely to have those disabilities aggravated in some way or have some new injury result. This case gives plaintiffs a real opportunity to redress violations of the federal regulation that aggravated and/or caused additional injuries. On the defense side, it means that airlines are going to have to make sure that their staff are fully trained on all the regulations and that steps are taken to minimize the risk of violations of any of the regulations. In short, if a client comes into a plaintiff personal injury law firm to talk about a situation where they were injured in an airport as a result of the Air Carrier Access Act regulations not being followed, the plaintiff’s attorney would want to seriously think about filing state law tort claim lawsuits using the Air Carrier Access Act as the standards for liability. Since many airports are publicly owned, the plaintiff attorney may also want to consider bringing a cause of action under title II of the Americans with Disabilities Act as well. On the defense side, if the plaintiff alleges a violation of title III, a likely successful argument is that title III of the ADA does not apply to airport’s terminals. If the plaintiff brings suit under the Air Carrier Access Act, another likely successful argument is that a private cause of action does not exist under that act. If a plaintiff brings suit under title II of the ADA, the defense would want to argue that title II applies to public entities and the airlines are not public entities. Finally, if there is a personal injury suit based on state law claims, the defendant first would want to argue that the Air Carrier Access Act preempts state law remedies as well (but as we have seen in this case, that argument may not be successful). Second, the defense would need need to be prepared to deal with the Air Carrier Access Act regulations as the basis for liability.

So where does this case go? Whenever a U.S. Court of Appeals decides a case, a person losing would have two options. First, ask for a rehearing en banc. Considering that this is the Ninth Circuit and considering the nature of this case, it is hard to say whether such a rehearing request would be granted (a majority of the entire Ninth Circuit judges would have to agree to do that). The other option of course is to appeal the case to the United States Supreme Court. In that situation, at least four justices would have to agree to hear the case. With respect to whether the judges would agree to hear the case, it would help if a conflict between the circuits exist. There is a theoretical conflict between the circuit with respect to whether a private cause of action exists under the Air Carrier Access Act, but this particular case does not address that question because the plaintiff did not sue under that act. Also, since the Supreme Court decision in Alexander v. Sandoval, the circuits have not split on the question of whether the Air Carrier Access Act has a private cause of action component (they have all found that it does not). With respect to the other issues in Gilstrap, it would take further research but this case doesn’t seem to suggest that a conflict among the circuits exists with respect to those other issues. Finally, even if the U.S. Supreme Court were to take this case for some reason, I wouldn’t want to hazard a guess as to whether the United States Supreme Court would hold that the remedies under the Air Carrier Access Act where exclusive, especially considering the act’s explicit discussion of other remedies being in play and the insurance requirements. I do think it would probably be likely that the United States Supreme Court would decide that title III of the ADA does not apply to airport terminals and, if the question were before it, would also decide per Alexander v. Sandoval that the Air Carrier Access Act does not have a private cause of action component to it.

In law school, we learn that the federal system is a notice pleading jurisdiction. The idea behind notice pleading is that you make a general statement as to what the case is about if you are a plaintiff and then the rest is up to discovery. Once discovery is done you can go with the motion for summary judgment if you are on the defense side. At the state level, the approach varies from state to state. Some states are much more fact-based while other states are very general and leave it up to discovery. Some states, such as Illinois, fall in between. One of the things that I am seeing quite a bit, particularly with prisoners, but sometimes with individual plaintiffs as well, is that they are filing pro se complaints. That means, they are filing complaints without a lawyer. That is generally not to be recommended. Also, even lawyers have to worry about how to get to first base so to speak. Thus, this blog entry will explore what must be alleged to survive a motion to dismiss. Of course, my blog is devoted to the ADA, but the reader may find this information helpful with respect to federal cases in general.

To say that the federal system is a notice pleading situation, is no longer entirely accurate thanks to two different cases, Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), and Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007). In those cases, the United States Supreme Court said that a simple recital of the elements of a cause of action supported by making conclusory statements is not going to be sufficient to survive a motion to dismiss. Iqbal 129 S. Ct. at 1949-1950. That is, while legal conclusions can provide the framework of the complaint, they have to be supported by factual allegations that plausibly give rise to an entitlement to relief. Id. at 1950. Plausibility refers to a complainant pleading enough factual content that allows the court to draw a reasonable inference that the defendant is liable for the misconduct. Id. at 1949.

So what does this all mean? It means that one should not take the notice pleading analysis of the federal court literally. That is, a better approach might be to adopt a hybrid system, such as the one in Illinois. Illinois uses a hybrid system. That is, it is not a notice pleading jurisdiction, but on the other hand it is not a pure factual jurisdiction in its practice either. Rather, a complainant has to give enough facts to put the defendant on notice as to what the claim is. The language you might see in an Illinois case is that a plaintiff is required to allege facts stating the elements of the cause of action, and unsupported legal conclusions and factual conclusions are insufficient and will be disregarded. People ex rel. Madigan v. Tang 346 Ill. App. 3d 277, 283 (first district 2004). There isn’t much difference between a standard such as this and the standard called for by Iqbal, which requires that a plaintiff’s complaint has to include sufficient facts of each element to support a reasonable inference that he or she is entitled to relief. See Wells v. West Georgia technical College 2012 WL 3150819, *3 (N.D. Georgia August 2, 2012).

What it all comes down to is this, and the Wells case is an excellent road map for how it works, is that you want to take each element of the claim and then come up with specific facts supporting each element of the claim. For example, for a person to have an actual disability under the Americans with Disabilities Act, you would need a physical or mental impairment that substantially limits a major life activity. Therefore, you would want to allege facts showing a physical or mental impairment. You would also want to allege facts showing that a substantial limitation on a major life activity (recognizing that substantial limitation post ADAAA is not the same as substantial limitation prior to the ADAAA), exists. If it is a case involving reasonable accommodations, you’re also going to have to allege facts to show that the person is a qualified person with a disability. That is, you would need to allege facts to show that the person can do the essential functions of the job with or without reasonable accommodations. In short, the methodology is pretty simple. As a plaintiff, what you need to do, is determine what are the elements of the cause of action and then allege the facts satisfying each element. Stay away from general conclusions and stick to specific facts. On the defense side, when you receive the complaint, figure out what are the elements of each of the causes of action that the plaintiff is alleging. If the plaintiff is not alleging specific facts that satisfy each element, then your chances for prevailing on a motion to dismiss increase quite substantially.

Of course, I would be remiss if I didn’t point out that this blog entry, as are all my blog entries, general information and are not for purposes of giving specific legal advice. For specific legal advice and for how a complaint should actually be structured, that is for the lawyer to decide.

In the kindergarten through grade 12 context, for students with disabilities, there are actually three laws to be aware of. Those laws are the Individual with Disabilities in Education Act (IDEA), § 504 of the Rehabilitation Act, and the Americans with Disabilities Act (ADA). IDEA is a law that demands a student with a disability obtain a free appropriate public education(FAPE). That law is extremely technical and has very specific eligibility requirements. It requires an individual education plan (IEP) and that plan needs to include performance measures and goals. It is much more narrowly focused than § 504, and therefore, a student could be eligible for § 504 services but not be eligible for IDEA services. That said, a person eligible for IDEA services would most certainly be covered under § 504. § 504 and the ADA are laws that we have discussed many times in this blog and they are designed to do something else, which is ensure that a person with a disability is able to get to the same starting line as everyone else. What happens if you have a person that asks out of or rejects an IEP, does that mean they have also waived any rights they have under §504 or under the ADA?

A case that answers this question is Kimble v. Douglas County School District _ F. Supp. 2d _, 2013 WL 659109 (D. Colorado, February 25, 2013). In this case, parents and guardians of a minor had an IEP with the school district. They were perfectly happy with an IEP. However, the next year, the school district wanted to change that IEP, and the parents were not willing to go along with the proposed changes. Accordingly, they refused to consent to the changed IEP. The school then sent her a letter saying that rejection of the IEP also meant rejection of any services under § 504 of the Rehabilitation Act. After receiving this rejection letter, the plaintiff submitted a written request to the defendant by email to develop a section 504 plan. However, the school said the 504 plan that they would offer would be the same as the proposed IEP and since the plaintiff refused to consent to the changed IEP that had been proposed by the school, she had waived her ability to obtain any § 504 relief. The plaintiff then filed suit alleging that the school’s conduct violated § 504 of the Rehabilitation Act as well as title II of the ADA.

The court first began by discussing the three different laws. As mentioned above, IDEA requires that all children with disabilities have access to a free appropriate public education. It does so through the use of the IEP, which is a written statement setting forth: the child’s present performance; the goals and objectives; specific services enabling the child to meet those goals; and evaluation criteria and procedures to determine whether the child has met the goals. A school district cannot implement an IEP without the informed consent of the parent. Where parents revoke consent for such services or do not give consent, the school district has to cease providing special education related services and is under no further obligation to develop an IEP for the child. That said, IDEA make perfectly clear that nothing in that law is meant to interfere with or limit the rights, procedures, and remedies under other laws including the Constitution, the ADA, and § 504 of the Rehabilitation Act among others.

The court went on to discuss § 504 of the Rehabilitation Act and noted that § 504 of the Rehabilitation Act is much broader than IDEA. While § 504 of the Rehabilitation Act with respect to students with disabilities in grades K-12 also contains free appropriate public education language, the meaning of that term is different than the meaning of the term under IDEA. The focus with § 504 of the Rehabilitation Act is on the design of a child’s educational programs so that the child with a disability has an educational program that is as adequate as the needs of a child without a disability (what I would call the starting line analogy). The court noted that the procedures for designing a free appropriate public education under § 504 of the Rehabilitation Act are more vague than they are under IDEA (I have found that this can cut two ways. On the one hand, IDEA give you all kinds of protections and formalities to observe. However, all those protections and formalities can make the process more adversarial. On the other hand, § 504 of the Rehabilitation Act is much more flexible than IDEA, which can be a disadvantage, but also its flexibility and vagueness can make the process less adversarial and more collaborative. Therefore, there can be a strategic decision as to whether a student should opt for IDEA or § 504 coverage, assuming the student is eligible for both, which as mentioned above may not be the case).

Finally, the court mentioned the ADA briefly. Obviously, we have seen quite a bit of the ADA in this blog. The court mentions the ADA to say that the courts analyze title II of the ADA and § 504 the Rehabilitation Act claims the same because the substantive standards are the same (from this blog, we know that this isn’t exactly true, but nevertheless the courts continue to make this statement in their cases).

Once the laws were discussed, the court turned to the claims. With respect to that, the court said since IDEA as well as its implementing regulations specifically say that they are not meant to interfere with the rights given to students with disabilities under other laws, including the ADA and the Rehabilitation Act, a waiver of one law does not waive rights given under the other laws. This sounds good for the plaintiff. However, the school held a section 504 meaning subsequent to the plaintiff’s rejection of the IEP under IDEA, and at that section 504 meeting, a § 504 plan was proposed that was identical to the rejected IEP. Accordingly, the plaintiff’s rejected the 504 plan as well. Accordingly, the rejection of the 504 plan put the school district off the hook.

What is to prevent a school district from offering an IEP they know the parents will reject and then offering the same IEP in a subsequent 504 meeting knowing that the parents will reject that as well as a strategy for not having to provide services at all. Certainly, it is a strategy that the school district could try. However, the court did mention that there might be two checks on whether that strategy would prevail. First, if the plaintiff could show that the strategy was based on discriminatory intent, the strategy would fail. Second, since the laws are different, a school district is still under a continuing obligation under § 504 as well as the ADA to protect the student from discrimination while the student remains a qualified student with a disability. Accordingly, the school district has to offer and continue to offer, despite any rejection of an IEP or a § 504 plan, any accommodations or services ensuring that the student is provided an opportunity for free appropriate public education under § 504.

Breaking it down: First, this case tells us that a waiver under idea is neither a waiver under the ADA nor a waiver under § 504 of the Rehabilitation Act. Second, a parent perfectly has the right to reject an IEP that they do not believe is appropriate. That rejection will prevent services under IDEA. However, that rejection would not prevent services under the broader law of § 504 of the Rehabilitation Act, or for that matter the ADA as well. If the school were to offer the same rejected IEP as the § 504 plan, the parent would be free to reject that also. However, in that eventuality, the school would be off the hook, unless either of two exceptions apply. The two exceptions being if the plaintiff could show that the offering of the § 504 plan identical to the rejected IEP plan was based on discriminatory intent, then the school would have a problem. The other exception being if the school refused to provide any § 504 services whatsoever regardless of whether the student was eligible for those services once the § 504 plans had also been rejected. In short, what this comes down to is should a parent reject an IEP, there is a fallback to § 504 planning. Should the § 504 planning process also break down, because the school district is under a continuing obligation, the parent should continue to try and negotiate some sort of plan so that the child can continue to receive § 504 services. On the school district side, there are many different approaches you can take. First, the school system might start the person in a § 504 plan and then depending upon how it goes move that person into the IDEA framework should the student be eligible for IDEA. If the student is in the IDEA framework already, the school should be in a negotiation process with the parent. If that process breaks down, then the student would drop into §504 planning. As a preventive law measure, one wonders why the § 504 plan would have to be the same as a rejected IEP plan. It would seem that many problems could be prevented if a whole new negotiation process was opened up and the parties reached a mutual conclusion as to what should be in the § 504 plan. It would be to the school’s advantage to have a working § 504 plan in such a situation as § 504, which the court noted above, while more vague is also more flexible than IDEA. Should somehow there be no alternative but to offer the same rejected IEP as a § 504 plan, the school would need to be prepared to make sure that it is showing that parent that it continues to act even after the rejection in accordance with its continuing obligations to offer free appropriate public education, as § 504 defines it, to the student.

The ADA requires that an entity subject to the act cannot require a medical examination and cannot make inquiries of an employee as to whether that employee is an individual with a disability or as to the nature of the severity of the employee’s disability unless that examination or inquiry is job-related and consistent with business necessity. See 42 U.S.C. § 12112(d)(4)(A). That is all fine and dandy, but that doesn’t answer the question as to whether some kind of preliminary showing is necessary before the employer can conduct such a postemployment medical exam. That is, must the employer have reasonable suspicion, probable cause, good cause, reasonable cause, or some other standard before they can demand a postemployment medical exam of a particular employee? Or is it possible that the employer doesn’t need any of that, and they can demand a postemployment medical exam of an employee regardless of whether they are on notice as to a potential problem. The Western District of Pennsylvania in EEOC v. United States Steel Corporation 2013 WL 625315 (W.D. Pennsylvania, February 20, 2013), was faced with this very question. In that case, probationary employees (employees that had worked under 1,040 hours), were subject to random drug testing. It didn’t matter whether the employer was on any notice as to a particular problem. All employees on probation were subject to random drug testing. The random drug testing was something agreed to by the Corporation and the union that represented the workers in the factory and enshrined in their basic labor agreement. The new employees at the plant performed either of three functions (door cleaners, lidman, and Coke oven laborer). All three of those job were very close to or on the coke batteries, which contain molten Coke and reach a temperature of up to 2100°F. These employees deal with narrow work areas, dangerous heights, extremely large moving machinery, toxic and combustibles superheated gases, biosludge, as well as a number of mobile vehicles containing hot Coke or bituminous coal. As a result, these employees must wear layers of protective clothing, equipment, and masks covering the entire body. On January 29, 2008, the plaintiff was terminated after she failed both an initial and confirmatory breath alcohol test. She filed a claim with the EEOC complaining that the test didn’t account for her diabetes. From there, the case becomes quite messy in terms of how the EEOC went about the investigation and conciliation process prior to filing suit. The EEOC did file suit saying that this policy violated the ADA with respect to when a postemployment medical exam could be performed. The EEOC ‘s view was that medical testing is not permitted unless the employer has an individualized reasonable suspicion of a safety concern. Therefore, any random alcohol testing policy must be per se invalid.

Before moving on to the issue of what kind of cause is needed, if any, before conducting a medical exam, some of the other issues can be squared away first. First, before the EEOC can bring a case against someone, there are certain procedural formalities that they have to go through. United States Steel alleged that those formalities were not done in this case. The court, after detailing the sequence of events, said that it was a close call, but ultimately it was a question of fact as to whether the formalities had been observed. Second, United States Steel also maintained that the random drug testing provision was within the safe harbor contained in employee benefit plans, but the court was having none of it. The court said that this was a medical exam and not the type of thing that you would see in an employee benefit plan. Furthermore, the random drug testing was part of the collective bargaining agreement and was not voluntary. Accordingly, that safe harbor exception didn’t apply. Finally, the EEOC argued that their enforcement guidance, which required some kind of reasonable suspicion before doing a medical exam postemployment, was binding on the matter. However, the court was having none of it. Since the guidance did not go through proper rulemaking, the guidance was not binding on the courts and could be used by the court or not at its own discretion.

Turning to the merits of the case, the court first set forth the paradigm for figuring out how the job-related and business necessity defense works. That paradigm works as follows. First, it is the employer that has the burden of showing a medical examination is job-related and consistent with business necessity. Second, whether a medical examination is consistent with business necessity is an objective test. Third, the employee does not need to have a disability under the ADA to challenge a medical examination or inquiry. Fourth, to determine whether an employer has shown that a medical examination or inquiry is job-related and consistent with business necessity, the employer has to show that a business necessity exists and that the policy at issue serves the asserted business necessity. Fifth, any business necessity warranting a medical examination has to be vital to the business, such as ensuring that the workplace is safe and secure or reducing egregious absenteeism. Sixth, in order to show that the policy serves the asserted business necessity, an employer must demonstrate the examination or inquiry genuinely serves the asserted business necessity and is no broader nor more intrusive than necessary. Finally, if an employer argues that safety is the business necessity, then all the employer has to do is demonstrate that the medical test or inquiry is consistent with business necessity is to show that the medical test or inquiry makes even a small (emphasis mine) contribution to reducing the risk posed by unfit employees.

With that in mind, the court was ready to take on the merits of the case and they approached it in the following way. First, there is nothing in the text of § 12112(d)(4)(A) specifically requiring employers to have suspicion, reasonable or otherwise, that an employee presents a safety hazard before they can conduct a random alcohol test on new employees.

Second, the court noted that the case law is all over the place on whether some form of reasonable suspicion or otherwise is required first before such a test can be conducted.

Third, the court looked to an analogous statute in the ADA §12112(b)(6), dealing with qualifications that screen out people with disabilities, and said that nothing in that particular statutory provision would suggest that across-the-board medical screenings are per se violations of the ADA.

Fourth, the fact that only new employees were subject to this random testing did mean that the employer has the burden of justifying the necessity of performing the medical examination only upon the new employees. The court believed that United States Steel more than met their burden with respect to that in several ways. First, new employees work in very dangerous jobs that included molten hot Coke, toxic waste products, massive moving machinery and so no level of intoxication could be acceptable under those circumstances. Second, the random drug testing provision was negotiated between the union representing the workers and the Corporation and was made part of the collective bargaining agreement. Third, many employers, federal and private, use random drug and alcohol testing for employees working in safety sensitive or mission-critical position and their common theme is that random testing can and should be used by employees working in positions where even the smallest miscalculation could lead to dire consequences. Finally, random testing deters other employees from bad behavior leading to bad consequences.

Fifth, the court explored the viability of limiting the random drug testing to new employees only. They, in essence, said that there was a rational basis for limiting the testing to new employees only. That basis included: regular employees that have been on the job for a long period of time have proven they can follow appropriate safety standards and adequately perform their daily job, which is not the case with new employees; new employees are less skilled at performing their jobs, less familiar with company rules, and have not fully internalized the importance of workplace safety; factory workers in training, a.k.a. new employees, are inherently more dangerous to themselves and others because of the lack of training and familiarity with the job and have an elevated chance that they will arrive at work in an unfit state; new hires, until they fully can appreciate the risk in the workplace, are more likely to engage in risky behavior than regular employees, and there is no room for error when the dangers are as numerous as they are in this plant; there is no way for the employer to tell who may be engaging in behavior demanding further investigation when everybody has to be completely dressed up and covered due to the hazardous conditions they work in. Finally, even a 4 to 5 month differential (the policy applied to employees that had worked under 1040 hours-about 4 to 5 months full-time), can become critical given the stakes as high as they are. Therefore, probationary employees are not in the same place as regular employees and can be treated differently, and the random testing was warranted on new employees because they were less likely to comply with the alcohol policy. All this said, since the court reasoned this way with respect to new employees, they really had little choice but to say that to do it on non-probationary employees would result in a policy that would be broader and more intrusive than necessary and therefore, would fail the business necessity test with respect to nonprobationary employees.

Takeaways: There are numerous things we can take away from this case. First, many practitioners probably assumed based upon an implied reading of the statute, which is certainly supported by the EEOC enforcement guidance, that some form of reasonable suspicion was necessary before being able to do a post employment medical exam. This case makes clear that we should no longer assume that necessarily. Second, in the labor context, it really helps if a random drug or alcohol testing policy is part of the collective bargaining agreement. Third, the EEOC does have certain procedural formalities they have to go through before being able to pursue a claim. It is certainly worth for the defense to claim that the formalities were not observed, but such an argument may be a tough one to carry. Fourth, enforcement guidances and the like are just persuasive authority and an employer is free to argue that they should not apply. Such an argument, as was seen here, may indeed carry the day (such an argument was also successful in Toyota Motor Manufacturing, Kentucky V. Williams, 534 U.S. 184 (2002), where the United States Supreme Court gave no deference to the EEOC’s view on what constituted a substantial limitation on a major life activity)). Fifth, this case does not really tell us what job-related means, but instead focuses on business necessity. From this case, if an employer has, for the lack of a better word, a “rational basis,” for its policy, they may well prevail. Sixth, if the employer has a “rational basis,” for treating different kinds of employees differently that may also carry the day as well. That said, this “rational basis,” approach only goes so far. For example, this court, as noted above, said that a random drug testing policy for employees no longer new would fail. Finally, the employee benefit plan safe harbor is not something that is a catchall category, rather a voluntary employee welfare plan must be involved.

I would expect that the EEOC would appeal this decision. That said, I do not want to hazard a guess as to what the United States Court of Appeals for the Third Circuit will do with this case. Especially if United States Steel loses in the Third Circuit, I would expect United States Steel to appeal this to the United States Supreme Court. With respect to the United States Supreme Court, I most certainly would not want to hazard a guess as to what they would do in this situation should they take the case, though I can say that it has been extremely difficult for an employee to prevail at the United States Supreme Court level with respect to the ADA (title I cases. Persons with disabilities have fared better at the United States Supreme Court when it comes to claims arising under title II or title III of the ADA).

If this particular blog entry looks a little bit different to you (that is, all the citations are missing), that is intentional on my part. Over the months, I have read many blogs, including those that would be considered fairly academic in nature, and none of them adopt the formal writing convention of citing any time that it is not your idea. Also, I have become very worried that putting the citations in the document, especially since it is a blog, unnecessarily slows the reader down. Finally, while lawyers may appreciate the citations per the formal legal writing convention, people whom are not lawyers (such as disability professionals, businessmen, businesswomen, consumers with disabilities, employees, the media in general, etc.), may find it inaccessible. When the fourth edition of my book comes out, you will see that many of my blog entries have made their way into the fourth edition of the book. In the book, you will see the formal legal writing conventions of when to cite observed, but, at least for now, not in the blog. Hopefully, you will find the reading easier and more accessible. Again, thanks so much for your readership!

In a previous blog post, I wrote about a case involving a major resort in Las Vegas Nevada that hired somebody to help ensure that its resort modifications were in compliance with the Americans with Disabilities Act. When it turned out that those modifications were not in accordance with the ADA and the resort was sued, they sought indemnification. The Nevada Supreme Court said that the ADA was a nondelegable duty and that the resort was not going to be able to get indemnification. Does that mean indemnification is dead? The answer is not exactly. In Reid v. Summit Claiborne, LLC 2013 WL 486783 (E.D. La. February 6, 2013), Summit brought a third party complaint for indemnity against AARD NOLA and Mainstream Development, the prior owners that they purchased the building from. The underlying suit involved a lawsuit by Reid against Summit alleging that the building violated the ADA.

Here are the critical facts:

1. The building was purchased from two different entities (Mainstream Development LLC and AARD NOLA ST. Claude LLC, two separate entities). It was AARD NOLA that moved for summary judgment.

2. The purchase agreement and other relevant documents did not include an express indemnity clause.

3. There was a lease between the lessee and Mainstream LLC regarding the building being in ADA compliance and continuing to be in ADA compliance for the duration of the lease, but AARD NOLA was not on that lease, rather only Mainstream Development was.

4. The purchase agreement between Summit and AARD NOLA made numerous references to that lease , but the purchase agreement said that to seller’s knowledge the lease was a true and correct copy.

5. Purchase agreement stated that the seller was making no representation or warranty as to the information or accuracy disclosed in the survey and reports and that the seller was transferring to purchaser the property without warranty except the title.

6. The purchase agreement also contained a clause (I call it the parol evidence clause), that said that the agreement was the sole and entire agreement of the parties and that there was no other agreement other than what was set forth in the written agreement. These kind of clauses are quite common in contracts and what they do is they set up a system whereby any negotiations prior to the signing of the agreement disappear unless they are contained within that agreement.

7. There were numerous representations and warranties in the purchase agreement, but ADA compliance was not one of them.

8. Cash sale document said that there were no statements or representations or declarations of any kind being made regarding the existence or nonexistence of any quality, characteristic or condition of the property being sold.

The above facts can be found at 2013 WL 486783, **1-4.

Based upon the above facts, the court reasoned as follows. First, nothing in the documents themselves imposed a contractual duty to indemnify. Id. at *2. Second, AARD NOLA was not a party to the lease containing the language that the building had to be an ADA compliance. Id. at *3. Third, even though AARD NOLA was not on that lease, the purchasing agreement could still have incorporated that lease but did not do so. Id. Fourth, while there may have been discussions about ADA compliance done the negotiations leading up to purchase, the parol evidence clause that was part of the purchase agreement made those negotiations disappear. Id. at *4. Fifth, the seller sold the property as is. Id. Sixth, there were numerous representations and warranties in the purchase agreement, but ADA compliance was not one of them. Id. Seventh, saying that a copy of the lease is true to the best of the seller’s knowledge, is not the same as incorporating that lease and agreeing to abide by its terms. Id. at *3. Finally, the court noted that any continuing obligation to ensure compliance with the ADA was assumed by Summit during the property purchase. Id.

Preventive tips: For anyone involved in commercial real estate, this case demonstrates that a close review of documents is always in order. It also demonstrates that you need to have specific references to ADA compliance in the purchase documents. It would also be a good idea if in the purchase documents one of the representations and warranties is ADA compliance. Finally, in addition to all that, it would be wise for the purchaser to have someone knowledgeable about the ADA architectural guidelines inspect the building before purchase goes through so that the purchaser can know exactly what the ADA risks are. Once those risks are known, the purchaser could either demand that the seller bring the building into compliance as a condition of the purchase going through, or that the seller knock off money off the sale price leaving it to the purchaser to remedy the ADA violations.