Understanding the ADA | an ADA/Rehabilitation Act blog by Attorney William Goren

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Today’s blog entry comes out of the Northern District of Georgia, and it involves the question of what is deliberate indifference in effective communication cases. We have talked about effective communication and deliberate indifference numerous times before in the blog. The case of the day is Nix v. Advanced Urology Institute of Georgia198199. By way of full disclosure, I have previously on another matter consulted with local counsel on this case previously but have never consulted with the lead counsel. As usual, blog entry is divided into categories and they are: facts; court’s reasoning introductory matters; court’s reasoning effective communication; court’s reasoning deliberate indifference;; the case is being appealed and should be; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.IFacts Lifted Directly from the Opinion (citations are internal to the opinion)Nix is deaf and primarily communicates using American Sign Language (ASL).2 Nix also reads and writes in English.3 Advanced Urology is a medical 1 The following facts are undisputed by the parties or otherwise supported by undisputed evidence in the record. 2 ECF 88, ¶ 1. 3 Id. ¶ 2. practice specializing in urological health.4 Prior to its involvement with Nix, Advanced Urology had treated deaf patients, but did not have an ongoing agreement with an interpreting agency.5 On February 5, 2018, Nix contacted Advanced Urology through a video relay service to make an appointment at its facility in Snellville, Georgia.6 Due to the emergency nature of Nix’s symptoms, the parties scheduled the appointment for February 7.7 Nix did not request an in-person interpreter during this initial call.8 The next morning, Nix called back and requested an interpreter.9 That request was forwarded to Missy Sherling—Advanced Urology’s VicePresident of Clinical Strategy—who, in turn, initiated a call with Steve Karasick and Kelly Brauer, Advanced Urology’s then-Chief Executive Officer and Surgery Center Director, respectively.10 Brauer, Karasick, and Sherling discussed Nix’s request, concluded they did not have sufficient time to procure an interpreter 4 Id. ¶ 3; ECF 89-1, ¶ 16. 5 ECF 89-1, ¶ 18. 6 Id. ¶ 18. 7 Id. ¶ 24; ECF 72 (Nix Dep. Tr. 78:11–21). 8 ECF 72 (Nix Dep. Tr. 81:10–20). 9 ECF 89-1, ¶ 25. 10 Id. ¶ 27. through their usual interpreting agency, and decided to look for other ways to fulfill Nix’s request.11 While attempting to locate an interpreter, Sherling learned that an Advanced Urology employee, Samantha Fazzolare, had a friend, Dalton Belew, who “could do basic signing.”12 Fazzolare did not inform Sherling of Belew’s profession or represent Belew as a trained or professional interpreter.13 Fazzolare provided Sherling with Belew’s contact information.14 Sherling did not, however, conduct any investigation into Belew’s background or qualifications as an interpreter.15 Based on Sherling’s subjective belief that Belew previously interpreted for another medical practice, Sherling and Karasick made the decision to ask Belew to interpret Nix’s appointment.16 Belew agreed.17 Contrary to Sherling’s beliefs, Belew was not certified in ASL,18 had never interpreted in a 11 ECF 66 (Sherling 30(b)(6) Dep. Tr. 15:2–23). 12 Id. at 17:18–18:3. 13 ECF 76 (Fazzolare Dep. Tr. 18:6–19:3). 14 ECF 89-1, ¶ 33. 15 ECF 66 (Sherling 30(b)(6) Dep. Tr. 27:3–21). 16 Id. at 74:18–25. 17 ECF 89-1, ¶ 38. 18 ECF 68 (Belew Dep. Tr. 12:14–16). medical setting,19 and characterized his own skills as “intermediate.”20 Belew had instead been previously employed as a video editor, floor manager at a news company, and at a dental office in an administrative position and as a sterilizer.21 After securing Belew’s agreement, Sherling called Nix and informed her an interpreter had been secured for her appointment.22 On February 7, Nix and Belew arrived at Advanced Urology for Nix’s appointment. The parties dispute many of the specific details of the appointment. However, the evidence is undisputed that Nix and Belew experienced significant difficulties communicating with each other through ASL. Due to Belew’s struggles, and his wearing of scrubs bearing Advanced Urology’s insignia, Nix became convinced Belew worked as a nurse, not an actual interpreter.23 At some point, Nix abandoned communication with Belew entirely and began writing notes and using gestures to communicate directly with the medical staff.24 Belew nonetheless remained in the room while Nix partially undressed and 19 Id. at 13:2–5. 20 Id. at 14:11. 21 Id. at 10:2–12:13. 22 ECF 89-1, ¶ 41. 23 E.g., ECF 72 (Nix Dep. Tr. 118:1–119:3). 24 ECF 89-1, ¶¶ 67–68. underwent two non-invasive ultrasounds.25 At the conclusion of the appointment, Nix and Belew filled out various forms affirming that Belew acted as an interpreter during the entire appointment.26 Advanced Urology ultimately issued Belew a check for $100 for his services.27 After her appointment, Nix and her husband complained to Advanced Urology regarding its decision to use Belew as an interpreter; Advanced Urology apologized and refunded their $40 co-pay for the appointment.2plaintiff filed suit alleging violations of title III of the ADA, §504 to Rehabilitation Act, §1557 of the patient protection and Affordable Care Act, fraud, negligence, and intentional infliction of emotional distress. Of course, summary judgment motions were filed. She sought both injunctive relief and damages.IICourt’s Reasoning Introductory MattersThe Affordable Care Act, the ADA, and the Rehabilitation Act all use the same substantive standards.Plaintiff withdrew her claims for injunctive relief in her response to defendant’s motion for summary judgment.Plaintiff is a qualified person with a disability.Plaintiff utilizes ASL at her primary means of communication.IIICourt’s Reasoning Effective CommunicationWith respect to whether communication is effective, the question is whether plaintiff experienced an impairment in her ability to communicate medically relevant information with hospital staff with a focus on the effectiveness of the communication and not on the medical success of the outcome.While perfect communication is not required, communication must still be effective.Ample evidence could lead a reasonable juror to find the communication between the plaintiff and the interpreter the practice hired to be ineffective. Examples include: the interpreter struggled to communicate even the most basic information, including his own name, during her appointment; the interpreter used incorrect signs for certain words, and the interpreter did not know what to sign or could not understand what plaintiff was attempting to communicate to him.Frustrated with the interpreter’s performance, plaintiff ultimately abandoned communication through ASL and resorted to self-help by exchanging handwritten notes in English directly with the medical staff.The 11th Circuit has held that the use of written notes may not be appropriate in the medical setting because such matters involve more complexity, such as communication about medical history or diagnoses, conversations about medical procedures and treatment decision, or communication of instruction for care at home or elsewhere. Written notes are better suited for more basic everyday interactions, such as the purchasing of an item in the hospital gift shop.The interpreter’s strained efforts in ASL interpretation combined with a mere four pages of handwritten notes created during the course of a three hour appointment, which included two noninvasive ultrasounds, does not constitute effective communications as a matter of law. So, genuine issues of material fact exists as to whether the limited auxiliary aids employed by the defendant impaired plaintiff’s ability to effectively communicate medically relevant information with that staff.IVCourt’s Reasoning Deliberate IndifferenceDeliberate indifference is an exacting standard requiring showing more than gross negligence.No requirement exists in federal or Georgia law requiring a medical facility to provide an ASL certified interpreter for deaf patients.The mere failure to provide a patient with an interpreter is not enough to support a finding of deliberate indifference.Defendant did attempt to accommodate plaintiff’s last-minute request for an in person interpreter and procured one for her appointment. It is true that the interpreter constituted a poor choice and perhaps the defendant should have more rigorously vetted his qualifications as an interpreter before hiring them.No evidence exists that the defendant knew that it would be substantially likely that the interpreter could not effectively communicate with the plaintiff and yet did nothing about it.There is no dispute that the plaintiff ever specifically informed the defendant’s medical staff that she needed or wanted a different interpreter.Plaintiff did not raise any grievance concerning the interpreter’s performance until after the appointment.The interpreter believed that he and the plaintiff adequately communicated during the appointment, with the exception of certain medical terminology.Plaintiff’s medical providers willingly engaged in the exchange of written notes to facilitate communication.At best, the evidence demonstrates that the defendant should have done more to ascertain the interpreter’s competency in ASL before hiring him, but that is not enough to demonstrate deliberate indifference.No evidence exists creating a triable issue of fact that the defendant has knowledge that plaintiff’s rights would substantially likely to be violated and yet failed to act.VThis Case Is Being Appealed and It ShouldWhile the court found that effective communication would not present here, it didn’t mention the standard in Silva I, which is: “To be ineffective communication, it is sufficient if the patient experiences a real hindrance, because of her disability, which affects her ability to exchange material medical information with her health care providers. This standard is consistent with the requirement that hospitals afford a level of communicationto a deaf patient about medically relevant information that is substantially equal to that afforded to non-disabled patients.”To show deliberate indifference in the 11th Circuit, Liese v. Indian River Community Hospital District180185200, which we discussed here181186201, a plaintiff has to show that the defendant: (1) knew they had failed to provide plaintiff with appropriate auxiliary aids necessary to ensure effective communication; (2) had the authority to order that aid be provided; and (3) was deliberately indifferent as to defendant’s failure to provide aid. A deliberate refusal to provide the auxiliary aid and service does constitute deliberate indifference under Silva I, discussed here182187202.The court frequently cite to Silva II, here183188203, which vacated the summary judgment on deliberate indifference but threw out the injunctive relief claim due to policy changes of the Defendant (the policy changes required: the provision of live in person interpreters upon request by a patient or guest; provided for VRI while waiting for a live interpreter; and provided for the scheduling of live interpreters for regularly scheduled appointments), as a basis for their decision. However, the impression created is not right. In Silva II, here184189204, the 11th Circuit said that deliberate indifference by itself is not the exacting standard, per Nix’s understanding for example, rather deliberate indifference requires that the indifference be a deliberate choice, which is the exacting standard.Silva II said that deliberate indifference occurs when the defendant knew that the harm to a federally protected right would substantially likely and failed to act on that likelihood. In other words, plaintiff must show ineffective communication done with knowledge that it would substantially likely to occur.IVThoughts/TakeawaysI, with co-counsel, have previously represented culturally deaf individuals, Deaf. From my experience, the culturally deaf can be a little too trusting of the hearing community at times. If you are representing a culturally deaf individual seeking medical care, you absolutely have to insist that he or she not go through with the appointment the minute they realize that a qualified interpreter is not there. They just have to walk away. You have to tell the culturally deaf individual to not even engage in the exchange of written notes except for the purposes of saying that he or she need a qualified interpreter.The court creates a higher standard for deliberate indifference than what was created in Silva I and Silva II. It resembles more the deliberate indifference standard adopted by the Seventh Circuit in a case we discussed here185190205.While the court says effective communication did not occur, they didn’t bring up the Silva I standard, which is whether communication was hindered.If you are representing a culturally deaf individual in a case like this, it becomes really important to have a table interpreter, an interpreter that acts very much as part of the legal team, who really understands how interpreting can go awry when a qualified interpreter is not involved. Also, be prepared to have an expert talk about the English ability levels of the plaintiff and the importance of ASL given that English ability (with respect to a culturally deaf individual, it is not unusual for such individuals to have English reading skills not higher than fourth grade if that).Prior to a culturally deaf individual walking away from the appointment, it is really helpful if the culturally deaf individual makes clear that the interpreter is not qualified and that they will not take any medical care offered until a qualified interpreter is present.Not sure why the plaintiff withdrew injunctive relief claims. I can say that one reason might be that the plaintiff had no intention of ever returning to that practice for reasons that are perfectly understandable.A culturally deaf individual need to immediately stop the appointment the minute he or she realizes the interpreter is not qualified. He or she should not wait till the end of the appointment to express those concerns.Depending upon your state, there may be informed consent concerns as well when a qualified interpreter is not provided for a culturally deaf individual. In the case that I served as co-counsel on, we had both informed consent claims as well as ADA claims in our complaint.Since the interpreter was not a qualified interpreter and bound by an interpreter code of ethics, there may be a breach of confidentiality claims against the physician as well in this kind of scenario.The 11th Circuit has been extremely progressive with respect to the rights of persons with disabilities. In light of Silva I, II and Liese, I like the chances of the plaintiff on appeal, though one never knows.Today’s blog entry deals with the concept of judicial estoppel. As I previously discussed here, the concept says that you make representations in one forum those representations can come back to haunt you later. I have also written on how it is legal malpractice not to be aware of this principle, here179182192195190192192190191193192. In the ADA world, you will see judicial estoppel come up in the areas of short-term disability, long-term disability, workers compensation, and SSDI. Basically, what happens is you have a person with a disability who files one of the above claims and then argues that the employer should reasonably accommodate his or her disabilities. When the employer does not do so, they defend on the grounds of judicial estoppel.In Cleveland v. Policy Management Systems, (we discussed that case here180183193196191193193191192194193 and the actual case can be found here194192193195194, a unanimous Supreme Court said that when it comes to SSDI in failure to accommodate claims, judicial estoppel doesn’t automatically apply. Rather, the plaintiff must give an explanation as to why the statements were inconsistent. So, turning to our case of the day, Allen v. Michelin North America, Inc., decided on December 14, 2020, out of the United States District Court of South Carolina, Greenville Division and written by Judge Timothy M Cain, you have a classic judicial estoppel situation. As usual, our blog entry is divided into categories and they are: key facts; court’s reasoning; problems with the decision; and thought/takeaways. Since this blog entry is so short, for me anyway, you will probably want to read the whole thing.IKey FactsIn June 2017, “during a phone interview with the SSA, Plaintiff confirmed that she has been unable to work because of her disabling condition since January 20, 2017 and remains unable to work.”In June 2018, she submitted a statement in support of her application for long-term disability benefits indicating that she was “completely and totally disabled from performing my prior job, or any job on a full-time basis”) (emphasis added).In March 2017, during her deposition for her workers’ compensation case, Plaintiff testified that, “I’m out of work because of my – my ability to not – I can’t concentrate. I can’t – I’m not together,” and later, in her deposition for this case, confirmed that testimony as well as her statement in support of her long-term disability application that she had been unable to perform her job at that time).IICourt’s ReasoningCleveland does not apply to purely factual contradictions in summary judgment proceedings. Therefore, Cleveland does not apply to this particular scenario as what is involved are factual statement regarding her ability to work that directly contradict her allegations with respect to her failure to accommodate claims.For judicial estoppel to apply, the following criteria must be satisfied: A) the party to be estopped must be seeking to assert a position inconsistent with the stance taken in a prior judicial or quasi-judicial proceeding; B) the prior inconsistent position must have been accepted by the judicial or quasi-judicial body; and C) the party to be estopped must be seeking an unfair advantage through intentional machination.II(2)(A),(B) are easily satisfied by the representations made in the various applications and the setting they occurred in.II(2)(C) is satisfied because to decide otherwise would allow the plaintiff to treat her disability as a piece of clothing that can be donned and removed when the mood strikes her. Also, permitting plaintiff to proceed with this argument is the very height of countenancing an unfair advantage through the manipulation of the judicial process.Even if Cleveland applied, plaintiff failed to offer sufficient explanation for her contradictory statements and therefore cannot survive summary judgment on her ADA claims.IIIProblems with the DecisionTo say that Cleveland does not apply to facts but only to legal conclusions misstates Cleveland. In particular, Cleveland says the following: “Nor does it involve directly conflicting statements about purely factual matters, such as The light was red/green, or I can/cannot raise my arm above my head. An SSA representation of total disability differs from a purely factual statement in that it often implies a context-related legal conclusion, namely, I am disabled for purposes of the Social Security Act. And our consideration of this latter kind of statement consequently leaves the law related to the former, purely factual, kind of conflict where we found it.” Cleveland , 526 U.S. at 802.The statements made by the plaintiff in this case are not the same as, “the light was red or green, or “I can or cannot raise my arm above my head.” Instead, statements referenced by the court are much more similar to the legal conclusions talked about in Cleveland than they are to pure facts.Even if the statements are somewhat factual, they are not the “purely factual,” type of statements made that the Court said in Cleveland were exempted from the rule. Statements made by the plaintiff in this case are very much overlaid with legal conclusions.It isn’t at all clear that the plaintiff was seeking an unfair advantage through intentional machination (the third element of judicial estoppel), as intentional implies some sort of subjective intent on the part of the plaintiff, which may or may not be the case here.IVThoughts/TakeawaysIf Cleveland does not apply to the “factual,” matters described by the Allen court, then what you have is an exception that swallows the rule. Cleveland does not apply to “purely factual matters,” but those types of matters are not, in my opinion, involved in Allen.The problem the plaintiff is going to have on appeal, if there is one, is if she did not truly raise any questions as to why the contradictions were present, she is going to be out of luck regardless of whether an appellate court would say that Cleveland applies.Lawyers who are operating in the long term disability, short-term disability, SSDI, and workers compensation spaces must read this blog entry181184194199194196196194195197195 or run the considerable risk of legal malpractice. They also must be sure to make clear that there are reasons for the inconsistencies in the prior representations. Failure to offer any explanation is, in my opinion, legal malpractice and has been so ever since Cleveland was decided in 1999.If you are an attorney operating in the long term disability, short-term disability, SSDI, and workers compensation spaces, you need to be advise your clients of the risk inherent in making those applications with respect to judicial estoppel. If you can, tailor those applications to make clear that you are not implying or suggesting that your client would be disqualified from doing jobs if given reasonable accommodations per the ADA.Did I mention that you need to read this blog entry182185195200195197197195196198196?Have a happy holiday season everyone.676767187116178228117On a plane? If it ever was Not anymore.On a plane? Yes, if I trained him for use outside the house.686868188117179229120Miniature horseyes to non-federal governmental entities; yes to places of public accommodations; but not on planes.Previously, the Department of Transportation came out with proposed regulations on service animals, here121230180118219189696969.  I have written about the issue of animals on planes numerous times before (such as here122231181119220190707070, here123232182120221191717171, and here124233183121222192727272), as well. Last week, the Department of Transportation came up with their final rule, here223193737373. So considering all the writing I have done on the subject, I felt compelled to blog on the final rule. As usual, the blog entry is divided into categories and they are: the final rule; and thoughts/takeaways. The reader is definitely going to want to read the final regulation section. Of course, I would like to think that the reader always wants to read my thoughts/takeaways. It’s not much of an add-on from the final regulation section anyway.IThe Final RegulationsThe proposed regulations define a service animal as a dog and only a dog that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. This definition pretty much tracks the DOJ final implementing regulations under title II and title III of the ADA (which we have discussed many times, such as here126235185123224194747474), found at 28 C.F.R. §§104127236186124225195757575, 36.104128237187125226196767676. A passenger can have up to two service animals. While a passenger could travel with two service animals, that does not give the passenger additional space for those service animals. That is, the airline must allow that individual to use all of his or her allotted space for both service animals without encroaching into the space of another passenger unless the owner wants to buy an additional seat. The airline could also find another section of the cabin that would allow for the passenger and the animal space permitting.Emotional support animals, comfort animals, companionship animals, and service animals in training are not included in the definition of a service animal. Such animals can be treated as pets by the carriers.A service animal is limited to a dog for a couple of different reasons. First, dogs are the most common animal species flying on aircraft, 90%. Second, dogs also have the temperament and ability to do work and perform tasks while behaving appropriately in a public setting and while being surrounded by a large group of people.Capuchin monkeys and miniature horses are not service animals. Monkeys are out because they may present a safety risk to other passengers as they have the potential to transmit diseases and exhibit unpredictable aggressive behavior. Miniature horses are out due to their size (I did recently read about a miniature horse flying with a person with a disability.Dog breed restrictions are out.Psychiatric service animals get treated the same as other service animal trained to do work or perform tasks.Service animals must be harnessed, leashed, or tethered when not with the passenger at their seat, which also includes anywhere in the airport that the airlines own, lease, or control.A service animal handler is a passenger in air transportation who is a qualified individual with a disability receiving assistance from a service animal that does work or perform tasks that are directly related to the individual’s disability, or a third party accompanying the individual with a disability traveling with a service animal such as a parent of a minor child or a caretaker.With respect to documentation that the animal is a service animal, the rule does the following: 1) requires individuals traveling with a service animal to provide to the airlines standardized documentation of the service animal’s behavior, training, and health; 2) if the service animal will be on a flight segment longer than eight hours, DOT mandates a standard form attesting that the animal would not need to relieve itself or can relieve itself in a way that does not create a health or sanitation risk; 3) the DOT forms are the only documentation that an airline will be able to use and require of a passenger traveling with a service animal. The airline does not have to ask a passenger traveling with a service animal for any documentation, but if they do, the airlines have to use the forms established by DOT. Only one form per trip is needed. Also, the forms must be on the airline’s websites, at the airport, or available by mail.The actual service animal behavior and training attestation form which has been combined with the proposed health certification form, contains the following certifications: 1) the animal has been trained to do work or perform tasks to assist the individual with his or her disability and has been trained to behave well in a public setting without aggression towards humans or other animals; 2) the animal will be harnessed, leashed, or tethered at all times in the airport and on the aircraft; 3) the airline has the right to treat the animal as a pet if the animal engages in disruptive behavior that show that it had not been successfully trained to behave properly in a public setting; 4) the airline has the right to charge for the cost to repair any damage caused by the service animal so long as the airline charges passengers without disability for the same kind of damage; 5) the animal has been vaccinated for rabies; 6) the animal does not have fleas or tics or a disease that would endanger people or other animals; 7) the name and phone number of the veterinarian, though a signature is not required; and 9) it is fraud to knowingly make a false statement to secure disability accommodations provided under DOT regulations.The species requirement is the same for both U.S. carriers and foreign carriers.Airlines can only make two inquiries to determine whether an animal qualifies as a service animal. The two questions are: 1) is the animal required to accompanying the passenger because of a disability; and 2) what work or tasks has the animal has been trained to perform. You cannot ask about the nature or extent of a person’s disability or ask that the service animal demonstrate its work or tasks. Unlike the DOJ’s title II and title III scheme, these questions can be asked regardless of whether it is readily apparent that the dog is assisting a person with a disability. While it doesn’t say so in this section, within the definition of handler it is clear that the disability must relate to the work or tasks performed. In addition to the two inquiries, carriers can observe the animal and look at physical indicators such as harnesses and vests. DOT recognizes that paraphernalia is widely available for purchase, and so carriers are free to give little weight to the presence of paraphernalia.An airline’s website must make the DOT forms mandated by the proposed rule available to passengers in an accessible format.With respect to making a determination to deny transport to a service animal on the basis that the animal has misbehaved and/or has caused a significant disruption in the cabin, it must be based upon an individualized assessment based upon a reasonable judgment relying on the best available and objective evidence to ascertain the probability that the misbehavior and/or disruption will continue to occur. Further, whether reasonable modifications in policies, practices, or procedure will mitigate the misbehavior and/or the disruption must also be considered.Anyone can train an animal to be a service animal.Carriers can deny transporting a service animal for any of four reasons: 1) animal poses a direct threat to the health or safety of others; 2) the animal causes a significant disruption in the aircraft or at the airport; 3) transporting the animal violates the applicable safety, health or other regulations of a federal agency, U.S. territory, or foreign government; or 4) the passenger failed to fill out the DOT forms when required to do so by the airline.Carriers cannot require a person with a disability to physically check in at the airport rather than using the online process on the basis that the person with the disability is traveling with a service animal.Prohibits carriers from imposing additional restrictions on the transport of service animals beyond what is specified in the proposed regulations.IIIThoughts/TakeawaysCurrent regulations implementing the Air Carrier Access Act are a mess. It’s amazing the system works at all. So, the final regulation brings needed clarity to the situation.I do not have a dog in the fight. That is, I am not currently representing or consulting with anybody or any organization with respect to these proposed rules. My hearing dog is strictly for the house, which I am told is not unusual for deaf or Deaf individuals.The final regulation gets rid of the arbitrary and unsupportable, even by DOT’s own admission, distinction between service animal for physical disabilities v. psychiatric disabilities.The final regulations eliminate the issue currently seen in the Tampa airport where Tampa airport said that emotional support animals unless they were crated or on a leash, etc., were not allowed in the airport. Such a decision was consistent with title II of the ADA’s final implementing regulations. Now that service animal under the DOT regulations matches for all practical purposes the regulations under title II and title III of the ADA, this is longer be an issue.Emotional support animals are out and are treated as pets. How many people will be truly affected by this decision is an open question.Delta Airlines will have to end its restriction on pitbulls as breed restrictions are out.Direct threat determination very closely resembles Chevron v. Echazabal, which we discussed here132241191129227197777777. It brings needed clarity to the area to what was previously very confusing.From a reading of the regulation, it can be concluded that a person training an animal to be a service animal has no right to fly with that animal unless they are the handler of that service animal or a person assisting the owner of that service animal.The documentation approach seems balanced and simplifies things greatly.Airlines can require the DOT standardized forms in advance up to 48 hours before the flight  unless the ticket was bought after that.DOT uses the two inquiries system found in the DOJ regulations but not in the DOJ’s frequently asked questions document. This leads to the real question of whether narrowly focused follow-up questions are in order if insufficient information is given to the two questions. Arguably, the answer is yes so long as the follow-up questions fall within those two inquiries.The regulations are exclusive. That is, airlines cannot add additional restrictions beyond the regulation.No doubt training will be needed. Be sure to use a knowledgeable trainer. That trainer needs to know both the applicable Air Carrier Access Act regulations as well as the ADA regulations pertaining to service dogs. That person also needs to recognize the similarities and differences between the two.What will happen to people who falsify the forms? Is the system geared up for that? Does putting such people into the criminal justice system even makes sense? The effect may be one of deterrence more than anything else.The harness, leash, or tethered requirement always applies to the animal when away from the passenger seat. This is different from the DOJ title II and title III of the ADA rules, which has a control of the handler’s standard. The difference comes down to the nature of airline flight.How does a person train an animal to fly on planes under this rule? I honestly don’t know the answer to that question. Perhaps, the airlines will work out deals with organizations that train dogs to be service animals. From the rule, it appears that the airlines are not required to allow service animals in training to fly on their planes in the passenger section.This blog has been a deep dive, but it is not legal advice. There is no substitution for knowledgeable Air Carrier Access Act counsel.Hope everyone had a great Thanksgiving. We aren’t out of the woods yet with Covid-19. So, please be safe.Today’s blog entry comes from the Fourth Circuit, Elledge v. Lowe’s Home Centers, LLC1801846767199,  a published decision decided on November 18, 2020. The case deals with two issues: failure to accommodate; and whether the ADA requires mandatory reassignment. So, the categories for this blog entry are going to be: facts; court’s reasoning failure to accommodate; court’s reasoning mandatory reassignment is not required by the ADA; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.IFactsChuck Elledge worked for Lowe’s for over two decades. In 1993, Elledge accepted employment as a health care analyst at Lowe’s Home Center. He earned multiple promotions over the years, ultimately attaining the position of Market Director of Stores (MDS). In this position, Elledge oversaw a dozen stores. He ensured that his stores complied with corporate quality standards and, of course, that they continued to turn a healthy profit. Elledge served as an MDS for almost a decade, and the stores under his supervision performed well. Elledge also had problems with his right knee. In December 2014, he underwent the most serious of four surgeries on his knee. When he returned from leave, once effortless aspects of his job had become trials in “working through the pain.” Walking 4 the floors of the stores he supervised had become trying at times, and driving from store to store could be taxing. Given the demands of his station, these changes in Elledge’s condition were significant. For Elledge and for Lowe’s, the store visits were essential to maintaining high levels of compliance and performance. To keep pace with the needs of his stores, Elledge had typically conducted two separate store visits each day and worked between fifty and sixty hours each week, with the considerable walking and driving that entailed. Upon his return to work, Elledge’s doctor ordered him to restrict his walking to no more than four hours each day and his workday to no more than eight. Lowe’s, in consultation with Elledge, agreed that, for a time, he could and should abide by his doctor’s orders while he continued to work. Lowe’s also offered Elledge the use of a motorized scooter to ease the strain on his knee during store visits. Elledge declined the use of the motorized scooter and, although he did comply with his light-work schedule most of the time, he did not always find himself able to follow his doctor’s orders. Elledge arranged for his lower-ranking colleagues, who had previously only accompanied Elledge on his store visits, to drive him to and from the stores under his supervision, so that Elledge would have an opportunity to stretch out his knee in the back seat. Shortly after renewing these accommodations, Lowe’s learned that Elledge would be issued a permanent disabled parking permit. Contacting Elledge’s doctor, Lowe’s inquired whether Elledge’s restrictions would be permanent. The doctor replied in the affirmative: “I rec these be permanent restrictions.” In response to this development, Lowe’s Regional Human Resources Director Hollie Reinhart and Vice President of Store Operations Delno Dryden had several conversations with Elledge. The purpose of these conversations was to chart a mutually agreeable course forward. Although Elledge would not be able to remain in his present position, Reinhart and Dryden spoke with him about other potential career opportunities at Lowe’s, agreeing to network on his behalf regarding any vacancy in which he had an interest or, in the alternative, to help shift him to a less physically demanding manager level role. Displeased at the prospect of stepping down into a lower paying position, Elledge applied to two other director-level positions, Merchandising Director of Lawn and Garden and Merchandising Director of Outdoor Power Equipment. His applications were considered and rejected under Lowe’s succession planning and best-qualified hiring policies. Ryan Lane, who had been identified through the Lawn and Garden department’s succession planning policy, was selected for the former position. Chad Sanders, who had founded Lowe’s Assistant Store Manager Leadership Development Program and directed Lowe’s Leadership Development Sessions for the National Sales Meetings, was selected for the latter. Elledge, meanwhile, accepted Lowe’s offer of a severance package and early retirement.Elledge then sued for violations of the ADA and ADEA (ADEA we won’t cover). The District Court granted summary judgment for Lowe’s and Elledge appealed.IICourt’s Reasoning Failure to AccommodateA function of the job is essential as long as it bears more than a marginal relationship to the job at issue.In determining the essential functions of a job, consideration is given to the employer’s judgment. That is, the decision about a job’s essential function belongs in the first instance to the employer and merits considerable deference from the courts.A court performing the essential functions inquiry must consult the full range of evidence bearing on the employer’s judgment, including the testimony of senior officials and those familiar with the daily requirements of the job.No reason exists to doubt the District Court’s conclusion that the essential functions of plaintiff’s job included: standing or walking in excess of four hours each day; traveling to all supervised stores; and working in excess of eight hours each day.The official job description stated that a candidate must be capable walking frequently, defined as 34-66% of working hours, and driving continuously, defined as 67-100% of working hours. These requirements meant that the plaintiff had to push his mobility and stamina on days when his job required him to walk 66% of the time as well on days he had to drive almost without ceasing.Plaintiff’s own testimony revealed that his job would not possible without significant amount of driving and walking. That testimony was backed up by plaintiff’s supervisor’s testimony.When it comes to essential functions of the job, what matters is testimony about the day-to-day regimen of the job. Here, the testimony is clear that plaintiff had to work in excess of eight hours each day with respect to the day-to-day regimen of the job.For a person to be a qualified individual under the ADA, they have to perform the essential functions of the job with or without reasonable accommodations. No serious dispute exists that plaintiff could not perform the essential functions of the job without reasonable accommodations.Plaintiff turned down accommodations offered by Lowe’s including: not taking advantage of light work accommodation; not complying with his doctor’s orders with total consistency; refusing even to try using a motorized scooter to aid his store walk-throughs; and without receiving formal clearance through the interactive process, crafting his own accommodation by making arrangements with associates who usually accompanied him on store visit for them to drive him back and forth. In short, plaintiff accepted or created certain accommodations, rejected others and pushed himself beyond the limits of his doctor s orders.To the extent an employee can be accommodated through a variety of measures, it is the employer exercising sound judgment that possesses the ultimate discretion over how that will be done.Provided the employer’s choice of accommodation is reasonable, a court may not substitute its own judgment for the employer’s choice.Plaintiff’s manifest need to disregard his physician as well as him creating accommodations outside the interactive process created the situation that Lowe’s could reasonably assume meant the plaintiff had limited long-term potential.After plaintiff’s four separate knee surgeries in almost as many years, Lowe’s was also reasonable in concluding that the light duty accommodation was no longer viable. With no tangible signs of improvement, Lowe’s could not have been expected to allow a dramatic reduction in the work requirement indefinitely.Plaintiff rejected the scooter accommodation. As such, Lowe’s was under no obligation to extend an offer for other accommodations.Plaintiff’s arrangement to have another employee drive him to his stores is not something that Lowe’s had to recognize as reasonable because an employer need not change a job’s essential functions or split them across multiple employees.IIICourt’s Reasoning Mandatory Reassignment Is Not Required by the ADAOther Circuits and the interpretive guidance of the EEOC persuasively recognize that reassignment is an accommodation of last resort.Allowing other reasonable forms of accommodation to take precedence over reassignment protects the employer’s discretion over hiring. That discretion is what makes it possible for the employer to discharge its responsibility to promote workplace stability and workforce changes over time and to reward merit through predictable advancement. It is also fundamental to the employer’s freedom to run a business in an economically viable way.Reassignment as a last resort also encourages employers to take reasonable measures to accommodate their employees with disabilities in the position they already hold. The employee is saved from being hurled into an unfamiliar position with a different set of demands. Rather, the employee is allowed to maintain and grow the investment he has already made and his present job.Deemphasizing reassignment helps preserve a fair balance in the relationship between an employee with a disability and his colleagues. Reassignment is unique in its potential to disrupt the settled expectations of other employees.The ADA does not require an employer to reassign an individual with a disability where that individual would bump another employee from his position or block reasonable longtime workplace expectations.Holding reassignment in reserve for unusual circumstances adds to the confidence of other employees that the misfortune of a colleague will not unfairly deprive them of opportunities for which they themselves have worked for.The Supreme Court has never held that mandatory reassignment is required by the ADA.The decision of the Supreme Court, U.S. Airways v. Barnett1811856868200 holding that the ADA did not require bumping of an employee no longer qualified to do his current job-, did not require employers to construct preferential accommodations maximizing workplace opportunity for employees with disabilities. Instead, it does require that preferential treatment be extended if necessary to provide employees with disability the same opportunities as employees without disabilities.The Supreme Court in Barnett talked about the value of stability and employee expectations as being the most important reason justifying the precedence of the employer’s seniority-based system over an employee’s with a disability otherwise valid right to reassignment. Such an interest must be jealously guarded as they represent an employee’s personal costly investment in their own careers.Lowe’s merit-based approach examines an employee’s record of experience and qualifications as well as their performance and interview settings.Lowe’s hiring process represents continuous effort to identify talent interdepartmentally and provide special training and attention to prime its most competent employees for promotion into the heightened responsibilities of director level positions. The process is on its face disability neutral. The process invites, rewards, and protect the formation of settled expectations regarding hiring decisions. It is also reasonable, orderly, and fundamentally fair for directing employee advancement within the company. So in the ordinary run of cases, reassignment in contravention of such a policy is not reasonable.The Eighth Circuit has held that a best qualified hiring system falls under the same principle as a seniority-based system and therefore is a perfectly reasonable approach. The 11th Circuit, which we discussed here1821866969201, has held the same.Lowe’s had several conversations with the plaintiff about alternative career opportunities. They also agreed to network on his behalf regarding any and all positions in which he might express an interest. In short, there are many examples of Lowe’s proactively working to ensure that plaintiff did not despite his disability, receive anything less than the same workplace opportunities as other employees without disabilities.Lowe’s had valid reasons for hiring other people for the jobs that plaintiff applied for.Lowe’s also encouraged plaintiff to accept a manager role. While that role would not have paid as much, the responsibilities would have been lighter and the jobs easier to obtain. Such roles could have served as a track for the plaintiff to gain new invaluable experience that would return him to the directorship level in a position more suited to his physical condition. Just because plaintiff declined that offer, does not mean that Lowe’s did not provide him meaningful opportunity to continue his working relationship with the company.IVThoughts/TakeawaysThere is clearly a Circuit Court split between the Seventh, which, as we discussed here1831877070202, demands mandatory reassignment, and the Fourth and Eleventh circuits, which say that mandatory reassignment is not called for by the ADA. The 10th Circuit in Lincoln v. BNSF Railway Co.1841887171203, comes closer to the Seventh but allows a very small out for the employer.What happens next with regards to the United States Supreme Court very much depends upon what side of the aisle you are on. If you are on the plaintiff’s side, the clear preference is to allow each Circuit to play it out. If you lose, do not take it to the Supreme Court. On the other hand, if you are on the defense side, it is certainly in your interest to petition the Supreme Court for a writ of certiorari if you lose at the Circuit Court level. The reason being that there is absolutely no doubt in my mind, very little anyway, that the Supreme Court will take the view of the Fourth Circuit when it comes to mandatory reassignment for two reasons. First, people with disabilities do not fare well at the Supreme Court when it comes to employment situations. Second, the Fourth Circuit in particular, did a very nice job of offering policy reasons why reassignment should be a last resort. Given the configuration of the current Supreme Court, I think the Supreme Court by at least a 6-3 margin, if not more, will be very receptive to those policy reasons detailed in the Fourth Circuit opinion. So while as a practical matter there is a Circuit Court split, the handwriting is clearly on the wall as to what the U.S. Supreme Court will ultimately decide. That means unless you are in the Seventh Circuit and you are representing an employer, you are perfectly justified in setting up a competitive system for people with disabilities when it comes to reassigning them to another job when they no longer can do their current job with or without reasonable accommodations. That said, very helpful if the employer engages in a process, as Lowe’s did, to help the employee with a disability obtain a suitable position rather than leaving it up entirely to the employee’s own devices.There are real benefits for exploring all possible accommodations as Lowe’s did. Companies that demonstrate a strong effort to accommodate a person with a disability fare very well when it comes to successfully defending failure to accommodate claims.A few other things about the opinion are interesting. First, the court does not mention the Seventh Circuit opinion1851897272204 requiring mandatory reassignment at all. Second, the court could have also said that the plaintiff was no longer qualified because they turned down perfectly reasonable accommodations. Finally, they could’ve also said that since the plaintiff essentially blew up the interactive process by turning down accommodations and creating their own outside of the interactive process system, the plaintiff loses because he blew up the interactive process.Employees do not get the right to invent their own accommodations outside of the interactive process.Employers need to document any and all efforts to engage in the interactive process.While the employer’s determination of what is an essential function of the job gets preference, it is still the day-to-day happenings on the job that ultimately matter.Transferring an employee to a lower paying job when they can no longer do their current job with the without reasonable accommodations can be a reasonable accommodation.Don’t forget about using the Job Accommodation Network1861907373205 to help sort out what accommodations are possible.Be safe!Today’s blog entry is a case from the 11th Circuit that I have blogged on before at both the Circuit Court level and the District Court level. A link to both can be found here185180191118201. On November 10, 2020, the 11th Circuit vacated their previous opinion issued back in March and re-issued another one. Since we have discussed this before, no need to go into the facts, which simply put involves a deaf individual’s inability to access legislative streaming of the Florida legislature. So, the categories for this blog entry are: court’s reasoning sovereign immunity; court’s reasoning Ex Parte Young; court’s reasoning Rehabilitation Act sovereign immunity; concurring opinion; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.IMajority Opinion ( Judge Martin)Court’s Reasoning Sovereign ImmunityTitle II of the ADA explicitly abrogates 11th amendment immunity.Explicit abrogation of sovereign immunity isn’t enough, the legislation must also have congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.In figuring out whether abrogation is congruent and proportional, a three-step test is used: 1) identifying what right or rights Congress sought to enforce when it enacted the ADA; 2) determining whether there was a history of unconstitutional discrimination to support Congress’s determination that prophylactic legislation was necessary; and 3) whether title II is an appropriate response to that history and pattern of unequal treatment.In a footnote, the court noted that the Supreme Court has also said, here186181192119202, that sovereign immunity can also be waived if there is an independent violation of the 14th amendment.If the identified right triggers heightened scrutiny or is deemed fundamental, then Congress has greater latitude to abrogate immunity.The 11th Circuit has held that sovereign immunity was waived where a right to education was at stake even though that particular right is not subject to heightened scrutiny. In particular, the 11th Circuit recognized that the constitutional right to equality in education, though not fundamental, is vital to the future success of our society. That is, denying persons with disabilities the right to equality in education affected their future ability to exercise and participate in the most basic rights and responsibilities of citizenship, including but not limited to voting and participation in public programs and services.It doesn’t make sense that Congress could validly abrogate sovereign immunity to protect the rights of students with disabilities to get an education but could not do the same to directly enable those students to participate in the democratic process.Defendants gave the court no plausible reason to believe that the 11th Circuit decision saying that sovereign immunity was abrogated when it came to education was wrongly decided or that its reasoning should not apply.Congress’s identification of discrimination in public services and voting establishes the necessary history for discrimination with respect to accessing public legislative information relevant to voting.Title II of the ADA provides an appropriately limited response to remedy the history of unequal treatment. The burden of adding captioning to legislative videos already provided to the public removes a complete barrier to that information and can be accomplished with limited cost and efforts. In that way, the remedy is a proportionate and reasonable modification of the service already provided and does not change the nature of the service whatsoever.If the costs or effort proved to be prohibitively burdensome, affirmative defenses under title II exist.When Congress enacted title II of the ADA, it had evidence before it that deaf people often cannot access government meetings either due to a lack of interpreters or other necessary accessibility features.Accordingly given the evidence and the limited nature of the remedy, Congress validly abrogated sovereign immunity under the standard for important rights that nonetheless receive only rational basis review.IICourt’s Reasoning Ex Parte YoungWhere a plaintiff challenges a state official’s action on federal grounds, Ex Parte Young allows the plaintiff to seek prospective injunctive relief.Since the plaintiff seek an injunction based upon violations of a federal law, the ADA, the exception for not allowing a plaintiff to seek injunctive relief for violations of state law does not apply.In a footnote, the court noted that plaintiffs are not requesting any special treatment. Instead, they are requesting equal access to information to which the rest of the population already has access. So, persons with disabilities are being placed on an equal footing rather than being given an unfair advantage. In other words, plaintiffs are merely seeking equal footing with the rest of the hearing public. It certainly would be possible that the legislature could remove the links for the legislative streaming altogether. However, so long as they keep the links up they must comply with title II of the ADA by captioning those videos. Any other conclusion would allow the Florida legislature to avoid compliance with federal statutes and undermine the integrity of the statutory scheme.IIICourt’s Reasoning Rehabilitation Act and Sovereign ImmunityA state waves its sovereign immunity if they receive federal financial assistance.In cases involving factual challenges to subject matter jurisdiction, the District Court must give the plaintiff an opportunity for discovery appropriate to the nature of the motion to dismiss.In the 11th amendment context, a District Court may order limited discovery before deciding whether sovereign immunity requires dismissal.The 11th Circuit generally requires that plaintiffs have an opportunity to conduct jurisdictional discovery prior to dismissal.Since this opinion says the legislative defendants are not entitled to sovereign immunity for plaintiff’s ADA claim, they are required to answer the complaint and provide discovery on plaintiff’s ADA claims.IVConcurring Opinion (Judge Tjoflat)Congress validly abrogated sovereign immunity regardless of whether the right implicated is fundamental.Plaintiffs are entitled to pursue injunctive relief under Ex Parte Young.The District Court did not adequately explain its reason for denying the Florida legislature’s motion to dismiss the Rehabilitation Act claims. Accordingly, that part of the case should be remanded to the District Court for further explanation before deciding whether to affirm its ruling.The District Court’s analysis of dismissing the motion to dismiss for the Rehabilitation Act claim was inadequate for two reasons. First, the District Court should not have suggested that it was making only a temporary ruling that might be revisited in the future because issues of immunity should be resolved at the earliest possible stage. Second, the District Court completely ignored the affidavit regarding direct financial assistance as self-serving, as all affidavits are, and it also did not mention the Florida legislature’s argument rebutting the plaintiff claims of indirect financial assistance. So, the proper course would be a limited remand on the Rehabilitation Act claim for further explanation of the District Court’s reasoning for denying the motion to dismiss the Rehabilitation Act claims. Absent more explanation, it can’t be properly decided whether the District Court abused its discretion in dismissing the claim.VThoughts/TakeawaysAs we have discussed previously, both sovereign immunity and equal protection claims very much depend upon what equal protection class persons with disability fall into. People with disabilities are a moving target in that respect. Unlike other groups, the equal protection class that people with disabilities fall into varies depending upon the facts of the case per this case187182193120203. So, people with disabilities are in the rational basis class with respect to employment per this case188183194121204. However, they are at least in the heightened scrutiny class if not higher when it comes to accessing the courts per this case189184195122205.Equal protection jurisprudence is incredibly divisive because it separates out people for different levels of protection depending upon their immutable characteristics, whether they are born with it or develop it later in life.For why people with disabilities may fall into a rational basis class, take a look at this case190185196123206.The equal protection classes are also a bit of a moving target because not every situation involving rational basis review results in a victory for the government when persons with disabilities are adversely affected by governmental action. That rational basis review still results in an equal protection victory for persons with disabilities may have started with City of Cleburne v Cleburne Living Center191186197124207.The 11th Circuit continues its strong trend of favoring the rights of persons with disabilities when disability rights issues come before them.I would have to do some research, but it would surprise me if every other Circuit has reached the same conclusion as the 11th Circuit with respect to education and sovereign immunity under the ADA.Undue burden is an affirmative defense.Where a defendant claims they do not receive federal financial assistance, it is perfectly within the realm of the court’s discretion to conduct limited discovery to ascertain whether that is the case.This case could conceivably head up to the United States Supreme Court. As I have mentioned before, people with disabilities frequently win before the Supreme Court when employment matters are not involved. Also, it is far from clear whether a fundamental right is not involved here. After all, accessing legislative proceedings is fundamental to being a good citizen.The placing of people with disabilities in the rational basis class in Board of Trustees of the University of Alabama v. Garrett192187198125208 in the first place was not based on sound logic. Cleburne was ostensibly a rational basis decision, but it spent pages upon pages discussing why the discrimination by the town of Cleburne against persons with disabilities was inappropriate. You don’t usually see that in typical rational basis cases. If anything, that case might be better looked at as a rational basis plus situation. In Heller v. Doe193188199126209, the U.S. Supreme Court specifically stated that the parties had agreed that the person with disabilities in that case fell into the rational basis class. That is not to say that persons with disabilities may not have had some difficulty with a rational basis classification with respect to employment because state employers for years have been very good about hiring people with disabilities (if you are wondering why many employers have trouble retaining and hiring people with disabilities, check out this blog entry194189200127210 that I wrote for the Federal Bar Association blog) .While I have never worked with one of the attorneys on this case, Courtney Cunningham, I do stay in touch with him.I have not had a chance to check it myself, but the case gets even more interesting if the Florida legislature removed the videos from its websites (they may have already done so). If that is the case, then the question becomes whether the litigation is moot and likely to recur. I would argue that it is certainly likely to happen again.The costs for captioning in real-time or afterwards are decreasing all the time now that automatic speech recognition technology is coming into its own.Colonel JohnnyBefore turning to the blog entry of the day, today is Veterans Day. I want to wish everybody who fought for our country or has family that served in the military a good Veterans Day. I also want to wish everyone a happy Veterans Day.The case of the day is from the Northern District of Alabama decided on July 21, 2020. It is Smith v. Morgan18067671181971186767. It is an interesting case involving a deaf individual with a service dog, a business that didn’t know what the service dog rules were but immediately leapt in to fix it when they found out what went wrong, the police, and the city attorney. I chose the case because you don’t often see service animals with respect to the deaf, though I have one. Also, it is an interesting representation of what can happen when a business races to fix the problem even when non-architectural barriers are involved. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning the case is not moot; court’s reasoning that the injunction is not necessary; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the sections.IFacts (taken directly from the opinion)On May 4, 2017, Amber stopped at an Exxon gas station in Hanceville, Alabama with her husband, Chad Smith, and their two kids. The Smiths regularly stop at the Hanceville Exxon when they visit Chad s parents in the area. Chad and the kids entered the store first. Amber followed a few minutes later with her service dog, Sassy. A store employee quickly approached Amber and told her that dogs were not allowed in the store. Doc. 51-2 at 6. Amber, of course, could not understand the employee. Chad intervened and explained to the employee that Amber was deaf and that she used Sassy as her service dog. Id. The employee then demanded proof that Sassy was a service dog, to which Chad responded that it is unlawful to request a service animal s papers. Id. At that point, the employee got made and stormed off. Id. The employee went to consult with another employee—Ashleigh Chaffin. Doc. 51-3 at 4. Chaffin says she had a conversation with Chad too, id. at 5, but Chad does not remember this conversation, doc. 51-2 at 6. According to Chaffin, she *4 asked Chad if he had papers to prove that Sassy was a service animal, to which Chad again replied that it was unlawful to ask for a service dog s documentation. Doc. 51-3 at 5. Chaffin told Chad she was going to call the police for clarification. Id. 4 3 4 3 In her deposition, Chaffin insists that neither she nor the first employee would have asked to see Sassy s papers; they would have asked only if Sassy had papers. Doc. 51-3 at 5, 8. That is not how Chad remembers it; he specifically remembers that the first employee wanted to see Sassy s papers. Doc. 51-2 at 6. On a motion for summary judgment, Chad s memory governs. Either way, the question was unlawful. See 28 C.F.R. § 36.302(c)(6). 4 In a declaration, Chaffin elaborates on her decision to call the police: [I]t was not clear to me at the time how I was to determine if the animal was a service animal without some documentation, and I did not want to violate any health department regulations concerning the presence of animals in establishments that serve food. Doc. 51-7 at 3. After Chaffin announced that she was calling the police, Amber and Chad approached the counter to purchase a few items from the store. Doc. 51-2 at 7. When Amber and Chad tried to pay, however, Chaffin allegedly told the cashier: We re not selling them anything. Don t sell them nothing. Id. at 8. Amber and Chad waited at the counter until the police arrived. Id. Three police officers responded to the call. Doc. 51-1 at 6. Like the employees, the police questioned whether Sassy was a service animal, and asked to see documentation. Doc. 51-2 at 10. Again, Chad responded that it is unlawful to ask to see documentation for a service animal. Id. The police decided to call the city attorney. Id. at 5 11; doc. 51-3 at 10. *5 According to Chad, the city attorney advised that the store was allowed to ask to see Sassy s papers, and the Smiths had to produce those papers. Doc. 51-2 at 12. At that point, Amber showed the police a certificate from a website that said Sassy was a service animal. Id. Even after producing the certificate, the police forced Amber 5 2 Smith v. Morgan Civil Action Number 5:18-cv-01111 and Sassy to stay with them by the front of the store while Chad paid for their items. Id. The Smiths then left the store. The Smiths intend to return to the store, because it is the most convenient gas station when they visit Chad s parents, but they have not yet done so. Id. at 13-14. 5 Wilson recalls that the city attorney (correctly) advised them that they could not ask for proof of a service animal. Doc. 51-4 at 9. This would be a devastating confession, since they continued to seek proof that Sassy was a service animal after receiving the city attorney s advice. See doc. 51-3 at 7.Wilson, the manager and majority-owner of the store, claims that [i]mmediately after the Smiths left, she looked up the law about service animals and learned that businesses could not ask for proof that animals brought into the store were service animals. Doc. 51-6 at 4. The Smiths promptly retained counsel, and one week after the incident they mailed a notice to preserve evidence to the defendants. Doc. 51-3 at 21. After receiving this notice, Wilson posted a sign on the store window reading, Service Animals Welcome. Doc. 51-4 at 5; doc. 51-3 at 10. She also printed a summary from the Department of Justice ( DOJ ) of the rules regarding service animals, and *6 placed it near the register. Doc. 51-4 at 6; Doc. 51-3 at 23-25. Furthermore, Wilson required the store s employees to sign an agreement indicating that they had reviewed the DOJ s summary. Doc. 51-4 at 13; doc. 51-6 at 14-28 (showing that the first employee signatures occurred on May 22, 2017). 6 6 6 Also on May 22, two of the officers who responded to the scene drafted statements memorializing their memory of the incident. Doc. 51-4 at 20-21. Either Wilson or Chaffin asked the officers to draft the statements. See doc. 51-3 at 10. The timing of the officers statements further corroborates that the defendants sprang into action after they received notice of legal action.Plaintiff lawsuit alleged violations of the ADA and various state law claims. In particular, plaintiff asked for a declaratory judgment stating that the defendant violated the ADA as well as an injunction ordering them to modify their policies and practices to be consistent with the ADA to allow her full and equal access to the store. Defendants moved to dismiss the ADA claims arguing that the claims were now moot because they had changed their policy to comply with the law. The court denied that motion and the defendants moved for summary judgment.IICourt’s Reasoning the Case Is Not MootA case is not generally mooted when a defendant voluntarily ceases a challenged conduct.Voluntary cessation only moots a case where the defendant meets the heavy burden of showing that it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.In the 11th Circuit, three factors are considered with respect to the probability of recurrence and they are: 1) whether the challenged conduct was isolated or unintentional as opposed to a continuing and deliberate practice; 2) whether the defendant’s cessation of the offending conduct was motivated by a genuine change of heart or timed to anticipate suit; and 3) whether in ceasing the conduct, the defendant has acknowledged liability.While the defendant admitted they asked customers with service animals for documentation in the past, at the time defendant did not know the ADA prohibited asking such questions. Therefore, the challenged conduct was continuing but unintentional.Evidence shows that it was not until after the defendant received notice of a potential lawsuit that they posted the sign welcoming service animals and required employee to sign the agreement acknowledging familiarity with the rules concerning service animals. Therefore, defendants’ actions were motivated by the impending lawsuit. Reform timed to anticipate or blunt the force of a lawsuit offers insufficient assurances that the practice sought to be enjoined will not be repeated.The defendants explicitly conceded that they cannot ask for documentation of a service animal, and that they must provide persons with disabilities full and equal access to the store. As such, that gives the court little reason to fear future injury.The main bulwark against recurrence of the requirement is that new employees read DOJ’s summary of the law regarding service animals. That is hardly a foolproof solution. Defendants testified that the store has a lot of turnover. All it takes for this bulwark to fail is one new employee falsely claiming to have read the summary or the store forgets to tell an employee about the policy. After all, defendants have consistently argued that most people have no idea you cannot ask for a service animal’s papers. So, it is entirely conceivable that the defendant could also grow weary of the policy and simply revert to their own practice. As such, telling the court that the challenged conduct no longer exist in disclaiming any intention to revive the practice is not enough to moot the case.IIICourt’s Reasoning That an Injunction Is Not NecessaryEvidence shows that the defendant violated the ADA unknowingly.Evidence indicates that the defendants intend to respect the law regarding service animals going forward.Plaintiff has not presented any evidence challenging the defendant’s evidence that they have followed the laws since there encounter with her.Where the court to issue an injunction, it would not order the defendant to do more than they already doing.The analysis of whether a declaratory judgment is warranted is the same as the analysis for an injunction. After all, courts are not in the business of pronouncing past actions that have no demonstrable continuing effect right or wrong.IVThoughts/TakeawaysThe defendant claimed that she could not be held individually liable as the ADA does not provide for individual liability. However, the defendant was the 60% owner of the store and therefore, she can be held liable under the ADA as the owner of the place of public accommodation.In the summary section before Judge Kallon gets into his facts and reasoning, he says that a place of public accommodation can only ask two limited questions when it comes to service animals: 1) is the animal required because of a disability; and 2) what work or tasks the animal has been trained to perform. The two questions are correct but saying that only those two limited question can be asked is not. If you look at 28 C.F.R. §36.30218168681191981196868(c)(6), you see that the phrase used is “two inquiries,” and not two questions. Inquiries are a broader category than questions.This is not an architectural barrier case. However, the case shows how fixing the problem promptly can forestall liability even in a non-architectural barrier case.You don’t see a lot of service animals with respect to the deaf, but they absolutely exist. I was talking to a person who is deaf recently and familiar with service dogs and the deaf. She told me that with respect to the deaf who have service dogs, they are commonly used in the house and not outside. It was nice to hear that I am not the only deaf person using my service dog in that way.I am not sure I follow why a declaratory judgment was not in order even though an injunction was not. The violation of the ADA was crystal clear. If the court had granted the declaratory judgment, then plaintiff would have been able to obtain attorney fees as the prevailing party even as the court denied the injunction. I am not sure why the declaratory judgment decision and the injunction decision necessarily have to be the same. I would love to see comments from readers doing litigation on the question of whether a declaratory judgment and an injunction must move in lockstep with each other.By using the search engine for my blog, you can find lots of relevant entries with respect to service animals, such as here18269691201991206969.Excellent move by the police getting the city attorney involved. Apparently, the city attorney made the right call.Ignorance of the law may be no excuse, but in this case it helped the defendant escape liability, especially since they raced to fix the problem once they were aware of their noncompliance.It is unclear what the court is referring to when it talks about the DOJ summary that the defendant has its employees read. Are they talking about the DOJ frequently asked questions document or something else? If they are talking about the frequently asked questions document, that document contradicts its final regulations with respect to whether the questions are limited to only two in number or whether it is inquiries that are limited to two in number. Under Kisor v. Wilkie18370701212001217070, discussed here, final regulations will prevail over a frequently asked questions document.Police forces definitely need training on the service animal rules for title III entities. In this case, the police mistakes with respect to what the law are required were alleviated by the city attorney. The lesson there is always get knowledgeable legal counsel involved when necessary and the earlier you do so the better.Before starting on the blog entry of the day, if you have not already voted do so. Today’s blog entry is a case, Exby-Stolley v. Board of County Commissioners, Weld County, Colorado17918111819811820567, that I blogged on almost 2 years ago. About two years ago, the 10th Circuit came down with a decision, which I discussed here18018211919911920668, holding that failure to accommodate claims required an adverse action. It turns out that the panel decision was reheard by the entire 10th Circuit. On October 28, 2020, it vacated the panel decision, reversed the District Court’s judgment, and remanded for a new trial. It is a 135 page decision complete with a majority opinion and two dissenting opinions. No need to cover the facts since we discussed all of that in the previous blog entry, here18118312020012020769. So, the categories for this blog entry are: majority opinion (Judge Holmes); thoughts/takeaways on the majority opinion; dissenting opinion (Judge McHugh); thoughts/takeaways on Judge McHugh’s dissenting opinion; dissenting opinion (Judge Hartz); and thought/takeaways on Judge Hartz’s dissenting opinion). Of course, the reader is free to read any or all of the categories.IMajority Opinion Holding That a Failure to Accommodate Claim Does Not Require an Adverse Action (Judge Holmes)The language “adverse employment action,” does not expressly appear in the plain terms of the failure to accommodate statutory provision nor in the general rule of 42 U.S.C. §1211218218412120112120870(a).A court cannot add language to a statute’s plain text.Requiring adverse action for failure to accommodate claims is at odds with pre-existing 10th Circuit precedent; EEOC’s views; and regularly followed practices of all of the other Circuits.Prior 10th Circuit precedent has repeatedly and invariably talked about the prima facie case for an ADA failure to accommodate claim without mentioning adverse employment action requirements.The 10th Circuit has made clear that articulations of the prima facie case for failure to accommodate claim exhaustively details the essential elements of that claim.It must be that the reason 10th Circuit cases omit the adverse employment action element from their comprehensive statements of the prima facie case for ADA failure to accommodate claims is because no such element exist in ADA failure to accommodate claims.When a cause of action requires an adverse employment action, courts are not shy to say as much.Failure to accommodate claims are a freestanding claim of discrimination based upon a failure to meet an affirmative duty. Title VII has no such freestanding claim.Prior cases have specifically mentioned that an adverse employment action is not an element of failure to accommodate claims when discussing other statutes where an adverse employment action was a requirement.On multiple occasions, the 10th Circuit has stated that the ADA establishes a cause of action for employees with disabilities whose employer failed to reasonably accommodate them. That general statement says nothing about the need for employees with disabilities to also demonstrate an adverse employment action before their failure to accommodate claim will be viable.The duty to make reasonable accommodations is an affirmative unvarnished obligation of the employer. Accordingly, it is hard to imagine that a federal statute placing an affirmative or unvarnished obligation on the employer would allow the employer to escape consequences for breaching that obligation so long as that employer does not take some additional adverse action. Accordingly, the court is disinclined to read the ADA in such an unnatural manner.In prior discussions of the overarching feature of the ADA discrimination claim, the 10th Circuit has made clear that an ADA failure to accommodate claim does not contain adverse employment action requirements.Prior 10th Circuit cases have made clear that in failure to accommodate claims as soon as the employer with adequate notice of the employee with a disability request for some accommodation failed to provide a reasonable accommodation, that is the point in time where the employer has discriminated against an individual with a disability because of his or her disability.So, 10th Circuit precedent is such that once a plaintiff has established an employer’s failure to reasonably accommodate the disability, plaintiff does not need to go further and establish they also suffered an adverse employment action.Disparate treatment claims and failure to accommodate claims are two different kettles of fish. Disparate treatment claims do require an adverse action but failure to accommodate claims do not because the two types of claims are very different from each other. In disparate treatment claims the allegation is that the employer acted. On the other hand, in failure to accommodate claims, the allegation is the employer failed to act.The ADA’s reasonable accommodation mandate focuses on compelling behavior rather than policing an employer’s actions. Accordingly, it makes little sense to require the showing of an adverse employment action as part of a failure to accommodate claim. That is, it verges on the illogical to require failure to accommodate plaintiffs to establish their employer acted adversely toward them when the fundamental nature of the claim is that the employer failed to act.Since failure to accommodate claims concern discrimination in the form of a failure to meet an affirmative obligation, there is no action that must be shown to have been taken with any particular intent. That is, once an employee makes an adequate request for an accommodation thereby putting the employer on notice, an employer’s failure to offer reasonable accommodation to a qualified person with a disability is unlawful discrimination regardless of whether the employer had any intent to do so.Introducing an adverse employment action requirement into an ADA failure to accommodate claim would significantly frustrate the ADA’s remedial purposes.The purpose of the ADA to promote full participation and equal opportunity for people with disabilities are effectuated in meaningful part by the affirmative obligation the ADA imposes on employers to make a reasonable accommodation.The ADA requires preferences in the form of reasonable accommodations needed for those with disabilities to obtain the same workplace opportunity as those without disabilities automatically enjoy.The reasonable accommodation requirement is best understood as a means by which the barriers to the equal employment opportunity of an individual with a disability are removed or alleviated.Reasonable accommodations provide the individual with disabilities an equal employment opportunity. Equal employment opportunity means the opportunity to attain the same level of performance or to enjoy the same level of benefits and privileges of employment as are available to the average similarly situated employee without a disability.The purposes and the ability of the ADA’s reasonable accommodation mandate to promote disability inclusion would be significantly frustrated by including an adverse employment action as a necessary element of a failure to accommodate claim. That is, it would allow for employers not being held accountable for failing to reasonably accommodate their employees with disabilities so long as an adverse employment action was also not involved. How could the ADA’s reasonable accommodation mandate meaningfully ensure that qualified individuals with disabilities denied a reasonable accommodation obtain the same workplace opportunity as those with disabilities automatically enjoy and enjoy the same level of benefits and privileges of employment as people without disabilities, if the statute mandates that such individuals only get a remedy when their employers have also subjected them to an adverse employment action. The very asking of the question is the answer of it. The answer is simply no. The ADA could not meaningfully effectuate its full participation and equal opportunity purposes with an adverse employment action requirement.Imagine a judge of the 10th Circuit (emphasis mine), hires a blind law clerk who can with without accommodations can only write two draft judicial opinion per month. Also, assume that the widely accepted standard for a successful law clerk is one who can write three draft judicial opinions per month and the blind law clerk can reach that level with the help of a reasonable accommodation. Also assume that a qualified low-wage personal reader would constitute a reasonable accommodation under the ADA and that such a reader would not impose an undue hardship on the office operations of the blind law clerk’s employer. Further, imagine that the judge denies the blind law clerk’s request for this assumed reasonable modification and refuses to discuss any other possible reasonable accommodation by telling the law clerk that drafting two opinions per month will be just fine even though the other judge’s law clerk regularly meet the three opinion monthly target. Such an employee has suffered no adverse employment action and would not have a claim if an adverse employment action requirement was layered onto failure to accommodate claims. That doesn’t make any sense because that law clerk would not be a full participant or fully included in a service, program, or activity because they cannot utilize the program, service, or activity in a similar way as person without disabilities. Further, that law clerk has been prevented from competing on an equal basis with their fellow law clerk who do not have disabilities and enjoying the same level or privileges of employment as those law clerks. The court is simply unwilling to adopt a reading of the ADA’s failure to accommodate mandate that yields such a result.An interpretation of the ADA’s failure to accommodate claims that would permit a result where an employee is denied an opportunity to compete on an equal basis with her fellow employees and pursue those opportunity for which America is justifiably famous is a result to be avoided.The unvarnished obligation to accommodate a qualified person with the disability makes any adverse employment action irrelevant.The ADA is not simply concerned with shielding individuals with disabilities from significant workplace harms but also with reasonably accommodating limitations of their disabilities so they may provide the nation with the benefit of their consequently increased productivity.The ADA’s objective is to ensure that qualified individuals with disabilities are placed on equal grounds with other employees in regards to the covered employment relationship.In the 10th Circuit, a person with a disability has a right to a reassignment rather than the right to be considered for a reassignment where the employee is no longer able to do the original job with or without reasonable accommodations. Requiring an adverse action would make a mockery of the right to reassignment cases.The ADA simply cannot be read to require that employees with disabilities are only allowed to receive accommodations if they also suffer an adverse employment action. Such a construction of the statute significantly restricts the scope of the ADA’s reasonable accommodation obligation through the use of language (adverse employment action), that does not even appear in the statute’s text.The EEOC has also made it clear that failure to accommodate claims do not require an adverse action.29 C.F.R. §1630.918318512220212220971(a) not only omits any mention of an adverse employment action component but also implicitly rejects by this omission the notion that such a component of failure to accommodate claims even exists.Indeed, absent an undue hardship, the regulation explains that a covered entity violates the ADA by not reasonably accommodating an employee with a disability. Full stop (court’s words).EEOC regulations implementing title I of the ADA are entitled to a great deal of deference.EEOC’s interpretive guidance on the ADA are a body of experience and informed judgment to which courts and litigants may properly resort to for guidance. Those guidances omit any mention of an adverse employment action requirement for ADA failure to accommodate claims.Nowhere in the EEOC’s interpretive guidance extensive discussion of reasonable accommodation claims is there any discussion of reasonable accommodation claims requiring some form of an adverse employment action.The EEOC notes in its enforcement guidance that the duty to provide reasonable accommodations is a fundamental statutory requirement.When the EEOC in it guidances discusses the burdens of proof, nowhere is there any mention of the employee needing to show an adverse employment action before the proof burden shifts to the employer.In the instruction for investigator section of the EEOC guidance, an extensive set of questions investigator should inquire into while assessing whether an employee has violated the ADA by denying a reasonable accommodation is discussed. However, none of those questions relate to an adverse employment action.None of the other Circuits have regularly incorporated an adverse employment action requirement into ADA failure to accommodate claims. That is, either the Circuits have declined to incorporate an adverse employment action requirement into an ADA failure to accommodate claim or they have incorporated such a requirement in name only because the failure to accommodate is an adverse action in and of itself.The First, Fourth, Fifth, Sixth, 11th, and the D.C. Circuit either state or strongly suggest that no adverse employment action requirement in ADA failure to accommodation claims exist.The Third and the Eighth Circuits have an adverse employment action requirement into their failure to accommodate claims. However, that is in name only because a failure to accommodate is an adverse action. Cases suggesting that an adverse employment action is an additional requirement for failure to accommodate claims, including one-Samper- that we discussed here18418612320312321072 on a separate issue, are outliers.The incorporation of 42 U.S.C. §12112(a)’s terms, conditions, and privileges employment language into an ADA failure to accommodate claim is unnecessary because a failure to accommodate claim necessarily implicates and provides particularized concrete expression of terms, conditions, and privileges of employment language. In other words, a failure to accommodate claim as a matter of logic and common sense necessarily involves a qualified person with a disability terms, condition, and privileges of employment. So, it is simply unnecessary for court to expressly incorporate terms, conditions, and privileges of employment language into an ADA failure to accommodate claim.Adverse employment action as understood by precedent is not the same thing as terms, conditions, and privileges of employment.Even if a court desired to take into account terms, conditions, and probative of employment language of §12112(a) in failure to accommodate claims, that is not the same thing as imposing an adverse employment action requirement.42 U.S.C. §1211218518712420412421173(b) is inextricably intertwined with 42 U.S.C. §12112(a)’s general rule because it underscores that a covered employer cannot discriminate against a qualified individual on the basis of disability while at the same time particularrizing and making concrete what that means through examples of what is prohibited disability discrimination in the employment context.42 U.S.C. §12112(b) enumerated examples give concrete expression to areas of discriminatory conduct against qualified individuals with disabilities referenced in 42 U.S.C. §12112(a). As such, those example necessarily are in regard to those individual terms, conditions, and privileges of employment.Terms, conditions, and privileges of employment are part and parcel of any ADA failure to accommodate claim. Accordingly, expressly incorporating that language into failure to accommodate claims is unnecessary.Terms, conditions, and privileges of employment language in title VII serve to combat the entire spectrum of workplace discrimination. A Supreme Court decision saying as much was decided fully five years before the ADA came into effect. Accordingly, Congress is presumed to know what the phrase meant when it passed the law.The court is simply unwilling to equate language signaling the expansive sweep of the ADA’s employment related antidiscrimination mandate with an adverse employment action.Undue hardship is an affirmative defense.IIThoughts/Takeaways on Majority OpinionIt is absolutely and completely strange to me that both the majority opinion and the dissent argued over the ADA’s applicability to a failure to accommodate a federal law clerk’s disability because neither the ADA nor the Rehabilitation Act of 1973 applies to the federal courts. I am at a loss as to how such a mistake could be made. The majority discussion of this hypothetical also impose its title II language (“program, services, and activities)”, onto a title I case, which I also find odd. Title I and title II have very different statutory provisions, final implementing regulations, guidances, and two different agencies implementing the ADA.Failure to accommodate is a separate cause of action under the ADA. That statement has significant implications for claims focusing on the interactive process because a failure to accommodate pretty much presumes a failure of the interactive process or the lack thereof.Undue burden is an affirmative defense.The possible ADA claims in a particular case are: disparate treatment; disparate impact; and failure to accommodate.If there a Circuit Court split? The majority opinion by talking about how an adverse action is an element in some Circuits in name only may be an attempt to get around a Circuit Court split. I am not sure how they get around Samper.Even though Samper is an outlier with respect to the prima facie elements of a failure to accommodate claim, I still really like the case with respect to trying to figure out whether attendance is an essential element of the job.What will the Supreme Court do? At Justice Barrett’s confirmation hearing, a blind attorney talked about how critical it was for her to have Justice Barrett help her navigate the law school’s reasonable accommodation process. Accordingly, Justice Barrett may be very attuned to how the failure to accommodate to a person with a disability is itself an adverse action.The ADA is an equal opportunity driven statute. I have always liked the starting line analogy. That is, it is up to the covered entity to get the person with the disability to the same starting line as those without disabilities. After that, it is up to the person with a disability to demonstrate what he or she can do.The 10th Circuit is one of those jurisdictions where a person no longer qualified to do his current job has the right to be reassigned to another.EEOC final regulations get Chevron deference. That doesn’t surprise me in light of Chevron v. Echazabal18618812520512521274.Essentially the majority opinion offers two ways for a court to say that an additional adverse action is not required in failure to accommodate cases: 1) the scheme of the ADA and its provisions; and 2) a failure to accommodate is an adverse action by itself.In light of Kisor v. Wilkie, discussed here18718912620612621375, it will be interesting to see how much deference the EEOC guidances mentioned in the majority opinion receive.IIIJudge McHugh’s Dissenting OpinionThe qualification that discrimination must be with regard to job application procedures, hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, condition, and privileges of employment necessarily requires an additional adverse action beyond the failure to accommodate.Congress not expanding 42 U.S.C. §12112(b) when it expanded §12112(a) means that the actions in §12112(b) do not satisfy the in regard to clause.The majority opinion essentially does away with the in regard to clause.Prior decisions that the 10th Circuit are bound by does not resolve the question of whether failure to accommodate claims require an additional adverse action. The one Supreme Court case dealing with failure to accommodate claims, U.S Airways Inc. v. Barnett18819012720712721476, involved in adverse employment action. So, no controlling law from the Supreme Court exist on the question.While it is true that many cases often fail to expressly include an adverse employment action as an element of the prima facie case, the reasoning of those decisions make clear that an adverse employment action is an element of those claims.The distinction between acting and failure to act doesn’t excuse applying the statute’s plain language.A failure to act situation could easily require an adverse action.Congress did not intend to create a super human resources department to dictate an employer’s conduct irrespective of its impact.In most failure to accommodate cases, the failure to accommodate adversely impacts the conditions of employment.That the failure to accommodate must be in regard to the terms, conditions, or privileges of employment necessarily means an adverse action has to be present.With respect to the hypothetical of the law clerk, the judge’s decision to allocate work in chambers with consideration for the law clerk’s limitations is not and should not be actionable under the ADA.Congress could have made all failures to accommodate actionable. However they did not do so. Instead Congress directed that only failures in regards to the terms, conditions, or privileges of employment trigger liability under the ADA.The in regard to language strikes the appropriate balance between protection of employees with disabilities and deference to the business decisions of employers.The in regard to language is ambiguous. Therefore, the EEOC regulations cannot be said to have provided an interpretation of that language entitled to Chevron deference.The EEOC guidance documents are not entitled to any deference [Kisor] either.The in regard to clause and similar language in title VII of the Civil Rights Act (Judge McHugh said the ADA was based upon that law), strongly suggest that an additional adverse action requirement is mandated.The decisions requiring an adverse action in failure to accommodate cases were first on the board and therefore should be followed subsequently.Title VII has failure to accommodate claims in the context of disparate treatment claims with respect to religious practices. In those situations, adverse action is required.Failure to accommodate under the ADA is a freestanding discrimination claim.Hostile work environment claims also require adverse employment action.An adverse employment action can be a situation where there is a constructive alteration in the terms or conditions of employment.The in regard to clause means that discrimination must be in regard to the employment related aspect covered by §12112(a) and must cause more than de minimus harm.In the blind law clerk hypothetical, if the judge reduced the blind law clerk’s pay by one third, the failure to provide reasonable accommodation would be in regard to his or her employee compensation and would be actionable as an adverse action under the ADA. On the other hand, if the judge does not provide a reasonable accommodation but also does not take any disciplinary action against the blind clerk, the judge’s failure to provide a reasonable accommodation was not in regard to the covered aspect of employment. Similarly, if the judge terminated the blind law clerk for breaches of chamber confidentiality, then the judge has similarly has not failed to provide a reasonable accommodation in regards to employment.With respect to the blind law clerk hypothetical, if a hostile work environment ensued due to the accommodation, the blind law clerk would have a claim.Failure to accommodate claims should be analyzed under whether the failure to provide reasonable accommodation was sufficiently severe or pervasive to alter the terms or conditions of employment.While the jury instruction was too narrow because the in regard to clause covers a significantly greater swath of employment than those reflected in tangible employment actions, that does not mean there was prejudicial error by the jury instruction.IVThoughts/Takeaways on Judge McHugh’s Dissenting OpinionSee ¶ II 1. I don’t follow how such a glaring error is possible with respect to the applicability of the ADA and the Rehabilitation Act of 1973 to the federal judiciary. The decision does mean state courts should be on notice of the ADA s applicability to them.The ADA is not based upon title VII of the Civil Rights Act. The ADA is based upon the Rehabilitation Act of 1973, whose remedies are hooked into title VI of the Civil Rights Act and not title VII.Failure to accommodate is a freestanding ADA claim. See also paragraph ¶ II2.If failure to accommodate claims are handled under the hostile work environment standards, many fewer people with disabilities will be able to receive reasonable accommodations. They will also have a much more difficult time of challenging the failure to receive reasonable accommodations when the employer does not grant the reasonable accommodations. Hostile work environment standards, as we have discussed previously18919112820812821577, are very difficult for a plaintiff to meet.Fear of adverse action is a major reason why persons with disabilities are very reticent about disclosing their disability. For a discussion of why that is the case, see this blog entry that I wrote for the Federal Bar Association blog, here19019212920912921678.VJudge Hartz’s Dissenting OpinionThe 10th Circuit should refrain from discussing what is an adverse employment action because the issue was not raised before the panel or in the panel opinions. It also was not raised in any briefing on the meaning of adverse employment action for the Circuit en banc either.While an adverse employment action jury instruction may not have been necessary, it still can be useful, especially where the absence of an adverse employment action frees the jury from having to determine whether the employer acted unreasonably in failing to make the accommodation.None of the cases cited in the majority opinion are binding upon the 10th Circuit sitting as a whole. Further, those opinions are sorely lacking in their persuasiveness as none of those cases explain why there is no adverse action requirement.The government at oral argument forcibly confirmed that the in regard to language applied to failure to accommodate claims.The majority opinion runs the risk of making a federal case of every incident of discrimination in the workplace, including failures to accommodate.VIThoughts/Takeaways on Judge Hartz’s Dissenting OpinionI don’t see a disconnect between the majority opinion and saying that the in regard to clause applies. The debate among the majority and the dissenting opinions is whether the in regard to clause creates a separate adverse action requirement. That can be argued either way. It can also be argued that a failure to accommodate is an adverse action in and of itself. Certainly, anybody with a disability, including myself, who has gone through the accommodation process would certainly argue that the failure to accommodate is an adverse action that changes things for the worse  with respect to accessing his or her employment, accessing a public entity, or accessing a public entity.We now have a new Associate Justice on the United States Supreme Court, Amy Coney Barrett. For those interested in how she might rule on disability rights matters, see this blog entry1821206969198. Today’s blog entry came to me from my involvement with the Federal Bar Association civil rights section. Caryl  Oberman, a Pennsylvania attorney exclusively focusing on special education law, alerted me to this case. It isn’t a disability rights case per se. However, it applies to anyone, which of course includes persons with disabilities, in a public school. Also, it isn t unusual for me to write unconstitutional law with respect to people with disabilities. The case of the day is B.L. v. Mahanoy Area School District1831217070199, 964 F.3d 170 (3d Cir. 2020), decided on June 30, 2020. As usual, the blog entry is divided into categories and they are: facts; First Amendment protection; punishment of student violated First Amendment; views from other courts and why a legal principle must be established; the Third Circuit approach and the policies behind it; student did not waive free speech rights; concurring and dissenting opinion; and thoughts/takeaways. Of course, the reader is free to read any or all of the categories.IFactsB.L. is a student at Mahanoy Area High School (MAHS). As a rising freshman, she tried out for cheerleading and made junior varsity. The next year, she was again placed on JV. To add insult to injury, an incoming freshman made the varsity team.B.L. was frustrated: She had not advanced in cheerleading, was unhappy with her position on a private softball team, and was anxious about upcoming exams. So one Saturday, while hanging out with a friend at a local store, she decided to vent those frustrations. She took a photo of herself and her friend with their middle fingers raised and posted it to her Snapchat story. The snap was visible to about 250 friends, many of whom were MAHS students and some of whom were cheerleaders, and it was accompanied by a puerile caption: Fuck school fuck softball fuck cheer fuck everything. To that post, B.L. added a second: Love how me and [another student] get told we need a year of jv before we make varsity but that s [sic] doesn t matter to anyone else?. One of B.L. s teammates took a screenshot of her first snap and sent it to one of MAHS s two cheerleading coaches. That coach brought the screenshot to the attention of her co-coach, who, it turned out, was already in the know: Several students, both cheerleaders and non-cheerleaders, had approached her, visibly upset, to express their concerns that [B.L. s] [s]naps were inappropriate. The coaches decided B.L. s snap violated team and school rules, which B.L. had acknowledged before joining the team, requiring cheerleaders to have respect for [their] school, coaches, [and] other cheerleaders avoid foul language and inappropriate gestures and refrain from sharing negative information regarding cheerleading, cheerleaders, or coaches on the internet. They also felt B.L. s snap violated a school rule requiring student athletes to conduct[] themselves in such a way that the image of the Mahanoy School District would not be tarnished in any manner. So the coaches removed B.L. from the JV team. B.L. and her parents appealed that decision to the athletic director, school principal, district superintendent, and school board. But to no avail: Although school authorities agreed B.L. could try out for the team again the next year, they upheld the coaches decision for that year.IIFirst Amendment ProtectionSupreme Court jurisprudence reveals that students First Amendment rights are subject to narrow limitations when speaking in the school context but are coextensive with those of an adult outside that context.A schoolyard’s physical boundaries are not necessarily coextensive with the school context.School officials may not reach into a child’s phone and control his or her actions to the same extent they can control that child when he or she participates in school sponsored activities. To do otherwise would twist Supreme Court jurisprudence limited accommodation of the special characteristics of the school environment into a broad rule restricting free speech of all young people who happen to be enrolled in public school.The digital revolution has made it very difficult to separate on from off-campus speech.While updating the line between on and off-campus speech may be difficult, it is still a task that must be done.A student’s online speech is not rendered on campus simply because it is about the school, mentions teachers or administrators, is shared with or accessible to students, or reaches the school environment. That principle was true before the digital age and remains true in the digital age.The student’s post on Snapchat easily falls outside the school context for several reasons. First, the relevant speech did not take place in the school sponsored forum. Second, the relevant speech did not take place in the context bearing the imprimatur of the school. Third, the place where the speech was posted was not one where the school owned or operated the online platform. Instead, the post was created on snap away from campus, over the weekend, without school resources, and shared on a social media platform unaffiliated with the school.Mere mention of the school and that it reached school officials and students is not enough for the court to hold that the speech occurred on campus.IIIPunishment of Student Violated the First AmendmentThe free speech rights of students are not limited to matters of public concern.Schools cannot punish students for speech in an area traditionally beyond regulation. Those concerns are equally valid where school seek to control student speech using even modest measures, much less participation in extracurricular activities, which are an important part of the educational program.IVViews from Other Courts and Why a Legal Principle Must Be EstablishedSocial media has continued its expansion in every corner of modern life. Even so, courts are completely without guidance when it comes to figuring out permissible lines of student speech.Courts take various approaches in trying to figure out when students speech can be regulated by the school.The approach of the Second Circuit is whether it is reasonably foreseeable that a student’s off-campus speech reaches the school environment.The Fourth Circuit takes the approach of asking the question whether off-campus speech has a sufficient nexus to the school’s pedagogical interests.Other Circuits use a case-by-case analysis.The reasonable foreseeability test doesn’t work in the digital age for the following reasons: 1) when a student speaks in the modern public square of the Internet, it is highly possible, if not a virtual certainty, that her speech will be viewed by fellow students and accessible from the school; 2) depending upon the privacy settings favored by the student’s friends or followers, her message will automatically pop up on the face of classmates phones in the form of notifications from Instagram, Facebook, Twitter, Snapchat, or any number of other social platforms; and 3) accepting that the Internet and social media have expanded the authority of the school to regulate the speech of students is not an assumption that can be accepted because it subverts the long-standing principle that heightened authority over student speech is the exception and not the rule.The nexus test doesn’t work either. The problem that test suffers from is that it erases the dividing line between speech in the school context and beyond it, a line vital to young people’s free-speech rights. The nexus test also raises the possibility of school officials asserting the power to regulate any student speech that interferes with the school’s educational mission, a power that can be easily manipulated in dangerous ways.None of the approaches taken by the other Circuits provide any clarity or predictability.VThe Third Circuit Approach and The Policies behind ItSchools do not have the authority to regulate off-campus speech.Off-campus speech is speech outside school owned, operated, or supervised channels that is not reasonably interpreted as bearing the school’s endorsement.The school’s ability to restrict the speech of students makes sense when a student stands in the school context and has a captive audience of his peers. However, it makes little sense where the student stands outside that context given that any effect on the school environment depends upon others choices and reactions.New communicative technologies open new territories where regulators might seek to suppress speech they consider inappropriate, uncouth, or provocative. Such efforts cannot be permitted regardless of their intentions without sacrificing the precious freedoms protected by the First Amendment.The consensus in the analog era was that controversial off-campus speech was not subject to school regulation, and that is an important principle to adhere to even as speech moves online.Holding off-campus speech off limits to school regulation has the advantage of offering upfront clarity to students and to school officials. Such a principal allows both students and school official to determine when they are subject to the authority of the school and when they are not.A test based upon the likelihood that speech reaches the school environment fails to provide that clarity. The same goes for whether a sufficient nexus exists.The scope of a test on whether speech occurs in the context owned, controlled, or sponsored by the school is much more easily applied and understood.The school still has the authority under this decision to deal with any student who shares or reacts to controversial off-campus speech in a disruptive manner.This case did not involve off-campus speech threatening violence or harassing particular students or teachers. Such a case raises different concerns and may well come out differently under the First Amendment.Both the U.S. Constitution and American history say that it is important that vulgar, uncouth, or, offensive speech be beyond the powers of schools to regulate because openness is the very basis of our national strength and of the independence and vigor of Americans growing up in a relatively permissive and highly contentious society.Careful lines of the authority of schools to regulate student speech is no less vital in today’s digital age in order to ensure adequate breathing room for valuable and robust speech.VIThe Student Did Not Waive Her Free-Speech RightsThe school had a rule stating: “please have respect for your school, coaches, teachers, other cheerleaders and teams. Remember, you are representing your school when at games, fundraisers, and other events. Good sportsmanship will be enforced; this includes foul language and inappropriate gestures.”The plain language of the rule suggests that it applies only at games, fundraisers, and other events.The rule would not cover speech or a post the snapshot unconnected with any game or school event and before the cheerleading season even began.A student would not believe she was waiving all rights to insult the school once safely off-campus and in the world at large. In fact, the rule doesn’t say anything about not being able to use foul language or inappropriate gestures away from school.The school had another rule saying that participation on an athletic team or cheerleading squad meant that the participants could not tarnish the school in any manner and that they would be subject to discipline if they did so. However, that rule fails for two reasons. First, it applies only during the sports season, but the student in this case posted her post after the previous season had ended and before practices for the next season began. Second, the language of the rule does not give clear markers applying where a student behavior would tarnish the school’s image in any manner. Such language is too dependent on the whims of school officials to give rise to a knowing and voluntary waiver of the student’s rights.The primary responsibility for teaching civility rest with parents and other members of the community.As arms of the state, public schools have an interest in teaching civility by example through persuasion and encouragement, but they cannot leverage the coercive power to do so. Otherwise, school administrators would be given the power to quash student expression deemed crude or offensive, which far too easily become the power to censor valuable speech and legitimate criticism.Enforcing the Constitution’s limits on upholding free-speech rights creates a deeper and more enduring version of respect for civility and the hazardous freedoms that is our national treasure and the basis of American national strength.VIIConcurring and Dissenting Opinion (Judge Ambro)Judge Ambro agrees that the student prevails but, he disagrees with the majority holding that schools do not have the authority to regulate student speech done off-campus where such speech substantially disrupts the work and discipline of the school.This case is the first Circuit to hold that Supreme Court jurisprudence does not apply to off-campus speech. No other Circuit has come up with such a categorical assertion.The majority decision leave too many questions unanswered, such as: 1) how does the holding apply to off-campus racially charged student speech?; 2) can a school discipline a student who post off-campus Snapchat’s reenacting and mocking the victims of police violence where those Snapchat’s are not related to school, not taken a posted on campus, do not overtly threatened violence, do not target any specific individual but yet provoke significant disruptions within the school?VIIIThoughts/TakeawaysThis case is likely to go to the United States Supreme Court considering how the Circuits are all over the place. As mentioned at the very top of this blog entry, we now have a new Associate Justice on the Supreme Court. I have absolutely no idea how the United States Supreme Court with its new configuration will deal with this issue. This case doesn’t necessarily break down into convenient ideological lines.Even with this decision, a public school’s reach may still extend to off-campus speech where the speech involves: 1) a school sponsored form; 2) use of the school brand; or 3) school owned or operated online platform.I can see how the Third Circuit could say that the reasonable foreseeability test and the nexus test are not workable approaches. For example, in the world of Internet accessibility litigation, cases are all over the place as to what constitutes a sufficient nexus.Off-campus speech per this decision is speech done outside school owned, operated, or supervised channels that is not reasonably interpreted at bearing the school’s endorsement.The decision is very policy driven, which is not something you see all the time and certainly not to this extent.Unclear as to what “reacting in a disruptive manner,” means.Regardless of where the speech occurs, threatening violence and engaging in harassment are still off-limits.Broad restrictions on speech going to the image of the public school are going to be difficult to enforce.It will be interesting to follow how this case shakes out at the United States Supreme Court.Before getting started with the blog entry of the day, I want to congratulate the Tampa Bay Rays and the Los Angeles Dodgers for getting to the World Series. Tampa Bay won in seven games. The Dodgers came back and beat the Braves after trailing 3-1. Good luck to both. Sports are an escape in the very strange world that we are in now. We can all use a pick me up. With that in mind, a colleague of mine, Professor Len Sandler from the University of Iowa Law School, sent me this link18018312069200. It really was a great pick me up when I listened to it. I hope it does the same for y’all.Sometimes the people who enforce discrimination laws get themselves into trouble as well. The case of the day, Menoken v. Dhillon18118412170201, decided by the District of Columbia Circuit on September 15, 2020, is one such example. In this case, the EEOC gets sued for violating title VII and the Rehabilitation Act by the creation of a hostile work environment. As usual the blog entry is divided into categories, but not the usual ones, and they are: hostile work environment, interference, unlawful medical inquiry, breach of confidentiality, and thoughts/takeaways. This blog entry is pretty short, and so the reader is probably going to want to read the whole thing.IHostile Work EnvironmentPlaintiff, an attorney, proceeded pro se at the trial level, but the appellate court appointed counsel as amicus curiae to present arguments in support of her at the appellate level.Incidents taking place while the plaintiff was on leave can support a retaliatory hostile work environment claim.Court can consider any negative actions an employer takes during an employee’s absence when assessing whether a plaintiff has plausibly alleged a hostile work environment.An employer’s deliberate attempt to affect an employee’s finances and access to healthcare is precisely the type of conduct that might dissuade a reasonable worker from making or supporting a charge of discrimination.The interactive process is viewed as a whole and not just based upon one particular point in the process.The agency did not engage in good faith efforts to determine what accommodation might be appropriate. Instead, plaintiff alleged that the EEOC deliberately delayed processing the request and then sought leverage to extract legal concessions designed to benefit the EEOC. That is, they offered to grant her reasonable accommodations on the condition she execute a general release absolving EEOC of liability with respect any claims arising from her employment.IIInterferenceA retaliation claim and an interference claim are two different causes of action.The court mentioned two possibilities for analyzing interference claims: 1) Frakes, which we discussed here18218512271202; and 2) a test proposed by the EEOC.The proposed EEOC test would require the plaintiff to allege that the employer: 1) coerced, intimidated, threatened, or interfered with any individual; 2) in the exercise or enjoyment of, or on account of his or her having exercise or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of; 3) any right granted or protected by the ADA/RA.Regardless of the standard, plaintiff survives the motion to dismiss. In this case, the amended complaint describes a 10 year pattern of hostile treatment rooted in the EEOC’s antagonism toward the plaintiff’s protected activities under title VII. Her complaint alleges that as a result of that hostile behavior she suffered significant physical and mental injuries, including depression, acute stress, severe hypertension, and complex posttraumatic stress disorder.Plaintiff has stated a plausible claim of interference with her allegations of the EEOC’s efforts to delay processing her reasonable accommodation requests and their efforts to persuade her to accept the settlement offer as a condition of granting her requested accommodations.Plaintiff’s interference claim survived because she described in her complaint: 1) the nature of her disability; 2) the EEOC’s persistent and intentional effort to undermine her exercise of statutorily protected rights; and 3) the EEOC’s apparent failure to engage with plaintiff in good faith to identify a reasonable accommodation (this is a nice roadmap for an ADA interference complaint).IIIUnlawful Medical InquiryTo state a claim for an unlawful medical inquiry, plaintiff must allege that the employer in fact conducted an impermissible inquiry into the plaintiff’s medical condition. That claim fails because the plaintiff did not allege that the EEOC attempted to access her files in any way that constituted an unlawful inquiry. That is, no allegations were made of an impermissible disability related inquiry.IVBreach of ConfidentialityThe confidentiality requirements attach to an employee’s medical information that is obtained in the course of a permissible medical inquiry.No allegations exist that the EEOC obtained her medical records in the course of an inquiry into her medical condition.Since the files were obtained by the Office of Worker’s Compensation Programs in connection with her occupational injury claim, the statutory obligation to treat those files as a confidential medical record rested with that agency and not the EEOC.VThoughts/TakeawaysHostile work environment claims apply to the Rehabilitation Act.Interference and retaliation claims are two different animals.Frakes18318612372203 remains a plausible way to analyze interference claims. The EEOC test might be another possibility. It will be interesting to follow what test for interference claims the courts wind up adopting.Incidents taking place while on leave can support a hostile work environment claim.The interactive process is looked at a whole and not as separate discrete parts.Bad idea to insist on a waiver of liability in exchange for reasonable accommodations.An unlawful medical inquiry claim must be based upon an impermissible inquiry into the plaintiff’s medical condition.A breach of confidentiality claim only attach it to records obtained in the course of a permissible medical inquiry, and the confidentiality obligation goes to the agency making that permissible medical inquiry and not to another agency not involved with that inquiry.A person going pro se at the trial level can get a big boost when the appellate court either allows for an amicus curiae or an in forma pauperis attorney to get involved with the filing of the brief.Be sure to get the interactive process right as we discussed here18418712473204.Have a real fine day y’all.Before getting started on the blog entry of the day, I put my absentee ballot in a drop box yesterday. Whoever you are voting for, please do vote. Also, my Braves beat the Dodgers yesterday in game one of the National League championship series. Can they win another three? I see the Tampa Bay Rays are up two on the Houston Astros. If Tampa Bay somehow wins the World Series, Tampa Bay will have teams that have won two professional championships in the same calendar year as the Tampa Bay Lightning has won the NHL Stanley Cup already.Turning to the blog entry of the day, we look at a Seventh Circuit decision holding that the ministerial exception does not apply to hostile work environment claims. The case is Demkovich v. St. Andrew the Apostle Parish172119119119119 decided by the Seventh Circuit on August 31 of 2020. As usual, the blog entry is divided into categories and they are: facts; majority opinion; dissenting opinion; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.IFactsPlaintiff Sandor Demkovich was hired in 2012 as the music director at St. Andrew the Apostle Parish, a Catholic church in Calumet City, Illinois. He was fired in 2014. Demkovich is gay. When he was hired, he had been with his partner (now husband) for over a decade. He also was overweight and suffered from diabetes and metabolic syndrome, and he had these conditions before St. Andrew hired him.Demkovich s supervisor was Reverend Jacek Dada. According to Demkovich, Reverend Dada subjected him to a hostile work environment based on his sexual orientation and his disabilities.120120120120173[1]14 Demkovich alleges that Reverend Dada repeatedly and often subjected him to comments and epithets showing hostility to his sexual orientation, and increased the frequency and hostility after learning that Demkovich intended to marry his partner and again as the date of the ceremony approached. After the ceremony, Reverend Dada demanded Demkovich s resignation because his marriage violated Church teachings. Demkovich refused, and Reverend Dada then fired him.Demkovich also alleges that Reverend Dada repeatedly harassed and humiliated him based on his weight and medical issues. According to Demkovich, his job did not call for any particular physical-fitness requirements, and Reverend Dada never connected his disparaging and humiliating comments to Demkovich s job performance. Demkovich alleges that Reverend Dada s harassment on both grounds humiliated and belittled him, causing serious harm to his physical and mental health.Defendants persuaded the district court to certify under 28 U.S.C. § 1292(b) a broad legal question, not limited to the factual details of the particular case.  The district court certified the following question:Under Title VII and the Americans with Disabilities Act, does the ministerial exception ban all claims of a hostile work environment brought by a plaintiff who qualifies as a minister, even if the claim does not challenge a tangible employment action?IIMajority Opinion (Judge Hamilton), Holding That the Ministerial Exception Does Not Apply to Hostile Work Environment ClaimsThe ministerial exception is an application of the First Amendment and not statutory interpretation.Plaintiff only challenges his work environment and not his termination.Churches are not exempt from federal employment discrimination laws as applied to their non-ministerial employees.All parties agree that plaintiff was a ministerial employee.The certified question assumes a hostile work environment.Religious organizations are not totally exempt from all legal claims by ministerial employees. For example, ministerial employees may be able to sue their employers and supervisors for breaches of contract and torts.The Ninth Circuit has drawn a line between tangible employment actions and hostile environment claims.The ministerial exception rationale simply doesn’t apply where harassment continues unrectified because it is impossible to claim that such harassment is a method of choosing clergy.Hiring, firing, promoting, retiring, transferring are all decisions that employers, including church related organizations, make to select those who carry out their work. Further employer control is available through a host of other tangible employment actions, such as decisions about compensation and benefits, working condition, resources available to do the job, training, support from other staff and volunteers, etc.Hostile environment claims involve different elements and specific rules for employer liability. Those differences show that a religious employer does not need an exemption from hostile work environment claims in order to be able to select and control its ministers.Hostile work environment claims are essentially tortious in nature. Such claims use different standards for holding an employer liable, and they do so precisely because of the behavior creating a hostile work environment is not essential for management supervision and control of employees.Hostile work environment claims have to meet a demanding standard.A hostile work environment is not a permissible means of exerting constitutionally protected control over employees to accomplish the mission of the business or the religious organization.Hosanna-Tabor175122122121121 made clear that its holding does not cover actions by employees alleging tortious conduct by the religious employers, and plaintiff is alleging classic tortious harassment.An employer’s need and right to control employees does not embrace harassing behavior that the Supreme Court has defined in numerous cases in terms of what unreasonably interferes with an employee’s work performance.The notion that such harassment is necessary to control or supervise an employee is an oxymoron. After all, one can presume that an employer is interested in maximizing the employee’s ability to perform his or her stated duties to further the organization’s objectives and not in favor of permitting an environment that actively inhibits job performance that is beyond the scope of that supervisor’s own employment.That the conduct may have been motivated by Catholic doctrine isn’t enough because the Catholic Church does not embrace such conduct as its own employment policy.Hosanna-Tabor’s decision not to extend constitutional protection to tortious conduct in combination with the Supreme Court’s understanding of hostile work environment as a tortious cause of action points toward allowing hostile work environment claim by ministerial employees so long as they do not challenge tangible employment actions.The ministerial exception protects the rights of religious employers and not supervisors within those organizations. Therefore, holding that tangible employment action directly attributable to employers are off limits makes sense. However, it equally makes sense that hostile environment claims should not come within the ministerial exception for the same reason.Supervisors within religious organizations have no constitutionally protected rights under the ministerial exception to abuse those employees they manage, whether or not they are motivated by their personal religious beliefs.The ministerial exception is not unlimited. Civil courts may hear and decide a range of other cases involving ministers and religious employers without violating the First Amendment.Successful hostile work environment claims frequently involve highly disturbing facts.An oral argument, defendants acknowledged that a religious employer could be civilly liable for a supervisor’s criminal or tortious conduct towards a ministerial employee.Accordingly, it is hard to fathom why a statutory case based on the same conduct would necessarily violate the First Amendment regardless of whether the supervisor claims a religious motive.The First Amendment would not give supervisors and coworkers of ministerial employees the right to leave nooses at the desk of a black minister while repeatedly subjecting him to verbal abuse with racial epithets and symbols. It also would not permit supervisors and coworkers to subject the teacher to pervasive and unwelcome sexual attention or to intimidating harassment based on national origin. Those kinds of harassment are not constitutionally necessary to control ministerial employees. Accordingly, an overarching ministerial exception goes too far.Religious employers have long been subject to employment discrimination suit by their non-ministerial employees.The Catholic Church has faced extensive litigation over torts committed by clergy in recent years and such litigation is not foreclosed by constitutional concerns.When it comes to cases involving churches, courts may get involved if they avoid issues of faith and stick to applying neutral, secular principles of law.Plaintiff is not asking the court to pass on religious doctrine or practices. After all, civil courts have nothing to say about whether the church should permit same-sex marriage or structure their organization in a certain way. The church is free to decide whether to retain the plaintiff or fire him. However, a hostile work environment claim is looked at under neutral generally applicable standards.As in cases applying secular legal rule to torts, contracts, or property disputes, courts may apply secular hostile environment jurisprudence to actions taken toward employees.An individual’s religious belief does not excuse him from compliance with otherwise valid law prohibiting conduct that the State is free to regulate.“Taking these lines of analysis together, we base our decision on three points. First, the Free Exercise Clause does not bar all hostile environment claims by ministerial employees. Second, the risk of procedural entanglement in such cases is modest because religious organizations have no generalized claim to immunity from litigation or regulation. Third, in hostile environment cases brought by ministerial employees, there is some risk of substantive entanglement, but that risk does not appear so severe that all such claims must be dismissed. We believe that risk can be managed by avoiding substantive decisions on issues of religious doctrine or belief and by balancing First Amendment rights with the employee s rights and the government s interest in regulating employment discrimination. We trust that district courts will manage these issues in their sound discretion. It is, of course, conceivable that certain cases may unavoidably present factual questions that would entangle courts excessively in substantive religious decision-making. District judges can narrow or dismiss such cases if they arise. But the possibility of some outlier cases does not persuade us that the First Amendment requires courts to bar an entire category of claims authorized by federal statute.”IIIDissenting Opinion by Judge FlaumPlaintiff’s complaint alleged both a hostile work environment claim as well as claims based upon tangible employment actions.The 10th Circuit has held that the ministerial exception bars hostile work environment claims.A church must not be constrained in its dealings with ministers by employment laws that interfere with the church’s internal management, including antidiscrimination laws.The ministerial exception precludes any inquiry whatsoever into the reasons behind a church’s ministerial employment decision.The majority opinion will result in the encroachment by the State into an area of religious freedom that States cannot go into under the free exercise clause.Control of a minister necessarily includes telling a minister that his behavior does not conform with church doctrine and by instructing him to change his behavior.It is not for the court to regulate how a church communicates with its minister to further its religious objectives.Churches will now have the incentive to employ ministers that lessen their exposure to liability rather than hire those that best further there religious objectives.Deciding a hostile work environment claim with respect to a church necessarily means looking at the plaintiff’s terms and conditions of employment in matters involving the church’s governance and administration, including its employment relationship with the plaintiff, its control over the plaintiff, and the plaintiff’s workplace conditions.Remedies for outrageous acts do exist but they are not contained within federal employment law.IVThoughts/TakeawaysI certainly see this getting appealed to the United States Supreme Court. It is a topic of great interest to the Justices. Also, a Circuit Court split exists. If Justice Ginsburg was still on the court, I would say the swing vote would be Justice Roberts or possibly Justice Kavanaugh. It is impossible to predict what a person does once they are on the Supreme Court. That said, if Justice Barrett is confirmed the church may very well prevail easily. We already know from Justice Gorsuch’s writings and opinions that he would be very likely to find in favor of the church. Whether a Supreme Court decision deciding in favor of the church is good or bad, depends upon your own particular viewpoint.Judge Barrett was not on the panel hearing this case. Since it is likely that this case will come before the Supreme Court, she would be very unlikely to answer any questions about the scope of the ministerial exception at the confirmation hearings, which are taking place now.How high the bar is for deciding hostile work environment claims is being debated hotly. For example, Minnesota has said things have to change, as we discussed here176123123122122.This decision and jurisdictions following the Seventh Circuit will force plaintiffs to craft their complaint in such a way so as to make clear that hostile work environment claims are being alleged and not tangible employment actions. Plaintiffs will also want to make sure they allege as many facts as possible going to the severe and pervasive nature of the conduct. Finally, plaintiffs will also want to utilize the Minnesota case to give them more of a chance for succeeding in hostile work environment claims.There is lots of publicity about how the next Supreme Court justice may affect the affordable care act and abortion. This case might be another one where the next Justice may profoundly affect the outcome of the case.Interesting approach by the defense in this case to argue that church doctrine permitted a hostile work environment.If you are in a protected class, it is hard to recommend employment by a religious entity after Lady of Guadalupe177124124123123. A decision allowing religious organization to be immune from hostile work environment claims for their ministers would only strengthen that recommendation. It may be a pyrrhic victory because religious organizations may find it hard to hire people from protected classes, especially if the Supreme Court reverses Demkovich.Understanding the Americans with Disabilities Act, Fourth EditionConcise and clearly written, this practical guide provides a virtual roadmap to the ADA, its regulations, and case law. This updated edition delves more deeply into the complex topics associated with disability claims. Buy now.William Goren is one of the country s foremost authorities on the American with Disabilities Act (ADA) and the Rehabilitation Act of 1973. Since 1990, he has been advising on ADA compliance as both an attorney and professor—of which during his time as a full-time academic at various institutions in Chicago, he won numerous teaching awards and achieved tenure.Read More...

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Understanding the ADA is written by William Goren with the goal of making the ADA/Rehabilitation Act and related laws understandable so that employers, governmental entities, businesses, and even individuals understand what it means to comply with the ADA/Rehabilitation Act.

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