Sovereign immunity is enormously complicated. What it is, is a principle from which the founding fathers took from England that says a sovereign cannot be sued for damages without its consent. This principal goes way back, and also can be found in the 11th amendment to the United States Constitution. The language of the 11th amendment is rather arcane. That said, it has been interpreted by the courts over the years to mean that a sovereign cannot be sued for money damages without its consent. Why would a sovereign consent? It is a matter of simple politics actually. If a sovereign cannot be sued for money damages under any circumstances, governmental accountability would go out the window. Therefore, what government will do is that they will consent to be sued for money damages under certain circumstances. For example, at the federal level, there is the Federal Tort Claims Act. At the state level, many states will consent to be sued for variety of mistakes. Those state laws can differ from state to state, and if you are thinking about suing a state entity, you definitely want to check into those particular laws, especially since those laws may allow suits against the state entity for some purposes but not others. For example, Illinois has waived its sovereign immunity with respect to Americans with Disabilities Act claims in so far as it pertains to employment. However, they have not waived their sovereign immunity with respect to other matters.

The next question that arises is whether the federal government can force the state to waive its sovereign immunity even if it doesn’t want to. The answer to that question is that it depends. First, Congress must have an explicit statement in that law it has created saying that it intends to force the state to waive its sovereign immunity. Board of Trustees of the University of Alabama v. Garrett 531 U.S. 356, 364 (2001). However, that isn’t good enough by itself anymore. A further requirement is that the law has to be properly enforcing the equal protection clause of the 14th amendment to the U.S. Constitution. Id. Whether that law is properly enforcing the equal protection clause of the 14th amendment will depend upon whether the law is proportional to the harm being addressed against the affected class. Tennessee v. Lane 541 U.S. 509, 520 (2004). Then, the question arises as to how are people classified. Depending upon the class a person is in, that law has a greater or lesser chance of being upheld. That is, if a law is extremely comprehensive and the person is in a class of persons where discriminatory laws affecting that class are given very close scrutiny, then that comprehensive law is likely to be upheld as a proper enforcement of the 14th amendment. If that person is in a class of persons where a discriminatory law would be given wide berth, then a comprehensive law would likely to be not upheld as a proper enforcement of the 14th amendment. To put it in sovereign immunity terms, a forced waiver of sovereign immunity would not be upheld if the class of persons involved is a class that allows for wide berth for discriminatory laws. A forced waiver of sovereign immunity would be upheld if the class of persons involved is a class that does not allow for wide berth for discriminatory laws. Keep in mind, all laws discriminate in some ways.

Since this blog is all about the Americans with Disabilities Act, the question becomes what equal protection class are persons with disabilities in. Persons with disabilities are treated in a way unlike any other class of people for purposes of equal protection. That is, with respect to everybody else, regardless of the fact situation, a person is in a certain class or not. For example, racial classifications are a classification that receive strict scrutiny. That is, a law that discriminates on the basis of race would have a very high probability of being thrown out. In the sovereign immunity context, that would mean that a law addressing racial discrimination could be very comprehensive and be a proper enforcement of the 14th amendment. With respect to gender, that classification receives intermediate scrutiny. That is, a law that discriminates on the basis of gender, would have a good chance of being thrown out under the 14th amendment. In the sovereign immunity context, that would mean that a law addressing gender discrimination could be rather comprehensive and be a proper enforcement of the 14th amendment. With respect to everyone else, with one exception, they are in what is called the rational basis class. That is, a law that discriminates against that class of persons would be given a very wide berth and likely to be upheld. In the sovereign immunity context, that means it would be very unlikely that a force waiver of sovereign immunity would be allowed.

As noted above, there is one exception to how people are classified under the equal protection jurisprudence. That exception are persons with disabilities. People with disabilities, as far as I know, are the only class of people whose classification under equal protection jurisprudence varies with the facts. That is, with respect to employment, persons with disabilities are in the rational basis class (the lowest class for equal protection jurisprudence). That means, with respect to sovereign immunity the Americans with Disabilities Act was deemed too comprehensive to address the harms affected by the class of people involved, i.e. persons with disabilities. In other words, the Supreme Court in Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), held that a forced waiver of sovereign immunity was not going to work with respect to employment claims filed against the sovereign (state entities). What this means, is that if you are filing an employment discrimination claim against a state entity, you must check your state statute to see if the state has waived its sovereign immunity with respect to such claims.

What about other claims? Often times, a claim against a state or governmental entity has nothing to do with employment at all. Rather, under title II of the Americans with Disabilities Act, as we have discussed in various places in this blog, a governmental entity must have its programs and activities accessible to persons with disabilities. What if they screw up? Can they be sued for damages even if they are a state entity and they have not consented to being sued? The answer to this question is that it depends on the facts. That is, in Tennessee v. Lane, 541 U.S. 509 (2004), the U.S. Supreme Court held that sovereign immunity was properly waived with respect to the fundamental right of accessing the courts. Id. at 533-534. A reading of that case also reveals that an argument can be made for forced waiver of sovereign immunity with respect to other rights as well, such as rights involving basic constitutional guarantees, basic rights, or other fundamental rights. Therefore, if you are thinking about suing a state entity for damages for disability discrimination with respect to their programs and activities under title II of the Americans with Disabilities Act, you have to ask yourself two questions. First, is a right involving basic constitutional guarantees ( Id. at 522) basic rights ( Id. at 529), or other fundamental rights ( Id. at 524, 534), involved? Second, if not, has the state waived its sovereign immunity?

How do you know if a fundamental right, a right affecting basic constitutional guarantees, or a basic right is involved? You don’t. That said, the Supreme Court in Tennessee v. Lane did mention that some of the fundamental rights that states have limited for people with disabilities included the right to vote, the right to marry, and the right to serve as jurors ( Id. at 524). They also noted the unconstitutional treatment of persons with disabilities in a variety of other settings such as unjustified commitment, abuse neglect of persons with disabilities committed to the state mental health hospitals, and irrational discrimination in zoning decisions Id. at 524-25). They also noted a pattern of unequal treatment in the administration of many kinds of public services, programs, and activities including such things as the penal system, public education, and voting ( Id. at 525).

Before proceeding further, it needs to be noted that a sovereign can most certainly be sued regardless of whether they consent to a waiver of sovereign immunity if the relief being sought is injunctive relief ( See Board of Trustees of the University of Alabama 531 U.S. at 376 (Justice Kennedy and Justice O’Connor concurring). Also, municipalities are not sovereign and therefore they can be sued for money damages regardless of their consent (see Id.).

What about a County? The answer to that question, is not so simple. The answer is going to depend upon whether the county is an arm of the state. If the county is an arm of the state, then the principles of sovereign immunity as discussed above are going to apply to it as if it was a state entity. If it is not an arm of the state, then since it is not a sovereign, it, like municipalities, could be sued for money damages for violating federal law, such as the Americans with Disabilities Act.

How do you know when an entity may be an arm of the state? A case that answers this question is Ross v. Jefferson County Department of Health _ F.3d _, 2012 WL 4054460 (11th Cir. September 17, 2012). In this case, a former employee brought an employment discrimination suit against the Jefferson County Department of Health alleging violations of the Americans with Disabilities Act. The Jefferson County Department of public health defended on the grounds that they were entitled to sovereign immunity. The District Court agreed and the plaintiff appealed. The 11th Circuit affirmed the ruling of the district court. In the 11th circuit, whether a governmental entity is an arm of the state depends on four factors: 1) how does state law define the entity?; 2) what degree of control does that state maintain over the entity?; 3) where does the entity get its funds from?; and 4) who is responsible for judgments against the entity? With respect to the Jefferson County Health Department, it had a unique set up. In Alabama, the authority of the Jefferson County Health Department was derived directly from the state in law gave it its marching orders as to what it was supposed to do. Also, the state board of health supervised and controlled the County board of health, County health officers and all public health work. In fact, the state health officer in Alabama approved and could remove the County health officer. There were other factors as well, many of which would probably be found in any County. Finally, the Jefferson County Board of Health historically has been treated as an arm of the state.

A couple of things to keep in mind. First, counties may be set up very differently from state to state. Having lived in Illinois for many years prior to having moved to Georgia, it does not seem that Cook County, Illinois for example, would have a similar set of facts as to those faced by the Jefferson County Board of Health. Cook County, for example, has its own code, its own elected leaders, a budget of considerable size and considerable autonomy. This is not to say of course, that Cook County is not an arm of the state (that would have to be researched), because it is going to depend upon how the Seventh Circuit evaluates when an entity is an arm of the state. It is also going to depend upon very specific statutes pertaining to Cook County that the state of Illinois has. Finally, it is also going to depend upon the autonomy that the entity has. For example,Cook County pays damages out of its own budget. Again, the purpose is not to pick on Cook County and there are most certainly a bunch of facts out there that would influence the thinking whether they are an arm of the state one-way or the other. My only purpose is by way of illustration to show that different counties in different states may have very different situations.

In short, sovereign immunity is terribly complicated. Competent legal counsel is essential. Whether it applies is going to depend on very specific facts as well as upon state statutes and what rights are involved.

Some cases are excellent for providing a roadmap on what to do, other cases are good for getting new lessons so that you can take preventive steps to not run down that path. The particular case here is one of the latter. In Peters v. University of Cincinnati College of Medicine, 2012 WL 3878601 (S.D. Ohio September 6, 2012), the University of Cincinnati College of Medicine dismissed the plaintiff from its program. Id. at *1. The plaintiff was a graduate of Middlebury College, from which she graduated after six years with a dual degree in biology and psychology. Id. While she did not get into medical school right away, she was able to do so after completing a graduate program in molecular, cellular and developmental biology. Id. On entering medical school, the plaintiff struggled immediately and she sought help from an individual tutor, youth tutoring services, and also sought help from a cognitive psychologist. Id. Even so, she did not pass three of the six courses in the first quarter and was placed on academic probation with a referral to the Senior Associate Dean of Student Affairs and Admissions for academic counseling. Id. She was then referred to an individual that was not a psychiatrist but nonetheless decided that the plaintiff was clinically depressed, a victim of battered woman syndrome, and had kind of retarded speech. Id. That individual encouraged the plaintiff to seek help from the University psychiatrist and from the Assistant Dean for Academic Support, which recommendations she followed. Id. She was then given medicine for the depression, which helped with some of the depressive symptoms but did not affect her academic abilities. Id. Nevertheless, she did manage to complete the first year after taking a summer course. Id. During the second year, she continued to seek help but was recommended for dismissal because she did not meet the academic requirements of the second year. Id. It was suspected that the plaintiff had a nonverbal learning disability and ADD but treatment for the ADD was not recommended because it was determined that it was more important to control her depression first. Id. Accordingly, the appeals board did not vote to dismiss the plaintiff because they recognized that she had only begun treatment for seasonal affective disorder and that ADD and a nonverbal learning disability were both treatable conditions. Id. The Dean agreed with the appeals board and the plaintiff was able to reenroll as a second-year student with certain conditions. Id. The plaintiff managed to pass each of her second-year courses but continued with her academic struggles into the third year. Id. She was very successful in some portions of her studies, but scored poorly on her exams and began to believe that depression was not the obstacle to her academic success. Id.

After returning from a leave of absence, the plaintiff was informed that she would have to take a radiology exam and a remedial surgery exam. Id. Fortunately, for the plaintiff, the psychiatrist that had been treating her retired and a new psychiatrist immediately suspected that she had a learning disorder. Id. at *2. She was then referred to another person, a psychologist at the University, who performed a series of assessments and determined that plaintiff suffered from ADD. Id. He also believed that the ADD had gone undiagnosed for so long because plaintiff’s depression overshadowed it. Id. He was of the opinion that the depression and anxiety that she had were actually secondary effects of the ADD. Id. His conclusion was that the plaintiff’s ADD had significantly limited her ability to function successfully in medical school but with appropriate treatment she should be able to improve satisfactorily. Id. He gave the plaintiff medication for ADD and recommended that she be given additional time for her exams. Id. Despite that recommendation, the medical school required the plaintiff to take her pediatric exam before the end of 2008 shortly before beginning her medication regimen. Id. Not surprisingly, she failed that exam, albeit by only two points, and was recommended for dismissal as a result. While her appeal was pending regarding the dismissal, she took four more exams, each of which she passed. Id. The person who had prescribed the ADD medication attributed her success to her medication regimen, which had stabilized by the time she sat for the other four exams. Id. At her appeal, she presented evidence that when she took the first exam her medication regimen had not been stabilized, and then asked that she be given a chance to retake the exam now that her medication regimen was stabilized. Id. The Doctor who prescribed the ADD medication testified during the appeal process about the ADD diagnosis and the likelihood of plaintiff succeeding in school when properly treated and urged the medical school to rethink the issue in light of how the plaintiff was initially wrongfully categorized. Id. Nevertheless, the appeals board denied her appeal having decided that plaintiff’s history of depression and her ups and downs and her cycling would prevent her from sticking to a regimen that would allow her to be a good physician. Id. The Dean, who had unfettered discretion to adopt or reject the appeal court decision, affirmed the decision because the plaintiff suffered from a pattern of academic and psychiatric difficulties. Id. Plaintiff was terminated from the defendant’s program and filed suit alleging violation of title II of the Americans with Disabilities Act and § 504 of the Rehabilitation Act. Id.

In denying the defendant’s motion for summary judgment, Judge Spiegel of the southern district of Ohio reasoned as follows. First, he simply did not buy that the plaintiff was not a person with a disability. The University of Cincinnati College of Medicine had argued that the plaintiff was not a person with a disability because she had achieved great academic success and therefore, was not significantly restricted in her ability to learn as compared to the average person in the general population. Id. at *5. The court, after noting how the ADAAA had changed the game with respect to figuring out whether a person has a disability, said that it had no trouble finding that the plaintiff was disabled under both the ADA and the Rehabilitation Act. In particular, the court noted that the plaintiff produced evidence showing that ADD affects the learning processes in very significant ways when compared to how other people learn, retain new information, and organize their thoughts. See id. at *6. The court noted that the fact that she graduated from an excellent liberal arts school with a dual degree and was able to succeed in part medical school did not change the court decision, as all that showed was that she was able to achieve some measure of success despite her disability and did not speak to her learning ability as compared to the average person. Id. The court went even further by saying that defendant’s argument flies in the face of congress’ directives and the relevant implementing regulations and that it simply could not endorse defendant’s rationale.

Second, there were problems with the Dean’s decision to uphold the decision of the appeals board. Those problems included: Repeatedly allowing students to continue in the program despite academic challenges that had led to recommendations of dismissal but not doing so in this particular case. Id. at *7; deciding to dismiss her from the program but not taking into account whether granting her request for an accommodation would alter let alone fundamentally alter the program or its standards; Id. not considering the plaintiff’s medical records, the report of the plaintiff’s treating doctor and associated materials, or even plaintiff’s own explanatory letter of appeal; Id. at *8. not speaking prior to his decision to the plaintiff, to the plaintiff’s treating doctor, to the Senior Associate Dean of Student Affairs and Admissions, or to the Assistant Dean for academic support, both of whom had worked extensively with the plaintiff; Id. and not being aware or being able to recall that the plaintiff had been diagnosed with ADD at the time he denied her request for an accommodation. Id.. Accordingly, when the court addressed the issue of whether it was a reasonable request to retake the pediatric exam, it is not surprising in light of these facts, that the court said that a jury could find the request to retake of the exam was a reasonable request to accommodate her ADD. Id.

Finally, the court said that dismissing the plaintiff because the appeals board and the Dean believed she would not make a good physician was sufficient to get the plaintiff pass a motion for summary judgment with respect to her claim that she was mistakenly perceived as having a compilation of psychiatric problems or to having incapacitating depression. Id. at *9.

Lessons learned: There are several lessons to be learned from this case. First, focus on the program of study and not on the profession that the student is going into. Second, have an internal grievance procedure. Make sure that procedure is staffed by appropriate objective people and that all relevant evidence is heard throughout that process. Third, be careful about ignoring request for accommodations that come through appropriate channels from disability services or other personnel with respect to a particular student. With respect to that process, make sure it is interactive and that any accommodations resulting from that interactive process are enforced throughout the school system. Fourth, if a student needs help, work to get that student help with qualified personnel and monitor accordingly. Fifth, if an agreement cannot be reached through the interactive process and accommodations are denied, make sure those accommodations that are denied would fundamentally alter the nature of the program or the activity. Finally, make sure that any dismissal from the program can be backed up with a showing that the individual student cannot meet the essential eligibility requirements of the program with or without reasonable accommodations.

In a prior blog entry, I discussed a case where the Seventh Circuit was faced with the question as to whether the ADA mandated reassignment or whether competitive bidding would suffice in order to comply with the ADA. That particular case, as discussed previously in this blog, held that prior Seventh Circuit precedent demanded that a competitive bidding process was in compliance with the ADA. However, that opinion also said that it encouraged the Seventh Circuit to hear the case in light of the Supreme Court decision in US Airways, Inc. v. Barnett, 535 U.S. 391 (2002). Accordingly, the Equal Employment Opportunity Commission did petition for rehearing en banc. Equal Employment Opportunity Commission v. United Air Lines, Inc., _ F.3d_, 2012 WL 3871503, *1 (Seventh Cir. September 7, 2012). Once that happened, every member of the court (Seventh Circuit), in active service approved overruling the prior decision of the Seventh Circuit, which had found that competitive bidding was consistent with the ADA. Id. Accordingly, the original panel opinion was vacated and a new panel opinion was circulated to the full court. Id. When that new opinion was circulated to the full court, no member of the court voted to rehear the case en banc. Id..

This new decision of the Seventh Circuit throws out its prior holding saying that competitive bidding is in accordance with the ADA. That is, the court adopted a variation of the approach in Barnett. First, the Seventh Circuit directed the district court to consider if mandatory reassignment was ordinarily, in the run of cases a reasonable accommodation. Id. at *4. If the district court finds on remand that mandatory reassignment is ordinarily reasonable, then the district court must determine if there are fact specific considerations particular to United’s employment system that create an undue hardship and render the mandatory reassignment unreasonable. Id..

The question arises as to who has the burden of proof with respect to proving the Barnett factors? In the Seventh Circuit’s opinion, they cite favorably another case ( Shapiro v. Township of Lakewood, 292 F.3d 356 (Third Cir. 2002)), which described how the burden of proof works as follows. First, the employee must show that the accommodation is the type that is reasonable in the run of cases. Id. at *3 fn1. Second, if the accommodation is shown to be a type of accommodation that is reasonable in the run of cases, the burden then shifts to the employer to show that granting the accommodation would impose an undue hardship under the particular circumstances of the case. Id.. Finally, if the accommodation is not shown to be a type of accommodation that is reasonable in the run of cases, the employee can still prevail by showing that special circumstances warranted a finding that the accommodation was reasonable under the particular circumstances of the case. Id.
The Seventh Circuit concludes that they agree with other U.S. Court of Appeals that already determined that the ADA requires employers to appoint disabled employees to the vacant position provided that such accommodations do not create an undue hardship or run afoul of collective bargaining agreements. Id. citing to a 10th circuit and a D.C. circuit opinion.

What does all this mean? Barnett is not a precise fit because a seniority system is not involved. Should a company stick with competitive bidding? Hard to say. There are two votes on the U.S. Supreme Court for such a view (See U.S. Airways 535 U.S. at 416 (J. Scalia and J. Thomas dissenting). Also, the burden shifting at first seems to be reversed. That is, in Barnett the presumption was that a seniority system will prevail. Id. at 394, 403, 405-406, whereas here, the assumption is that the mandatory reassignment is reasonable. The difference is attributable to the U.S. Supreme Court saying in Barnett that they assumed that such a request is reasonable in the absence of the seniority system (Id. at 403), which is not involved here. Finally, it is simply not clear what “run of cases” (the term used in Barnett), means. Regardless, the best preventive approach may be to adopt justice O’Connor’s opinion which focused on whether the position was vacant.

The ABA has an annual 100 best legal blogs competition. It’s been about 6 months of blogging so far and it has been great to see how things are progressing. I just found out that the deadline for voting with the ABA is tomorrow, September 7, 2012. Please click the link here to vote if you so desire. Just provide a short explanation of why you read the blog.

Regardless of the voting, you can count on my continued blogging.

thanks for your readership!

The ADA is an extremely complex and comprehensive law. The temptation is to think that the ADA applies whenever a person with disability has their rights arguably infringed. However, that just isn’t the case. The situation may be governed by other laws. For example, if a person has an individual education plan, the law that covers that situation is IDEA. Another example, is if an airline discriminates against a person with a disability, the ADA is probably not the law involved. Recently, the actions of American Airlines made news. If a person faced with a similar situation were to sue under the Americans with Disabilities Act, would they be successful?

A case that probably answered this question, the answer being in the negative, is Lopez v. Jet Blue Airways, 662 F.3d 593 (2nd Cir. 2011). In that case, a person with a disability alleged that JetBlue discriminated against them by failing to provide timely wheelchair assistance during a round trip that she took from JFK to Puerto Rico with the result that she suffered pain and swelling in the foot as well as suffering from anguish, anxiety, and nightmares. Id. at 595. She filed a claim with the Department of Transportation but the Department of Transportation was unable to determine whether the airline had violated any regulations. Id. The Department of Transportation then took no further action against the airline with respect to the complaint. Id. The plaintiff then filed on their own a complaint against the airline in US District Court alleging violations of the Air Carrier Access Act and the Americans with Disabilities Act. Id. JetBlue filed a motion to dismiss claiming that regardless of whether the claim fell under Air Carrier Access Act or the Americans with Disabilities Act, neither law allowed for a private lawsuit in this situation. Id.

The Second Circuit agreed with JetBlue’s claims. Id. at 596. The air carrier access act is actually a single statute, 49 U.S.C. § 41705. The statute doesn’t say much. The first section of the statute tracks what is a person with a disability under the ADA and said that an air carrier, including a foreign air carrier, may not discriminate against an otherwise qualified handicapped individual (for whatever reason, Congress has not amended the law to strike handicapped in favor of a person with a disability). See Id. at § 41705(a). The second part of the statute goes on to say that a separate violation occurs for each individual act of discrimination. Id. at § 41705(b). The final section of the law says that the Department of Transportation is responsible for investigating such claims and for offering technical assistance. Id. at § 41705(c).

The Second Circuit was faced with two issues. First, is there a private cause of action under the Air Carrier Access Act? Second, does the ADA even apply to a situation where airline transportation is involved? With respect to the first issue, the Second Circuit said that the Air Carrier Access Act does not authorize a private cause of action. Lopez 662 F.3d at 597. The Second Circuit relied on a Supreme Court opinion that that held a statute must have a clear manifestation of congressional intent in order to create a private cause of action before the court can find that Congress implied a private cause of action. Id. at 596 citing to Alexander v. Sandoval 532 U.S. 275 (2001). In particular, the court noted that the Air Carrier Access Act does not expressly contain the right to sue the air carrier and further, the statute provides an administrative enforcement scheme designed to vindicate fully the rights of passengers with disabilities. Id. That administrative scheme includes a mandate that the Department of Transportation: investigate complaints that appear to be based on reasonable grounds; issue orders to compel compliance with statutory provisions after they have completed their investigation and given the air carrier an opportunity to be heard; review all complaints directed against air carriers of disability discrimination and publish disability related complaint data, have the option to revoke an air carrier certificate; impose fines; or even request that the Atty. Gen. bring a civil enforcement action. Id. at 597 and fn 3. The Air Carrier Access Act also provides for the ability of an individual with a substantial interest in the administrative decision the Department of Transportation file a petition for review in the United States Court of Appeals. Id. at 597. Accordingly, while a person who suffered discrimination by the airlines cannot bring a private cause of action, they can file a complaint with the Department of Transportation.

What about the Americans with Disabilities Act? With respect to the ADA, the court found that the ADA simply did not apply to the situation where a person is discriminated by airlines during the course of air travel. Id. at 598. In particular, the court said that title III of the ADA, which prohibits places of public accommodation from discriminating against persons with disabilities, was not in play at all. In particular, while the ADA does apply to terminals, depots, or other stations used for specified public transportation, that particular statute contains an exception for aircraft. Id. at 599. See also 42 U.S.C.A. § 12181(10). Therefore, the Second Circuit held that the rest from two terminal, depot, or other station contained in the public accommodation provisions of the Americans with Disabilities Act would not meant to include facility devoted primarily to air travel. Id. at 599.

But is that the end of the story? Not necessarily. In a footnote, the Second Circuit said that there were questions that remain open. For example, could an air carrier be found to be an owner, lessor, lessee, or operator of a public accommodation? Id. at 599 fn 8. Another question that remains open is whether there carrier could be held liable for disability discrimination if they were somehow involved in the provision of travel services other than by aircraft or in the provision of travel services located in a terminal, depot, or other station not primarily used for air travel. Id.

Finally, what about the regulations themselves? They are extremely comprehensive. Recently, the Department of Transportation requested comments on an update to the technical assistance manual. Those comments are due by October 3, 2012 and can be found at.

There are several laws out there that intersect with the Americans with Disabilities Act. One of them is the Family and Medical Leave Act (FMLA). That law intersects with the Americans with Disabilities Act in a variety of ways. I am not going to explore all of those ways in this entry. What I do want to focus on is that the law allows an employee whom has worked the requisite number of hours in the prior calendar year for an eligible employer (50 or more) to take up to 12 weeks of leave (paid or unpaid or some combination of that), to deal with his own or a family member’s serious health condition. Once that leave is up, the employer can require certification from the employee in order to return to work. That certification process must be done in a way that takes into account the Americans with Disabilities Act as well because that certification process is set up in such a way that an employer could easily comply with the FMLA and yet violate the ADA at the same time. The question for this entry is what happens when the employee cannot return to work to do their essential functions of the job (as the certification link above makes clear, the family medical leave act regulations do not take into account reasonable accommodations), at the end of their FMLA leave? Is it a reasonable accommodation to grant more leave under the Americans with Disabilities Act, assuming the person has a disability under the ADA? The cases over the years have said that it can be. The question for the employer is how do they know when such a situation occurs? The cases have not always been clear on that point. A recent case from the 10th circuit answers that question. Of course, you always have to check your own jurisdiction, but nevertheless this case may be helpful, particularly as a preventive law matter, in dealing with this issue.

In Robert v. Board of County Commissioners of Brown County, Kansas, _F.3d_, 2021 WL 3715311 (10th Cir. August 29, 2012), plaintiff worked as a supervisor of released adult offenders for 10 years when she developed sacroiliac joint dysfunction. Id. at *1. An essential function of her job included considerable fieldwork throughout her district. Id. Prior to her surgery to fix the problem and during her recovery from the surgery, she worked from home by auditing case files for closed cases. Id. During that time, she could not visit offenders at their homes or in jail, and she was also unable to provide drug and alcohol screening, all of which were essential functions of her job. Id. She eventually returned to work and was able to resume all of her work activities, but she fell down some stairs thereby causing the process to repeat itself all over again. Id. After the second surgery, it simply became unclear as to when the plaintiff could return to work. Id. at *2. What was undisputed was that she could not return to work to do the essential functions of her job at the expiration of her FMLA leave. Id. Also, while in a follow-up appointment, the surgeon for the plaintiff predicted that she might be able to walk in two or three weeks and unassisted two weeks after that, no such documentation was given to her supervisor or to her employer to that effect. Id. Accordingly, since the plaintiff’s leave had been exhausted and because her absence was very much affecting the workplace in terms of productivity, she was terminated. Id.

In affirming the lower court’s award of summary judgment for the employer, the 10th circuit found that the plaintiff was not otherwise qualified. Id. That is, she was not protected under the ADA because she could not do the essential functions of her job with or without reasonable accommodations. For our purposes, what is very useful to know is the court’s discussion of when a medical leave upon the expiration of FMLA leave might be appropriate as a reasonable accommodation under the ADA. The court noted that prior decisions of the 10th circuit (for that matter, other circuits do hold the same as well), allow for a brief leave of absence for medical treatment or recovery as a reasonable accommodation. Id. However, in order for that to occur, the court noted that the employee must provide the employer an estimated date as to when he or she can resume her essential duties of the position. Id.at *4. Second, that leave request must ensure an employer that an employee can perform the essential functions of her position in the near future. Id. Since neither was the case in this situation, the plaintiff could not successfully claim that additional leave would be a reasonable accommodation. Id. at *5.

Preventive law tips: FMLA allows an employer to request certification from an employee before they can return to work. Very importantly, that certification is based upon whether the employee can perform the essential functions of the job but not upon whether they can perform the essential functions of the job with or without reasonable accommodations. Therefore, if an employer has a certification process with respect to returning from FMLA leave, it would be important for them to assess first whether the person could perform the essential functions of the job. Second, if that person arguably has a disability under the ADA (while the ADA does not protect temporary disabilities, when a disability is no longer temporary can be very hard to pinpoint), the employer would do well to assess whether that person could perform the job with or without reasonable accommodations. If the answer to that question is yes, then the employer should consider offering reasonable accommodations or initiating the reasonable accommodation interactive process. Third, if the employer finds that a person at the expiration of FMLA leave can neither: A) do the essential functions of the job; nor B) do the essential functions of the job with or without reasonable accommodations (assuming an arguable disability under the ADA as amended), then the employer needs to consider whether additional leave would be a reasonable accommodation. In that case, has the employee given the employer an estimated date when she can resume her essential duties with or without reasonable accommodations? Also, does that leave request assure the employer that the employee can perform the essential functions of his or her position with or without reasonable accommodations in the near future? If all these criteria are satisfied, then the employer should consider going ahead in granting the additional leave. Finally, the employer will also need to consider in these situations just at what point would the additional leave result is a fundamental alteration of the operation of the business, an affirmative defense that the employer has under the ADA.

 

I love to follow sports. Accordingly, over the years, I have found a way to combine my interest in sports with the Americans with Disabilities Act. As far back as the first edition of my book, which is now in its third edition and I am working on the fourth, I have always had a section on how the Americans with Disabilities Act applies to sports. Not surprisingly, I read Illinois ex rel. Madigan v. Illinois High School Association, 2012 WL 3581174 (N.D. Ill. August 17, 2012), with great interest. This case is fascinating in a lot of respects. The case involved a lead plaintiff who is 16 years old and swims for Fenwick high school (Id. at *1), a private Catholic high school in Oak Park Illinois and an athletic powerhouse. While her swimming time placed her among the top adaptive high school swimmers in the state of Illinois, her disability prevents her from meeting the qualifying standard that the Illinois High School Association sets for students without disabilities, and therefore she is unable to earn points for her team at meets. Id. She wanted the opportunity to qualify for the state championship meets in swimming and track, which she also competes in, and to earn points for her team during the 2012-2013 sports season. Id. Prior to this lawsuit, the Great Lakes Adaptive Sports Association met with the plaintiff, her high school, and the Illinois High School Association to discuss ways that athletes with disabilities could compete in the state track and swimming championship. Id. at *2. The Illinois High School Association was presented with a written proposal requesting that they modify their policies to include qualifying time for students with disabilities and an exhibition heat for swimmers with disabilities at the state swimming championship, but the Illinois High School Association didn’t respond to the proposal. Id. Subsequently, the Illinois Atty. Gen. became involved and made additional proposals, all for naught. Id. In fact, the Illinois High School Association filed a preventive law suit against the Atty. Gen., which was then transferred to the federal court. Id. The swimmer filed her own lawsuit alleging that the Illinois High School Association discriminated against her and other student with disabilities in violation of the Americans with Disabilities Act and the Rehabilitation Act of 1973 in several different respects. See id. at *2. Finally, the Department of Justice Civil Rights division also became involved and filed a statement of interest as well. Id. The Illinois High School Association filed a motion to dismiss on three different grounds, which the court denied in all respects. Id. at **3, 6.

There were several issues in the case. Before getting to the issues, it is important to remember that this was a motion to dismiss. Therefore, so long as the plaintiff sets forth facts that are sufficient to state a cause of action, what the actual facts may reveal down the road are not relevant at a motion to dismiss. The first issue was whether the plaintiff had alleged sufficient facts for their claim that the Illinois High School Association would be covered by § 504 of the Rehabilitation Act. Id. at *3. In order to be covered by §504 of the Rehabilitation Act, an entity must take federal funds. The Illinois High School Association tried to argue through an affidavit that they did not take federal funds. Id. However, the court, in an opinion by Judge Joan Gottschall of the United States District Court of the Northern District of Illinois, noted that the complaint stated that the Illinois High School Association received federal funds both directly and indirectly, and that a motion to dismiss was not the place to accept additional evidence.

Second, the Illinois High School Association argued that they were not subject to title II of the Americans with Disabilities Act. As readers of this blog know, title II of the ADA prohibits public entities from discriminating in their programs and activities. The Illinois High School Association tried to argue that they were not a public entity and that the title II claim should be dismissed. Id. The court did not buy that argument. More specifically, the court noted that plaintiffs alleged that 98% of the Illinois school members of the Illinois High School Association and that all Illinois public high schools were supported by public taxation, recognized by the Illinois Board of Education, and the Illinois High School Association oversaw the schools in Scholastic sports programs in high schools in a very specific and detailed manner. Id. at *4. Therefore, the court said that the facts did allege that the Illinois High School Association was an instrumentality of a State or or local government thereby subjecting it to title II of the Americans with Disabilities Act.

Finally, the Illinois High School Association tried to get the title III claim dismissed as well. The court didn’t buy that either. In particular, the court said that there were sufficient facts alleging that the Illinois High School Association owned, leased, or operated the place of public accommodation and therefore was subject to title III of the Americans with disabilities act. Id. at *5. The court did leave open the question as to what level of control was sufficient to justify a finding that the Illinois High School Association owned, leased, or operated places of public accommodation. Id. at *6.

There are lots of things interesting about this case. First, the high school athletic associations of the various states would do well to read this case if for no other reason in order to help them anticipate future litigation and to develop preventive systems should they desire to forestall that. Second, one normally doesn’t think that a public entity and a place of public accommodation could be the same defendant in the same case. However, this case shows how such a finding may be possible. From a plaintiff perspective, there are advantages to being able to claim coverage under title II of the ADA as well as title III of the ADA as title II of the ADA would lead to damages and title III of the ADA does not. Also, being able to claim title two and title III of the ADA, for reasons mentioned previously, allows the plaintiff to probably move into mixed motive territory down the road should that be necessary where a § 504 claim does not allow for that. This case will certainly be worth following in the future.

In a prior blog entry, I discussed how the issue of reassignment when an otherwise qualified person with a disability can no longer do the job would eventually be headed to the Supreme Court. However, that entry did not address the question as to how you go about proving up, i.e. making a prima facie case, for a reassignment claim as a reasonable accommodation. A case that answers this question is Bundy v. Chaves County Board of Commissioners, 2006 WL 6906700 (D. N.M. April 28, 2006). Keep in mind, that this case was likely unpublished, as only the Westlaw cite was available, and therefore, an attorney would need to check his or her local rule to see what kind of precedent this case may offer. Nevertheless, this case is useful for talking about how to make a reassignment claim and the defenses that an employer may have. In this case, the plaintiff wanted to be reassigned to a different position because they had a disability and could no longer do the job that they were in. Id. at**2-3. The problem that the plaintiff ran into was that he never furnished his medical records, and also that the entity he wanted to be transferred to, was actually a different entity than the one he was currently employed with. Id. at** 3-4, 10. Also, the court had a problem with the plaintiff looking toward the future with respect to jobs that may work for him even though he never submitted his medical records as the ADA works in the present. Id. at *9.

Nevertheless, the court did detail how do you go about proving a case involving reassignment and also when, in its opinion, a reassignment would be unreasonable. To make a prima facie case for reassignment, the court said that a plaintiff would have to show the following:

1) the plaintiff is a disabled person under the ADA and made any resulting limitation from his or her disability known to the employer; 2) the preferred option of accommodating the employee within his or her existing job could not be reasonably accomplished; 3) the employee requested the employer reasonably accommodate his or her disability with a reassignment to a vacant position, which the employee identified at the outset or which the employee requested the employer identify through the interactive process that was conducted by both parties in good faith; 4) the employee was qualified to perform one or more appropriate vacant jobs within the company with or without reasonable accommodations and that the employee specifically identified jobs that were available within the company at or about the time the request for reassignment was made; and 5) the employee suffered injury because the employer did not offer to reassign the employee to any appropriate vacant position. Id. at **6-7.

While these elements are instructive, make sure you check the law in your circuit. For example, as the aforementioned blog entry made clear, it may be debatable as to whether an otherwise qualified person with a disability is entitled to that vacant position as a matter of right or whether the employer has the ability to fill that position through competitive selection and just allow the person with a disability to apply for that position. Also, you want to check the case law in your jurisdiction to assess just how far the obligation of the employer goes with respect to helping the employee finding other suitable positions within the company. Finally, cases can vary widely in terms of when an employer will be deemed to know of an employee’s disability.

This case also went on to talk about how you can go about deciding whether a requested accommodation for reassignment is reasonable. First, the preferred option is always an accommodation that keeps the employee in his or her existing job that can be reasonably accomplished. Id. at *8. Second, reassignment must ordinarily result from the interactive process with both parties working together in good faith. Id. Third, the position does not require a promotion or redefinition of essential job requirements. Id. Fourth, the employer has the right to limit the option for reassignment in a way so that the reassignment does not violate other legitimate nondiscriminatory employment policies that are firmly established within the organization, such as seniority rights. Id. Finally, the employer has the right to figure out what position to reassign the employee to so long as the employer addresses the concerns noted in this paragraph.

Things to be thinking about in a reassignment case include: 1) Has the employee been evaluated to see whether with or without reasonable accommodations they can perform the essential functions of the job that they are currently in; 2) has the employer worked with the employee through the interactive process to evaluate what other positions are available; 3) what are the employer’s seniority policies, regardless of whether they are unionized or not?; 4) when does the employer consider a position vacant?; 5) where appropriate positions have been identified, has the employee been evaluated as to whether he or she can perform the essential functions of that job with or without reasonable accommodation in a manner in accordance with the provisions of the Americans with Disabilities Act? and 6) is the transfer policy a question of competitive bidding or does the person with a disability have the right to that position if they are otherwise qualified?. With respect to the competitive bidding versus automatic right, preventive law would suggests that despite the,prior blog entry, , and especially where the position is vacant, much litigation could be prevented if an otherwise qualified individual with a disability were able to transfer into a vacant position as a matter of right.

The axiom of preventive law is that we live in such a litigious society that you can’t prevent a lawsuit. However, you can take steps where if you get sued you can win that lawsuit. A case that illustrates as to what happens when you do not have preventive law systems is United Spinal Association v. Board of Elections in the City of New York, _ F. Supp. 2d__, 2012 WL 3222663 (S.D. N.Y. August 8, 2012) (this case was recently profiled in an USA today article), an abbreviated version of which I found on the Internet. In this case, United Spinal Association and Disabled in Action, organizations consisting of people with mobility and/or vision impairments residing in New York City and who are registered to vote, brought a suit against the Board of Elections in the city of New York alleging violations of title II and § 504 of the Rehabilitation Act. That is, the suit alleged that the Board of Elections in the city of New York violated title II of the Americans with Disabilities Act and § 504 of the Rehabilitation Act because voting places were in many cases inaccessible to people with disabilities. Id. at**1-6. In a decision by Deborah Batts of the Southern District of New York, the court granted summary judgment to the plaintiffs finding that the Board of Elections in the city of New York simply did not provide meaningful access to persons with disabilities with respect to voting. Id. at **1,11. Some of the things that the court said that the Board of Elections in New York simply do not do or have in place included: 1) when the Americans with Disabilities Act went into effect, it required public entities to do a self-evaluation and then develop a transition plan so as to notify the public as to how it would come into compliance with the Americans with Disabilities Act, and the Board of Elections in the city of New York had done no such thing. Id. at *5. Second, the Americans with Disabilities Act also requires governmental entities having 50 or more employees to have an Americans with Disabilities Act coordinator and the Board of Elections in the city of New York had no such thing. Id. Third, evidence was presented that many voting sites were not visited on election days by Board of Elections personnel and that complaints to the Board of Election were not resolved. Id. at *11. Finally, the court noted with approval the plaintiffs suggestion that the Board of Elections have an individual identified among on-site poll workers at each location to monitor poll site accessibility. Id. The court also noted with approval plaintiffs suggestion that the Board of Election partner with the third-party in order to assess and identify accessibility needs and possible solutions in time for the upcoming presidential election. Id.

Preventive law tips: This case gives us a lot of preventive law tips. First, a governmental entity of 50 or more employees is required to have a person designated as an Americans with Disabilities Act coordinator as well as an internal grievance procedure for handling complaints of disability-based discrimination. See 28 C.F.R. § 35.107. Since they already take federal funds in all probability, they should already have a § 504 coordinator. There is no reason why the 504 coordinator and the ADA coordinator cannot be the same. Further, this ADA/504 coordinator should be prepared to deal with issues beyond just employment, and be able to call on knowledgeable legal counsel whenever appropriate. Second, if you are a governmental entity and have not done a self-evaluation and a transition plan (I have been surprised over the years at the number of governmental entities that did not do this within the timeframe required by the Americans with Disabilities Act), you may want to get with legal counsel to see if it would be a good idea to do one now. Regardless, preventive law demands that even if you do not do a formal transition and self-evaluation plan that it be done informally as the risks need to be known. Third, remember that “fundamental alteration,” is a different concept than inconvenience. Finally, make sure there is a system for taking complaints about issues dealing with inaccessibility and a way to resolve them.

I recently relocated my office. Therefore, that is why you haven’t seen an entry in a little bit. I am now settled in and will get back to regular blogging. Thank you for bearing with me.

With the amendments to the Americans with Disabilities Act, litigation will now shift from whether a person has a disability in the first place to other areas. One of those areas is going to be whether the person is otherwise qualified. To be otherwise qualified under title I of the Americans with Disabilities Act, you have to meet the education, skills, training, etc. of the job and you have to be able to perform the essential functions of the job with the without reasonable accommodations. The question that arises is how do you go about determining what an essential function of the job is? When you do that, how do you go about the pending litigation over essential functions of the job?

The EEOC has said that it will look at several different factors in figuring out what are the essential functions of the job. Those factors are: the employer’s judgment;

(i) The employer’s judgment as to which functions are essential;

(ii) Written job descriptions prepared before advertising or interviewing applicants for the job;

(iii) The amount of time spent on the job performing the function;

(iv) The consequences of not requiring the incumbent to perform the function;

(v) The terms of a collective bargaining agreement;

(vi) The work experience of past incumbents in the job; and/or

(vii) The current work experience of incumbents in similar jobs. 29 C.F.R. § 1630.2(n).

However, it doesn’t have to be so complicated. Rather, think of essential functions of any element of the job fundamental to achieving the job’s purpose. The elements that are not fundamental can be classified as marginal functions.

Accordingly, here are some other things to think about. First, make sure the essential functions of the job are accurate and current. That is, make sure that the essential functions reflect what actually happens rather than what is on the piece of paper. Therefore, a company would do well to have a system where the essential functions of the various job that they have are reviewed on a regular basis. Second, do not confuse essential functions with major life activities. For example, seeing the balls and strikes is not an essential function of being at home plate umpire. Rather, calling the balls and strikes accurately is the essential function.

Second, do not confuse essential functions of the job with tasks. That is, is 10 key data entry an essential function of the data entry job? The answer is no. The essential function is entering data at a certain rate of speed and not the mechanism that accomplishes it.

Third, whenever possible, it is helpful to make the essential functions of the job as precise as possible. That said, while you do want to make the job’s essential functions as precise as possible, reasonable inferences are permissible. Also, multiple duties associated with those essential functions are also permissible. Fourth, it helps if the company is consistent across the board with respect to those essential functions. For example, if a retail store could show that store managers routinely have certain functions regardless of where they are store managers that would be helpful.

A company that did this just right recently was Walgreen Company. I suppose that is not surprising as they have been leading the charge recently with respect to hiring persons with disabilities. In Jones v. Walgreen Company, 679 F.3d 9 (First Cir. 2012), Walgreens played their cards just right. In that case, a long-term employee of Walgreens, some 20 years, injured her knee. Id. at 11. One thing led to the other, including surgery, and she was let go for her inability to perform the essential functions of the job. Id. at 11-13. The case eventually went to the First Circuit Court of Appeals and they affirmed the District Court’s grant of summary judgment for Walgreens. Id. at 11. What Walgreens had going for it was that it did have precise essential job functions. Also, those functions were capable of reasonable inferences that led to the only possible conclusion that the manager could not perform the essential functions of the job with or without reasonable accommodations. Walgreens also was able to have a variety of different managers come in to explain what those essential functions of the job reasonably meant. Finally, something that you are likely to see more of, Walgreens had a disclaimer in their job description that said that, “the job description is to be used as a guide for accomplishing company and department objectives, and only covered the primary functions and responsibilities of the position. It is in no way to be construed as an all-encompassing list of duties.” Id. at 15. Therefore, the disclaimer gave Walgreens wiggle room so that the essential functions of the job as they were written could be reasonably construed to include a variety of different duties.

Any company would do well to read this case and to adopt it if the company wants to successfully set up a system to enable it to adequately defend any litigation arising over essential functions of the job.