Understanding the ADA

The Blog of William D. Goren, J.D. LL.M.

individualized inquiry

Regardless of ADA Title, Never Forget About the Individualized Inquiry and the Interactive Process

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Hope everyone had a great holiday weekend, assuming you had a chance to have Martin Luther King Day off. Today’s case, United States v. Asare is a decision that came down on December 20, 2017, from the Southern District of New York. The lesson here is never forget about the interactive process and performing an individualized analysis regardless of whether an employment matter is involved. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and takeaways. The reader is free to read any or all of the categories.

I

Facts

The facts of this case are pretty straightforward. There were three plaintiffs in the case. All of them wanted male breast reduction surgery (gynecomastia surgery), with Dr. Asare. The doctor had a blanket policy against operating on individuals with HIV who were also taking antiretroviral medications. At various points in the preoperative process, all three plaintiffs were told that the doctor would not perform the surgery. When the Department of Justice got involved, it brought suit on its own behalf alleging violations of the ADA’s screen out and reasonable modification provisions as well as the New York City Human Rights Law, §8-107. One of the plaintiffs, Milano, intervened in the case. The plaintiffs brought suit against  Dr. Asare and his medical practice. After discovery, plaintiffs moved for summary judgment on their claims, which the defendants opposed, and the defendants, ultimately successfully, cross moved for summary judgment on claims unrelated to HIV. Our discussion will focus strictly on the HIV ADA claims and not on the New York Human Rights claims nor on the non-HIV claims.

II

Court’s Reasoning

In granting the plaintiff’s motion for summary judgment with respect to the HIV claims, the court reasoned as follows:

  1. Everyone agreed that Dr. Asare’s blanket policy of refusing to operate on individuals with HIV taking antiretroviral medications constitutes an eligibility criterion that screens out a class of individuals with disabilities. Accordingly, the question is whether the eligibility criterion was necessary and therefore, permissible under the ADA.
  2. Relying on School Board of Nassau County, Florida v. Arline, the court said that the ADA requires an individualized inquiry into the patient’s health risks.
  3. It is impermissible under Arline, to reject an applicant automatically as a result of his or her disease or symptoms without considering the individual.
  4. Asare testified at his deposition that when a person comes to him and says that he is HIV positive, the doctor then asks him whether the patient is on an antiretroviral cocktail. If the answer is yes, the case is closed and the doctor does not investigate what type of antiretroviral drugs a potential patient is taking or its possible effects. Further, the defendant acknowledged that some antiretroviral drugs are not contraindicated for the drugs in his sedative regimen, but he does not investigate further because he just doesn’t feel comfortable.
  5. A blanket refusal without an individualized inquiry is insufficient to pass muster under the ADA.
  6. Defendant’s own medical expert stated that he would have preferred to have more history and patient information available prior to making decision because without some knowledge of that patient’s medical history, a decision would not be made based upon medical necessity or medical history.
  7. Defendant had the burden to demonstrate that the application of any criteria screening out individuals with HIV was necessary. Such a burden cannot be met when the defendant automatically rejects potential patients without making a determination based upon medical necessity.
  8. Title III of the ADA imposes a fundamental requirement that a person with a disability be evaluated on an individual basis.
  9. The refusal to consider an individual’s personal circumstances in deciding whether to accommodate a disability run counters to the clear language and purpose of the ADA.
  10. An individualized inquiry must be made to determine whether a specific modification for a particular person’s disability is reasonable under the circumstances as well as necessary for that person while not imposing a fundamental alteration on the defendant’s place of business.
  11. The fact Dr. Asare admits that he refuses to perform cosmetic surgery on patients taking antiretroviral medication without making any further inquiry into their medical history or medical regimen is dispositive with respect to the failure to modify policies, practices, and procedures just as it is dispositive with respect to the screen out provisions.

III

Takeaways

  1. With respect to the New York Human Rights Law, the court noted that the ADA sets a floor for the states. Accordingly, a violation of the ADA is automatically a violation of the New York Human Rights Law. The impact of this holding cannot be understated because not every state law explicitly ties into the ADA, though some do.
  2. While the court talks about whether the eligibility criterion was necessary, the court never really reaches the necessary determination because of the lack of an individualized inquiry. In that way, the case resembles what used to be called the irrebuttable presumption line of cases more than it does an analysis of whether the eligibility criterion was necessary.
  3. If this case stands for anything, it is never forget about an individualized inquiry before denying services to a person with a disability. Indeed, you won’t even get to the “necessary,” defense without engaging in that individualized inquiry first.
  4. On the preventive law side, if this case stands for anything, never forget about the interactive process. It is true that interactive process is a title I construct, but how an individualized inquiry and a decision about how to provide or deny services to a person with disability can be made without engaging in the interactive process, is beyond me (case law, such as this one, does exist expanding the interactive process to title II of the ADA). So, be sure to engage in an individualized inquiry as well as an interactive process.
  5. Blanket policies without an individualized analysis are not a good idea. We have previously talked about that one before in this blog entry, which involved 100% return to work policies.
  6. A person with HIV is a person with a disability per this case.
  7. The burden is on the defendant to demonstrate the application of any criteria screening out individuals with HIV is necessary.
  8. Review your policies and practices for policies and practices that unwittingly screen out persons with disabilities. See this case for example.
  9. I am seeing more and more cases where a plaintiff is successful in obtaining summary judgment, though it is still unusual.
  10. Arline is a direct threat case and not whether a screen out provision can be proven necessary or whether a, “necessary” defense exists to a failure to modify practices, policies, and procedures. Nevertheless, this case makes clear that in deciding “necessary,” you also want to look at direct threat concepts, which we discussed in this blog entry.

I wanna be a lifeguard with apologies to blotto part 2

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In a prior blog entry, I talked about a case out of Michigan whereby the District Court granted summary judgment to the County when the county refused to hire a person who wanted to be a lifeguard because he was deaf. Well now the Sixth Circuit has weighed in and has reversed the district court’s award of summary judgment.

In doing so, the Sixth Circuit Court of Appeals reasoned as follows. First, the ADA mandates an individualized inquiry for determining whether a person is qualified for a particular position. Keith v. County of Oakland_ F.3d _, 2013 WL 115647, *5. In this case, the county may the individualized inquiries all the way through the training process and even proposed certain accommodations that might work upon hiring of him as a lifeguard. Id. at **1-3. However, the physician who did the medical exam jumped to conclusions about whether a deaf person could be a lifeguard and never pursued the matter further. Id. at 1-2. Also, the consultants that worked with the county also jumped to conclusions about whether the plaintiff could perform the essential functions of the job as well and also set a 100% effective rate for the accommodations as the standard. Id. at **2-3. The court said that requiring a 100% effective rate was not right because it would be holding persons with disabilities to a higher standard than persons without disabilities as no lifeguards are ever held to that standard. Id. at *6. Finally, the court believed that it just didn’t make any sense for an employer to make an individualized inquiry only to defer to the opinions and advice of those who have not. Id. After all, an employer cannot escape liability under the ADA by mechanically relying on the medical opinions and advice of others. Id.

Second, whether a job function is essential is a question of fact typically not suitable for resolution on a motion for summary judgment. Id. at *7. The court went on to say that the plaintiff had raised several points to establish that a question of fact existed. In particular, the court said that the essential communication duties of a lifeguard (protecting and rescuing swimmers in distress, enforcing pool safety rules, activating the emergency action plan, and performing CPR), Id. at *10, were all things that the plaintiff could do with or without reasonable accommodations). Id. at **9-10.

The points that the plaintiff raised included that he was: 1) able to follow the 10/20 standard of zone protection (a technique taught to lifeguards whereby they scan their entire zone every 10 seconds and can reach any part of their zone within 20 seconds), Id. at *8; 2) able to detect distressed swimmers (an entirely visually-based activity), Id.; 3) was able to enforce safety rules by relying on his whistle and various physical gestures, which is the way lifeguards do it anyway since verbal enforcement is usually impractical in a noisy waterpark, Id.; 4) was able to communicate effectively during emergency with a minor modification to the emergency action plan. In particular, lifeguards would signal with a fist in the air, opening and closing their fist in repetition, Id. (interestingly enough, the court said that modifying the emergency action plan in this way turns out to be actually better for the entire lifeguard staff. Id. This is a principle called universal design, which is the belief that by designing systems so that persons with disabilities can use them effectively with or without reasonable accommodation, you actually improve the system for everyone else); and 5) was able to communicate with patrons at the level considered essential for lifeguard just by carrying a few laminated notecards in the pocket of his swim trunks with basic phrases such as, “I am deaf,” “I will get someone to assist you,” and “wait here.” Id. The court noted that attendants were posted throughout the waterpark to assist patrons with basic needs and questions thereby calling into question whether anything beyond the type of phrases that he would carry in the pocket of his swim trunks would be essential. Id.

The court felt that the most compelling evidence that the plaintiff was otherwise qualified to be a lifeguard came from the experts that he presented whom, unlike whom the county relied on in their decision-making process, did have knowledge, education and experience regarding the ability of the individual to serve as lifeguards. Id. at *9. In fact, the world record for most life saved by a lifeguard is held by a deaf man (saved over 900 lives in his lifeguarding career). Id. Also, the American Red Cross certifies deaf lifeguards and Gallaudet University (a college that focuses exclusively on the needs of the deaf), has a lifeguard certification program). Id.

Third, in the Sixth Circuit, in a reasonable accommodation case, it is up to the plaintiff to show that the proposed accommodations were, “objectively reasonable.” Id. If that can be done, then the employee has the burden of showing that the accommodation would break him (fundamentally alter the nature of the business). Id. With respect to Keith, the plaintiff/appellant, the accommodations, such as the ones discussed above, were objectively reasonable in that they did not fundamentally alter the nature of the business. Id. In fact, as noted above, some of the suggested accommodations may have even made the business better. Also, the accommodations that the plaintiff needed while they called for some restructuring of the job’s marginal functions, they did not require the shifting of any essential functions onto any other lifeguards. See Id.

Fourth, the ADA specifically includes interpreters among the list of reasonable accommodations. Id. at *10. Accordingly, that suggested to the court that the provision of an interpreter was generally reasonable, especially when the interpreter was needed only on occasion just for staff meetings and trainings. Id. The court also noted that several experts had testified that an interpreter was unnecessary to enable a deaf individual to perform the essential functions of a lifeguard. Id. at *9. Finally, Oakland County didn’t even argue, let alone show, that providing accommodations to the plaintiff would constitute an undue hardship on its operations. Id. at *11.

Finally, with respect to the District Court refusing to hold Oakland County liable for failing to engage in the interactive process, the court said the District Court had to revisit the issue. Id. In the Sixth Circuit, failure to engage in the interactive process is not an independent violation of the ADA. Id. However, if the plaintiff can show that a reasonable accommodation is possible, then failing to engage in the interactive process is a violation of the ADA. Id. Here, the District Court missed the boat, because it incorrectly held that the plaintiff had failed to propose objectively reasonable accommodations. Id. The Sixth Circuit concluded that the accommodation proposed by the plaintiff were objectively reasonable. Id. at **9-10. Accordingly, the District Court was asked to revisit the issue of the failure to engage in an interactive process when the case came back to them. Id. at *11.

So what can we take from this case? First, what are the essential functions of the job is a question of fact, and in the Sixth Circuit’s view, one not typically suitable for resolution on summary judgment. Second, it would be helpful for the employer if they truly understood what the job’s essential functions were. The best way to think of the essential functions of the job is whatever functions are fundamental to the job at hand. Third, when it comes to essential functions of the job, expert testimony/analysis may be critical. Fourth, an employer should be very wary of relying on stereotypical conclusions of others without fully engaging in the interactive process itself. Fifth, as I have written for years, do not confuse major life activities with the essential functions of the job. As the court notes in great detail in this opinion, being able to hear (a major life activity) is simply not an essential function of the job of being a lifeguard. The analogy that I have used in the prior editions of my book is that seeing the balls and strikes is not an essential function of the job of being an umpire, rather being able to call the balls and strikes accurately is the essential function of the job of an umpire. I think this case is even a better example of what happens when you confuse major life activity with essential functions. Sixth, do not be afraid to reassign marginal functions of a job to others. Seventh, in looking over the accommodation proposed, do consider whether the proposed accommodations should not be adopted on a general level as something that might make the business better overall (universal design). Finally, do not hold persons with disabilities to a higher standard than what you would hold people without disabilities to.

A link to the video of I wanna be a lifeguard is provided for your listening pleasure (I know it’s a campy song, but you will not be able to get it out of your head. BTW: The drummer in the video is an IP attorney in Mass.