§504

DOJ can enforce title II of the ADA for now

September 20, 2019 by William Goren 1 Comment

Next week, my daughter is on break. She has one of those schedules where they are on for six weeks and then off for one week. They do get two weeks for winter vacation. So, since my schedule is likely to be all over the place next week, I thought I would do another blog this week since the 11^th Circuit came down with a very important decision on September 17, 2019. Previously, we have blogged twice on the case, here. The case involved the question of whether the Department of Justice has any authority to enforce title II of the ADA. In a 2-1 decision a panel of the 11^th Circuit says that it does. The person writing the decision (published), Judge Boggs, was sitting by designation from the Sixth Circuit. So, the actual judges on the 11^th Circuit split1-1. That leads one to wonder whether Florida will not petition for an en banc rehearing and may very well get it. The actual decision is 66 pages long, but it can be condensed considerably for our purposes. The facts aren’t really important as what was at issue is whether DOJ has the ability to enforce title II of the ADA through a court action. As usual, the blog entry is divided into categories and they are: what it comes down to; title VI of the Civil Rights Act; §504 of the Rehabilitation Act; title II of the ADA; dissent by Judge Branch; and takeaways. Of course, the reader is free to focus on any or all of the categories.

What It All Comes down to

The entire case turns upon how 29 U.S.C. §794a(a)(2) gets interpreted. More specifically, that statute provides: “the remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d et seq.) (and in subsection (e)(3) of §706 of such act (42 U.S.C. 2000e-5), apply to claims of discrimination in compensation) shall be available to any person (emphasis mine), aggrieved by any act or failure to act by any recipient of federal assistance or federal provider of such assistance under §794 of this title.
The reason it comes down to the interpretation of the above paragraph is that through a series of interlocking cross-references starting with 42 U.S.C. §12133 remedies for violating title II of the ADA are linked to the remedies section for violating §504 of the Rehabilitation Act, which in turn links to title VI remedies of the Civil Rights Act.

Title VI of the Civil Rights Act

The remedies for violating §504 of the Rehabilitation Act are tied into title VI of the Civil Rights Act.
Where there is a violation of title VI of the Civil Rights Act, agencies enforcing the prohibition on discrimination can either terminate funding to the particular program violating the regulation or can take action by any other means authorized by law.
Those feeling they have been subjected to discrimination in violation of title VI can file a written complaint. Upon receipt of that complaint, the Department is required to make a prompt investigation to determine whether recipient of federal funding has failed to comply with the antidiscrimination requirements. If that investigation demonstrates recipient is not in compliance, the Department must notify the recipient and attempt to resolve the matter by informal means if possible. Where informal means do not work, then the Department can take further action to induce compliance. Such action can include suspending, terminating, and refusing to grant or continue federal financial assistance, or “any other means authorized by law.”
Over time, “by any other means” has been characterized by the Department of Justice as including appropriate proceedings brought by the Department to enforce any rights of the United States under any law of the United States. That action cannot be taken until it has been determined that it cannot secure voluntary compliance, the Atty. Gen. has approved the action, and the noncomplying party had been notified of its failure to comply and the action to be taken.
28 C.F.R. §50.3 talks about alternative courses of action and specifically states that compliance with the nondiscrimination mandate of title VI may often be obtained more promptly by appropriate court action than by hearings and termination of assistance.
The phrase “any other means authorized by law,” shows that Congress intended to preserve other methods of enforcement, including the filing of suit. The court cites to various cases supporting that proposition.

III

§504 of the Rehabilitation Act

Congress amended the Rehabilitation Act in 1974. Legislative history from that amendment reveals that Congress intended §504, 29 U.S.C. §794, to lead to an implementation of a compliance program similar to title VI of the Civil Rights Act.
The Department of Health Education and Welfare procedures for carrying out the Rehabilitation Act were identical to those adopted by the DOJ in implementing title VI of the Civil Rights Act.
In 1978, the Department of Justice’s regulations for enforcement of §504 of the Rehabilitation Act became the same as those promulgated by the Department of Health Education and Welfare.
The enforcement scheme allows for both individual complaints and agency oversight leading to investigations ending with federal enforcement actions.
The United States has brought suit to ensure compliance with the Rehabilitation Act after the relevant agency has received the complaint and investigated.
Congress was fully aware of the administrative system when it passed the 1978 amendment to §504 and §505 of the Rehabilitation Act since those amendments codified existing administrative practice of using title VI procedures.

Title II of the ADA

Just because individuals have a private right of action, does not automatically lead to the conclusion that government enforcement is impermissible. Ensuring that public entities subject to federal statute comply with those statutes ultimately vindicates individual personal rights. However, that doesn’t mean Congress’s decision to enact the statutory scheme permitting governmental enforcement of title II should be ignored.
42 U.S.C. §12134(b) states that regulations implementing title II of the ADA have to be consistent and in coordination with regulation issued by the Department of Health, Education, and Welfare on January 13, 1978. This requirement leads to the conclusion that Congress intended the Atty. Gen.’s title II regulations to adopt Rehabilitation Act’s title VI type enforcement procedures because title II’s enforcement procedures use the Rehabilitation Act’s enforcement structure.
DOJ regulations implementing title II of the ADA set up an administrative scheme similar to the ones available for the Rehabilitation Act and title VI of the Civil Rights Act.
Congress expressly authorized the Atty. Gen. to make rules with the force of law interpreting and implementing title II of the ADA. Further, those regulations are reasonably related to the legislative purpose of the ADA and are consistent with the remedial structure Congress selected for title II. Accordingly, those regulations get deference as they are not arbitrary, capricious, or plainly contrary to the statute.
Congress chose to use §505(a)(2) the Rehabilitation Act as the enforcement mechanism for title II of the ADA with full knowledge those provisions established administrative enforcement and oversight in accordance with title VI. They also knew that by adopting that provision they incorporated title VI’s “any other means authorized by law,” provision.
If Congress intended to create a private right of action under title II as the only possibility for enforcement, then its decision to cross reference §505 of the Rehabilitation Act, 29 U.S.C. §794a, which expressly incorporates title VI, including its administrative enforcement scheme, would be mystifying, especially since Congress directed the Atty. Gen. to develop regulations consistent with the Rehabilitation Act enforcement procedures that included title VI enforcement.
When Congress enacted title II of the ADA, it drew upon two other statutes creating remedies, rights, and procedures available for enforcement with the full knowledge of those other statutes. Those other statutes were enforceable by federal agencies through funding termination or “any other means authorized by law.” Congress then told the Atty. Gen. to make regulations implementing title II of the ADA that were consistent with a set of regulations tracing directly back to the regulations implementing title VI of the Civil Rights Act. Congress was quite clear that title V the Rehabilitation Act and its accompanying regulations must be construed as the minimum standard for the ADA. Congress knew that both title VI and the Rehabilitation Act had been enforced through DOJ litigation when it enacted the ADA, especially since §12133 ultimately relates back to “any other means authorized by law.”
“Any other means authorized by law,” is a phrase courts have interpreted to permit referral to DOJ for further legal action.
Legislative history is not against having both a private right of action and with allowing DOJ to pursue enforcement actions.
Various courts have concluded that the Atty. Gen. has the power to enforce title II in federal court.
Unlike the Rehabilitation Act, the ADA is not spending clause legislation. Accordingly, there is a broad scope of potential federal enforcement under title II of the ADA.
Since title II enforcement provision cascades back to §602 of the Civil Rights Act authorizing the Atty. Gen. to enforce compliance of title VI of the Civil Rights Act by filing suit in federal court, the Atty. Gen. also can bring suit to enforce other statutes adhering to same enforcement scheme.
States are public entities under title II of the ADA and are explicitly subject to suit by the United States for violation of title II of the ADA.
States do not retain sovereign immunity from suits brought by the federal government.

Dissent by Judge Branch

The dissent is much more simple in its approach. Basically, what it says is that the section of 42 U.S.C. §12133 talking about the remedies being available to any person alleging discrimination means that the Atty. Gen. has no title II enforcement authority because “any person,” modifies the prior language talking about the remedies.
Everyone agrees that the Atty. Gen. is not a person for purposes of federal statutes.
Title I and title III explicitly references federal enforcement powers while title II of the ADA does not.

Takeaways

Basically, the difference between the majority opinion and the dissenting opinion is that the majority opinion believes the title II remedy section creates an either or situation by referring back to a bunch of statutes and then subsequently referencing “a person,” later on in that same section. On the other hand, the dissenting opinion believes the “to any person,” language modifies the remedy section referenced earlier on in that same statute.
The 11^th Circuit Judges split 1-1 on this decision. So, look for an en banc rehearing petition in order for the full 11^th Circuit to make a determination.
This decision has a huge impact on accessing governmental entities. For now, the DOJ has title II enforcement powers. I can tell you that I get contacted by so many different people that simply can’t afford a private attorney. Also, many plaintiff firms are in essence mom-and-pop shops. It can be very useful to bring in DOJ as leverage when taking on governmental entities, especially since the standard for getting damages under title II of the ADA, which we have discussed here, is higher than what you see under title I of the ADA.
I don’t know where the full 11^th Circuit goes with this case if they grant an en banc rehearing. As I have said several times before, the 11^th Circuit has become very progressive when it comes to the rights of people with disabilities. On a policy level, DOJ having title II enforcement authority makes a great deal of sense. However, the argument supporting that authority is a bit complicated and involves saying that a statute creates an either or situation. On the other hand, the dissenting argument is much more straightforward by saying “to any person,” modifies the rest of the statute. Also, in title I and title III, separate explicit statutory provisions exist for federal enforcement, which is not the case under title II.
If the 11^th Circuit grants a petition to rehear the case en banc, the time for the final decision will be down the road. Further, if the decision of the full 11^th Circuit, assuming it decides to hear the case, supports DOJ enforcement of title II, I would look for an appeal to the United States Supreme Court. That would mean that the 2020 elections would become critical because regardless of what the United States Supreme Court says (this one could go either way), a Democratic Congress could amend the ADA so as to specifically include DOJ enforcement authority in title II of the ADA. Even assuming Congress remains split between the parties, with a Democratic president, assuming that happens, and it may not, and a Democratic House, it is possible that the ADA could be amended that way. Everything I am reading says that a takeover of the Senate by Democrats is extremely unlikely, but one never knows. Ground Zero will be right here in Georgia with two Senate seats up due to the resignation of Senator Isaacson.
Maybe amending the ADA, especially if the Supreme Court decides in favor of DOJ title II enforcement, is a bad idea since HR 620, which we discussed here, would also get put in play.
I have said many times that the ADA does not provide for individual liability. However, as noted by the 11th Circuit in the decision we are discussing in this entry, that isn’t the case in the 11^th Circuit when it comes to retaliation as a result of this case.
We have discussed sovereign immunity many times, but this case makes the important point that States do not get sovereign immunity from suits brought by the federal government.
I wonder if DOJ will continue to advocate for it title II enforcement as this case proceeds or if it will switch sides. For those on the plaintiff side, it may be heartening to see that the Department of Education recently came up with a document supporting students with disabilities with respect to dual enrollment. Perhaps, that is a sign that the DOJ will stick to its position.

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.

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