Police liability for not knowing or ignoring the ADA

In a comment to a previous blog entry, I discussed the case of Gipson v. Popeye’s Chicken and Biscuits. In that case, the Northern District of Georgia said that considering what police have to do, it wasn’t right to impose ADA liability on the police since the police are not lawyers and have to deal with things in real time.

Now comes this case, Van Velzor v. City of Burleson (I have actually been to this quaint town. It is about 45 minutes to an hour south of Fort Worth Texas, and it is also the hometown of Kelly Clarkson), from the Northern District of Texas, Dallas division. As is my usual practice, I have divided the entry into separate categories: facts; court’s reasoning; and takeaways. The reader is free to focus on any or all of the separate categories of the blog entry.

I
Facts

In this case, the plaintiff was a mobility impaired individual who frequently uses a wheelchair and has disability plates and placards issued by the Texas Department of Motor Vehicles. When he visited a Walmart supercenter store in Burleson, he found a note on occupied accessible parking spots or spots reserved for those with disabilities. Further, some of those occupied accessible parking spots were taken by vehicles lacking required accessible parking placards and license plates in violation of Texas law. He called the Burleson Police Department about the violations and informed the dispatcher that the illegally parked cars were preventing him from being able to park and enter the store. The dispatcher told him that she would send an officer to address the situation, but no such officer arrived and the dispatcher allegedly did not speak to anyone about the call. He subsequently learned that the store manager had called the police department to request enforcement but as with what happened to him, no officers ever arrived. It turns out that the city of Burleson had a special program known as citizens on patrol to handle violations of accessible parking laws. In essence, the police department outsourced enforcement of the law to a group of volunteer citizens. The plaintiff alleged that this outsourcing was restricted to the accessible parking law and that the city retained its authority to enforce non-disability related parking laws within the regular operations of the police department. Further, the plaintiff alleged that the police dispatcher does not actually refer calls related to accessible parking violations to that program and that people with disabilities are not able to contact the program directly since it does not have a separate dispatch line. In other words, the plaintiff claimed that the program did not provide persons with disabilities the actual means of getting the accessible parking law enforced. In a separate matter, the plaintiff claimed that the city of Burleson refused to provide him relief when he was denied assistance with respect to pumping gas in violation of Texas law. In fact, when he called the police regarding that violation, he was told by the dispatcher that the police would be of no help. After getting the runaround from various parts of the bureaucracy, the plaintiff sued alleging that the refusal to enforce disability related traffic laws violated title II of the ADA.

II
Court’s Reasoning

1. There was no dispute that the plaintiff was a person with a disability.

2. When it comes to title II matters, any accommodation must be sufficient to provide a person with a disability meaningful access to the benefit or service offered by a public entity.

3. A benefit or service under the ADA means the performance of work commanded or paid for by another for an act done for the benefit or at the command of another. That means discrete portions of law enforcement activities can be considered separate services or benefits for purposes of the ADA.

4. One such discrete portion of law enforcement activity is the enforcement of traffic and parking laws, which is a service or benefit separate and apart from police enforcement as a whole, and therefore, reversing what this court had said in an earlier decision, the critical question was did the city deny the plaintiff the benefits of meaningful access to police enforcement of traffic and parking laws and not whether he was denied meaningful access to police enforcement as a whole.

5. Courts have found that a public entity is not only prohibited from affording persons with disability services not equal to that afforded to others that are not as effective in affording equal opportunity, but also that public entities cannot prevent a qualified individual with a disability from enjoying any aid, benefit, or service, regardless of whether other individuals are granted access. Therefore, a plaintiff is not required to identify a comparison class of similarly situated individuals given preferential treatment.

6. While cases exists giving deference to police enforcement decisions, those cases predate the ADA. The ADA is a game changer because it imposes upon public entities and affirmative obligation to make reasonable accommodations for persons with disabilities to avoid discrimination and where a defendant fails to meet that affirmative obligation, the cause of that failure is irrelevant.

7. A policy that denies persons with disabilities a state law of right, law enforcement services available to citizens generally, is against the letter and spirit of federal law.

8. While it is true that the Fifth Circuit has specifically carved out an exception to the ADA coverage with respect to police enforcement, that exception only applies in the context of an officer’s on the street responses to reported disturbances or other similar incidents and occurring prior to the officer’s securing the scene and ensuring that there is no threat to human life. That is, this particular exception only applies in situations that legitimately present a threat of imminent danger and call for instantaneous decision-making.

The italicized phrase is intentional on my part. That is, this case is specifically saying that the exception for police enforcement with respect to the ADA is narrowly focused to the situation where the officer is securing the scene and ensuring that there is no threat to human life. Once that condition precedent is satisfied, the ADA obligations kick in.

9. The text of the ADA provides no basis for distinguishing Police Department program, services and activities from those provided by public entities that are not police departments.

10. Plaintiff’s allegations show that the benefit he received from the city were not equal to that afforded others since his ability to travel due to the lack of traffic law enforcement was impeded in such a way that he could hardly be said to receive an equal benefit from the department’s enforcement of traffic and parking laws.

11. The police department did not provide an effective alternative to standard enforcement through the program, with they had outsourced. Not only that, the plaintiff alleged that he had never seen a volunteer actually enforcing the accessible parking law.

12. The plaintiff states a claim under the ADA when he alleges that the city failed to make reasonable accommodation to his needs as a person with a disability because they denied him access to police officers who could decide whether to enforce disability related laws in the same way they decide whether to enforce other laws and that the city failed to accommodate persons with disabilities by refusing to train its police officers to properly handle violations of disability related laws. The court said that requiring disability related training is generally reasonable under the ADA and that at this stage of the proceedings there was no evidence that such an accommodation would cause an undue burden because the plaintiff was simply asking for his call to be referred to officers for ordinary enforcement in the same way that calls regarding non-disability related violations are referred. The city did not establish that either of those accommodations would cause an undue burden on the city.

III
Takeaways

1. If this case is the law, then Gipson would have been decided completely differently. Thus, what this means is that under this case police are at a real risk of liability for violating title II of the ADA if they lack knowledge of what the ADA requires and then make erroneous decisions with respect to whether ADA violations have occurred where those decisions occur after the need for securing the premises and the need for instantaneous decision-making has passed.

2. Police need training on the ADA in terms of what the law requires. That training has to include both title II and title III of the ADA.

3. Police need to be cautious about outsourcing their enforcement activities. If they do, they need to ensure that such enforcement and any alternatives are accessible to persons with disabilities. Also, they should be cautious about outsourcing enforcement activities anyway, because, as we have discussed before, complying with the ADA is a non-delegable duty.

4. With respect to a person with a disability accessing governmental services, the critical question is going to be whether with or without reasonable modifications that person has meaningful access to the governmental entity’s programs, activities, or services.

5. This case is another nail in the coffin of requiring comparables when it comes to disability discrimination. See also this blog entry.

Blown up Sir!: Olmstead Budget Cuts Litigation Just Got A LOT Harder for Plaintiffs

One of my favorite movies of all time is Stripes with Bill Murray and Harold Ramis and John Candy and others. There is a scene in that movie where the Sergeant is on a platform and that platform gets destroyed by mortar fire because the commanding officer, John Larroquette, who is absolutely incompetent, demands that a mortar round be fired. That means Bill Murray’s basic training group has to finish the training on their own. They do so with spectacular colors being selected to go abroad as an elite unit as a result of what they did at the graduation activities. During the graduation activities, a General ask Bill Murray where is the basic training Sergeant? Bill Murray responds “blown up sir!” I was reminded of that scene when I read the case of Clinton L v. Wos. If this case prevails, the ability of people to challenge budget cuts leading to an increased risk of institutionalization being a violation of the ADA, just became incredibly difficult, i.e. “blown up.”

As is my usual practice, I have the blog entry divided into three categories: facts, court’s reasoning, and takeaways. The reader is free to focus on any or all of the categories.

I
Facts

This case involved a reduction in funding by the State of North Carolina with respect to community services offered to people with intellectual disabilities and/or mental illness. As a result of that reduction in funding, one of the local management entities (local management entities manage, funds and plan, develop, implement and monitor mental health and developmental disability services within the catchment area), reduced the reimbursement rate it pays to its service providers for supervised living services from what it was paying for one and two person placements to the same level that it paid for supervised living services provided in three-person placements. Plaintiff sued saying that this decision made as a result of the state funding cuts, meant that they were at an increased risk of institutionalization and therefore, the ADA was violated. There was a 39 day trial and what the court did is discussed below:

II
Court’s Reasoning

The court said not so fast to litigation of this kind and here is why:

1. It is absolutely true that unjustified institutionalization of individuals with disabilities is a form of discrimination under the ADA per Olmstead.

2. But that doesn’t answer the question because: 1) what is meant by an institution?; 2) what is meant by institutionalization; and 3) when can you say that the budget cuts cause the increased risk of institutionalization?

3. With respect to what is an institution or what is institutionalization, neither Olmstead nor title II define the terms. Therefore, the court was left to fashion its own definition.

4. In determining what is an institution, a proper focus would be on size of the facility, isolation it generates, segregation, and lack of choice common to those institutions. Also, the court cited to proposed rules offered by the Centers for Medicare and Medicaid services that said institutions also include but are not limited to settings that are isolated from the larger community, do not allow individual to choose whether or with whom they share a room, limit the freedom of individuals with respect to choices pertaining to daily living experiences such as meals, visitors, and activities, or limit individuals opportunity to pursue community activities. In short, the court decided that an institution is a large, congregate facility for the treatment of those with mental illness or intellectual disabilities that exhibit qualities such as isolation, segregation and lack of personal choice as exemplified by the large, congregate facilities run by the state of North Carolina as well as by ICFMR (intermediate care facilities for those with mental retardation), facilities. (The court actually uses the term mental retardation and developmental disabilities. Those terms are out of date, and so I am using intellectual disabilities).

5. Even where a person would be admitted to an institution as defined in paragraph 4 above, that doesn’t mean that being admitted into such an institution means they are being institutionalized. To determine whether they are being institutionalized, the court said one has to look at the length of the admission and the reasons for the institutional placement.

6. For a person to be able to use Olmstead in this way, that person must be at serious risk of institutionalization or segregation. While it must be a serious risk, that risk does not have to be imminent. If the risk is not imminent, then the public entity’s failure to provide community services due to its cuts to such services must be shown that it will likely cause a decline in health, safety, or welfare leading to the individual’s eventual placement in in institutions. That is, the significant risk of institutionalization has to be found to be causally related to the budget cuts or reduction in reimbursement rates. Causation is governed by a substantially related test (think substantial factor in tort law), because in this kind of situation, there is invariably more than one cause involved in whether a person winds up in an institution.

Takaways:

1. Until this case, it wasn’t all that hard to argue that the ADA may be violated if there is a reduction in budget cuts with respect to having a plaintiff get to first base. Whether the ADA would even apply to budget cuts at all is a separate question and one which I have discussed previously here.

2. This case sets an incredibly high bar for plaintiffs being able to succeed with respect to a case alleging ADA violations creating a risk of institutionalization due to budget cuts because the plaintiff will now have to show a serious risk that they would be placed in an institution; 2) that even though they were placed in an institution, they were also being institutionalized; and 3) that being institutionalized will be substantially related to the budget cuts.

3. Will this case extend throughout the country? It’s unclear. From a plaintiff point of view, this case makes things incredibly difficult and extremely expensive (this case had dueling experts and a 39 day trial and plaintiffs lost). On the other hand, it doesn’t make it impossible, and as mentioned in the blog entry that I linked to in paragraph 1 of this section, it is possible that United States Supreme Court could say that the ADA does not apply in this situation at all. Therefore, if you are a plaintiff, a slim chance is better than no chance. The other reason this case may prove attractive to courts throughout the country, is because courts may be reluctant to say that there is no chance for such a claim to succeed, though they could be within their rights to make that claim, as just mentioned, and instead opt for a situation that would be narrowly tailored to deal with clear cut situations where unnecessary institutionalization is going on.

Medical inquiries, medical exams, disability related inquiries, job relatedness, and consistent with business necessity

I
Overview

The ADA has a whole scheme that deals with medical inquiries/exams/ disability related inquiries. Basically, the way it works is this:

1. Preemployment medical inquiries/ exams are prohibited. However, nothing wrong with asking whether a person can do what would be an essential function of the job. That said, if you are going to make a preemployment medical inquiry pertaining to an essential function of the job, you better be sure that your essential function of the job is airtight. Also, you need to be sure that you are not screening out persons with disabilities through your testing per 42 U.S.C. 12112(b)(6).

2. After a conditional job offer, just about anything is permissible. However, two caveats to that. First, don’t forget about the Genetic Information Nondiscrimination Act. Second, if the information from the medical exam subsequent to a conditional job offer leads the employer to revoke the offer, that revocation must be based upon information that is job-related and consistent with business necessity and the performance of the job cannot be accomplished with reasonable accommodations.

3. With respect to post employment medical inquiries/exams they can only be done when they are job-related and consistent with business necessity. 42 U.S.C. § 12112(d)(4)(A)

Therefore, we need to know several things: what is a medical exam? (II of this blog entry); What is a disability related inquiry? (II 3 of this blog entry); What is job-related? (III of this blog entry); and what is consistent with business necessity? (III of this blog entry)

Two recent cases from the Sixth Circuit (Bates v. DuraAuto Systems and Kroll v. White Lake Ambulance Authority answer both of these questions.

As is my usual practice, I have divided the blog entry into categories. They are: overview; Bates v. DüraAuto Systems; Kroll v. White Lake Ambulance Authority; and takeaways. The reader is free to focus on any or all of the categories.

II
Bates v. DuraAuto Systems

Turning to the first question as to what is a medical exam, Bates does a great job of discussing the area. they noted that the EEOC in their enforcement guidance pertaining to disability related inquiries and medical examinations of employees under the ADA defines a prohibited medical exam as any tests or procedures seeking information about an individual’s physical and mental impairment or physical or psychological health, and they identify several factors for making that determination including: whether the test is administered by a health care professional; whether the test is interpreted by a health care professional; whether the test is designed to reveal an impairment or physical or mental health; whether the test is invasive; whether the test measures an employee’s performance of the task or measures his or her physiological response to performing the task; whether the test is normally given in a medical setting; and whether medical equipment is used. In many cases, some combination of factors will be relevant in figuring out whether a test or procedure is a medical examination, but it is also possible that one factor may be enough. A nonexclusive list of medical examinations include: vision test, blood pressure and cholesterol screening, range of motion test, and diagnostic procedures such as x-rays, CAT scans, and MRIs. The guidance even identifies two qualifying urine tests (discovering alcohol use and detecting diseases that are genetic markers), as also being medical exams.

So is this a medical exam:

An employer orders a plant wide drug screening of a plant’s more than 400 employees. It instructs a third party to test for 12 substances (amphetamines, barbiturates, benzodiazepines, cocaine, ecstasy, marijuana, methadone, meta-amphetamines, opiates, oxycodone, phencyclidine, and propoxyphene). The third-party conducts the urinalysis testing in private at the facility’s technology center and reported to company representatives the result of the tests. Following the results of that test, the employer sent home those employees who tested positive. Where that test was positive, the third-party followed a certain procedure. First, it sent samples out for confirmatory testing to reveal which of the 12 substances triggered the positive result and the amount of that substance in the employee’s system. Second, a person then reviewed the chain of custody and interpreted the test results. In reviewing the results, that person questioned employees and sought medical explanations, sometimes requesting prescription information or documentation from the employee’s physician. If it was determined that the employee had a valid reason for the positive result, including use of prescription medication, the person changed the final test results to negative. That would then be forwarded along to the employer. However, regardless of the reason for the positive result, the employer opted to prohibit any employee from using machine restricted drugs. Further, the employer instructed positive testing employees to bring the medications into the third-party for documentation. The third-party would then report same to the employer and the employer would promptly inform the employee that they would terminate them if they continued to use those medications.

Exactly the facts in : Bates v. DuraAuto Systems.

1. The Sixth Circuit said that these particular facts raised a question of fact as to whether a preemployment medical exam/inquiries were occurring. Very importantly, it bears noting that the screen out provisions were not applicable because none of the plaintiffs were persons with disabilities. For a person to claim violation of the screen out provisions, that person must have a disability, which is not the case for the preemployment medical exam/inquiry provisions.

2. A question of fact existed because:

A. the employer refrained from asking plaintiffs about their medical conditions;

B. The plaintiffs offered no evidence showing how the third parties urinalysis of the posttest reporting of machine restricted medication revealed information to the employer about their medical conditions;

C. No one suggested that the consumption of prescription medication containing the chemicals that the test sought constituted protected medical information or even an impairment under the EEOC definition of medical examinations;

D. An employer would struggle to figure out medical conditions from the prescription drugs discovered through this testing regimen, and clearly the employer had designed the whole program in a way to avoid obtaining information about employees medical conditions and to avoid discriminating against all employees taking prescription drugs.

E. Inconsistencies between the employer’s written and actual drug testing policies, which existed, and disparate treatment of individual employees could show an impermissible motive;

F. It is possible that the plaintiffs could present evidence showing that the disclosure of machine restricted medication typically revealed confidential health information so that a jury would determine that the test targets information about an employee’s physical and mental health regardless of the employer’s intent.

3. But that isn’t the end of the matter because the ADA also prohibits disability related inquiries. A disability related inquiry is any inquiry likely to elicit information about a disability. The court said that a question of fact existed here as well because the system was designed in such a way so that a jury could reasonably conclude either way with respect to whether the ADA’s prohibition on disability related inquiries was violated.

A. Happy Trails to Employer?

So defendant wins? Pyrrhic victory and here’s why. First, since the court found that a question of fact existed with respect to whether a medical exam or a disability related inquiry occurred, that means the case has to go to trial, which will be very expensive with a very uncertain result. Second, for reasons we will explore in our next case, the Sixth Circuit affirmed the jury verdict finding that assuming a medical exam or a disability related inquiry occurred, such exams or inquiries were not job-related nor were they consistent with business necessity. Further, the court also said that certain facts supported the jury’s award of punitive damages, but that the jury needed to have meaningful opportunity to consider the employer’s defense that they tried to craft and carry out its policy in compliance with the law. Accordingly, yes the employer did win so to speak, but if they take this matter to trial and lose with respect to the medical inquiry or medical exam, they are without a defense and potentially facing punitive damages.

III
Kroll v. White Lake Ambulance Authority

The Sixth Circuit in Kroll v. White Lake Ambulance Authority, the prior decision of the Sixth Circuit in this case saying that a medical exam occurred is something I discuss in my book, discusses what it means for a medical exam/inquiry to be job-related and consistent with business necessity. Basically, what happened in this case, is that the plaintiff had an affair with a coworker and that affair went bad. There were then allegations about erratic behavior and without any information about poor job performance and without consulting a psychologist or other mental health professional, the employer decided to force the plaintiff into counseling. When she refused because she could not afford to pay for it, she was no longer scheduled for any additional shifts. As mentioned above, in the first case, the Sixth Circuit found that forcing someone into a medical examination, is a medical examination under the ADA. The question here was whether the medical examination was job-related and consistent with business necessity. With respect to that, the following bears noting:

1. With respect to job-related and consistent with business necessity, the burden of proof is on the employer.

2. In particular, job-related involves the employer showing that the employee requested an accommodation; the employee’s ability to perform the essential functions of the job was impaired; or the employee posed a direct threat to himself or others.

3. With respect to business necessity, an employer is not going to be able to make a bare assertion that a medical examination was merely convenient or expedient. Instead, an employer that decides to require medical examination of an employee has to have a reasonable belief based on objective evidence that the employee’s behavior threatens a vital function of the business.

4. Whether a medical examination [in this case mental examination], is job-related and consistent with business necessity is governed by an objective standard (the reasonable prudent person).

5. The employer also argued that direct threat existed, but the court was having none of it because the assessment of whether an employee poses a direct threat has to be individualized to the employee’s abilities and job functions and based upon a reasonable medical judgment relying on the most current medical knowledge and/or on the best available objective evidence. In this case, the facts were such that there was no evidence in the record that the employer made any kind of medical judgment at all let alone one based upon a reasonable medical judgment. Further, evidence existed that the employer made the decision based on moral convictions rather than on medical concerns, which the court found very troubling.

IV
Takeaways:

1. Both of these cases give a great deal of clarity as to what is a medical exam/disability related inquiry as well as what is job-related and consistent with business necessity.

2. With respect to medical exams/disability related inquiries, it is my opinion that an employer can kill two birds with one stone, and particularly so, if the employer is a governmental contractor. If the employer is a governmental contractor, they are required to have an affirmative action program in place designed to get 7% of their workforce to be persons with disabilities, though we will see how long those regulations stay in place for. It is my experience, that persons with disabilities are uniquely situated with respect to determining, or helping to assess, whether a medical exam or disability related inquiry has occurred. Therefore, if you have persons with disabilities on your payroll, whether it be as an attorney, or as a staff person, consider drafting them to help figure out whether a medical exam or disability related inquiry has occurred. You may get a conservative result, but that would not necessarily be a bad thing. Of course, by no means am I suggesting that all persons with disabilities be pigeonholed into this area as that would be wrong. Even so, it may be something that could work to the mutual advantage of both the employee with a disability and the employer.

3. If an employer is going to defend on the grounds that something is job-related and consistent with business necessity, they’re going to have to meet a fairly high standard and further, that standard is an objective one. The same can be said for the direct threat defense.

4. If you are in a union environment and jobs are involved that are highly dangerous, in addition to this blog entry, you also want to check out this other blog entry of mine as well.

5. If you are considering adopting the Bates drug testing regimen, you might want to consider this from the Sixth Circuit opinion:

“Dura’s drug testing protocol pushes the boundaries of the EEOC’s medical examination and disability inquiry definitions. It certainly goes further than what the ADA’s drug testing exemption specifically permits…” While it is true, as the Sixth Circuit noted, that the regimen does not clearly fit the EEOC’s definitions and examples of prohibited conduct, do you really want to take that chance?