Just What Is a Service Establishment Anyway?

Just what is a service establishment under title III of the ADA? A published case from the 10th Circuit that came down on July 12, 2016,  Levorsen v. Octapharma Plasma, Inc., deals with this question. As is usual, the blog entry is divided into categories: facts, 42 U.S.C. § 12181(7)(F); majority reasoning; reasoning of dissent; and takeaways. The reader is free to focus on any or all of the categories.



Plaintiff suffers from various psychiatric disorders, including borderline schizophrenia. For years, he had donated plasma in exchange for money in an effort to supplement his limited income. In May 2013, he attempted to do that at a Salt Lake City branch of Octapharma Plasma, Inc. (hereafter, defendant). The defendant operates in multiple places. At these places, the defendant collects donors’ plasma using a process called plasmapheresis. During that process, it draws and mechanically processes the donor’s blood, separating and reserving the plasma before returning the red blood cells to the donor. It pays it donors for this plasma, then sells it to pharmaceutical companies. When an employee of the defendant learned that the plaintiff suffers from borderline schizophrenia, the employee became concerned that he might have a schizophrenic episode while donating and dislodge the collecting needle, possibly injuring himself or someone else. The employee then advised the plaintiff that he was ineligible to donate plasma. Even though the plaintiff provided the defendant with a signed form from his psychiatrist, who both indicated that he was medically suitable to donate plasma twice a week, the defendant maintained its refusal to allow him to donate. He then brought suit under title III of the ADA. The defendant defended on the grounds that it was not a service establishment under 42 U.S.C. 12181(7)(F), and therefore, it was not subject to coverage under the ADA.


42 U.S.C. § 12181(7)(F)

42 U.S.C. § 12181(7)(F) states that one of the places of public accommodations includes:

“a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment.” (Emphasis mine).


Majority Reasoning (Moritz, Briscoe)

In reversing and remanding the decision of the District Court, which held that the defendant was not operating a service establishment, the majority, in an opinion by Judge Moritz, reasoned as follows:

  1. The court cited to the definition of a service establishment noted in II above;
  2. The examples listed for service establishment are not exclusive but instead are illustrative;
  3. Courts must construe the section liberally to afford individuals with disabilities access to the same establishments available to those without disabilities;
  4. Turning to Webster’s third new international dictionary, the court said that the dictionary defines a service as “conduct or performance that assists or benefits someone or something,” or “useful labor that does not produce a tangible commodity.” Therefore, a service establishment is a place or business of a public or private institution that, by its conduct or performance, is assisting or benefiting someone or something or providing useful labor without producing a tangible good for a customer or client. In other words, a service establishment is an establishment that provides a service;
  5. Giving the term “service establishment,” its ordinary meaning does not result in an ambiguity nor does it result in an irrational one. Rather, it results in a broad definition entirely consistent with the aim of title III to afford individuals with disabilities access to the same establishments available to those without disabilities;
  6. Even if giving the term “service establishment,” its ordinary meaning resulted in the definition that was ambiguous or irrational, employing the canons of statutory interpretation, ejusdem generis and noscitur a sociis (which would lead to the conclusion that only places providing compensation to customers should be considered a service establishment), doesn’t help anything because another rule of statutory interpretation argues against reading a direction of compensation requirement into the statute when it doesn’t appear. To decide otherwise, only serves to manufacture ambiguity when none exists;
  7. Even assuming ambiguity does exist, legislative history supports the decision to refrain from concluding that an entity is a service establishment only if it is similar to the enumerated examples in the section. More specifically, a House Report explained that a person alleging discrimination does not have to prove that the entity being charged with discrimination is similar to the examples listed in the definition, but only has to show that the entity falls within the overall category. Further, Congress changed the language in this section from “other similar service establishment,” to “other service establishment,” presumably to make clear that a particular business need not be similar to the examples in order to constitute a service establishment (a presumption consistent with legislative history);
  8. The defendant is a place of business that assists or benefits those who wish to provide plasma for medical use, whether it be for altruistic reasons or pecuniary gain, by supplying the trained personnel and medical equipment necessary to accomplish that goal. While the defendant may ultimately produce a tangible good for pharmaceutical companies in the form of plasma, it doesn’t produce a tangible good for individuals like the plaintiff seeking the use of plasma procurement services. Rather, the defendant simply assists those individuals in accomplishing their goal of providing plasma;
  9. The argument that finding the defendant is running a service establishment contradicts regulations from the FDA doesn’t wash because this decision is not a decision on the merits, but rather one holding that it is subject to title III of the ADA in the first place.


Reasoning of the Dissent (Holmes)

  1. The District Court correctly ruled that service establishments offer certain services in exchange for monetary compensation i.e. a fee;
  2. Every establishment listed in the section shares certain unifying traits by: 1) offering the public a service in the form of: a) expertise (eg. barbers, beautician, shoe repair craftsman, drycleaner, funeral parlors, lawyer, accountant, insurance offices, pharmacists, healthcare providers, and hospitals); or b) specialized equipment (eg. laundromats and gas station); 2) for use in achieving some desired end in exchange for monetary compensation;
  3. Plasma donation center do not receive a fee from members of the public in exchange for any services they provide;
  4. To the extent that plasma donation centers provide services to the public, they do not do so for the public’s use in achieving the desired end. Rather, they provide them for the plasma centers use in achieving a desired end-collecting plasma for sale to pharmaceutical companies. Therefore, plasma donation centers are fundamentally unlike service establishments listed in the section and should not be deemed to fall within the scope of that section;
  5. Since the statute is clear, legislative intent should not be looked at;
  6. The meaning of statutory language depends upon context and using the applicable canons of statutory construction (see below). Therefore, it doesn’t make sense to break out the terms “service,” and “establishment,” in the way the majority did in order to come up with a definition of the term, “service establishment;”
  7. It was proper to apply to statutory canons of construction, as the lower court did, to reach the proper result. The first, ejusdem generis, means that when a general term follows a specific one, the general should be understood as a reference to subjects akin to the one with specific enumeration. The second, noscitur a sociis, means that a word is known by the company it keeps;
  8. Canons of statutory construction are aids in construing statutory language itself and not a tool to be relied upon only in the face of ambiguity;
  9. Saying that there is no need to resort to legislative history if the literal language of the statute controls, is not the same thing as giving a court the right to ignore canons of statutory construction;
  10. The fact that legislation has a remedial purpose does not give the judiciary license in interpreting a provision to disregard entirely the plain meaning of the word used by Congress;
  11. The Department of Justice has made it clear that the statutorily enumerated examples are representative and illustrative of what constitutes a service establishment i.e. the examples possess qualities common to all service establishments;
  12. From looking at the categories in the section, it is more appropriate and natural to think of service establishments as providing a service rather than a good even though the delivery of the goods may be incidental to the furnishing of the service. Accordingly, service establishments under this section offer services to the public in exchange for a fee, i.e. monetary compensation;
  13. Every establishment listed in the section provides the public a service in the form of expertise or specialized equipment. Further, the list of services are intended for the public’s use in achieving a desired end, such as a haircut, clean clothes, legal advice etc.;
  14. Using the principles of statutory construction, the term “service establishment,” is a statutory term with a distinct meaning from the dictionary definitions of its component words;
  15. Utilizing the statutory canons of constructions leads to the conclusion that for a place of public accommodation to be a service establishment, the entity must offer the public a service in the form of expertise or specialized equipment for use in achieving some desired end of the public in exchange for compensation. The plasma centers do not meet this definition because they do not receive a fee from members of the public in exchange for any services that they furnish. Instead, they give members of the public a fee for tendering to them the commodity in the form of plasma or for performing a service of donating plasma;
  16. Unlike the service establishments found in the section, the defendant did not receive money from the plaintiff in exchange for services, but rather it paid the plaintiff instead;
  17. Plasma centers do not provide services for the public’s use in achieving the desired end, rather they provide them for the plasma centers use in achieving the desired end. Every service establishment listed in the section offers members of the public a service for use in achieving an end desired by them and not an end desired by the service establishment;
  18. The statute contemplates the service establishment provide the service to the public in exchange for a fee that it receives, but it does not contemplate that a member of the public will receive from the service establishment both the service and the fee. That is, under this section, the fee cannot be the desired end the public is seeking to achieve from the plasma donation center because the statute contemplates that the service establishment receive the fee in exchange for providing the desired end;
  19. Plasma donation centers resemble manufacturers much more than they do the kind of entities customarily providing services to the public under this section. That is, they manufacture a product, plasma. That product is derived from a raw commodity, whole blood, given by donors in exchange for a fee. Thus, plasma donation centers are more like paper mills, a manufacturer, than the other typical business providing services to the public under this section. Further, federal statutes clearly regard plasma donation centers as manufacturers as does the Food and Drug Administration. So, plasma centers may be manufacturers, but they are not service establishments.



  1. This case is the first of its kind at the Circuit Court level. Both opinions have their strengths and weaknesses, and as a result, I would certainly expect the Circuits to eventually split on this question. Will the Supreme Court take the case before a split in the Circuits presents itself? They don’t usually do that, but it does happen on occasion. Which way would the Supreme Court go? If Justice Scalia was on the Court, there is little doubt in my mind that the dissenting view would prevail. However, he is no longer on the Court, and we have an election coming up. So, it is impossible to predict which way this case will ultimately go. Considering the dissent and how it is written, one wonders whether four Justices would even agree to hear the case as I could see this case being an even split. That is, a reasoning based on canons of statutory construction will, in my opinion, have a great deal of appeal to many Justices on the Supreme Court. That said, perhaps four would agree to hear the case and gamble on what the next Justice would do. Such a gamble would be a huge one because a case turning on interpretation of a statute with statutory canons of construction/legislative history being the critical factors does not fit neatly into a liberal-conservative dynamic.
  2. Since canons of statutory construction have a great deal of appeal to jurists, one wonders if the 10th circuit will not grant a rehearing en banc, assuming one is sought.
  3. How this case ultimately resolves itself depends upon whether legislative history combined with the statutory construction that you don’t read words into a statute that are not there prevails or whether the two canons of statutory construction that are the underpinning of the dissent prevails. It could go either way.
  4. If the case goes forward, direct threat will be a factor. However, the Department of Justice regulations for title II and title III (28 C.F.R. § § 35.139, 208 respectively), unlike the EEOC regulations, do not include threat to self as one of the possibilities.
  5. The manufacturing part of the dissenting opinion leads one to wonder if the dissent isn’t essentially claiming that the plasma centers are a commercial facility per 42 U.S.C. § 12181(2) . Commercial facilities are subject to new construction and alteration requirements but they are not subject to the auxiliary aids and nondiscrimination provisions (see here at discussion of 28 C.F.R. § 36.104).
  6.  Interestingly enough, under either the majority or dissenting opinion, software as a service, which I discuss here, would be a service establishment.

Addiction/Perceived Addiction in the Workplace; the View from the Sixth Circuit

Today’s case is a case out of the Sixth Circuit, Ferrari v. Ford Motor Company, decided June 23, 2016. It deals with the issue of what happens when an employer perceives an opioid addiction. As is typical, my blog entry is divided into categories: facts; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.



Ford Motor Company hired Ferrari in 1996, and he initially worked in assembly. He is still employed by Ford. In 2000, he suffered a neck injury at work, placing him on medical leave from June 2001 to April 2003. After Ferrari returned from medical leave, Ford accommodated his restrictions for the next nine years by placing him in various light work positions with the last of those placements being in the human resources office. On November 21, 2012, while Ferrari was still on medical leave, his pain management doctor agreed to remove his work restrictions. Until that point, Ferrari’s restrictions had been classified as permanent. In December, he returned from FMLA leave and testified that he was feeling better and wanted to get back to work. Ferrari was also hopeful that he would soon be able to leave the human resources office as his pain management doctor had removed his restrictions and he had heard a rumor that he might be called to apprentice in the trades. On December 3 of 2012, one of Ford’s company doctors conducted a physical to determine whether Ferrari could return from medical leave. She cleared Ferrari to return from psychiatric medical leave. Ferrari also asked her to lift the restriction tied to his neck injury. According to her notes, Ferrari told her that he requested the restrictions be lifted by his pain management doctor when an opportunity arose for him to go into the skilled trades. She decided to maintain his restrictions pending further testing and review. In her notes, she expressed the need to ascertain why the restrictions were suddenly removed, especially since the pain management doctor most recent progress notes found that he was disabled and had an ongoing need for narcotic medications. With regards to her concern about opioids, her notes indicated that on December 21, 2005, another doctor had found that Ferrari was addicted to narcotics and determined that he could not return to his employment at Ford while he was on the narcotics. Ferrari testified that on December 17, 2012, a union representative advised him about an opening in the skilled trade apprenticeships and refrigeration management at the plant. The collective bargaining agreement provided that any apprenticeship goes to the person highest on the waitlist so long as he or she is deemed qualified. His position on the waitlist guaranteed him one of the two apprenticeships if he passed a pre-apprenticeship physical. Ferrari’s pre-apprenticeship physical was scheduled for January 16 of 2013 with Dr. Brewer. In advance of their physical, the plaintiff obtained clearances from two other doctors as well as a clearance from a functional capacity evaluator. While all of them concluded that his neck injury no longer required physical restrictions, none of them addressed his opioid use. One of his doctors entry indicated that he was still actively using opioids, but did not address whether the opioids would affect his performance on the job. The physical went ahead as scheduled on January 16. In her notes, Dr. Brewer observed that his pain management doctor had not responded to her inquiry as to what changed to warrant dropping all restrictions after nine years, and she also noted that his medical records indicated he was still using opioids. On February 7, 2013, Dr. Brewer sent a letter to his pain management doctor in which she provided the job description of the apprenticeship and inquired about whether plaintiff could safely execute the tasks required while taking opioids. According to the job description, an employee must climb 30-50 foot ladders and open and close large overhead valves. They must also work at heights on overhead catwalks and mobile elevated work platforms. In the pain management doctor’s reply, he said that his patient was not addicted to opioids, but it would take 3 to 4 months to wean him off the opioids and that the opioids did not affect his physical performance, mental clarity, or cognitive functioning. His pain management doctor concluded that plaintiff was safely able to perform all functions listed in the job description. Dr. Brewer also scheduled an independent medical examination with another doctor, which both parties acknowledged as binding. The report of that doctor acknowledged that the plaintiff claimed to have been off opioids for three months, but that his claim was not substantiated by his medical records because as of January 7, 2013 he had reported that he was still on opioids. Accordingly, the independent doctor concluded that if he was still on opioids as the medical records indicated, he would not allow Ferrari to resume unrestricted employment because the use of opioids may affect his performance. In light of all this, Dr. Brewer removed two of Ferrari’s four restrictions. However, she maintained the ladder climbing and overhead work restrictions until he was taken off the prescribed opioids which, according to his pain management doctor, would take approximately 3-4 months. She also noted that the plaintiff would be re-assessed in 3-4 months to monitor the progress of weaning him off the opioids and if the process was successful and documented, the remaining restrictions would be removed.

The apprenticeship supervisor reviewed plaintiff’s two restriction to determine whether he could participate in the program. He concluded that the restriction precluded him from participating in the program because having the ability to work overhead and climb ladders on a daily basis were essential to performing the job. While it was possible that he could theoretically and occasionally stay on the ground while a supervising journeyman climbed the ladder, the apprenticeship supervisor said that the climbing of the ladder was essential to learning the task to be performed at the top of the ladder – whether it be checking fluid levels, bending fluids, mixing chemicals, monitoring or repairing HVAC equipment, opening or closing a multitude of valves, sometimes on an emergency basis to prevent an explosion, or the like. The supervisor for the apprenticeship supervisor also signed off on the decision. After the decision was made that he could not participate in the apprenticeship program, he was placed on temporary bypass and another candidate filled the opening. He was then placed in a machining associate position that met his restrictions. In September 2013, Ferrari notified the joint apprenticeship committee that his restrictions had expired and that he was first on the waitlist for an apprenticeship. He brought suit under the ADA, the Michigan disability discrimination law, and the Family and Medical Leave Act.



Court’s Reasoning

In affirming the grant of summary judgment for the employer on the ADA claims, the court reasoned as follows:

  1. To recover on a claim for discrimination under the ADA a plaintiff must show: 1) he is a person with a disability; 2) he is otherwise qualified; and 3) he suffered an adverse employment action because of his or her disability.
  2. Proving up a claim can be done either by direct evidence or indirect evidence.
  3. With respect to direct evidence, the court said that the plaintiff bears the burden of establishing that he or she is a person with a disability and otherwise qualified for the position despite his or her disability: 1) without accommodation from the employer; 2) with an alleged essential job requirements eliminated; or 3) with the proposed reasonable accommodation. Once the plaintiff has established these elements, the employer bears the burden of proving that a challenged job criterion is essential or that a proposed accommodation will impose an undue hardship upon the employer.

I must confess that this statement of direct evidence has me befuddled because an employer is not required to eliminate an essential job requirement.

  1. With respect to the indirect method, establishing a claim for disability discrimination involves a plaintiff showing: 1) he is a person with a disability; 2) he is otherwise qualified for the position; 3) he suffered an adverse employment decision; 4) the employer knew or had reason to know of the plaintiff’s disability; and 5) the position remained open while the employer sought other applicants or the person with a disability was replaced. Once the plaintiff establishes those elements, the burden then shifts to the defendant to offer legitimate explanation for its actions. If the defendant does so, the burden then shifts back to the plaintiff, who must introduce evidence showing that the offered explanation is pretextual.

Interesting use of the term, “otherwise qualified.” “Otherwise qualified,” is a term you see in the Rehabilitation Act and no longer in the ADA as a result of the amendments to the ADA. Even so, as a substantive matter, there is no difference between the term “qualified,” and the term “otherwise qualified,” with respect to their meaning.

  1. When an employer acknowledges that it relied upon a person’s disability in making its employment decision, the burden shifting approach is unnecessary because the issue of the employer’s intent has been admitted by the defendant and the plaintiff has direct evidence of discrimination on the basis of his or her disability.
  2. Relying on two cases dealing with regarded as that were decided prior to the amendments to the ADA, the court said that Ferrari did not specify which major life activity he believed was limited by his opioid use, and that it would seem that he was arguing that Ford mistakenly believed his opioid use substantially limited him in the major life activity of working. Since he was not prohibited from performing a broad class of jobs, he was not substantially limited in the major life activity of working and therefore, the direct evidence approach was not going to work for Ferrari.

With respect to paragraph § II6, I don’t get it. That is, the amendments to the ADA completely changed the analysis with respect to regarded as claims. Thanks to the amendments, all a person has to show is that the employer regarded him or her as having a physical or mental impairment. It is no longer necessary as it was under Sutton v. United Airlines to show that the employer also regarded him or her as being substantially limited in a major life activity. Further, the adverse actions occurred after the amendments went into effect.

I was so taken aback by this particular reasoning, that I investigated where this might have come from. Could it have been something raised in the lower court or in the appellate arguments? When I checked the lower court opinion, the lower court said that a regarded as claim was out because the disability was transitory. That is, he was weaning off the opioid addiction within 3 to 4 months, which is less than the six months under the ADA. Interestingly enough, the lower court did not address whether the disability that was being regarded was both transitory AND minor; it has to be both for that exception to apply per 29 C.F.R. 1630.15(f).

I then listened to the oral argument to figure out whether this particular reasoning came from the oral argument. It did not come from there either. At the oral argument, the plaintiff argued that: issues of fact were present so that summary judgment was not proper; no direct threat analysis was done; and the neck injury argument was a pretext. The defense argued that: the the job was inherently risky and was in the most dangerous part of the plant; he was still employed and was at the top of the list for any openings; opioid use and not the neck injury was the key and the complaint was structured in a way that focused on the opioid use; mixed motive did not apply and the but for standard was the applicable causation rule; even if mixed motive applied, there was no pretext; and Ferrari constituted a direct threat. On rebuttal, Ferrari’s attorney argued that: the direct threat factors were never addressed; pretext existed; and Ferrari asked for a drug test but was denied.

So, I am not sure where the reasoning described in 6 of this section came from. It does not seem to square with the explicit terms of the ADA as amended.

  1. With respect to the indirect method, Ferrari’s restrictions and the medical condition underlying them were a legitimate, nondiscriminatory explanation for Ford’s adverse employment decision.
  2. Under the law in the Sixth Circuit, pretext can be shown in any of three different ways: 1) the offered reasons had no basis in fact; 2) the offered reason did not actually motivate the employer’s action; or 3) the offered reasons were insufficient to motivate the employer’s action.
  3. In the Sixth Circuit, there exists an honest belief rule with regards to pretext, which says that so long as the employer honestly believes the reason it gave for the employment action, an employee is not able to establish pretext even if the employer’s reason is ultimately found to be mistaken. Proving that the nondiscriminatory basis for the employment action is honestly held, means that the employer has to be able to establish reasonable reliance on the particular ice facts that were before it at the time the decision was made. Once the employer shows that it made a reasonably informed and considered decision before taking the adverse action, the employee has the opportunity to produce proof to the contrary.
  4. The plaintiff failed to present evidence creating a dispute of material fact as to whether the decision-makers honestly believe that his restrictions reflected a reasonable medical judgment. Ford Motor’s position evaluation of his opioid use was thorough. She conducted two examinations of him, reviewed his medical history, obtained his most up-to-date medical records, ordered new tests, ordered an independent medical exam to resolve discrepancies in his medical records, and revises restrictions based on this new information.




  1. I do not know if this case will be appealed, but with respect to the direct evidence part of the decision, particularly with respect to § II6 of this blog entry, it would seem that the grounds for appeal are there as regarded as under the amendments to the ADA works in quite a different way than what was described in this opinion. That is, the way one would expect it to work in light of the amendments would be as followed: 1) plaintiff has or is regarded as having a disability within the meaning of the ADA; 2) plaintiff is qualified/otherwise qualified; and 3) plaintiff suffered an adverse employment action on the basis of [her] disability or perceived disability. See Brown v. Northrop Grumman Corporation, 2014 U.S. Dist. LEXIS 116188 (E.D. NY August 19, 2014). So, under these facts, plaintiff could clearly show that he was regarded as having a physical or mental impairment (opioid use), and so we get to the second part of the case. On the matter of being qualified/otherwise qualified, the plaintiff is going to have a harder time because when it comes to regarded as, under the amendments to the ADA, a person is not entitled to reasonable accommodations (a point that for some reason did not come up in the opinion). Also, with respect to otherwise qualified, the direct threat defense may come up as well. That is, the plaintiff may have a hard time showing that the employer did not reasonably find a direct threat existed, though at appellate argument, the plaintiff argued that Ford did not walk through the direct threat factors as it would apply to Ferrari (question of fact perhaps with respect to direct threat?). Finally, it should not be a problem for the plaintiff showing an adverse employment action on the basis of disability.
  2. In short, it is absolutely possible that on appeal the plaintiff still loses despite the court correcting II6. Even so, the disparity between the court’s reasoning and what the ADA as amended actually says is disconcerting.
  3. The current user exception regarding drug use does not apply as illegal drugs are not involved here.
  4. With respect to regarded as, if the employer says on appeal that the exception applies, can it show the perceived disability was transitory and minor?
  5. The plaintiff here is currently an employee with Ford. I am seeing more and more cases where a current employee is suing his or her employee for disability discrimination. On the employment side, keeping an employee on, despite how uncomfortable it might be, might actually help with respect to prevailing in a lawsuit.












ADA and ADA Related Cases at the Supreme Court: Where They Have Been and What Is Next

Did you know that persons with disabilities are undefeated at the Supreme Court when it comes to title II and title III matters? It’s true.

Let us explore the ADA and ADA related cases that have been before the United States Supreme Court since the ADA went into effect. If I have this figured right, three cases are a split decision; five cases are wins for persons with disabilities when it comes to title I matters; seven cases are losers for persons with disabilities when it comes to title I matters; five cases are winners for persons with disabilities in title II matters with no losses; three cases are winners for persons with disabilities in title III matters with no losses; and two cases involving remedies are losers for persons with disabilities with a third being a split decision. Before we break it down, let me explain the categories for this blog entry and they are: employment cases; title II; title III; split decisions; remedies; why this exercise (a discussion of the two disability rights cases the Supreme Court just agreed to hear); and conclusions. As is usual, the reader is free to focus on any or all of the categories. Now, to break it down:


Employment Cases

  1. Cleveland v. Policy Management Systems Corporation, 526 U.S. 795. A win for persons with disabilities with the court holding that an SSDI filing does not automatically prevent a person from filing an ADA claim later.
  2. S. Airways, Inc. v. Barnett, 535 U.S. 391. A loss for persons with disabilities with the court holding that a person with a disability did not have the right to bump a more senior person when a seniority system was present.
  3. Raytheon v. Hernandez, 540 U.S. 44. A loss for persons with disabilities with the court holding that a facially neutral policy applied in a uniform way can be used to escape ADA liability.
  4. Wright v. Universal Marine Service Corporation, 525 U.S. 70. A win for persons with disabilities with the court holding that there was no presumption of arbitrability with respect to ADA claims, and where an arbitration clause said that ADA claims would be subject to the clause, such a clause must be clear and unmistakable.
  5. Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356. A loss for persons with disabilities with the court holding that persons with disabilities when it comes to employment are in the rational basis class and therefore, sovereign immunity applied to title I suits against state entities.
  6. Toyota Motor Manufacturing, Kentucky v. Williams, 534 U.S. 184. A loss for persons with disabilities with the court holding that a person was substantially limited in the major life activity of performing manual tasks if they were severely restricted or prevented from performing that major life activity. It also held that a major life activity was one of central importance to daily lives. Keep in mind, this decision was overruled by the amendments to the ADA.
  7. Albertson’s v. Kirkingburg, 527 U.S. 555. A loss for persons with disabilities. One of the three Sutton trilogy cases holding that mitigating measures must be factored into the calculus of whether a person has a disability. Keep in mind, this decision was overruled by the amendment to the ADA or not… (but see this blog entry).
  8. Sutton v. United Airlines, 527 U.S. 471. See paragraph 7 immediately above.
  9. EEOC v. Waffle House, 534 U.S. 279. A win for persons with disabilities saying that the EEOC had an independent right to bring a claim regardless of whether the plaintiff has signed an agreement to arbitrate.
  10. Murphy v. UPS, 527 U.S. 516. See paragraph 7 of this section.
  11. Clackamas Gastroenterology Associates PC v. Wells 538 U.S. 440. A win for persons with disabilities with the court holding that it depends upon the facts as to whether someone who may be a partner or owner of the business in name is actually an employee for purposes of the ADA.
  12. EEOC v. Abercrombie and Fitch 135 S. Ct. 2028. Not an ADA case at all but containing language favorable to persons with disabilities (see this blog entry).


Title II

  1. Tennessee v. Lane, 541 U.S. 509. A win of sorts for persons with disability with the court holding that sovereign immunity can be forcibly waived with respect to non-employment suits against state entities depending upon the facts of the case.
  2. Olmstead v. L.C. by Zimring, 527 U.S. 581. A huge win for persons with disabilities with the court holding that persons with disabilities have a right to be served within the community.
  3. S. v. Georgia, 546 U.S. 151. A win for persons with disabilities holding that a showing of constitutional violations waives sovereign immunity.
  4. Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206. A win for persons with disabilities with the court holding that the ADA applies to prisons.
  5. City and County of San Francisco v. Sheehan, 135 S. Ct. 1765. A win for persons with disabilities as it acknowledges that title II of the ADA applies to everything that a public entity does. It also remanded the case for ADA proceedings.


Title III

  1. Bragdon v. Abbott, 524 U.S. 624. A win for persons with disabilities holding that HIV positivity is a disability under the ADA and that a dentist had to serve such an individual absent a direct threat.
  2. PGA Tour v. Martin, 532 U.S. 661. A big win for persons with disabilities holding that the ADA applies to professional sports and containing lots of favorable language for persons with disabilities.
  3. Spector v. Norwegian Cruise Lines, 545 U.S. 119. A win for persons with disabilities with the court holding that foreign flag cruise ships were subject to the ADA within certain limits.


Split Decisions

  1. Chevron v. Echazabal, 536 U.S. 73. A split decision because the court found in favor of the EEOC but against the person with a disability when it held that a direct threat defense applies to the self as well as to others.
  2. Barnes v. Gorman, 536 U.S. 181. A split decision with the court finding that compensatory damages against state entities are available under title II of the ADA and the Rehabilitation Act but not punitives.
  3. University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517. A split decision with the court holding that retaliation requires but for causation but containing very favorable language with respect to causation in non-retaliation ADA claims.



  1. CRST Van Expedited v. EEOC. A non-ADA case, but a loss for persons with disabilities with the court expanding the possibilities for a defendant to get attorneys fees.
  2. Buckhannon Board and Care Home v. West Virginia Department of Health and Human Resources, 532 U.S. 598. A loss for persons with disabilities with the court holding that prevailing party means a judgment on the merits or a consent decree and rejecting the catalyst theory.


Why This Exercise?

  1. Supremes agreed to hear two cases last week involving disability rights.
  2. The first case the Supreme Court decided to hear is the case of Fry v. Napoleon Community Schools, 788 F.3d 622 (6th 2015). In that case, the Sixth Circuit held that the IDEA exhaustion requirement had to be construed very broadly so as to preclude the plaintiffs from pursuing an ADA/Rehabilitation Act claim before IDEA exhaustion was completed. There was a vigorous dissent in that case. I have previously discussed this issue in this blog entry and in this blog entry. Whether this case is viewed as a win or a lose for persons with disabilities depending upon its decision, entirely depends upon what your view of IDEA is v. § 504/ADA. The two laws have very different philosophies and very different approaches to resolving differences.
  3. The second case is Ivy v. Williams, 781 F.3d 250 (5th 2015). This is an interesting case. I am not aware of a Circuit court split on this one.
    1. Facts in Ivy: In this case, in Texas, individuals under the age of 25 cannot obtain driver’s licenses unless they submit a driver education certificate to the Department of Public Safety. Driver education certificates are only available from private driver education schools licensed by the Texas Education Agency. The plaintiffs, all deaf, contacted a variety of Texas Education Agency licensed private driver education schools, all of which informed the named plaintiffs that the schools would not accommodate them. As a result, the plaintiffs cannot obtain driver education certificates and therefore, cannot obtain driver licenses. A deafness resource specialist with the Texas Department of Assistive and Rehabilitative Services informed the Texas Education Agency of the inability of the deaf individuals to receive driver education certificates. However the Texas Education Agency declined to intervene, stating that it would not required to enforce the ADA and that it would not act against the private driver education schools unless the United States Department of Justice found that the schools had violated the ADA. The deafness resource specialist filed a complaint against the Texas Education Agency with the Department of Justice, which the Department of Justice apparently dismissed. The plaintiff then filed a lawsuit in federal district court against the Texas Education Agency and a private driver education school requesting injunctive and declaratory relief against both parties under title II of the ADA and the Rehabilitation Act. Interestingly enough, the driver education schools themselves were not sued for violating title III of the ADA. All of the judges on the panel agreed that the plaintiffs had standing, but disagreed on the merits.
    2. Majority Reasoning:
      1. Driver education is not a service, program, or activity of the Texas Education Agency because: 1) the Texas Education Agency does not teach driver education, contract with driver education schools, or issue driver education certificate to individual students. Rather, it licenses and regulates private driver education schools, which in turn teach driver education and issue the certificates. So, the Texas Education Agency’s program provide the licensure and regulation of driver education schools and not the driver education itself;
      2. With respect to the argument that a public entity cannot discriminate directly or through contractual, licensing, or other arrangements, any failure of the driver education schools to comply with the ADA or Rehabilitation Act cannot be said to be the result of requirements or policies established by the Texas Education Agency. Instead, the claim is that most that the Texas Education Agency’s failure to establish requirements or policies as allow private driver education school to be inaccessible. Accordingly, the Texas Education Agency is not accountable for the driver education schools inaccessibility because the Texas Education Agency’s requirements and policies have not caused the discrimination;
      3. In the absence of a contractual or agency relationship, courts have routinely held that a public entity is not liable for licensed private actor’s behavior. Further, the the DOJ’s interpretive guidance also supports the need for a contractual or agency relationship prior to holding a public entity responsible for a private entity’s conduct;
      4. Just because the driver education schools are heavily regulated and supervised by the Texas Education Agency does not make the schools a service, program, or activity of the Texas Education Agency. Otherwise, states and localities would be required to ensure the ADA compliance of every heavily-regulated industry.
      5. Reasoning of Concurring and Dissenting Opinion
        1. Title II regulations explicitly forbid public entities from engaging in discrimination through contractual, licensing, or other arrangements;
        2. Not only does 28 C.F.R. § 35.130(b)(1) specifically include licensing, but the catchall phrase “other arrangement,” goes against the majority’s narrow construction that only contractual or agency relationship qualify as programs in that licensing does not. It should be a matter of substance of each particular public/private relationship and not a matter of undefined labels;
        3. The majority misreads the Department of Justice enforcement guidance because the guidance only make the general point that, “many situations, however, public entities have a close relationship to private entities that are covered by title III, with the result that certain activities may at least be indirectly affected by both titles.” That is simply not the same thing as saying a close relationship requires a contractual or agency relationship;
        4. The way that the state interfaces driver training and the receipt of state benefits indicate an intimate participation at all levels of the private driving school industry that is more than merely regulatory. Through the Texas Education Agency, the state employs and manages the industry to achieve its own public ends. Just because the state’s active involvement in this industry is labeled licensing, does not diminish, much less block, qualifying this as a program of the state for the purposes of the ADA;
        5. The powers granted to the Texas Education Agency in chapter 1001 of the Texas code further support the view that private driving instruction is just one component of an overall state program since it is clear that the Texas Education Agency exerts more rigorous oversight of providers of driver education than would be expected than most run-of-the-mill licensing regimes. Examples include: 1) every driving school’s curriculum must be approved by the Texas Education Agency, and the agency designates the textbook that may be used; 2) the Texas Education Agency’s enforcement powers over driver education schools are broad and varied and suggest a greater degree of involvement in the driving schools’ operation than a typical of a plain-vanilla licensing arrangement; 3) the Texas Education Agency requires that driving school owners and staff be of good reputation and character and therefore, signals a heightened level of concern for the reliability of the school services, which is consistent with the Texas Education Agency as the public provider of social services programs: 4) the driver education schools must post a significant bond payable to the Texas Education Agency for direct use in paying refund to students and that also suggests a more intimate level of agency involvement in licensing activity than would be expected if it were purely a hands-off licensing entity; and 5) the Texas Education Agency has the right to inspect every school physically at least once a year as a condition of license renewal and more frequently if the school has a history of regulatory violations;
        6. The Texas Education Agency also employs driver training to teach civic responsibility, including lessons having nothing to do with the mechanics of driving. Those lessons include litter prevention and organ donation for example;
        7. Driver education forms part of the academic curriculum in some public schools;
        8. 28 C.F.R. § 35.130(b)(1)(v) contemplates precisely the situation here where a public entity discriminates indirectly by furnishing significant assistance to a private entity that is discriminating directly by failing to provide the public entity’s program to beneficiaries with disabilities. In other words, the regulation covers a public entity farming out the practical implementation of the program to private entities while retaining and exercising considerable oversight, regulation, and other substantive involvement;
        9. The driving school students are the direct beneficiaries of the Texas Education Agency’s program, and the Texas Education Agency furnishes operating licenses and course completion certificates to private schools that are discriminating on the basis of disability;
        10. State of Texas cannot legislatively mandate driver education and then abate ADA responsibility by a flea flicker lateral from the Texas Education Agency to private licensees. I should point out that this is much the same argument as the ADA being a non-delegable duty (see this blog entry).
        11. Driving of private and personal vehicles is an uniquely important, pervasive, and indispensable entitlement. Further, driving responsibly is a civic duty that the state seeks to promote with a unique regulatory scheme that entrusted the Texas educational agency; the fact the state licensed driver education schools happen to be private enterprise does not change these facts;
        12. Driver education schools serve as private mechanism for achieving public ends and public policy;
        13. If driver education schools would cease to exist, Texas would most likely replicate them. Therefore, driver education is a positive good and an end to itself;
        14. Texas has an inherent interest in driver education that it does not have in any of the other license endeavors;
        15. With respect to promoting handicap accessibility, Congress made the conscious calculation to impose the burden on public entities. In light of the unseemly history of systematically excluding persons with disability from public life and public activities, Congress quite intently wrote the ADA to provide a clear and comprehensive national mandate for the elimination of discrimination. While it might not be convenient for the Texas Education Agency to require ADA compliance by licensed driver education schools, nevertheless, the ADA’s sweeping purpose is clear. Finally, if the Texas Education Agency if it finds that such modifications are too strenuous, it is allowed per the ADA to demonstrate as a defense that making the modification would fundamentally alter the nature of the service, program, or activity.



  1. While the United States Supreme Court’s record with respect to persons with disabilities in employment matters is very mixed, it actually has a very strong record for persons with disabilities in title II and title III matters;
  2. With respect to Ivy v. Williams, interesting that the case was accepted by the U.S. Supreme Court since there was no Circuit split on the issue and the court is currently at eight members. Accepting the case meant that four of them wanted to hear the case. Impossible to say which four, though one could guess it might have been Breyer, Sotomayor, Ginsberg, and Kagan voting for cert. One also wonders why the case would be accepted if they thought a 4-4 split was in order, since there is no way to tell when a new Justice will join the court. I would not hazard a guess as to which way this case will go. That said, one possibility is they might split the difference. That is, saying that a program, service, or activity is not involved, but the Texas Education Agency cannot engage in the flea flicker pass that it engages in. It also might be possible that they might say that the licensing system itself is a program, service, or activity. It will be very interesting to see how this case is decided and the breakdown of the Justices (party lines are not a good indicator of how the justices break down in ADA cases).
  3. Regarding Fry, it is more understandable that this case was accepted since the cases have gone both ways on requiring IDEA exhaustion with respect to service animals where the student has an IEP. This particular case is even a harder guess than Ivy as to how it might go. A ruling in favor of the school district might mean a rush away from IDEA to 504 by parents of students with disabilities so that by not having an IEP, they do not have to worry about exhausting the IDEA process.
  4. Regarding deaf drivers, readers might be interested in this article involving Uber seeking out deaf drivers.