§504

Obesity as a Disability and the Case of a Legislator with a Disability Unable to do His Job

August 1, 2019 by William Goren Leave a Comment

Today’s blog entry is a two-for-one. First off, with respect to being late this week, my daughter started her second year of high school today. So, this week was her last week of summer break, and as you can imagine, things were pretty hectic around here. But, we are now back to the school routine.

Turning to the blog entry of the day, as mentioned above, it is a two-for-one. First, the blog will explore the issue of whether obesity is a disability. We will explore a very interesting case from the State of Washington. Second, what happens if you have a legislator with a disability who can’t get to the same starting line as a legislator without a disability due to another legislator refusing to accommodate him. What title of the ADA does that legislator turn to. As usual, the blog entry is divided into categories and they are: background with respect to whether obesity is a disability; Taylor facts; Washington Supreme Court’s reasoning that obesity is always a disability under Washington law; Taylor takeaways; what’s going on in Wisconsin? Introduction; and let’s break this down. Of course, the reader is free to focus on any or all of the categories.

Background with Respect to Whether Obesity Is a Disability

In Taylor v. Burlington Northern Rail Holdings, Inc., The Washington Supreme Court received a certification request from the Ninth Circuit with respect to whether under Washington law obesity was a disability. People who follow the ADA know whether obesity is a disability under the ADA is complicated. The courts aren’t unanimous on it. However, the majority view in a big way is for obesity to be a disability under the ADA, there must be an underlying physical or mental impairment. Absent an underlying physical or mental impairment, a person with obesity is not a person with a disability under the ADA. This case raises a very important point that States often have their own antidiscrimination laws. Those laws may look at things very differently from the ADA.

Taylor Facts

In 2007, Taylor received a conditional offer of employment as an electronic technician from the defendant. The offer was contingent on a physical exam and a medical history questionnaire. The physical exam found that Taylor met the minimum physical demands of the essential functions of an electronic technician. However, the medical exam found that Taylor’s height was 5’6” and weighed 256 pounds resulting in a BMI of 41.3. Since a BMI over 40 is considered severely or morbidly obese, the defendant treated that as a trigger for further screening in the employment process. As a result, his results were referred to defendant’s chief medical officer who told Taylor that they were unable to determine whether he was medically qualified for the job due to significant health and safety risks associated with extreme obesity and uncertain status of knees and back. The defendant offered to reconsider if Taylor paid for expensive medical testing, including a sleep study, bloodwork, and an exercise tolerance test. The defendant also told Taylor that it was company policy to not hire anyone having a BMI over 35 and that if he could not afford the testing, his only option was to lose 10% of his weight and keep it off for six months. Taylor could not afford the testing because he was unemployed and did not have medical insurance or VA benefits. So, he filed suit in Washington State court and the suit was removed to federal court. At the federal court level, the judge relied on the majority rule with respect to obesity and found that Taylor was not a person with a disability under the ADA because he could not show that the obesity was caused by a physiological condition or disorder or that the defendant perceived the plaintiff’s obesity as having such a cause. On appeal to the Ninth Circuit, the Ninth Circuit stated that whether obesity was a disability under Washington State law was unresolved and certified the question to the Washington Supreme Court. The Washington Supreme Court accepted that certification.

III

Washington Supreme Court’s Reasoning That Obesity Is Always a Disability under Washington Law

Washington law makes it an unfair practice for an employer to refuse to hire any person because of the presence of any sensory, mental, or physical disability unless based upon a bona fide occupational qualification.
Washington law defines a disability as a sensory, mental, or physical impairment that: 1) is medically cognizable or diagnosable; or 2) exists as a record or history; or 3) is perceived to exist whether or not it exists in fact.
Under Washington law, a disability can be temporary or permanent, common or uncommon, mitigated or unmitigated and can exist regardless of whether it limits the ability to work generally or at a particular job, or limits any other activity.
What is an impairment under Washington law is either of the following: 1) any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more the following body systems: neurological, musculoskeletal, special sense organs, respiratory, including speech organ, cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; or 2) any mental, developmental, traumatic, or psychological disorder, including but not limited to cognitive limitation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
The debate is over whether obesity is a physiological disorder or condition under Washington law.
The Washington Human Rights Commission has said that a person is considered disabled by a sensory, mental, or physical condition if he or she was discriminated against because of the condition and the condition is abnormal.
In a prior case, the Washington Supreme Court has said that an employee is disabled if they have a sensory, mental, or physical a abnormality and such abnormality has a substantially limiting effect upon the individual’s ability to perform his or her job.
In response to previous opinions of the Washington Supreme Court, the Washington legislature in amending Washington law expressly found that the Washington Law against Discrimination affords residents of Washington protections independent of those afforded by the ADA and that those protections existed for many years prior to the advent of the ADA. In making those changes the legislature chose to define disability very broadly including explaining that impairment includes but is not limited to any physiological disorder or condition affecting one or more body systems.
In a case such as this, all plaintiff need to show is the employer perceived the employee as having an impairment.
The medical community recognizes obesity as a primary disease. The medical evidence shows that obesity is always an impairment because it is a physiological disorder or condition affecting one or more body systems.
Obesity qualifies as an impairment that is physiological because it involves the organic process and phenomena of an organism-the excessive accumulation of fat cells.
The medical community recognizes obesity as a disorder.
Just because obesity is often diagnosed by measuring weight doesn’t mean that it is not a physiological disorder affecting body systems.
Overwhelming consensus in the medical community is that obesity is a disease in and of itself.
Obesity satisfies the AMA criteria for labeling something a disease. That recognition of obesity as a disease is supportive of the conclusion obesity is a physiological disorder under the Washington statute.
While the Washington statute does not define disorder, Webster’s does. A disorder under Webster’s is a derangement of function and an abnormal physical or mental condition. A disease fits within that definition.
While the Washington legislature did not provide a definition of “condition,” the Washington Human Rights Commission did. According to Washington Human Rights Commission a condition is a sensory, mental, or physical disability if it is an abnormality and is a reason why the person having the condition did not get or keep the job in question. The Human Rights Commission definition of “condition,” has to be given great weight since the Human Rights Commission is responsible for administering the Washington law against discrimination. The Washington Court of Appeals has previously adopted the Human Rights Commission view of what a condition is.
While the Human Rights Commission doesn’t define the word abnormal, the medical evidence shows obesity is an abnormal condition. The AMA has stated that obesity is a disease involving abnormal energy balance and abnormal endothelial function resulting in metabolic abnormalities even after weight loss.
The medical evidence also shows that obesity itself affects one or more body systems including neurological, musculoskeletal, special sense organ, respiratory, including speech organ, cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine. In particular, Amicus brief described in detail just how obesity itself affects the cardiovascular or circular system, the musculoskeletal system, the lymphatic system, and the endocrine system.
The court had trouble understanding how finding obesity is a disability would produce more psychological harm than is already caused by companies freely and openly refusing to hire people because of their obesity. Obesity after all leads to social, economic, and psychological problems as a result of prejudice, discrimination, poor body image, and low self-esteem. Oftentimes, obese people are underemployed or unemployed.
Washington Law against Discrimination must view the definition of impairment broadly in order to effectuate the purposes of that law.
Washington Law against Discrimination is broader than the ADA and offers its own independent protection to Washingtonians.

Taylor Takeaways

When it comes to disability discrimination, the ADA isn’t the end-all and be-all, though it is in Georgia. It is not unusual for States to have their own antidiscrimination laws when it comes to people with disabilities. Those laws may extend coverage to employers of less than 15 or more. Those laws also may define disability very very differently. Finally, those laws may have different remedies associated with them. Accordingly, the ADA is only one thing to look at. You have to look at state law as well.
Washington Law Against Discrimination defines disability very differently from the ADA. While impairment under Washington law, judging from the case, appears to resemble the ADA, the other part of the definition of a disability is quite a bit different as it talks about whether the mental or physical impairment or sensory impairment is medically cognizable or diagnosable. That makes things considerably broader than the ADA in its scope of coverage.
Did I mention that I am not an attorney licensed in Washington. When it comes to state antidiscrimination laws affecting people with disabilities, always be sure to find an attorney who can interpret that state law for you. Generally, that means an attorney licensed in the applicable State.
Will you now see a movement by the legislators in Washington to change the definition of disability under the Washington Law against Discrimination to something more similar to the ADA. As mentioned above, “impairment,” in Washington law is quite similar to the ADA. It is the disability part that is considerably different. I don’t know what the answer to this question is, but it wouldn’t surprise me if you see an effort to amend the Washington Law against Discrimination to match the ADA.
Two problems with this case are that the Washington Supreme Court doesn’t really define what obesity is. It just assumes obesity is a BMI over 40. Also, the Washington Supreme Court says that obesity is always a disability and that it never depends. The decision that obesity is always a disability and never depends is what drove Justice Yu to dissent. His view is that obesity should not be a per se rule but should be based upon an individualized inquiry as such an approach fits better with how disability discrimination statutes, such as the ADA, generally work.
Those who are followers of Chevron deference matters, can see that the Washington Supreme Court essentially adopted that approach with respect to how the Human Rights Commission defined various terms. Note, that the Human Rights Commission had specific authority from the legislature to implement the Washington Law Against Discrimination.

What’s going on in Wisconsin?: Introduction

In Wisconsin, there is a legislator who uses a wheelchair. The story can be found here. Basically, the legislator is a Democrat who uses a wheelchair and a personal attendant is necessary many times. There are time because of his health and the lack of an ability to find a personal attendant that it makes sense for him to be able to dial in or use videoconferencing to attend some of his obligations. The chair is a Republican and is refusing to allow that accommodation and insists upon the legislator being personally there. I have seen the article pop up in several different places on the Internet. What is interesting, is that the article never seem to take into account title II of the ADA. Some of the articles that I have read said that if the legislator was an employee, then title I applies, but since he is a legislator all bets are off.

Let’s Break This down.

One of the things I have consistently seen over the years, is ADA knowledge is quite high among attorneys practicing in title I of the ADA. On the plaintiff side, you will find attorneys who litigate on behalf of plaintiffs with respect to employment discrimination claims involving persons with disability. The defense bar responding to those lawsuits is generally quite knowledgeable and not afraid to retain people, such as myself, who are knowledgeable if requisite knowledge is lacking. The defense bar also gets involved in counseling employers on disability discrimination matters. However, once you move into title II and title III of the ADA, the knowledge base among attorneys goes way down. What is wild about this situation is that title I and title II are involved at the same time. It is rare you see that. In fact, I have only seen it once; many years ago, when I consulted on such a case.

With respect to title I, assuredly the Democratic legislator is being paid for his efforts. Who is the entity paying him? It is probably the State of Wisconsin. Surely, the State of Wisconsin or whatever entity is paying him has more than 15 employees. So, the entity that is paying him has independent ADA obligations to ensure that one of their employees receives reasonable accommodations for his or her disability. As we have mentioned too many times to count, under title I of the ADA, accommodations must be made unless an undue hardship is involved. Undue hardship can either be financial or logistical. As we have also mentioned previously, financial hardship is very difficult to show as you look to the overall governmental resources and not to the budget item. For undue hardship in the logistical sense, readers of the blog know to think in terms of fundamental alteration. I don’t see how either applies to the case of the Democratic lawmaker seeking the ability to dial in or to videoconference. Of course, you have the question of whether the Democratic legislator is a qualified person with a disability. I don’t see how that is an issue here. Clearly, the Democratic lawmaker has a disability. By virtue of being elected, he has the requisite skill, experience, etc. to be a legislator. The question then becomes can he do the job with or without reasonable accommodations. He has recommended accommodations and has been turned down. So, whoever is employing the Democratic legislator has a problem on their hands with respect to the actions of the Republican chair. At a minimum, an interactive process should ensue to see if everyone can get to a win-win. Of course, I’m assuming that legislators and Wisconsin are employees in the first place and not independent contractors. If by some chance legislators in Wisconsin are actually independent contractors, I don’t see how that is possible but even so…, Then the Democratic legislator would still have claims under title II of the ADA and §504.

It doesn’t end there. With respect to title II, there may be a claim there as well. After all, a public entity is involved. We are also talking about accessing the programs, services, and activities of a public entity, i.e. legislative proceedings. Under title II of the ADA, reasonable accommodations have to be made unless you are dealing with an undue hardship or a fundamental alteration. As we have discussed previously many times, undue hardship and undue burden mean the same thing. Fundamental alteration is essentially logistical undue hardship. For the reasons mentioned above, I don’t see how either undue burden or fundamental alteration work as a defense in this situation. Again, you have the question of whether the Democratic legislator is a qualified person with a disability. Whether a person is a qualified person with a disability under title II of the ADA has a different definition than in title I of the ADA. Again, the Democratic legislator gets by this hurdle rather easily. He is, as mentioned above, a person with a disability. As for being qualified, he also meets the essential eligibility requirements of the program, activity, or services as well, i.e. he is qualified to be a state legislator and to participate in all legislative proceedings with or without reasonable accommodations. So, bottom line, the Democratic legislator has both a title I claim and a title II claim against the entity paying both him and the chair. With respect to title I, it is entirely possible that the S grin tate of Wisconsin may be able to claim sovereign immunity per Board of Trustees of the University of Alabama v. Garrett. However, the state of Wisconsin is going to have a much harder time claiming sovereign immunity with respect to our Democratic legislator’s title II claim as we are talking about legislative activities. See this blog entry. Also, since federal funds are undoubtedly involved as well, our Democratic legislator probably has a §504 claim as well. In many jurisdictions, receipt of federal funds waves sovereign immunity under §504.

In short, the chair and the entity paying the chair and the Democratic legislator need to get together to engage in the interactive process so that the Democratic legislator can do his job with or without reasonable accommodations. Failure to do that could very well lead to title I, title II, and §504 claims. In addition, such a lawsuit would be horrible publicity. Finally, from the little facts we do know, such a lawsuit would have a high probability of success thereby forcing the state of Wisconsin to pay attorney fees for themselves as well as for the Democratic legislator. Finally, if the Democratic legislator were to be retaliated against for bringing the lawsuit, that would result in additional claims. The retaliation claims would then relate back to both title I and to title II as well as to §504. In that situation, whether damages would be allowed in the ADA claims, would depend upon the particular title of the ADA involved. That is, no damages for retaliation under title I per this blog entry, but damages upon a showing of the deliberate indifference (see this blog entry for discussion of deliberate indifference), for violating title II.

Anybody Remember Sean Elliott?

May 28, 2019 by William Goren Leave a Comment

I have long been interested in the ADA and how it applies to sports. In the very first edition of my book in 2000, I talked about the hypothetical of what would happen if Sean Elliott, who underwent a kidney transplant from his brother in 1999, was given grief when he returned to professional basketball. For those of us who don’t know about Sean Elliott, he had an absolutely fabulous career at the University of Arizona, where believe it or not, says Wikipedia anyway, he is still the leading scorer after all these years. He then went on to an excellent career in the NBA where he won championships and made numerous All-Star teams. He spent his career with San Antonio at first, then Detroit, and then back to San Antonio. Currently, he is a game analyst for the San Antonio Spurs. In my original edition of Understanding the ADA, I talked about how to analyze the situation where a professional basketball player had one functioning kidney and was given grief. That got into a discussion of playing time, direct threat, among other things. Now, history repeats itself with the case of the day, Hammond v. University of Southern Mississippi, a November 2018 decision from the Southern District of Mississippi. As usual, the blog entry is divided into categories, and they are: facts, court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.

Facts

Plaintiff was a student and football player at the University of Southern Mississippi, and he only has one kidney. According to Plaintiff, USM’s football staff enticed him to transfer to USM by offering a full scholarship if he worked his way onto the team’s two-deep roster. After Plaintiff transferred, he received a physical evaluation at USM’s Student Health Services Center. The report noted that Plaintiff had only one kidney but cleared him to play without restrictions.

During a team practice, Plaintiff mentioned to one of the trainers that he only had one kidney. The trainer immediately removed Plaintiff from practice and took him to the team physician. The physician did not clear Plaintiff to play, citing the potential liability to USM if he were injured. Plaintiff sought a second opinion as permitted by USM’s Sports Medicine Policies and Procedures, and his nephrologist stated that no restrictions were necessary. Plaintiff also offered to execute a waiver of liability, but USM would not allow him to play. Plaintiff filed this lawsuit against USM in the United States District Court for the Middle District of Louisiana. He asserted, among other things, claims of discrimination under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. Defendant filed a Motion to Dismiss.

Court’s Reasoning Denying the Motion to Dismiss The §504ClaimAndTitleIIClaim

Under 42 U.S.C. §§12102(1),(3)(A), for a regarded as claim, a plaintiff is only required to establish that the defendant knew of the impairment and withheld public services or benefits because of it.
A person with one functioning kidney has a physical impairment as contemplated by the ADA.
The allegations, which must be accepted as true at the motion to dismiss stage, are sufficient to satisfy that burden. In particular: 1) the head athletic trainer removed the plaintiff from practice after learning he had only one kidney; 2) defendant’s team physician would not clear him to play football because he only had one kidney; 3) the head athletic trainer continued to hold him from practice after receiving the report from his nephrologist because the head athletic trainer believed that playing football with one kidney posed a liability issue for the school and a danger to plaintiff’s health; and 4) defendant’s athletic department told other school that he did not pass the physical because he only had one kidney so the plaintiff had trouble landing somewhere else.
University of Southern Mississippi also claimed sovereign immunity, but the court was having none of it because the plaintiff also alleged §504 violations. If an entity receives federal funds, that entity waives sovereign immunity in a suit for damages under §504 of the Rehabilitation Act. So, since the two laws (§504 and title II of the ADA), are virtually identical except for causation, it is not necessary to address the question of whether sovereign immunity applies to the title II claim when it doesn’t to the §504 claim.

III

Takeaways

If one tries to give a hypothetical as to what a regarded as case would look like, you can’t do much better than this one.
Certainly, a person with one functioning kidney has a physical impairment. A person with a one functioning kidney operates in the same way pretty much as a person with two. It would be an interesting question as to whether such a person would have an actual disability. It is certainly possible that is the case, but it wasn’t necessary to visit that question here.
The seminal case on direct threat is Chevron, U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002). In that case, the Supreme Court said that any direct threat defense must be based upon a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence. Further, that assessment has to be based upon an individualized assessment of the individual’s present ability to safely perform the essential functions.
DOJ’s title II regulations, 28 C.F.R. §35.139, essentially adopt the Chevron formulation. However, unlike the EEOC regulations on direct threat, the title II and title III direct threat regulations put out by DOJ only apply to direct threat to others and not to self. So, in this case, University of Southern Mississippi appears to have not only regarded the plaintiff as having a disability but also made a determination that the person was a direct threat to himself. That presents a problem because the DOJ regulations do not factor in direct threat to self; they only factor in direct threat to others. It certainly does not seem like the plaintiff was a direct threat to others.
Even assuming a title II anything can argue that the ADA would exclude someone from participating in its programs if they were a direct threat to self, there seems to be a question of fact here as to whether the University of Southern Mississippi relied on the most current medical knowledge and/or the best available objective evidence when making its determination. Again, it is certainly not a foregone conclusion, that the direct threat to self defense even exists because the University of Southern Mississippi is a title II entity, and this is not an employment situation.
Colleges and Universities have been fighting tooth and nail that their division I men’s football and basketball athletes are not employees. Here, if the plaintiff was an employee, that would activate the direct threat to self-defense. On the other hand, it would create all kinds of problem for the college or university that they probably don’t want to deal with.
Liability risk isn’t the issue, rather the issue is whether the plaintiff is a direct threat to self or others (if title I), or whether they are a direct threat to others (title II and title III). In a way, this case reminds me of the case, which we discussed here, where the company had a 1% rule with respect to whether a person would be able to do a job with respect to future injuries being possible. The ADA and Rehabilitation Act do not work that way. They both require an individualized analysis using the most current medical knowledge and/or the best available objective evidence before reaching a conclusion that a person is a direct threat.
The case is now finishing up the discovery stage. I am sure the defendant’s motion for summary judgment will be coming before too long.
If I am the plaintiff, I would move to exclude any evidence about direct threat to self since this is a title II case, and therefore, not relevant. It bears noting that the original direct threat case was a Rehabilitation Act case involving direct threat to others and not to self.

Repeated Violations Doctrine

May 20, 2019 by William Goren 1 Comment

This is a situation I see all the time. Let’s say you are at a university. A student goes to disability services, gets an accommodation plan, even gives it to the teacher. The teacher resists. The student may or may not try to fix it until later in the semester figuring that something will develop. Or, I have also seen this, disability services doesn’t have much influence at another one of the University’s schools. That is, disability services focuses on undergraduate programs but the professional schools do their own things regardless of what disability services says. How does a student deal with such a situation and what are the problems? An excellent blog entry discussing all of this can be found here. The question I want to address is a bit different. That is, when does the statute of limitations begin to run. Let’s take a different situation, but analogous. A person with a disability repeatedly notifies a municipality that it is out of compliance with the ADA. Municipality doesn’t do anything to fix the problem. Despite the person’s best efforts, nothing happens. Eventually, the person sues. However, the person sues more than two years after first notifying the City of the problem. The City never fixed the problem. Does the plaintiff lose on statute of limitations grounds. In case you are thinking that this kind of fact pattern is familiar, it is. We discussed that situation here. Turns out that case went up on appeal to the 10^th Circuit, and on May 15, 2019, a panel of the 10^th Circuit came down with a unanimous opinion adopting the repeated violations doctrine, which definitely bears discussing. Since I have simplified the fact pattern above and also have talked about it extensively in my prior blog entry discussing this case, I am going to dispense with the facts. So, the blog entry is going to be divided into court’s reasoning and takeaways. The reader, of course, is free to focus on any or all of the categories, but probably will wind up reading the whole thing. I want to thank Garret DeReus of Bizer & DeReus in New Orleans for sending the case along to me. I actually had breakfast with Garret when I was attending the Federal Bar Association’s Civil Rights Etouffee in New Orleans. His firm does title II and title III ADA plaintiff work around the country. Congratulations to him on his victory.

Court’s Reasoning

A public entity commits a new violation and the qualified person with the disability experiences a new injury each day when the public entity fails to act. In essence, the statute of limitations functions as a look back by restricting a plaintiff’s right to relief for injury suffered during the limitation period immediately prior to filing suit and while the suit is pending.
A public entity violates title II of the ADA and §504 of the Rehabilitation Act every day it fails to remedy a noncompliant service, program, or activity. Therefore, the statute of limitations limits a plaintiff’s right to relief to injuries for the period during the limitation period counting backwards from the day he or she filed the lawsuit and for any injury sustained while the lawsuit is pending.
The doctrine of repeated violations and the doctrine of continuing violation are different animals entirely. The continuing violation doctrine takes a bunch of different occurrences and combines them into one. On the other hand, the repeated violation doctrine takes each occurrence as a separate matter with a separate statute of limitations attaching to each. If you are a visual person, the court discusses this visually in the opinion. I am definitely not a person who learns by diagrams.
On appeal, the plaintiff argued only for the repeated violation doctrine and let go of the continuing violation doctrine even though both were argued at the District Court level. It turns out that was a very wise move on part of the plaintiff.
A qualified individual with a disability is excluded from participation in, denied the benefits of, and subjected to discrimination under the service, program, or activity of the public entity the day that person is deterred from utilizing them due to its noncompliance. Only when the public entity remedies the noncompliant service, program, or activity or when the plaintiff no longer evidences an attempt to utilize it, does the limitation period end. So, this means the statute of limitation bars recovery only for those injuries incurred outside of the limitation period immediately preceding the day of suit. It also does not bar recovery for injuries incurred within the limitation period or after plaintiff files suit.
Both the language of title II of the ADA, 42 U.S.C. §12132, and §504 of the Rehabilitation Act, 29 U.S.C. §794, are phrased in the present tense. That suggests a qualified individual currently experiencing discrimination under either law suffers an injury. The phrasing also suggests a qualified individual suffers new discrimination and a new injury each day she cannot utilize a noncompliant service, program, or activity even where the barriers giving rise to the claim are ones encountered before.
Assuming sidewalks and curb cuts are a service, program, or activity of a public entity (the court specifically expresses no opinion on that and remands that question back to the lower court for consideration), a qualified individual with a disability is still excluded from utilizing any given sidewalk or curb cut each day it remains noncompliant.
In a footnote, the 10^th Circuit points out that numerous regulations implementing the ADA are also phrased in the present tense.
The United States Supreme Court has recognized that failure to accommodate persons with disabilities often has the same practical effect as outright exclusion, and therefore, title II imposes an affirmative obligation on a public entity to accommodate persons with disabilities.
The duty to accommodate contained both in title II of the ADA and in §504 of the Rehabilitation Act clearly and unambiguously convey that noncompliant services, programs, or activities, give rise to repeated violations. Therefore, failing to act in the face of an affirmative duty equals liability. Also, that means if the entity under the affirmative duty to act fails to act while the underlying problem remains not fixed, then every day’s inaction amount to a new violation.
In a footnote, the court noted that the analogy is to temporary nuisance claims. The continuance of a nuisance is a new nuisance every day. So, as long as the temporary nuisance continues unabated, a plaintiff brings suit effectively on day one of the new limitation period. So, here, where an injury repeatedly occurs so long as the service, program, or activity remains noncompliant and the qualified person with a disability is aware and deterred from utilizing it.
Congressional goals of full participation, inclusion, and integration for qualified individuals with disabilities is also consistent with and strongly suggest that the repeated violation doctrine is the proper one to follow. After all, a qualified individual can’t fully participate or be fully included in a service, program, or activity if the person cannot utilize it in a similar way as a person without a disability. Further, that fact doesn’t change simply because he or she would deterred from utilizing the service, program, or activity many times before.
The key question is whether the qualified individual with a disability can fully participate now (emphasis is in the court’s opinion), in the service, program, or activity. The repeated violation doctrine is perfect for this reality, and it also encourages public entities to comply with their affirmative and ongoing obligation to accommodate a qualified individual with a disability by giving that person the ability to seek relief any time he or she cannot fully participate or is not fully included in the service, program, or activity of the public entity.
In the findings section of the ADA (42 U.S.C. §§12101(a)(8), 12101(b)(4)), Congress used terms such as “continuing existence,” and, “faced day to day by people with disabilities.” Similarly, in the Rehabilitation Act findings, 29 U.S.C. §701(a)(5), it uses the phrase, “individuals with disabilities continually encounter various forms of discrimination.” This kind of language demonstrate that Congress understood a public entity can repeatedly cause a qualified individual with a disability to suffer an injury from the same service, program, or activity and nothing in the text of title II or §504 suggests otherwise.
Congress did not design the ADA or to Rehabilitation Act to allow a public entity to forever prevent a qualified individual with a disability from utilizing a service, program, or activity.
Title II and §504 clearly and unambiguously require application of the repeated violation doctrine.
In a footnote, the court noted that applying the repeated violation doctrine to title II and §504 claims serves the interest of efficiency because more than just the rights of the plaintiff before the court are involved. In fact, many other qualified individuals with disabilities also benefit from a ruling favorable to the plaintiff. So, if the repeating violation doctrine were not to apply, then a basically identical lawsuit but timely suit brought by a different plaintiff would land in the court’s lap soon thereafter.
In these kind of cases, injunctive relief is even more important than damages.
The repeated violation doctrine means that a defendant cannot brandish the statute of limitations as a shield to fully protect themselves from suit. However, they can wield the statute of limitations as a sword to chop off damages arising before the limitation period comes in the play.
The repeated violation doctrine does not eviscerate statute of limitations. Instead, it limits the plaintiff’s ability to recover damages to only those injuries incurred during the limitation period immediately preceding suit as well as to any damages for any injuries incurred after filing suit. So, if a plaintiff first discovers a city’s noncompliant sidewalk and curb cuts in 1996 but still bring suit in October of 2016, that plaintiff does not get damages for every injury sustained throughout those 20 years. Instead, the damages would be restrictive than those injury suffered before October of 2014. Similarly, the court noted in a footnote, that if a plaintiff conceded that in 2016 the public entity completely and entirely remedied the problem, then plaintiff’s claims would be entirely barred even with the repeated violation doctrine.
When it comes to damages under title II of the ADA and §504, Supreme Court precedent rules out punitive damages. Also, any damages have to be intentional. The requirement that damages have to be intentional, is an additional limitation on the public entity’s liability under title II and §504.
The court doesn’t have a problem with the repeated violation doctrine meaning that public entities are on the hook for injunctive relief as the years go by. That doesn’t raise any red flags because Congress was quite specific in demanding full participation, inclusion, and integration in society for those with disabilities. Further, this give public entities and incentive to remedy noncompliant services, programs, or activities in a reasonable and efficient manner to ensure full participation. Finally, public entities can moot the whole problem by simply making their program, services, and activities accessible for persons with disabilities.
As we have talked before in our blog, another limitation that a plaintiff has to deal with with respect to injunctive relief, is that they no longer suffer an injury once they stop asserting an intent to return to where the violations are occurring. So, if a plaintiff were to move away and had no intent to return, any such injury disappears. Finally, the doctrine of laches can also come into play when it comes to injunctive relief.

III

Takeaways

This is the first Circuit that I know of adopting the repeated violation doctrine. The repeated violation doctrine has important differences from the continuing violation doctrine, which is almost impossible to get a federal court to apply.
I expect this decision to have a big impact on title II entities and on entities taking federal funds, particularly colleges and universities. It isn’t unusual at all for a plaintiff dealing with either to run into a brick wall.
The grammatical tense used by the disability antidiscrimination laws and their final implementing regulations do, in my opinion, give support to the repeated violation doctrine. I also find the congressional findings discussion and the temporary nuisance analogy persuasive. The repeated violation doctrine also takes into account the day-to-day realities faced by people with disabilities.
Repeated violation doctrine is not an open-ended situation for statute of limitations. Think of it as a look back. So, if a person deals with a two-year statute of limitations, then the claims that are in play are those arising during the years prior to the filing of the suit.
The case given strong credence to the argument that a failure to accommodate is an adverse action.
This also means that failing to fix the problem creates a new beginning of a statute of limitation timeframe for every day that the problem is not fixed.
Especially at the college and university level, when a student runs into t hat brick wall with the school not carrying out the disability services accommodations, they often have to leave. Having gone through such a crazy experience, the student may not want to return at all. One of the jobs, and not an easy one, of the plaintiff advocate is convincing the student that they should return if given the opportunity because injunctive relief is definitely a plaintiff lawyer wants to have in his or her quiver at the case proceeds.
Under title III of the ADA, damages are not a possibility. All you get is attorney fees and injunctive relief. Under title II of the ADA, damages are possibility if you can show intentional discrimination. Same goes for §504 of the Rehabilitation Act. What this court doesn’t address, it is just what is intentional discrimination. That may vary from jurisdiction to jurisdiction. One of the leading cases discussing this question is from the 11^th Circuit, and we discussed that case here. So, in addition to the lower court having to decide whether sidewalks, curbs, and ramps are a program (we did talk about sidewalks previously here as well as here), the lower court is also going to have to figure out just what is intentional discrimination.
For those who do not know, laches is a doctrine that can come into play when seeking equitable remedies, which includes an injunction. That doctrine means that the plaintiff has to come to the matter with clean hands.
The repeated violation doctrine also incentivizes prompt handling of reasonable accommodation requests.

§504

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