In Olmstead v. L.C., 527 U.S. 581 (1999), United States Supreme Court held that it violated the Americans with Disabilities Act for for a State to have a system that did not allow persons with mental illness to be treated in the community. Since that time, the United States government has been very aggressive in pursuing actions all over the country so that people who have been served in institutions are given the ability to be served in the community. The Department of Justice has a regulation mandating integration of persons with disabilities. Olmstead is now evolving in some other ways.

Sheltered workshops:

Just other day, Oregon was warned by the Department Of Justice that its system of not giving people in sheltered workshops the opportunity to develop skills so that they could work in the community instead of sheltered workshops was in violation of the Americans with Disabilities Act. In May of this year, a District Court judge in Oregon, in Lane v. Kitzhaber, 2012 WL 1802031 (D. OR. May 15, 2012), relying on the reasoning in Olmstead held that a State could be in violation of the Americans with Disabilities Act if their system was set up so that it did not give opportunities for persons in sheltered workshops to otherwise be given the opportunity to participate in integrated activities. Id. at *6. That is, there has to be employment services offered to persons with disabilities other than sheltered workshops or to say it in another way, it is in violation of the ADA to unnecessarily segregate persons with disabilities into sheltered workshops. Id. at *8

Preventive tip: the State will want to ensure that persons in sheltered workshops are individually assessed to see whether they may be able to function in integrated settings. The State will also want to ensure that programs are in place so that such individuals currently in sheltered workshops who can function in integrated settings (it is possible the number of such persons is not that high), are given the opportunity to take advantage of those programs.

Budget cuts:

The State of Washington ran into some serious budget issues. The agencies were directed to cut 10% from the budget. As a result of the political process the State of Washington decided to cut 10% from their budgets. In particular, the personal care program was significantly reduced. This meant that many people receiving care under this program could well need to be institutionalized as a result of these reductions. The question is whether the State is subjecting itself to violations of the Americans with Disabilities Act by making a decision to reduce services where that decision may lead to increased institutionalization of persons with disabilities. The Ninth Circuit in M.R. v. Dreyfus, 2012 WL 2218824 (9th Cir. June 18, 2012) agreed. The State of Washington then petitioned for an en banc hearing of the Ninth Circuit. There were not sufficient votes to rehear the case en banc, and so the panel decision stands. However, there was a vigorous dissent with regards to the denial of the en banc hearing filed by Judge Rawlinson.

Does Olmstead really say that a State could lose an Americans with Disabilities Act lawsuit when due to insufficient funds it decides to cut its budget? While it is true that Olmstead mandates that persons with disabilities be integrated into the community, one of the things that has been neglected over the years about that case is that there was no majority view as to when the obligation of the State to integrate persons with disabilities into the community kicks in. That is, when might a State have a defense for not integrating persons with disabilities into the community. On that point, only a plurality existed in Olmstead.

Under title II of the ADA, there is a defense if the modification would create an undue burden (financial) or fundamentally alter (operational) the nature of the program. With respect to undue burden, the question has always been whether you would measure it against the entire operations of the governmental entity or perhaps against the budget of a particular program. Justice Ginsburg in Olmstead said that to measure it against the entire State budget would mean that the fundamental alteration defense would be no defense at all. Id. at 603. Rather, the allocation of available resources given the responsibility of the State has undertaken for the care and treatment of a large and diverse population of persons needed to be considered. Id. at 604. Justice Ginsburg also said that the State would be able to successfully defend such a suit if they could demonstrate that it had a comprehensive, effectively working plan for placing qualified person with mental disabilities in less restrictive settings as well as a waiting list moving at a reasonable pace not controlled by the State’s endeavors to keep the institution fully populated. Id. at 605-606. Finally, Justice Ginsburg turned to § 504 regulations, which deal with employment, to say that undue hardship (undue burden and undue hardship are the same concepts except that undue hardship applies to title I and undue burden applies to title II and title III of the ADA), do not refer to overall budget but a case-by-case analysis weighing a variety of factors including: the overall size of the program with respect to the number of employees, number and type of facility, and size of budget; the type of recipients operation, including the composition and structure of their workforce; and the nature and cost of the accommodation needed. Id. at 606 fn 16.

What does this mean? First, it is unfortunate that fundamental alteration and undue burden seem to be confused since in ADA speak, the cases and regulations have referred to undue burden as pertaining to financial and fundamental alteration as pertaining to operations. This distinction also allows for two different phrases to reflect different concepts; otherwise, why have the different phrases in all? Second, it is simply very unclear whether Justice Ginsburg, who was joined by Justice O’Connor (no longer on the court), Justice Souter (no longer on the court) with respect to this section, would say that Olmstead could be used as a sword to prevent budget cuts. In particular, Justice Ginsburg reference to “overall resources,” suggest that the State may have some leeway in how it decides to parcel out its resources particularly, in light of the other points discussed above, if the State has other ways of ensuring that persons with disabilities do not face unnecessary institutionalization.

Justice Kennedy and Justice Breyer while agreeing with the majority in terms of result did not agree with the section of Justice Ginsburg’s opinion that talked about fundamental alteration/undue hardship. In particular, in the Kennedy opinion, Justice Kennedy states that no State has unlimited resources and that each State must make hard decisions on how much to allocate the treatment of diseases and disabilities. Id. at 612 (Justice Kennedy concurring). He goes on to say that if funds for care and treatment of the mentally ill, including the severely mentally ill, are reduced in order to support programs directed to the treatment and care of other disabilities, that decision may be unfortunate but it is a political one and not within the reach of the Americans with Disabilities Act. Id. Further, Justice Kennedy continues by saying that grave constitutional concerns would be raised when a federal court is given the authority to review the State’s choices on basic matters such as establishing or declining to establish new programs. Id. at 612-613. That is, it is simply not reasonable to read the ADA to permit court intervention on those kinds of decisions. Id. at 613. These statements are quite clear. From these statements, it is hard to believe that Justice Kennedy, whose opinion was joined by Justice Breyer, would allow for the Americans with Disabilities Act to be used in a way to prevent budget cuts.

Justice Thomas wrote an opinion joined by Justice Scalia. Much of that opinion doesn’t really apply to the situation here. However, he does say that constitutional principles of federalism places limits on the federal government’s ability to direct State officers or to interfere with the functions of state government. Id. at 624. That statement by itself, especially considering the jurisprudence of Justice Thomas and Justice Scalia over time, strongly indicates that they would not support using the ADA as a sword to stop budget cuts.

In short, it seems that using the ADA as a sword to stop budget cuts in light of the Supreme Court decision in Olmstead would face very tough going at the Supreme Court. While the Ninth Circuit has a panel that is now on record as supporting this use of the ADA, it seems entirely likely to me that other circuits will not follow suit. Ultimately, it will head to the United States Supreme Court where if this analysis is any guide, and it may not be, there would seem to be five votes against using the Americans with Disabilities Act as a sword to prevent budget cuts (of course, I am assuming that there would not be any evidence that the budget cuts were done in such a way out of animus towards persons with disabilities).

I previously blogged (if you want to read this particular blog entry in context, you will find the original blog entry plus what appears here at that link), about a decision whereby a District Court throughout the New York City regulations with respect to the number of accessible taxis that are required in violation of the Americans with Disabilities Act. In that blog entry, I stated that the decision was one that would worth appealing. In fact, this case was appealed and on June 28 the second circuit came down with its decision whereby the Second Circuit held that the city was not in violation of part a of title II of the Americans with Disabilities Act and that the District Court erred in granting partial summary judgment for the plaintiff and entering the temporary injunction. The Second Circuit vacated and remanded for entry of partial summary judgment for the city. In doing so, the Second Circuit had to find that the district court abused its discretion in its decision.

How did the Second Circuit go about reversing the District Court decision and finding that abuse of discretion? First, the court noted that the Americans with Disabilities Act while broad in scope was not without its limits.

Second, the court turned to the federal regulations dealing with licenses. The court said that what this section does is prohibit the agency issuing the regulations from refusing to grant licenses to persons with disabilities who are otherwise qualified to own or operate taxis but does not assist persons who are consumers of the licensee’s product. Such a conclusion was also supported by the Department of Justice’s technical assistance manual, which the court found to be persuasive authority.

Third, the court found that a program or activity of the public entity was not involved here. That is, an activity of the public entity does not become a “program or activity” of the public entity merely because it is licensed by the public entity unless the private industry practice is the result of the licensing requirements. Such was not the case here (that is, the licensing scheme did not cause the discrimination). While the number of taxis that have to be accessible were small, nothing prevented the private companies from using whatever number of accessible taxis they desired. To buttress this point, the court cited to several cases that made this distinction between the regulatory agencies and the licensees or the people being regulated themselves. They did distinguish one case that did not make that distinction, but that case was substantially different as it dealt with the situation with a private entity had to use equipment required by the public agency (machine for the state lottery in West Virginia).

Finally, an interesting question arises as to why the plaintiffs went after the public entity and not the taxi companies themselves. It turns out, as the Court notes, that federal regulations specifically exempt providers of taxi service from being required to purchase or lease accessible automobiles. Therefore, since the taxi industry is exempt from being required to purchase or lease accessible taxis, there can be no underlying violation of the ADA for a licensing authority to fail to address that by regulation.

Tip: What does this all mean? It means that for purposes of the Americans with Disabilities Act, there is a big difference between the regulations issued by a public entity and the people or entities subject to those regulations. Unless those regulations mandate discrimination, the Americans with Disabilities Act is not going to allow a title II claim to proceed. It also means that the time to ensure that the regulations increase accessibility to the maximum extent is at the time the regulations are being formulated not once they are done. For example, when a state or the federal government formulates regulations, those regulations first have to be proposed, then receive comments from the public, then those comments have to be digested by the regulatory body, and then the final regulations have to be issued. These regulations of New York were not state or federal but it is possible that prior to issuing the licensing regulations, there may have been some ability for the public to comment on the proposed licensing regulations. If not, that fact might offer grounds for attacking the regulations.

I have written over the years several times about the Internet and whether it needs to be accessible to persons with disabilities. That discussion appears in my book. I also wrote an article on whether colleges and universities home pages need to be accessible to people with disabilities. Finally, I wrote an article on whether law firms must have their website be such so that they are accessible to people with disabilities. As mentioned in those articles, there are several lines of thought on this. First, one line of thought is that the ADA applies in electronic space ( Doe v. Mutual of Omaha Insurance Company 179 F.3d 557 (seventh circuit 1999). Second, another line of thought is that the ADA only applies in physical space ( Access Now, Inc. v. Southwest Airlines Company 227 F. Supp. 2d 1312 (S.D. Fla. 2002). A third line of thought Is that the Americans with Disabilities Act applies to the Internet where the Internet is a gateway to a brick-and-mortar store. ( See National Federation of the Blind v. Target Corporation 452 F. Supp. 2d 946 (N.D. Cal. 2006)).

So what about if you’re watching a Netflix movie and the movie is not closed-captioned. I personally have faced this. While I have not watched Netflix in the streaming content, I have watched it on DVD. There are many DVDs that are not close captioned. This makes it very difficult for me to view the movie. Would this be subject to a violation of the ADA claim? That is, would the ADA force Netflix to close caption its DVDs? What if you watch the movies by streaming, would the ADA force Netflix to make sure that the streaming was close captioned? How does that play with the recently signed 21st-Century Communication Video Accessibility Act of 2010, which says that things shown on TV and then migrate to the Internet must be close captioned after a certain date.

A case that addresses all these questions is National Association of the Deaf v. Netflix, Inc. , 2012 WL 2343666 (D. Mass. June 19, 2012). In this case, a deaf person, the National Association of the Deaf and the National Association of the Deaf’s Massachusetts affiliate brought suit against Netflix alleging that its streaming, which was not close captioned, violated the Americans with Disabilities Act. The defendant responded that the Americans with Disabilities Act was not violated and that the Americans with Disabilities Act was preempted by the 21st-Century Communication Video Accessibility Act of 2010.

The court was having none of these arguments. First, the court said that the ADA was meant to evolve with technology. Second, the court read the categories of what is a place of public accommodations and assumed they applied in the context of the Internet regardless of how the product of the business is consumed because the ADA covers the services “of” a place of public accommodation and not services “at” or “in” a place of public accommodation. National Association of the Deaf 2012 WL 2343666, at *4 (The National Federation of the Blind case made the same argument). For example, Netflix could well be a service establishment because it provides customers with the ability to stream video programming through the Internet. It could also be a place of exhibition or entertainment because it displays movies, television program and other content. Finally, it could be a rental establishment because it engages customers to pay for the rental of video programming (Id. at At *3). In other words, there is no reason why these categories could not apply in electronic space.

A business entity sued for not being accessible in accordance with its obligations as a place of public accommodation under the Americans with Disabilities Act must also be the entity that owns the place that is being sued. Netflix claimed that it was not such an entity. However, Netflix did admit that it was working to provide captioning for the content on it streaming service. That was enough for the court to say that Netflix had some degree of control over the situation. Id. at *5.

Finally, the defendant tried to claim that the 21st Century Communications and Video Accessibility Act of 2010 precluded claims under the Americans with Disabilities Act and/or conflicted with the Americans with Disabilities Act. The court was having none of this either. Nothing in the 21st-century Communications Act suggested that that Act preempted the Americans with Disabilities Act. Further, the court saw no conflict between the two acts because the scope of the 21st-century Communications Act is fairly narrow. That is, that act requires captioning of things originally shown on TV that make its way to the Internet after a certain date. Much of that may not even be applicable to the Netflix situation. Id. at **6-10.

So what does this all mean? It means that disability rights advocates have now been given the green light to think beyond the three traditional lines of thought that had previously existed on whether an Internet site could be subject to the Americans with Disabilities Act. It also means, that defendants must be aware that their exclusively online businesses even if they don’t fit the traditional lines of thought that existed previously, may now be subject to the Americans with Disabilities Act. This case is significant because of the new approach that it takes. That is, it just assumes that businesses are places of public accommodations if they are exclusively on the Internet providing they are doing what places of public accommodations listed in the Americans with Disabilities Act would be doing if they were in physical space.

All this said, it isn’t that complicated to have your website accessible to persons with disabilities (find someone familiar with Section 508 standards). It also makes good business sense.

Update: Many times, blogs will talk about the same cases. There is not a problem so long as a variety of perspectives are offered. This particular case came to me courtesy of the Seyfarth Shaw blog that is on my blogroll. It is Cullen v. Netflix, Inc. 2012 WL 2906245 (N.D. Cal. July 13, 2012). This particular case was identical on its facts to the Massachusetts case discussed above. The only difference being that it was a suit under the California Unruh’s Civil Rights Act and the California’s Disabled Person’s Act. In this case, the Northern District of California said that for the Americans with Disabilities Act to apply, a physical space must be involved. They did note the Massachusetts case above as well as the Seventh Circuit case, which as noted above had held, in dicta, that the ADA applies to electronic space. They also acknowledged The National Federation of the Blind case where a District Court in California said that the ADA applied where the Internet was a gateway to a brick-and-mortar store (no such gateway existed with Netflix). Also discussed in this case was whether the plaintiff had an independent cause of action under the California Unruh’s Civil Rights Act. That particular act is tied into the ADA. However, a separate cause of action independent of the ADA is allowable if intentional discrimination exists. However, the court found that no such intentional discrimination existed, and therefore, the claims under the California Unruh’s Civil Rights Act had to be dismissed.

In short, this question is undoubtedly headed to the United States Supreme Court. It would make sense for the plaintiff to appeal this case to the U.S. Court of Appeals for the Ninth Circuit for a couple of different reasons. First, if it doesn’t lead to a reversal (for example, an adoption of the reasoning in the Massachusetts case), it could lead to an affirmation that the Americans with Disabilities Act applies where the Internet is a gateway to a brick-and-mortar store. Second, since the National Federation of the Blind v. Target case is a U.S. District court case, the Ninth Circuit would have the opportunity to address that case directly. Third, if the Ninth Circuit ruled that the Americans with Disabilities Act applies to physical space only, perhaps also allowing for the gateway, that would set up a conflict with the Massachusetts case, assuming that case was affirmed by the First Circuit. Of course, the Massachusetts case could be appealed to the first circuit and it is possible that the first circuit might agree with the District Court decision in the California case. No doubt, be on the lookout for further developments.

What is a business to do? From a preventive law standpoint, it makes sense for the business to go about its business as if the Americans with Disabilities Act applied to the Internet. That also may be good business sense as it increases the customer base for the business. However, a business would be perfectly justified in taking the position that the Americans with Disabilities Act does not apply where the business is strictly on the Internet. Ultimately, this will probably be settled by the U.S. Supreme Court. If the personnel is the same by the time this case reaches the U.S. Supreme Court it is hard to say how the case would go. Previously, the swing vote in Americans with Disabilities Act cases with Justice O’Connor (compare Tennessee v. Lane with Board of Trustees of the University of Alabama v. Garrett). Before Justice Alito assumed his position on U.S. Supreme Court, his Americans with Disabilities Act cases were pretty much a literal interpretation of the Americans with Disabilities Act as applied to the facts. Of course, it is entirely possible that the composition of the court will have changed by the time this case gets there.

Stay tuned.

Case law dealing with the Rehabilitation Act and the Americans with Disabilities Act will often say say that the Americans with Disabilities Act and the Rehabilitation Act are governed by the same standards. Eg. Greer v. Richardson Independent School District, 2012 WL 833367, *12 fn 1 (fifth Cir. March 14, 2012). That said, are the two laws precisely the same? In important ways they are not. By way of history, the Rehabilitation Act of 1973 applies to the program or activities of any entity that takes federal funds. The Americans with Disabilities Act providing the prerequisites are met (15 or more employees for title I, a governmental entity excluding the federal government for title II, or a place of public accommodation for title III), applies regardless of whether federal funds are taken. With respect to existing facilities of governmental entities, facilities built before 1992, under the Americans with Disabilities Act, each facility does not have to be accessible, only the program does. However, under the Rehabilitation Act, a program or activity means all of the operations of various kinds of entities. Particularly noteworthy with respect to governmental entities, are: A) a department, agency, special purpose district, or other instrumentality of a State or of the local government; B) a college, university, or other postsecondary institution, or a public system of higher education; a local educational agency, or C) system of vocational education, or other school system. See, 29 U.S.C.A. § 794(b)(1)(A),(b)(2) (Westlaw, Current through P.L. 112-129 (excluding P.L. 112-96) approved 6-8-12)).

What does this mean? It means that the plaintiff by using the Rehabilitation Act could focus on the specific operation of the governmental entity receiving federal funds rather than have to worry about a program. However, if the plaintiff takes that approach, then a plaintiff is going to have to show that the disability discrimination was the sole cause rather than an “on the basis,” cause (see mixed motive article and blog entry on mixed motive for more details). If the plaintiff argues the Americans with Disabilities Act, then they will get into a debate as to what the program is but unless it is a retaliation claim (see mixed motive blog entry), may be entitled to to a mixed motive jury instruction. If the plaintiff pleads both the Americans with Disabilities Act and the Rehabilitation Act, it is possible that the plaintiff will have to worry about two different causation standards and also debate, “operations” versus a “program,” even given the same facts.

Tips: If plaintiff pleads only Rehabilitation Act, defense would want to show more than one cause was the reason for discrimination in order to defeat liability. The defense may also want to consider convincing the court that program accessibility rather than just operations apply to rehabilitation act cases as well (See id. for a case where the defense may have done exactly that); if plaintiff pleads only the Americans with Disabilities Act, the defense would need to be prepared for the possibility of a mixed motive jury instruction and in general would want to define the program as narrowly as possible (of course, the plaintiff in general will want to define the program as broadly as possible).

At the top of the legal resources section on this page, you will see a link to an article that I wrote regarding whether a mixed motive jury instruction is available under the Americans with Disabilities Act. A mixed motive jury instruction is an instruction that says that liability can exist if the plaintiff can show that the adverse action was motivated by discrimination based on the protected characteristic, in this case disability. If the defense can show that they would have taken the adverse action anyway despite being motivated by the disability, then the remedies that the plaintiff can receive are limited. Mixed motive comes from title VII of the Civil Rights Act. The question is whether a mixed motive jury instruction is possible under the Americans with Disabilities Act. Until Gross v. FBL Financial Services, 557 U.S. 167 (2009), mixed motive was certainly in play for Americans with Disabilities Act cases. However, the Gross decision said that because the age discrimination in employment act used the term, “because of,” for its causation standard and that the age discrimination act did not explicitly link to mixed motive provisions of the Civil Rights Act, then it has to be assumed that “but for” would be the standard for causation under the age discrimination in employment act. This created the question as to whether the same logic would apply to the Americans with Disabilities Act. Serwatka v. Rockwell Automation Inc., 591 F.3d 957 (seventh Cir. 2010) says that the same logic does apply.

I recently made a presentation to the DuPage County Bar Association where I expanded on the article to cover whether mixed motive jury instruction was dead under the Rehabilitation Act and the retaliation provisions of the Americans with Disabilities Act. With respect to the Americans with Disabilities Act prior to the ADAAA, a strong argument can be made that a mixed motive jury instruction is indeed dead. With respect to the Americans with Disabilities Act after the ADAAA the answer to that question is far more unclear. In that situation, as discussed in the article, an argument can be made that a mixed motive jury instruction is not dead. With respect to retaliation, the retaliation provisions have the same problems in it that existed with respect to the Americans with Disabilities Act prior to the amendments act. Therefore, it is quite possible that a mixed motive jury instruction is dead with respect to retaliation under title I and title II of the Americans with Disabilities Act. With respect to title III of the Americans with Disabilities Act and retaliation, a mixed motive jury instruction would most certainly be dead because the remedies for violations of title III in no way suggests that a mixed motive jury instruction could be in play. With respect to the Rehabilitation Act, due to the “solely by reason of disability,” language contained in that act for the causation standard, a mixed motive jury instruction is most certainly dead.

But is a mixed motive jury instruction dead under the Americans with Disabilities Act prior to the ADAAA? Lewis v. Humboldt Acquisition Corporation, Inc., _ F.3d _, 2012 WL 1889389 (sixth Cir. May 25th, 2012), raises the question that a mixed motive jury instruction may not be dead even under the Americans with Disabilities Act prior to the amendments act. In that case, the Sixth Circuit sitting en banc, said that “sole cause,” was not the standard for causation for Americans with Disabilities Act cases. The majority opinion adopted the aforementioned Serwatka opinion held that “but for,” was the proper standard. However, what is interesting is that there were multiple opinions where the judges concurred and dissented at the same time. In those opinions, they raised the question as to whether for claims that came into existence prior to the ADAAA, a mixed motive jury instruction might still be possible. Those opinions based their conclusions upon legislative history, the link to the mixed motive remedies section, as well as on the traditional interpretation of what “because,” traditionally meant in civil rights cases.

So what is a lawyer that represents either the plaintiff or the defendant to do? What is a corporation to do? That is, from the plaintiff point of view, it would be much better if they had the ability to argue that a mixed motive jury instruction was in play. Especially in employment, it can be very hard to show either “sole cause” or “but for”. In light of Lewis , the defense or a Corporation now has to consider that the Gross decision may not extend to Americans with Disabilities Act cases the way that Serwatka anticipates. In short, thanks to Lewis, an argument now exist that with respect to Americans with Disabilities Act cases prior to the ADAAA a mixed motive jury instruction may be in play. The Lewis concurring and dissenting opinions also raise the question as to whether a mixed motive jury instruction would also be in play with respect to retaliation claims under title I or title II of the Americans with Disabilities Act.

In short, the way it breaks down with respect to whether mixed motive jury instructions are in play might look like this. Under the Americans with Disabilities Act prior to the amendments act, probably not available but thanks to Lewis maybe it is; under the Americans with Disabilities Act after the amendments act, a mixed motive jury instruction for the reasons stated in the article, is probably in play for title I and title II cases but not for title III cases. With respect to retaliation cases under title I or title II of the Americans with Disabilities Act either before the amendments act or after the amendments act, the answer is that a mixed motive jury instruction is probably dead (See Palmquist v. Shinseki _ F.3d_ 2102 WL 3125131 (first Cir. August 2, 2012), but not necessarily, again thanks to Lewis; with respect to the Rehabilitation Act, a mixed motive jury instruction is most certainly dead.

All of this informs litigation strategy. If the concurring and dissenting opinions of Lewis wind up ruling the day, then you may also see an impact with respect to how companies go about their termination decisions involving persons with disabilities. This case bears watching. No doubt, it will ultimately go to the US Supreme Court, where it is anybody’s guess as to what they will do.

Defense argument tip: if the defense is faced with a retaliation claim, they can argue that since, “because” appears in the retaliation section of the statute, that Gross prevails, especially since when it comes to non-retaliation claims Congress put in, “on the basis” for the causation standard. What this means, is that the defense winds up conceding that mixed motive applies in non-retaliation cases, but by doing so creates a stronger argument that mixed motive does not apply in retaliation cases because Congress must have known what it was doing when it did not trade out “because,” from the retaliation sections of the statute and did trade the words out in the non-retaliation section of the statute.

There has been a lot of discussion in the blogosphere, particularly among media, about the decision that just came down from the Ninth Circuit involving the efforts of the cities of Costa Mesa and Lake Forest in California to close down places that grew pot for medical purposes. The link to that decision is below in the first comments. In that case, plaintiffs were severely disabled residents of California for whom conventional medical services, drugs and medications were not able to alleviate the pain caused by their impairment. Each plaintiff obtained a recommendation from a medical doctor to use marijuana to treat their pain. Medical marijuana use is permissible under California law but is prohibited by the federal controlled substances act. The plaintiffs obtained their medical marijuana through collectives in Costa Mesa and Lake Forest California. However, those two cities adopted ordinances excluding medical marijuana dispensaries from their communities. The plaintiffs sued alleging that the city in prohibiting the medical marijuana collectives violated title II of the ADA.

The first question was whether the plaintiff could be protected under the ADA at all. The ADA does not protect people who use illegal drugs. However, the ADA defines illegal use of drugs as: “use of drugs, the possession and distribution of which is unlawful under the controlled substances act. Such term does not include the use of a drug taken under supervision by a licensed healthcare professional, or other use as authorized by the controlled substances act or other provisions of federal law.” (emphasis added)

The plaintiffs argued that the comma after the word “healthcare professional,” meant that they were not subject to the illegal use of drugs exclusion from the ADA because the comma meant that the clause dealing with “supervision by a licensed healthcare professional,” was an independent clause from the clause that followed. The defendant argued that the comma did not signify two independent clauses, and if they were truly two independent clauses in meaning, Congress would have been a lot more clear to that effect. The majority opinion said that while the text of the statute is ultimately inconclusive, the cities’ interpretation that the exclusion applied to only to the use of drugs allowed under the controlled substances act made the most sense. The majority came to this conclusion because of their reading of the legislative history and because it is too much to ask for the statute to be construed as two independent clauses solely because of a comma. Thus, the court held that use of marijuana even with a prescription allowed under state law is an illegal use under the ADA and thus, does not protect medical marijuana users that claim disability discrimination on the basis of their marijuana use.

The concurring and dissenting opinion in part is interesting. That opinion, written by Judge Berzon, takes the opposite view by saying that the use of medical marijuana with a prescription would not be considered an illegal use under the ADA. She looks at the legislative history and a plain reading of the clause (in particular the placement of the comma), to reach that conclusion. That said, she winds up concurring with the majority opinion because she doesn’t see the title II violation. That is, the city was excluding medical marijuana dispensaries through enforcing the controlled substances act and not, for example, adopting a policy preventing individual with disabilities who use medical marijuana from attending school or obtaining unemployment benefits and the like.

So what can we take away from this case. First, a person who uses marijuana for medical purposes may or may not be engaged in the illegal use of drugs as defined by the ADA. Second, for a title II claim to succeed against a city enforcing a federal law, such as the controlled substances act, that claim is going to have to have a lot more connection to it than just persons with disabilities being adversely affected. That is, in this particular case, it isn’t the city in this case through a policy it has adopted that is doing the discrimination per se.

Preventive law tip: don’t automatically assume that a person who uses marijuana is using illegal drugs and therefore is not protected under the Americans with Disabilities Act. In that situation, you want to engage in a secondary inquiry as to whether that individual is otherwise qualified. In order to be protected under the Americans with Disabilities Act a person has to be both a person with a disability as well as a person who is otherwise qualified.

Before anyone can file a suit alleging a violation of the Americans with Disabilities Act, they first have to exhaust administrative remedies. That means they have to file a claim with the EEOC first. In some cases, a plaintiff files a claim with the state discrimination authority and that claim gets cross filed with the EEOC. It is then up to the EEOC to investigate the matter. Sometimes in the course of their investigation, it turns into something broader, a class action. If the EEOC turns it into a class action, the question is do they have to tell the defendant the specific members of that class before filing suit? A case that addressed this question is a recent decision from the northern district of Illinois in the case of EEOC v. United Road Towing, Inc. docket number 10 C 6259, May 11, 2012 written by Judge Ruben Castillo.

In this case, two people filed claims with the EEOC saying that United Road violated the Americans with Disabilities Act by automatically terminating a person upon the expiration of unpaid leave and by denying another person a reasonable accommodation, terminating that person, and then denying that person the ability to be rehired. After investigation, the EEOC issued a determination letter to United Road stating that it had reasonable cause to believe that United Road had committed three separate violations of the Americans with Disabilities Act against the persons who filed a charge with the EEOC and against a class of disabled individuals. More specifically, the EEOC said that it had reasonable cause to believe that United Road discriminated against the charging party and the class of disabled individuals in its application of its unpaid leave policy; denied reasonable accommodation to a class of disabled individuals; and discriminated against the charging parties and a class of individuals by failing to rehire them. Settlement talks broke down when the EEOC requested $2 million in monetary relief for the charging party and the affected the class members and a demand that United Road helped EEOC determine who the class members were. United Road felt that the class was being expanded from what they believed the EEOC had told them previously and therefore, broke off settlement talks because they believed that the EEOC did not make an offer in good faith. In discovery, the EEOC provided detail to United Road concerning the specific nature of their claims and the identities of the claimants. United Road believing the conciliation process was sufficient, declined the offer to negotiate a resolution and filed the summary judgment motion.

Before the EEOC can file a claim of discrimination, the EEOC must serve notice of the charge on the employer, investigate the charge, and if it finds reasonable cause to believe that a violation occurred, attempt conciliation with the employer. United Road in its summary judgment motion argued that the EEOC investigation process was deficient and that they did not conciliate with respect to the class members prior to filing the suit. With respect to the first issue, Judge Castillo said that the Seventh Circuit Court of Appeals had made it clear that the court may not review EEOC administrative investigation to determine whether a particular investigation sufficiently supports the claim that the EEOC brings in a subsequent lawsuit. That is, whether probable cause exists is a matter for the EEOC to determine not the courts because otherwise the focus of discrimination litigation in employment would become the EEOC’s investigation and not the validity of the actual claims of discrimination.

With respect to the conciliation process, the first question the court was faced with was what is the standard of review for determining whether the conciliation process was defective. There are two standards. First, some courts use a deferential standard. That is, a court will not review the substance of the conciliation process and will ask only whether an attempt to conciliate was made. Other courts use a heightened scrutiny standard where the court reviews the EEOC effort for reasonableness and responsiveness under all the circumstances. The Seventh Circuit has not decided which standard to use, but Judge Castillo said that that was not an issue because either standard was met in this case. In particular, the court said that both parties were at fault with respect to making sure that the scope of conciliation was clear. That is, the EEOC did not clarify its position after receiving communication from United Road indicating that there was a misunderstanding concerning the scope of the conciliation. However, on the other hand, United Road did not request more information or clarification when it received the EEOC’s $2 million settlement demand. Instead, they terminated the conciliation. As a result, the court declined to grant summary judgment to United Road since both parties were at fault with respect to the mistaken scope of conciliation. Therefore, the court denied summary judgment on that issue, and stayed the proceedings for 14 days to allow the EEOC and United Road to attempt conciliation on claims involving the class.

So what can you take away from this case. First, courts are going to have a hands-off policy with respect to the actual EEOC investigation and whether probable cause was correctly determined. Second, if you are challenging conciliation, the attorney needs to investigate whether their jurisdiction is a heightened scrutiny or deferential standard jurisdiction. Eventually, the US Supreme Court may step in to decide this question so that it is consistent. Regardless of which standard the court uses, if a defendant may have reason to believe that the EEOC is after something broader, the defendant should take the opportunity to clarify that. If they don’t, then the court may be justified in finding that the heightened scrutiny standard is satisfied as well.

In short, the EEOC does have the ability to pursue relief in litigation for similarly situated claimants whose allegations are not individually conciliated but whom defendants are generally aware of during the conciliation process. On the other hand, the EEOC does have the obligation to clarify its position with regarding to the class members they are trying to conciliate for when asked to do so by the defendant (United Road did not make such a request in this case).

Preventive law tip: In other words, if a defendant being subject to a class claim from the EEOC is not sure of the scope of that class and who may be the members of that class, the defendant needs to ask for clarification since under this case, the EEOC does have the obligation to make clear what the class is.

A fascinating case, Belton v. Georgia, 2012 WL 1080304 (N.D. Ga. March 30, 2012), recently came down from the northern district of Georgia. In this case, two people who were both deaf and suffered from mental illness sued the state of Georgia because the state of Georgia simply was not set up to accommodate persons who were deaf and whom communicated in ASL in their group homes. In particular, the plaintiffs alleged that the state of Georgia had four institutional failures with respect to serving the deaf that violated the Americans with Disabilities Act and section 504 of the Rehabilitation Act. Namely, the lack of ASL fluent mental health care practitioners; failure to reimburse medical providers for interpreting services; failure to provide deaf appropriate group home care settings; and refusal to provide adequate funding for deaf services. The court certified the case as a class action on behalf of all deaf Georgia citizens who either are or will be in need of public mental health services but who could not receive therapeutic benefit from those services since Georgia was not set up to accommodate deaf people who communicated through ASL. The plaintiff put forward evidence that the state of Georgia had no funding mechanism to reimburse healthcare providers for the cost of interpreting services. Instead the costs for same were absorbed by the provider (see below). The plaintiff also contended that the state of Georgia by providing a level of funding for deaf services that was disproportionate to the percentage of the population that is deaf also violated the Americans with Disabilities Act and the Rehabilitation Act.

There are several things fascinating about this case. First, it is one of the few situations, if my reading of the case law over the years is any indication, where a summary judgment motion was granted on behalf of the plaintiff.

Second, the court held that for a deaf person to equally benefit from mental health services, the provider providing those services must also be fluent in ASL in order for those persons to be able to obtain meaningful access to state provided services offered to the general public. The focus of the court was whether the communication between the deaf and the practitioner with an interpreter would be equivalent as to the communication between a hearing person and the practitioner. The court held that such communication is not equivalent. The court relied on a Florida decision, Tugg v. Towley, a 64 F. Supp. 1201 (S.D. Fla. 1994), which emphasized that the use of an interpreter inhibited the effectiveness of mental health counseling for the deaf and that the use of an interpreter, given the abstract nature of ASL, greatly increased the risk of miscommunication.

Third, critical to the court’s analysis was actually the testimony of two representatives of the state of Georgia, both doctors, whom testified that the state has a severe shortage of ASL fluent clinical workers as a result of a lack of state resources and institutional infrastructure. They also agreed that serving the deaf in group homes was ideal but only if the group homes were set up in a way to get the deaf meaningful access to those services, which, in their opinion, was not the case.

Fourth, the state did not reimburse group homes for providing services to the deaf. Rather, the state gave the group homes the additional 5% in the group home was free to use some or all of that money to serve the deaf population that it had. The court held that simply wasn’t sufficient to meet the reasonable accommodation requirements of the state imposed upon it by the Americans with Disabilities Act.

Finally, the court saved order remedies section the question of whether the funding vis-à-vis for enabling deaf person to be serving group homes needed to be reconfigured. The court ordered the parties to collaboratively reach agreement on the issues.

What can be taken away from this? The key thing to take away is that reasonable accommodations may not be enough (the state had paid for an interpreter for services in the home). With respect to title II, as we have also seen in the New York taxi case discussed in another blog entry, meaningful access also must also be considered.

Preventive law tip: human resources should develop outreach to the deaf community and to practitioners that serve the deaf. It is possible that there will not be enough practitioners to meet the needs. However, with an outreach program, at least you may be able to show good faith and how the specific accommodation despite best efforts is not possible.

This blog entry asks the question as to what is the status of the ADA and the Rehabilitation Act with respect to employees that work for religious institutions. Recently, the United States Supreme Court decided the case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 132 S. Ct. 694 (2012). In that case, a case in which the employee suffered from narcolepsy and sued under the Americans with Disabilities Act, the Supreme Court unanimously held that there existed under the First Amendment to the U.S. Constitution a ministerial exception that protected religious institutions from being subject to discrimination suits where the employee was a minister. While everybody agreed with this principle, the problem is, is that the justices could not agree on how to go about figuring out what a minister is. Justice Roberts focused on the training of the employee and the title that the employee has. Id. at 707-709. Justice Thomas focused on whether the religious organization had a good faith belief that the person is a minister based on a sincere determination of the religious entity that the person was a minister. Id. at 710-711. Justice Alito and Justice Kagan focused on the functions of the employee. Id. at 712-715. Since this is the first time the Supreme Court has visited this issue, it is unclear as to how this is all going to shake out because the courts below may choose to decide to follow one of these opinions or the other. You could get to different places depending upon which opinion is used. For example, as pointed out in the opinion, some faiths have ordination while many others don’t. For example, in the Jewish faith only rabbis and Cantors are ordained. Therefore, if you had an employee performing religious duties but whom was not ordained, an argument could be made that under Justice Thomas’s opinion, that person would not be considered a minister. Certainly, under the opinion of Justice Alito and Justice Kagan that person probably would be. With respect to the opinion of Justice Roberts, such a person may or may not be considered a minister depending upon his or her training and his or her title and perhaps some other factors as well.  Pointedly, the opinion of the court written by Justice Roberts, says that the decision does not mean whether other types of suits are barred, such as breach of contract or tort law claims against the employers.

What about the Rehabilitation Act? That act, 29 U.S.C. 794, says that an entity that takes federal funds must not discriminate against a person with a disability in their programs or activities. This statute also says that the discrimination must be the sole cause of the adverse action . Under the Rehabilitation Act, there are two questions that arise. First, is a program or activity involved. With respect to state and local government as well as colleges and other public school systems, program or activity refers to all the operations of those entities. 29 U.S.C. § 794(b)(1-3). With respect to private entities programs or activities only refers to the entire entity if the assistance is extended to the organization as a whole unless that organization is involved in the business of providing education, healthcare, housing, social services, or parks and recreation. 29 U.S.C. 794(b)(3). Therefore, depending upon the entity involved, you may have an issue as to whether a program or activity is involved with respect to the employee. Also, you may have an issue with respect to whether the employee can show whether the disability was the sole cause of the adverse action.

It is also possible that you may never reach the question of whether the Rehabilitation Act applies. There is one case that has addressed the issue of whether an entity taking federal funds waives its rights with respect to the ministerial exception. That case, Petruska v. Gannon University , 462 F.3d 294 (3d Cir. 2006), held that taking federal funds by itself does not waive the ministerial exception.

So what does this all mean. First, if you are an employer running a religious institution you would want to give all your employees at least some religious duties so that at least under the opinion of Justice Alito and Justice Kagan you would be able to consider them ministers. To be able to become a minister under Justice Roberts opinion, it would help if the position the employee was in required religious training and that requirement was in the job description with the title indicating as such. With respect to Justice Thomas’s opinion, there really isn’t much an employer can do as the determination of whether a person would be a minister is going to be a matter of the religious tenets of the faith. On the employee side, the employee should insist, if at all possible, on the contract that they have with the school containing a clause in it that the school will not discriminate based on a variety of characteristics, such as those contained in federal and state antidiscrimination laws. Alternatively, depending upon the state, if the religious institution has an employee handbook stating within it that they will not discriminate, the employee may be able to use that as the basis for breach of contract claim. Finally, the federal government may play a role here. For example, Petruska leaves open for the federal government to make as a condition of accepting federal funds that the employer explicitly waive their rights under the ministerial exception. It is possible that such an explicit waiver may indeed waive the ministerial exception. After all, nothing compels a religious entity to accept federal funds and there are some religious institution that do not accept any such federal funds. Further, if the waiver is explicit, then it is simply a matter of agreeing to a contractual term as a condition of receiving the monies.

Finally, expect to see an awful lot of litigation in the future as to whether employees are ministers. Also, the federal funding issue will be an interesting one to follow as well. Finally, it will be interesting to see whether you start seeing explicit waivers of the ministerial exception as a condition of receiving federal funds.

Persons with disabilities and the National Football League have been in the news of late. In particular, the Chicago Bears acquired a person with a mental disability and then there was the person in the draft that scored very poorly on the Wunderlic test. I thought it would be interesting to go through the collective bargaining agreement that the National Football League has with the union to see what Americans with Disabilities Act issues might be there. For years, I have written on how the Americans With Disabilities Act applies to sports. I enjoy the area because instinctively it seems counterintuitive that a person with a disability could be playing professional sports. The United States Supreme Court, in PGA Tour v. Martin, has held that the Americans with Disabilities Act does apply to professional sports.

When I reviewed the collective bargaining agreement, I was pleasantly surprised. I thought there would be more significant ADA issues than turned out to be. I did find a few sections of the agreement that are worth noting with respect to the Americans with Disabilities Act. First, section 6 of article 39 of the collective bargaining agreement says that each player will undergo the standardized minimum preseason physical exam and test. That physical exam is quite comprehensive. When it comes to post employment physical exams, an employer has the right to insist on that if it is job-related and consistent with business necessity. The case law is still evolving as to what job-related and consistent with business necessity means. However, whether a National Football League player can do the essential elements of the job, play their position, certainly depends upon their physical condition. Also, National Football League teams only get a limited number of player slots. Therefore, an argument can be made that such an exam would also be consistent with business necessity.

Second, article 40 of the collective bargaining agreement says that each player can examine his medical and trainer’s records in the possession of the club. Presumably, per the requirements of the Americans with Disabilities Act, the club is keeping that information in separate confidential files and not as part of the personnel record.

Third, article 49 of the collective bargaining agreement contains the nondiscrimination clause. Interestingly enough, disability discrimination is not included. The argument might be made how can a player with a disability possibly play in the National Football League? However, certainly, there are disabilities that would allow a player to play in the National Football League. For example, mental disabilities or learning disabilities just to name two. Also, the Americans with Disabilities Act contains protections for the team should the player have disabilities for. For example, the player still have to be able to perform the essential functions of the job, his position, with or without reasonable accommodations. Slso, the player cannot be a direct threat to himself or others.

In short, with respect to the collective bargaining agreement, from what I can see, there are some interesting issues with respect to the Americans with Disabilities Act, but those issues do not present insurmountable problems with respect to the game.