With respect to title II of the ADA, and title I for that matter as well, the only way you can get damages is to show intentional discrimination. With respect to suing a governmental entity for violations of title II, what exactly is it that you have to show to get damages? A recent Rehabilitation Act case out of the 11th circuit helps answer this question. In that case, a deaf couple were told by their physician to have the wife go to a hospital to be checked out. Unfortunately, the hospital they went to had a history of discriminating against deaf persons (it had previously settled a lawsuit against them regarding a patient who was deaf). The couple that arrived at the hospital communicated primarily with each other in sign language, the wife being fluent in ASL while the husband used a combination of signed English and ASL. The wife read at a fourth grade level and the husband read at a sixth grade level, neither is unusual for people who are deaf. The husband also had difficulty reading fine print because he suffered from a vision disorder called age macro degeneration. At any rate, thanks to the prior lawsuit, which the hospital settled, any personnel had the ability to order an interpreter. Instead, despite numerous requests from the husband and wife as well as from their daughter to get an interpreter (the facts are quite extreme), no such interpreter was provided and the wife wound up having gallbladder surgery. They then brought a lawsuit alleging violations of the Rehabilitation Act as well as a claim for negligent infliction of emotional distress. Interestingly enough, there was neither a claim for violating title II of the Americans with Disabilities Act nor was there a claim for an intentional tort.

The above facts be found at Liese v. Indian River County Hospital District, 701 F.3d 334 337- 341.

The 11th circuit was faced with two issues. First, what is the standard for showing intentional discrimination under § 504 of the Rehabilitation Act? Second, could the actions of medical personnel, including doctors and nurses employed by the hospital and involved in treating the plaintiff, be attributed to the hospital, and if so, what standard should be used?

In reversing the lower court with respect to their decision granting summary judgment to the hospital on the Rehabilitation Act claim, the 11th circuit reasoned as follows. First, the conduct of hospital personnel was such that the plaintiff was not given an equal opportunity to benefit from the hospital’s treatment. Id. at 344. In particular, the auxiliary aids that hospital personnel relied on to communicate the nature of the need for the surgery consisted of mouthing words for the plaintiffs to try and lip read, writing notes, and pantomiming. Id. at 343. Considering the disabilities of the plaintiffs, sufficient evidence existed to show that these limited auxillary aids were not effective and that additional aids were necessary. Id. The plaintiffs in this case did not excel in lip reading. Also, it is a myth that every deaf person excels in lip reading. Further, even the best lip reader, and I count myself in that category, can only get 50% of what is being said on the lips (I use my knowledge of the English language and top-of-the-line hearing aids to supply the rest).

Second, the court had to figure out that while discrimination occurred, was it intentional discrimination so that the plaintiff could obtain damages. The 11th circuit could have chosen from a couple of different options with regards to the standard for intentional discrimination. They could have either chosen deliberate indifference or discriminatory animus. For several reasons, the 11th circuit opted for deliberate indifference. First, the 11th circuit noted that all of the other circuits, except for one, addressing this issue reached the conclusion that to obtain compensatory damages under § 504 of the Rehabilitation Act, you have to show deliberate indifference. Id. at 345. Second, the court said that the statutory remedy for violating § 504 of the Rehabilitation Act is tied into title VI of the Civil Rights Act. Id. The 11th circuit follows up with a discussion of title VI of the Civil Rights Act and in the end reaches the conclusion that title VI links to title IX and that a United States Supreme Court case dealing with title IX setting forth a standard of deliberate indifference was the way to go because such a standard gives the requisite notice to recipients of federal funds by requiring the recipient to know of the discriminatory action and by requiring a deliberate refusal to act on that knowledge. Id. at 345-347. Third, the legislative history of the Rehabilitation Act reveals that Congress intended § 504 to combat intentional discrimination in the broad sense and not just discrimination based on discriminatory animus. Id. at 348. Fourth, a lower standard than deliberate indifference would fail to provide notice to Rehabilitation Act defendants while a higher standard, such as discriminatory animus, would go against congressional intent as it would mean that many cases of intentional discrimination would not have a remedy, which could not have been congressional intent. Id.

The other issue before the court was figuring out when the conduct of medical personnel could be attributed to the hospital. The court had two options. They could go with respondeat superior (a principle that says the master is liable for the negligent conduct of its servant), or they could adopt the approach of the United States Supreme Court in a title IX case, which also is the same case that set forth a deliberate indifference standard for intentional discrimination in title IX cases. Id. at 348-49. The 11th circuit opted for adopting the Supreme Court approach for deliberate indifference that is set forth in Gebser v. Lago Vista Independent School District , 524 U.S. 274 (1998). Under that case, deliberate indifference requires an official who at a minimum has the authority to address the alleged discrimination and to institute corrective measures on the organization’s behalf and who has actual knowledge of discrimination in the organization’s programs and fails adequately to respond. Liese 701 F.3d at 349 citing to Gebser. But that doesn’t answer the question, because we need to know who an official is. The court rejected the arguments that an official was everybody at the hospital, but it also rejected the argument that an official was only high level decision makers. Instead, the 11th circuit, said that the purpose of the official requirement was to ensure that an organization was only liable for the deliberate indifference of a person whose action could be fairly said to represent the actions of the organization. Id. at 350. Therefore, the 11th circuit said that an official was someone enjoying substantial supervisory authority within an organization’s chain of command so that when dealing with a particular matter, the official had complete discretion at a key decision point in the administrative process. Id. The 11th circuit believed that the key decision point language was significant because it reflected the reality that while many decisions are technically subject to review by higher authority, such a review is not part of the entity’s ordinary decision-making process. Id.

In short, for the plaintiff to survive summary judgment, they would have to show that at least one of the hospital’s doctors: knew that the hospital failed to provide the plaintiff with appropriate auxiliary aids necessary to ensure effective communication; had the authority to order that auxiliary aids be provided; and was deliberately indifferent to the hospital’s failure to provide the aid. Id. at 351. The 11th circuit found that the evidence was such that the conduct of one of the hospital’s doctors satisfied all three requirements. Id. In particular: 1) the plaintiff had told the doctor the day before surgery that her ability to read lips was limited; 2) the plaintiff testified that the doctor laughed at her and made exaggerated facial movements when asking whether she could really read lips (a deaf person would find such conduct terribly insulting); 3) the plaintiff had told the doctor at least twice that she needed an interpreter and the doctor ignored her requests both times; 4) when the plaintiff asked why she was having surgery on her stomach when she was experiencing chest pain, the doctor’s response was to write down, “remove it and you’ll feel better;” 5) on the morning of the surgery, the plaintiff once again asked the treating physician for an interpreter and also asked why she needed the surgery. Id. From this, the 11th circuit concluded that a reasonable juror could well find that the doctor knew he would not effectively communicating with the plaintiff and that the plaintiff needed more substantive interpretive aids to understand the nature of the first surgery. Id. Further, neither party disputed that the doctor had the authority to obtain an interpreter or some other equivalent for the plaintiff and that he had the authority to remedy the failure to give auxiliary aids and services to the plaintiff. Further, it was also undisputed that the doctor never made any attempt to obtain any such aids for the plaintiff. Id. In short, deliberate indifference was satisfied by this particular doctor because he had knowledge that the plaintiff required additional aids to effectively communicate with them and yet he deliberately refused to provide such auxiliary aids and services. Id. at 351-52.

As noted above, the 11th circuit mentions that all but one of their sisters circuits, have adopted the deliberate indifference standard. The one circuit that has not done so is the Fifth Circuit. It is simply very unclear as to what is going on in the Fifth Circuit. In a 2002 case, involving a plaintiff suing under both the Americans with Disabilities Act and the Rehabilitation Act who failed to pass a sobriety test because the police officers administered the test as if the person wasn’t deaf even though they knew that he was, the Fifth Circuit found intentional discrimination, adopted respondeat superior, and also said that there was no deliberate indifference standard applicable to public entities for purposes of the ADA or the Rehabilitation Act. Delano-Pyle v. Victoria County Texas, 302 F.3d 567, 574-75 (5th Cir. 2002). Thus, for intentional discrimination to exist under this case, it appears to be a far lower standard than deliberate indifference.

But that is not the end of the story in the Fifth Circuit, or at least with respect to courts that feed into the Fifth Circuit. In a case involving violations of the ADA and § 504 of the Rehabilitation Act in the educational context, the Western District of Texas said that acts creating an inference of professional bad faith or gross misjudgment were necessary to find that intentional discrimination occurred. Rhobabeck v. Seguin Independent School District 881 F. Supp. 2d 770, 777 (W.D. Tex. 2012). The Western District of Texas adopted the standard, which they borrowed from cases involving the Individuals with Disabilities in Education Act, even though the particular case before it did not involve the Individuals with Disabilities in Education Act. Id. Therefore, in the Fifth Circuit anyway, you may have different standards or recovering compensatory damages under the ADA and § 504 of the Rehabilitation Act depending upon whether the discrimination occurs in the educational context or not. In the educational context, you may have to show professional bad faith or gross misjudgment. In any other context in the Fifth Circuit, it may be possible to meet a far lower standard to show intentional discrimination as well as used traditional notions of respondeat superior to impute liability onto the entity itself.

Thoughts: Sine title II of the ADA’s remedies is tied into the Rehabilitation Act (See 42 U.S.C. § 12133), the 11th circuit case is well worth referring to with respect to the standard for obtaining compensatory damages under title II of the ADA. If you are in a jurisdiction governed by the fifth circuit, then your world is much more uncertain. The Fifth Circuit seems to be out there by themselves with respect to a fairly low standard for what intentional discrimination is. Also, the adoption of respondeat superior is a bit unusual as well. To make things even more confusing, you have that case out of the Western District of Texas saying in the educational context, that in order to obtain compensatory damages, you need to show professional bad faith or gross negligence. It would seem to me in light of the way most circuits have gone and in light of the Western District of Texas decision, that if you are in the Fifth Circuit, it may be well worth taking it up to the Fifth Circuit in order to get clarity on the issue. It is unclear as to whether the Fifth Circuit in light of all the precedent that has occurred since their 2002 decision, would stick with a fairly low standard for intentional discrimination and with the concept of respondeat superior. With respect to the W.D. of Texas’s view of what deliberate indifference is, that standard may indeed be suspect. It seems from reading the case that both the plaintiff and the defendant somehow became convinced that gross misjudgment and bad faith was indeed the standard and the court went along with that. See Rhodabeck 881 F. Supp. 2d at 777-78.

Practically speaking, we can take from all of this a couple of things. First, if you are in the Fifth Circuit or in one of the courts that feed into the Fifth Circuit, and you are involved in a case seeking damages against an entity subject to title II of the ADA, it might make sense to see if there is a way you can get the possible standards clarified as early as possible so that everyone knows how to proceed with their proof. The other thing to take away from this is the importance of training. Training needs to be more than de minimus and needs to be given by qualified people.

Before we get started on the blog entry, I want to thank everyone for their readership. This week, we should surpass the 1000 visitor mark. Also, we have now surpassed the 10,000 view mark. Thanks!!!!!!!!!!!

This blog entry explores whether title II of the ADA applies to employment issues, and how do you go about figuring out what is an essential eligibility requirement of a program.

With the exception of Bledsoe v. Palm Beach Soil and Water Conservation District, 942 F. Supp. 1439 (S.D. Fla. 1996) which was reversed on appeal at 133 F.3d 816 (11th Cir. 1998), most if not all of the cases that have considered the question of whether title II can be used for employment disputes have found that title II cannot be used in that way. Mary Jo C. v. New York State and Local Retirement System,_F.3d_, 2013 WL 322879 (2d Cir. January 29, 2013), is a very recent case that explains why using title II with respect to employment matters is just not finding traction. In holding that title II does not apply to employment matters, the Second Circuit reasoned as follows. First, the structure of the ADA is such that Congress could not have intended to extend title II to employment discrimination claims, at least those covered by Title I. Id. at *19. That is, Title I of the ADA deals with employment discrimination while title II of the ADA deals with the services, programs, or activities of a public entity thereby suggesting that Congress intended to deal with very different subjects in each title. Id.

Second, title I and title II of the ADA have different definitions of what it means to be a qualified individual. Id. at *20. That is, title I focuses on essential functions of the job while title II focuses on essential eligibility requirements for the receipt of services or the participation in programs or activities provided a public entity. Id.

Third, just who is a covered entity differs between title I and title II of the ADA. That is, title I applies to an employer while title II applies to public entities. Id.

Fourth, Congress gave the EEOC the right to implement title I of the ADA, while it gave the Department of Justice the right to implement title II of the ADA. Id.

Fifth, Title I has caps on damages whereas title II does not. Id. Also, title I requires exhaustion of administrative remedies whereas title II does not. Id.

Finally, to allow title II to be used for employment matters, would render title one superfluous in the context of suing public employers employing more than 15 people. Id. at *21.

It is hard for me to believe that Mary Jo C. will not prove to be very persuasive with respect to not allowing title II to be used for employment purposes, at least with respect to matters otherwise governed by title I of the ADA, as the Second Circuit’s reasoning seems quite sound.

That said, the key question is whether a matter would otherwise be governed by title I of the ADA. If the answer is no, a title II claim may still survive. What might be such a title II claim? It turns out that this very same case may have such a claim. Mary Jo C. involved the situation where the plaintiff was a librarian and was terminated because of behavior related to her chronic mental illness, which she had had for years. The plaintiff would have been eligible for disability retirement benefits under New York law had she filed an application with the New York State local in retirement system within three months of her last day of employment. However, she failed to do so because she could not recognize the filing deadline because of her mental illness. During the three month period following her termination, the plaintiff’s brother spoke to a New York State and Local Retirement System official who informed him that the library could file an application on the plaintiff’s behalf. The plaintiff’s brother asked the library to do so but the library denied the request. Then, the plaintiff’s brother asked the library to reclassify the plaintiff’s termination to be an unpaid leave of absence so that the time would be extended for the filing of benefits, but the library refused to do that as well. Once the plaintiff’s condition improved, she applied for disability retirement benefits, but the application was denied because it was not filed within three months of the plaintiff’s last day of work. She then requested that the New York State and Local Retirement System waive the filing deadline as a reasonable accommodation under the ADA, but the New York State and Local Retirement System did not respond. Once the plaintiff’s brother received notice that the plaintiff could appeal the denial of disability retirement benefits application, he did so but such appeal was denied by the hearing officer on the grounds that state law prohibited from waiving the filing deadline for any reason. The plaintiff then brought suit alleging violations of the ADA.

The above facts can be found at Id. at ** 1-3.

In concluding that the District Court erred when it stated in dismissing plaintiff’s claim under title II that it was not a reasonable accommodation to require state defendant to violate state law, the Second Circuit reasoned as follows. First, title II of the ADA demands that a public entity make reasonable modifications in policies, practices, or procedures to avoid discrimination on the basis of disability unless the public entity can demonstrate that making the modification fundamentally alters the nature of the service, program, or activity. Id. at *5.

Second, the court looked at the definition of a qualified individual under title II of the ADA, which is an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, removal of architectural communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities that the public entity provides. Id. at *8. By defining qualified in that way, that means the ADA distinguishes between two sets of requirements; those of which are essential and those which are not. Id.

Third, when you take the fundamental alteration and essential eligibility requirements language together, the conclusion reached is that essential eligibility requirements unlike rules, policies, and practices are not subject to reasonable modification or waiver. Id.

Fourth, since essential eligibility requirements is the phrase that is used, that is a more narrow phrase than eligibility requirements. Id. at *9. Thus, the question becomes how do you determine what is an essential eligibility requirement. The Second Circuit suggests that whether an eligibility requirement is essential is to be determined by consulting the importance of the requirements to the program in question. Id. Also, the court said, drawing upon regulations issued by the Department of Justice, said that essential eligibility requirements would be those that if absent from the program would fundamentally alter the nature the program (while the court did not cite to Easley v. Snider, 36 F.3d 297 (3d Cir. 1994), for this proposition, that case is an excellent one for seeing how an eligibility requirement if absent would fundamentally alter the nature of the program)). Therefore, from this, the Second Circuit concludes that the ADA allows the overruling of minor eligibility requirements, even though set by statute, where those requirements are not necessary to prevent a fundamental alteration of the program’s nature. Mary Jo C. 2013 WL 322879 at *9. In other words, the Second Circuit said, drawing upon PGA Tour v. Martin, that the rules being the rules does not obviate the need to figure out what are the essential eligibility requirements. Id. at *10.

Fifth, the court said that to read essential eligibility requirements as inclusive of all formal legal eligibility requirements would run counter to the ADA’s broad remedial purposes by allowing the State to insist that whatever legal requirements they said another subject to reasonable modifications under title II of the ADA. Id. at *11. Adopting such a view would mean that the class of rules, policies or practices subject to reasonable modification under title II would be extraordinarily small and that nearly all eligibility requirements for the receipt of public services would be essential eligibility requirements. Id.

Sixth, the Second Circuit noted that they New York State and Local Retirement System already waives or extends the filing deadline for disability retirement benefits for certain classes of individuals, such as a person on unpaid medical leave or a person with a qualifying World Trade Center condition, and the fact that the deadline is waived in both of those circumstances strongly suggest that the filing deadline is not essential. Id.

Seventh, since the New York State and local retirement system argued that requiring the states to violate state law was not a reasonable accommodation, the Second Circuit had to visit the question of whether the ADA would, when necessary, would preempt state law. Nothing in the ADA suggests that field preemption, an intent to preempt the field entirely in a certain area, is present, however, conflict preemption is present here. Id. at **12-13. The Second Circuit found nothing in the phrase, “reasonable modification” to suggest that Congress could have intended excluding modifications that would violate or waive mandatory state statutes in some circumstances Id. at *13 (those circumstances being where you have a person with a disability and modifying or waiving the requirement would not fundamentally alter the nature of the program, often referred to as, “otherwise qualified” in the vernacular of ADA). The court goes on to say that Congress clearly meant title II to require the preemption of inconsistent state law when necessary to effectuate the required reasonable modification. Id. at *14. If all state laws were indeed insulated from title II’s reasonable modification requirement solely because they were state laws, then state laws would be an obstacle to the accomplishment and execution of the full purposes and objectives of Congress in enacting title II, which is the very reason conflict preemption exists as a concept in the first place. See id.. In other words, the reasonable modification requirements of title II of the ADA does require the preemption of inconsistent state laws when necessary to effectuate title II’s reasonable modification provision. Id. Therefore, a discriminatory state law is not a defense to liability under federal law, rather, it is a source of liability under federal law. Id.

The meaning of it all: First, it seems quite clear that a plaintiff is not going to be able to use title II of the ADA for the typical employment discrimination claim that would otherwise be filed under title I of the ADA. Second, there may well be some claims arising in the employment context of working for a governmental entity that may have an independent existence under title II of the ADA. Third, the rules are the rules is not going to be a defense. That is, a state statute, rule, or practice may be overridden as being in conflict with the ADA where you have an otherwise qualified individual with a disability (a person with a disability who with or without reasonable modifications meets the essential eligibility requirements of the program or activity), involved. Finally, this decision gives guidance on how to go about determining what an essential eligibility requirement is. That is, an eligibility requirement is essential if it being absent from the program would fundamentally alter the nature of the program. As mentioned above, to better understand what might be an essential eligibility requirements, the reader would do well to look at Easley v. Snider, also mentioned above.

For years (every edition of my book starting with the very first edition published in 2000 has had a chapter on the ADA and sports), I’ve written about how the ADA applies to sports. The United States Department of Education Office of Civil Rights has just issued a guidance dealing with their section 504 regulations and how it applies to sporting opportunities for students with disabilities. The specific details mentioned in the guidance focus on elementary and secondary schools, but the Office of Civil Rights also states that students with disabilities at the postsecondary level must also be provided an equal opportunity to participate in sports.

Here are some of the salient points from the Office of Civil Rights guidance:

1. The school district is required to provide a qualified student with a disability an opportunity to benefit from their programming equal to that of students without disabilities. Just who is a person with a disability? A person with a disability is defined in the same way as it is defined by the ADA: A person who has a physical or mental impairment that substantially limits one or more major life activities; has a record of such an impairment; or is regarded as having such an impairment. Nothing new there. Just who is a qualified student with a disability? The Office of Civil Rights says a qualified person with a disability is a person: of an age during which person without disabilities are provided such services; of an age during which it is mandatory under state law to provide such services to a person with a disability; or are a person to whom the state is required to provide a free appropriate public education under the Individuals with Disabilities Education Act. It is easy to say, as courts often do, that since the ADA is based on 504 and amendments to the ADA were meant to apply to 504, that the two laws should be interpreted the same way. However, there are variations between the two laws that just might take you to different places. For example, § 504 when it comes to causation refers to “solely by reason of disability,” (29 U.S.C. § 794(a)),as the standard. Whereas, depending upon the title of the ADA involved, you may see, “on the basis of” (42 U.S.C. § 12112(a) (title I); 42 U.S.C. § 12184(a) (title III)), or “by reason of,” (42 U.S.C. § 12132 (title II)), or even “because,” (42 U.S.C. § 12203(a) (retaliation)), but you never see the word, “solely.” Also, OCR is using the term qualified in a different way than the term is used in the ADA. Under the ADA, with respect to title II (the title that applies to accessing governmental services and activities and programs), a person is otherwise qualified if he can with or without reasonable modifications to rules, policies, or practices; the removal of architectural, communication, or transportation barriers; or the provision of auxiliary aids and services, meet the essential eligibility requirements for receiving services or participating in programs or activities provided by a public entity. 28 C.F.R. § 35.104. On its face, this means that the ADA has a higher standard for whether a person is qualified than what is being offered by the Office of Civil Rights with respect to their interpretation of section 504 of the Rehabilitation Act.

2. OCR notes that United States Department of Education section 504 regulations also prohibit the following:

A. denying a qualified student with a disability the opportunity to participate in or benefit from an aid, benefit, or service;
B. Affording a qualified student with a disability an opportunity to participate in or benefit from an aid, benefit, or service that is not equal to that afforded others;
C. Providing a qualified student with a disability with an aid, benefit, or service that is not as effective as what is provided to others and does not afford the student with an equal opportunity to obtain the same result, gain the same benefit, or reach the same level of achievement in the most integrated setting appropriate to the student’s needs;
D. Providing different or separate aids, benefit, or services to students with disabilities to any class of students with disabilities unless such action is necessary to provide a qualified student with a disability with aid, benefits, or services that are as effective as those provided to others; and
E. otherwise limiting a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving an aid, benefit, or service.
See 34 C.F.R. § 104.4(b)(1)(i)-(iv), (vii),(2),(3)

These regulations by themselves aren’t particularly problematic. The only issue being is that qualified individual is being used differently than what it is under the ADA. That is, on its face, OCR appears to be saying that whether a student is otherwise qualified is not an issue with respect to whether that student can participate in athletic endeavors. I find that very hard to believe and perhaps OCR should consider clarifying this. You wonder if the omission was inadvertent because even OCR refers to essential eligibility requirements at times in the guidance. Referring to essential eligibility requirements necessarily means taking you into whether a person is otherwise qualified.

3. In their guidance, OCR says that a school district’s legal obligation to comply with section 504 and the regulations supersedes any rule of any association, organization, club, or league that would render the student ineligible to participate, or limit the student’s eligibility to participate in any aid, benefit, or service on the basis of disability. In fact, OCR says that it would violate a school district’s obligation under section 504 to provide significant assistance to any such organization that discriminates on the basis of disability in providing any aid, benefit, or service to the school district’s students. See 34 C.F.R. § 104.4(b)(1). Nothing new here either as the ADA also prohibits a governmental entity from contracting with entities that discriminate on the basis of disability. See 28 C.F.R. § 35.130(b)(3).

4. In their guidance, OCR says that the school district may not operate its program activities on the basis of generalizations, assumptions, prejudices, or stereotypes about disability generally, or specific disabilities in particular. They also cannot assume what a student with a disability is capable of with respect to athletic competition. Nothing new here. Both the Rehabilitation Act and the ADA require an individual determination about the person with disability abilities. See PGA Tour Inc. v. Martin 532 U.S. 661 (2001) (ADA case), School Board of Nassau County, Florida v. Arline, 480 U.S. 273 (1987) (Rehabilitation Act case).

Let’s turn to the examples given by OCR:

1. A student with a learning disability in middle school participates in her school’s lacrosse club. As she entered the ninth grade in high school, she tries out and is selected as a member of the high school’s lacrosse team. The coach is aware of the student’s learning disability and believes that all students with the student’s particular learning disability are unable to play successfully in a game given the time constraints and pressures of an actual game. Based on that, the coach decides to never to play the student during games. In the coach’s opinion, participating fully in all the team’s practice sessions is good enough. OCR said that they would find the coach’s decision in violation of section 504. The problem the coach ran into is that he made an assumption about learning disabilities in general. There is no reason why he could not have simulated a real game experience during practice to see how the person with a learning disability would survive in such a situation. If after such a simulation, the coach had reservations about how that person would survive in a real game situation, the coach would certainly be within his rights with respect to playing time. After all, the coach is the one that gets to decide playing time. What the coach should have done, is test whether his assumption with respect to that individual player was true.

OCR goes on to talk about ensuring equal opportunity for participation. Ensuring equal opportunity purchase for participation means making reasonable modifications and providing those aids and services necessary to ensure an equal opportunity to participate, unless the school district can show that doing so results in a fundamental alteration to its program. A school district must also afford qualified students with disabilities an equal opportunity for participation in extracurricular athletics in an integrated manner to the maximum extent appropriate to the needs of the student. Again, nothing new here. The disability discrimination laws are all about integrating persons with disabilities into the mainstream.

What is new is what follows at the end of that discussion. First, OCR states that if a reasonable modification is legally required, the school district must engage in an individualized inquiry to determine whether the modification is necessary. A modification will be necessary unless it would result in a fundamental alteration of the extracurricular athletic activity. What is a fundamental alteration? A fundamental alteration either alters an essential aspect of the activity or game so that it would be unacceptable even if it affected all competitors equally or the modification only has a peripheral impact on the activity or game itself but could give the particular player with a disability an unfair advantage over others and therefore fundamentally alter the character of the competition.

Where is this stuff coming from? After all, title II, 42 U.S.C. § 12201(f), and title III, 42 U.S.C. § 12182(2)(A)(ii), of the ADA do not speak of unfair advantage at all. Rather, they refer to fundamental alteration. So where is this coming from? For example, in my writings over the years, I have used the starting line analogy with respect to a person with a disability and reasonable accommodations. Such an analogy presumes that a person with a disability is getting to the same starting line as others and not being given an unfair advantage. That said, the particular phrasing that OCR is relying on is coming from PGA Tour v. Martin, 532 U.S. 661 (2001). In particular, the Supreme Court said in its majority opinion that to perceive that Martin using a golf cart would give him a competitive advantage was a gross distortion of reality considering his disability. Id. at 672. Later on, when discussing fundamental alteration, the court says that a fundamental alteration of the PGA Tour’s golf tournaments could occur in two different ways. First, it could change an essential aspect of the game of golf so that it would be unacceptable even if it affected all competitors equally (for example, changing the diameter of the hole from 3 to 6 inches would be such a modification). Id. at 682. Second, a less significant change having only a peripheral impact on the game itself might nevertheless give the disabled player an advantage over others and for that reason fundamentally alter the character of the competition. Id. at 683. In the Martin situation, the Supreme Court was not persuaded that a waiver of the walking rule would result in a fundamental alteration in either sense. Id.

However,the Martin formulation has its own problems. First, in the context of sports what would be a fundamental alteration of the game so that it would be unacceptable even if it affected all competitors equally? I tend to stay away from law review articles as they tend to be very theoretical and not practical. However, sometimes you do see a law review article that can be very helpful in dealing with practical situations. In The Prohibition of Prosthetic Limbs in American Sports: the Issues and the Role of the Americans with Disabilities Act, 19 Marquette Sports Law Review 613, Christopher Bidlack, in a student comment, suggests that fundamental alteration in sports occurs when if the requested change damages the underlying nature of the game or turns the game into an entirely new game. Christopher Bidlack, Student Author, The Prohibition of Prosthetic Limbs in American Sports: the Issues and the Role of the Americans with Disabilities Act, 19 Marquette Sports Law Review 613, 632 (Spring 2009). It is a formulation that has a great deal of appeal to it.

How might you be creating a new game with new rules? In the third edition of my book, I discussed extensively a case involving a request by a plaintiff to establish a new game with new rules. In that particular case, an elite wheelchair racquetball athlete wanted a racquetball tournament to be set up in such a way so that he could play against athletes who were not in wheelchairs. In particular, he wanted to be able to hit the ball on two bounces, which is permissible in wheelchair racquetball, but wanted the athlete without a disability to only have to hit the ball on one bounce. The Massachusetts Supreme Court said that such a request created a new game with new strategies and new rules and therefore, the club would not be required by the ADA to set up a league that would function on these rules. See Kuketz v. Petronelli 443 Mass. 355, 364 (2005); See also William D. Goren, Understanding the Americans with Disabilities Act, third edition at pp. 114-115 (American Bar Association 2010). It should be noted that Kuketz explicitly said that it was not deciding whether the plaintiff’s requests would result in an unfair advantage. Kuketz 443 Mass. at 365 n. 30.

Here is the problem, as I mentioned in the third edition of my book, unfair advantage arguments can potentially involve very complicated medical testimony and an assessment by a judge, who most probably does not have a disability, as to whether the athlete with a disability has an advantage over the athlete without a disability. Further, I submit that in most cases the question of unfair advantage is completely unnecessary as most cases could be decided based upon whether the requested change would: damage the underlying nature of the game; turn the game into an entirely new game; or result in a direct threat. That is, when it comes to sports, the school district would be under no obligation to allow a student with a disability to play in the game if doing so would result in a direct threat to himself or others. See generally Chevron v. Echazabal 536 U.S. 73 (2002).

2. The second example referred to by OCR involves a student with a hearing impairment. Interestingly, we don’t know from the example the extent of the hearing impairment. At any rate, he is interested in the 100 and 200 m dashes and during tryouts for the track team, the start of each race was signaled by a coach’s assistant using a visual cue, and the student’s speed was fast enough to qualify him for the team in those events. The coach continued to use those accommodations but the district, despite other districts allowing such cues, nevertheless refuses the student’s request because the district is concerned that the use of a visual cue may distract other runners and trigger complaints once the track season begins. The coach then tells the student that he can practice with the team but will not be allowed to participate in meets. OCR says that such a situation violates section 504 because it neither alters an essential aspect of the activity nor gives the student an unfair advantage. Using the formulation discussed above it certainly does not damage the underlying nature of the game nor, as was the case in Kuketz turn the game into an entirely new game. Nor is there any question of direct threat.

3. High school student born with only one arm wants to participate in the school’s swim team. The student has the necessary swimming ability and wants to compete. The school district has a “two hand touch” finish rule for all swimmers when finishing the race. Therefore, she petitions to have the two hand touch rule waived and be allowed to finish with a, “one hand touch.” The school district refuses the request because it determines that permitting the student to finish with a “one hand touch” would give the student an unfair advantage over other swimmers. Here, OCR says that if the school district could show that she would gain an unfair advantage over others, then the school district would be justified in not waiving the rule. OCR does say that the school district would still be required to determine if other modifications would be available short of fundamentally altering the nature an activity (the ADA would say the same thing).

Here is where unfair advantage becomes terribly problematic in its application. When would the person really be getting an unfair advantage? While it is true, that such a person would be allowed a one hand touch and everybody else would have to use a two hand touch, that also presumes that everything else was equal. That is, the mechanics of swimming are such that it is hard for me to believe that a person with one hand would be at the same starting line as an athlete with two hands in the first place. Accordingly, it could be argued that even a one hand touch rule would not give the student an unfair advantage. Of course, putting this all together is going to mean extensive medical testimony at great costs to all sides.

How would this case play out under the formulation discussed above that ignores unfair advantage, which I set out above? First, does the requested change damage the underlying nature of the game? Probably not. Second, does it turn the game into an entirely new game? Also, probably not. Is the person a direct threat? Probably not. Thus, under the methodology I am proposing the proposed accommodation would be allowed. The problem is that athletic competition presumes everyone is at the same starting line and that whoever is better does so without any inherent unfair advantage. Giving an athlete and unfair advantage violates a sense of fair play. I get that but how do you figure out unfair advantage? It can get extremely complicated.

4. Elementary school student with diabetes is not eligible for services under the Individuals with Disabilities in Education Act. However, as is the case with many such students, that person is eligible for services under section 504 of the Rehabilitation Act (the scope of coverage between the two laws are very different). The student receives assistance with glucose testing and insulin the administration from trained school personnel with services provided under section 504. That student wants to participate in a school sponsored gymnastic club that meets after school with the only eligibility requirement that the student must attend the school. However, school personnel reject her request on the grounds that the gymnastic club is an extracurricular activity. OCR is not buying it for two reasons. First, the school district has to provide that service during the day under section 504. Second, there would not be a fundamental alteration of the district education program since they have to do it in any event, should the student be eligible for services under the Individuals with Disabilities in Education Act.

I don’t see any issues here. On a preventive level, if a student has an IEP or a 504 plan and you know that the student wants to participate in sports, it would behoove the parents to insist that the IEP or 504 plan contain language that the accommodations would be made while participating in the sports.

Finally, OCR goes on to talk about offering separate or different athletic opportunities for students with disabilities. The whole idea of the ADA and section 504 is integration of persons with disabilities. However, there may be situations where either allowing a student with a disability to participate in athletic event would result in a fundamental alteration as discussed above or would result in a situation where the student is a direct threat to himself or herself or others. In such a situation, it is possible that by setting up a separate system for students with disabilities, the fundamental alteration problem and the direct threat problem would disappear. OCR says that when the interests and abilities of students with disabilities cannot be as fully and effectively met by the school district’s existing extracurricular athletic programs, the school district should create additional opportunities for those students with disabilities. In those situations, OCR says that the school district should offer students with disabilities opportunities for athletic activities separate or different from those offered to students without disabilities and that those opportunity should be supported equally by the school district. When fielding a team is not possible, the school district could also develop a district wide regional team for students with disabilities as opposed to an individual school-based team. They could also mix male and female students with disabilities on a team together, or they can offer unified sports teams in which students with disabilities participate along with students without disabilities (the latter though could run into problems with fundamental alteration and direct threat).

Here is the issue. This particular section of the OCR guidance turns section 504 into title IX for persons with disabilities. Title IX has been absolutely critical in giving women the opportunity to participate in athletics and perhaps OCR is thinking that section 504 regulations can be used in the same way. On a policy level, that has much to commend to it. That said, a school district not wanting to create separate sports programming might argue that while the ADA and section 504 are all about equal opportunity, that is far different than having to create additional opportunities. For example, an employer does not have to create light-duty positions. Foreman v. Babcock & Wilcox Co. 117 F. 3d 800, 809 (5th Cir. 1997). Another example, a state without a community integration program in place may not have to create one. See Olmstead v. L.C. By Zimring 527 U.S. 581, 612 (J. Kennedy, concurring).

So where does this leave us?

1. OCR needs to clarify how it deals with the term “qualified individual.” There is a huge difference on its face between OCR referencing, “qualified individual” and the way ADA refers to otherwise qualified. It would seem that the omission is unintentional because a reading of the OCR guidance suggests that “otherwise qualified,” in the ADA sense is still in play. See for example, “eligibility requirement” discussion in OCR guidance with respect to Example #3. Nevertheless, it is literally missing from the guidance and, as discussed above, could present problems later.

2. Unfair advantage is now enshrined as a concept. As discussed above, that may present very unique problems of proof, unnecessarily complicate litigation, and certainly drive up the costs of litigation. Instead of enshrining unfair advantage, perhaps the better approach is to offer the alternative that I suggest in this blog entry instead.

3. OCR is now demanding opportunities be created for students with disabilities in terms of participating in sports even if the school district has no such programming in place. It is an open question as to whether the ADA and section 504 can be used in that way.

Over the years, it isn’t often that I see a missed opportunity (see below for a further discussion of whether an opportunity was really missed here), by a defendant in an ADA case to make a plaintiff’s litigation more difficult when the law allows them to do so. It is possible (though a for sure determination of that would depend upon further research and application of the principles that we will discuss below), that Scherr v. Marriott International, Inc., may or may not be such a case. In that case, the plaintiff, 76 years old at the time of the accident and suffering from a neurodegenerative disorder, stayed at a Marriott hotel, a Courtyard, in Overland Park, Kansas. The hotel had recently undergone renovations, and the hotel had installed spring-hinged door closers on the bathroom doors of some of its rooms, including the ADA compliant room assigned to the plaintiff. The spring hinge closed the door automatically when a person let go of the door. While attempting to exit the bathroom door, which she had pushed open and then released in order to use her walker, the door quickly slammed shut on her, striking her and knocking her down resulting in surgery for a broken wrist and an injured hip. She then sued Marriott for personal injuries, which settled. Just prior to settling the personal injury suit, she brought suit under title III of the ADA seeking injunctive relief against the Marriott that she stayed at as well as many other Courtyards by Marriott for using the spring-hinge door closers that resulted in her injury.

You can find the facts of this case referenced above at Scherr v. Marriott International, Inc._F.3d_, 2013 WL 57857 (7th Cir. January 7, 2013).

Also, with respect to the many different Marriott’s that she brought suit against, there was a standing issue that the court discussed (the court holding that she had standing with respect to the Overland Park, Marriott but not with respect to the other Marriott that she sued). However, that standing issue is not important for purposes of this blog entry.

Whenever a title II or title III entity engages in new construction or renovations, that construction or renovation must be done in a way consistent with the guidelines put forth by the Architectural and Transportation Barriers Compliance Board (the guidelines being referred to as the Americans With Disabilities Act Accessibility Guidelines (ADAAG)). The problem is is that the guidelines changed over the years with respect to spring hinged doors. For example, the 1991 standards did not have a separate closing speed specified for spring hinges and did not discriminate between spring hinges and other types of door closers, such as hydraulic door closers. Id. at *6. However, the 2010 standards do in fact set out separate closing speeds for spring hinges and door closers. Id. To the court’s mind, the issue came down to whether the spring hinge should be evaluated according to the spring hinge standard or according to the door closer standard. The plaintiff argued that since the spring hinge was acting as a door closer, the proper standard was the door closer standard, which insisted upon a slower closing speed than the spring hinge standard. Id. at *7. However, the court decided that a plain reading of these guidelines was such that spring hinges provision was the standard and that Marriott International complied with that standard. Id. Therefore, the plaintiff had no case for a title III violation against Marriott because Marriott International had complied with the standard. Id.

The possible (see below), missed opportunity for the defense was this. In Scherr, everyone just seemed to assume that the regulation created a private remedy. That is, the argument was not over whether the plaintiff could sue for a violation of the ADAAG, but rather what was the meaning of various provisions of the ADAAG. However, Supreme Court precedent and case law is such that the defense may not necessarily have had to concede the point. That is, a regulation may be a perfectly permissible regulation. In other words, it may be a regulation that carries out the intent of the statute and has been promulgated after going through the rulemaking process. However, that is simply not the same thing as saying that violation of the regulation gives an individual plaintiff a private remedy for the violation of that provision. To determine whether a private remedy exists, a court must look to the statute itself to figure out whether the statute is laid out in such a way so as to evidence Congress’s intent to create a private remedy for that regulation.See Alexander v. Sandoval 532 U.S. 275, 286-287 (2001). In other words, only those regulations effectuating the statute’s clear prohibition or requirements are the ones enforceable through a private remedy and those regulations that do not encapsulate those statutory rights are not privately enforceable. Lonberg v. City of Riverside 571 F.3d 846, 851 (9th Cir. 2009). Therefore, by way of example, a Western District of Washington case held that no private remedy existed with respect to a paratransit service violating several regulations with respect to passenger safety because the specific regulations had nothing to do with whether the defendant provided an appropriate level of service, the topic of the statute at issue. Donnelly v. Intercity Transit 2012 WL 5567981 (W.D. Wash. November 15, 2012). In another case, the Ninth Circuit held that no private remedy existed with respect to the City of Riverside’s failure to develop a transition plan because the statute from which the transition plan regulations derived said nothing about a public entity’s obligation to draft a detailed plan and schedule for achieving meaningful access. Lonberg 571 F.3d at 851-852.

But was the opportunity really missed? With respect to a title III matter, which is the situation in Scherr,the answer could well be no. Under the discussion above, we first have to look at a statute and then compare that statute to the regulations to see if a private remedy exists. With respect to title II of the ADA, the Architectural and Transportation Barriers Compliance Board is specifically mentioned mentioned at 42 U.S.C. §§ 12204, and with respect to title III of the ADA, the Architectural and Transportation Barriers Compliance Board is mentioned at 42 U.S.C. §12186(c). Accordingly, since the statutory scheme is set up the way it is, a strong argument can be made that with respect to facilities under Title II or III of the ADA, a private remedy does exist should the architectural guidelines be violated. However, once you move away from the situation where the architectural guidelines come into play, you may get a different answer as was the case in Donnelly and Lonberg mentioned above.

Putting this into plain english: This stuff can get technical so let’s see if we can break it down. First, in many cases, it really isn’t necessary to rely on the regulations as the basis for arguing that the Americans with Disabilities Act has been violated. The statutes are very comprehensive and oftentimes the regulations are narrowly focused on interpreting the various provisions of the statute.

Second, if you are plaintiff, and you allege that the Americans with Disabilities Act was violated because of specific regulations being violated, then you have to be prepared for the defendant to argue that no private remedy exists. That is, the regulation may or may not be perfectly valid (it is a basic principle of administrative law that regulations that have gone through the rulemaking process and which contain regulations going no further than to carry out the intent of the legislature are going to be valid), but that is quite a different question than whether an individual can use those regulations as a basis for saying that, for example, the ADA has been violated and a private remedy is allowed for enforcing that regulation.

Third, on the defense side, if you do see a complaint saying that certain specific regulations have been violated thereby liability should be awarded to the plaintiff, you (the defense), are going to have to study the statute at issue and then see just how closely the particular regulations implement that statute. If the connection is not intuitive, you (the defense), have an argument than that while the statute may be perfectly valid, that is not the same thing as saying a private remedy for that statute exists.

Fourth, the key word is, “private remedy.” Since that is the term being used, this kind of defense is not going to work should the regulatory body itself sue on its own behalf for violation of the regulations that it promulgated. In that case, then it would be a matter of saying that the regulation, despite having gone through rulemaking, is invalid (a very difficult thing to pull off because you have to show that the regulation is arbitrary).

Fifth, study the statutes and regulations carefully as all this may play out differently depending upon whether you are talking about violating architectural guidelines or violating something else.

Finally, another lesson learned from all of this, one that applies regardless of whether a private remedy exists, is that everyone needs to follow the regulatory process very closely. As mentioned above, rulemaking is a process. For those not familiar, the process generally includes proposing the regulation, receiving comments on the regulations, and then responding and finalizing the regulations. At the commenting stage, regulatory bodies are truly quite interested in what interested parties have to say. After all, it simply doesn’t do the regulatory body any good to issue regulations that they know are going to be unworkable. Therefore, it is at that stage that people should jump in and explain the issues. For example, if a regulation does have an inconsistency to it or an ambiguity to it, as was the case in Scherr, it is in the commenting period stage that is the time to catch that and notify the regulatory body of such.

In a prior blog entry, I talked about a case out of Michigan whereby the District Court granted summary judgment to the County when the county refused to hire a person who wanted to be a lifeguard because he was deaf. Well now the Sixth Circuit has weighed in and has reversed the district court’s award of summary judgment.

In doing so, the Sixth Circuit Court of Appeals reasoned as follows. First, the ADA mandates an individualized inquiry for determining whether a person is qualified for a particular position. Keith v. County of Oakland_ F.3d _, 2013 WL 115647, *5. In this case, the county may the individualized inquiries all the way through the training process and even proposed certain accommodations that might work upon hiring of him as a lifeguard. Id. at **1-3. However, the physician who did the medical exam jumped to conclusions about whether a deaf person could be a lifeguard and never pursued the matter further. Id. at 1-2. Also, the consultants that worked with the county also jumped to conclusions about whether the plaintiff could perform the essential functions of the job as well and also set a 100% effective rate for the accommodations as the standard. Id. at **2-3. The court said that requiring a 100% effective rate was not right because it would be holding persons with disabilities to a higher standard than persons without disabilities as no lifeguards are ever held to that standard. Id. at *6. Finally, the court believed that it just didn’t make any sense for an employer to make an individualized inquiry only to defer to the opinions and advice of those who have not. Id. After all, an employer cannot escape liability under the ADA by mechanically relying on the medical opinions and advice of others. Id.

Second, whether a job function is essential is a question of fact typically not suitable for resolution on a motion for summary judgment. Id. at *7. The court went on to say that the plaintiff had raised several points to establish that a question of fact existed. In particular, the court said that the essential communication duties of a lifeguard (protecting and rescuing swimmers in distress, enforcing pool safety rules, activating the emergency action plan, and performing CPR), Id. at *10, were all things that the plaintiff could do with or without reasonable accommodations). Id. at **9-10.

The points that the plaintiff raised included that he was: 1) able to follow the 10/20 standard of zone protection (a technique taught to lifeguards whereby they scan their entire zone every 10 seconds and can reach any part of their zone within 20 seconds), Id. at *8; 2) able to detect distressed swimmers (an entirely visually-based activity), Id.; 3) was able to enforce safety rules by relying on his whistle and various physical gestures, which is the way lifeguards do it anyway since verbal enforcement is usually impractical in a noisy waterpark, Id.; 4) was able to communicate effectively during emergency with a minor modification to the emergency action plan. In particular, lifeguards would signal with a fist in the air, opening and closing their fist in repetition, Id. (interestingly enough, the court said that modifying the emergency action plan in this way turns out to be actually better for the entire lifeguard staff. Id. This is a principle called universal design, which is the belief that by designing systems so that persons with disabilities can use them effectively with or without reasonable accommodation, you actually improve the system for everyone else); and 5) was able to communicate with patrons at the level considered essential for lifeguard just by carrying a few laminated notecards in the pocket of his swim trunks with basic phrases such as, “I am deaf,” “I will get someone to assist you,” and “wait here.” Id. The court noted that attendants were posted throughout the waterpark to assist patrons with basic needs and questions thereby calling into question whether anything beyond the type of phrases that he would carry in the pocket of his swim trunks would be essential. Id.

The court felt that the most compelling evidence that the plaintiff was otherwise qualified to be a lifeguard came from the experts that he presented whom, unlike whom the county relied on in their decision-making process, did have knowledge, education and experience regarding the ability of the individual to serve as lifeguards. Id. at *9. In fact, the world record for most life saved by a lifeguard is held by a deaf man (saved over 900 lives in his lifeguarding career). Id. Also, the American Red Cross certifies deaf lifeguards and Gallaudet University (a college that focuses exclusively on the needs of the deaf), has a lifeguard certification program). Id.

Third, in the Sixth Circuit, in a reasonable accommodation case, it is up to the plaintiff to show that the proposed accommodations were, “objectively reasonable.” Id. If that can be done, then the employee has the burden of showing that the accommodation would break him (fundamentally alter the nature of the business). Id. With respect to Keith, the plaintiff/appellant, the accommodations, such as the ones discussed above, were objectively reasonable in that they did not fundamentally alter the nature of the business. Id. In fact, as noted above, some of the suggested accommodations may have even made the business better. Also, the accommodations that the plaintiff needed while they called for some restructuring of the job’s marginal functions, they did not require the shifting of any essential functions onto any other lifeguards. See Id.

Fourth, the ADA specifically includes interpreters among the list of reasonable accommodations. Id. at *10. Accordingly, that suggested to the court that the provision of an interpreter was generally reasonable, especially when the interpreter was needed only on occasion just for staff meetings and trainings. Id. The court also noted that several experts had testified that an interpreter was unnecessary to enable a deaf individual to perform the essential functions of a lifeguard. Id. at *9. Finally, Oakland County didn’t even argue, let alone show, that providing accommodations to the plaintiff would constitute an undue hardship on its operations. Id. at *11.

Finally, with respect to the District Court refusing to hold Oakland County liable for failing to engage in the interactive process, the court said the District Court had to revisit the issue. Id. In the Sixth Circuit, failure to engage in the interactive process is not an independent violation of the ADA. Id. However, if the plaintiff can show that a reasonable accommodation is possible, then failing to engage in the interactive process is a violation of the ADA. Id. Here, the District Court missed the boat, because it incorrectly held that the plaintiff had failed to propose objectively reasonable accommodations. Id. The Sixth Circuit concluded that the accommodation proposed by the plaintiff were objectively reasonable. Id. at **9-10. Accordingly, the District Court was asked to revisit the issue of the failure to engage in an interactive process when the case came back to them. Id. at *11.

So what can we take from this case? First, what are the essential functions of the job is a question of fact, and in the Sixth Circuit’s view, one not typically suitable for resolution on summary judgment. Second, it would be helpful for the employer if they truly understood what the job’s essential functions were. The best way to think of the essential functions of the job is whatever functions are fundamental to the job at hand. Third, when it comes to essential functions of the job, expert testimony/analysis may be critical. Fourth, an employer should be very wary of relying on stereotypical conclusions of others without fully engaging in the interactive process itself. Fifth, as I have written for years, do not confuse major life activities with the essential functions of the job. As the court notes in great detail in this opinion, being able to hear (a major life activity) is simply not an essential function of the job of being a lifeguard. The analogy that I have used in the prior editions of my book is that seeing the balls and strikes is not an essential function of the job of being an umpire, rather being able to call the balls and strikes accurately is the essential function of the job of an umpire. I think this case is even a better example of what happens when you confuse major life activity with essential functions. Sixth, do not be afraid to reassign marginal functions of a job to others. Seventh, in looking over the accommodation proposed, do consider whether the proposed accommodations should not be adopted on a general level as something that might make the business better overall (universal design). Finally, do not hold persons with disabilities to a higher standard than what you would hold people without disabilities to.

A link to the video of I wanna be a lifeguard is provided for your listening pleasure (I know it’s a campy song, but you will not be able to get it out of your head. BTW: The drummer in the video is an IP attorney in Mass.

42 U.S.C. § 12203(a) prohibits retaliation against an individual opposing any act or practice that violate the ADA or because the individual made a charge, testified, assisted, or participated in any manner an investigation, proceeding or hearing. Over the last few weeks, I have come across a few cases in the retaliation area that deserve mentioning. In the first, the Southern District of Texas found that retaliation can include a subsequent employer retaliating against a prospective employee for actions that occurred in a prior employment. Shepherd v. Goodwill Industries of South Texas, Inc. 827 F. Supp. 2d 569 (S.D. Texas 2011). In this case, the plaintiff had worked for the South Texas lighthouse for the Blind based at the Corpus Christi Naval Air Station. The plaintiff alleged that after a period of harassment and discrimination at the hands of her supervisors she was terminated 23 days after starting. The plaintiff contended that she became so sick and stressed that she passed out and lost consciousness. When she regained consciousness, her supervisor told her to go home. When she walked to her car, she found herself surrounded by military police with their guns drawn. They ordered her to put up her hands saying that her supervisors had reported she made a terrorist threat and then the military police scraped off the plaintiff’s decals from her car. She then filed an EEOC charge against both supervisors (a reading of the opinion, suggests that this claim was ultimately settled). A year later, the plaintiff received an email regarding a position of Junior Editor by her job for defendant Goodwill. That job was also based at the Naval Air Station at Corpus Christi. It turns out that the job was basically the same as what she had done before because her prior job had subsequently been outsourced to Goodwill Industries. Also, it turns out that one of her supervisors was now working for Goodwill Industries. Plaintiff filled out the application, but she did not answer the required question of whether she’d ever been terminated from employment position and when asked about the missing information wrote on her application, “unable to disclose per legal agreement.” She also did not indicate either the date of her prior employment as an editor for the military or her reason for leaving that position.*

*I have been thinking for some time that applying the traditional principles of legal writing whereby you cite any time it is not your idea is not something that comes off the best in a blog. I would love to hear the reader’s views on this to see if my guess is correct. Accordingly, I am going to experiment with just citing at the end of a paragraph, especially when it comes to the recitation of facts, and see how that goes. I do believe that citing is important, but in the context of the blog, classic citing is probably overkill (I have not seen other blogs such as the ones on my blogroll, do it).

For the preceding paragraph the recitation of the facts can be found at Shepherd v. Goodwill Industries of South Texas, Inc. 872 F. Supp. 2d 569, 571-573 (S.D. Texas 2011).

Nevertheless, she was invited to come in and test for the position. However, the testing became a bit of a mess because Goodwill Industries did not have the equipment and software necessary for a blind individual like the plaintiff to effectively take the test. Nevertheless, she used the fallback option of using software built into Microsoft to take the test. That option was nowhere near optimum for her to be able to take the test effectively. The second thing that went wrong was that when the person taking the plaintiff’s employment application mentioned to the manager they had another person interested in the Junior Editor job, that manager contacted the plaintiff’s former supervisor, who now worked as a project manager for Goodwill, and asked her if the plaintiff had previously worked at the Corpus Christi naval base. Her former supervisor said she had worked at the military base and that she had problems with the military police resulting in her base security pass being taken away, her decals being stripped from her vehicle, and the plaintiff being escorted off the base. Based on these comments, the plaintiff was rejected from the job at Goodwill, and the lawsuit followed.

The information for the preceding paragraph may be found at Id. at 572-573.

The court held that a question of fact existed as to whether the plaintiff was qualified to perform the job of Junior Editor for Goodwill in light of the fact that she may not have been reasonably accommodated during the testing process. Id. at 576. With respect to retaliation, the court said her former supervisor’s involvement in the hiring decision was sufficient to raise a fact issue as to motive and causation on the part of Goodwill not hiring her for the job. Id. at 579.

Preventive tips: The first preventive tip is rather obvious I suppose. That is, if a person has to go through testing to apply for a job, make sure that the testing process is set up in such a way so that an individual with a disability is reasonably accommodated. Again, the whole purpose of reasonable accommodations is to get the person with a disability to the same starting line as the person without a disability. Second, whenever a law firm takes on a new client, they have to do a conflict check. The lesson to take from this case is that when a company is looking to hire an employee and something negative comes up with respect to people influencing that process in terms of how that applicant is being perceived or rated, it would behoove the company to make sure that none of the evaluating personnel has a conflict of interest, i.e. a prior existing relationship with that individual. If so, the person with the conflict of interest should be removed from the process.

The second case comes out of the Fifth Circuit. In this case, the plaintiff was an operator for Jacobs Field Services North America, a company performing general construction and construction-related services, industrial maintenance, and plant operations for chemical refining companies throughout the Gulf Coast region. The job of an operator meant working on the high-speed gallon line most often. The job duties involved climbing, balancing, stooping, kneeling, pulling, pushing, lifting, grasping, and using tools. In the year leading up to his termination, the plaintiff experienced numerous health problems including carpal tunnel syndrome, neck pain, back pain and weakness in the legs thereby making it not possible for him to perform his job. After an extended sick leave, the plaintiff tried to return to work with a limited duty release but the superintendent informed the plaintiff that no limited or light duty work was available at that time and that he could not return to work until he obtained a full medical release. The plaintiff after receiving this notification return to the plan and attempted to enter the plant but since his badge had been deactivated he could not enter. Instead, he followed another vehicle into the plant (the plaintiff knew that such a practice was against company policy). A subsequent meeting between the plaintiff and two employees of the defendant led to the plaintiff being terminated for violating this company policy. He filed suit alleging discrimination based on the ADA as well as retaliation.

You’ll find the recitation of the facts in this case, which was not selected for publication in the federal reporter, at Hammond v. Jacobs Field Services 2012 WL 6033078 (5th Cir., December 5, 2012).

The court found that due to the nature of the operator position and the plaintiff’s disabilities, the plaintiff was not qualified for his position because he could not do the essential functions of the job with or without reasonable accommodations and granted summary judgment to the defendant. Id. at *3. However, retaliation matter was a completely different story. First, the plaintiff engaged in protected activity when he requested accommodation for a disability shortly before being terminated. Id. at *5. Second, while it is true that the plaintiff followed a car into the plant, the evidence was such that such a practice was not unusual and the company frequently looked the other way. Id. Accordingly, the court reversed the grant of summary judgment with respect to the ADA retaliation claim and remanded it for further proceedings. Id.

Preventive tips: In this situation, the employer moved a bit too fast. That is, they should’ve let the normal process of what happened with respect to a person who is unable to perform the essential functions of the job with or without reasonable accommodations pursue its course, rather than terminating the individual for violation of a policy that oftentimes did not result in termination. Also, this case means that just because a person may lose a disability discrimination claim on the ground that he is not otherwise qualified, doesn’t mean that such a person will also lose a retaliation claim. In short, an employer should be wary of doing things that may give the plaintiff an avenue to pursue a retaliation claim, and particularly where that plaintiff would not be otherwise qualified.

Our final case comes out in the Middle District of Tennessee, Coffman v. Robert J Young Company, Inc., 871 F. Supp. 2d 703 (M.D. Tenn. 2012).. In this situation, the plaintiff worked as a copy center operator at an engineering firm for 10 years. As part of her job, she provided customer service, made copies, and assisted with the repair of machines, kept machines stocked with toner and paper, made booklets, printed documents and scanned documents. Plaintiff was in an off-duty motorcycle accident, which led to surgery and physical therapy. She also took FMLA leave. While on leave, her position was covered by other employees of the defendant. In July 2009, she informed the defendant that she was only able to use one hand and one arm at that time (she had been giving the defendant regular notes after a medical status and complying with the defendant’s policies are providing medical documentation). The defendant offered her a sedentary job, but the plaintiff declined it because she did not feel physically or mentally capable of performing that job. On October 28 of 2009, the plaintiff provided defendant a note saying that she was going to be able to return to work on November 23 with minimal restrictions of no lifting of more than 10 pounds, limited overhead and limited pushing/pulling. Nevertheless, the human resources director and the General Counsel decided to terminate plaintiff anyway.Prior to that termination, the human resources director and the General Counsel proceeded to the termination: 1) without discussing with the plaintiff her impairment or condition or her intention to return to work on November 23, 2009; 2) without discussing with the plaintiff for conducting an interactive process with the plaintiff to determine whether any of plaintiff’s job functions could be accommodated; 3) by not requesting additional information from the health care provider or by consulting an occupational physician to determine whether plaintiff would be open to perform her job duties; and 4) by not considering the offering of additional leave from October 28, 2009 to November 23, 2009 as a reasonable accommodation. As if that wasn’t bad enough, the termination letter the plaintiff received said, “given that you are unable to perform the task of your job, we have found it necessary to hire someone to fill the vacancy created by your need to take long-term disability and due to your long-term disability we must terminate your employment.” It just gets worse from there for the defendant. In particular, the plaintiff’s job as a copy center operator did not categorize it duties into essential and nonessential functions. In fact, the human resources director was unaware that breaking down job functions into essential and nonessential functions was critical to deciding how to accommodate a person with a disability. Further, the HR director acknowledged that the jobs lifting requirements could have been modified and that allowing the plaintiff to remain employed until November 23, 2009 would not have resulted in an undue hardship.

The recitation of the facts in the preceding paragraph can be found at Id. at 708-709.

In light of all thie above the court found that the letter constituted direct evidence of discrimination, and a reasonable jury could find that the defendant decision to terminate the plaintiff was motivated, at least in part by her disability. Id. at 714-715. The court also found that the termination letter was evidence of retaliation as well and granted the plaintiff’s motion for summary judgment on the retaliation claim. Id. at 718.

Preventive tips: 1) this case in so many ways is a recipe for what not to do. First, prior to termination, there should be an interactive process discussing the employee’s medical condition as well as for figuring out whether the employee can perform the essential functions of the job with or without reasonable accommodations; 2) the employer should request additional medical information and/or consult an occupational physician, therapist or other experts in order to determine whether the employee can perform the essential functions of the position with or without reasonable accommodations; 3) the employer should consider offering the employee additional leave unless they can show that such an offering would be an undue hardship or is a situation where the plaintiff is asking for an indeterminate amount of leave. 4) the ADA is an extraordinarily complex law as well as extremely comprehensive, if people, attorneys or others, are not clear or comfortable with the law, they should not be afraid to get help (in fact, the ethical rules for attorneys generally demand that an attorney get assistance in such situations. Nevertheless, I am consistently surprised at how often mistakes seem to be made as a result of being unfamiliar with the ADA); and 5) a company needs to be sure that employees are continually trained by qualified people on the requirements of the ADA.

Hope everyone had a great holiday season. Wishing everybody a healthy, happy, and successful new year! In case you want to take a break from bowl games over the next couple of days, here is something you might read:-)

Alabama and South Carolina are the only States segregating inmates that are HIV-positive. In the Alabama situation, the ACLU brought suit saying that such a practice violated the Americans with Disabilities Act. In a 153 page opinion, Judge Myron Thompson of the northern district of Alabama agreed. There are very few opinion that run 153 pages. Even fewer that run so long but yet every page is worth reading. Such is the case with this one. With respect to this opinion, what I am going to do is break this down into three different categories. First, I will discuss the practices Alabama engaged in with respect to both men and women that are HIV-positive in their prison system. Second, I will discuss the court’s reasoning. Finally, I will mention several important policy considerations brought up by the court as well.

Basically, Alabama has a system with respect to HIV-positive inmates that involves categorical non-individualized determinations resulting in automatic placement and exclusions. The specific practices of the Alabama Department of Corrections varied a little bit depending on whether the inmate was female or male. Regardless of the gender, both systems involved categorical non-individualized determinations resulting in automatic placement and exclusions.

With respect to men, the Alabama Department of Corrections was challenged on the following practices: 1) all HIV-positive men in the prison system are sent to limestone, a facility in northern Alabama. They are sent there regardless of their individual needs and custody factors; 2) HIV-positive men have limited program opportunities when compared to men that are not HIV-positive; 3) HIV-positive men are segregated into dormitories at the limestone facility; 4) within those dormitories HIV-positive men are segregated further utilizing the building’s architectural layout; 5) HIV-positive men were excluded from other dorms at limestone regardless of whether they had any individual factors that would otherwise place them in those dorms except for being HIV-positive; 6) HIV-positive men because they were segregated into certain dormitories were excluded from critical aspects of the substance abuse program; and 7) HIV-positive men must wear white armbands regardless of which dormitory they were in (that is, HIV-positive men were segregated into two different dormitories. However, regardless of which dormitory they were in, all HIV-positive men must wear white armbands).

With respect to women: 1) all HIV-positive women inmates are housed Tutwiller; 2) women who test HIV-positive at first are put in isolation until the confirmation test comes in to confirm the initial tests; 3) HIV-positive women inmates are segregated into one dorm at Tutwiller; 4) HIV-positive women are automatically sent to isolation cells if mentally ill regardless of their actual mental health needs.

With respect to both men and women HIV-positive inmates, Alabama Department of Corrections excludes all such inmates from the food service program and their participation in work release entirely depends on viral loads and not upon the inmate’s treatment needs or functional abilities.

The court had several issues before it. First, it had a couple of preliminary issues before it, standing and whether the case was moot because Alabama represented to the court that they were going to change their practices. With respect to standing, the court held that the plaintiff did have standing because they were a person with a disability (HIV-positive- see ADAAA; see also Bragdon v. Abbott, 524 U.S. 624 (1998)). Second, the court said that the issue was not moot because the nature of the evidence was such that the court believed it quite possible that the challenged conduct could recur.

With respect to the Americans with Disabilities Act, the court reasoned as follows. First, as mentioned above, the plaintiffs clearly have a disability, being HIV-positive.

Second, the title II regulations mandate integration (see 28 C.F.R. § 35.130(d) and the court cited to Olmstead v. L.C. By Zimring, 527 U.S. 581 (1999), as well.

Third, since prison is the program, the plaintiffs were otherwise qualified. That is, the plaintiffs were capable of satisfying the essential eligibility requirements of the program with or without reasonable accommodation.

Fourth, the court goes into great detail about the medical evidence that is currently known with respect to a person that is HIV-positive and concludes that the treatment of HIV-positive people has evolved to the point where it simply cannot be said that such a person would be a direct threat automatically when integrated into the general prison population. With respect to direct threat, the court looked to the factors in School Board of Nassau County Florida v. Arline, 480 U.S. 273, 288 (1987). Those factors demand an individualized assessment, which does not occur in the Alabama prison system for inmates that are HIV-positive. In addition to the scientific evidence being what it is, the court said that the medical evidence is overwhelming that the risk of HIV transmission imprisons is minimal across the system and therefore, no direct threat could be said to exist, at least not automatically.

Fifth, the Americans with Disabilities Act demands an individualized determination. That said, the court said that Alabama does have the flexibility to determine how that individualized determination will be carried out so long as it acts in good faith to ensure that no prisoner is unnecessarily segregated because of his or her HIV positive status

Sixth, Alabama could not defend on the grounds that to redo the present programming would be a fundamental alteration as many of the systems already exist to ensure that HIV-positive inmates are integrated into the general community after an individualized determination. That is, Alabama Department of Corrections already has individual data on HIV-positive inmates with respect to viral loads, behavior, and medical needs.

Seventh, Alabama tried to argue that there would be an undue burden to change the system. Undue burden generally refers to financial costs. The court said that any undue burden was not going to apply here because the costs were not going to be unreasonable and conceivably could even decline with the integration of HIV-positive inmates into the general population.

Eighth, no legitimate purpose is served by separation of prisoners in dormitories by their HIV-positive status and by using physical structure of the building to telegraph who is HIV-positive. The court referred to this as, “irrational disability discrimination.”

Ninth, the court discussed in some detail how the fundamental alteration defense was not going to fly here. First, the court noted that not every HIV-positive inmate needs an HIV specialist all the time. Second, much of the need for specialized care could be solved through the use of telemedicine and the costs for installing such systems would not be an undue burden. Third, HIV-positive inmate could travel to other facilities as needed. Fourth, medical staff can be trained to do basic HIV-positive care and resources exist to do that at minimal costs (there were several entities offering to help train the prison staff at minimal or no costs). Finally, since the basic purpose of a prison medical system is to provide medical care to prisoners, none of the accommodations suggested by the court involved eliminating the essential aspect of the relevant activity, and therefore, no fundamental alteration exists.

Tenth, since women can’t transmit HIV through sexual contact, any direct threat defense with respect to women was far less than men, which the data revealed that for men was virtually nonexistent.

Eleventh, the prohibition of participating in food service jobs, “are obviously irrational” and contravene science (the court was appalled, to say it mildly, at some of the representations regarding staff members with respect to how HIV-positive inmates were perceived. The court said that prejudice is no defense).

Twelfth, the white armbands policy violated the broad prohibition on discrimination and the Alabama Department of Corrections justifications for the policy were not credible, were pretextual, and served no legitimate purpose. In particular, the policy meant forced disclosure of HIV-positive status and was also profoundly stigmatizing.

Policy also underlies this decision as well. Some of those points include: 1) integration may actually reduce high-risk behavior and no evidence existed that it would increase. The idea being that if HIV-positive inmates were integrated into the general population, members of the general population may actually restrict themselves from high risk behavior for fear of becoming infected; 2) segregation has devastating psychological effects. The court referred to segregation as an, “effective tool for humiliating and isolating prisoners living with the disease;” 3) Alabama Department of Corrections policies have not changed with the times and with how treatment of HIV-positive people have evolved; 4) other Southern states-Georgia, Mississippi, and Florida- have all successfully integrated HIV populations. In fact, at trial, there was testimony from people in those state that had led the integration efforts; 5) no evidence existed that non-adherence to medication would increase with respect to integrating HIV-positive inmates into the general population; 6) segregation may worsen treatment outcome since another facility may be a better option depending upon the inmates individual needs; 7) dismantling segregation will not add significant costs to the Alabama Department of Corrections and may save money in a variety of ways. For example, there would be no need to maintain extra beds in an institutional setting as is currently done if HIV-positive prisoners were integrated into the general population; 8) forced disclosure of HIV-positive status is simply wrong.

Some thoughts: First, it is a bit surprising to me that no equal protection claim was brought. The language that the court uses such as “no legitimate purpose,” “obviously irrational,” “irrational disability discrimination,” as well as a reading of the opinion in general leads to the conclusion that the court if presented with an equal protection claim would have found, even if the prisoners were in a rational basis class, that their equal protection rights were violated. Perhaps, the reason equal protection was not alleged what to avoid a sovereign immunity discussion, which as we have talked about in other blog entries, can get quite complicated (as part of the litigation of this case, sovereign immunity did come up, but discussing sovereign immunity in the context of injunctive relief is quite a bit different than discussing it in the context of suing a sovereign for damages). Second, with respect to the white arm bands, I really thought that I was going to see a reference to the Holocaust and to where Nazi Germany made Jews wear stars on their coats. Perhaps, the judge did not feel it necessary to bring in such a comment considering how thorough the opinion was. That said, it did not surprise me to see the ACLU reference precisely this in the aftermath of this decision. Finally, I could not help but be struck at the parallels of this decision to Brown v. Board of Education with its discussion of the psychological impact of segregation and its emphasis on other information, in this case medical science, to reach a conclusion.

Over the years, lots of people have written about the intersection between Family and Medical Leave Act (FMLA), and the Americans with Disabilities Act (ADA), myself included. You simply cannot deal with the ADA and not be aware of the FMLA and vice-versa. Some of the things to be aware of is that the FMLA does not refer to disability at all, but to “serious health condition,” which has a very different meaning from the ADA and a meaning you may not expect if you are not familiar with the area. Also, for another, when it comes time to certifying whether a person is entitled to FMLA that certification does not factor in whether that person can do the essential functions of the job with or without reasonable accommodations, though it does factor in whether the person can do the essential functions of the job. Thus, for example, I have written in the past that you may have a situation where a person could go on FMLA leave but with reasonable accommodations could still stay on the job. It was my view that this would be the better approach because a person would rather work than take what would probably be unpaid leave. It also makes for a more loyal employee because it shows the employee that the employer is willing to do what it takes to keep a valued employee on board by reasonably accommodating that employee. That said, what happens if an employer does not give the employee a choice? That is, what if the employer does not give the employee any opportunity to be reasonably accommodated, but rather insists on the employee pursuing FMLA leave?

It turns out, that such an approach, which is not good preventive law, may also be evidence of bad faith on the part of the employer as well as evidence of retaliation. See Mills v. Temple University 869 F. Supp. 2d 609 (E.D. Pa. 2012). In this case, a secretary and a longtime employee was struck in the back by a coworker and flung forward. Id. at 614. She began experiencing severe pain within days of the incident and by the end of the following week reported the incident, a worker’s compensation incident report was completed and she was referred to a physician in Temple’s occupational health unit. Id. She received treatment by the physician in Temple’s occupational health unit, which included a medical topical cream for pain and he continued to see her continuously once a week until December 2008. Id. at 614. During that time, the plaintiff was released to return to work without imposing any restrictions on her. Id. That physician referred her to an orthopedist before releasing her from Worker’s Compensation medical care. Id. The orthopedist prescribed medication and physical therapy and she continued to receive treatment by various physicians. Id. at 614-615. Even so, she continued to experience pain in the back while working and had difficulty lifting and filing patient charts. Id. at 615. The plaintiff and the senior administrator for the cardiology department had discussions about this with the result of which student interns and permanent Temple staff took over filing for her towards the end of 2008, a fact which she shared with her direct supervisor as well. Id. While the plaintiff outside of work continued to engage in daily activities such as driving, caring for herself and her daughter, and shopping, she struggled with these activities as she found them quite exhausting. Id.

Now, is where it gets interesting. After being released from Worker’s Compensation medical care, she contacted the human resources department about how to pursue a Worker’s Compensation claim, which ultimately proved unsuccessful. Id. The senior administrator for the cardiology department suggested that she apply for FMLA leave to protect the absences. Id. The first request for FMLA leave was denied because the physician asked to do the certification declined to provide a diagnosis or complete the certification since that physician had only seen her once. Id. at 616. She then began seeing a pain management specialist who diagnosed Kyphosis, degenerative discs, and bulging discs in her back. Id. He treated the plaintiff for six months where she received bimonthly epidural injection for back pain. Id. She applied for intermittent FMLA leave in May 2009 and had the doctor she was seeing fill out the certification. Id. This leave was approved. Id. at 616-617. In June 2009, the student intern helping the plaintiff with filing left for the summer leading to the filing piling up. Id. at 617. When her direct supervisor circulated an email asking several members of the staff, including the plaintiff to assist with filing, the plaintiff responded the next day that she would not able to do filing since it would further injured her back and requesting whether further documentation about that was needed. Id. The direct supervisor said that she would need that documentation stating that she was unable to do filing work and the plaintiff asked whether the FMLA certification would suffice for the documentation. Id. The direct supervisor said no and asked for a doctor’s note instead, which the plaintiff promptly furnished. Id. Once the letter was received, the senior administrator for the cardiology department said that filing was an essential function of the job and that she had to do it. Id. After conferring with HR, they decided to send the plaintiff home and offer her continuous FMLA leave. Id. Neither person consulted a doctor or Temple’s Office of Labor and Employment before sending the plaintiff home. Id. The senior administrator for the cardiology department later that day sent an e-mail. saying that the letter had been received, she was eligible for FMLA leave, and could return only if the doctor authorized she could return to work fully and unrestricted. Id. The plaintiff called the senior administrator to discuss the matter and the call was not returned. Id. She then left the next day for vacation. Id. When she came back from vacation she called her direct supervisor discussing how to proceed and was referred to human resources whereby they told her that she could not return to work and was provided with an application for continuous FMLA leave. Id. at 617-618. Plaintiff then objected to taking unpaid leave for an injury that occurred on the job and did not understand why she had to complete another certification since one had already been already approved. Id. at 618. She never completed the application and neither did she comply with Temple’s procedure for absences, which eventually led to her being terminated from her employment for being absent without leave. Id.

Fortunately, while she would never able to find other employment since being terminated and she lost her health insurance following her dismissal, the condition did improve so that she could treat it with Motrin or a prescription muscle relaxer and experienced minimal pain. Id. She filed suit against Temple alleging discrimination and retaliation as well as interference under the FMLA and due process violations. Id.

In denying Temple’s motion for summary judgment on the discrimination, retaliation, and FMLA claims (the plaintiff did not object to summary judgment being awarded to the defendant with respect to the due process violation), the court reasoned as follows. First, Temple argued that the plaintiff was not substantially limited in a major life activity because she experienced minimal pain that was being managed with pain medication and Motrin. Id. at 620-621. The court didn’t buy the argument for three reasons. First, it referred to the ADAAA which says that whether plaintiff is substantially limited is a less searching analysis and a question of fact. Id. It is interesting to note, that “less searching analysis,” really means that, as the court never even cited to the EEOC definition of substantial limitation under the ADAAA. Second, whether a person is substantially limited is made from the point in time at which the alleged discriminatory action occurred and not from the point in time of the decision on the case. Id. at 621. Finally, the court said that ample evidence existed to indicate that the plaintiff was substantially limited in her ability to lift. Id. at 622.

The plaintiff also argued that she was substantially limited in her ability to work as well. Id. at n. 8. The court’s response to this is very interesting. Over the years, I have seen some courts focus on working as the end-all and be-all of what is a substantial major life activity. Of course, defense attorneys would prefer it that way as well, since it is very hard to show, pre-ADAAA as well as post ADAAA, that a person is substantially limited in the major life activity of working. What is interesting here, is that the court adopts the EEOC guidelines with respect to working by saying that if you can find a person substantially limited in any other major life activity, working as the major life activity never comes up. Id.

With respect to offering FMLA leave but never offering a reasonable accommodation option, the court held that this was not good faith. Id. at 624. Further, Temple did not meet with the plaintiff regarding receipt of the letter nor did they inquire from the plaintiff about what her limitations were or ask what accommodation she desired. Id. at 625. Instead, they immediately rejected the idea, after a short conversation between themselves, of hiring a student intern to help with filing despite the fact that an intern had been doing that for over six months. Id. In short, this case puts an employer on notice that offering FMLA leave without exploring the accommodation process, especially if there are additional factors, is not a good faith response (whether the employer acts in good faith is important, as good faith is a defense to damages).

Last and certainly but not least, the court held that ignoring a request for reasonable accommodation and offering FMLA leave instead, could reasonably dissuade a person from requesting an accommodation because nobody would like to be sent home from work without pay. Id. at 627. In short, taking such an approach opens up the employer to a retaliation claim. Id. at 626-628.

Putting it together: this case has a lot of very helpful tidbits in it. First, employers should realize that post ADAAA, showing a substantial limitation on a major life activity is not going to be anywhere near as easy as it used to be. Second, plaintiff’s attorneys and plaintiffs should take to heart that alleging working as the major life activity should only be done as a matter of last resort. Third, offering FMLA leave without offering a reasonable accommodation process is both not a good faith response, especially if other factors are present as well, but also possibly evidence of retaliation. In short, the preventive law approach, discussed above, of offering the accommodation as an option to FMLA leave is not only good preventive law but now can prevent liability as well. Fourth, as if Temple did not have enough problems, they insisted on a full return to work. As discussed previously in a prior blog entry, such a demand post ADAAA is extremely problematic. Finally, it is curious as to how the termination happened without consulting counsel. An excellent preventive approach is to adopt a policy that nobody is terminated except for cause and all such termination decisions are reviewed by counsel first. If my experience is any indication, such a policy significantly decreases outside legal fees.

In a previous blog entry, the principle of sovereign immunity and how they might apply to a County was discussed. What wasn’t discussed, was whether sovereign immunity would apply to a public university or public college. A case that addresses this is Doe v. Board of Regents of the University of Nebraska, 280 Neb. 492, 788 N.W.2d 264 (2010). In this case, a medical student who was granted a leave of absence in order to receive treatment for depression, insomnia, and anxiety was eventually removed from the medical school after he returned from that leave of absence and things continued to not go well. Id. at 496-497. He brought suit alleging fraudulent concealment, disability discrimination, violation of his due process rights, and breach of contract. See Id. at 497.

The court had several issues before it, but for our purposes the issue to focus on is whether the University of Nebraska could successfully claim immunity under the 11th amendment to the plaintiff’s suit for disability discrimination. As has been noted when it comes to employment, states and arms of the states are going to have to specifically consent to being sued as sovereign immunity principles apply. However, as mentioned previously, when it comes to suing under title II of the Americans with Disabilities Act, whether sovereign immunity principles apply is a very fact specific situation. As discussed previously, if a fundamental right is involved, then the state or, the state is not going to be able to successfully claim sovereign immunity. Thus, there are two questions. First, is a fundamental right involved? If a fundamental right is not involved, does that mean that the state or arm of the state automatically gets to claim sovereign immunity? Is education a fundamental right?

The Nebraska Supreme Court said that education is not a fundamental right. Id. at 521. However, as mentioned above, that doesn’t answer the question as to whether the state still has the right to claim sovereign immunity. The Nebraska Supreme Court concluded that even though education is not a fundamental right, the University of Nebraska still could not claim sovereign immunity with respect to a title II of the ADA suit. Id. They reasoned as followed. First, one of the things that United States Supreme Court did after deciding Tennessee v. Lane, 541 U.S. 509 (2004), was to vacate several title II decision and remand them for reconsideration in light of that decision, including one from the Sixth Circuit concluding that sovereign immunity barred a student’s title II claim against the University. Id. at 520.

Second, the Nebraska Supreme Court relied on a case from the First Circuit in which they noted that there was a widespread pattern of state’s unconstitutionally excluding disabled children from public education and irrationally discriminating against disabled students within schools. See Id. at 522.

Third, under the cases interpreting Lane, the judicial decisions, statutes, and personal antidotes collected by the Congressional task force that indicated general history of discrimination of public education were sufficient to support the title II scheme. Id.

Fourth, the title II scheme was a narrow remedy to redress discrimination in education because: title II protects only qualified individuals with disabilities; a person must still meet the essential eligibility requirements of the program or activity regardless of disability; schools and universities are not required under title II to undertake any measures imposing undue financial or administrative burden or threatened historic preservation interest; and a school or university is not required to fundamentally alter the nature of the program or activity. Doe v. Board of Regents of the University Nebraska 788 N.W.2d at 523-524 citing to Toledo v. Sanchez 454 F.3d at 39. Accordingly, the title II scheme is a justified as a reasonably targeted system to prevent a persistent pattern of exclusion and irrational treatment of disabled students in public education especially when compared against the consequences of the harm from such discrimination. Id.

Preventive tips: If you are public entity, the very first thing you want to do is check to see whether the state that you are in has explicitly waived its sovereign immunity with respect to title II claims of the ADA. Illinois for example, has waived sovereign immunity with respect to ADA suits but not in all cases. See 745 I.L.C.S. 5/1.5(d) (Westlaw, Current through P.A. 97-1132 of the 2012 Reg. Sess.).

Second, if you are public entity and find that the state has not waived its sovereign immunity with respect to title II of the ADA lawsuits, feel free to argue that sovereign immunity prevents the lawsuit since the Nebraska Supreme Court is definitely not the last word we are going to see on the subject. For example, see Doe v. Board of Trustees of the University of Illinois, 429 F. Supp. 2d 930 (N.D. Ill. 2006), for a contrary view.

Third, if you are student with a disability or are representing a student with a disability, it would be very helpful to compile an extensive dossier of any discrimination faced by students with disabilities in education by the states over time. See Toledo v. Sanchez 454 F.3d 24, 35 (1st Cir. 2006). The more you can find as a plaintiff , the better your ability is going to be to be able to argue that the title II of the ADA scheme is a proportionate response to the discrimination meant to be redressed. Another thing a plaintiff would want to do would be to be sure to exhaust the school or university’s administrative process.

Fourth, the plaintiff might want to consider filing a claim with the Department of Justice. On the public entity’s side, as discussed previously, preventive systems are always best. Sure, you may win on a sovereign immunity grounds, but winning on such a ground doesn’t do anything for University or college’s image as a University or college that is amenable to persons with disabilities. Sovereign immunity litigation is also no doubt expensive. A grievance procedure/system that allows a full airing of the opinion with neutral and informed deciders is always recommended. If the public entity loses on sovereign immunity grounds, then a comprehensive and fair grievance system will go a long way towards ultimately winning the dispute as courts are extremely hesitant to overturn academic decisions in general, and especially where they are the result of a comprehensive and fair airing of the grievance.

Fifth, if you are a plaintiff or a person representing one, you may also want to have a claim against the public educational institution alleging violation of § 504 of the Rehabilitation Act of 1973. Having such a claim would allow you to argue that sovereign immunity was waived since the public entity in all probability receives federal funds and Congress made it a condition of receiving federal funds that the states waive their sovereign immunity. See Doe v. Board of Trustees of the University of Illinois 429 F. Supp. 2d at 940. The Rehabilitation Act and the ADA are extremely similar, which makes sense since the ADA was based upon the Rehabilitation Act. However, § 504 of the Rehabilitation Act does contain “sole cause,” language whereas title II of the ADA contains, “by reason of” language. Accordingly, it is possible that causation under the two acts may be different even though substantively they are otherwise the same.

Sixth, keep in mind, that sovereign immunity is not going to apply if you have a claim for prospective relief. Thus, a claim for injunctive relief could be very handy if you are plaintiff or are representing one.See Doe v. Board of Trustees of the University of Illinois 429 F. Supp. 2d at 940-941.

Finally, since you are seeing courts split on this, look for the question of whether Congress validly abrogated the states sovereign immunity with respect to title II of the ADA to eventually wind up before the United States Supreme Court.

Title I of the Americans With Disabilities Act requires that a person seeking to file a claim for employment discrimination must first file a claim with the EEOC or a substantially equivalent state agency and receive a right to sue letter before proceeding in court. What if you wish to file a claim under title III of the Americans with Disabilities Act, do you first have to exhaust administrative remedies? Title III of the Americans With Disabilities Act does allow for administrative remedies. That is, you could file a claim with the Department of Justice, but the question is do you have to before being able to proceed in court? The answer to this question is as follows. If you are in a jurisdiction governed by the Ninth Circuit, the answer is no. The District Courts in New Jersey and the S.D. Ohio also say no. However, a district court in Colorado in two different opinions written by the same judge (John Kane) 16 years apart from each other say yes (i.e. administrative remedies must be exhausted prior to filing suit under title III of the ADA).

The two opinions from the District Court in Colorado saying administrative remedies must be exhausted first are: Howard v. Cherry Hills Cutters, Inc., 935 F. Supp. 1148 (D. Colo. 1996); and Lillard v. Sunflower Farmers Market, Inc., 2012 WL 5936543 (D. Colo. November 27, 2012). In both cases, Judge Kane held that title III of the ADA requires exhaustion of administrative remedies as a precondition to filing suit where the complaint contains allegations that are also prohibited by state or local law. In the first decision, Judge Kane seems to suggest that the reference to § 2000a-3(a) and 42 U.S.C. § 12188 necessarily includes a reference to 42 U.S.C. § 20000a-3(c). Howard 935 F. Supp. at 1150. In the second decision, he came to the same conclusion by saying that 42 U.S.C. § 12188 related back to 42 U.S.C. section 2000a-3(a), which in turn is limited by an exhaustion requirement in a separate section, 2000a-3(c) because 42 U.S.C. § 12188 refers to “remedies and procedures,” of 42 U.S.C. §2000a-3(a) and 42 U.S.C. § 2000a-3(c) would be a procedure. Lillard 2012 WL 5936543 at *1.

Judge Kane is all by himself out there, again apologies to Eric Carmen, and perhaps Celine Dion as well who covered the song. Prior to the time the Ninth Circuit ruled on this matter, there were decisions from other districts in the Ninth Circuit that agreed with Judge Kane, but those decisions would no longer be controlling in the Ninth Circuit, since we have a decision from the Ninth Circuit on this issue now. The counter argument to Judge Kane, as ably explained by the Ninth Circuit in Botosan v. Paul McNally Realty, 216 F.3d 827 (9th Cir. 2000), works like this. 42 U.S.C. § 12188 does say that the remedies and procedures set forth in section 42 U.S.C. § 2000a-3(a) are the remedies for violating title III of the ADA, but there is absolutely no mention anywhere of 42 U.S.C. § 2000a-3(c). Therefore, since a principle of statutory construction is what is not mentioned is excluded, it would not be proper to read 42 U.S.C. § 2000a-3(c) into the law. See Id. at 832; see also Moyer v. Showboat Casino Hotel 56 F. Supp. 2d 498, 501-502 (D.N.J. 1999); Love v. Omni Netherland Plaza Hotel, 2001 WL 1842450 (S.D. Ohio, May 10, 2001). Botosan also made mention of legislative history, the Code of Federal Regulations, and the Department of Justice’s technical assistance manual as also supporting the conclusion that title III actions do not require state notification. Botosan at 832.

Strategies: So what does this all mean? If you are representing a place of public accommodation, it might be worth a shot for strategic reasons to argue that a person has not exhausted administrative remedies. I am skeptical as to whether such an argument would succeed as the Ninth Circuit seems to be on solid ground with respect to its reasoning. Nevertheless, since one judge has adopted this position, making such a claim would not be a frivolous one unless, of course, you are in the Ninth Circuit. If you are a person with a disability or are representing one, it might make sense to file a claim with the Department of Justice anyway. After all, Department of Justice is a deep pocket with a lot of resources, and they could bring those resources to bear so as to even obtain damages to an individual, which would not otherwise be able to be obtained under title III typically. Nevertheless, unless Judge Kane’s view becomes widely accepted, the plaintiff is under no obligation to exhaust administrative remedies first. What about the future for this case. I would be surprised if the plaintiff in this case does not appeal since statutory construction and the weight of authority are on their side. It will be very interesting following how this case develops.