Web Accessibility and Universities

In a previous blog entry, which I keep on my greatest hits section of my blog, I discuss what you need to do with respect to auditing your educational institution for ADA compliance. In #14 of that blog entry, I mentioned that whatever services are being offered on the Internet, the institution needs to investigate and ensure that those services and programs are accessible to people with disabilities. In another blog entry, I talked about when a private entity needs to have all of its operations accessible to persons with disabilities per the Rehabilitation Act if they take federal funds. In light of those blog entries, I am struggling to understand the approach taken by the defense team of MIT and Harvard in the MOOC accessibility cases. In identical filings, the Department of Justice in their statement of interest rebuts the claims of both Harvard and MIT. In short:

1. The doctrine of primary jurisdiction is not applicable. Primary jurisdiction is a doctrine that says the court should defer the case until proper rulemaking ensues. In this case, that would be until the Department of Justice promulgates a final title III rule regarding website accessibility standards. The Department of Justice says that doctrine should not apply for several reasons:

A. The title II regulations regarding web accessibility were scheduled for publication in spring of 2015 but is not yet published. The title III regulations applicable to web accessibility are scheduled for publication in the spring of 2016 and then a period of public comment must ensue before the final rules are issued. Finally, the scope and timing of any final rule on web accessibility is speculative and “far from imminent,” and while the title III proposed rule is currently scheduled for spring 2016 publication, there is no scheduled date for publication of the final rule (I might add that one wonders if the presidential election will affect the timing of these regulations or if the regulations will come out at all prior to the election).

B. Since title III rulemaking on the subject is not imminent, dismissing or staying the case on primary jurisdiction grounds significantly prejudices plaintiff with disabilities.

C. The effective communication provisions are something easily within the competency of the court and no specialized agency expertise is necessary to address those claims.

2. From the statement of interest, both Harvard and MIT argue two points. First, websites are not subject to title III’s barrier removal requirements nor are they subject to the Rehabilitation Act. Second, online programming does not need to be captioned because a place of public accommodation does not need to stock accessible or special goods. The Department of Justice is having none of it because:

A. MIT and Harvard, as places of education are places of public accommodations under the ADA and as such are subject to the general nondiscrimination and effective communication requirements.

B. Communication barriers need not be structural since title III facilities are required to provide auxiliary aids and services to persons with disabilities.

C. The accessible goods or inventory approach does not fly because persons with disabilities are not seeking accessible goods or a different inventory, rather they are only seeking access to the same content that the universities make available to the general public.

D. § 504 applies to anyone that is a qualified individual with a disability. Further, the final regulations implementing § 504 of the Rehabilitation Act, in particular 34 C.F.R. § 104.4, require; that a recipient of federal funds ensure qualified individuals are given the opportunity to participate in or benefit from an aid, benefit, or service equal to that afforded others; ensure that equally effective aid, benefits, and services are given so that otherwise qualified persons with disabilities have the opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as persons without disabilities; and prohibits the provision of an aid, benefit, or service that is not as effective as that provided to others.

E. Since MIT and Harvard are offering its online programming to all members of the general public, plaintiffs are qualified/otherwise qualified because they meet the essential eligibility requirements for such services.

F. DOJ guidance makes clear that colleges and universities must ensure that emerging technology when it is required to be used must be implemented in a way that afforded persons with disabilities an equal opportunity to participate in and benefit from the technology.

Takeaways:

1. Interesting that the Department of Justice mentions in its filings the 504 implementing regulations and the Rehabilitation Act, but they don’t mention what was discussed in this blog entry that talks about how a place of education that takes federal funds must have all of its operations accessible to persons with disabilities.

2. The Department of Justice point that accessible goods and a different inventory are not what is involved here, but rather accessibility to what is being offered by the University involved is, seems to me to be fairly compelling.

3. Within the definition of auxiliary aids and services under the ADA, it is pretty clear that it is just not structural barriers that are involved, but all kinds of communication barriers.

4. The effective communication regulation is a final regulation, and therefore the courts have to give it Chevron deference (hard to believe that this regulation would not satisfy the requirements for Chevron deference).

5. If the University is indeed offering a product to all members of the public, then any member of the public with a disability would be an otherwise qualified person with a disability as the only essential eligibility requirement would be being a member of the public.

6. Don’t expect web accessibility rules, particularly title III rules but perhaps title II of rules as well, anytime soon.

In short, I wonder if there is something missing from what I know from this statement of interest filing because I am really struggling with the approach that is being apparently taken by the universities.

We will have to stay tuned for further developments.

Current User of Illegal Drugs Does Not Mean Actual Use When It Comes to a Recovering Addict

I am back to my Monday postings. In my latest article, just published by the ABA GPSolo magazine, I discussed the legal parameters that an employer is faced with when it comes to dealing with an employee addicted to the Internet. This week’s case continues that line of thought, albeit with respect to alcohol and drug addiction.

I
Facts

The case is Quinones v. University of Puerto Rico decided by the United States District Court for the District of Puerto Rico on February 13, 2015 (I realize that citing to a case back in February when my blog entry is at the end of June is a bit against character for me. However, I was waiting for the article to come out due to the synergy of this case and the information discussed in that article before writing a blog entry on it).

In this case, the plaintiff was a licensed physician in Puerto Rico. Prior to her admission and enrollment in the ophthalmology residency program at the University of Puerto Rico School of Medicine, she enrolled herself in an alcohol rehabilitation program in March 2011 to treat her alcoholism. After being released from a rehabilitation facility with a number of prescriptions, she then began to use them in a manner not prescribed by her physician on or about July 2011 (not necessarily a surprise here, because addicts frequently switch from one addiction to the other). That same month she was admitted and enrolled in the residency program. Her addiction to the various drugs caused her to have visual disturbances, speech problems and dizziness thereby making it very problematic to comply with certain requirements of the residency program. She then met several times with the residency program committee to discuss her drug addiction and how it was affecting her performance. On September 10, 2012, she was terminated from the residency program and then promptly filed suit in the Superior Court of Puerto Rico requesting immediate reinstatement to the residency program. Subsequent to that suit, the plaintiff and the University of Puerto Rico reached an agreement with the residency program agreeing to temporary leave without affecting the decision to terminate her and granting her the opportunity to formally request reasonable accommodation through the school’s institutional committee on federal laws. On November 30, 2012, she submitted medical and testimonial evidence of the rehabilitation to that committee. In particular, the evidence she presented showed she had been free from using alcohol since March 5, 2011; she had been free for six months from taking prescription drugs; and she was actively participating in AA and Narcotics Anonymous meetings. Even so, the committee on federal laws rejected her request because in their view: she could not comply with the essential function of the position; she had a high risk of relapse; she would have required constant supervision of a faculty member and providing such supervision would constitute an undue hardship for the residency program. Other important facts include: University of Puerto Rico is a public entity; in her complaint, she was referred to as a “rehabilitated alcoholic,” and as an “active addict;” plaintiff did not file with an administrative agency prior to filing suit; and her complaint brought suit under title II of the ADA as well as under title V for retaliation.

II
Defenses/Issues

1. Failure to exhaust administrative remedies.

2. Plaintiff was not a person with a disability.

3. Plaintiff was not a qualified person with a disability because of the safe harbor regarding alcohol and drug addiction.

4. Plaintiff did not allege sufficient facts to support a retaliation claim.

III

Court’s Reasoning

Issue 1

1. Since title II of the ADA is keyed into the Rehabilitation Act and the Rehabilitation Act does not require exhaustion of administrative remedies, Title II of the ADA also does not require exhaustion of administrative remedies. This is not as simple as it seems because in many respects a resident would seem to be an employee. In fact, much of the decision uses terminology and reads as if it is a decision being made under title I of the ADA. Nevertheless, they are also learning to be physicians and are essentially in a student mode. The court wasn’t buying the claims made by the defendant in the supplemental brief that title I provided the exclusive remedy because title II covers programs and services of a public entity, which includes University of Puerto Rico, and so therefore, it follows that the plaintiff’s claims arise under title II. Readers may also want to check out last Friday’s blog entry of mine as well.

Issue 2

1. The plaintiff met her burden with respect to showing a physical or mental impairment that substantially limits one or more of her major life activities only with respect to drug addiction and not the alcohol addiction. With respect to the alcohol addiction, fatal to her claim was that her complaint referred to her as a, “rehabilitated alcoholic.” Further, she did not allege any instances in which her former consumption of alcohol limited any of her major life activities during her residency training.

2. With respect to the drug use, she was able to show that various physical impairments (visual disturbances, the problem, and dizziness), and major life activities (such as learning, reading, concentrating, thinking, communicating, interacting with others, and working), were substantially limited.

Issue 3

1. The ADA provides at 42 U.S.C. § 12114(a), that an employee is not a qualified individual with a disability if that person is currently engaging in the illegal use of drugs where the covered entity acts on the basis of such use.

2. The problem is what does what “currently engaging,” mean? As my article linked to above discusses in greater detail, courts are all over the place on this. In this particular case, the court cites many of the cases on the issue but glosses over their significant differences. It winds up taking a very broad approach by saying that currently engaging means that the illegal use of drugs is an ongoing problem. Further, a significant period of time must pass for an individual to no longer be considered a current user because the safe harbor does not give statutory protection to an employee illegally using drugs during the weeks and months prior to her discharge even where the employee is participating in a drug rehabilitation program and is drug-free on the day she is fired.

3. The ADA treats drug and alcohol addiction differently because it allows the evaluation of a person’s performance stemming from their drug use and drug-related misconduct. It also allows employers to terminate based upon that conduct without having to go through the reasonable accommodation process.

4. Plaintiff fell within the safe harbor because: 1) she alleged that she had stopped illegal use of prescription drugs only three months prior to being terminated; 2) the University of Puerto Rico only became aware of her addiction after several internal meetings and hearings with the plaintiff as a result of her problem complying with the residency program’s requirements; and 3) being a resident involved being entrusted with a high level of responsibility.

5. The court did note that one case found the person who had refrained from drug and alcohol use for one year was not currently engaged in drug use.

6. With respect to the reinstatement, University of Puerto Rico is not required to reinstate the plaintiff as a resident since the plaintiff was lawfully discharged in the first place. That is, since the plaintiff was lawfully discharged on the basis of her illegal use of drugs, the ADA did not require the University of Puerto Rico to afford her another chance. Further, plaintiff failed to show how being reinstated would’ve allowed her to perform her job function properly without endangering others (on this point, this blog entry might be helpful).

Issue 4

1. To state a valid retaliation claim, the plaintiff has to show: 1) she engaged in protected conduct; 2) she suffered an adverse employment action; and 3) there was a causal connection between the protected conduct and the adverse employment action.

2. Even where a plaintiff fails to succeed on a disability claim, a claim for retaliation may exist.

3. Sufficient facts were pled supporting a retaliation claim because: 1) not only did she file a lawsuit in state court arguing that the defendants discriminated against her on the basis of her alleged disability, but also, she filed a request for reasonable accommodation after she agreed to voluntarily dismiss the lawsuit. Both of which constitute protected conduct under the ADA’s retaliation provisions; 2) since the plaintiff was suspended from the residency program at the time of the denial of reinstatement, it follows that she suffered an adverse employment action when defendants refused to reinstate her and permanently terminated her; and 3) the time between the October 9 agreement and the proximity between her protected conduct and the adverse employment action were sufficient to establish a causal link, at least at this preliminary stage.

IV
Takeaways

1. Words matter. I get why a person would be referred to as an active addict or a rehabilitated alcoholic because that is the terminology that is used. However, such terminology may have an adverse impact if used without understanding the context which the language occurs in. Also, when faced with situations like this, a plaintiff may also want to consider using “the record of,” prong.

2. This case reads like an employment decision under title I of the ADA but is actually a title II case. It is far from clear whether a residency situation places the person in title I or title II since the duties of a resident resemble both an employee and a student in significant ways. On the defense side, you certainly would want to argue that title I of the ADA is the exclusive remedy. True, as we have seen, in a blog entry referred to above, § 504 applies to employment. Even so, on the defense side, it would be worthwhile to knock out the ADA claim and stick with the § 504 claim as it applies to employment because § 504 causation, solely by reason of, can be a very difficult standard for a plaintiff to meet.

3. As discussed in my article, also referenced above, what it means to be currently engaged in the illegal use of drugs entirely depend upon the jurisdiction. True, on a very broad level, as noted by the court in the decision being discussed in this blog entry, there is agreement, but the differences between the jurisdictions are extremely significant on a case-by-case basis. Ultimately, the Supreme Court will have to step in. For now, the practitioner definitely wants to review how his or her jurisdiction deals with currently engaging as the subtleties matter a great deal.

4. If you are a plaintiff dealing with a student that is removed from a program due to alcohol or drug addiction, it may be a very good idea to not consent to any reinstatement system before at least a year has passed rather than agreeing to a shorter time. As the cases make clear, for the safe harbor to apply, it doesn’t matter if the individual is actively using drugs or alcohol.

5. I don’t understand the reasoning of the court with respect to saying that since the plaintiff was lawfully discharged on the basis of her illegal use of drugs, a second chance was not required under the ADA. The ADA does protect addicts who are recovering addicts and therefore, should allow for second chances in those situations. Of course, we are then back to what does it mean for a person to be “currently engaging in drug and alcohol use.” Also, in that situation, the concept of direct threat must be considered as well.

6. Just because a disability-based discrimination claim get knocked out, does not mean that the retaliation claim will be knocked out. Retaliation claims can be very expensive, though whether actual and punitive damages are available is very debatable as discussed in this blog entry.

Does title II/§ 504 Apply to Employment? and Undue Burden May Still Be Possible Even Where Big Bucks Are Involved

Just over a month ago, I blogged on the issue of whether title II of the ADA applies to employment . I followed up in a comment to that blog entry discussing whether § 504 applies to employment. On June 15, 2015, the Fourth Circuit in a published decision weighed in.

In Reyazzudin v. Montgomery County, Maryland, the Fourth Circuit was faced with the question whether title II of the ADA applies to employment. They were also faced with the question of whether § 504 applies to employment. Finally, they were faced with the question of whether it was proper for the District Court to grant summary judgment on the grounds that accommodating the person with a disability would constitute an undue burden. As is my usual practice, the blog entry is divided into categories: facts; court’s reasoning on § 504 applicability to employment; court’s reasoning on whether title II of the ADA applies to employment; court’s reasoning on whether a genuine issue of material fact existed with respect to an undue burden; and takeaways. The reader is free to concentrate on any or all of the categories.

I
Facts

In this case, an employee who is blind worked for Montgomery County, Maryland. The County open the new consolidated CallCenter using software that was inaccessible to blind employees. The County did not transfer her to the CallCenter along with her sighted coworkers and also did not hire her for a vacant position there. Instead, they kept her salary and benefits the same but gave her make work. More particularly, the software used in the CallCenter could be operated in either of two modes: high interactivity and standard interactivity. The high interactivity mode is not accessible because it is written in Microsoft ActiveX, which uses a technology that screen reader software cannot interpret. That said, standard interactivity mode is accessible because it is written in standard HTML and JavaScript, which are compatible with screen reader software. While the county’s license allows it to run software in either mode or with some employees running it in one mode or the other at the same time, the county nevertheless chose to configure the software in high interactivity mode for all employees. Therefore, features of the software involving a toolbar, smart script, and email response that were not accessible to screen readers. The cost of fixing the problem after the purchase depending upon the expert (plaintiff or defense) ranged anywhere from almost $130,000-$648,000. That may seem like a lot of money, and I suppose it is. However, the county’s total budget for fiscal year 2010 was $3.73 billion. The budget for the software was $4 million. By late January 2011, the county had spent $11.4 million on the CallCenter, but the county estimated that the CallCenter utilizing the software had saved at $10.3 million.

II
Court’s Reasoning on § 504 Applicability to Employment

Since § 504 applies to all operations of a governmental entity, that by its terms includes employment. Also, the court specifically references the provisions of the Rehabilitation Act that relate back to title I of the ADA. Interestingly, the decision does not reference the United States Supreme Court opinion mentioned in my comment to my first blog entry on this subject. It also does not address the possible alternative meaning of the reference to title I, which I discussed in III(2) in the blog entry that I posted a month ago.

III
Court’s Reasoning on Whether Title II of the ADA Applies to Employment

The Fourth Circuit, after noting a split in the circuits (which I noted in my prior blog entry), adopts the majority view that it unambiguously does not. They reasoned as followed:

1. Services, programs, or activities in title II of the ADA most naturally refers to outputs provided to the public rather than its inputs, such as employees.

2. Title II of the ADA, unlike § 504 of the Rehabilitation Act, does not contain a special definition for “services, programs, or activity.”

3. The definition of a qualified individual under title II clearly is not referencing employment especially when compared to the definition of qualified under title I of the ADA.

4. Interpreting title II so as to not cover employment gives effect to Congress’s decision to define the term qualified individual differently in the two titles.

5. Each title of the ADA has its own heading: title I for employment; title II for public services; and title III for public accommodations.

6. Reading title II to cover employment diminishes, duplicates, and even render superfluous title I of the ADA.

7. Congress delegated different agencies to enforce each title of the ADA (for example, EEOC for title I and DOJ for titles two and three).

8. Congress expressly cross-referenced title I but not title II when it came to mandating the standards applicable to employment discrimination claims brought under § 504 of the Rehabilitation Act (but see my main blog entry on this).

9. The 11th Circuit decision reached the opposite view through a cursory recitation of part of title II’s text, no analysis of the structure of the ADA, and heavy reliance on legislative history and the Atty. Gen.’s regulations. However, since title II unambiguously does not apply to employment, there is no need to get into legislative history or regulations.

IV
Court’s Reasoning on Whether a Genuine Issue of Material Fact Existed with Respect to an Undue Burden

With respect to whether it was proper for the District Court to grant summary judgment on the issue of undue burden, the court held that a genuine issue of material fact existed and summary judgment was not proper. There are lots of good tidbits here, including:

1. At the summary judgment stage, the employee only has to show that accommodation seems reasonable on its face. Once that is done, the employer then must show special circumstances demonstrating undue hardship.

2. A genuine issue of material fact existed with respect to whether the plaintiff could perform her job with or without reasonable accommodations. She in fact suggested two different options: configure the software to run concurrently in the accessible standard interactivity mode; or create a custom workaround for the toolbar.

3. Plaintiff’s expert worked with call centers in California and Pennsylvania that operated in both high interactivity and standard interactivity mode. She also worked with a third CallCenter in Illinois where all the employees, including one blind employee, operated in standard-interactivity mode. A fourth CallCenter client was accessible through a custom solution.

4. It cannot be said that operating in high-interactivity mode would be an essential job function since other call centers were able to operate without it.

5. The accommodation given to the plaintiff of keeping her salary and benefits the same but giving her make work raise a genuine issue of material fact as to whether she was given a meaningful equal employment opportunity to attain the same level of performance available to employees without disabilities having similar skills and abilities.

6. The District Court’s analysis regarding whether an undue burden existed, and properly waived conflicting evidence, did not view the evidence in the light most favorable to the plaintiff, and overemphasized one factor of whether an undue burden exist while overlooking the others.

7. In this particular situation, two people both qualifying as experts have different views as to the costs of the proposed accommodations thereby setting up a battle of the experts. Further, at the summary judgment stage, it is not the judge’s function to weigh the evidence and determine the truth of the matter but only to determine whether a genuine issue exist for trial. Also, the District Court did not figure in the number of employees of the software company, the people the county paid to manage the system in the amount they paid, or the considerable savings the county realized from creating a centralized Call Center.

8. The District Court made a mistake in crediting County’s arguments about how the proposed accommodation could negatively affect the overall operation of the CallCenter because in a summary judgment motion the evidence should be viewed in light most favorable to the plaintiff as the nonmoving party and not to the moving party. Here, the plaintiff presented evidence of other call centers operating simultaneously in both modes as well as her expert’s opinion that the proposed solution for accessibility would allow her to work at the CallCenter without altering the experience of those with sight.

9. The District Court was misplaced in relying on the county’s budgeting to determine whether the accommodations were reasonable. Such an approach effectively cedes the legal determination to the employer allegedly failing to accommodate the employee with a disability. To hold otherwise, would mean that an employer could budget zero dollars for reasonable accommodations and would always avoid liability on the grounds of undue burden. In this situation, the county’s overall budget was $3.73 billion and the CallCenter’s operating budget was 4 million and those were the relevant factors to consider not the line item budget for reasonable accommodations.

10. Cost of the reasonable accommodation cannot be viewed in isolation since it is the relative cost, along with the other factors that matter. The court noted that other call centers were able to accommodate blind employees.

V
Takeaways

1. I found it interesting that the court said that § 504 applies to employment, but did not cite to the Supreme Court opinion that held as much nor did they explore the possible alternative meaning of the reference to title I of the ADA, which I mentioned above.

2. This is another court that is pushing back on the summary judgment pendulum insisting that lower court judges look for genuine issues of material fact and not act as the trier of fact.

3. You do have a circuit split on whether title II of the ADA applies to employment. That said, the reasoning of the majority of courts saying that it does not presents, to my mind, a compelling set of arguments. It would be interesting to see if the 11th circuit would not overrule its prior decision as it is the only circuit to the contrary. If the question were to go to the Supremes before the 11th circuit overruled its prior decision, assuming it would, it is hard for me to believe that the Supreme Court would not go with the majority opinion on this issue.

4. Just because an accommodation may cost big bucks, does not mean that the employer is off the hook. Further, the undue financial burden defense go to the entire budget and not to a particular line item. That is consistent with the regulations but Justice Ginsburg’s opinion in Olmstead, in a section of the opinion which did not have a majority to it, has some language that is iffy on that point.

5. It is much cheaper to make sure things are accessible before you buy the product think to do it after the product has been bought. Also, go with universal design whenever possible. That is, in this case, everyone could be happy with standard-interactivity mode so why not just set it up that way.

6. If you are going to transfer an employee to another position make sure it is a position that gives the employee and meaningful equal employment opportunity to attain the same level performance available to employees without disabilities having similar skills and abilities and not just a make work job.

7. Whether something constitutes an undue burden, mean considering several factors and be sure to consider all of them. This is an important point because many an opinion tend to just rely on whether it is in the employer’s job description. There are more factors than that involved and they need to be considered.

8. With respect to buying inaccessible software, you might find this article informative as well as this blog entry.

9. One is left wondering why a title I claim was not filed. One could only surmise that it is perhaps due to not filing with the EEOC within the statutory period (180 days or double that if a state agency is an equivalent). True, this case holds that § 504 applies to employment, but even so, the plaintiff is then faced with when it comes to causation showing sole cause rather than by reason of.