National Federation of the Blind v. Uber Technologies

Today’s case is National Federation of the Blind of California v. Uber Technologies, Inc.. This case is receiving quite a bit of press, but I thought I would offer my own take on it. As is typical for my blog entries, I have divided the blog into categories: facts; issues; holdings; court’s reasoning; and takeaways. The reader is free to concentrate on any or all of the categories.

I
Facts

As many of you know, UberX is a transportation service using mobile software applications to arrange rides between passengers and Uber’s fleet of Uber X drivers. To use the services an individual must either create a user account and provide Uber with his or her phone number, credit card information, and email address, or travel as a guest of an individual who has a Uber user account. The customer submits a request on behalf of himself and other passengers through the mobile software application. Once Uber identifies the vehicle that will provide the customer transportation, Uber notifies the customer via text message or through a smart phone application. The notification includes vehicle and driver identification information as well as an estimated time of arrival. When the vehicle has arrived, Uber notifies the customer, and the customer and passengers may board the vehicle. Uber is one of the most cost-effective transportation services out there. Individuals downloading Uber’s mobile phone application agreed to Uber’s terms of service, including the agreement to submit all disputes to binding arbitration. Full disclosure: I have never used the service.

In this case, the National Federation of the Blind of California had several members who were denied transportation by Uber drivers because they have service dogs accompanying them. Other members of the Association, having heard the stories, simply did not want to try Uber, though they would like to, because of the likelihood of humiliation they would suffer on account of the guide dogs. The National Federation of the Blind of California and three other plaintiffs brought suit alleging violations of title III of the ADA, the California Unruh Civil Rights Act, and the California Disabled Persons Act. The remedy sought by the National Federation of the Blind of California was injunctive and declaratory relief.

II
Issues

1. Did the National Federation of the Blind of California have standing to bring the lawsuit?

2. Are the claims of the National Federation of the Blind of California precluded by arbitration agreements or by prudential considerations?

3. Did the plaintiff who wanted to use Uber’s services but had not tried to do so have standing?

4. Are the National Federation of the Blind of California and the plaintiff wanting to use the services but never having tried to do so, aggrieved persons under the Unruh Civil Rights Act and the Disabled Persons Act of California?

5. Does the plaintiff whose wife uses Uber but who had been denied use of Uber when his wife uses Uber on account of his guide dog, have standing to pursue a claim?

6. Is Uber a place of public accommodation under the ADA?

III
Holdings:

1. Yes

2. No

3. Yes

4. Yes

5. Yes

6. Potentially yes

IV
Court’s Reasoning

Issue 1

1. An association has standing when: 1) it’s members would otherwise have standing to sue in their own right; 2) the interest the Association seeks to protect are germane to the organization’s purpose; and 3) neither the claim asserted nor the relief requested requires the disposition of individual members in the lawsuit.

2. Critically, claims for declaratory and injunctive relief do not require individualized proof and those were the only remedies that the National Federation of the Blind of California were seeking on behalf of its members.

Issue 2

Since the National Federation of the Blind of California only brought claims on behalf of members who would have standing and was not seeking monetary relief, the arbitration agreements were not a bar to associational standing.

Issue 3

The National Federation of the Blind of California joined with three individuals in the lawsuit and claimed to represent the interests of the membership at large. Therefore, the Association was not simply standing in for one of its members, but rather representing a broad membership base, which it alleges has sufficiently been injured by Uber, and therefore, prudential considerations will not bar the claims. An explanation is in order here. The court notes that a few District Court cases have found that an organization is not the proper party for bringing a claim where the organization was merely repeating the claims of individuals. However, for the reasons noted in this paragraph, the court did not feel that this was the situation here.

Issue 4

1. The ADA does not require a person with a disability to engage in a futile gesture if such a person has actual notice that a person or organization does not intend to comply with the law.

2. That is, in order to have standing, there must be an injury in fact, which can be established if a person can show that he or she was deterred from visiting the accommodation on specific occasions when he otherwise would have visited because of the known barriers there.

3. At the pleading stage, a plaintiff has to show: 1) actual notice of discriminatory practices; 2) specific occasions when he was deterred from visiting the accommodation; 3) an intent to return; and 4) a likelihood of continued discrimination.

4. Allegations were made that this particular individual has specific and general knowledge of experiences of multiple Uber passengers with service animals being denied access.

5. 9th Cir. case law holds that a plaintiff need only allege one instance of an ADA violation to achieve standing, but then has the ability to challenge other ADA violations found in the course of discovery. Again, the critical fact here is that this particular plaintiff had knowledge that persons with disabilities with service animals had been turned away and believed that there was a likelihood of continued discrimination.

Issue 5

1. Standing provisions under the California Unruh Civil Rights Act and the California Disabled Persons Act are broader than their federal counterparts because under those laws, plaintiff can bring a claim seeking injunctive relief if he or she can show that he or she was aggrieved or potentially aggrieved.

2. California courts do not require proof that a plaintiff intends to encounter or has been deterred from encountering a given architectural barrier when it comes to claims under the Disabled Persons Act.

3. It was clear to the court that state law statutory provisions of California were meant to work in harmony with the ADA by allowing a plaintiff proving an ADA violation to seek monetary recovery for an actual harm and attorneys fees, neither of which the court said were available under the ADA.

I get the damages for actual harm piece not being a remedy covered by title III of the ADA. However, the court also references attorney’s fees as not being covered by the ADA, which is not the case, unless, the court is referring to the collection of attorney’s fees with respect to actual harm.

4. Case law in the particular district where this case was filed holds that an association establishing standing under the ADA also has standing to pursue the state law claims.

5. The plaintiff who used Uber through his wife had alleged sufficient facts to establish standing and that he was able to show that he intended to use the service again and faced the likelihood of future discrimination.

Issue 6

1. Plaintiff alleged that Uber was liable under the ADA under either 42 U.S.C. § 12182(b) as a place of public accommodation or under 42 U.S.C. § 12184 as a specified public transportation service. Uber asserted only that it is not a place of public accommodation under the ADA, but did not ask the court to dismiss the complaint as to the specified public transportation service claim.

I find this strategy very odd. Certainly, I understand the strategy of saying that Uber is not a place of public accommodations. However, I would not have been so fast to not contest the point that Uber was also not a specified public transportation service. With regards to public transportation services, it is pretty clear from reviewing the final Department of Transportation regulations, which we discussed in this blog entry, that public transportation is referring to public entities and Uber is not a public entity. Also, if you look at the final rule of the Department of Transportation, it says it is a final rule implementing title II and title III of the ADA. Therefore, to be covered by that regulation, an entity would have to be subject to title II or title III of the ADA in the first place or take federal funds, which means it would be subject to the same regulations by virtue of the Rehabilitation Act. One only wonders if by adopting this strategy, Uber has now waived the right to contest the claim of coverage under the ADA as a specified public transportation service.

2. Plaintiffs claimed that Uber’s operation fell under the travel service category.

3. The ADA does not define travel services. Accordingly, since defendants did not cite any binding law that Uber’s service was precluded from coverage under the ADA as a travel service, in the absence of clear law to the contrary, the plaintiff demonstrated a plausible claim for Uber’s ADA liability as a place of public accommodation. Whether that will ultimately become the case, needed more factual development and a motion to dismiss was not appropriate.

V
Takeaways

1. I would expect lots of litigation over what travel services means. Also, that is going to tie into the discussion of whether the travel services are attached to a physical place as we have seen in this blog entry and the links contained therein. Back in the day, travel services was pretty clear. You called up a travel agency and they made a reservation for you or they met with you to figure out what you wanted to do. My wife and I planned our honeymoon in such a traditional way. However, things have evolved considerably over the last 25 years. Now, travel services are done online. While it is true that the courts are split with respect to whether places of public accommodations means a physical place or not, in this situation Uber, through its fleet of cars, is very much attached to a physical place, albeit one on wheels.

2. Don’t give away defenses unnecessarily because quite often doing so means waiving the right to raise that defense later (standing being the exception to that rule).

Workforce Innovation and Opportunity Act Regulations: The New World

This blog is about understanding the ADA. That said, there are so many places that bounce into the ADA that sometimes I wonder if it is not more apt, at times, to say it is about understanding the ADA and related laws. This is one of those situations where I’m going to talk about a related law. The law is the Workforce Innovation and Opportunity Act enacted on July 22, 2014. For those dealing with a child with an IEP or a 504 plan who is going to need vocational rehabilitation services, these proposed regulations are a must read. I am going to highlight some of the requirements of the proposed regulations in this blog entry:

1. Amends the definition of employment outcome to include only those outcomes in competitive integrated employment or supported employment, and thereby eliminates uncompensated employment from the list of acceptable employment outcomes. Uncompensated employment would include such things as homemakers and unpaid family workers.

2. Supported employment outcomes must be in competitive integrated employment. If not, then supported employment outcomes must be in an integrated setting where the individual is working on a short-term basis for competitive integrated employment. Short-term basis would mean no longer than six months.

3. Economic self-sufficiency consistent with an individual’s unique circumstances must be a criteria considered when providing vocational rehabilitation services to an individual.

4. A comprehensive assessment, to the maximum extent possible, must rely on information obtained from the individual’s experiences in integrated employment settings in the community and other integrated settings in the community.

5. The employment location must be found in a setting typically found in the community.

6. An employee with a disability interaction with other employees and others, such as customers and vendors, who are not persons with disabilities (other than supervisors and service providers), must be done in the same way that employees without disabilities in similar positions interact with those individuals. That interaction has to occur as part of the individual’s performance of work duties and must occur both at the particular work unit and throughout the entire worksite.

7. Competitive integrated employment will not be considered as such unless the individual performed part-time work where he or she is earning at least the higher of the minimum wage established by federal or applicable state law.

8. An individual with a disability must be eligible for the same level of benefits provided to employees without disabilities in similar positions.

9. Self-employed individuals with disabilities can be considered to be receiving competitive compensation where their income is comparable to that of individuals without disabilities in similar occupations or performing similar tasks to those who possess the same level of training, experience, and skills.

10. The work location must be in a setting typically found in the community. That is, an integrated setting typically found in the competitive labor market.

11. Sheltered workshops do not constitute integrated settings because those settings are not typically found in the competitive labor market.

12. Individuals with disabilities must have the opportunity to interact with nondisabled coworkers during the course of performing the work duties to the same extent there nondisabled coworkers must interact with each other when performing the same work.

13. Whether a setting is integrated is to be focused on the interaction between employees with and without disabilities and not upon the interaction of employees with disabilities outside of the work unit. The example given is that if a person with a disability works in a customer service center, the interaction with the person on the other end of the line would not count.

14. Self-employed individuals or those engaged in telecommuting can satisfy competitive integrated employment so long as the employee with a disability interacts with employees in similar positions and other persons without disabilities to the same extent that those persons without disabilities interact with others even though that interaction is not face-to-face.

15. The interaction between employees with disabilities and those without disabilities must be focused with respect to the performance of the employee’s job duties and not on the casual, conversational, and social interaction that occurs in the workplace (such as interactions in the lunchroom and other common areas of the worksite (you could refer to that as “water cooler talk,” I suppose).

16. Employees with disabilities using the vocational rehabilitation services must have the same opportunities for advancement as employees without disabilities in similar positions.

17. The competitive integrated employment must be customized. That is, designed to meet both the specific abilities of the individual with a significant disability and the business needs of an employer.

18. In order to track the language of the Workforce Innovation Opportunity Act, extended services that may be provided to youth with the most significant disabilities may not exceed four years.

19. A person in a supported employment context is time-limited and will be considered to be working on a short-term basis toward competitive integrated employment where that individual reasonably expects achieving a competitive integrated employment outcome within six months of achieving the outcome of supported employment.

20. The designated state unit must have a 21st-century understanding of the evolving labor force and needs of persons with disabilities. The proposed regulations on this score would describe education and experience in fields related to rehabilitation. If the person only possessed a bachelors degree, there would be a requirement for at least one year paid or unpaid experience.

One wonders if this is really necessary (it may or may not be). Certainly, it will drive up the cost for the designated state units.

21. Designated state units have the ability to create an exemption from order of selection criteria for eligible individuals needing a specific service or equipment in order to maintain employment where they have such order of selection criteria. The purpose of this regulatory change would allow designated state units, at their discretion, to elect to serve these individuals outside of the order of selection criteria otherwise in place so that individuals could be served who are at risk of losing employment if such services or equipment are not given to them.

I find the comma placement for “at their discretion,” to be a bit odd grammatically because as such it seems to indicate that “may be at the discretion,” is not a big deal and could be taken out of the sentence. However, the proposed regulations make it quite clear that discretionary is a critical piece of this particular provision so that designated state units have the ability to serve these individuals outside of the established order and should do so if financial and staff resources are sufficient. Also, if they do exercise this discretion, the services and equipment provided under the authority have to be consistent with an individual’s individualized plan for employment in the same manner as any other service or equipment provided under vocational rehabilitation program. Finally, this particular provision only applies to the individual’s needs in order to maintain employment and not to other services the individual may need for other purposes.

22. A designated state unit cannot require an applicant to demonstrate a presence in the state by the production of documentation that would result in a residency duration requirement.

23. The ability to utilize the extended evaluation process is eliminated. This means that before designated state unit can find someone ineligible, they must conduct a full assessment of the capacity of the applicant to perform in realistic work settings without the exception of extended evaluations.

24. A designated state unit must develop an individualized plan for employment for each eligible individual as soon as possible and no later than 90 days following determination of eligibility unless the designated state unit and the individual agreed to a specific extension of that timeframe.

25. Designated state units must provide eligible individuals entitled to Social Security benefits under title II or XVI of the Social Security act information on assistance and support available to individuals desiring to enter the workforce, including benefits planning. Hopefully, someone will write in that such information should include a discussion of judicial estoppel per Cleveland v. Policy Management Systems Company, 526 U.S. 795 (1999). (I knew I could figure out a way to get the ADA into this blog entry somehow:-)

22. The Workforce Innovation Opportunity Act requires states to reserve 15% of their vocational rehabilitation allotment to provide pre-employment transition services to students with disabilities eligible or potentially eligible for vocational rehabilitation services.

23. Adds to the definition of pre-employment transition services the terms “student with a disability,” and “youth with a disability.” The reason is because the act distinguishes the kinds of services that a student with a disability can obtain v. the kind of services that a youth with a disability can obtain.

24. Decisions related to the entity responsible for providing transition or pre-employment transition services that could be considered both a special education and a vocational rehabilitation service are to be made at the state and local level as part of the collaboration between the vocational rehabilitation agencies, State educational agencies, and local education agencies through interagency agreements or other mechanism for interagency coordination. The regulations note that both IDEA and the Rehabilitation Act already require state educational agencies and vocational rehabilitation agencies to plan and coordinate transition services for students with disabilities.

25. A person who has a 504 plan must have their 504 plan incorporated into consideration of the development of an individualized plan for employment. Current regulations only apply to IEP’s.

26. Description of specific vocational rehabilitation services pursuant to development of the individual plan for employment must include the specific transition services and supports needed for an eligible student with a disability or a youth with a disability in order to achieve an employment outcome or projected post school employment outcome. That is, the generally described employment goal previously permitted is now out the window.

The only concern I would have with respect to a specific employment goal is the funneling of persons with disabilities into certain professions or careers or jobs based on stereotypes.

27. Permit pre-employment transition services to be provided to all students with disabilities regardless of whether they have applied for vocational rehabilitation services and clarifies that similar transition services are available to youth with disabilities when specified in an individualized plan for employment.

28. Other proposed regulations that would: specify the required pre-employment transition services to be provided directly to students with disabilities; would describe the authorized activities that a state can provide- providing sufficient funds are available,- to improve the transition of students with disabilities from school to postsecondary education or to an employment outcome; and would describe the responsibility for pre-employment transition coordination to be carried out by vocational rehabilitation agencies.

29. A student with a disability, a broader term than the definition used in IDEA, does not have to apply for or be determined eligible for vocational rehabilitation services prior to receiving pre-employment transition services.

30. Educational agencies are clarified to mean state or local educational agencies.

31. Allows for transition services to students and youth with disabilities to be done as a permissible service for the benefit of groups of individuals with disabilities. This particular regulation is focused on being of service to groups.

32. Community rehabilitation programs must be used to promote competitive integrated employment, including customized and supported employment.

33. Vocational rehabilitation agencies are given the authority to provide technical assistance to all businesses considering hiring individuals with disabilities. That may be fine, but the concern would be entering into the area of providing legal advice. There is no substitution for a knowledgeable lawyer with a background in the ADA when legal rights are involved. See also paragraph 35 below. It makes you wonder whether vocational rehabilitation agencies might not farm this out to protection and advocacy groups and technical assistance centers. Again, there is no substitution for knowledgeable legal counsel. Also, one wonders just what will be the background of the trainers (disability activist, lawyer, etc.).

34. Assistive technology services may be provided for the benefit of a group of individuals.

35. Vocational rehabilitation agencies are given the ability to provide support for advanced training in the manner benefiting a group of eligible individuals.

36. Accommodations and auxiliary aids and services are to be included among the vocational rehabilitation services requiring the determination of the availability of comparable services and benefits prior to the provision of such services to an eligible individual.

37. Supported employment programs are now described as a purpose to provide individualized supported employment services, including extended services, to youth with the most significant disabilities in order to assist them in achieving supportive employment and competitive integrated employment. For such individuals, supported employment services can be extended to 24 months.

38. Prohibits a local educational agency or a state educational agency from entering into a contract with a sheltered workshop.

Takeaway:

1. These proposed regulations are mandatory reading for: anyone with a child who has an IEP or a 504 plan and whose child may be in need of vocational rehabilitation services; for those working in or representing vocational rehabilitation agencies; for attorneys for mental health mental retardation authorities (what they were called at the time in texas back in the 90s-governmental entities acting as a safety net for persons with mental health issues, intellectual disabilities, and substance abuse), or similar outfits; and any attorney representing k-12 programs. To a lesser extent, college and university attorneys may want to become familiar with these regulations.

2. Anybody with an interest in these regulations should take advantage of the commenting period as the time to influence regulations is during the commenting time frame.

3. We have previously discussed how Olmstead is being used to phase out sheltered workshops. Now, the Department of Education is coming at it in another way. The days of the sheltered workshop are definitely numbered, and a segment of parents are not going to be any too happy about that.

Telecommuting as a reasonable accommodation: EEOC v. Ford Motor Company en banc Decision

In a comment to this blog entry, I discussed the panel decision of the Sixth Circuit in EEOC v. Ford Motor Company where the panel held that telecommuting was a reasonable accommodation. Before proceeding further, I want to thank Jon Hyman for alerting me through his blog that the en banc decision came down April 10, 2015. I also want to encourage everyone to read what John has to say in his blog entry this week (he also has a link to the en banc decision in his blog entry), as his Friday entry promised some fireworks; I would say he came through on that promise. Also, Eric Meyer in this blog entry of his , has thoughts worth reading as well. I fully expect Robin Shea to weigh in as well. All three of these people have blogs in my blog roll.

In my blog entry mentioned above, I thought the defendant would seek an en banc hearing because under the facts of the case there were some serious weaknesses in the majority opinion of the panel decision. The en banc decision was an 8 to 5 decision, and I thought I would highlight the arguments of the majority and minority opinion. My approach to this blog entry is: the introduction section above, the majority opinion, the dissenting opinion, and takeaways. In the analysis of both the majority opinion and the dissenting opinion, I offer my thoughts immediately underneath the particular reason for the majority opinion or the dissent. As is usual, the reader is free to focus on any or all of the sections of this blog entry.

I
Majority opinion

1. Basically, the majority says that attendance is presumed to be an essential function of the job unless you can satisfy Samper, which was the subject of this main blog entry , of which I added EEOC v. Ford Motor Company in the comments section.

2. An employer is not required to modify an essential function of the job.

This is true. However, an employer does need to evaluate whether the person can do the essential function of the job with or without reasonable accommodations. If accommodations would modify or eliminate the essential functions of the job, then the ADA does not require the employer to grant that accommodation. The employer does need to work with the employee to get the employee to the same starting line as a person without a disability so long as the essential functions of the job are not compromised by the accommodations.

3. Ford engaged in an interactive process and only quit when it came down to modifying essential functions of the job.

4. An essential function of the job reflects an employer’s judgment and also what the employer does. To the majority, Ford had plenty of evidence to suggest that on-site attendance was an essential function of the plaintiff’s job.

As I alluded to in my comment on the Samper case, it is certainly possible that Ford had plenty of evidence to suggest that on-site attendance was an essential function of the job. However, that doesn’t answer the question. Is essential functions of the job a question of fact or a question of law. There are certainly cases holding that essential functions of the job is a question of fact. On the other hand, it is not unusual for a court to find that the facts are so overwhelming that in essence, a question of fact never presents itself.

5. Where an employer’s judgment as to essential job functions as evidenced by the employer’s words, policies, and practices and taking into account all relevant factors is job-related, uniformly enforced and consistent with business necessity, summary judgment in favor of the employer is required.

Whether a job’s function is essential has to do with the fundamental aspects of carrying out that job. I am not following how essential functions of the job has anything to do with whether it is job-related or consistent with business necessity, concepts we discussed here. Also, the uniformly enforced piece is a bit problematic because the ADA is not dealing with disparate treatment here, but rather with the affirmative duty to accommodate a person with a disability. Finally, if this becomes the standard, then litigation over essential functions just got incredibly complicated because not only would you have to show that the function is fundamental to carrying out the purpose of the job, but you would also have to show that it is job-related (which I suppose we could presume if the function was essential), and consistent with business necessity (to my mind, it is certainly possible that a job could have an essential function that is not vital to the operation of the business). I get how uniformly enforced might go to essential functions, but also this is not a situation where you are dealing with disparate treatment.

6. With respect to the retaliation claim, temporal proximity cannot be the sole basis for finding pretext. Also, considering the performance issues, plaintiff could not show per Nassar that the filing of the EEOC claim was a but for reason for the termination.

The dissent is quite right to point out that this is harsh for persons with disabilities, especially if their performance problems is connected to the lack of accommodations. That said, this defense strategy seems to be sound in light of University of Texas Southwestern Medical Center v. Nassar, which we discussed here.

II
Dissent:

1. Essential functions of the job is a question of fact and not appropriate for summary judgment.

As a matter of case interpretation, the cases generally find essential functions of the job to be a question of fact where to the court’s mind it is a close call.

2. The majority turned the summary judgment standard on its head by focusing on facts least favorable to the plaintiff rather than on facts most favorable to the plaintiff. Further, it is not right to make the employee testimony somehow inherently less credible than testimony from the employer.

The dissent may be onto something here. Having read thousands of cases over the years, it often seems that summary judgment turns into a bench trial based on discovery and then if it is a close call goes to the jury and if not the judge decides to grant the motion for summary judgment, usually for the defense but in rare situations for the plaintiff. In other words, the court seems to be acting as a screen out with the summary judgment practice. That is, it seems to me that cases go to the jury only where the plaintiff has a very real chance of winning or is very likely to win, otherwise the case gets decided on summary judgment for the defense. I have seen a couple of cases, such as this one, that say this view of summary judgment has taken things too far and it isn’t the province of the judge to act as the screen out where the critical facts are contested, but such cases are certainly not the majority.

3. Ford’s judgment that physical presence at the office is an essential function of the job is entitled to consideration, but that does not mean it is entitled to deference. The ADA states only that consideration shall be given to the employer’s judgment as to the essential functions of the job but that is not the same thing as saying deference is to be given to the employer.

This is an excellent point. However, the case law as a matter of practice has given different levels of deference, depending upon the jurisdiction, to the employer’s notion of what an essential function of the job is. If I had to categorize it, I would say that the cases range from deference to deference plus to strong deference, but it is rare that a case just give consideration to the employer’s view of essential function rather than some degree of deference.

4. The cases requiring physical presence are distinguishable from this case.

5. Technology has advanced in 1995 in facilitating teamwork through fast and effective electronic communication, and so it should no longer be assumed, per the majority opinion, that teamwork must be done in person.

The majority opinion does create this presumption that teamwork must be done in person. Such a presumption takes things even further than Samper. Also, as Jon points out in his blog entry of today, mentioned above, a strong argument can be made that the presumption should be reversed.

6. The slippery slope argument overstates the reach of this case and sets a poor precedent for other failure to accommodate cases since providing telework is not just a good deed but is sometimes legally required under the ADA.

In another life, I actually taught a logic class to college students. One of the things that the law is particularly bad about is how it emphasizes the logical fallacy of the, “slippery slope.” That is, you decide something one way and that necessarily means the ball just keeps rolling downhill. It is a logical fallacy because everything turns on its facts and the ball does not have to keep rolling at all. Therefore, to my mind, this is an excellent point made by the dissent. There are most certainly going to be situations where telework is going to be legally required under the ADA, especially where the Samper criteria are not satisfied.

7. It was not clear from the record whether the plaintiff was asking for flex time or time to be able to work beyond office hours. If there was a request to telework during core business hours only, that might be considered a reasonable request.

8. The majority opinion reads facts and ambiguity contained in the record in a way least favorable to the plaintiff when on summary judgment it should be the other way around.

See my discussion of summary judgment above.

9. The request of the plaintiff to telework up to four days a week was an opening bid and Ford should have made a counteroffer.

Depending upon the Circuit, failure to engage in the interactive process may or may not be an independent cause of action for violating the ADA. In this situation, the court’s majority opinion is in essence saying that the plaintiff causes the breakdown of the process where an accommodation request would modify or change the essential functions of the job.

10. Since the interactive process is not an end in and of itself, the employee must present evidence that a reasonable accommodation could have been identified if the employer had engaged sufficiently in the interactive process, which the EEOC did.

The problem with this argument is that Ford did engage in a substantial interactive process up until the point where the essential functions of the job, at least to Ford Motor’s eyes, were to be compromised. Also, this particular statement goes further than case law that I have seen, much of which says that all the plaintiff has to do is identify a reasonable accommodation and then the ball goes into the employer’s court.

11. In the Sixth Circuit, reassignment is reasonable only where the employer demonstrates that it would be an undue hardship to accommodate the employee in his or her current position.

With respect to reassignment, case law is all over the place on this one. Be sure to check your own jurisdiction.

12. With respect to retaliation, a reasonable jury could certainly infer from the timing and nature of the events that Ford fired the plaintiff in retaliation for the charge she filed with the EEOC.

This is most certainly true in this case as the time in between firing and the charge was not a great deal of time. However, the problem still is that retaliation claims require but for causation per University of Texas Southwestern Medical Center v. Nassar.

13. Citing to this case, which we discussed previously, the dissent believed that the key question was whether the EEOC charge that was filed was the poison that precipitated the firing to occur when it did. If so, that was wrongful conduct.

This is a very interesting argument and one that I have not seen before. It will be interesting to see how much currency this argument gets in the courts.

14. The majority opinion is bad policy because that opinion makes it impossible for employees with performance problems to bring a retaliation claim based on the theory that those performance problems did not truly motivate the employer to fire them. That cannot be in accordance with the purposes of the ADA because employees with disabilities often have performance problems precisely because of the struggles they encounter to manage those disabilities.

Absolutely true. However, the Supreme Court has spoken on the causation standard in retaliation cases. This leads to the question, which we have discussed in this blog before, as to what does “but for” really mean. Also, does equity, i.e. principles of fairness, demand some slack where it can be shown that the performance problems were related to the failure to accommodate the employee? Keep in mind, it is far from clear in this case whether the performance problems were related to the failure to accommodate or it was just a case of bad performance on the part of the employee.

III
Takeaways:

1. If you are faced with attendance as an essential function of the job, make sure you read the Samper case.

2. Essential functions of the job do not need to be modified or eliminated in order to comply with the ADA. That said, make sure you can back up what the essential functions of the job are. In many cases, the benefit of the doubt goes to the employer.

3. Requiring that a threshold of job-related, uniform enforcement, and consistent with business necessity be in place before summary judgment in favor the employer is required, does litigants on either side no favors as it most definitely increases the expense of litigation. It also imposes a set of requirements that in the long run may prove very problematic for employers, particularly with respect to the business necessity requirement. Finally, I am struggling to see how the ADA and its implementing regulations even suggest the necessity for this standard.

4. Saying that temporal proximity cannot be the sole basis for finding pretext makes retaliation claims very difficult for plaintiffs considering that the standard is but for causation and performance problems are typically involved. One wonders if a standard could not be crafted so that temporal proximity is not a sole basis for finding pretext, but merits strong consideration where the performance problems are traceable to the failure to receive reasonable accommodations (that is, an accommodation that gets the person without a disability to the same starting line as a person with a disability and does not jeopardize the essential functions of the job).

5. On the plaintiff’s side, look for every plaintiff attorney dealing with a reasonable accommodation case to take the section of the dissenting judges opinion that when it comes to essential functions of the job, an employer is entitled to consideration but not, as is the practice of cases, deference.

6. Given today’s technology, it simply doesn’t make sense that there should be a presumption that teamwork needs to be done in person. On the other hand, I don’t know if it makes sense to have a presumption saying that teamwork does not need to be done in person either. To my mind, a presumption is not needed, and the parties should be put to their proof.

7. The slippery slope argument is one that should be easily countered in the ADA. The fundamental purpose of the ADA is an individualized case analysis of each set of facts. Therefore, the slippery slope should not be an issue, and if there ever was a logical fallacy in the law, it would be the slippery slope in the context of ADA cases.

8. Defense attorneys filing a motion for summary judgment is standard practice. As a practical matter, it seems that once a defense file such a motion, the burden shifts to the plaintiff to prove the defense wrong. Look for plaintiff attorneys to use the section of the dissent saying that summary judgment practice has gone too far.

9. I don’t follow the point in the dissent saying that an employee must present evidence that a reasonable accommodation could have been identified if the employer had engaged officially in the interactive process. The way the cases have gone to date, is that the plaintiff must suggest a reasonable accommodation and once the plaintiff does, the employer must engage in the interactive process. After that, whoever breaks down the interactive process bears the liability. To say otherwise winds up in a situation where the defendant could be the breakdown in the interactive process but the plaintiff would still have the obligation to show that an accommodation was possible once the defense broke down the interactive process. That puts an added burden on the plaintiff, which to date has not been imposed.

10. When it comes to reassignment, check your jurisdiction for the applicable law.

11. Look for a lot of litigation in retaliation cases over what “but for,” really means.

12. Will this case go to the Supreme Court? First, I am not sure you could say there is a Circuit court split yet. Second, on the plaintiff’s side, you would have to be worried about whether the United States Supreme Court would unduly narrow the ADA, especially since the current nature of Congress is such that the law would not likely be amended regardless of the Supreme Court decision. Third, I am not sure where plaintiffs would find the fifth vote. Finally, plaintiffs with disabilities have not fared well at the Supreme Court when it comes to employment matters. Of course, you never know with these things as the Supreme Court decision in UPS v. Young illustrates.