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Causation Under ADA and Rehabilitation Act and a Bonus: LGT Goes to Supreme Court

April 23, 2019 by William Goren 1 Comment

Hope everyone had a happy Easter and, as in my case, a happy start to the Passover holiday. Today’s blog entry come from one of the blogs that is in my blog roll, Wait a Second. The case is Natofsky v. The City of New York decided on April 18, 2019 out of the Second Circuit. It is a case involving a hard of hearing individual that was terminated from a highly paid position with the City of New York. He claimed that his hearing loss was a motivating factor in the termination. The City defended on the ground that motivating factor was not the proper rule. Here is the other thing. It wasn’t an ADA case at all. Rather, it was a case involving the Rehabilitation Act, New York law and New York City law. Finally, the District Court adopted as the causation standard a sole cause standard. As usual, the blog entry is divided into categories and they are: majority reasoning; dissent’s reasoning; and takeaways; and just in. The reader is free to focus on any or all of the categories.

Majority Reasoning

The Rehabilitation Act provides at 29 U.S.C. §794(a) that no individual can be subject to discrimination in any program or activity receiving Federal financial assistance solely by reason of his or her disability.
On the other hand, the ADA at 42 U.S.C. §12112(a) makes it unlawful for an employer to discriminate against an individual on the basis of disability.
In 1992, Congress amended the Rehabilitation Act to add a provision stating that the standards used to determine whether the Rehabilitation Act has been violated in a complaint alleging employment discrimination are the standards applied under Title I of the ADA. 29 U.S.C. §794(d).
Whether §794(d) requires the ADA causation standard is a matter of first impression in the Second Circuit, and the court holds that an employment discrimination claim under the Rehabilitation Act is the same causation standard as an employment discrimination claim under the ADA.
An established canon of construction says that a specific provision controls over one or more general application. §794(d) is more specific than §794(a), and therefore, trumps the causation standard expressed in §794(a) in the employment discrimination context. In other words, §794(a) establishes a general causation standard applicable to most discrimination claim brought under the Rehabilitation Act, but §794(d) [the opinion actually has a typo here calling it §749, but I am sure that will be corrected later], removes employment discrimination claim from the application of §794(a)’s general causation standard by mandating the ADA’s causation standard.
In a footnote, the court noted that the point of view that §794(d) trumps §794(a) in Rehabilitation Act employment cases is not a universal point of view. In particular, the Fifth Circuit reached the opposite conclusion. Even so, the Second Circuit says it has good reason to disagree with the Fifth Circuit because §794(d) came later in time and speaks specifically to causation in employment discrimination cases brought under the Rehabilitation Act. Further, establishing §794(d) as a carve out for employment discrimination claims does not require Congress amending the language of §794(a)’s general causation standard because that standard continues to govern all discrimination claims arising under the Rehabilitation Act except for employment discrimination claims.
While the Second Circuit previously has gone on record saying the Rehabilitation Act does not permit mixed motive suits, that is not the same as stating that the causation standard for Rehabilitation Act employment claims is a “solely by reason of” standard.
Title I of the ADA at 42 U.S.C. §12112(a) prohibits employers from discriminating against a qualified individual on the basis of disability in regard to the hiring, advancement, or discharge of employees.
Historically, the Second Circuit has applied a mixed motive test to ADA claims whereby the disability need only be a motivating factor in the employer’s adverse employment action but need not be the sole but for cause. At the time of those cases, the ADA prohibited discriminatory acts that were engaged in “because of,” a disability, instead of “on the basis of,” which is the case now.
The mixed motive test originates from Title VII at 42 U.S.C. §2000(e)-2(a)(1), which prohibits employment discrimination “because of,” an individual’s race, color, religion, sex, or national origin. Under Title VII, plaintiffs can prevail if they show that the discrimination was a motivating factor in the defendant’s adverse employment action. That said, a defendant can avoid all liability if it can prove that it would have taken the same action regardless of any impermissible consideration.
Citing to Gross, which we discussed here, and to Nassar, which we discussed here, the Second Circuit said that the ADA does not include a set of provisions like Title VII’s §2000e-2(m) that permits a plaintiff to prove employment discrimination by showing the discrimination was a risk motivating factor in the adverse decision. Further, no express instruction from Congress in the ADA itself exists that the motivating factor test applies.
When Congress added §2000e-2(m) to Title VII, it contemporaneously amended the ADA but did not amend the ADA to include a motivating factor test.
The Fourth, Sixth, and Seventh Circuits currently require a plaintiff alleging a claim of employment discrimination under the ADA to prove that discrimination was the but for cause of any adverse employment action.
Absent from the ADA is anything like §2000e-2(m), which establishes a mixed motive test.
While the ADA does incorporate §2000e-5(g)(2)(B) that cross references §2000e-2(m), that is of no help because that section deals exclusively with the remedies available to plaintiff’s that have first proven of violation under §2000e-2(m), which makes no mention of disability.
By incorporating §2000e-5, into the ADA, it can be assumed that Congress was aware that some of those provisions would apply only to Title VII cases and not to the ADA.
Citing to Gross, the court finds no reason to hold that any meaningful difference exists between “on the basis of,” “because of,” or “based on,” that would require any other causation standard than but for.
Nothing in the legislative history of the ADA indicates that “on the basis of,” was supposed to lower the causation standard for employment discrimination claims below the traditional but for standard. The legislative history that does exist suggest that the language was changed to decrease the emphasis on whether a person has a disability and not to lower the causation standard.
The evidence is simply not there for the plaintiff to prevail on a but for causation standard.
Plaintiff also alleged a cat’s paw theory of liability, which allows for a discriminatory motive to be imputed to a final decision-maker if the decision-maker’s adverse employment action was proximately caused by a subordinate having a discriminatory motive and intended to bring about the adverse employment action. While cat’s paw liability applicability to cases outside of the mixed motive context is an important one, the court decides to decline the opportunity to take on that question because defendants waived any objection to proceeding under that theory.
Even assuming cat’s paw liability applies, the evidence is simply not there to justify application of the doctrine against plaintiff’s supervisors.
The facts aren’t there to allow plaintiff’s failure to accommodate claims to go forward.
The facts are also not there to allow plaintiff’s retaliation claims to go forward.

Dissent’s Reasoning (Judge Chin)

While a but for causation standard applies to the retaliation claim, discrimination and failure to accommodate claims brought under Rehabilitation Act are governed by the same standards that courts have uniformly applied for more than two decades, i.e. mixed motive.
The issue is whether the ADA continued to use a motivating factor standard in light of the 2000 amendment to the ADA and the Supreme Court’s decision in Gross. Judge Chin believes the answer to that question is yes.
Gross does not apply to ADA claims. That case was an Age Discrimination in Employment Act and not an ADA case.
In Gross, the court specifically mentioned that Title VII and the Age Discrimination in Employment Act are set up in fundamentally different ways with respect to the relevant burden of persuasion. That isn’t the case with the ADA as the ADA incorporates the powers, remedies, and procedures of Title VII. Therefore, different rules apply to the ADA and to the Rehabilitation Act than they do to the Age Discrimination in Employment Act.
In Gross, the Supreme Court held that Age Discrimination in Employment Act claims are governed by the but for standard because the court had never held that Title VII’s motivating factor standard is applicable to Age Discrimination in Employment Act claims, and because Congress neglected to add a motivating factor provision to the Age Discrimination in Employment Act when it amended Title VII to add §§2000e-2(m) and 42 U.S.C. §2000e-5(g)(2)(B) while contemporaneously amending the Age Discrimination in Employment Act in several other ways.
¶II5 simply cannot apply to the ADA. Motivating factor standard has governed the ADA cases for more than two decades. Further, when Congress amended Title VII in 1991 to include the motivating factor language, it incorporated the motivating factor language into the ADA because the ADA at 42 U.S.C. §12117(a) explicitly refers to and adopts the enforcement provisions of Title VII, including §2000e-5. Therefore, citing to a dissenting opinion in Lewis v. Humboldt Acquisition Corporation, which we discussed here, you simply cannot draw the same inference from Congress’s actions as the Supreme Court did in Gross for Age Discrimination in Employment Act claims when it comes to the ADA.
The 2008 amendment to the ADA show that Congress wanted to retain not eliminate the motivating factor standard. In particular, the primary purpose of the 2008 amendments was to reinstate a broad scope of protection to be available under the ADA because several Supreme Court cases had narrowed that scope of protection. Thus, Judge Chin fails to understand how the majority can posit that the 2008 amendments warrant deviating from the motivating factor standard that had been applied for years before the amendments.
Congress could have changed the ADA’s causation standard with the 2008 amendment but did not do so. Where Congress fails to disturb a consistent judicial interpretation of the statute, that provides indication Congress at least acquiesces in if not affirms that interpretation.
Since Congress amended the ADA to reject an interpretation of the ADA that was not aligned with congressional intent, that demonstrates it is likely it would also have done so for the ADA’s causation standard if courts were applying the wrong standard. The fact that Congress amended the ADA to reject an interpretation of the ADA not aligned with congressional intent demonstrates it is likely it would have done so for the ADA’s causation standard if the courts in applying the motivating factor standard were applying the wrong standard. That they did not do that indicates at least implicit acceptance of the motivating factor standard.
While the ADA does not explicitly incorporate §2000e-2, it does incorporate §2000e-5. Further, §2000e-5(g)(2)(B) specifically refers to the motivating factor standard. Interpreting the ADA to require a but for standard of causation, renders that provision irrelevant and superfluous. A statute need to be construed so that it’s effect given to all of its provisions so that no part of it is inoperative, superfluous, void, or insignificant.
Nothing indicates that Congress chose not to incorporate §2000e-2 into the ADA with the intent for a stricter causation standard to apply. Indeed, if that had been congressional intent, it would have omitted §2000e-5(g)(2)(B). It also would surely have explained why it was making such a significant change and Congress did not do so.
The ADA’s legislative history makes clear that Congress intended claims under the ADA to continue to have the same causation standard claims under Title VII. More particularly, when Congress enacted the ADA, it intended for the ADA’s remedies to parallel Title VII’s remedies because the remedies should remain the same for minorities, women, and for persons with disabilities.
A House report explained that if the powers, remedies, and procedures, for title VII change, then identical changes under the ADA for persons with disabilities will also be made. That is, by retaining the cross reference to Title VII the committee’s intent was that the remedies of Title VII currently and as amended in the future will be applicable to persons with disabilities.
Since the Rehabilitation Act incorporates the ADA’s causation standard, the motivating factor standard applies to plaintiff’s claims.
Plenty of evidence exists that plaintiff’s hearing loss motivated the adverse decision, in this case termination.

III

Takeaways

A question not considered by this case is whether the Rehabilitation Act outside of employees of the federal government, even applies to employment situations. We discussed that question in this blog entry. Clearly, over the years, the courts have held that it does, but it isn’t a settled question. The plain language of 29 U.S.C. §794(d) would seem to suggest that the Rehabilitation Act does apply to employment outside of federal employees.
I don’t think it is particularly controversial to say that when it comes to employment cases that the causation standard under the ADA and the Rehabilitation Act are the same. The controversy is over just what “on the basis,” means.
If but for causation is not solely by reason of causation, then what is it? Could it be “necessary cause,” which we discussed here?
In employment discrimination matters, invariably there are more than one cause associated with the adverse decision. In a but for jurisdiction, what do you do then? This happens all the time in tort law. When I was teaching tort law to paralegals and got to this concept, I would mimic the scarecrow from the Wizard of Oz. When you have more than one cause, but for becomes extremely problematic. In tort law, the courts over the years fix that problem by saying where more than one but for cause exists, substantial factor is the principal that comes into play. Perhaps, that is what the courts mean by but for causation even if they are not using the term substantial factor. Since substantial factor is not being used where more than one cause exists, it is very unclear just what but for means. Maybe, it means, “substantial factor?” Maybe, it means, “necessary cause?” Maybe, none of those are accurate.
Nassar, as we discussed here, clearly states that retaliation is one thing but status-based discrimination is something else. Accordingly, that presents a strong opening to argue that mixed motive is in play for non-retaliation ADA claims.
Regarding legislative history, you really have to dig for it (I mean really dig), but legislative history discussing “on the basis,” does exist that says it was congressional intent in amending the ADA to retain McDonnell Douglas when it comes to proving up ADA discrimination. You can’t retain McDonnell Douglas without engaging in mixed motive analysis.
Title I and Title III both use “on the basis,” language for causation. Title II uses by reason of. The Rehabilitation Act uses, “solely by reason of.” If the majority is to be believed, you wind up with different causation standards across the Titles of the ADA. That is, under Title II of the ADA, you would have a more generous causation standard for plaintiffs than you would under Title I and Title III because Title II uses “by reason of,” and Rehabilitation Act uses, “solely by reason of.” This doesn’t make a lot of sense.
The problem with the but test for is multiple causation, which is always present in employment discrimination matters. If courts are going to continue to apply this test in the future, more clarity is needed. It will be interesting to see whether they adopt necessary cause or substantial factor in those situations. Ultimately, either Congress or the Supreme Court and then possibly Congress again are to have to figure this out. The 2020 elections may have a lot to do with this.
The court finds no reason to distinguish between “because of,” and, “on the basis of.” That doesn’t make a lot of sense to me because why would Congress change the terminology if the change was superfluous or meaningless?
Substantial factor and necessary cause would both allow for a cat’s paw theory of liability.
Hard to understand how getting rid of “because of,” in favor of “on the basis of,” somehow leads to the conclusion that the amendments to the ADA imposed a higher causation standard than what had been previously the case. As the dissenting judge noted, the amendments to the ADA were designed to overrule a whole bunch of cases from the Supreme Court severely narrowing the ability of persons with disabilities to be protected under the ADA. Making the causation standard a higher bar for plaintiffs than what had been previously would contradict those efforts. Also, Congress was quite clear in the ADA to make clear that the Supreme Court got some of the cases, the Sutton trilogy and Toyota Motor, So, why wouldn’t have Congress been clear that the causation standard was also out of whack?
When the causation issue gets to the Supreme Court, the key is going to be whether the court as configured at that time will go off on the distinction Justice Kennedy made in Nassar about status-based discrimination. If so, then mixed motive is in play. Also, if the Supreme Court decides to go with but for, hopefully it will clear up what that means when there is multiple causation involved, such as by adopting a substantial factor test or a necessary cause test.

Just In

Yesterday, the United States Supreme Court granted cert. in three cases discussing whether LGT individuals are protected under title VII of the Civil Rights Act. We have discussed all of that here and here. With respect to transgender, I am going to go out on a limb here and say that it won’t even be close that transgender is protected under title VII of the Civil Rights Act because Price Waterhouse prohibits gender stereotyping. By definition, discrimination against a transgender individual involves sexual stereotyping.

With respect to sexual orientation, that is going to be a much more difficult case. If the configuration of the court remains the same, I would expect it to be a 5-4 decision with Justice Kavanaugh being the swing vote (Chief Justice Robert dissented in both Obergefell and Windsor). Justice Kavanaugh is very proud of the diversity of his clerks. One also has to wonder what impact, if any, the confirmation hearings will have on any of this. Finally, I did a Westlaw search, and my search did not reveal any cases that Judge Kavanaugh had with respect to LGBT rights while on D.C. Circuit (other bloggers are reporting there are indeed none).

So, since the decision on these cases will come down next term, expect it to be a huge campaign issue. It is entirely possible that the decision in these cases could come down just a few months before 2020 elections. Also, based upon the current case law, it is entirely possible that by the end of these decisions, transgender individuals will be protected under title VII but lesbian and gay individuals will not be. In that case, if there is a Democratic wave in 2020 (Buttigieg presidency too?), which there may not be, expect Congress to specifically amend title VII of the Civil Rights Act to include LGBT explicitly.

Air Carrier Access Act revisited: just what is preempted?

March 19, 2013 by William Goren 5 Comments

Previously, I have written two different blog entries dealing with the Air Carrier Access Act. In the first, I talked about whether a private cause of action existed. In the second, I talked about whether the Air Carrier Access Act regulations being so pervasive preempted state laws. This entry concerns a slightly different issue. That is, assuming preemption exists, does that mean the preemption applies to the standards what does it mean the preemption applies to the remedies for both?

A recent case from the Ninth Circuit, Gilstrap v. United Airlines,_F.3d_, 2013 WL 930170 (9th Cir. March 12, 2013), addresses this very question. In this case, the plaintiff had difficulty walking due to a collapsed disc in her back, a knee replacement, another knee in need of replacing, and osteoarthritis. Id. at *1. In August 2008, she flew on United from Los Angeles to Calgary, from Calgary to Chicago, and from Milwaukee back to Los Angeles via Denver. Id. In December 2009, she flew from Burbank, California to Madison, Wisconsin by way of Denver. Id. When she booked both flights, she requested that United provide her with wheelchair assistance for moving through the airport. Id. During both trips, United repeatedly failed to provide the plaintiff with the assistance that she requested. Id. In particular: at one airport, she had to locate a wheelchair on her own; at another airport she only obtained a wheelchair from United after prolonged assistance and up to 45 minutes of waiting; and still at other airports she was never able to locate a wheelchair at all and had to walk. Id. Further, she alleged that a United agent yelled at her, expressed skepticism that she actually needed a wheelchair, and on two occasions, directed her to stand in line, which she was not able to do because of her disabilities. Id. At one point, a United agent from whom she asked for assistance, unilaterally revoked her ticket and booked her for a later flight after telling her that that is what she got for refusing to stand in line. Id. She sued United in tort alleging several different causes of action under California law including: negligence, negligent misrepresentation, breach of duty of a common carrier, intentional infliction of emotional distress, and negligent infliction of emotional distress. Id. She also alleged that United Air Lines violated title III of the ADA as well. Id. She did not sue alleging violations of the Air Carrier Access Act, rather the claim was that the Air Carrier Access Act was relevant to establishing negligence on the theory of negligence per se. Id.

Before proceeding further, a brief comment is in order about negligence per se. Negligence per se is a legal concept that basically says that violation of one statute can be used as a means of saying that the defendant was negligent. It is basic black letter law that everybody learns in law school. Many states, such as California and Georgia to name just two, have a statute that says violation of a statute, ordinance, or regulation can be used as a means to establishing negligence. The state statutes vary in their wording. They also vary in what happens once you show that the statute, ordinance, or regulation is violated. Basically, what can happen might vary from winning your case if you can show that the statute was violated and the person alleging the violation of the statute, regulation, ordinance was meant to be protected by that ordinanceVal D’Aosta v. Cross, 526 S.E.2d 580, 585 (Ga. App. 1999), to creating a rebuttable presumption of failure to exercise due care. See Gilstrap at *1.
The court had several potential issues before it. First, are the remedies under the Air Carrier Access Act exclusive. That is, do those remedies preclude other remedies? Second, if the remedies are not exclusive, what role does the extensive regulations implementing the Air Carrier Access Act play in any subsequent state law-based negligence suit? Third, does the Air Carrier Access Act provide for a private cause of action? Fourth, does the ADA apply to airline terminals?

With respect to the first issue, the Ninth Circuit found that the remedies in the Air Carrier Access Act are not exclusive. That is, the Air Carrier Access Act does not preclude other kinds of causes of action such as those lying in tort. The court found it extremely significant that the Federal Aviation Act, of which the Air Carrier Access Act is an amendment to, specifically says that any remedy under the Federal Aviation Act is in addition to any other remedies provided by law, and it also says that Department of Transportation certified air carriers have to maintain liability insurance sufficient to cover bodily injury, death, loss of property, or damage to property resulting from the operation or maintenance of the aircraft. Id. at *5. Therefore, the Federal Aviation Act on its face explicitly anticipated that other remedies besides those under the Federal Aviation Act may be utilized. Also, the court found that no conflict existed between federal and state liability standards in this case nor did allowing causes of action lying in tort frustrate the objective of the federal law. Id. at *11.

With respect to the second issue, the regulations are indeed extensive and pervasive. The court said in that kind of case, where the statute clearly says that the remedies are not exclusive, but you do have extensive and pervasive federal regulations, what happens is that those extensive and pervasive federal regulations establish the standard of care for the state law cause of action. Id. at **8-9.

With respect to the third issue, the court noted that there are opinions out there, which we have also discussed in another blog entry, that say the Air Carrier Access Act, does not give rise to a private cause of action. Id. at *5. However, since the plaintiff did not sue under the Air Carrier Access Act, the court said that that was a question they did not have to reach. Id.

With respect to the final issue, as we have also discussed in a prior blog entry, the court found that the Americans with Disabilities Act was quite explicit that title III does not apply to airport terminals. Id. at *14. However, in a footnote, the court said that the implementing regulations under title II of the ADA do note that airports operated by public entities are covered by title II of the ADA, but since the plaintiff did not make any claims under title II it wasn’t necessary to visit that question. Id. at n. 11.

So what does this all mean?: First, the Air Carrier Access Act does not preempt both standards and remedies because the Federal aviation act, of which the Air Carrier Access Act is a part of, allows for other remedies, and allowing for other remedies does not conflict with the purpose of the Federal aviation act. Second, while remedies under the Air Carrier Access Act are not exclusive, the standards contained in the regulations implementing the Air Carrier Access Act are the standards that will have to be used in any subsequent state law cause of action alleging injuries from violation of the Air Carrier Access Act regulations. Third, while this case doesn’t address the question of whether a private cause of action exists, for reasons mentioned in another blog entry, it probably doesn’t. Third, it is quite clear from the cases that title III of the Americans With Disabilities Act does not apply to airport terminals, but it may be possible that title II of the ADA applies to airport terminals.

Plaintiff/Defendant think: On the plaintiff’s side, this case is a real positive jolt for plaintiffs. A person with a disability who is not properly accommodated during their time in an airport is quite likely to have those disabilities aggravated in some way or have some new injury result. This case gives plaintiffs a real opportunity to redress violations of the federal regulation that aggravated and/or caused additional injuries. On the defense side, it means that airlines are going to have to make sure that their staff are fully trained on all the regulations and that steps are taken to minimize the risk of violations of any of the regulations. In short, if a client comes into a plaintiff personal injury law firm to talk about a situation where they were injured in an airport as a result of the Air Carrier Access Act regulations not being followed, the plaintiff’s attorney would want to seriously think about filing state law tort claim lawsuits using the Air Carrier Access Act as the standards for liability. Since many airports are publicly owned, the plaintiff attorney may also want to consider bringing a cause of action under title II of the Americans with Disabilities Act as well. On the defense side, if the plaintiff alleges a violation of title III, a likely successful argument is that title III of the ADA does not apply to airport’s terminals. If the plaintiff brings suit under the Air Carrier Access Act, another likely successful argument is that a private cause of action does not exist under that act. If a plaintiff brings suit under title II of the ADA, the defense would want to argue that title II applies to public entities and the airlines are not public entities. Finally, if there is a personal injury suit based on state law claims, the defendant first would want to argue that the Air Carrier Access Act preempts state law remedies as well (but as we have seen in this case, that argument may not be successful). Second, the defense would need need to be prepared to deal with the Air Carrier Access Act regulations as the basis for liability.

So where does this case go? Whenever a U.S. Court of Appeals decides a case, a person losing would have two options. First, ask for a rehearing en banc. Considering that this is the Ninth Circuit and considering the nature of this case, it is hard to say whether such a rehearing request would be granted (a majority of the entire Ninth Circuit judges would have to agree to do that). The other option of course is to appeal the case to the United States Supreme Court. In that situation, at least four justices would have to agree to hear the case. With respect to whether the judges would agree to hear the case, it would help if a conflict between the circuits exist. There is a theoretical conflict between the circuit with respect to whether a private cause of action exists under the Air Carrier Access Act, but this particular case does not address that question because the plaintiff did not sue under that act. Also, since the Supreme Court decision in Alexander v. Sandoval, the circuits have not split on the question of whether the Air Carrier Access Act has a private cause of action component (they have all found that it does not). With respect to the other issues in Gilstrap, it would take further research but this case doesn’t seem to suggest that a conflict among the circuits exists with respect to those other issues. Finally, even if the U.S. Supreme Court were to take this case for some reason, I wouldn’t want to hazard a guess as to whether the United States Supreme Court would hold that the remedies under the Air Carrier Access Act where exclusive, especially considering the act’s explicit discussion of other remedies being in play and the insurance requirements. I do think it would probably be likely that the United States Supreme Court would decide that title III of the ADA does not apply to airport terminals and, if the question were before it, would also decide per Alexander v. Sandoval that the Air Carrier Access Act does not have a private cause of action component to it.

Segregation of HIV-positive inmates will not fly

December 30, 2012 by William Goren 5 Comments

Hope everyone had a great holiday season. Wishing everybody a healthy, happy, and successful new year! In case you want to take a break from bowl games over the next couple of days, here is something you might read:-)

Alabama and South Carolina are the only States segregating inmates that are HIV-positive. In the Alabama situation, the ACLU brought suit saying that such a practice violated the Americans with Disabilities Act. In a 153 page opinion, Judge Myron Thompson of the northern district of Alabama agreed. There are very few opinion that run 153 pages. Even fewer that run so long but yet every page is worth reading. Such is the case with this one. With respect to this opinion, what I am going to do is break this down into three different categories. First, I will discuss the practices Alabama engaged in with respect to both men and women that are HIV-positive in their prison system. Second, I will discuss the court’s reasoning. Finally, I will mention several important policy considerations brought up by the court as well.

Basically, Alabama has a system with respect to HIV-positive inmates that involves categorical non-individualized determinations resulting in automatic placement and exclusions. The specific practices of the Alabama Department of Corrections varied a little bit depending on whether the inmate was female or male. Regardless of the gender, both systems involved categorical non-individualized determinations resulting in automatic placement and exclusions.

With respect to men, the Alabama Department of Corrections was challenged on the following practices: 1) all HIV-positive men in the prison system are sent to limestone, a facility in northern Alabama. They are sent there regardless of their individual needs and custody factors; 2) HIV-positive men have limited program opportunities when compared to men that are not HIV-positive; 3) HIV-positive men are segregated into dormitories at the limestone facility; 4) within those dormitories HIV-positive men are segregated further utilizing the building’s architectural layout; 5) HIV-positive men were excluded from other dorms at limestone regardless of whether they had any individual factors that would otherwise place them in those dorms except for being HIV-positive; 6) HIV-positive men because they were segregated into certain dormitories were excluded from critical aspects of the substance abuse program; and 7) HIV-positive men must wear white armbands regardless of which dormitory they were in (that is, HIV-positive men were segregated into two different dormitories. However, regardless of which dormitory they were in, all HIV-positive men must wear white armbands).

With respect to women: 1) all HIV-positive women inmates are housed Tutwiller; 2) women who test HIV-positive at first are put in isolation until the confirmation test comes in to confirm the initial tests; 3) HIV-positive women inmates are segregated into one dorm at Tutwiller; 4) HIV-positive women are automatically sent to isolation cells if mentally ill regardless of their actual mental health needs.

With respect to both men and women HIV-positive inmates, Alabama Department of Corrections excludes all such inmates from the food service program and their participation in work release entirely depends on viral loads and not upon the inmate’s treatment needs or functional abilities.

The court had several issues before it. First, it had a couple of preliminary issues before it, standing and whether the case was moot because Alabama represented to the court that they were going to change their practices. With respect to standing, the court held that the plaintiff did have standing because they were a person with a disability (HIV-positive- see ADAAA; see also Bragdon v. Abbott, 524 U.S. 624 (1998)). Second, the court said that the issue was not moot because the nature of the evidence was such that the court believed it quite possible that the challenged conduct could recur.

With respect to the Americans with Disabilities Act, the court reasoned as follows. First, as mentioned above, the plaintiffs clearly have a disability, being HIV-positive.

Second, the title II regulations mandate integration (see 28 C.F.R. § 35.130(d) and the court cited to Olmstead v. L.C. By Zimring, 527 U.S. 581 (1999), as well.

Third, since prison is the program, the plaintiffs were otherwise qualified. That is, the plaintiffs were capable of satisfying the essential eligibility requirements of the program with or without reasonable accommodation.

Fourth, the court goes into great detail about the medical evidence that is currently known with respect to a person that is HIV-positive and concludes that the treatment of HIV-positive people has evolved to the point where it simply cannot be said that such a person would be a direct threat automatically when integrated into the general prison population. With respect to direct threat, the court looked to the factors in School Board of Nassau County Florida v. Arline, 480 U.S. 273, 288 (1987). Those factors demand an individualized assessment, which does not occur in the Alabama prison system for inmates that are HIV-positive. In addition to the scientific evidence being what it is, the court said that the medical evidence is overwhelming that the risk of HIV transmission imprisons is minimal across the system and therefore, no direct threat could be said to exist, at least not automatically.

Fifth, the Americans with Disabilities Act demands an individualized determination. That said, the court said that Alabama does have the flexibility to determine how that individualized determination will be carried out so long as it acts in good faith to ensure that no prisoner is unnecessarily segregated because of his or her HIV positive status

Sixth, Alabama could not defend on the grounds that to redo the present programming would be a fundamental alteration as many of the systems already exist to ensure that HIV-positive inmates are integrated into the general community after an individualized determination. That is, Alabama Department of Corrections already has individual data on HIV-positive inmates with respect to viral loads, behavior, and medical needs.

Seventh, Alabama tried to argue that there would be an undue burden to change the system. Undue burden generally refers to financial costs. The court said that any undue burden was not going to apply here because the costs were not going to be unreasonable and conceivably could even decline with the integration of HIV-positive inmates into the general population.

Eighth, no legitimate purpose is served by separation of prisoners in dormitories by their HIV-positive status and by using physical structure of the building to telegraph who is HIV-positive. The court referred to this as, “irrational disability discrimination.”

Ninth, the court discussed in some detail how the fundamental alteration defense was not going to fly here. First, the court noted that not every HIV-positive inmate needs an HIV specialist all the time. Second, much of the need for specialized care could be solved through the use of telemedicine and the costs for installing such systems would not be an undue burden. Third, HIV-positive inmate could travel to other facilities as needed. Fourth, medical staff can be trained to do basic HIV-positive care and resources exist to do that at minimal costs (there were several entities offering to help train the prison staff at minimal or no costs). Finally, since the basic purpose of a prison medical system is to provide medical care to prisoners, none of the accommodations suggested by the court involved eliminating the essential aspect of the relevant activity, and therefore, no fundamental alteration exists.

Tenth, since women can’t transmit HIV through sexual contact, any direct threat defense with respect to women was far less than men, which the data revealed that for men was virtually nonexistent.

Eleventh, the prohibition of participating in food service jobs, “are obviously irrational” and contravene science (the court was appalled, to say it mildly, at some of the representations regarding staff members with respect to how HIV-positive inmates were perceived. The court said that prejudice is no defense).

Twelfth, the white armbands policy violated the broad prohibition on discrimination and the Alabama Department of Corrections justifications for the policy were not credible, were pretextual, and served no legitimate purpose. In particular, the policy meant forced disclosure of HIV-positive status and was also profoundly stigmatizing.

Policy also underlies this decision as well. Some of those points include: 1) integration may actually reduce high-risk behavior and no evidence existed that it would increase. The idea being that if HIV-positive inmates were integrated into the general population, members of the general population may actually restrict themselves from high risk behavior for fear of becoming infected; 2) segregation has devastating psychological effects. The court referred to segregation as an, “effective tool for humiliating and isolating prisoners living with the disease;” 3) Alabama Department of Corrections policies have not changed with the times and with how treatment of HIV-positive people have evolved; 4) other Southern states-Georgia, Mississippi, and Florida- have all successfully integrated HIV populations. In fact, at trial, there was testimony from people in those state that had led the integration efforts; 5) no evidence existed that non-adherence to medication would increase with respect to integrating HIV-positive inmates into the general population; 6) segregation may worsen treatment outcome since another facility may be a better option depending upon the inmates individual needs; 7) dismantling segregation will not add significant costs to the Alabama Department of Corrections and may save money in a variety of ways. For example, there would be no need to maintain extra beds in an institutional setting as is currently done if HIV-positive prisoners were integrated into the general population; 8) forced disclosure of HIV-positive status is simply wrong.

Some thoughts: First, it is a bit surprising to me that no equal protection claim was brought. The language that the court uses such as “no legitimate purpose,” “obviously irrational,” “irrational disability discrimination,” as well as a reading of the opinion in general leads to the conclusion that the court if presented with an equal protection claim would have found, even if the prisoners were in a rational basis class, that their equal protection rights were violated. Perhaps, the reason equal protection was not alleged what to avoid a sovereign immunity discussion, which as we have talked about in other blog entries, can get quite complicated (as part of the litigation of this case, sovereign immunity did come up, but discussing sovereign immunity in the context of injunctive relief is quite a bit different than discussing it in the context of suing a sovereign for damages). Second, with respect to the white arm bands, I really thought that I was going to see a reference to the Holocaust and to where Nazi Germany made Jews wear stars on their coats. Perhaps, the judge did not feel it necessary to bring in such a comment considering how thorough the opinion was. That said, it did not surprise me to see the ACLU reference precisely this in the aftermath of this decision. Finally, I could not help but be struck at the parallels of this decision to Brown v. Board of Education with its discussion of the psychological impact of segregation and its emphasis on other information, in this case medical science, to reach a conclusion.