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.

Are fraternities subject to title III of the ADA?

This blog entry is divided into separate categories: introduction; the statutes; the case of the week; and takeaways. You probably will want to read all of it, but you still have the option to focus on any of the categories you like.

I
Introduction

Recently, I ran across this article, in my Google alerts. It shouldn’t surprise anyone that I have a Google alert set for Americans with Disabilities Act. Well, I wanted to find out if this was indeed the case. After checking with my colleague, Richard Hunt, who I consider to be a Fair Housing Act maven, and doing further research, I came to the conclusion that the article may or not be correct and here is why:

II
The Statutes

1. 42 U.S.C. § 3607 is the private club exception In the Fair Housing Act, but all it says is that a private club can limit housing to members.

2. 42 U.S.C. § 12187 is the private club exception for title III of the ADA. It states that title III of the ADA does not apply to private clubs or establishments exempted from coverage under title II of the Civil Rights Act of 1964 or to religious organizations or entity controlled by religious organizations, including places of worship. This means we have to go to the provisions of 42 U.S.C. § 2000-a(e) to see what that says.

3. 42 U.S.C. § 2000a(e) says that title two of the Civil Rights Act does not apply to a private club or other establishment not in fact open to the public, except to the extent that the facilities of such establishment are made available to customers or patrons of an establishment within the scope of 42 U.S.C. § 2000a(b).

With respect to fraternities, an argument can be made that fraternities are open to the public. After all, both members of the fraternity and nonmembers of the fraternity will frequently visit fraternities. Second, a fraternity is providing lodging to a transient guest (see paragraph 4 immediately below).

4. 42 U.S.C. § 2000a(b)(1) covers any inn, hotel, motel, or other establishment providing lodging to transient guests other than an establishment located within a building containing not more than five from for rent or higher and which is actually occupied by the proprietor of such establishment as his residence.

With respect to fraternities, the proprietor exception would not apply.

III
The Case of the Week

A
Facts

But you don’t have to take my word for it. The US Court of Appeals for the Third Circuit has spoken on this as far back as 2006 in Regents of the Mercersburg College v. Republic Franklin Insurance Company, 458 F.3d 159 (3d Cir. 2006). In this case, the insured operated a private secondary boarding school. A school building that contained dormitory housing was damaged by fire. The insured claim that an ordinance and a endorsement to its property insurance policy covered the costs to bring the building into compliance with the ADA.

B
Court’s Reasoning

In holding that the costs to bring the building into compliance with the ADA was covered by the policy, the court reasoned as follows:

1. Private school dormitories are transient lodging as defined by the ADA regulations.

2. Dormitories are part of boarding schools and therefore are places of education.

3. Appendix A to the ADA Accessibility Guidelines specifically includes dormitories.

4. Chapter 3 of the Appendix A to the ADA Accessibility Guidelines explicitly states that transient lodging includes a building or facility containing sleeping accommodations and also mentions dormitories.

5. Student housing is an integral part of the boarding school experience and therefore is one of the facilities, privileges, advantages, and accommodations of a place of education covered by title III of the ADA.

6. Places of education are subject to title III of the ADA.

7. A technical assistance letter from the Department of Justice dated May 2, 1994 takes the position that all aspects of a school’s student activities and of the educational experience are covered by title III of the ADA. This letter specifically references fraternity houses owned and operated By a University.

The court wound up remanding the case because whenever alterations are made, the path of travel regulations kick in. That means, conceivably the undamaged portions of the dormitory might need to undergo ADA renovations. As a matter contractual interpretation, the insurance company would not be liable for necessary renovations to undamaged areas of the dormitory.

IV
Takeaways:

1. With respect to public universities, as we have seen many times before in this blog, title II of the ADA applies to everything that a public entity does. Further, since places of education are involved, to satisfy the Rehabilitation Act all of the operations of the place of education must be accessible to persons with disabilities. Since just about all universities take federal funds, the Rehabilitation Act does come into play in just about all cases.

2. This same technical assistance letter is perhaps overstated by the Third Circuit. In this letter, the Department of Justice states that if the fraternity house is not owned or operated by the University and will not be owned or operated by it in the foreseeable future, the house may be exempt from ADA coverage even if the house otherwise fits into one of the categories of places of public accommodation because it would be exempt as a private club. The factors to consider in whether a private club is involved are:

A. Whether the club is highly selective in choosing members

most fraternities would be

B. Whether the club membership exercises a high degree of control over the establishment’s operations

This may be highly variable

C. Whether the organization has historically been intended to be a private club

probably yes

D. The degree to which the establishment is opened up to nonmembers

probably frequently

E. The purpose of the club’s existence

This one is interesting because a fraternity doesn’t really have the same reason for being as an exclusive country club does, though some of those reasons do exist.

F. The breadth of the club’s advertising for members

Fraternities probably focus on the college community but one would need to know all of the facts

G. Whether the club is nonprofit

H. The degree to which the club observes formalities

It would take research on my part to determine what formalities are being referred to. Corporate formalities? Formalities that make the fraternity setting stand apart?

I. Whether substantial membership fees are charged

Undoubtedly fees are charged, but whether they are substantial would take further research.

J. The degree to which the club receives public funding

This one is very interesting because if a public university is involved, the fraternity is in some way probably receiving public funds.

K. Whether the club was created or is being used to avoid compliance with a Civil Rights Act.

This one is also interesting because the Americans with Disabilities Act is a Civil Rights Act.

A question that arises is whether all of these factors must be satisfied or whether, like revenue ruling 87-41 (dealing with independent contractors), no one particular factor is dispositive, rather you have to look at it in the broad sense. Also, this technical assistance letter says that they are covered by title III to the extent they open up their establishment to the general public for purposes falling within one of the categories of places of public accommodation. So, if the fraternity host events open to persons other than fraternity members and their guests (in the context of a fraternity, I am not sure what the phrase, “and their guests” refers to), the fraternity must be accessible in their public areas during those events. The more often those public events occur, the higher the obligation to make the publicly use areas accessible. This also doesn’t answer the question considering the nature of fraternities. An argument can be created that with respect to fraternities, even the living quarters would be public areas or areas that the public frequently uses.

3. As we have discussed previously, it is now unclear as to just how persuasive interpretation of regulations, such as appendices, are going to be.

4. So how do you deal with this situation? First, is it a private university? Second, is the private university owning and operating the fraternity? Third, if not, is the fraternity a private club? Fourth, if the fraternity is a private club, have you gone through the criteria in this letter? (Don’t forget about applicable case law here as well). Fifth, if it is a public University, is the fraternity receiving federal funds. If so, the Rehabilitation Act would apply and so would accessibility obligations. If not, go back to the private club analysis. Finally, if it is a public University and even if the fraternity is not receiving federal funds, are the fraternities such an integral part of the educational experience that denying accessibility would mean not allowing a person with a disability to benefit from the privileges, advantages, and benefits of an education at that institution?

Lots to think about and that leads to…. make sure you have a knowledgeable attorney to help your sort these things out.