ADA compliance auditing

Understanding the ADA Greatest Hits of 2018

December 21, 2018 by William Goren Leave a Comment

As promised, this week I am putting up the 2018 understanding the ADA greatest hits blog entry. It was a great year for the blog making the ABA 100 for the fifth year in a row. Simply wouldn’t do this and couldn’t do this without the great readers here. The only thing I will say is please don’t be afraid to comment. We don’t get a lot of comments, but when we do, they really add to the understanding of the blog entry in all its complexity.

Two blog entries that are always there because I feel they are very very important even if they do not make the greatest hits are: 1) ADA compliance auditing: higher education version; and 2) Whether the ADA is a nondelegable duty.

The greatest hits for 2018:

In reverse order, they are:

New to the list this year and with 794 hits, service dog and emotional support animals with respect to employment.
With 802 hits, service dog v. therapy dogs.
New to the list this year and with 856 hits, where does an independent contractor turn when he or she suffers disability discrimination.
With 1021 hits, just when does the statute of limitation BEGIN to run in a failure to accommodate case.
New to the list this year with 1049 hits, why all colleges need to do the two-step with respect to determining essential eligibility requirements of their program.
With 1240 hits, suing a state court system is complex but can be done.
With 1393 hits, what does it mean to exhaust administrative remedies.
New to the list this year and with 1437 hits, just what is a private club.
With 2023 hits, what do you have to show to get compensatory damages and title II cases.
With 2130 hits, the ADA and the applicable statute of limitations.
With 2674 hits, ADA and ADA related cases at the Supreme Court.
The number one blog entry and consistently so over the years with 2887 hits, can you get compensatory and punitive damages in retaliation cases. This blog entry is consistently number one year in and year out, though for this year, the ADA related cases at the Supreme Court blog entry came in a close second by just 200 hits. In the past, this particular blog entry has had doubled the amount of hits of the second-place entry.

Happy holidays and happy new year to everyone!

Proving up ADA Interference Claims and Other Questions

October 23, 2017 by William Goren Leave a Comment

Today’s case is from the Seventh Circuit, Frakes v. Peoria School District No. 150. This case is the first federal case I am aware of dealing with how do you go about proving a prima facie case for interference under the ADA. The ADA at 42 U.S.C. §12203 contains both retaliation and interference claims. The blog entry is divided into several categories and they are: where do you see interference claims; just how do you prove it; just what is purposeful discrimination under the ADA; aren’t there really just three elements to interference; other issues; and takeaways. The reader of course is free to concentrate on any or all of the categories, but I think you’ll want to read the whole thing.

Where Do You See Interference Claims

I have seen interference claims come up particularly with respect to higher education. Oftentimes, what happens is disability services comes up with a plan for the person with a disability, and then, either the bureaucracy or individual faculty members interfere with that plan. In those situations, interference claims may arise.

III

Just How Do You Prove It?

Until our case of the week, it was very unclear as to how you would prove it. When I have faced this situation, I have relied on the Fair Housing Act because there were not any ADA cases on point. Now, we have an ADA case on point. The Seventh Circuit said that proving up this kind of case means: 1) the plaintiff was engaged in activity statutorily protected by the ADA; 2) the plaintiff was engaged in, or aided or encouraged others in, the exercise or enjoyment of ADA protected rights; 3) the defendant coerced, threatened, intimidated, or interfered on account of her protected activity; and 4) the defendants were motivated by an intent to discriminate.

In higher education, it typically works like this. The plaintiff requests reasonable accommodations from disability services, disability services comes up with a plan, and then a faculty member or perhaps someone in the bureaucracy blocks the implementation of that plan or blocks the ability of that plan to be carried out effectively. So: requesting a reasonable accommodation is statutorily protected activity under the ADA; plaintiff would then be engaged in the exercise or enjoyment of ADA protected rights; the adverse reaction of the bureaucracy and/or faculty members to the request is then done on account of her protected activity; and then you have to prove intent.

Just What Is Purposeful Discrimination under the ADA?

We have discussed intentional discrimination under the ADA before, such as here (purposeful discrimination), and here (deliberate indifference). In most higher education interference cases, it would seem fairly easy for either of these standards to be met.

Aren’t There Really Just Three Elements to Interference?

It seems to me that elements one and two are the same. That is, element number two is automatically satisfied if element one is satisfied.

Other Issues

There are other issues created by interference claims including:

Can you get compensatory and punitive damages in interference claims. The answer to that question will be the same as the answer for retaliation, which we discussed here, considering the layout of 42 U.S.C. §12203.
Just when does the statute of limitations begin to run, especially since the Office of Civil Rights, if the student has elected to pursue that, can take quite a bit of time. The answer to this question very much depends upon the place you are in. I have seen courts go for constructive discharge. I have also seen courts say that each time a request for an accommodation is made, the clock starts to run at that moment in time, such as in the blog entry discussing this case. Similarly, if there is an interference situation, the clock will start to run at the moment interference occurs. I will say that the federal courts do not favor continuing violations.

VII

Takeaways:

Training, training, training by a knowledgeable person is really important. Especially with faculty members, they often feel they have complete control over their classrooms. That isn’t the way it rolls.
If you have different schools at your university, make sure each school has a dedicated 504/ADA person assigned to it so that the ADA/504 person understands the needs of that particular school.
Get lawyers involved when necessary.
On the plaintiff’s side, you want to get an attorney as fast as possible since every time an accommodation request is made or interference occurs, the statute of limitations starts to run unless you are in a constructive discharge jurisdiction, of which there aren’t many. This is particularly the case since administrative processes, whether they are internal or external, can take considerable amount of time and the statute of limitations clock is running in the meantime.
If you are on the University side, make sure you have done the two step, which we have discussed here.
Just what is causation for interference claims? Is it but for or mixed motive (see this blog entry)? We do know that causation for retaliation claims is but for and interference often gets put in the same box as retaliation, but the fact remains that retaliation and interference are separate statutory provisions in 42 U.S.C. §12203. Also, element four of the prima facie case discussed above, seems to leave room for argument that mixed motive could be in play.

Of course, if you have any questions about this and/or are seeking training in this area, feel free to get in touch with me.

Changing Role of Expert in ADA Matters?

August 31, 2015 by William Goren 1 Comment

I
Intro

Prior to the amendments to the ADA, a person with a disability had to prove that they had a physical or mental impairment that substantially limited a major life activity. A person with a disability still has to prove that. However, before the amendments a person under Toyota Motor Manufacturing, Kentucky v. Williams had to show a physical or mental impairment that severely restricted or prevented a person from performing a major life activity. Further, if the person uses mitigating measures, then those mitigating measures per Sutton v. United Airlines had to be factored in as well. What that meant as a practical matter was that 90% of ADA litigation was over whether a person had a disability in the first place. It also meant utilization of expert testimony to figure out whether a person was severely restricted or prevented from performing a major life activity. It also meant utilization of an expert if the person was using mitigating measures to figure out whether that person even after mitigating measures was severely prevented or restricted from performing a major life activity. With the amendments, the need for this kind of expert becomes far less necessary, if at all, since in most cases it’s going to be pretty obvious whether a person is an individual with a disability. That said, might there be a need for another kind of expert? That is, an ADA compliance expert that would evaluate the case and then testify as to whether the practices were in or out of compliance with the ADA, it’s implementing regulations, etc.

Full Disclosure And Note about This Particular Blog Entry: My practice has for some time included such work. Also note, that when I use the term ADA compliance expert in this blog entry , I am in no way referring to myself, but rather I am using the term in the context of a person designated as such during the course of a case in litigation involving the ADA.

Utilizing an ADA compliance expert creates several questions. First, is such testimony even admissible? Second, does it matter if such testimony is not admissible? Third, assuming the testimony is admissible, can an attorney get expert witness fees back when they prevail in an ADA case?

I got the idea for this blog entry after reading (my thanks to the Wait a Second Blog, which you can find in my blog roll), the recent case from the U.S. Court of Appeals for the Second Circuit entitled Gortat v. Capala Brothers, Inc.. That case was not an ADA case at all, but rather a Fair Labor Standards Act case. In that case, the Second Circuit held that since expert witness fees are not specified in the Fair Labor Standards Act, expert witness fees are not recoverable. In light of my disclosure above, it made me wonder whether the same would apply to an ADA matter with respect to any testimony going to ADA compliance.

As is my usual practice, the blog entry has been divided into categories: Introduction; would the ADA compliance expert testimony be admissible?; the law; what if the ADA compliance expert testimony is not admissible?; can you get the fees back in an ADA matter assuming the testimony is admissible?; and takeaways. The reader is free to focus on any or all of the categories.

II
Would the ADA Compliance Expert Testimony Be Admissible?

A. The Law

The admission of expert testimony is within the discretion of the trial court and is properly admissible when it serves to assist the trier of fact in understanding the evidence or in determining a fact in issue. However, resolving doubtful questions of law is the distinct and exclusive province of the trial judge. U.S. v. Weitzenhoff, 35 F.3d 1275, 1287 (9th Cir. 1993). Further, admitting expert testimony on contested issues of law is manifestly erroneous if the judge fails to instruct the jury on those points. Id. Other cases are phrased similarly. For example, one case when dealing with experts testifying as to the Americans with Disabilities Act Architectural Guidelines (ADAAG), said that although an expert may not provide testimony on an ultimate legal issue, that person may testify as to findings supporting the ultimate issue. Further, an expert may refer to the law in expressing an opinion without crossing the line into a legal conclusion providing that opinion contains underlying factual support. See Kalani v. Starbucks Corporation.

B. So, what does this mean in plain English?

1. The ADA is an incredibly complex law as we know from our blog. Therefore, the argument certainly exists that there are situations where an ADA compliance expert would serve to assist the trier of fact in understanding the evidence or in determining a fact in issue.

2. The testimony of an ADA compliance expert would need to be phrased in terms of compliance and not in terms of whether the ADA was violated.

3. The judge would have to instruct the jury on any matters testified to by the ADA compliance expert.

4. The matters testified to by the ADA compliance expert would need to be based upon underlying facts.

C. Due to the way the architectural guidelines are incorporated into the ADA, you certainly see and will continue to see a lot of ADA compliance experts in the area of whether the architectural guidelines were satisfied and which set of architectural guidelines apply.

D. Don’t forget about Daubert. That case holds that the methodology of the expert must make sense. I don’t believe this should be an issue with respect to architects and even attorneys testifying with respect to ADA compliance as their methodology is well known.

III

What if the ADA compliance expert testimony is not admissible?

If the ADA compliance expert testimony is not admissible (it isn’t a slam dunk that such testimony is admissible and especially so if §B is not observed), does it still makes sense to utilize a person to give such testimony? The answer to that question is twofold. First, in such a situation, a person may or may not be able to retrieve those fees as part of a settlement. Even so, if my experience is typical- which or may not be the case-, utilization of such a person in the litigation could well drive settlement regardless of whether the testimony is deemed ultimately admissible since the case is better understood by all parties.

Can You Get the Fees Back in an ADA matter?

The answer to this question is yes regardless of whether title I, title II, or title III is involved. 42 U.S.C. § 12205, which applies to all three titles of the ADA, specifically allows for litigation expenses as part of the award should a party prevail. Further, legislative history clearly indicates Congress included the term litigation expenses in order to authorize the court to shift costs such as expert witness fees, travel expenses and the preparation of exhibits. See, Lovell v. Chandler. It is even more clear with respect to title II matters that expert witness fees would be recoverable as the remedies for title II, 42 USC § 12133, specifically references back to the Rehabilitation Act. Further, when you follow out that string with respect to the Rehabilitation Act, the remedies specifically and explicitly includes expert witness fees.

V
Takeaways:

1. Expert testimony going to whether the person has a physical or mental impairment or whether they are substantially limited in a major life activity with or without mitigating measures would seem to be, except in the rarest of cases, no longer necessary in light of the amendments to the ADA, but that is not to say testimony isn’t needed with respect to substantiating the disability of the individual. This is a huge change from the situation before the amendments to the ADA.

2. Considering the way the ADAAG is woven into the ADA itself, certainly expect lots of expert testimony from architects and people specializing in architectural compliance vis a vis the ADA with regards to whether those guidelines are satisfied.

3. An argument exist, though is it is not a slam dunk, that utilizing an ADA compliance expert with respect to practices may be admissible as it could assist the trier of fact in understanding the evidence or in determining a fact in issue.

4. Regardless of whether the ADA compliance testimony pertains to § V2 or § V3 of this blog entry, such testimony has to be phrased in terms of compliance with the ADA and not in terms of violations of the ADA and also needs to be based upon the facts of the case. Further, there would have to be jury instructions with respect to the issue the testimony covered.