Previously, I have written that, “the Americans with Disabilities Act requires that medical information obtained on an employee or prospective employee be kept confidential.” See Understanding the Americans with Disabilities Act, third edition at p. 40. However, in light of EEOC v. Thrivent Financial for Lutherans , _F.3d_, 2012 WL 5846208 (7th Cir. November 20, 2012), that statement needs to be amended to, “the Americans with Disabilities Act requires that medical information obtained as a result of a medical exam or medical inquiry of an employee or prospective employee be kept confidential,” especially if this Seventh Circuit decision winds up prevailing across the country in the other circuits.

In EEOC v. Thrivent Financial for Lutherans , the plaintiff was hired by a technology consulting agency to work as a temporary SAS programmer for Thrivent Financial for Lutherans (Thrivent). Id. at *1. When the plaintiff started work for Thrivent, he was assigned as a business analyst and the Fraternal Support Service Department and worked for four months without incident. Id. During that time, the plaintiff was very good about notifying both the consulting agency and Thrivent when he planned to be absent from work. Id. On November 1, 2006, the plaintiff failed to report to work. Id. Since the plaintiff had not notified anyone at Thrivent about his absence, his supervisor called the consulting agency to find out what was going on, but the consulting agency did not know either. Id. The supervisor at Thrivent then sent an e-mail to the plaintiff asking the plaintiff to give him a call as they needed to know what was going on. Id. Shortly before 5 PM, the plaintiff wrote a very long email to his supervisor at Thrivent detailing why he had not been in contact sooner and going into elaborate detail about his pre-existing medical conditions (severe migraines as a result of a 1984 accident that he had been in). Id. at *2. His supervisor responded to the email a few hours later urging the plaintiff to get better and to let him know if there was anything they could do. Id. Despite the plaintiff’s assurance that he was committed through the remainder of his contract, the plaintiff quit his job with Thrivent only a month later. Id. According to the plaintiff’s supervisor, a very strong disagreement on expectations happened and the plaintiff walked out on them. Id. After the plaintiff left, Thrivent and the consulting agency, he had a difficult time finding a new job and began to believe that Thrivent was saying negative things about him to prospective employers for reference checks. Id. The plaintiff hired a firm that specializes in determining what is being said in references. Id. As a result of that firm’s investigation, they found out that his migraines were being disclosed. Id. That led to the plaintiff filing a charge with the EEOC alleging disability discrimination from which the EEOC found reasonable cause. Id. at *3. When the reasonable cause letter failed to get to a settlement between the plaintiff and Thrivent, the EEOC filed suit alleging that Thrivent had violated the ADA confidentiality provisions. Id.

The question before the court was whether Thrivent when they discussed with future employers his history of migraines in the context of not letting them know what was going on, violated the confidentiality provisions of the Americans with Disabilities Act. The court said that since the disclosure was not from information that was a medical exam or medical inquiry, the confidentiality provisions did not apply. Id. at **1, 7.

In reaching that conclusion, the court reasoned as follows. First, the court cited to Merriam-Webster dictionary in saying that the phrase “medical examinations inquiries,” contained a coordinating conjunction, which are used to indicate connection or addition especially of items within the same class or type. Id. at *5. The court found it very significant that the statute used the term “and” instead of the term “or” because that indicated the intent was to talk about things of the same type. Id. That is, what the statute really says in essence is, “medical exams and medical inquiries.” See Id. Second, the court reasoned that the use of the conjunction “and,” indicated that the adjective “medical,” modifies both the terms, “examination” and “inquiries.” Id. Third, if one looks at the subject matter discussed in 42 U.S.C. § 12112(d) it becomes clear that the entire section is devoted to medical exams and medical inquiries and not to job related inquiries in the broad sense. Id. Finally, the court distinguished cases cited by the EEOC on the ground that those cases involved an employer with pre-existing knowledge that the employee was ill or physically incapacitated. Id. at **6-7. That was not the case with the plaintiff here. Instead, Thrivent was just checking up on when an employee did not show up to work. As far as Thrivent knew, the plaintiff could have had transportation problems, marital problems, weather-related problems, etc. Id. at *7. Accordingly, for all these reasons Thrivent was not required to treat the medical information that the plaintiff sent in response to his supervisor’s email as a confidential medical record. Id.

Preventive law tips: When you extrapolate this case as to how it plays out in practice after this holding, things get very interesting. On the defense side, it seems to make sense from a preventive law standpoint, to treat any medical information that you receive confidentially. After all, do you really need the litigation over whether the inquiry that your client made was a medical exam or medical inquiry? On the other hand, this decision gives the employer wide latitude with respect to any information received that is not from a medical exam or medical inquiry in terms of how that information is kept internally or how it is disclosed to others. Before exercising such wide latitude, the employer would want to be certain that a medical exam or medical inquiry was not involved. On the plaintiff’s side, things are a lot more complicated. Under this case, in order to be protected it would have to be a medical exam or a medical inquiry. Accordingly, on the plaintiff’s side, a plaintiff would want to only give a very minimum amount of information to satisfy the employer. If the employer needs more information, then the plaintiff would want to have the employer make a specific request (i.e. make a medical inquiry). Any such communication by the plaintiff could be done explicitly or implicitly. That is, a plaintiff could simply say “I am not feeling well… and be back soon.” The employee could also say something like, “I am not feeling well and if you need more information, feel free to contact me and I will have the appropriate information given to you.” The permutations are many. The problem with this decision is that it puts the burden on the plaintiff, if they want to ensure that any disclosed medical information be kept confidential, to arrange any communication with the employer about why they are missing from work in such a way so as to ensure that the employer winds up making a medical inquiry- all of which adds a bit of manipulation, if not a bit of the adversarial process as well, to the employer employee relationship.

It will be very interesting to see whether the other U.S. Court of Appeals follow the Seventh Circuit’s reasoning. Certainly, in terms of how the statute is laid out, there is something to be said for the reasoning of the U.S. Court of Appeals for the Seventh Circuit. The problem lies in how this kind of decision will be applied by employer and employees in the future and whether Congress could have really intended for that to be the result.

Recently, I read a case out of the Western District of Pennsylvania which I found absolutely fascinating. In this particular case, the court dealt with three issues. First, does the plaintiff have a disability at all? Second, does “regarded as” even apply outside of the title I context? Finally, was the plaintiff a direct threat and therefore, to the court’s view, not otherwise qualified?

The particular case is McDonald v. Pennsylvania State Police, 2012 WL 5381403 (W.D. Pa. October 31, 2012). In this particular case, McDonald, a police officer, suffered a work-related automobile accident from which he sustained a herniated disc. Id. at *1. The chronic pain resulted in lumbar decompression and fusion surgery. Id. After surgery, he attempted to resume his duties but was unable to do so. Id. That led to leaving his employment, receiving additional therapy, and to a continuing course of pain management therapy, as a result of which his condition began to improve. Id. Treatment for his injuries involved his physician lawfully prescribing the narcotic pain reliever Avinza at a stable dosage of 60 mg per day. Id. at *2. Importantly, the plaintiff testified that with the medication to manage the pain, he had no physical limitations that would impede him from performing the duties of a police officer. Id. at **2,8. He could bend, handcuff a suspect lying on the ground, and lift or subdue a person. Id. The only limitation he had was the ability to sit in the car for hours on end or to stand in one place for an extended period of time. Id. In May of 2007, Ellwood City Pennsylvania offered him the position of police chief. Id. at *2. In order to serve in that capacity, the plaintiff was required to be recertified by the Municipal Police Officers Education and Training Commission. Id. From there, things went from bad to worse. While Ellwood City was very accommodating, the plaintiff had much less luck with the Municipal Police Officers Education and Training Commission. That is, the medical advisor to the Municipal Police Officers Education and Training Commission refused to believe that the plaintiff could possibly perform his job in light of the injuries he suffered. Id. The plaintiff requested a hearing but was informed that no right to a hearing existed. Id. at *3. Ellwood City then demoted the plaintiff to a lower position with lower pay and benefits so that the plaintiff could essentially do the job of the police commissioner without having to be recertified. Id. At the request of Ellwood City, a doctor of osteopathy performed a functional performance evaluation and determined that the plaintiff was capable of performing the essential demands of the police chief job. Id. Another physician performed a psychological exam and prepared a report stating that the plaintiff was psychologically capable of exercising appropriate judgment and restraint to be certified as a police officer, and that there was no indication of anything that would preclude him from executing his duties as a police officer engaging in weapon usage. Id. You would think that this would’ve been the end of it. However, it wasn’t. The Municipal Police Officers Education and Training Commission then went on to the plaintiff’s lawful use of a narcotic and used that to refuse to certify the plaintiff despite receiving a letter from a physician that the plaintiff was stable on his present medication, demonstrated no side effects from the medication, and was neurologically intact and functioning fully cognitively. Id. at **3-4. Further, the physician had no concerns that McDonald would have any limitations due to his chronic pain or the medication prescribed for treating that pain. Id. at *4. As a result, the plaintiff was put on leave of absence for the entire 2009 calendar year, his contract expired, and the plaintiff found employment doing investigative services for the Travelers Group. Id. Not surprisingly, plaintiff filed suit alleging violation of both the Rehabilitation Act and title II of the ADA as well as a due process violation. Id.

There were three issues before the court. First, did the plaintiff have a disability at all? Since this was a pre-amendments case, mitigating measures per Sutton v. United Airlines had to be included in the analysis. When mitigating measures (Avinza), were included in the analysis, the court could not say that a major life activity was substantially limited, and therefore, the plaintiff did not have a disability under the ADA. Id. at *8, n.8.

Second, did the Municipal Police Education and Training Commission regard the plaintiff as having a disability? There can be no doubt as a factual matter that they did. First, they tried to claim that he could not physically do the job despite evidence to the contrary. See Id. at **2-3. Second, despite medical evidence to the contrary, the Metropolitan Police Officers Education and Training Commission took a rigid position that consumption of Avinza prevented the plaintiff from being certified. Id. at *6. Case closed right? Not so fast says the court for a couple of reasons. First, the court believed that the “regarded as” definition section of the ADA appears to only apply to disability discrimination in the employment setting under title I of the ADA and not to title II of the ADA. Id. at *10. The court cited to Farid v. Bouey, 554 F. Supp. 2d 301, 327 n. 19 (N.D. N.Y. 2008), to 42 U.S.C. § 12112(a) (discussing discrimination in employment), and to 29 C.F.R. § 1630.2(a)-(f),(l) (discussing “regarded as,” in the employment context), for support. Interestingly enough, the court notes that the answer may be different with respect to the Rehabilitation Act, but then never addresses that point. See Id. et. ff. Second, the court drew a distinction between regarding someone as a person with a disability with regarding the person as simply being unfit for certification as a municipal police officer (the former being a problem with the latter not being a problem). Id. at *10.

Does the court’s analysis of “regarded as,” withstand scrutiny? Of course, that is an answer that only the courts can decide, and since the decision has been appealed, the Third Circuit will get an opportunity. In the meantime, it bears discussing whether this does withstand further scrutiny. A strong argument can be made that it will not for several reasons. First, in the definition section in the ADA of what a disability is, there is nothing suggesting that “regarded as,” is limited to employment. See 42 U.S.C. § 12102(3). Second, while it is true that 29 C.F.R. § 1630.2(a)(f),(l) talk about regarded as in the employment context in some detail, it is not the EEOC that has the authority to regulate title II of the Americans with Disabilities Act. Rather, it is the Department of Justice with that authority. See 42 U.S.C. § 12205(a). Reviewing the implementing regulations issued by the Department of Justice with respect to “regarded as,” reveals nothing in that regulation suggests that “regarded as,” does not apply in the title II context. See 28 C.F.R. § 35.104(4). The same, as the court notes, also can be said for the Rehabilitation Act, which regulations also do not suggest that “regarded as” applies only to the employment context. See 45 C.F.R. § 84.3.

Finally, the court had to deal with the question of whether the plaintiff was otherwise qualified. As I have written for several years in the various editions of my book, the real issue here is whether a person is a direct threat rather than whether they are otherwise qualified, but the courts frequently use the term, “otherwise qualified” when discussing direct threat. With respect to this question, the court said that absent evidence of the type of unreasoning prejudice for which the ADA was aimed at, that the difficult individualized decisions and the unique area of police officer certification was not well-suited for second-guessing by the court or jury and therefore, the plaintiff was not otherwise qualified. McDonald 2012 WL 5381403 at *13.

Will the court’s analysis of direct threat, withstand further scrutiny? It might or might not. The answer will depend upon how the appellate court, in this case the Third Circuit, interprets Chevron v. Echazabal, 536 U.S. 73 (2002). In that case, the U.S. Supreme Court said that direct threat must be based on the best available scientific evidence or the best objective evidence. Id. at 86. Here, as discussed above, there there were elaborate indications in the record that the best available scientific evidence or the best objective evidence was such that the plaintiff was not a direct threat to himself or others. That said, one wonders if direct threat means something different in the public safety context. That is, do public safety situations due to the nature of it being a public safety situation, create even more latitude with respect to determining direct threat regardless of the best available scientific or objective evidence? The court in this case suggests that such might be the case.

Advocacy/preventive tips: First, on the defense side, it is always better if you can limit the scope of the law. Thus, it makes sense to try to attempt to say that “regarded as,” does not apply beyond title I of the ADA. Plaintiffs of course are going to take the opposite approach and for the reasons discussed in this entry may well succeed. Plaintiffs are going to want to argue that nothing in the definition section of the ADA nor in the regulations that implement title II of the ADA suggest that “regarded as,” does not extend beyond employment. Second, this case illustrates the problems with mitigating measures being incorporated into the decision of whether a person has a disability. If the drugs are doing a great job with minimal side effects and the case occurred prior to the effective date of the amendments act, a defendant stands a good chance of prevailing on an argument that the plaintiff does not have a disability. Third, with respect to direct threat, plaintiffs are going to want to make an elaborate record, as was done in this case, showing that the person can do the essential functions of the job with or without reasonable accommodations and showing that the person based upon the best scientific or objective evidence, does not constitute a direct threat to himself or others. On the defense side, if there is a public safety situation, the defense will want to argue that public safety demands a different analysis and that such decisions are better off if not left to the court overriding very complex decisions of others. Finally, while the plaintiff would argue that the distinction between a certification exam and drawing conclusions about a person v. regarding a person as having a disability is a distinction that makes no sense or one without a difference, the fact that a court did make this distinction is something the defense may want to consider using in the appropriate situation, particularly in the public safety context. In short, it will be very interesting to see how the Third Circuit handles this.

People who are covered by the Americans with Disabilities Act (ADA) have an obligation to comply with its myriad requirements. The question becomes can that obligation be delegated to someone else? That is, let’s say you are a major hotel and you are building out/renovating the hotel in a big way. You hire a firm with the idea in mind that the buildout/renovations will be done in compliance with the Americans with Disabilities Act. That firm goes about its business in a way below the standard of reasonable due care. That is, the buildout is not done in such a way as to comply with the Americans with Disabilities Act architectural guidelines. This causes you to suffer a tremendous amount of damages in fending off lawsuits from private plaintiff as well as the Department of Justice. Fortunately, you had a clause in your contract with the firm that did the buildout that they would agree to indemnify you for any damages arising from any act, omission, or willful misconduct in the performance of its obligations. Relying on that clause you seek indemnification from the company that did the buildout. Will that indemnification lawsuit succeed?

This was exactly the facts in Rolf Jensen and Associates, Inc. v. Eighth Judicial District Court of the State of Nevada, 282 P.3d 743 (Nev. 2012). The facts of this case were that in 2002, Mandalay Corporation entered into a contract with Rolf Jensen and Associates Inc. to provide consulting services regarding construction of an expansion to the Mandalay Bay Resort and Casino in Las Vegas in compliance with the ADA. Id. at 745. The contract contained a provision providing that Rolf Jensen would indemnify Mandalay for damages arising from any act, omission, or willful misconduct by Rolf Jensen in its performance of its obligations. Id. Once the expansion was constructed, the Department of Justice began an investigation of numerous violations of the ADA arising from the buildout not being done in accordance with the Americans with Disabilities Act architectural guidelines. Id. That led to Mandalay entering into a comprehensive settlement agreement with the Department of Justice requiring them to bring the resort into compliance with the Americans with Disabilities Act. Id. To fix the problems, will Mandalay estimated that the retrofit of it would cost of more than $20 million. Id. Mandalay, per the clause in its contract, brought suit seeking indemnification. Id. Rolf Jensen maintained that the District Court was required to grant its motion for summary judgment because Mandalay’s claims were preempted by the ADA and sought a writ of mandamus from the Nevada Supreme Court to effectuate that. Id.

The Supreme Court of Nevada agreed with Rolf Jensen and reasoned as follows. First, the Nevada Supreme Court said that this was a situation involving conflict preemption. That is, there are two ways a federal law can impliedly preempt a state law. State laws can either be preempted by field preemption, where congressional enactments so thoroughly occupy a legislative field or touch on a field in which the federal interest is so dominant that Congress effectively leaves no room for the state to regulate conduct in that field. Id. at 746.See also the blog entry discussing the Air Carrier Access Act for a discussion of field preemption. Alternatively, you could have conflict preemption. Conflict preemption concerns whether in view of the federal law’s purpose and effects, the state law claims contained in the suit (in this suit indemnification, breach of contract, breach of express warranty, and negligent misrepresentation), pose an obstacle to the accomplishment of congress’s objectives in enacting the federal law. Id.

Second, since this is a case of conflict preemption, the Nevada Supreme Court turned to what it saw as the goals of the Americans with Disabilities Act. They said that the goal of the ADA is to not only to remedy discrimination against disabled individuals but to prevent it. Id. at 747. To ensure that, the ADA comprehensively covers discriminatory practices that persons with disabilities face in major areas of public life, including access to public accommodations. Id. The ADA also focuses on prevention as well. That is, the ADA provides that where a facility is not constructed to be readily accessible to individuals with disabilities, the owner, regardless of intent, is liable for unlawful discrimination. Id.

Third, with the exception of landlord-tenant relationships, no provisions exist within the ADA or its accompanying regulations permitting indemnification to reallocate liability between various entities subject to ADA. Id.

Fourth, the Nevada Supreme Court agreed with Rolf Jensen that such claims of indemnification and the like are preempted because they diminish the owners incentive to comply with the ADA and thereby frustrate Congress’s goal of preventing disability discrimination. Id. at 748. In reaching this conclusion they relied heavily on a Fourth Circuit case, Equal Rights Center v. Niles Bolton Associates, which held that permitting an owner through an indemnification claim to recover its losses lessons the owner’s incentive to ensure compliance with the ADA and the Fair Housing Act. Equal Rights Center v. Niles Bolton Associates, 602 F.3d 597, 602 (4th Cir. 2010). In other words, each entity subject to the Americans with Disabilities Act has a nondelegable duty to comply with that law. Id. To allow it to switch the obligation to comply on someone else means that that individual who has the obligation to comply will not be accountable for discriminatory practices. Rolf Jensen and Associates, 282 P.3d at 748. Or to put it another way, to allow such claims would allow owners to contractually maneuver themselves into a situation where they could ignore the nondelegable responsibilities under the ADA. Id.

Fifth, the remedial scheme set forth in the ADA does not provide for a right to indemnification. Id.

Sixth, Mandalay argued that permitting indemnification claims would have the overall effect of promoting ADA compliance by encouraging owners to seek advice from ADA consultants and therefore should be permitted. Id. at 749. The Nevada Supreme Court disagreed for several reasons. First, they said that owners are motivated to seek advice on ADA compliance in order to aid in their duty to construct facilities in compliance with the law. Id. To say that they only contract with the consultants in order to obtain indemnification should something go wrong, simply diminishes to the extreme the role qualified consultant play in an owner’s effort to meet ADA requirements. Id. Second, allowing such behavior, has a debilitating effect on ADA compliance. Id. Therefore, the Nevada Supreme Court believed that the surest way to maximize ADA compliance would be to hold the owner’s risk of noncompliance firmly in place, i.e. be a nondelegable duty. Id. Third, the owner of Mandalay, a highly sophisticated entity with ultimate authority over all construction decision, is in the best position to prevent violations of the ADA. Id. Lastly, Rolf Jensen still did have liability for their actions, but the liability extended to the individual with disabilities rather than to Mandalay. Id.

Seventh, Mandalay claimed that their claims were not really indemnification claims at all, but rather it was seeking separate and distinct relief for Rolf Jensen’s breach of its contractual and professional obligations. Id. at 750. The Nevada Supreme Court disagreed and said simply that such claims would be a subterfuge for indemnification and for all the reasons discussed here are preempted by the ADA. Id. Accordingly, they held that the lower court had no choice, quite literally, to grant Rolf Jensen’s motion for summary judgment and issue the writ of mandamus (a writ that compels the performance of a governmental act). Id. at 751.

Preventive tips: Basic preventive law before this decision would say that any time you hire someone to do a build out that will be in compliance with the Americans with Disabilities Act or to engage in ADA compliance efforts, that you would put in the contract an indemnification clause, much like the clause that Mandalay had in its contract. However, this decision calls into question as to whether such a clause would either be held to be preempted by the Americans with Disabilities Act or be held to be void against public policy. If you are in Illinois, you might try and rely on two cases involving attorneys suing for wrongful discharge and claim that if indemnification was not allowed then there would be no reason to hire such people to ensure ADA compliance. In those cases, the Illinois Supreme Court said that to allow an attorney to sue for wrongful discharge would jeopardize the attorney-client relationship. See Balla v. Gambro, Inc. 145 Ill. 2d 492 (1991); See also Jacobsen v. Knepper and Moga P.C. 185 Ill. 2d 372 (1998). That is, why hire such a person at all if it would just come back to bite you. That said, the states that have considered whether an attorney can sue for wrongful discharge, have uniformly disagreed with the reasoning of the Illinois Supreme Court in both of those cases. Sheppardize Balla v. Gambro and General Dynamics Corporation v. Superior Court 7 Cal. 4th 1164 (1994), to see that the California view is prevailing and that the Illinois view is restricted to Illinois. In short, if you are in Illinois, the indemnification language may be worth a shot. If you are in another state, the indemnification language may run into the trouble that it ran into in Nevada. Assuming such an indemnification clause will fail, what is the company to do? A couple of possibilities include: hiring a person to independently double check the work of the contractor; or having your in-house counsel or other in-house personnel work with the contractor and any other consultants to ensure that the work/advice is done/given in the way that is supposed to be done/given. True, such a process increases the costs to the company. However, by doing so, it helps ensure that the company’s nondelegable duty is satisfied and also increases the probability that the Americans with Disabilities Act will be fully complied with.

A hot area of the Americans with Disabilities Act jurisprudence is the question of mixed motive. That is, can a plaintiff get a mixed motive jury instruction in Americans with Disabilities Act cases, or for that matter in Rehabilitation Act cases as well, in light of Gross v. FBL Financial Services? Previously, we have discussed this extensively (see the link). However, this question goes beyond whether you can simply get a jury instruction for mixed motive. Other permutations include if motivating factor does not exist, does the indirect method of proof vis-à-vis McDonnell Douglas apply to Americans with Disabilities Act cases; and can you allege more than one cause of action if you are limited to showing but for causation. With respect to the first question, the legislative history of the ADAAA clearly states that the indirect method of proof is still meant for Americans with Disabilities Act cases.

With respect to the second question, a case that answers this question is Pearson v. Lawrence Medical Center 2012 WL 5265774 (N.D. Alabama October 24, 2012). In this case, the plaintiff was a 59-year-old man with diabetes and high blood pressure. Id. at *1. The company hired an interim CEO who within two months was promoted to CEO and thereby became the plaintiff’s direct supervisor. Id. at *2. Eventually, the plaintiff needed to visit his doctor more frequently because he was having difficulty with his insulin pump and also because he required a stress test to determine how well a stent implanted in his heart was working. Id. Things went from bad to worse. The new CEO told the plaintiff that he needed someone 20 years younger to perform the duties of the job and that he did not like him missing work to attend doctor’s appointments. Id.. He placed the plaintiff on a performance improvement plan for three months, but instead of letting him finish out the performance improvement plan, terminated him within one week. Id. Plaintiff filed suit alleging violations of the Family and Medical Leave Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. The defendant’s view was that Gross meant that the plaintiff had to elect the law he was going to proceed under since motivating factor was not, in the defendant’s view anyway, a possibility under the Americans with Disabilities Act. Id. at *2-3.

The court’s, northern district of Alabama, reasoning is very interesting. First, they note that there are cases that say you would have to elect the remedy, but that they found such cases to be illogical. Id. at *3. The court noted that a sole cause standard is not the same thing as a but for standard. Id. at *4. The court said that a sole cause is a necessary cause, but a necessary cause does not have to be a sole cause. Id. That is, a particular result may have two or more necessary causes and in the court’s view, Gross is not to the contrary. Id. Therefore, if a plaintiff alleges causes of action involving different causation standards (motivating factor per title VII or but for under the Age Discrimination in Employment Act or the Americans with Disabilities Act), it would still be possible for the plaintiff to prove motivating factor or substantial factor while also being able to show but for causation with respect to the statutes requiring but for linkage. Id.

So, what does this all mean? It means a few things. First, if a plaintiff is faced with alleging causes of action with different causation standards (motivating factor and but for), they will be able to file a claim alleging violations of laws with different causation standards. Second, the discussion of necessary cause and how it differs from sole cause, allows for a plaintiff to file multiple causes of action even if both statutes (for example, the Age Discrimination in Employment Act and the Americans with Disabilities Act), use but for causation.

Finally, from reading the case law, it is very clear that plaintiffs are very interested in mixed motive while the defense is very interested in not allowing mixed motive to go forward. However, I recently attended the national convention of the American Bar Association section on labor and employment law. During that convention, I heard a very distinguished panel (a defense attorney, a plaintiff attorney, and a federal judge), respond to a question about mixed motive. In response to that question, it was suggested as a possibility that mixed motive may actually work against plaintiffs. That is, jurors may have a difficult time with the concept of mixed motive and that but for causation is much more manageable. Also, as seen in the discussion of the case that is the subject of this blog entry, but for causation can be presented in such a way so that it is not confused with sole cause. This presentation that I attended has you wondering whether the lawyers do not in fact have it backwards. That is, should plaintiff just allow but for to prevail? It is certainly counterintuitive. For that reason, I am not sure I see the end of litigation with respect to mixed motive and plaintiffs wanting to be able to use the principal and defendants not wanting plaintiffs to be able to use the concept.

In a previous blog entry, the Air Carrier Access Act was discussed in terms of whether it allowed for a private cause of action where an airline violated the regulations that carry out that act. However, that blog entry did not answer two questions. First, assuming a private cause of action for violation of that act is allowed, would you have to exhaust administrative remedies first? Second, assuming a private cause of action is not allowed, could you then pursue a claim under a state law that might apply?

A case that answers both of these questions is Segalman v. Southwest Airlines, 2012 WL 5289308 (E.D. Cal. October 24, 2012). In this case, the plaintiff flew Southwest Airlines several different times. Id. at *1. During each of those times, Southwest Airlines did not comply with the Air Carrier Access Act regulations with respect to stowing wheelchairs. Id. As a result, he was not able to use his wheelchair upon arriving at his destinations. Id.. The plaintiff had cerebral palsy and had to use a specific wheelchair. Id. Under the Air Carrier Access Act, there are very specific regulations dealing with how an airline is supposed to deal with the person’s wheelchair. Id. at *6. Those regulations were not complied with. That caused him considerable distress, physical mental anguish, and considerable inconvenience as he had to get the wheelchair fixed in a variety of different locations. Id. Instead of filing an administrative complaint with the Department of Transportation, which enforces the Air Carrier Access Act, the plaintiff filed suit against Southwest Airlines alleging violations of the Americans with Disabilities Act, violation of the California Unruh Act, and violation of the California Disabled Persons Act. Id. at *2. Not surprisingly, in light of our previous blog entry, Southwest Airlines moved to dismiss the Americans with Disabilities Act claim. They also moved to dismiss the state law claims as well arguing that the state law claims were preempted by federal law.

For the reasons mentioned in the other blog entry dealing with this subject, the Eastern District of California dismissed the Americans with Disabilities Act claim saying that the Americans with Disabilities Act did not apply to this situation. Rather, the applicable law was the Air Carrier Access Act. Id. at *3-5. However, the court went even further when it said that since the federal government had issued extensive regulations implementing this particular statute, that means that the federal government meant to preempt the field with respect to other laws that might apply, certainly with respect to any laws where the federal government had very specific specific applicable regulations (the Air Carrier Access Act has very specific regulations on how wheelchairs must be stowed). Id. at *5-7.

Finally, the private cause of action discussion in this case has an interesting element to it. That is, while the court said that no private cause of action exists, they also said that if somehow a private cause of action did exist, the statutory scheme was such that it required exhaustion of administrative remedies. Id. at *5. In this case, the plaintiff did not exhaust administrative remedies because he never filed a claim with the Department of Transportation. Id.. This discussion of administrative remedies is very interesting because there is nothing in this opinion that suggests that exhaustion of administrative remedies would change the equation with respect to whether a private cause of action exists in the first place.

Preventive tips: If you are plaintiff, you definitely want to file with the Department of Transportation and go through that process. Once that process is complete, you could try filing in federal court. The problem with that approach is that the statute doesn’t contain any indication that you can go to federal court, in much the same way as you would go to federal court under title I of the ADA once administrative remedies are exhausted. That said, once that process is completed, the plaintiff may want to try and argue that the regulations themselves create a private cause of action, which for reasons discussed in the other blog entry would be a tough sell but maybe it’s worth a shot. Also, if a state law deals with the situation and the Air Carrier Access Act regulations do not specifically pertain to the situation at issue, then a plaintiff might argue that violations of the state law occurred and were not preempted by the federal regulations. On the defense side, the argument is pretty simple. That is, the Air Carrier Access Act is the only law that applies with respect to air carriers, airports and persons with disabilities. Further, the Air Carrier Access Act statute does not allow for a private cause of action. Also, the statutory scheme is such that a private cause of action for violating the regulations would not be allowed either. Finally, the defendant would argue that any allegations that state law was violated were preempted by the federal regulations. For good measure, the defendant could argue that a plaintiff would need to exhaust administrative remedies first, just in case the plaintiff did not do that. With respect to the administrative remedies exhaustion, I am not really sure I follow that argument because it simply would not come into play if no private cause of action existed in the first place. Also, by saying administrative remedies should be exhausted first, the implication is that a private cause of action exists after that. In short, it would seem that the defense in a case such as this would have the upper hand absent some congressional enactment making clear that a private cause of action existed.*

*I recently attended the labor and employment convention of the American Bar Association. At that conference, I heard a distinguished panel of attorneys discussing the future of labor and employment law generally. During that discussion, the panelists said that it was their belief that due to budgetary constraints, that it was probably a better use of resources for federal agencies to move in the direction of technical assistance and guidance and leave the litigation to private parties. If that belief is correct, then it would make sense for Congress to move in the direction of authorizing a private cause of action for violation of the Air Carrier Access Act, either generally or where specific regulations are violated. Of course, in such an eventuality, the question of attorneys fees would need to be addressed as well.

Title III of the ADA requires that any new buildings, after 1992, be built in accordance with strict architectural guidelines that mandate accessibility for persons with disabilities. Also, any renovations to buildings, whether the building is built before 1992 or otherwise must be made in a way so that the renovations are accessible to persons with disabilities to the maximum extent feasible. Further, the path of travel to those renovations also must be accessible to persons with disabilities as well. This particular blog entry poses several questions. First, what happens when the renovations/alterations are not done in a way to ensure access for persons with disabilities to the maximum extent feasible? Second, can ownership structure be used as a vehicle to get around whether title III applies at all? Third, when does an alteration occur? Fourth, for buildings built prior to 1992, all a defendant has to do is to make modifications that are readily achievable. How does the burden of proof work then?

The two cases that answers all of these questions are: 1) Roberts v. Royal Atlantic Corporation _ F. Supp. 2d_, 2012 WL 4849138 (E.D. N.Y. October 5, 2012), which is actually the decision resulting from a remand in the case of 2) Roberts v. Royal Atlantic Corporation, 542 F.3d 363 (2d Cir. 2008). This case involved a group of cooperative apartments that are joined together and marketed as a single beachfront resort with pools and a restaurant. Roberts 2012 WL 4849138, *1. Those units, which comprise the resort, are available for sale and resale. Id. The individual owners are free to occupy their units exclusively and do not have to make the units available for rental. Id. However, they do have the option of making the units available for periodic seasonal rental to members of the general public. Id. When they do that, the rental of the units is facilitated by a management company that handles rentals on behalf of the unit owners participating in the program. Id. A person desiring to rent out the unit makes the unit available to the management company which then advertises and offers the unit for rent, communicates with members of the public wishing to stay at the resort, and facilitates the entire rental process on behalf of the unit owner in exchange for a fee. Id. What happened here was that two mobility impaired plaintiffs booked rooms at the Resort and because of the inaccessibility of the rooms, they faced tremendous difficulties during their stay. Roberts 542 F.3d at 366. As a result, they filed suit alleging that the resort violated title III of the Americans with Disabilities Act. Id. Turns out that in 2000 and 2001 rooms at the resort underwent a major renovation. Id. at 374-375. However, those renovations were not done in such a way so as to have the rooms be fully accessible to persons with disabilities. Id. at 374.

So, if you do not make your alterations accessible to persons with disabilities when the renovations are occurring, down the road all the person with the disability has to do to meet their burden of production is to identify some manner in which the alteration could have been made readily accessible and usable by individuals with disabilities. Id. at 372. Once they do that, then the burden of persuasion switches to the defendant, and the defendant would have to show that it would be virtually impossible in light of the nature of the facility for renovations to be made readily accessible and usable by persons with disabilities, Id. an extremely tough burden to show. The same construct applies to the path of travel as well. Id.

The second question concerns ownership structure. Can ownership structure be used to get around the requirements of title III? The appellate court said that it would be a rare case that such a limitation could excuse the ADA’s accessibility requirements. Id. at 375. The District Court on remand, was not buying it either. More specifically, they said that the record was such that it was clear that the resort advertises and holds itself out to the public as a place where rooms are openly available for rent. Roberts 2012 WL 4849138 at *4. Therefore, just because the resort is made up of a group of individual owners does not change its character as an inn, hotel, motel, or other place of lodging that would be subject to title III of the ADA. Id.

Third, with respect to the first issue, it becomes necessary to know when that an alteration occurs in the first place. After all, if there is no alteration, then the requirements to make an alteration to be accessible to persons with disabilities to the maximum extent feasible simply does not apply. The appellate court decision dealt with and answered this question. In particular, they relied on the Department of Justice regulations defining alteration which says that an alteration is a change to a place of public accommodation or commercial facility that affects or could affect the usability of the building or facility. Roberts 542 F.3d at 368-369. That is, the key focus must be on changes affecting usability of the facility and not on changes relating directly to access by individuals with disabilities. Id. at 369. Some factors that could be considered are: the overall cost of the modification relative to the size (physical and financial) of the facility; the scope of the modification (including the portion of the facility or relevant part that was modified); the reason for the modification (including whether the goal was maintenance or improvement, and whether it was to change the purpose or function of the facility); and whether the modification affected only the facility’s services or affected also the structural attachments and fixtures that were part of the realty. Id. at 370. Notably, the plaintiff bears the burden of production that an alteration has occurred, but it is the defendant the bears the burden of persuasion to establish that the modification of the facility is not an alteration. Id. at 371.

Finally, with respect to buildings built before 1992, a defendant need only make modifications to that building that are readily achievable. How does the burden of proof work in that situation? The appellate decision answered that question. First, a plaintiff has to articulate a plausible proposal for barrier removal which cost do not clearly exceeded its benefits. Id. at 373. In the Second Circuit’s view, those estimates and proposal do not need to be exact or detailed. Id.. The defendant can then counter the plaintiff’s showing by persuading the court that the costs of plaintiff’s proposal would in fact exceed the benefits. Id. Finally, benefits include both monetary and nonmonetary consideration. Id. However, the defendant’s burden does not end there for if they are able to establish that the plaintiff’s proposal would not be readily achievable, they also must establish that the proposal would not be readily achievable even if ADA design requirements were relaxed because the applicable federal regulation allows the relaxation of certain ADA requirements in the case of making the facility as accessible as possible where readily achievable is the principal at issue. Id. at 378.

Preventive tips: First, if the building is built before 1992, assess your facility to see what modifications are readily achievable . When doing that, be sure to look at the Department of Justice regulations on what is readily achievable. They are actually quite detailed. If you do that, then because readily achievable is rather flexible, you may be in a good litigation position. Second, if you are representing a timeshare entity or an entity that markets individually owned units in the context of a whole “resort,”, you will want to read these decisions very closely. In all probability, with respect to modifications and renovations, both of the cases discussed in this blog entry, are going to be directly on point. Third, build any new buildings and undertake any renovations/alterations in accordance with the architectural guidelines. Fourth, if there are renovations, assess whether they are altering the facility in terms of its usability. Again, these decisions should be very helpful with that. Since the burden on the defendant is very tough, err on the side that an alteration is occurring. Finally, as mentioned in another blog entry, if you do get sued, depending upon the cost involved, consider fixing the problem so as to head off a successful claim for injunctive relief and attorneys fees.

Under title III of the Americans with Disabilities Act, the only remedy the plaintiff can get is injunctive relief and attorneys fees. The court may also fine violators up to $50,000 for a first violation and up to $110,000 for each subsequent violation. Attorney fees are only available if the person prevails. What does it mean to prevail? The United States Supreme Court has said to prevail means to receive a judgment or some relief on the merits by the court. See Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources 532 U.S. 598, 603-604 (2001). Since whether the defendant changes their behavior (the catalyst theory), is not relevant, the defendant may find it better to fix the violations of the Americans with Disabilities Act rather than litigate it and risk a judgment or some kind of decision on the merits coupled with attorneys fees. That is exactly what happened in Rush v. Islands Restaurant. In that case, plaintiffs sued the restaurant because the parking lot did not comply with the Americans with Disabilities Act architectural guidelines. The restaurant decided to fix the problem. The plaintiff realizing that they were about to lose their attorneys fees petitioned the court to have the defendant stopped correcting the problem on the grounds that they were spoiling the evidence. The court was having none of it. The court said that the evidence was already preserved and that to allow the petition would be to force the defendant to continue to violate the Americans with Disabilities Act. Furthermore, allowing such a petition would defeat the whole purpose of the remedy system for Title III, which is designed to allow private parties to act as a private attorney general. While attorneys fees and injunctive relief would no longer work because the claim would be moot, the point was that the problem would be fixed.

Lessons learned: if you are plaintiff, don’t tie your fees to whether a court gives you attorneys fees. If you are a defendant, and you are representing an entity sued for violating title III of the Americans With Disabilities Act, consider fixing the problem, especially if liability is a given and the problem doesn’t take much to fix. That way, you prevent the plaintiff from getting its injunctive relief and attorneys fees.

In a previous blog entry, I talked about the principle of sovereign immunity as it applies to persons with disabilities. As mentioned in that blog entry, a state, including an arm of the state, is not going to be forced to waive its sovereign immunity with respect to disability discrimination in employment matters. With respect to title II matters, that is a bit more complicated because as we discussed previously, it is going to depend upon the facts of the case. To recap, before a state can be forced to waive its sovereign immunity, the court would have to find that Congress specifically stated that states will waive their sovereign immunity and that the particular law at issue is an appropriate enforcement of the equal protection clause of the 14th amendment. That is, that law must be proportional to the harm being redressed. As mentioned in that previous blog entry above, it will come down to what protected class the person is in for purposes of equal protection jurisprudence. The higher the class, the more likely the forced waiver of sovereign immunity is to survive.

Principles discussed in that blog entry also apply to other areas as well. For example, it could be a situation where an entity does not defend based on sovereign immunity but says that the law itself is unconstitutional because it is not an appropriate enforcement of the equal protection clause. That was the case in Mason v. City of Huntsville, Alabama, _ F. Supp. 2d _, 2012 WL 4815518 (N.D. Ala. October 10, 2012). In that case, two plaintiffs, both residents of Huntsville Alabama, sued the city of Huntsville Alabama for violations of the Americans with Disabilities Act and the Rehabilitation Act of 1973. Id. at *1. In particular, they claimed that several locations owned, operated and maintained by the city of Huntsville were not accessible to them. Id. at *2-3. They sought attorney fees and injunctive relief and costs. Id. at *1. While the city of Huntsville did not defend on the grounds of sovereign immunity (it couldn’t because cities are not sovereigns) ( see Board of Trustees of University of Alabama v. Garrett 531 U.S. 356, 369 (2001)), it did claim that title II of the Americans with Disabilities Act went too far. That is, with respect to the violations of the Americans with Disabilities Act that the plaintiff were alleging, title II of the Americans with Disabilities Act was not a proportionate response to the harm seeking to be redressed and therefore was unconstitutional. Mason 2012 WL 4815518 at *6.

The court broke down the plaintiffs claims into three different categories: sidewalks, curb ramps, and parking; municipal administration facilities; and entertainment and recreation venues. Id. at *8. With respect to sidewalks, curb ramps, and parking, the first question the court had to address was whether the Americans with Disabilities Act applied to that in the first place. The court, relying on the Rehabilitation Act of 1973, which covers anything that a public entity does, said that the Americans with Disabilities Act does apply to sidewalks, curb ramps, and parking. Id. Next, you have to figure out whether sidewalks, curb ramps, and parking were subject to rational basis review or something higher. The court noted that sidewalks, ramps, and parking areas are used primarily to facilitate the public transportation of people, goods and commerce, but they also could be used for the purposes of assembly. Id. at *9. In this case, while the plaintiff alluded to the First Amendment (the assembly piece) in their response to the motion to dismiss, they did not plead any such facts. Id. Accordingly, the court said that only rational basis scrutiny is implicated when analyzing the question of sidewalks, curb ramps, and parking areas. Id.

Since only rational basis was indicated, that means that the plaintiff’s lost with respect to whether title II of the Americans with Disabilities Act was a proportional response to the harm being redressed? Not so fast, the court said. Turning to a House report, the court noted that people with disabilitie have suffered harms resulting from construction of transportation, architecture and communication barriers, and that transportation was the critical piece that enables persons with disabilities to be integrated into the mainstream of society. Id. at *10. Further, accessible transportation promotes the self-reliance and self-sufficiency of people with disabilities that enables them to get to work and vote thereby allowing them to exercise their rights and obligations as citizens. Id. Accordingly, despite sidewalks, curbs, and parking areas constructed after 1992 being in the rational basis class, the court found that title II of the Americans with Disabilities Act was a proportional response to the harm being redressed, and therefore, was within congressional authority to enact. Id. at *11.

With respect to municipal administration facilities, the court said that denying the use of municipal administration facilities based on a person having a disability implicated fundamental rights to speech, assembly and association. Id. Therefore, heightened scrutiny applied to the issue of municipal administration facilities discriminating based on disability. Id. Heightened scrutiny is a very difficult standard to meet and is rarely met. That is, the defendant would have to show that there were grave and immediate dangers to interests that the state may lawfully protect, which they couldn’t do. Id. Accordingly, the court found that title II with respect to municipal administration facilities, was a proportional response to the harm seeking to be redressed. Id.

With respect to entertainment and recreation venues, the the court noted that the class at issue might vary depending on whether some of those facilities house educational programs and library resources because in the 11th circuit, there is a vital, though not fundamental, right of equal access to education. Id. at *12. However, the plaintiffs did not claim that any educational program for library resources were involved. Id. The court, relying on another case, from the northern district of Georgia, said that while there was no separate constitutional right to access parks and recreation facilities, nevertheless, a person could allege that such discrimination was irrational. Id. Accordingly, entertainment and recreation venues fell in the rational basis classification. Id. Once again, the plaintiff prevailed even though rational basis is the class at issue. In particular, the court noted that title III prohibits discrimination and that it would be completely illogical for Congress to prohibit discrimination in places of public accommodations, title III, but allow it for public entities, title II. Id. Such an inconsistency would also contravene the purpose of the Americans with Disabilities Act. Id. Finally, because title II of the Americans with Disabilities Act allows a governmental entity a great deal of flexibility when it comes to carrying out its provisions of the regulations implementing title II, a public entity is not unduly burdened by the statutory requirements. Id. Accordingly, the court found that title II of the Americans with Disabilities Act was a proportional exercise of congressional power even though entertainment and recreational venues would be in the rational basis class. Id.

This case is also notable for something else as well. That is, the plaintiffs allege that there was an independent violation of the Americans with Disabilities Act because the city of Huntsville Alabama, as is common to public entities, did not do a self-evaluation plan or develop a transition plan per the requirements of the Americans with Disabilities Act. While the court said that such a failure did not give rise to an independent cause of action for violating the Americans with Disabilities Act because the DOJ regulations were not from an express mandate of the ADA, it could be used as evidence of overall ADA noncompliance. Id. at *14-15.

Thoughts: As noted in the previous blog entry, equal protection jurisprudence breaks down into what class you fall into. It used to be that those classes were rigid. However, those classes are breaking down. For example, you are now seeing cases throwing out laws even if they are subject to rational basis review. In addition to this case, which didn’t throw out a law but rather allowed it (flip side of the same principle), one could also look at the cases throwing out restrictions against gays and lesbians. Frequently, those restrictions are being thrown out saying that the restrictions are just subject to rational review and that the restrictions are irrational and therefore unconstitutional. The problem with equal protection jurisprudence with respect to dividing people into classes is that it is inherently divisive. That is, what if one group of people is in the lowest class while other groups of people are in higher classes, especially where a group of people may be in the rational basis class (a much harder class than the others for challengers). Also, since persons with disabilities may change the classification depending on the facts, one wonders if the classification system may be a bit arbitrary. In short, it will be interesting to see how the classification systems holds up or evolves over time. For example, Justice Stevens, now retired, has written in the past that this whole system of equal protection jurisprudence was problematic. Since the system has been around for a long time, one wonders if it would be replaced and if so by what?

While a specific cause of action for violating the Americans with Disabilities Act for not doing a self-evaluation plan for transition plan is not in play under this case, this case does suggest that it would be a good idea for the public entity to review their programs and do a self-evaluation plan and transition plan even though the deadline for doing that has long passed, early 1990’s, so as to prevent a plaintiff from bringing forth the failure to do so as evidence of overall noncompliance with the Americans with Disabilities Act.

Anybody that wants to go to law school must take the LSAT, law school admission test sponsored by the law school admission Council (LSAC) . The LSAT is a standardized test consisting of 100 multiple-choice questions ( Binno v. American Bar Association, 2012 WL 4513617, *1 (E.D. Mich. September 30, 2012)), divided into five sections labeled as either reading comprehension, analytical reasoning, or logical reasoning ( Department of Fair Employment and Housing v. Law School Admission Council Inc., 2012 WL 4119827, *1 (N.D. Cal. September 18, 2012)). Approximately 1/4 of those questions are analytical reading questions or logic game questions. Binno v. American Bar Association, 2012 WL 4513617, *1 (E.D. Mich. September 30, 2012). Those questions, in particular, require spatial reasoning and diagramming the visual concept for successful completion by most applicants). Id. This creates two issues. First, does the Law School Admission Council set up the accommodation process for taking the test in a discriminatory manner? Second, if the LSAT itself is a test that is discriminatory, would it be a reasonable accommodation to waive the test? If waiving the test would mean that the school would be subject to sanction from the American Bar Association, does that mean that the American Bar Association itself can be sued?

The two cases mentioned above answer both of the questions posed. In the California Department of Fair Employment and Housing case, they filed suit against the Law School Admission Council seeking damages and injunctive relief over the failures of the LSAT to provide accommodation for persons with disabilities who were to take the test (LSAT). Department of Fair Employment and Housing 2012 WL 4119827, at *1. In particular, the LSAC required that candidates requesting extra time or other accommodation for a cognitive or psychological impairment submit to psychoeducational and neuropsychological testing and provide a full diagnostic report that included records of the candidates aptitude and achievement testing. Id. They claimed also that the LSAC required applicant to disclose in an accommodation request whether or not they took prescribed medication during the medical evaluation of their condition and if they did not take their medication to explain to the failure to do so. Id. Also, it was alleged that the LSAC has a policy of flagging the LSAT exam scores of individuals who receive disability accommodation for extra time. Id. at*2. That is, the LSAC includes a notation on the accommodated individual’s score report that the score was achieved under nonstandard time constraints and further, excluded extended-time scores when calculating LSAT percentile rankings. Id. The consequence of that practice is that an individual receiving extended time on the LSAT has that fact disclosed to all law schools receiving that individual’s score report. Id. The Department of Fair Employment and Housing of California filed suit in state court alleging violations of the Unruh Act, which provides that violation of the ADA is also a violation of that act and allows for monetary damages. Id. at *5 The LSAC removed the case to federal court, and the United States Department of Justice then got involved and filed a statement of interest. Id. at *2.

The first argument that the LSAC made was that the Department of Fair Employment and Housing of California did not have jurisdiction to investigate the ADA claims. The court was having none of that argument as the Unruh Act, as mentioned above, is explicitly tied into the Americans with Disabilities Act.

The second argument that the LSAC made was that the Department of Fair Employment and Housing only had the authority to investigate claims violating the Americans with Disabilities Act under the rules as they existed prior to the amendments act. The court was having none of this argument either. In particular, the court noted that as early as 1977 when the California legislature amended the fair employment practices act to include physical handicap as a prohibited basis for discrimination, the legislature declared that it was the policy of California to encourage and enable individuals with a disability to participate fully in the social and economic life of the state. Id. at *6. Nineteen years after that, in response to the passage of the Americans with Disabilities Act, they amended the Unruh Act to state that California law would be strengthened where it was weaker than the ADA and retained when it provided more protection than the ADA. Id. The court also cited to another case that said that the Americans With Disabilities Act is a floor under state law. Id. at *7. Finally, the court looked to the legislative history and determined that it was the intent of the California legislature to incorporate the ADA into the Unruh Act as a system or body of laws. Id. at *9-10. Accordingly, the court held that a Department of Fair Employment And Housing had the authority to investigate claims arising out of other matters besides employment and to do so using the Americans with Disabilities Act post-amendments.Id.

With the procedural stuff out of the way, Judge Chen of the northern district of California turned to the merits of the plaintiff’s claim with respect to seeing whether they could survive a motion to dismiss. The first cause of action alleged that the LSAC violated the rights of the class members under the Fair Employment and Housing Act of California by requiring applicants to take the medication prescribed for their disabilities while being evaluated for accommodations or explain their failure to do so. Id. at *13. In saying that this particular allegation could survive a motion to dismiss, Judge Chen said that requiring applicants to take prescribed medication while being evaluated for accommodationss not only contravened the the definition under the Americans with Disabilities Act as amended (which as we have discussed elsewhere in this blog, specifically says that mitigating measures are not to be included when it comes to assessing whether a person has a disability unless you are dealing with ordinary eyeglasses), but also had the legal effect of erroneously and wrongfully denying an applicant the legal status of a person with a disability , thereby depriving him or her of the right to accommodations that he or she would otherwise be entitled to. Id. at *15.

With respect to the flagging of scores, Judge Chen said that this allegation could go forward as well. In particular, the system of flagging ensures that the examination does not accurately reflect the individual’s aptitude or achievement level. Id. at*17. In particular, Judge Chen, relying on a decision that was not published but was not configured as such so as to be problematic with citing to, said that the test must be set up in such a way so as to allow persons with disabilities to demonstrate their true ability. Id. That is, test providers had a duty to ensure that their tests are selected and administered the equally measure the ability of persons with and without disabilities and if tests providers met that burden, then there was no reason to flag the tests of test takers with disabilities receiving accommodation. Id.

The third cause of action alleged that the flagging policy unlawfully coerced and discouraged potential test takers from seeking accommodations or punished those who received accommodations in violation of the Americans with Disabilities Act. Id. at *18. Once again, this cause of action was allowed to go forward as the court believed that the flagging policy necessarily announced an individual’s disability above all else and that such a policy could not be reconciled with the Americans with Disabilities Act’s mandate that testing entities administer exams in order to best ensure that the exam results reflect individual skills and achievement levels and not their disability. Id. at *18.

The fourth cause of action claimed that the law school admission Council (LSAC) violated the Americans with Disabilities Act by requiring excessive documentation. Judge Chen also allowed this cause of action the go forward as well. In particular, he noted that the Americans with Disabilities Act implementing regulations state that a private entity offering the examination covered by the Americans with Disabilities Act has to show that any requests for documentation be reasonable and limited to the need for the modification, accommodation, or auxiliary aid or service requested. Id. at *20. In particular, Judge Chen noted that excessive or unreasonable documentation could deny an applicant’s access to an examination in violation of the ADA. Id. He also referenced the Department of Justice’s 2010 revisions to the federal regulation where they stated that they discovered that requests made by testing entities for documentation regarding the existence of an individual disability and his or her needs or modification/auxiliary aid or service was often inappropriate or burdensome. Id. Finally, Judge Chen said that the obligation to refrain from inappropriate or burdensome request for documentation came from the law itself and not from any regulations. Id. at *21. Accordingly, he denied the motion to dismiss this particular cause of action and also held that a private cause of action existed. For the same reasons, he allowed the fifth cause of action, which alleged that excessive documentation requirements coerced and discouraged the plaintiffs from seeking disability related accommodations, because by allowing the fourth cause of action you clearly reached the conclusion that requiring excessive documentation is a way of coercing and discouraging people with disabilities from seeking disability related accommodations. Id. at *22.

Preventive law tips: Some things to keep in mind. First, every state has their own antidiscrimination law with respect to persons with disabilities. Depending on how those laws are tied into the Americans with Disabilities Act, the entities enforcing those laws may have wide-ranging authority to investigate claims arising from the Americans with Disabilities Act. Second, depending upon how those state laws are configured, it is also quite possible that those state laws adjust as the Americans with Disabilities Act is amended over time. Third, an entity needs to review its requirements for having a person with a disability request an accommodation or a modification to a program or activity with respect to the documentation it wants before deciding to make the accommodation/modification (the big impact here is likely to be on the employment side and on the title II side-example colleges and universities requesting elaborate documentation in order to accommodate a student with a disability). Excessive or unreasonable documentation requests are likely to be problematic. Finally, if a standardized test is flagging scores, this particular case gives a lot of ammunition to those seeking to challenge that practice.

But what if the accommodation for the test taking is not the problem, but rather the test itself is the problem. That is, if a person with a particular kind of disability simply cannot answer the test as configured, does that mean that the test itself should be waived? What if the school were to waive the test and by doing so would subject itself to sanction from the accrediting body, in this case the American Bar Association. Would you then be able to sue the accrediting body for violations of the Americans with Disabilities Act? This was precisely the case in the Binno case mentioned above. In this case, a blind person who spoke three different languages fluently, completed high school education in three years, graduated from a four-year college, and obtained a high security clearance and employment with United States Department of Homeland Security, was unable to get into law school because his disability made it impossible to answer 25% of the test effectively. Id. at *1-2. The American Bar Association regulations demand that a valid and effective test be used by law schools in selecting their entering class. Id. at *5. Furthermore, if a law school waves the test, they can be subject to sanction from the American Bar Association. Id. at *4. In particular the plaintiff in this case alleged that he was unable to obtain admission to a law school because of the fear of sanctions, and therefore, the American Bar Association should be held liable for that. The court granted the American Bar Association motion to dismiss for two reasons. First, the American Bar Association did not administer, develop or control the format of the LSAT. Id. at *6. Second, nothing in the plaintiff’s complaint alleged that any of the law schools to which he applied to made a request to the American Bar Association for a variance. Id. at *5. Accordingly, the court held that the plaintiff lacked standing to bring this action against the American Bar Association for the reasons discussed.

Tips: If the person with a disability is truly prevented from demonstrating his or her abilities on the LSAT due to the nature of the test, then it would behoove that person to get in writing from one of the law schools that the reason they did not seek a waiver was the fear of sanctions. Alternatively, such a person would want to ask the law school to seek a waiver from the American Bar Association. Second, nothing in this case suggests that the regulations of the American Bar Association itself with respect to how they are set up for persons with disabilities in terms of accrediting law schools would not be subject to a challenge if those regulations were discriminatory (full disclosure: this author is is aware, through his participation in a committee, that the American Bar Association is revising their accreditation standards and that persons with an interest in the rights of persons with disabilities had a chance to give their input into that process, though I am not sure what the final result was). Third, if the regulations are discriminatory, the best approach for the plaintiff may be to sue the law school itself. If it is the regulations that are the problem, the law school been could then plead in the American Bar Association into that dispute.

Few cases today actually go to trial. However, the ones that do go to trial involving juries necessarily mean that a jury has to be picked first. Jurors aren’t so much picked as they are eliminated. With respect to jury selection, there are three kinds of jury challenges. First, there is a peremptory challenge. Peremptory challenges are challenges made by an attorney for any reason whatsoever. That is, the attorney, depending upon the jurisdiction, has a certain number of challenges they can use for whatever reason they want and no explanation is necessary. For example, if an attorney did not like the color of a prospective juror’s shirt, it is theoretically possible that the attorney could use a peremptory challenge to eliminate that person from the jury pool. The second kind of challenge is a challenge for cause whereby an attorney can exercise a challenge if he or she can convince the court that the prospective juror is hopelessly biased. For example, a prospective juror that is totally opposed to the death penalty would be able to have a challenge for cause exercised against him or her if that prospective juror was serving on a capital murder case. Finally, there is something called a Batson challenge, which comes from the case of Batson v. Kentucky, which has its civil equivalent in Edmondson v. Leesville Concrete Company, Inc., 500 U.S. 614 (1991). In a Batson challenge, an attorney that is using peremptory challenges to exclude jurors based on a prohibited characteristic, such as race or gender, can be challenged by the other attorney to show cause to the court as to why the peremptory challenges are being used in that way. If the explanation the attorney gives the court for using the peremptory challenges in that way is not sufficient for the court, then the court can impose penalties upon the attorney using the peremptory challenges in the discriminatory fashion. The question that this blog entry deals with is whether Batson challenges can be used when a prospective juror is one with a disability.

Batson challenges can only be used on behalf of a person falling into the equal protection class of intermediate scrutiny or strict scrutiny. See Batson v. Kentucky, 476 U.S. 79, 96 (1986). As mentioned in a previous blog entry the equal protection class that persons with disabilities fall into depends upon the fact of the case. In the third edition of my book, I spend a great deal of time talking about statutes that discriminate against people with disabilities wanting to serve as jurors. I also talked about peremptory challenges and Batson.

With respect to statutes that allow for discrimination against persons with disabilities in jury selection, I argued that the supremacy clause trumps any state statutes allowing for such discrimination. With respect to Batson challenges, I argued that Tennessee v. Lane, 541 U.S. 509 (2004), and the reasoning contained therein necessarily led to the conclusion that Batson challenges would be permissible when exercised on behalf of a person with a disability. Did I get it right?

Of course, I happen to think that I did get it right. However, I am not the final authority. What are the courts saying in decisions on this issue after Tennessee v. Lane. The issue has simply not come up much. However, it did arise in 2007 in the D.C. Circuit Court of Appeals. In that case, U.S. v. Watson, 483 F.3d 828 (D.C. Cir. 2007), Watson in a protest against the treatment of tobacco farmers by the government, drove a tractor along with a Jeep and a trailer holding a metal box into a pond and remained there for two days. Id. at 829. He also drove a tractor onto an island in the middle of the pond that he had driven into causing a 3 1/2 foot wave. Id. Finally, when Park service employee caught up with him and noted a metal box, he implied that the chemicals in the metal box were an explosive and that he was willing to die for his cause. Id. He was then indicted for threatening and conveying false information concerning the use of an explosive and for destruction of government property. Id.. During jury selection, the prosecutor used peremptory challenges to eliminate from the jury pool two visually impaired prospective jurors. Id. Watson’s attorney essentially exercised a Batson challenge. Id. at 829-830. However, the District Court overruled the challenge saying that there was a substantial amount of visual evidence in the prosecution’s case. Id. at 830.

On appeal, Watson argued that the Batson challenge should have been granted. Rejecting that claim United States Court of Appeals for the District of Columbia Circuit argued as follows. First, the court said that disability has never been given strict scrutiny by the Supreme Court. Is this true? The answer is sort of. That is, the case that the court immediately cites to, City of Cleburne v. Cleburne Living Center, Inc. is a case where the U.S. Supreme Court claimed that they were using rational basis to find that a group home for persons with mental retardation had a right to be located wherever it wanted to be. However, unlike most cases involving rational basis, the U.S. Supreme Court engaged in a very extensive discussion of the discrimination faced by those with mental retardation and then threw the restriction out. Cleveland v. Cleburne living Center, Inc. 473 U.S. 432, 446-50. It is probably more accurate to say that this decision about a rational basis plus case rather than just regular rational basis. Id. at 456, 458 (Justice Marshall, concurring and dissenting in part)

Second, Tennessee v. Lane specifically says that they’re going to be situations where persons with disabilities will fall into at least intermediate scrutiny classification if not higher. More specifically, U.S. Supreme Court said: “title II is aimed at the enforcement of a variety of basic rights, including the right of access to the court at issue in this case, that call for standard of judicial review at least as searching, and in some cases more searching, then the standard that applies to sex-based classification.” [Italics added] Tennessee 541 U.S. at 529.

Third, the Watson court cited to language from the Cleburne decision where the Cleburne court referred to the mentally retarded and how singling out the retarded for special treatment reflected the real and undeniable differences between the retarded and others. Watson 438 F.3d at 831 (citing to City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 442-44 (1985). Accordingly, the U.S. Supreme Court declined to presume that any classification drawn on the basis of disability was the result of unconstitutional discrimination. Id. at 446. However, the citation to this language of Cleburne is not without its own problems. First, the language of that opinion is quite jarring to persons with disabilities and to those who are familiar with the terminology vis a vis persons with disabilities. For example, the Cleburne court uses the phrase, “mentally retarded.” That is a phrase that has not been used for some time with respect to people sensitive to terminology regarding persons with disabilities. For quite a while, the phrase used was a, “person with mental retardation.” Now, even that phrase is passé. Rather, now the phrase being used is a, “person with intellectual disabilities.” Second, the Cleburne decision came down five years before the Americans with Disabilities Act was even signed by the first George Bush and seven years before the Americans with Disabilities Act went into effect. Third, the original Americans with Disabilities Act contained language within it, as mentioned in earlier editions of my book, that suggested Congress intended for persons with disabilities to fall into an equal protection class higher than rational basis.

Fourth, the Watson court said that the U.S. Supreme Court has declined to treat disabled as a suspect class because they recognized the reality that states may have legitimate reason for treating differently persons with reduced ability to perform certain functions. Id. at 832. However, this ignores the reality that title II of the Americans with Disabilities Act And the Rehabilitation Act of 1973 both demand that governmental entities make reasonable modification to their programs and activities so that persons with disabilities can reach the same starting line as people without disabilities.

Fifth, the court went on to say that it would follow U.S. v. Harris, 197 F.3d 870 (7th Cir. 1999), which held that persons with disabilities were in the rational basis class, and therefore, a litigant who was otherwise able to exercise a Batson challenge could not do so. Of course, the problem with following this particular case is that it predates the Americans with Disabilities Act.

Finally, the Watson court did give a ray of hope so to speak with respect to challenging peremptory challenges against prospective jurors with disabilities. More specifically, they said that the attorney challenging the peremptory exclusion of the blind jurors did not offer any expert opinion, even in secondary form, that a blind juror would be able to fully assess the strengths and weaknesses of the government’s visual evidence. Watson 483 F.3d at 834. For that matter, the attorney challenging the peremptory challenges did not suggest any means of accommodating blind jurors, much less request that the government provide an accommodation by presenting, by way of example, descriptive oral testimony of the scenes and events depicted in the videotapes. Id. At 834-835.

In short, can a person use Batson to challenge the exclusion of prospective jurors with disabilities. I still remain convinced that it can and that Watson has difficulty withstanding in-depth analysis. Regardless, Watson creates an opening for attorneys to successfully use Batson challenges on behalf of persons with disabilities if they are willing to make the effort to put an expert on the stand as to how persons of various disabilities would be able to do their jobs as jurors effectively and by showing that all the prospective juror with a disability needs is certain specified reasonable accommodations/modifications in order to do the job of a juror effectively. In other words, if you are an attorney on the opposing side of an attorney using peremptory challenges to eliminate persons with disability from the jury pool, a two-step process is suggested. First, argued that Batson challenges are permissible. Second, in conjunction with or in addition to that argument, have an expert ready to be called who can discuss how people of various disabilities process information and what specific accommodations they need in order to do so. Finally, if the court refuses to allow the accommodations, argue violation of title II of ADA and since the court no doubt accepts federal funds as well, argue violation of the Rehabilitation Act of 1973.