Does § 504 Apply to Independent Contractors?

Previously, I have discussed here whether § 504 applies to employment. Today’s case, Flynn v. Distinctive Home Care, Inc. (you can find my blog entry discussing the District Court opinion here), takes it even further. Today’s case, explores whether § 504, assuming it applies to employment, applies to independent contractors. As is my usual custom, I have divided the blog entries into categories: Facts; Court’s Reasoning; and Takeaways. The reader is free to focus on any or all of the categories.

I
Facts

The plaintiff was a contract pediatrician. Spectrum Healthcare Resources, Inc. contracted with the United States Air Force to provide medical services at Lackland Air Force Base in San Antonio Texas. Spectrum and the plaintiff entered into a contract whereby Flynn agreed to provide clinical pediatric services at the San Antonio military Medical Center for 20 hours per week. The agreement explicitly provided that Flynn was an independent contractor. She subsequently assigned her rights under the contract to a professional company managed by her. When Spectrum’s contract terminated in March 2013, Distinctive Healthcare Staffing took over Spectrum’s duty to provide medical services at Lackland. They retained Spectrum as a subcontractor on the government contract so that Spectrum continued to directly communicate with the independent contractor providing medical services at the base. In April 2013, Distinctive entered into a new contract with the management company controlled by Flynn. Under the contract she was to provide services for at least 936 hours per year. As with the previous contract, the contract specifically said that she was an independent contractor and that distinctive would not have any control or have the right to exercise control over the manner and means in which she performed medical services at the base. On May 15, 2013, Flynn’s psychologist diagnosed her with autism spectrum disorder-mild, what used to be known as Asperger’s syndrome (a disorder characterized by significant difficulties in nonverbal communication and social interaction, as well as restricted and repetitive patterns of behavior and interests). Around that same date, the government officer responsible for overseeing Distinctive’s contract with the Air Force, contacted Distinctive’s president and raised several concerns with her performance, including several complaints from patients and coworkers, failing to report to work on time, and her failure to timely complete patient charts. The government officer stated that it was in the best interest of the government if she was removed from providing services under Distinctive’s contract with the Air Force. On May 16, 2013, a Spectrum employee informed her that the clinic was concerned about her performance. In response, she informed that employee that her psychologist had just diagnosed her the previous day with autism spectrum disorder-mild (Asperger’s). She believed that her condition explained many of the issues of concern to Distinctive and Spectrum. On May 30, 2013 the government contract officer sent distinctive an email containing documentation purportedly substantiating the allegations of performance and patient complaints against Flynn. The government contract officer again requested that she be removed from her duties as an independent contractor. On June 7, 2013, Flynn, Spectrum, and Distinctive held a conference call during which she asked to be reinstated with accommodations. After Distinctive and Spectrum discussed Flynn’s requested accommodation with the Air Force, the government responded that it could not accommodate her request. As a result both Spectrum and Distinctive informed Flynn that they would not retain her as an independent contractor. She then sued Spectrum and Distinctive for employment discrimination under § 504 of the Rehabilitation Act. The District Court granted summary judgment in favor of the defendants because she was an independent contractor and not an employee. Flynn appealed to the Fifth Circuit.

II
In holding that § 504 applied to independent contractors, the court reasoned as follows:

1. The U.S. Courts of Appeals are split on the issue.

2. After citing to the Rehabilitation Act, 29 U.S.C. § 794, the court says that § 504 broadly prohibits discrimination, including employment discrimination, against persons with disabilities in federally assisted programs or activities.

3. Since § 504 of the Rehabilitation Act only applies to discrimination in program receiving federal financial assistance, it does not properly protect persons with disabilities from discrimination in the private sector. That is the reason why title I of the ADA was enacted. However, title I of the ADA only applies to employees. Therefore, Flynn’s only option was to sue under § 504 the Rehabilitation Act.

 

4. Soon after Congress enacted the ADA, it became concerned about potential inconsistencies between the Rehabilitation Act and the ADA. Therefore, they enacted 29 U.S.C. § 794(d), which provides that the standard used to determine whether § 504 of the Rehabilitation Act has been violated in a complaint alleging employment discrimination shall be the standard applied under title I of the ADA. Senator Harkin explained that the purpose of 29 U.S.C. § 794(d) was to put everyone on notice that the definitions of reasonable accommodation and discrimination under the ADA were the ones that apply. Also, people would know that the standard governing preemployment inquiries and examinations as well as the standard governing inquiries of current employees under the ADA would also apply to Rehabilitation Act.

5.  Distinctive admitted that it receives federal financial assistance.

6. Unlike title I of the ADA, § 504 of the Rehabilitation Act is not limited to employment. Rather, § 504 of the Rehabilitation Act prohibits discrimination under any program or activity receiving federal financial assistance. Further, program or activity is defined per 29 U.S.C. § 794(b) to include all of the operations of an entire Corporation, partnership, or other private organization, or entire sole proprietorship. Therefore, a previous case from the Ninth Circuit reasoned that the Rehabilitation Act covers all of the operations of covered entities and not just those related to employment.

It should be noted that the applicability of the Rehabilitation Act to the defendant is actually a little bit more complicated than what the court alludes to. Reviewing, 29 U.S.C. § 794(b)(3)(A) reveals that all of the operations of the Corporation are only involved if they are receiving federal financial assistance to the entire Corporation. Hard to say whether that is the case here. However, all of the operations are involved if the Corporation is principally involved in healthcare, which Distinctive and Spectrum probably are.

 

7. The conclusion that the Rehabilitation Act does not completely incorporate the terms of the ADA so that the Rehabilitation Act applies beyond employees, is consistent with a prior opinion from the Fifth Circuit where they considered whether the Rehabilitation Act incorporated title I of the ADA’s view of causation in employment discrimination cases. In that case, Soledad v. United States Department of Treasury, the Fifth Circuit concluded that the specific language contained in the Rehabilitation Act referring to causation (29 U.S.C. § 794(a)),  prevailed over the more general incorporation language contained in 29 U.S.C. §794(d).

 

8. 29 U.S.C. § 794(a) contains explicit language authorizing discrimination suits against any program or activity receiving federal financial assistance. Therefore, to incorporate the requirements of title I of the ADA mandating an employee employer relationship would conflict with the plain language of the Rehabilitation Act. That law specifically and broadly authorizes discrimination suits against a wide variety of entities, including non-employers.

9. §504(d) of the Rehabilitation Act does not incorporate title I in its entirety. Instead, it specifies that the ADA’s standards are to be used to determine whether the Rehabilitation Act has been violated. It does not say that the standards of the ADA are to be used to determine when the employer is even subject to the Rehabilitation Act in the first place. Therefore, the Fifth Circuit agrees with the conclusions of the Ninth Circuit and the 10th Circuit stating that Rehabilitation Act adopts only the substantive standard for determining the conduct that violates the Rehabilitation Act and not the definition of who is covered under the Rehabilitation Act.

10. Since the Rehabilitation Act does not incorporate title I of the ADA standards for determining the entities that may be held liable for employment discrimination, it does not incorporate title I of the ADA’s requirement that the defendant must be the plaintiff’s employer. Therefore, the fact that a plaintiff is an independent contractor of the defendant is not fatal to the plaintiff’s Rehabilitation Act claim.

11. Case law from the Eighth Circuit to the contrary is not persuasive for several reasons. First, § 504 the Rehabilitation Act is materially different from title I of the ADA because it specifically defines the entities to which it applies and does not address employers. Second, title I and § 504 do not cover the same entities and so the two statutes are not perfectly interchangeable. Third, that case law specifically mentioned that there was no existing precedent on the question. However, since that time, there is precedent on the question with the Ninth Circuit holding that an independent contractor may sue a defendant for employment discrimination on the Rehabilitation Act. Finally, contrary case law also referred to the definition of a qualified handicapped person in the Rehabilitation Act, but the Fifth Circuit failed to see how that particular provision had any bearing on whether the Rehabilitation Act authorized suits by independent contractors or on the degree to which § 504(d) incorporates title I of the ADA.

12. Another case from the Fifth Circuit also doesn’t work because that case holds that an individual supervisor could not be sued for employment discrimination under § 504 the Rehabilitation Act because that individual supervisor did not herself receive federal financial assistance.

13. There was an unpublished decision from the Fifth Circuit saying that the former employee lacked standing to pursue a discrimination claim involving a terminated benefit because he would not an employee of the Air Force nor an applicant for employment with the Air Force when a disability retirement benefits were terminated. However, the Fifth Circuit because of the reasons mentioned above declined to follow that decision. In a footnote, they also noted that unpublished opinions issued on or after January 1, 1996 are not precedent.

III
Takeaways

1. Since there is a split among the Circuits (independent contractors are covered in the 9th, 10th, and 5th Circuits but not in 8th), it would seem that this case could go to the United States Supreme Court.

2. This case has potentially huge ramifications because doctors are invariably independent contractors, and convincing a court (as noted in my blog entry discussing the District Court opinion in this case, mentioned above), to apply title III to the situation is not an easy matter.

3. This case also has ramifications with respect to whether prisons get a get out of jail free card when it comes to disability discrimination against prisoners with respect to prison jobs, which I discussed in this blog entry.

4. Interesting that the U.S. government wasn’t sued as the Rehabilitation Act prohibits them from engaging in discrimination through contracting.

Proposed Enforcement Guidance on Retaliation and Related Issues from the EEOC: the ADA Version

My most popular blog entry of 2015 by far was this one. Recently, January 21, 2016, the EEOC issued a proposed enforcement guidance on retaliation and related issues. They put it out for public comment for a period of 30 days. It is intended to provide the public with information about how the EEOC may guide its personnel in processing and investigating charges, making cause determinations, and in considering litigation. My friend and colleague Robin Shea, whose blog appears in my blog roll, had a great post discussing retaliation, the EEOC proposed guidance, and the current status of the law. What I wanted to do was focus on the ADA piece of it. Here are my thoughts:

 

1.  42 U.S.C. § 12203(a),(b) prohibit retaliation and interference, coercion, or intimidation. This particular section is very broad indeed and reaches even those situations where the conduct does not meet the materially adverse standard required for retaliation. EEOC gives specific examples as to what might constitute interference including: coercing an individual to relinquish or foregoing an accommodation to which he or she is otherwise entitled; intimidating an applicant from requesting an accommodation for the application process by indicating that such a request will result in the applicant not being hired; threatening an employee with loss of employment or other adverse treatment if he does not voluntarily submit to a medical examination or inquiry that is otherwise prohibited under the statute; issuing a policy or requirement purporting to limit an employee’s right to invoke ADA protections; interfering with the former employee’s right to file an ADA lawsuit against the former employer by stating that a negative job reference will be given to prospective employers of the suit is filed; and subjecting the employee to unwarranted discipline, demotion, or other adverse treatment because he assisted a co-worker in requesting reasonable accommodation. The interference must be such that it is reasonably likely to interfere with the exercise or enjoyment of ADA rights.

 

2. With respect to retaliation, as Robin discusses in the above-mentioned blog entry, protected activity can consist of either participation in the EEO process or opposing a practice made unlawful by an anti-discrimination statute.

 

3. There is a difference between participation and opposing a practice. With respect to an occurrence arising out of participating in the EEO process, that clause applies even if the underlying charge is not meritorious or was not timely filed. Participation encompasses internal complaints. With respect to opposition, an individual must have a reasonable belief that the matter complained of violates the laws in order for his or her statements or action to be protected.

4. A request for a reasonable accommodation is as we have seen throughout our blog protected activity.

5. The EEOC takes the position that compensatory and punitive damages are available for retaliation claims because Title I allows it (as discussed in my most popular blog of 2015, the answer isn’t as simple as that). They note in a footnote that the courts, especially the district courts, are split on this. The Circuit courts to date, as the EEOC notes, are saying the opposite, though some Circuits have affirmed such awards without visiting the question.  Undoubtedly, this question is headed to the Supreme Court. Since the Rehabilitation Act allows for compensatory and not punitive damages and 12203 relates back to the Rehabilitation Act, it is fair to say that compensatory but not punitive damages are allowed for retaliation involving Title II. With respect to Title III, since the remedies refer back to Title III remedies, compensatory and punitive damages would not be in play. So, the only real question is whether compensatory and punitive damages are in play for retaliation claims that occur in the employment context.

6. Another question is whether individual liability is in play where retaliation occurs. We know that Title I-III do not allow for individual liability. However, § 12203(a), the ADA retaliation provision, specifically includes within it the term, “person.” §12203(b), the interference provision, does not contain the term, “person.” Therefore, the question becomes with respect to retaliation, whether personal liability is in play. There are two views on that question with respect to title II matters. The view that personal liability is not in play represented by the case of Bertolotti v. Prunty, 2010 U.S. Dist. LEXIS 101015 (S.D. W. Va. September 21, 2010), which followed a Fourth Circuit decision saying that because retaliation remedies for the ADA are linked to title VII, which does not allow any remedy against individual defendants, individual liability is not possible. On the other hand, the 11th Circuit in Shotz v. City of Plantation, 344 F.3d 1161 (11th Cir. 2003) in a very extensive opinion said that individual liability is in play with respect to retaliation occurring under title II of the ADA because the retaliation provision specifically includes the word “person,” the statute with respect to individual liability is inscrutable, solid policy reasons exist for imposing individual liability in the title II context, and the Department of Justice in 28 C.F.R. § 36.104 refers to a private entity as including a person and since that rule went through proper rulemaking it is entitled to deference. So, in short, an argument exists for individual liability for retaliating against someone in the context of title II of the ADA. However, even if that argument would prevail, not at all a given, one wonders whether it would apply to the interference section because the word “person,” does not appear in that particular provision.

Does an ASL Interpreter Mean that Person is Doing the Essential Functions of Another’s Job and Other Matters

This case was pointed out to me by a member of the Deaf and Hard of Hearing Bar Association, of which I am a member, on its facebook page, which is where most of the communication for the Association occurs. This case raises several interesting issues: 1. Does hiring a person to be an ASL interpreter for an employee mean that the interpreter is performing the essential functions of the job; 2. How is undue hardship measured; 3. Can a Deaf person be a direct threat?; and 4. Can experts testify about the capabilities of the deaf when they have no experience with the Deaf.

I
Facts:

Searls, the plaintiff, is a deaf 2012 graduate of the Johns Hopkins School of Nursing. She reads lips but understands better through ASL. As a nursing student, she completed two clinical rotations in the Hallstead 8 unit at Johns Hopkins Hospital. During her clinical placements, the School of Nursing provided a full-time ASL interpreter. A few days prior to their graduation from the School of Nursing, a nurse manager sent her an email giving her advance notice that she would be posting two openings for nurse clinician I positions in Hallstead eight and encouraging her to apply. She later sent her an email with the two job postings. The job description for the nurse clinician I position stated that a nurse is responsible for coordinating care, providing evidence-based patient care, working collaboratively, supporting safety standards, and using resources in a cost-effective manner. A required skill was highly effective verbal communication and interpersonal skills to establish working relationships. Also, communication was listed as an essential job function and the nurse was required to listen actively to opinions, ideas, and feelings expressed by others and respond in a courteous and tactful manner. Another essential function of this job was communicating unresolved issue to appropriate personnel. A nurse I clinician must also be competent in general physiologic monitoring and patient care equipment such as defibrillator and glucometer monitor.

The plaintiff applied for the nurse clinician I position, and Johns Hopkins Hospital offered her an interview. They interviewed her and the very next day after the interview she was offered the nurse clinician I position on Hallstead eight. Her offer letter included the provision that the offer of employment and start date were contingent upon successful completion of a health screening and clearance by the Office of Occupational Health Services. After the plaintiff received the offer, she asked the nurse manager who to contact to request an ASL interpreter. Plaintiff also told a staff member from the Department of Occupational Health that she would require a full-time ASL interpretation as an accommodation. This information was sent to Johns Hopkins Hospital’s ADA compliance specialist who then turned the matter over to another individual who was the ADA/accessibility consultant at Johns Hopkins Hospital at the time to speak with her about the request for an interpreter. The ADA/accessibility consultant investigated the cost of providing one or two interpreters and determined that the average annual salary of an ASL interpreter proficient in medical terminology would be between $40,000 and $60,000 and concluded that the plaintiff would require a team of two interpreters with her at all times at an annual cost of $240,000. In 2012, Hallstead 8 had an operational budget of $3.4 million. It was a part of Johns Hopkins Hospital’s Department of Medicine, which had an operational budget of $88 million in 2012. The overall budget for operations at Johns Hopkins Hospital in 2012 was $1.7 billion. About a few weeks later, the ADA/accessibility consultant sent the nurse manager an email with the estimate of the cost of interpreter. The nurse manager forwarded the email to Karen Davis, the Director of Medical Radiology Nursing with the comment that, “I know that we can’t afford this.” The nurse manager also wrote, “they are expecting the department to pay for this. Why isn’t the hospital responsible?” Ms. Davis forwarded the emails onto her supervisor to ask for her thoughts. In particular, Ms. Davis noted that the plaintiff was qualified but because of the cost of an interpreter the first response, given financial issues, was that she cannot be accommodated. She also speculated that having an interpreter could create scheduling issues and that the interpreter might tell the plaintiff the wrong medicine to use during an emergency situation. She concluded her email by writing that, “Stacey Rotman [the nurse manager] tells me the nurse is bright and would be a good hire other than this hearing issue.” In response, her supervisor wrote that she did not think the plaintiff could be accommodated. Following this exchange, the nurse manager responded to the ADA/accessibility consultant email stating that she had talked to a director and the department could not accept the restrictions. The ADA/accessibility consultant asked for the reasoning, and the nurse manager responded that she assumed it was costs. The ADA/accessibility consultant also said she wanted to be sure that all avenues had been thoroughly investigated as the plaintiff was a qualified applicant and that they were part of the larger Johns Hopkins Hospital. In response to that, the nurse manager said, “yes, the reason is cost.” The ADA/accessibility consultant tried to reach a compromise to no avail. In particular, the supervisor, Ms. Davis, said that the interpreters would be an ongoing operating expense that would not budgeted or funded. Therefore their threshold for interpreter costs was zero. She further explained that because the overall budget of the unit was $3.4 million and the overall budget of the department was ADA million dollars, they would have to lay off four new nurses to fund the interpreter as they could not incur any new expenses. She cautioned that laying off nurses would result in nurse patient ratios on the unit and an enormous safety risk. She did not express any of the concerns she had raised in a prior email about scheduling in emergency situations and only gave costs as a reason for not hiring the plaintiff. The plaintiff then explained that she was only seeking one full-time interpreter. Even so, Johns Hopkins Hospital still claimed undue hardship. After all this, the job offer was rescinded because of the supposed inability to provide an ASL interpreter full-time.

After months of searching for a new job, plaintiff began working as a nurse at University of Rochester Medical Center’s Strong Memorial Hospital, where she continues to work. After strong offered her the job, the plaintiff requested a full-time ASL interpreter. The hospital agreed and sent 2013 she has worked with an ASL interpreter. Her supervisor at the hospital testified that her deafness and use of an interpreter had never negatively affected patient care. For that matter to respond to alarms or her participation in codes have never been negatively affected either. At the hospital, the plaintiff exceeded standards on her performance reviews and has received promotions.

II
Court’s Reasoning

It is a rare situation where, as here, a plaintiff’s motion for summary judgment is granted. Not only that, the court here also granted the plaintiff’s motion to strike experts that were going to testify about what a deaf person could or could not do as a nurse. In reaching these conclusions, the court reasoned as follows:

A
Essential Functions/Reasonable Accommodations

1. In defining reasonable accommodation, Congress expressly included the provision of qualified readers or interpreters as an illustration of what is a reasonable accommodation.

2. Since Congress included interpreter as an illustrative example of what is a reasonable accommodation, employers commonly provide interpreters as a reasonable accommodation, and the plaintiff worked effectively with interpreters on Hallstead 8 and in her current nursing job, the plaintiff’s proposed accommodation was reasonable unless hiring a full-time ASL interpreter would have reallocated essential job functions.

Not sure I follow this. That is, an accommodation is reasonable if it doesn’t constitute an undue financial or logistical hardship. It isn’t a matter of whether an essential function of the job is being reallocated. That said, hiring someone else to do an essential function of the job is not a reasonable accommodation. Perhaps, the defense was defending on that grounds and the court combined a couple of disparate concepts to make this statement.

3. The plaintiff with the assistance of an ASL interpreter would be able to perform a significant portion of the essential job functions of communicating and responding to alarms herself: she would decide the question to ask, she would voice for herself and speaking the patients and other professionals, and she would act in response to alarms. An interpreter, lacking the requisite medical training, would not act independently of the plaintiff to communicate about patient care and respond to alarms.

I also find this curious. In particular, the reference to a significant portion of the essential job functions. The expectation for everyone is that they are able to do the essential functions of the job with or without reasonable accommodations, which presumably means all of the essential functions of the job. “Significant portion,” somehow implies a lesser standard than that. Also, ethically an interpreter would not act independently of the plaintiff regardless of whether he/she had independent medical training. An interpreter is ethically bound to represent exactly what the participants are saying and not to exercise independent medical judgment.

4. Since it is clear that the plaintiff will retain responsibility for a substantial portion of the duties of communicating and responding to alarms if she were provided an ASL interpreter, the question becomes whether her inability to hear affected her ability to communicate and respond to alarms in such a way so that she would be unable to perform the essential functions of the job as defined by the ADA. When it comes to a question of degrees, such a plaintiff failed to perform the essential function of the job only if the failure detrimentally affects the purpose of the employment. Such is not the case here because the plaintiff could perform a substantial portion of the essential job functions of communicating responding to alarms and most importantly, those portions requiring nursing judgment, so that her inability to hear would not affect the purpose of employing her as a nurse. The duties of a nurse with respect to communicating responding to alarms reach beyond hearing what patients are saying and hearing an alarm ringing. The plaintiff would have to use her own medical expertise and training when speaking to patients, families, and other hospital personnel as well and when it comes to providing care based on her changes with those patients and taking the appropriate action in response to an alarm after an interpreter communicated the sound of an alarm visually.

I still don’t get the focus on significant portion. The fact is that as a deaf person she is doing all of the essential functions of the job with the aid of an interpreter. True, the interpreter may be giving her visual cues, but that is not the same thing as the interpreter is doing an essential function of the job, at least not to my mind anyway. That said, I do get the matters of degree language in the opinion, but still do not understand why it necessarily needs to be combined with, “significant portion.”

B
Undue Hardship

1. 42 U.S.C. § 12111(10(B)(iii) specifically says that when it comes to deciding whether something is an undue hardship, things to look at include the overall financial resources of the covered entity; the overall size of the business of the covered entity with respect to the number of its employees; and the number, type, and location of its facilities.

2. The overall budget for Johns Hopkins Hospital, it Department of medicine operational budget, and the unit’s operational budget are all relevant factors.

3. The cost of providing an interpreter would only cost .007% of Johns Hopkins Hospital’s 2012 operational budget of $1.7 billion (assuming that figure was right in the first place).

4. Even if it is correct that the salary of a full-time ASL interpreter would be twice the salary of a nurse, that does not in and of itself establish that an ASL interpreter constitute an undue hardship because the EEOC’s interpretive guidance on it title I ADA regulation says that it is insufficient to simply compare the cost of the accommodation to the salary of the individual with a disability in need of the accommodation.

5. The hospital in Rochester has been able to accommodate deaf nurses. Since that is the case and because Johns Hopkins Hospital is seeking to prevail on an undue hardship defense based on a decision the budget no money for reasonable accommodation while failing to account for $1.7 billion budget, Johns Hopkins Hospital has not met his burden of establishing undue hardship and the plaintiff’s motion for summary judgment with respect to the undue hardship defense is granted.

C
Direct Threat

1. After defining what a direct threat is and noting that an employer has the obligation to determine whether reasonable accommodations eliminate the risk or reduces it to an acceptable level, the court was having none of the defense. Court said that the direct threat defense was based on post-hoc rationalizations and was therefore, suggestive of pretext. The only statement in support of the defense was made contemporaneously with the decision to rescind a job offer of employment. All other contemporaneous evidence indicated that the job offer was rescinded because of the costs of providing a full-time ASL interpreter. Accordingly, Johns Hopkins Hospital did not meet their burden with respect to the direct threat defense.

2. Furthermore, the direct threat defense also fails because the records showed that there was no individualized assessment to figure out whether the plaintiff had the present ability to safely perform the essential functions of her job per School Board of Nassau County v. Arline. Instead, Johns Hopkins Hospital relied on stereotypes and generalizations about deafness.

D
Experts Testimony

1. Johns Hopkins Hospital sought to put testimony in from experts who would testify as to whether the plaintiff could monitor and respond to the multiplicity of alarms on the unit with or without a full-time ASL interpreter. The only catch was that all three experts lacked experience with deaf healthcare professionals or deafness in general. Accordingly, they could not reliably testify about how the plaintiff would’ve worked with an interpreter to monitor respond to alarms, and whether she could safely do so on the unit with an interpreter. Further, since, as noted above, the direct threat defense relied on post hoc rationalizations without an individual assessment, the expert testimony was not relevant. Accordingly, the court granted the plaintiff’s motion to strike the expert testimony.

III

Takeaways

1. It isn’t a surprise to me that this nurse found a job at the University of Rochester Strong hospital. There are actually two extremely well-known deaf oriented schools of higher education in the United States. They come at it from two different philosophies. Of course, Gallaudet University in Washington DC is perhaps the most famous and is very focused on ASL and being culturally deaf, or Deaf as it is known. On the other hand, a component of the Rochester Institute of Technology has been very focused on oral deaf, though no doubt deaf culture (Deaf) must be there in some way as well. Accordingly, the University of Rochester Strong hospital would have ready access to interpreters that could step up and do the job of being an ASL interpreter for a nurse.

2.  I find the “significant portion,” language of the opinion a bit problematic. To my mind, the ADA focuses on whether a person can do all of the essential functions of the job WITH or without reasonable accommodations. True, it may be a matter of degrees in some situations (personally, I happen to like the purpose language in the opinion on this), but that doesn’t mean that the person is not for all practical purposes doing all of the essential functions of the job.

3. When it comes to undue burden, the court is looking to the entire operations of the entity. This goes to show, which I have been saying for years, that an undue financial burden defense is going to be very difficult.

4. True, 40-$60,000 is a substantial amount of money, but think about what the hospital is gaining and what it means for the people it serves. Certainly, the University of Rochester (full disclosure: my father is a University of Rochester undergraduate though his medical degree and training were from elsewhere), saw it that way.

5. With respect to direct threat, be sure to remember to do an individual analysis and not rely on stereotypes and generalizations.

6. Experts must have familiarity with the person that they are talking about. That is, this court is not going to allow a person with no knowledge of the deaf to opine on what the deaf can do. This particular part of the opinion is actually quite liberating because it says that persons without disabilities don’t necessarily know what a person with a disability can do. That is, it takes one to know one. As mentioned elsewhere in this blog, having experts thoroughly familiar with what they are evaluating can be very powerful.

 

7. I once got into an argument with someone who ran a nursing program