Fisher II and Its Impact on Affirmative-Action Programs for Persons with Disabilities

I am a member of the Society for Human Resources Management. The manager of workplace law content for the Society for Human Resources Management is a gentleman named Allen Smith, J.D. He wrote an excellent article a few days ago discussing Fisher II, the affirmative action case in academia just decided by the United States Supreme Court, and I thought I would use that article as a jumping off point for discussing affirmative action in higher education and how the ruling affects affirmative action program for people with disabilities. As is usual, the blog is divided into categories: the case itself; the impact of the case on affirmative-action programs for persons with disabilities; and conclusions. Of course, the reader is free to focus on any or all of the categories.


The Case Itself:

In the article, Allen makes the following points.

  1. Race may not be considered unless the admission process can withstand strict scrutiny.

This is absolutely true. However, it is a little more complicated than that. If something is subject to strict scrutiny, then a compelling interest must be shown. In this situation, the Supreme Court following prior decisions, held that the diversity of the student body in a college or university setting is a compelling interest.

  1. Courts will give some, but not complete, deference to the decision to pursue educational benefits flowing from student body diversity.

Also, true. However, the method adopted by the University must be based on hard data. If affirmative action is used, the University has the burden of showing that they tried just about everything else before adopting affirmative action programs.

  1. In the article, Allen talks to an attorney. Doug Kaufman of Balch and Bingham of Birmingham, Alabama, who recommends with respect to employers undertaking diversity efforts that they do the following:
    1. Conduct a self-analysis to determine if minorities are underrepresented;
    2. Articulate what is trying to be remediated; and
    3. Choose reasonable methods to remediate the problems.
  2. I could not agree more with the approach in paragraph I3.

I will say that choosing reasonable methods in light of the case law means adopting the least intrusive way to accomplish the goal. That is, affirmative action should be a last resort and only after plenty of hard data exists to support its use. When used, the criteria should be neutral and also utilize an individual holistic analysis. Also, in my opinion, as someone who spent 12 years full time in academia, it is not just racial and ethnic diversity that makes for a compelling university, but also diversity of viewpoints, and colleges should consider that as well if they want to have a truly diverse driving community. After all, it is possible, it happens more frequently than you might expect, to have on campus racial and ethnic diversity but have an absence of viewpoint diversity.


Fisher II’s Effect on Affirmative-Action Programs for Persons with Disabilities

So, how does this decision affect affirmative action for persons with disabilities, such as the requirements of affirmative action for persons with disability set out by the office of Federal Contract and Compliance Programs, which we discussed in this blog entry.

  1. Race may not be considered in the absence of withstanding strict scrutiny. Withstanding strict scrutiny means showing a compelling interest.
  2. Affirmative-action regulation for federal contractors with respect to persons with disabilities is not an area of the law that is well settled.
  3. When it comes to persons with disabilities, there are several problems with respect to affirmative-action programs:
    1. If affirmative action programs regardless whether it be race or something else, require a compelling interest. The question becomes does an employer have a compelling interest in a diverse employee base? This statement raises the issue of whether affirmative-action programs are being subject to strict scrutiny because race is involved or is it because of the affirmative-action program itself? Both? If race is not involved in the affirmative-action program, such as a program focused on persons with disabilities or women, does that mean that the employer gets more leeway? ( an interesting idea, but I do not think it will hold up per §II3(3) below)
    2. Persons with disabilities are not a race.
    3. Persons with disabilities with respect to employment fall in the lowest tier of equal protection jurisprudence, rational basis, per Board of Trustees of the University of Alabama v. Garrett. Accordingly, the question becomes whether the system is proportionate to the harm being meant to be redressed. Depending upon the intensity of the affirmative action regulatory scheme, that proportionality may be very difficult to show. A lowest tier classification means that the intensity of the affirmative-action system or regulatory scheme would not have to be very high to fail to meet the proportionality test, i.e. be disproportionate to the harm meant to be redressed and therefore, be in violation of the enforcement clause of the equal protection clause of the 14th



  1. Due to ¶II3(3), affirmative-action for persons with disabilities in employment is going to be a tough sell depending upon the logistics of the affirmative-action program or system. In light of Fisher II, it might be an easier sell, but certainly not an easy one, in the University or College setting.
  2. Affirmative-action programs need to be driven by hard data and refined as the data comes in.
  3. An individual approach is always better than saying that a person because of the characteristic automatically gets a plus putting him or her over the top so to speak.
  4. With respect to affirmative-action programs, the decision could have been much worse for those wanting to continue using such programs.
  5. In the decision, Justice Kennedy mentioned once again the concept of “equal dignity,” (that concept came up in Obergefell v. Hodges, the gay marriage decision), and how this concept makes its way into constitutional law jurisprudence over time, if at all, bears watching.


Side Effects of Medication, Bad Conduct and ADA Protection

It has been awhile, almost 3 years, since I visited the issue of bad conduct v. having a disability. This particular case explores what happens when the side effects of medication leads to bad conduct and the person is terminated. The case is Capporicci  v. Chipotle Mexican Grill, Inc., 2016 U.S. Dist. LEXIS 69934 (M.D. Fla. May 27, 2016). As is usual, the blog entry is divided into categories: facts; issue presented; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.



Plaintiff has a long history of treatment for bipolar disorder. Before taking the medication to treat her condition, she experienced depression and mania. She does not suffer from the extreme highs and lows when she is on the medication, but she continues to experience panic attacks. In April 2013, plaintiff informed the manager at the South Tampa location that she was taking medication for her bipolar disorder. She did not explain which medication she took, did not detail any side effects, and did not mention that the medication could cause something negative to happen at work. The manager’s reaction was neutral and he did not ask any questions. On May 30, 2013, plaintiff reported to Sandra Weeks, an advanced registered nurse practitioner treating her bipolar disorder, that she was crying at work, having panic attacks, and that she had to be taken off shifts. As a result, nurse Weeks discontinued one of plaintiff’s medication and started plaintiff on Saphris, a new medication. That same day, nurse Weeks faxed the letter to the manager requesting FMLA leave. Plaintiff testified that when the manager received the fax, he pulled it out of the printer, laughed, and threw it away without reading it. The plaintiff then told the manager that she was having some anxiety and would like to take some time off. During the time off work between May 30, 2013, and June 3, 2013, plaintiff started taking the new medication. The medication made her feel a little tired and knocked her out at night. She returned to work on June 4, 2013.

She was fired four days later. That day, she took the medication in the morning because her provider told her to start taking the medication twice a day. She clocked in for her shift at 11:50 AM. Approximately 30 minutes into her shift, she began to feel dizzy and disoriented. She was very slow, messed up orders, and was incoherent. When her coworkers asked her what was wrong, she told him that she was on a new medication and that it was messing with her at the moment. The manager noticed plaintiff’s condition and took her off the serving line. When the plaintiff tried to explain what was going on, the manager said that it was fine, to go home, and get some rest. No further discussions were held. The manager described the final incident as follows:

“The final incident was the employee arriving late to work and appeared to be under the influence of some kind of medication. I had face to face talks with her regarding performance previously, but with a zero tolerance for inebriation of any kind there had been no prior incident.

It came to my attention during peak hour when she attempted to roll a burrito and basically flipped it upside down releasing the contents into a foil, she then placed the foil and tortilla (still upside down) into a bowl and slid it to the expeditor. I calmly sent her home since making a scene in front of a peak hour line of customers would have been a terrible idea. I then called and terminated her later in the afternoon.”


When the plaintiff got home, the manager called and said she was fired due to being intoxicated. During the phone call plaintiff told the manager she was on medication and that she believed her behavior was the side effect of the medication. Although the manager listened and seemed to want to offer her a second chance, he called back 10 minutes later saying that it looked like she was on some %$^%$%^$#, so she was fired and she was not rehirable.

Chipotle’s employee handbook has a drug and alcohol policy that provides as follows:

“No employee shall report to work or be at work under the influence of alcohol, drugs, or controlled substances, or with any detectable amount of alcohol, drugs, or controlled substances in his or her system.

Employees who must use medically prescribed or over-the-counter drugs that may adversely affect their ability to perform work in a safe manner must notify their Manager prior to starting work. The Manager will decide if the employee can remain at work and/or if work restrictions are necessary. The employee may be required to take a medical leave of absence or disability leave for the duration of the medication.”


She filed with the EEOC, and the EEOC found reasonable cause to believe that disability discrimination occurred and issued a notice of right to sue. She sued alleging both FMLA and ADA violations, though we are only concerned with the ADA violations.



Issue Presented

May an employer discipline or terminate an employee for workplace misconduct even when the misconduct is a result of the disability?



Court’s Reasoning


In holding that the employer may discipline or terminate an employee for workplace misconduct even when the misconduct is a result of the disability, the court reasoned as follows:


  1. Establishing a prima facie case mean showing that at the time of the adverse action: 1) the plaintiff had a disability; 2) the plaintiff was a qualified individual; and 3) the employer unlawfully discriminated against her because of the disability.
  2. The McDonnell Douglas burden shifting scheme is applicable.
  3. Since the relevant event took place after the ADA amendments act, the amendments are what governs the case.
  4. 29 C.F.R. § 1630.2(j)(4)(ii), specifically states that the negative side effects of medication may be considered in deciding whether a person has a disability.
  5. 29 C.F.R. § 1630.2 (j)(3)(iii) specifically provides that it should be easily concluded that bipolar disorder will at a minimum substantially limit brain function.
  6. As a result of the amendment to the ADA, the relevant inquiry is whether plaintiff’s bipolar disorder is substantially limiting when she is not taking medication and she presented evidence that that was indeed the case.
  7. The majority of courts, including the 11th Circuit, hold that an employer may discipline a terminated employee for workplace misconduct even when the misconduct is a result of the disability.
  8. In Raytheon Company v. Hernandez, U.S. Supreme Court, in an Age Discrimination in Employment Act case, said that a sufficiently nondiscriminatory reason exists where an applicant is denied employment based upon a neutral, generally applicable work policy.
  9. The Chipotle policy is neutral and generally applicable and therefore satisfies the Raytheon
  10. Where an employer relies on the violation of a work rule, a plaintiff may show pretext by submitting evidence demonstrating: 1) that she did not violate the cited work rule; or 2) that if she did violate the rule, other employees outside the protected class, engaged in similar acts, were not similarly treated. In this case, the plaintiff made cursory arguments without legal support. Further, even a ham-handed investigation standing alone is insufficient to show pretext. Finally, the manager concluded that plaintiff was under the influence of some kind of medication and therefore in violation of company policy, which prohibited any employee from reporting to work or being at work under the influence of alcohol, drug, or controlled substances. Plaintiff did not dispute that she was indeed under the influence of drugs, even if they were prescription drugs.
  11. Plaintiff did not argue that the manager misapplied or misinterpreted the company’s drug and alcohol policy. In fact, the policy specifically stated that when an employee must use medically prescribed or over-the-counter drugs that adversely affect her ability to perform work in a safe manner, it is the responsibility of the employee to notify the manager prior to starting work. Such notification then triggers the manager’s duty to order work restrictions or a leave of absence. The plaintiff did not allege that she advised the manager about her use of the medication prior to starting work.
  12. Plaintiff neither alleged a failure to accommodate claim nor a disparate impact claim and so those claims were not before the court.
  13. Plaintiff did not contend that the company’s policy lacked legitimate, job-related goals, such as promoting employee safety and minimizing potential liability.
  14. Plaintiff made no effort to demonstrate that the policy was applied more leniently to non-disabled employees and she made no claim that non-disabled employees were treated more favorably as a general rule. In fact, plaintiff said that she was being watched carefully for promotion shortly before her termination.
  15. While the manager may have been rude, plaintiff agreed that the manager allowed her to take all of the leave she requested. Accordingly, rude treatment, by itself, does not support an inference of discriminatory intentions.





  1. The causation cited by the court, “because of,” is not correct. That standard is the one that was used prior to the amendments to the ADA. As we know, Title I of the ADA, uses the term “on the basis of,” and a strong argument can be made, as we did in this blog entry, that “on the basis of,” and “because of,” are not the same thing.
  2. Labor and Employment attorneys will tell you over and over again that the evenhanded application of neutral, generally applicable policies are critical and this case proves the point. If such is present, then you are in a strong position to deal with taking action against a person with a disability who is acting out because of that disability or medication they are taking to treat that disability.
  3. The court notes that the EEOC’s enforcement guidance provides that an employer may only discipline an employee for disability- related conduct if the conduct rule eight job-related and consistent with business necessity and other employees are held to the same standard. Such a view is enforcement guidance only and therefore, is not going to get Chevron Whether it gets the deference entitled to agency interpretation of regulations is also unknown (the court did not address that issue). On this point, you may want to take a look at this blog entry.
  4. There is a Circuit court split on the issue presented in this case and so it might wind up before the United States Supreme Court. Considering the current makeup of the court, I won’t dare hazard a guess as to whether they would even take the case let alone how they would decide it. A lot may depend, or not, on the results of the upcoming presidential election.
  5. On the employee side, if the employee begins to take medication to deal with a disability and anticipates or does suffer from side effects that cause problems, it may make sense to notify the employer as soon as possible as to what might happen or is happening. Since the negative side effects of medications can be factored into the equation of whether a person has a disability, such a notification would trigger the interactive process. Also, keep in mind, that mitigating measures, with the exception of glasses, are no longer factored into whether the person has a disability.
  6. Probable cause findings at the EEOC are very hard to get. This case stands for the proposition that even in the face of such a finding, the defendant still has a shot at winning.
  7. Don’t forget about failure to accommodate claims when pleading a cause of action on behalf of a plaintiff.
  8. Raytheon is an ADEA case and that statute does use “because of,” when it comes to causation. However, the ADA does not contain that language. Accordingly, it isn’t clear just how persuasive that particular case is with respect to an ADA matter where the occurrence occurred after the amendments to the ADA.

ADA and Landlord-Tenant obligations

Just what are the obligations of landlord and tenant with respect to ADA compliance? Does it matter if an architectural issue is involved or if it is an issue involving practices, policies, and procedures?

Our case of the day that answers this question is Supancic v. Turner, 2016 Cal. App. LEXIS 4235 (Cal. App. Second District, June 7, 2016). It is an unpublished decision, but nevertheless is instructive. As is my usual practice, the blog entry is divided into categories: facts; issue presented; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.


Facts Taken Straight from the Court Opinion

On March 13, 2012, around 9:15 p.m., plaintiff entered the White Harte Public House (White Harte) with a friend and plaintiff’s service dog which was wearing a vest identifying it as a service dog. Pierre Moeini approached plaintiff and told him that he must pick up the service dog or leave. Plaintiff explained to Moeini that plaintiff’s dog was a service dog and that Moeini was infringing upon plaintiff’s rights. Moeini “physically forced” plaintiff out of the White Harte along with plaintiff’s dog and friend.

Outside the pub, plaintiff advised Moeini that he was violating the law. In response, Moeini told plaintiff that he didn’t “`give a f[u]ck'” and to “`leave or get [his] ass kicked.'” When plaintiff informed Moeini that he had committed an additional wrongful act by threatening plaintiff with bodily harm, Moeini said, “`I don’t give a sh[i]t. How about this. I’m not letting you in because you look like a little faggot, you and your friend look like faggots, and you have a little faggot dog.'” Plaintiff again advised Moeini that those statements were wrongful acts, but Moeini just laughed and told plaintiff that he owned “`six of these places'” and that Moeini did not allow homosexuals into any of them.

At that point, Moeini realized that someone had been recording his statements, so he said, “`I will smash your head into a million pieces if you do not get the f[u]ck off my property right now.'” Moeini then assumed a threatening physical stance, causing plaintiff and his friend to leave quickly.

Plaintiff’s theory of liability against defendant individually was based on an agency theory or the fact that defendant was liable as an owner or landlord. Defendant was not an agent or partner, but was a 50 percent owner of Harte LLC. Harte LLC owned and operated the White Harte, not defendant. “The `[l]andlord’ as defined by [t]he lease [under which Harte LLC occupied the White Harte was] Pierre Moeini and [defendant].”

The real property on which the White Harte was located was owned by defendant and Moeini. Defendant and Moeini, as landlords, leased the real property on which the White Harte was located to Harte LLC, as tenant, and defendant and Moeini were the members of Harte LLC. The White Harte was a place of public accommodation licensed to sell food and drinks. Harte LLC had no operating agreement. Defendant signed the White Harte fictitious business name statement as an individual registrant.

California Corporations Code § 17101(a) provides that no member of the limited liability company shall be personally liable for any liability of the limited liability company solely by reason of being a member of that limited liability company.


Issue Presented

Whether a defendant’s status as the owner of real property or of an LLC operating on the property, is sufficient by itself to mandate liability against the defendant for discriminatory action taken by an individual on the property and/or the entity operating on the property?


Court’s Reasoning

In holding that ownership status by itself is not sufficient for liability, the court reasoned as follows:

  1. Under the ADA, liability attaches to both landlords and tenants.
  2. Between the landlord and tenant, allocation of responsibility for complying with the ADA may be determined by lease or other contract.
  3. Generally speaking, a plaintiff can sue either the landlord or the tenant in alleging ADA noncompliance.
  4. An allocation of responsibility for ADA compliance between the landlord and tenant in the lease is not binding on third parties, such as the person with a disability who has been the victim of disability discrimination.
  5. The final implementing regulations carrying out title III of the ADA specifically provides that allocation of responsibility between the landlord and the tenant by lease is effective only as between the parties.
  6. In cases involving architectural barriers, the regulatory scheme imposes upon owners a duty based upon their status as owners.
  7. With respect to policy, practices, and procedures permitting the use of service animal by an individual with a disability, a landlord incurs liability only where the landlord implements the discriminatory policy, practice, or procedure.
  8. In general, landlords should not be given responsibility for policies a tenant applies in the operation of its business if such policies are solely those of the tenant. Therefore, if a restaurant tenant discriminates by refusing to seat the patron, it is the tenant, and not the landlord that bears responsibility because the discriminatory policy is imposed solely by the tenant and not by the landlord. On the other hand, if a tenant refused to modify a no pets rule to allow service animals in his restaurant because the landlord mandates such a rule, then both the landlord and the tenant would be liable for violation of the ADA when a person with a service dog is refused entrance.
  9. Under the facts of this case, defendant’s duty to plaintiff under the ADA was limited to ensuring that Harte LLC, the lessee and operator of the public accommodation, had in place policies, practices, and procedures permitting the use of service animal by persons with disabilities patronizing the place of public accommodation.
  10. The plaintiff was not able to show that the defendants discriminated against the plaintiff within the meaning of the ADA outside of showing that the defendant was an owner of the facility.



  1. This is a useful case for understanding just how liability works between the landlord and tenant in ADA matters.
  2. An owner’s obligations under the ADA may be different depending upon whether architectural barriers or policies, practices, and procedures are involved.
  3. The court said that, “in general landlord should not be given responsibility for policies attend and applies in operating his business, if such policies are solely those of the tenant.” I get that, but in this case, the real property on which the place of public accommodation was located was owned by the defendant and his partner, the offending party, as landlords. They then leased the real property for the place of public accommodation to an LLC as tenant with the defendant and his partner as members of that LLC. Further, the LLC had no operating agreement and the defendant signed a fictitious business name statement as an individual registrant. Accordingly, an argument can be created here that defendants were using corporate structure as a way to circumvent legal liability, in this case ADA liability. In other words, the argument is akin to arguing that the corporate veil should be pierced. At any rate, there is nothing in the case to suggest that a corporate veil argument was made. I wonder if the case will be appealed and whether this kind of argument would be made on appeal. I am also unclear on why the LLC was not sued, though the reasoning of the case is such that the outcome may have been the same.
  4. The case is also a lesson in why it pays to incorporate in order to protect against individual liability.
  5. If you represent a landlord or a tenant, make sure the lease contains a discussion of how ADA liability will be apportioned.