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Massage Envy Decided by 11th Circuit

September 16, 2019 by William Goren 1 Comment

Today’s blog entry will focus on the decision from the 11^th Circuit decided September 12, 2019, on the Massage Envy case we discussed here. In this decision, the 11^th Circuit affirmed the opinion of the lower court holding that regarded as does not apply to fear of a future disability. As mentioned in the original blog entry on this case, the lower courts are split on this question. I do look for a Circuit Court split in the future on the matters discussed in this blog entry. Since we have already talked about this case extensively, there isn’t a need to bother with the facts except as they are germane to the court’s reasoning. So, this blog entry is divided into categories of: court’s reasoning regarded as; court’s reasoning association discrimination; miscellaneous matters; and thoughts/takeaways. The reader is free to concentrate on any or all of the categories.

Court’s Reasoning Affirming the District Court That Regarded As Does Not Apply to Fear of Employee Catching Ebola on a Trip to Ghana

Employer’s fear that employee could catch Ebola was unfounded as there were no confirmed cases of Ebola in Ghana during the 2014 outbreak.
42 U.S.C. §12102(1) defines a disability as: 1) a physical or mental impairment that substantially limits one or more major life activities of such individual; 2) a record of such an impairment; or 3) being regarded as having such an impairment.
With respect to regarded as having such an impairment, 42 U.S.C. §12102(3)(A) that definition is satisfied if the individual establishes he or she had been subjected to an action prohibited under the ADA because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
Regarded as does not apply to impairments that are transitory and minor.
Time period for assessing the existence of disability for purpose of triggering ADA protection is the time of the alleged discriminatory act.
The court agrees with the defense that the employer perceived the employee as having the potential or possibility of becoming infected in the future when she traveled to Ghana. That is not the same thing as the employer perceiving the employee had Ebola.
The definition of disability and 42 U.S.C. §12102(1) provides that a disability is a present physical or mental impairment, a record of such an impairment, or being regarded as having such an impairment.
Many courts have said that the impairment in the actual disability prong is limited to impairments existing at the time of the adverse employment action and does not include impairments manifesting after the alleged discrimination. Therefore, it necessarily follows that impairment in the regarded as prong has the same meaning as impairment in the actual disability prong because terms appearing in several places in statutory text generally read the same way each time it appears.
42 U.S.C. §12102(1)(C) refers to “such an impairment,” which necessarily refers back to 42 U.S.C. §12102(1)(A).
So, in regarded as cases a plaintiff has to show the employer knew the employee had an actual impairment or perceived the employee to have such an impairment at the time of the adverse employment action. Further, that impairment must not be transitory and minor.
When 42 U.S.C. §12102(3)(A) is read most naturally, a person is regarded as a person with disability only if she is subject to termination because of an actual or perceived physical or mental impairment. That is, an employer does not fire or otherwise discriminate against an employee because of a perceived physical impairment unless the employer actually perceives the employee to have that impairment. So, 42 U.S.C. §12102(3)(A) does not extend to an employer’s belief that an employee might contract or develop an impairment in the future.
While it is absolutely true that the ADA has to be construed in favor of broad coverage of individuals, the court still concludes that the terms of the ADA protect anyone who experiences discrimination as a result of a current, past, or perceived disability and not a potential future disability.
The EEOC’s own interpretive guidance, a body of experience and informed judgment that the court may properly resort to for guidance, states that a predisposition to developing an illness or disease is not a physical impairment.
In the EEOC’s appendix to the regulations, the EEOC says that it is important to distinguish between conditions that are impairment and physical, psychological, environmental, cultural, and economic characteristics that are not impairments. That same appendix says that characteristic predisposition to illness or disease did not constitute a physical impairment under the ADA. So, if a predisposition to developing a disease in the future is not a physical impairment, then the court simply didn’t see how the plaintiff’s heightened risk of developing the disease of Ebola in the future by visiting Ghana constitutes a physical impairment either.
While it is true that the phrase “being regarded as having such an impairment,” contains present tense verbs (present tense can include the future), the plain language of the ADA in the context of this provision indicates that being regarded as does not apply to the future.
The 11^th Circuit also wasn’t buying that regarded as should be read as being regarded as having an imminent impairment because that would be adding a word to the statute that doesn’t exist.
The statutory text of the ADA is such that the employer must perceive the employee as having a current existing impairment at the time of the alleged discrimination.

Court’s Reasoning Association Discrimination

The association discrimination provision is intended to protect qualified individuals from adverse job actions based on unfounded stereotypes and assumptions arising from the employee’s relationship with particular persons with disabilities.
A prima facie claim for association discrimination means showing: 1) plaintiff was subjected to an adverse employment action; 2) plaintiff was qualified for the job at that time; 3) plaintiff’s employer knew at that time that she had a relative or associate with a disability; and 4) the adverse employment action occurred under circumstances raising a reasonable inference that the disability of the relative or associate was a determining factor in the employer’s decision.
While the nature of the relationship in question does not have to be family (see 29 C.F.R. §1630.8), a plaintiff does have to show an association or relationship with a specific person with a disability or persons with a disability (see 42 U.S.C. §12112(b)(4).
Plaintiff’s claim fails because plaintiff did not plausibly allege that the employer knew the plaintiff had an association with a specific individual with a disability in Ghana when it terminated her employment.
Alleging plaintiff might come in the contact with certain unknown individuals by traveling in Ghana is too attenuated a connection for stating an association discrimination claim because that kind of claim requires both a known association and a known disability.
EEOC failed to plausibly allege a sufficient association or relationship with unknown individuals with Ebola. After all, plaintiff was not traveling to Ghana to assist with the Ebola epidemic. It isn’t good enough to allege that plaintiff might come into contact with those individuals by traveling in the country.
Generalize references to association with persons with disabilities or to advocacy for a group of persons with disabilities are not sufficient to state a claim for association discrimination under the ADA.
The EEOC did not cite to any case involving the association discrimination claim based upon the employer’s belief about an employee’s potential causal association with unknown people with disabilities.
An employer may fire an employee for good reason, a bad reason, a reason based on erroneous facts, or for no reason at all so long as its action is not for discriminatory reason contrary to federal law.

III

Miscellaneous Matters

The 11^th Circuit agrees that the lower court was justified in refusing to allow the EEOC to amend its complaint to add an interference claim because the plaintiff had no right granted or protected by the ADA to begin with;
The 11^th Circuit agreed with the plaintiff that the District Court erred in not allowing her to intervene in the lawsuit because plaintiff as a matter of right has the right to intervene in the lawsuit. Nevertheless, since plaintiff had no underlying ADA rights to begin with, denying the intervention was harmless error;
Judge Jordan concurred. He was of the opinion that the clear statutory language was such that the majority opinion got it right. However, he did write to state that the policy behind the ADA supported the plaintiff’s position. In particular, the ADA was enacted in part to eliminate the sort of stereotyping allowing employers to see their employees primarily as their disability. Also, citing to Shell, which was discussed in the original Massage Envy blog entry, Judge Jordan says the EEOC position that “regarded as,” encompasses a decision made by an employer based on a perception that an employee is going to suffer experience a disability in the future makes a lot of sense.
Judge Jordan would have also decided the question of whether the EEOC had to exhaust administrative remedies before filing suit. He also says that he would have decided in favor of the EEOC that the exhaustion of administrative remedies doctrine does not apply to the EEOC.

Thoughts/Takeaways

The contrary view to this decision was expressed by the court deciding Shell.
The 11^th Circuit has been very pro-person with a disability of late. So, one wonders whether a petition for rehearing en banc will not be sought. Appeal to the United States Supreme Court? With respect to the United States Supreme Court, it is true that United States Supreme Court is not friendly to people with disabilities with respect to employment matters. However, United States Supreme Court of late has been very interested in looking at the rights of people with disabilities broadly outside of the employment context, such as here and here, for example. Not at all clear to me even with the configuration of this court, how the Supreme Court might decide this.
The Shell case has several arguments that could be used to convince an en banc court that this panel didn’t get it right. These arguments appear below in ¶ ¶ 4-8 of this section. Keep in mind, the facts in Shell, dealing with obesity, were much more obvious that the employer perceived a disability than they are in Massage Envy. Also, the “voluntary,” conduct in Shell was much less of an issue there than it is in Massage Envy. So, Massage Envy certainly has an argument that Shell is distinguishable. I realize in the original blog entry that I didn’t see how the two cases could be distinguished, but upon further review, there is a possibility that they can be. After all, it is football season. So, we always have, “upon further review.”
The policy behind the ADA, as Judge Jordan mentioned, is such that regarding a person as having a future disability is protected by the ADA.
The ADA makes quite a point about individualized analysis needing to be done just about everywhere. That certainly wasn’t the case when Massage Envy terminated the plaintiff.
A distinction exists between being predisposed to illness generally v. being predisposed to developing a disability subject to the ADA.
The employer acted upon worst-case scenarios derived from precisely the sort of myths, fears, or stereotype the ADA was meant to guard against.
The 11^th Circuit ignores that the ADA prevents an employer from adopting policies, practices, and procedures that screen out people with disabilities.
If the 11^th Circuit decision holds, does that mean employers have free reign to terminate employees with genetic conditions that will manifest themselves later? Will the distinction in those kinds of cases be “voluntary,” conduct?
11^th Circuit cites to the EEOC’s appendix on more than one occasion. The appendix is essentially the EEOC interpreting its own regulations. As we know from our discussion in Kisor v. Wilkie, it is far from a certain conclusion that the EEOC’s interpretation of its own regulations will automatically get credited as the go to deciding factor.
I agree with the court that it doesn’t make a lot of sense to say regarded as must be read as regarding as having an imminent impairment.
The Circuit’s are splitting on what association discrimination is. The 11^th Circuit has a far broader notion of association discrimination than the Seventh and Second Circuits (see, here). As we discussed in this blog entry, in the Second and Seventh Circuits, association discrimination only applies under certain narrow factual situations. The 11^th Circuit decision doesn’t do that. Another Circuit court split that tees up for the Supreme Court.
It is not a foregone conclusion to me that the actual disability prong must dictate the same conclusion with respect to the regarded as prong when it comes to whether a future impairment is part of the regarded as definition. You could argue that the regarded as prong essentially functions as an adjective modifying the actual disability prong.
The 11^th Circuit uses “because of,” several times in its opinion. Causation under title I is “on the basis of,” as we have discussed many times before, such as here.

Is Causation Under Title I But For Causation? Ninth Circuit Says Yes; I Say No

August 24, 2019 by William Goren Leave a Comment

Before starting on today’s blog entry, I do want to wish a speedy recovery to Justice Ginsburg. Regardless of your political views or your jurisprudential views, you can’t argue that Justice Ginsburg is not one of the legal titans of the late 20^th and early 21^st century. Wishing her a speedy recovery.

Today’s blog entry is a case that came down from the Ninth Circuit holding that causation for title I claims are, “but for.” We will explore the court’s reasoning, and then in the counterargument/thoughts section, I will proceed to tear that reasoning apart. Definitely, look for a petition for an en banc rehearing as a panel overrules prior Ninth Circuit precedent. The case of the day is Murray v. Mayo Clinic decided on August 20, 2019. The facts don’t really matter because causation is the question. What happened here was the plaintiff loses at trial. Plaintiff wanted a mixed motive instruction but got a but for instruction instead. Plaintiff appeals saying that instruction was in error. As usual, the blog entry is divided into categories and they are court’s reasoning and counterargument/takeaways. I imagine you will want to read the whole thing.

Court’s Reasoning

Motivating factor is irreconcilable with Gross, discussed by us many times previously, such as here, and Nassar, discussed here.
Title I of the ADA prohibits discrimination on the basis of disability.
In 42 U.S.C. §12117(a), only one of the cross-referenced sections references a causation standard. That standard references motivating factor but that in turn focuses on a section that doesn’t talk about disability discrimination at all.
The Supreme Court held in Gross that retaliation claims under the Age Discrimination in Employment Act were governed by a but for standard.
The Supreme Court in Nassar held that title VII retaliation claims are also governed by a but for standard.
After those two cases, Circuits have retreated from a motivating factor standard in ADA cases.
The motivating factor standard for causation is appropriate for employment discrimination claims under title VII.
The ADA does not contain any explicit motivating factor language.
Under Gross, “on the basis of disability,” indicates but for causation.
In the motivating factor section of the statute, disability is not mentioned. So, it would be improper to conclude that what Congress omitted from the statute is nevertheless within its scope.
No meaningful textual difference exists between because of disability and on the basis of disability. The Second and Fourth Circuit found nothing in the legislative history indicating Congress intended to modify the ADA’s standard for causation.

Counterarguments/Thoughts

Both Gross and Nassar are easily distinguishable. In Gross, it was a retaliation claim under the Age Discrimination in Employment Act. Also, the Age Discrimination in Employment Act uses the term “because,” and not the term, “on the basis of.” Nassar was also a retaliation claim, this time under title VII of the Civil Rights Act. In that case, the Supreme Court specifically held that retaliation claims are governed by a but for standard. However, the majority opinion specifically noted that status based claims are not governed by that standard. Discrimination on the basis of disability is status based, and therefore, per Justice Kennedy, not subject to but for causation under Nassar.
It is incorrect that legislative history doesn’t exist as to why Congress went with “on the basis,” v. “because.” More on that in a minute. I can tell you as a former member of the Illinois Senate Democratic legal staff, legislators and their staff counsel don’t go changing words for the heck of it (unless it is a shell bill, which the amendments to the ADA clearly were not). If they change a word, there is an intent behind it. In fact, legislative history discussing why the change was made does exist. I am clueless as to why nobody is finding it. In particular, H.R. Rep. 110-730 at the discussion of, “Discrimination on the Basis of Disability,” says that the reason why “on the basis,” was inserted into the ADA was to ensure that the more direct language, structured like title VII placed the emphasis on the critical inquiry of whether a qualified person with a disability has been discriminated against on the basis of his or her disability and not upon whether a particular person was even a person with a disability, and therefore, subject to the protection of the ADA in the first place. Further, that same section of the House Report goes on to say that the term “qualified,” remains in the ADA because the House wanted to make clear that the burden shifting framework applicable to cases involving the indirect method of proof applies to the ADA. Of course, that burden shifting framework presumes motivating factor.
A motivating factor approach is consistent with achieving the purpose and findings behind the ADA in the first place as set forth in 42 U.S.C. §12101.
If I am the plaintiff, I am definitely petitioning for rehearing en banc for two reasons. First, a panel overrules a prior decision of the Ninth Circuit. In many Circuits, that automatically generates an en banc rehearing. Second, a strong argument exists, as mentioned above, that the Ninth Circuit panel here misinterpreted Gross and misinterpreted Nassar. It also did not look at relevant legislative history. Perhaps, the attorneys had not read my book as the legislative history discussion with respect to the change from “because,” to “on the basis of,” appears on pages 173-174 of Understanding the ADA, fourth edition. The burden shifting discussion in the House Report immediately follows the discussion of the change to “on the basis of,” from, “because of.”
Not all plaintiff lawyers are a fan of motivating factor. Some have told me that it is just too complicated. Juries are more likely to understand but for causation. Of course, the problem with but for is what happens when there is more than one cause, which is usually the case. A couple of things here. First, even cases talking about but for causation will mention that but for is not the same thing as sole cause . Second, if there is more than one cause, what standard can you use? We discussed one such possibility, necessary cause, here.
This case is definitely worth following and eventually will make its way to the Supreme Court. When it get to the Supreme Court, it will be very interesting as persons with disabilities have not fared well when it comes to employment issues. On the other hand, this isn’t really an employment law question, but rather a question of how broadly the statute should be read, whether two United States Supreme Court cases are being interpreted properly, and the importance of legislative history that for reasons unknown was not brought forth.

Legal Malpractice Risks and the ADA

April 30, 2019 by William Goren Leave a Comment

Previously, I have talked about how the EEOC if it wasn’t the EEOC would have committed legal malpractice in the case we talked about here. From going through my search engine, it doesn’t seem like I have talked about where the legal malpractice risks are with respect to the ADA. In going through my publishing and presenting files, I did find a presentation that I made back in 2012 on the ADA and legal malpractice risks. Our case of the day coming from the Third Circuit, Robinson v. First State Community Action Agency, a published decision from April 1, 2019, is a case where the defense undoubtedly needs to be contacting its legal malpractice insurance carrier. All of this caused me to dig up my 2012 presentation and talk about legal malpractice risks when dealing with the ADA. As usual, the blog entry is divided into categories and they are: elements of a legal malpractice claim; specific ADA legal malpractice risks; case of the day facts; court’s reasoning upholding the jury verdict; and takeaways. As usual, the reader is free to focus on any or all of the categories.

Elements of the Legal Malpractice Claim

The elements of a legal malpractice claim vary depending upon whether litigation or transactional matters are involved. The elements may vary from State to State since legal malpractice is a state matter. Nevertheless, the elements are probably similar no matter where you are. With respect to litigation or a transactional matter, typical elements are: 1) the attorney owes the plaintiff the duty of due care arising from the attorney-client relationship; 2) attorney breached that duty; and 3) as a proximate result, the client suffered an injury. With respect to the injury, the injury is to an intangible property interest caused by the lawyer’s negligent act or omission (actual damages).
With respect to proximate cause in a litigation matter, that breaks down into cause in fact and into legal cause. Cause in fact turns on showing that but for the negligence of the attorney, the client would have prevailed. Legal cause is foreseeability.
With respect to cause in fact in a transactional matter, the question is whether had the undisclosed risk been known, he or she would not have accepted the risk and consented to the recommended course of action.
With respect to damages in a transactional matter, damages are any damages that proximately follow from the client’s acceptance of the advice that fell below the standard of reasonable legal services.

Union Planters Bank, N.A. v. Thompson Coburn LLP, 402 Ill. App. 3d 317, 342 (fifth district 2010).

Specific Legal Malpractice Risks

In Cleveland v. Policy Management Systems Corporation, 526 U.S. 795 (1999), United States Supreme Court said that an SSDI filing may under certain circumstances prevent a person from being able to argue later that the employer did not reasonably accommodate them with respect to the disability because the way the SSDI claim was filed meant that the person with the disability was not qualified to do the job. So, an SSDI lawyer needs to make sure that when filling out the SSDI application that somehow it is made sure that the claim that the person cannot do any job in the economic marketplace is not factoring in reasonable accommodations. Also, the SSDI attorney as a matter of course needs to advise there is a risk that by filing the SSDI claim, a future ADA claim may be put at risk.
Alleging working as the major life activity. In Sutton v. United Airlines, 527 U.S. 471 (1999), the Supreme Court held that to be substantially limited in the major life activity of working, the person must be unable to perform a broad class of jobs. While the ADA amendments did overrule Sutton with respect to mandating mitigating measures be factored into whether a person has a disability, the working as a major life activity part of Sutton is untouched. It is next to impossible for a plaintiff to prevail whenever working as the major life activity is alleged. Further, since the amendments to the ADA broadened the reach of who may have a disability, using working as the major life activity is virtually always unnecessary.
100% return to work or insisting on full duty. In this blog entry, we discussed how 100% return to work policies are dead under the ADA. I have taken that position since the first edition of my book came out in 2000, but as we have seen in our blog, cases now support that position. If your company’s lawyers are signing off on full duty irrespective of reasonable accommodations or are signing off on 100% return to work policies, they have a problem.
If you are licensing counsel and you have a client that is the subject of licensure proceedings because they are either being regarded as having a disability or they have a record of a disability and you don’t know the ADA, the chances are high that your client will be subject to a variety of adverse actions that may not be consistent with the ADA. You don’t want to let that happen. In my opinion, definitely a malpractice risk if it does happen.
Regarded as. Before the amendment to the ADA, it wasn’t clear whether a plaintiff could argue that they needed reasonable accommodation in a regarded as case. The amendments to the ADA explicitly say that a person who is regarded as having a disability is not entitled to reasonable accommodations. If someone doesn’t realize how the law has changed here, a whole heap of trouble can ensue as we find out in the next sections of this blog.

III

Case of the Day: Robinson v. First State Community Action Agency

Facts

Robinson was told by her manager that her work performance was so poor that she either didn’t know what she was doing or she had a disability where she was dyslexic. The plaintiff taking her words seriously decided to undergo testing for dyslexia. The plaintiff sent her manager an evaluation that concluded that she had symptoms consistent with dyslexia and requested certain accommodation from the manager of human resources. The plaintiff was told that any diagnosis she received would not prevent her from performing her work in a satisfactory manner and she was advised to focus on improving her performance. Weeks later she was fired.

During litigation, plaintiff acknowledged that she could not prove she was dyslexic. She proceeded on the theory that she was perceived or regarded as dyslexic by her employer, and therefore, she was entitled to reasonable accommodation the same way someone who was dyslexic would’ve been. Both parties proceeded under this regarded as case theory through litigation, trial, and post trial briefing. Only on appeal, did the defense seek to overturn the jury’s verdict that the regarded as jury instruction was erroneous and therefore, the jury’s verdict could not stand.

Court’s Reasoning Upholding the Jury Verdict

The amendments to the ADA, per 42 U.S.C. §12201(h), make it clear that a person who is regarded as having a disability but who failed to demonstrate that he or she is actually a person with the disability is not entitled to a reasonable accommodation. We actually discussed the case the Third Circuit relied upon for this proposition here.
The defense never addressed the effect of the 2008 amendments until its briefing on appeal.
At no time did the defense object to plaintiff’s regarded as theory despite numerous opportunities to do so.
The defense waived its regarded as argument in several different ways: 1) the defense was routinely confronted with plaintiff’s erroneous regarded as case theory and never objected; 2) the defense never corrected plaintiff’s error of law when plaintiff raised them in the summary judgment proceedings. Instead, the defense responded that plaintiff did not have a substantially limiting impairment; 3) the defense filed no objections to the Magistrate’s report and recommendation when the magistrate held that there was a question of material fact regarding whether the defense considered the plaintiff disabled. Further, the defendants failed to argue that a plaintiff could no longer proceed under the regarded as a disability theory for reasonable accommodation claims in light of the amendments to the ADA; 4) the viability of the regarded as case theory of the plaintiff’s was squarely before the defense again at trial. At trial, the defense voiced support for plaintiff’s proposed jury instruction even though it was informed by the plaintiff that the plaintiff was not arguing that the plaintiff actually had a disability; 5) the defendant specifically agreed that the reasonable accommodation language should be included in the jury instruction anyway; 6) at the charge conference, defense counsel voiced support for the plaintiff’s jury instruction; 7) once the jury verdict came in against the defense, the defense moved for a new trial but did not raise the error in the regarded as case theory at post trial briefing nor did it move for judgment as a matter of law on those grounds.
An alleged error is waived when the defense fails to raise the objection at trial and fails to include it in post trial briefing.
When a party jointly recommends a jury instruction, it cannot later complain about that very instruction. In this case, the defense did not merely failed to object to an instructional error at a charging conference, it also played along with a flawed theory of liability throughout the litigation and ultimately endorsed the specific instruction embodying that theory.
The defense was initially made aware in mid-2016 of the erroneous case theory and did nothing. It also did nothing again at the beginning of trial. Finally, it invited the trial court to use a case no longer accurate that came down prior to the amendments act.
While it is true that the model jury instructions are erroneous, judges and parties are not free to incorporate incorrect legal principles simply because an error exist in a model jury instruction. After all, model instructions are designed to help litigants in trial courts and not to replace their shared obligation to get the law correct when drafting proposed jury instructions. Accordingly, erroneous model jury instructions are no defense.
Verdict of $22,501 affirmed.

Takeaways

I look for a legal malpractice claim to follow here. The damages awarded to the plaintiff was $22,501. Since the plaintiff prevailed, the defense is on the hook for attorney fees. Also, the defense probably spent $100,000-$300,000 defending the claim through trial. It will be interesting to see how the attorney fees award goes since the plaintiff had no business winning their case under the theory they proceeded under. Nevertheless, the plaintiff did take it to trial and prevailed.
The amendments to the ADA made it crystal clear that a person who is regarded as having a disability is not entitled to reasonable accommodations. Accordingly, but for the negligence, the defense would have won. Accordingly, the legal malpractice cause in fact standard for litigation is met here.
Don’t assume model jury instructions are accurate. They do not substitute for knowing the law in the area.
Lawyers owe a duty of competence to their clients. That means if they don’t know the area as well as they need to, get someone involved as early as possible who does. Having been in this business, ADA compliance, since 1990, I have found that lawyers generally don’t do this. Perhaps, that is a reflection of the competitive pressures of law as well as lawyers thinking that all they have to do is look up statutes, regulations, and read case law. This behavior of lawyers doesn’t make a lot of sense. After all, I wouldn’t ask an eye surgeon to operate on a hernia.

This just in. Law 360 is reporting today, May 1, 2019, that the Third Circuit has denied a petition for rehearing in this case.

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