For years, I refereed and umpired basketball and softball. The entity for managing the referees and umpires were associations whose sole purpose was to deal with the referee side of things. Referees and umpires were ostensibly independent contractors (whether they are would be the subject of a separate blog entry and will not be the focus of this one). Also, many youths and athletic programs are run by associations as well. Today’s case deals with the question of what happens when such an association discriminates on the basis of disability. Can they be sued under title I, title III?
Today’s case is Nathanson v. Spring Lake Park Panther Youth Football Association, which can be found here. As is my usual practice, I have divided the blog entries into categories: facts; court’s reasoning the kids; court’s reasoning the parents; and takeaways. The reader is free to focus on any or all of the categories.
Prior to 2014, the Blaine/Spring Lake Park Athletic Association organized youth football programs in the Spring Lake Park area (Minnesota). The Blaine Athletics Association grew so much that a separate football Association, Spring Lake Park Panther Youth Football Association was created for youth residing in Spring Lake Park or attending school in the Spring Lake Park school district. In 2011 and then in 2013, two deaf kids, brothers, joined the Blaine Athletic Association. In 2011 and 2012, Blaine Athletic Association arranged and paid for ASL interpreters for games and practices. In 2012, the Blaine Athletic Association permitted the use of a sideline drum that was struck upon the snap of the football on each play. The purpose of that drum was to signal when each play started. Beginning in August 2013, the Fridley school district, where both kids attended school, provided ASL interpreters for football practices, game, and meeting under the boys IEP. However, Fridley in 2014, determined that because the football Association was not a Fridley public school sponsored event, it would no longer provide interpretation services for the kids. The plaintiff then requested the football Association to provide interpreter services for games and practices but the football Association denied that. The football Association did not provide interpreter services for the fall 2014 football games or practices and they also discontinued use of the drum. Accordingly, the two deaf kids struggled to identify when the play started.
Before moving on, it should be noted that the use of the interpreter and the drums is an accommodation that has already worked with respect to deaf people playing football. It is the way Gallaudet University fields its football team.
The parents of these kids also ran into trouble with the football Association. In particular, their father was an assistant coach for the team of the child who started with the Athletic Association in 2011. In May 2014, the father applied for a head or assistant coach position with the football Association. The football Association refused to provide him with an ASL interpreter for the mandatory prospective coaches meeting. Therefore, he provided his own interpreter and completed all the paperwork required to apply for the position. However, he was not offered the coaching position despite a shortage of coaches. Also, the football Association did not secure an ASL interpreter for either him or his wife at a mandatory parent meeting held on August 11, 2014. No ASL interpreter was provided by the football Association for September 21, 2014 board meeting. Finally, the football Association did not provide an interpreter for the kids mother at the mandatory, “tackle football mom’s clinic,” in August 2014, plaintiffs brought suit alleging that the football Association violated both title III of the ADA and the Minnesota Human Rights Act (while we will not discuss the Minnesota Human Rights Act in this blog entry, the court did find that the football Association was a place of public accommodation under that law). The football Association defended on the grounds that they were not a place of public accommodation and that with respect to the parents, they lacked standing to bring a title III claim as the parents complaint on their own behalf was alleging employment matters subject to title I and not title III.
Court’s Reasoning Kids and Title III
The court disagreed with the defense’s arguments and reasoned as followed:
1. The categories of 42 U.S.C. § 12181(7)(A-F) must be construed liberally in order to afford individuals with disabilities equal access to the establishments available to those without disabilities.
2. Regulations implementing title III of the ADA define a place of public accommodation as a facility operated by a private entity whose operation affects commerce.
3. To make a prima facie case for title III of the ADA, a plaintiff has to show: 1) that he is a person with a disability as defined by the ADA; defendant is a private entity owning, leasing, or operating a place of public accommodation; and 3) the defendant failed to make reasonable modifications that do not fundamentally alter the nature of the public accommodation.
With respect to 3 of subparagraph three, this section of the ADA is very confusing even to those who deal with the area all the time. The way this thing theoretically works is that if you are talking about modifying policies, practices, and procedures, the standard is fundamental alteration. However, if you are talking about are auxiliary aids and services, the standard is fundamental alteration or undue burden. The distinction is theoretical in all probability and not practical. Since undue burden can be both logistical and financial. Undue burden in the logistical sense is frequently equated with fundamental alteration, and I personally think that is the best approach.
4. An entity not directly connected with a physical place can meet the definition of a place of public accommodation, particularly when it comes to sports associations. After all, the football Association operates a youth football Association that host football practices, games, and social event for registered participants. Such conduct satisfies the definition of what the plain and ordinary meaning of the term operate would mean (put or keep in operation, control or direct the function of, or to conduct the affairs of, or manage). Further, the football Association uses the football fields as the primary location for its activities, and the football field would be places of recreation subject to title III of the ADA. Since the football Association’s games and practices are presumably scheduled in advance, it follows that the football Association probably has an arrangement with the City of Spring Lake Park allowing access and control to the fields.
Parents and Title III
The court disagreed with the defense arguments that the parents lack standing to bring a title III claim for the discrimination they faced and reasoned as follows:
1. If the matter was strictly limited to the parents ability to volunteer, then this court believed the claim would be more appropriate for title I than title III. However, the parents complaint was not limited to their inability to volunteer. In particular, the mother was unable to fully participate in mandatory meetings because the football Association failed to provide ASL interpreters. The father was denied the ability to participate in mandatory meetings because of his disability. The inability to participate in mandatory meetings is a closer fit to being a client or customer rather than being an employee and therefore, the title III claims of the parents can proceed.
1. It is a strange choice that the football Association made with respect to fighting the suit. The ADA and their implementing regulations make it quite clear that title II and title III entities have the duty to engage in effective communications, which we have discussed numerous times before in this blog, including here, with persons with disabilities. Also, use of the drums is something that is used all the time with respect to the deaf playing football. Since these accommodations are happening all the time without event, showing a fundamental alteration would seem to be impossible. That said, in this particular case, the football Association did submit financial records in an effort to demonstrate that providing ASL interpreters would be an undue burden on the football Association, but the court refused to convert the motion to dismiss into a motion for summary judgment. Even so, as we have mentioned previously in this blog, it would seem to be a very difficult proposition for the football Association to show that providing interpreters would be an undue financial burden, especially if all the resources of the Association are taken into account (the requirement set forth by the implementing regulations). Further, the cost of such accommodations would certainly not be more expensive than the cost of litigation. Finally, the predecessor football Association was providing these accommodations. Again, interesting choice of strategy.
2. What about the claim pertaining to the inability of the parents to volunteer for the Association. In particular, the inability of the father to be a coach despite being qualified, as the ADA would define the term, to be a coach. After all, he had already been an assistant coach and he had played football. Where does he turn to pursue the claim? He might start by reading this blog entry, which focuses on how § 504 of the Rehabilitation Act might be an avenue in such a situation if the entity takes federal funds. Having been a member of such associations in the past as a referee, showing that the Association takes federal funds may not be a simple proposition. The other option is to pursue a claim under title III alleging that the inability to volunteer denied them the privileges and benefits of the place of public accommodation, which was the argument that proved successful in this case, but one this court did not seem inclined to agree with.
3. The problem that exists with respect to a court not taking the approach of utilizing the Rehabilitation Act or the Menkowitz decision with respect to “independent contractors,” is that title I of the ADA only applies to employees. Therefore, if a volunteer (coaches and referees are always putatively independent contractors), suffered discrimination by the Association, such an individual with respect to “employment” would have no remedy at all. Of course, that assumes, that the referee or coach is truly an independent contractor, which may not be the case if my experience with these type of associations is indicative.
4. Considering the Supreme Court case of PGA Tour v. Martin, there was little choice for this court to hold that the football Association was a place of public accommodation with respect to the claims of the kids and with respect to the claims of the parents inability to effectively attend meetings. As mentioned above, harder call with respect to the “employment,” claims of the father.
5. If this case shows anything, it shows the need for training and the need to look backwards. We see this all the time in employment matters where a new manager comes in and undoes everything that had been working before to the employer’s detriment. The same thing happened here. Thus, training is always important. Oftentimes, I say so is consulting with knowledgeable counsel about the ADA. However, here it seems the football Association made a strategic decision to contest this case. One thing that oftentimes doesn’t get mentioned is that you can have knowledgeable ADA legal counsel, but ultimately how the client chooses to proceed is the choice of the client.