42 U.S.C. §12102

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.

Issues Relating to Medical Exams

September 25, 2018 by William Goren Leave a Comment

I did not blog last week, but I have a good excuse. Last week, was the Jewish day of atonement, Yom Kippur, and my daughter was also on fall break. For those who were celebrating last week, I hope your holidays went well. My daughter is now back in school, and so I am ready to get back to it.

Today’s blog entry is actually a two-for-one. We will explore the issue of medical exams both in terms of when they can be done and whether you can ask the employee to pay the cost of the medical exams. In our first case, EEOC v. BNSF Railway Company, we visit the question of whether a prospective employer can force a person with a disability to pay for the cost of a medical exam, in this case an MRI. In the second case, In the Matter of Paul Williams, Township of Lakewood, we visit the question of whether an anonymous tip is sufficient to require an employee to undergo a medical exam. As usual, the blog entry is divided into categories and they are facts, court’s reasoning, and takeaways for each case (a total of six different categories). Of course, the reader is free to read any or all of the categories.

BNSF Railway Company Facts

Holt received a conditional job offer from BNSF Railway Company for the position of Senior Patrol Officer contingent on his satisfactory completion of a post-offer medical review. During that medical review, he disclosed that he had injured his back four years before when he suffered a two-level spinal disc expiration. His primary care doctor, his chiropractor, and BNSF’s subcontractor doctor hired to examine him all determined that he had no current limitations with his back and found no need for follow-up testing. Even so, BNSF demanded that he submit an MRI of his back at his own cost, which would have run him $2500 since insurance would not cover it, or it would treat him as having declined the offer. Since he was in bankruptcy at the time, he did not obtain an MRI. As a result, BNSF revoked the job offer.

At the District Court level, the court held that the EEOC had shown that BNSF had regarded Holt as having a disability due to his back injury, that he was qualified for the job, and that BNSF had discriminated against him by requiring an MRI because it regarded him as having a disability. It also held that there wasn’t sufficient evidence to support any affirmative defense and granted partial summary judgment to the EEOC. The parties then reached an agreement on the amount to be awarded for damages, but BNSF did not waive its appellate rights and did in fact appeal. The District Court also entered a nationwide injunction against BNSF mandating that BNSF bear the cost of procuring any additional information it deemed necessary to complete a medical qualification evaluation. The injunction also required BNSF if they chose not to procure additional information, to complete the medical examination process using medical information it had in order to make a determination about whether the applicant was medically qualified for the job for which he received the conditional job offer.

BNSF Railway Company Court’s Reasoning

Proving a prima facie case a means showing that Holt: 1) had a disability as defined by the ADA; 2) was qualified for the position as defined by the ADA; and 3) that BNSF discriminated against Holt because of his disability.
42 U.S.C. §12102(1)(C) provides that a person is regarded as having a disability where he or she can establish that an adverse action occurred because of an actual or perceived physical or mental impairment regardless of whether or not the impairment limited or is perceived to limit a major life activity.
It is no longer necessary to show that the impairment had to be perceived to substantially limit a major life activity for discrimination to be actionable under the regarded as definition. So, all the EEOC had to show is that Holt had an impairment and not that the impairment was substantially limited.
A plaintiff must show that the employer knew that the employee had an actual impairment or perceived the employee to have an impairment and that the impairment was not transitory or minor.
While physical or mental impairment does not appear in the ADA itself, the EEOC at 29 C.F.R. §1630.2(h)(1) has defined an impairment as any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems.
By requesting an MRI because of his back condition and conditioning the job offer on the completion of the MRI at Holt’s own cost, BNSF assumed that he had a back condition disqualifying him from the job unless he could disprove that proposition. Further, in rejecting his application because it lacked a recent MRI, BNSF treated him as it would an applicant whose medical exam had turned up a back impairment or disability. Therefore, BNSF chose to perceive him as having an impairment at the time it asked for the MRI and at the time it revoked the job offer.
Interpreting the ADA so that the definition of perceived impairment includes situations where an employer assumes an employee has an impairment or disability is consistent with the ADA as amended mandate that the definition of disability is construed broadly in favor of persons with disabilities.
Requiring an applicant pay for an MRI or lose his or her job offer because the applicant has a perceived back impairment is a condition of employment that imposes discriminatory conditions on a person with a perceived impairment. Further, considering the cost of MRIs, requiring an MRI as a condition of employment will for many individuals mean disqualifying them from participating in the process.
42 U.S.C. §12112(d)(3) does not authorize an employer to further burden a prospective employee with the cost of the testing regardless of how necessary the testing may be.
Where an employer requested an MRI at the applicant’s cost only from person with a perceived or actual impairment or disability, the employer is imposing an additional financial burden on a person with a disability because of that person’s disability. Such a requirement effectively precludes many applicants and directly contradicts the ADA’s aim to increase opportunities for persons with disabilities.
While there is nothing wrong with requiring additional follow-up testing, it is quite a different kettle of fish to require that the additional follow-up testing be done at the applicant’s expense. Imposing such a requirement limits the general protections of the ADA far beyond the necessary implications of what is allowed the ADA medical testing scheme.
The ADA already puts financial burdens on the employer by requiring them to pay for reasonable accommodations in the absence of an undue hardship. So, allowing employers to force people with disabilities or perceived impairments to pay for follow-up test subverts the goal of the ADA to ensure that those with disabilities have equality of opportunity and would force them to face costly barriers to employment.
If employers are not required to pay for the additional medical tests they require of people with disabilities, they very well might use that medical testing as a way to screen out applicant with disabilities. Putting the burden to pay on employers, helps to ensure that employer do not abuse their power to require testing at the post-offer, pre-employment stage.
While the EEOC did not show that BNSF acted with the discriminatory motive, it didn’t have to since it was clear that action was taken because of an impairment or perception of an impairment.
BNSF did not contest the issue of whether Holt was qualified under the ADA but even so, they decided to impose an MRI on him because of its perception that he had an underlying back problem.
With respect to the nationwide injunction, the court noted that there are customarily four factors a court considers when granting a nationwide injunction and they are: 1) whether plaintiff has suffered an irreparable injury; 2) whether remedies available at law are inadequate to compensate for that inquiry; 3) the balance of hardships; and 4) the public interest. While the District Court did not engage in this analysis, the Ninth Circuit holds that the factors were met in this particular case. Even so, the Ninth Circuit said that the injunction had to be vacated and remanded because the District Court failed to make adequate factual findings to support the scope of the injunction.

III

BNSF Takeaways

The ADA has a complicated scheme when it comes to medical exams and disability related inquiries, and we discussed that in this blog entry.
It is a bit mind-boggling to me that an employer would try to impose the costs of such exams on the applicant because doing so undoubtedly screens out people with disabilities and directly contravenes the whole idea behind the ADA in the first place.
There is a big debate going on right now about the utility of nationwide injunctions, and the four factor test provides a useful guideposts for trying to figure that out.
Interesting that the Ninth Circuit says that the final prong of a prima facie case is showing that the applicant was discriminated against, “because of his disability.” As we discussed in this blog entry, that is not what the ADA as amended requires.
Also interesting, is that the court with respect to regarded as says the ADA as amended provides for an exception from regarded as coverage if the impairment is transitory OR minor. However, 42 U.S.C. §12102(3)(B) requires that the impairment to be excluded must be transitory AND minor. Also, the court says that the plaintiff has the burden to show that the impairment is not transitory or minor.
While it is true that physical or mental impairment is not defined in the ADA itself, 29 C.F.R. §1630.2(h) does state what a physical or mental impairment is. It is a rather sparse definition, but in fleshing that out, it is helpful to remember how the ADA as amended defines major life activities.
Don’t forget about the screen out provisions of the ADA.

In the Matter of Paul Williams, Township of Lakewood Facts

The Township of Lakewood received an anonymous letter purportedly from a very concerned employee at Lakewood Public Works saying that Williams had mental issues and was a time bomb waiting to explode. For over eight months, the Township took no action concerning the letter. Then, the Township advised Williams that he would be sent for psychological fitness for duty examination and that if he did not attend such an examination he would face disciplinary action. Williams believe the examinations were not job-related and consistent with business necessity as required by the ADA at 42 U.S.C. §12112(d)(4)(A), and so he did not attend the evaluations. Accordingly, the Township sought to remove him from employment. It first went through the ALJ, which found in favor of Williams. They then appealed it to the Commission, which found in favor of the Township. Williams then appealed it into the court system.

In the Matter of Paul Williams, Township of Lakewood Court’s Reasoning

The ADA at 42 U.S.C. §12112(d)(4)(A) prohibits employers from requiring a medical exam or making inquiries on employee at the whether such employee is a person with a disability unless such examination or inquiry is shown to be job-related and consistent with business necessity. Citing to a case (Kroll), discussed in this blog entry, the court notes that there is very little discussion of this particular section in the ADA’s legislative history.
EEOC regulations make clear that an employer cannot require an employee to undergo medical test that do not serve a legitimate business purpose.
In an EEOC enforcement guidance, the EEOC says that a disability-related inquiry or medical examination of an employee may be job-related and consistent with business necessity when the employer has a reasonable belief, based upon objective evidence, that either: 1) an employee’s ability to perform essential job functions is impaired by a medical condition; or 2) an employee poses a direct threat due to a medical condition.
With respect to direct threat, which we have discussed many times in our blog, such as here, pursuant to 29 C.F.R. 1630.2(r), the term refers to a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodations.
An employer has to reasonably believe either through direct observation or through reliable information obtained from credible sources that the employee’s perceived medical condition is affecting his or her work performance or that the employee poses a direct threat before it can require a medical examination of a current employee.
EEOC enforcement guidelines says that an employer cannot act on information learned from another person to impose a medical exam unless the information learned is reliable and gives rise to a reasonable belief that the employee’s ability to perform essential job functions is impaired by a medical condition or poses a direct threat due to a medical condition. The guidance goes on to list five factors for an employer to consider for determining whether the information an employer receives is reliable and those factors are: 1) the relationship of the person providing the information; 2) the seriousness of the medical condition at issue; 3) the possible motivation of the person providing the information; 4) how the person learned of the information (whether directly from the employee whose medical condition is in question or from someone else); and 5) other evidence that the employer has bearing on the reliability of the information provided.
The employer’s belief requires an assessment of the employee and his or her job and cannot be based on general assumptions.
The Township did not meet its burden to demonstrate that requiring a physical exam was job-related and consistent with business necessity because the evidence was not there: 1) Williams work performance was satisfactory; 2) while Williams was confrontational at times, he didn’t behave differently than any other employee; 3) the Township failed to prove that Williams was a direct threat to either himself, others, or property; 4) prior employees of the Township were not required to undergo psychological evaluations, and the Township did not present any documentary evidence concerning any other disciplinary actions involving Williams; 5) the Township failed to take action for eight months; 6) the Township could have but did not solicit information from the Department of Public Works Director and any other supervisors concerning Williams job performance; and 7) the Township could have contacted the three union stewards specifically named in the letter for information about the alleged outbursts that Williams had but did not. Instead, they failed to investigate for over eight months, and then sought to rely on the letter as the sole basis for requiring the medical exam.

In the Matter of Paul William Township of Lakewood Takeaways

I am generally not a big fan of enforcement guidances. I think lawyers use them as a crutch. I am much happier sticking to statutory provisions and final implementing regulations that have gone through the rulemaking process. That said, as we discussed in this blog entry, enforcement guidances do prove useful at times. I believe using the enforcement guidance’s five factor test to figure out whether information you receive that might justify a medical exam makes a lot of sense and is good preventive law. I suppose whether it makes sense is a personal call, but hard to argue that the enforcement guidance five factor test is great preventive law.
The case cited to in the opinion, Kroll, we discussed here.
In many ways, the decision to require a medical exam of the current employee blends into whether a direct threat exists.
You can never go wrong with individual analysis.
If you receive information suggesting that a medical examination may be in order, in addition to the five factor test, be sure to look into it promptly and not wait eight months.
This court says transitory and minor is an affirmative defense, which is different from what the Ninth Circuit says in BNSF, our first case. So, when it comes to transitory and minor, check your jurisdiction on who has the burden of proof. Also, on the plaintiff side, be sure to monitor the defense so that a court is not convinced that it is transitory or minor rather than transitory and minor as stated in the ADA itself.

42 U.S.C. §12102

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