intermediate scrutiny

Another Arrow in the Bag for Plaintiffs when it Comes to Disability Discrimination by Governmental Entities

December 5, 2018 by William Goren 2 Comments

Before getting started on the blog of the week, I want to express my condolences to the Bush family on the passing of George H.W. Bush. He signed the Americans With Disabilities Act on June 26 of 1990. His son also has a powerful legacy in that regards as he signed the ADAAA. Simply put, for my ability to participate in the mainstream world as well as the specialty I have carved out for my legal career, I owe a great debt to both of them. In keeping with their legacy, I was incredibly moved that H.W.’s service dog was front and center in the papers. G-D speed H.W. May H.W. rest in peace.

Today’s case will revolutionize the consequences for what happens when a nonfederal governmental entity, and possibly a federal governmental entity as well, discriminates on the basis of disability. As I have mentioned before, at least once a month, I get a call about a court system somewhere around the country discriminating against a person with a disability before it. Previously, I have written about two different cases involving suing court systems successfully for disability discrimination. A discussion of those cases can be found here and here.

The case of the day is a case from the Sixth Circuit decided September 25, 2018, Bullington v. Bedford County, Tennessee, which can be found here. As usual, the blog entry is divided into categories and they are: facts; opinion for the court; concurring opinion; and takeaways/thoughts. The reader is free to focus on any or all of the categories.

Facts

Bullington worked as a dispatcher at the Bedford County Sheriff’s Department for eight years. Sometime during that period, she developed Hodgkin’s lymphoma that was treated with chemotherapy. However, the chemotherapy caused neuropathy and scar tissue in her lungs so that she needed additional treatment. As a result of that diagnosis and treatment, she asserted the department treated her differently than the other employees. She filed suit alleging: violation of her constitutional rights under the 14^th amendment to be free from discrimination and retaliation; violation of her constitutional rights because the County did not provide adequate supervision and training; violation of the Tennessee human rights act; and violation of the ADA. The defendant moved for judgment on the pleadings, which was granted by the District Court, and Bullington appealed.

Opinion for the Court

Plaintiff admitted that she did not file a charge with the EEOC. Accordingly, she did not exhaust administrative remedies. Further, while she may have followed prior counsel’s advice on whether to file a charge with the EEOC, which was mistaken, that is not enough to allow for equitable tolling. Accordingly, the ADA claim has to be dismissed.
Determining whether Congress precluded a remedy under §1983 turns on congressional intent.
A distinction exists between §1983 claims premised on constitutional violations and those based on statutory violations in determining whether a §1983 claim is precluded.
Where the contours of rights between the statutory claim and the constitutional protection diverge in significant ways, it is not likely that Congress intended to displace §1983 suits involving important constitutional rights.
Both the Third and the Eighth Circuits have held that the ADA does preclude §1983 claims for violations of the ADA. Even so, that is not what is going on here. Rather, plaintiff alleges constitutional violations and not violations of the ADA itself. So, her claims are being brought under the 14^th amendment’s equal protection clause and not under the ADA.
Several Circuits have allowed constitutional claims to be brought under §1983 even where the plaintiff’s constitutional claims run parallel to claims brought under analogous statutes. Further, other courts have allowed plaintiffs to pursue claims under §1983 for disability discrimination even when they run parallel to ADA violations.
The court looked to a Supreme Court case, Fitzgerald v. Barnstable School Committee 555 U.S. 246 (2009), holding that a §1983 claim for an equal protection violation was allowed to run parallel to a title IX claim. In reaching that decision, the Supreme Court look to title IX’s enforcement mechanism, the scope of title IX rights and 14^th amendment rights, and to the context and history of title IX.
Based upon Fitzgerald, there are three things to consider when examining congressional intent to preclude a constitutional claim, and they are the statute’s: text and history; remedial scheme; and the contours of its rights and protections.
The burden of proving preclusion of a §1983 claim lies with the defendant.
Neither the statutory text nor the legislative history of the ADA contains a clear indication of congressional intent to preclude simultaneous constitutional claims.
42 U.S.C. §12201(b) expressly provides that nothing in the ADA shall be construed to invalidate or limit remedies, rights, and procedures of any federal law or law of any State or political subdivision of any State or jurisdiction providing greater equal protection for the rights of individuals with disabilities than afforded by the ADA. Such language is strong evidence that Congress did not intend to preclude remedies under §1983 for constitutional violations.
The Committee on Education and Labor’s report as well as the Committee on the Judiciary’s report both make clear that the ADA was not intended to preclude other remedies, including those of constitutional law.
The ADA’s relation to title VII of the civil rights act also suggests that Congress did not intend to include alternative remedies for disability discrimination as the ADA uses the procedures set forth in title VII. That relationship is important because at the time Congress passed the ADA in 1990, courts frequently held that the comprehensive scheme provided in title VII does not preempt §1983, and that discrimination claims may be brought under either statute, or both.
At the time Congress enacted the ADA, the Sixth Circuit had already allowed plaintiffs to bring parallel concurrent title VII and §1983 constitutional claims.
Congress’s presumed familiarity with title VII case law and the numerous references to title VII within the ADA suggest that Congress could not have intended for the ADA to preclude a §1983 claim.
With respect to title II of the ADA, it’s remedies are tied into title VI of the Civil Rights Act. Title VI of the Civil Rights Act as far back as 1967 was routinely interpreted to allow for parallel and concurrent §1983 claims.
Where an employee establishes employer conduct violating both title VII and rights derived from another source, whether it be the Constitution or federal statutes existing at the time of the enactment of title VII, the claim based on the other sources are independent of the title VII claim.
In 2012, the Sixth Circuit held that a §1983 claim regarding a constitutional violation could survive despite title VII.
Where the contours of such rights and protections between the two laws diverge in significant ways, it is not likely that Congress intended to displace §1983 suits enforcing constitutional rights even where there is some overlap in coverage.
Rights created by the ADA are strikingly different from those already protected by the equal protection clause as the stated purpose of the ADA as found in 42 U.S.C. §12101(b)(1)-(3) is: providing a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities; to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities; and to ensure that the federal government plays a central role in enforcing standards set forth in the ADA on behalf of individuals with disabilities.
In addition to invoking its power under §5 of the 14^th amendment, Congress also invoked a broad power under the commerce clause.
The protections available under the ADA and the equal protection clause are critically different from each other. For a person to prove an ADA claim, the plaintiff has to show: that she was in a class of persons protected by the ADA; that she was otherwise qualified for the position; that she suffered an adverse employment action; that the employer knew or had reason to know of her disability; and that the adverse employment action occurred under circumstances raising a reasonable inference of unlawful discrimination.
The equal protection clause requires a very different showing than the ADA. With respect to the equal protection clause, citing to Heller v. Doe, 509 U.S. 312 (1993), and to Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), a plaintiff has to show that there was no rational basis for the State action to treat her differently because of her disability.
Given the different requirements for proving the claim under the ADA and the equal protection clause, it makes sense that even if the comprehensive remedial scheme of the ADA somehow precluded utilizing §1983 to assert an ADA violation, the plaintiff still gets to assert a violation of the equal protection clause based on alleged disability discrimination through 1983.
Since both the rights created by the ADA and the equal protection clause very significantly as do the elements required to prove both of those claims, that evidences a lack of congressional intent that the ADA precluded separate enforcement of individuals with disabilities constitutional rights.

III

Concurring Opinion of Judge Kethledge

Extrinsic materials like legislative history have a role in statutory interpretation only to the extent they shed a reliable light on the enacting legislature’s understanding of otherwise ambiguous terms.
Legislative history by itself has zero significance in statutory construction. Legislative history only matters to the extent it clarifies a specific ambiguity in the statutory text.
Nothing in the text or structure of the ADA supports preclusion of a parallel constitutional claim. Accordingly, that is reason enough to hold that the ADA and constitutional claims can parallel each other. Therefore, referring to legislative history to justify that conclusion is completely unnecessary.

Takeaway/Thoughts

This case is absolutely huge with respect to the consequences of what happens when a State court engages in disability discrimination. Now, under this decision, a person with a disability has parallel tracks they can pursue (the ADA as well as procedural and substantive due process).
Very interesting that the court cites to Heller and Board of Trustees of the University of Alabama for two reasons. First, as I have written in all of the Editions of my book, Understanding the ADA, which can be found here, in Heller, the United States Supreme Court assumed that persons with disabilities were in the rational basis class since both parties didn’t contest that. It is true that Board of Trustees of the University of Alabama said that persons with disabilities with respect to employment are in the rational basis class. However, Board of Trustees of the University of Alabama relied upon Heller, where a rational basis classification was assumed without argument, and upon Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985), which would be more appropriately classified as a rational basis plus classification. So, putting persons with disabilities in the rational basis class with respect to employment does not follow squarely from precedent.
Regardless of persons with disabilities being classified in the rational basis class when it comes to employment not squarely following from precedent, it is now settled that persons with disabilities are in the rational basis class with respect to employment. However, that is simply not the case with respect to title II of the ADA. Under Tennessee v. Lane, 541 U.S. 509 (2004), which we discussed here, when it comes to accessing the courts, persons with disabilities are in a much higher classification than rational basis. Accordingly, that means rebutting an equal protection violation or a substantive due process violation under title II of the ADA means the State showing it had a compelling interest in the discrimination. Considering the ADA, that is going to be an almost impossible bar for the State to jump over.
Since the equal protection clause and the substantive due process clause mirror each other, one wonders whether this decision cannot be used to address disability discrimination by a federal court, where it happens, even though the federal courts are not subject to the ADA.
Will the courts split on this thereby leading to a U.S. Supreme Court decision? Hard to tell. However, the concurring opinion provides a way for the courts to avoid splitting, as any split would likely come from judges that frown on legislative history. It is possible, even if it is very unlikely, that the United States Supreme Court could decide to hear a matter without a split among the Circuits.
Title I of the ADA requires exhaustion of administrative remedies, but keep in mind, that title II and title III of the ADA do not. When exhaustion is required is absolutely something the attorney has to know unless they want to be contacting their malpractice carrier.
The concurring opinion believes that it was so clear that the ADA does not preclude equal protection claims that you don’t even have to look at legislative history. That is important because many people on the U.S. Supreme Court don’t like to look at legislative history unless they have to. That said, it is concerning that this is a title I case as persons with disabilities have not fared well at the Supreme Court level when it comes to disability discrimination in employment. I would feel more comfortable about a person with a disability chances at the Supreme Court over the issue of constitutional law and the ADA running in parallel to each other if this was a title II case.
Failure to provide training on the ADA possibly could violate a person with a disability equal protection rights under this decision.
The burden of showing preclusion is on the defense.

I am figuring on one more blog entry before our annual greatest hits issue. I have an entry in mind, but you never know what will come up.

Transgender: Equal Protection, Due Process, and ADA

June 18, 2018 by William Goren Leave a Comment

One of the topics that we have discussed before (see here for example), is transgender individuals alleging that they have been the victims of disability discrimination. Recently, transgender plaintiffs have also had success in alleging that they are the victims of sex discrimination as sex discrimination includes stereotyping based on gender, which by definition discrimination against a transgender person is. The case of the day is Doe v. Massachusetts Department of Corrections decided by United States District Court of Massachusetts on June 14, 2018. As usual, the blog entry is divided into categories and they are: facts; issues presented; holdings; court’s reasoning; and takeaways/thoughts. The reader is free to focus on any or all of the categories.

Facts

A transgender woman was assigned to a men’s prison as a result of her birth being a man even though since her teenage years, she has identified as a woman, including hormone treatments etc. As you might expect, being transgender in a men’s prison created all kinds of problems. If you are a fan of Orange Is the New Black, the problems arising are easily imagined and are amply detailed in the case itself. As an aside, Massachusetts recently passed a Criminal Justice Reform Act mandating respecting the gender identity of a prisoner, but that law comes too late for this particular plaintiff. Since she was unable to get a transfer to a woman’s prison, she brought suit alleging violations of the ADA, the Rehabilitation Act, and §1983 vis-à-vis the 14^th amendment to the U.S. Constitution. She sought injunctive relief seeking the following:

(1) transfer Doe to MCI-Framingham [a DOC facility for women]; (2) enjoin Defendants from using male correctional officers to conduct strip searches of Jane Doe, except in exigent circumstances; (3) enjoin Defendants from forcing Jane Doe to shower in the presence of men and with a shower curtain that does not adequately cover her; (4) enjoin Defendants from treating Jane Doe differently than other women held by the DOC; (5) train all staff on how to appropriately accommodate, treat and communicate with individuals with Gender Dysphoria within 60 days of this order; (6) enjoin Defendants from using male pronouns when speaking to or about Jane Does; (7) enjoin Defendants from referring to Jane Doe by her former male name (or any abbreviated version thereof); (8) refer to Jane Doe by her chosen female name; and (9) award such other relief as is just and proper.

The Department of Corrections filed a motion to dismiss for failure to state a claim.

Issue Presented

Is gender dysphoria a disability under the ADA/Rehabilitation Act?
Does the ADA’s exclusion for gender identity disorders apply to this case?
Is the ADA’s exclusion of gender identity disorders not resulting from physical impairments unconstitutional under the 14^th amendment to the U.S. Constitution?
Are services, programs or activities involved?
For equal protection purposes, what level of scrutiny does a transgender individual get?
Have there been sufficient allegations for the plaintiff to allege due process violations?

III

Holdings

Yes
No
Probably
Yes
Intermediate scrutiny
Yes

Court’s Reasoning

A person born with gender dysphoria is born with circulating hormones inconsistent with their gender identity and, in the plaintiff’s case, requires lifelong treatment for gender dysphoria, including the administration of female hormones. As such, she is incapable of reproduction. So, the major life activities that are substantially limited are both endocrine and reproductive functions.
42 U.S.C. §12211(b)(1) removes from the protection of ADA the following: transvestism; transsexualism; pedophilia; and gender identity disorders not resulting from physical impairments, or other sexual behavior disorders.
As medicine has evolved over the years, gender dysphoria has come to mean something different than gender identity disorder. That in and of itself is sufficient to raise a disputed question of fact as to whether gender dysphoria falls outside of the ADA’s exclusion of gender identity based disorders as Congress understood it 28 years ago.
It is possible that gender dysphoria results from physical causes, and plaintiff raised a disputed question of fact with respect to herself on that score.
The current diagnosis of gender dysphoria in the DSM-V requires attendant disabling physical symptoms, in addition to manifestations of clinically significant emotional distress.
Where the government draws a distinction against a historically disadvantaged group and where that distinction has no other basis, that is a reason to undermine the discriminatory classification rather than uphold it.
If you look at the list that “gender identity disorders not resulting from physical impairments,” is contained within, it is paired with conduct viewed by society as criminal or immoral or even lewd. That raises a serious question as to the perspective the drafters of this particular provision had when enacting it. Also, included in that list are: compulsive gambling; kleptomania; pyromania; and psychoactive substance use disorders resulting from current illegal use of drugs. All of those are activities are illegal, dangerous to society, or the result of harmful vices.
Squaring the exclusion of otherwise bona fide disabilities without remedial purpose of the ADA simply can’t be done. That is, the remedial purpose of the ADA is addressing discrimination against individuals with disabilities based on antiquated or prejudicial conceptions of how they came to their station in life. Accordingly, to the extent the ADA can be read as excluding an entire category of people from its protection because of their gender status, that reading is best avoided.
Although the language of the ADA talks about services, programs, or activities, in reality that phrasing refers to prohibiting all discrimination by a public entity (check out this blog entry as well). As such, the ADA’s broad language brings within its scope anything a public entity does.
Plaintiff also sufficiently alleged a disparate impact claim because she had been put into a prison environment contrary to a critical aspect of her prescribed treatment of being allowed to live as a woman.
Where a state creates a classification based on transgender status, that is a classification based on sex and therefore, gets heightened judicial scrutiny above the rational basis test i.e. intermediate scrutiny.
For discrimination against the member of a group subject to intermediate scrutiny to survive, that discrimination must serve important governmental objectives and be substantially related to the achievement of those objectives.
The Department of Corrections did not meet its burden of demonstrating that housing her and other similarly situated transgender prisoners in facilities corresponding to their birth sex serves important governmental interest.
Generalized concerns for prison security are insufficient to meet the burden of proof imposed by intermediate scrutiny. In particular, the allegations of the complaint are that the Department of Corrections houses inmates according to the biological sex without regards to particularized considerations. For example, disciplinary problems or security risks, neither of which were applicable to the plaintiff.
For a due process claim to survive, a prisoner has to show that: 1) the state, through the duration and conditions of confinement, imposed atypical and significant hardship on the prisoner giving rise to a protected liberty interest; and 2) the state deprived the prisoner of the process the prisoner was due to protect that interest. The plaintiff alleged more than sufficient facts to show that she had to deal with atypical and significant hardships in relation to the normal incidents of prison life as compared to other inmates in the Massachusetts prison system.

Takeaways and Thoughts

Early on in the opinion, the court states this: “in addition to demonstrating that she has a physical or mental impairment that substantially limits one or more major life activities, Doe must also establish a record of such an impairment, or being regarded as having such an impairment by representatives of the public entity in question, generally in the form of an adverse action or actions.” This statement is simply not correct. It is true that every ADA or Rehabilitation Act claim requires an adverse action. However, that is quite a different kettle of fish than saying of the three prongs of what it means to have a disability, two of them must be satisfied. That is simply not the case. Satisfying an actual disability, or a record of a disability, or being regarded as having a disability all get you coverage under the ADA. You don’t need to have more than one of them.
I have now seen the movie RBG twice (once, while visiting a buddy in Columbia, Missouri, and once, with my wife), and am hoping to see it a third time with my daughter when she returns back from camp. From that movie, I learned that RBG, then attorney for the plaintiff, tried to get the Supreme Court to buy off on sex-based discrimination being put in a suspect class, but ultimately proved unsuccessful by one vote. As we have discussed before, equal protection jurisprudence all turns on what category the individual falls within: strict scrutiny-race; intermediate scrutiny-sex-based discrimination; or rational basis-everyone else. Here, once the court decided that intermediate scrutiny applied, the game was over for the defendant. It is extremely difficult for a defendant to justify discrimination once the intermediate scrutiny or higher level is applied.
My concern with the equal protection jurisprudence is that it’s incredibly divisive. For example, this decision put transgender in the intermediate scrutiny category. However, unless you are talking about access to the courts, we know it is extremely unclear where persons with disabilities fall into. For example, persons with disabilities per this case are in the rational basis class when it comes to employment. Everything else depends upon the facts.
With this decision, you have an individual that gets protection under the ADA and the Rehabilitation Act but then even though that is a disability, receives higher equal protection clause protection because transgender is sex-based discrimination. If a prisoner has a different disability other than transgender, it is entirely possible that person would get a lower level of scrutiny than intermediate scrutiny. Hard to believe that this is where equal protection jurisprudence takes us, but it does.
Blanket policies are never a good idea when it comes to the world of the ADA. See this blog entry for example.

Is a person with a disability entitled to an attorney in a civil matter as a reasonable accommodation under title II of the ADA or under state law?

July 14, 2014 by William Goren 1 Comment

One of my more popular blog entries is the blog entry that discusses suing a state court system for disability discrimination. I also have a second blog entry following up on that blog entry.

This blog entry explores a related topic. Let’s say a person with a disability finds themselves in the court system in a civil matter. The person with a disability because of their disability simply cannot access the court system properly without an attorney. Does the ADA or, for that matter, a state antidiscrimination law, mandate that an attorney be appointed for that person with a disability much in the same way as an attorney is appointed for someone who cannot afford an attorney in a criminal matter? A case that doesn’t specifically address this question, but raises this issue is, Weems v. Bd. of Indus. Ins. Appeals, 2014 Wash. App. LEXIS 1659 (Wash. Ct. App. July 8, 2014).

As is my usual practice, I have the blog entry divided into sections. These sections for this blog entry are: facts, court’s holding, what the court wanted to know more about, and takeaways. The reader is free to focus on any or all of the categories of this blog entry.

I
Facts

In 1973, the plaintiff suffered an on-the-job injury where he was struck in the head by a cable, broke cartilage in his nose, and bruised his nose and face. Over the years, the plaintiff suffered other injuries as well, including falling 75 feet off a water tower and having his face strike a wall at home in 1997. In 2007, the plaintiff applied to reopen his claim due to the worsening of injuries caused by the 1973 accident. From here, the facts get a little complicated. Suffice to say, what happened is at the trial level, the workers compensation system in the State of Washington made clear that he should have an attorney, but that it would have to be at his own expense. His wife tried to assist through the process, but was clearly uncomfortable and made it clear that the plaintiff did not have the ability to understand and participate in the proceedings the way he needed to without legal counsel. She expressed quite a bit of unhappiness that counsel would not be appointed for them. The plaintiff himself did not seem to want legal counsel, but on this point, the facts were murky. At any rate, what happened is once the lower-level decision was appealed, counsel was appointed for the plaintiff, but that obligation ended once the case got sent back down to the lower levels. This happened twice in the same way. After the second time, an appeal was taken into the state court system where the plaintiff claimed that the Superior Court erred because the Board discriminated against the plaintiff in violation of the ADA and the Washington Law against Discrimination.

II
Court’s Holding

The court said that they could not review the claim because the record lacked findings of facts on material issues.

III
What the Court Wanted to Know More About

The court wanted to know the following things:

1. Was the plaintiff a person with a disability as defined by the ADA as amended and under the Washington Law Against Discrimination?

2. Did the plaintiff requests that the Board appoint him counsel as an accommodation for his disability? If not, was the plaintiff’s need for accommodation obvious to the Board?

3. The Superior Court needed to figure out whether the Board’s alternative to the appointment of counsel at public expense (such as plaintiff’s ability to hire an attorney on a contingency fee basis, the plaintiff’s wife assistance as a lay representative, and the industrial appeals Judge’s questioning of witnesses), either: A. failed to provide the plaintiff with the level of service comparable to that enjoyed by nondisabled claimants; or B. deliberately failed to accommodate plaintiff’s disability so as to discriminate against him.

4. Would appointment of counsel at public expense unduly burden the Board?

IV
Takeaways:

1. If you are running a state court system or even a federal court system, make sure you have an ADA compliance manual that informs everyone what their obligations are. The Illinois Attorney General has developed an excellent one in this area, though it is not perfect. Regardless of the compliance manual that you use, it is worthwhile to have that compliance manual reviewed by an attorney with expertise in the ADA so that any gaps in the compliance manual can be filled in.

2. If a person has a disability and is involved in the state court system, judges and court personnel need to be on the lookout to decide whether that person’s disability is something in need of accommodation. If so, the court system should initiate the interactive process.

3. Keep in mind, that a court system failing to engage a person with a disability in order to make sure that they can access the court system, runs the real risk of not only violating title II of the ADA but also violating the equal protection clause of the 14th amendment because when it comes to accessing the courts, persons with disabilities are at least in the intermediate scrutiny or higher class for equal protection jurisprudence per Tennessee v. Lane, 541 U.S. 509, 533-34 (2004). In English, this means a state court system violating title II of the ADA also probably violates a person with a disability’s equal protection rights as well.

intermediate scrutiny

Footer