Justice Scalia

City and County of San Francisco, California v. Sheehan Decided

May 19, 2015 by William Goren 3 Comments

Previously, I have blogged on the Sheehan case and its oral argument before the United States Supreme Court. Yesterday, the United States Supreme Court came down with the decision in this case, which can be found here:

As expected, they decided with respect to the ADA matter, that the writ of certiorari had been improvidently granted. That is, the issue of how title II of the ADA might apply to arrests is not answered or even addressed. Justice Alito noted that how the ADA applies to arrests is an important question and one that would benefit from briefing and adversarial presentation. However, the way the case got argued before the court, all of the parties believed that the ADA did apply to arrests. Accordingly, it was imprudent to decide the question.

The court also noted that all the parties agree that a public entity can be held vicariously liable for money damages for violating title II of the ADA for the purposeful or deliberately indifferent conduct of its employees, but that is a point of law that has never been decided by the Supreme Court as to whether that is correct and the court declined to do so in the absence of adversarial briefing.

They did decide to address the question of whether the officers could claim qualified immunity for violating the fourth amendment. The Supreme Court held in a decision by Justice Alito that the law in the area is so uncertain with respect to how police officers needed to behave given the facts of this case, that therefore, it was proper to grant the police officers qualified immunity. For qualified immunity to be waived, the law would have to be crystal clear so that the police would know how to conform their conduct, which wasn’t the case here. Also, the police acted reasonably under the circumstances with respect to fourth amendment jurisprudence.

Justice Scalia and Justice Kagan concurred and dissented. They concurred that the court was correct to dismiss the ADA question as being improvidently granted. They go further and accused the City and County of San Francisco of bait and switch. That is, setting up the system so that the court would grant certiorari and then switching it once the court grants it. These two Justices say that such a practice should not be encouraged and that by deciding the second issue they have given a victory to the City and County of San Francisco despite their engaging in inappropriate practices before the United States Supreme Court. Accordingly, they would have dismissed the second question as being improvidently granted as well so as to avoid being snookered and to deter future snookering.

Importantly, they note that the City and County of San Francisco will still be subject to liability under the ADA if the trial court determines that the facts demanded accommodation because the Court of Appeals vacated the District Court’s judgment that the ADA was inapplicable to police arrests of violent and nondisabled persons, and remanded for the accommodation determination.

Takeaways:

1. With respect to the fourth amendment, the police officers behaved reasonably in this case, and the police officers were allowed to exercise qualified immunity because of the uncertainty in the law at the time of their behavior, which uncertainty still remains after this decision.

2. The court leaves open the question of whether a public entity can be vicariously liable for damages under title II for the purposeful or deliberately indifferent conduct of its employees. One would think that the answer would be yes, since title II is tied into the Rehabilitation Act with respect to remedies, and under the Rehabilitation Act, vicarious liability does exist as noted in this blog entry .

3. Since the first question was improvidently granted and the Ninth Circuit vacated the District Court’s judgment that the ADA was inapplicable to police arrest of violent and disabled persons, the ADA case and San Francisco’s liability for ADA violations remain very much alive. San Francisco got a lot of heat for pursuing the case at the Supreme Court, and one wonders what that means with respect to fully defending the ADA suit in the District Court. One also wonders if the switch at the Supreme Court was not a result of that heat rather than something more nefarious as suggested by the dissenters.

Perez v. MBA and it’s Impact on the ADA Universe: Huge and Starting with new DOT Final Regulations

March 18, 2015 by William Goren 2 Comments

I
Introduction
Sometimes a case can have a huge impact on the ADA universe even though it is not an ADA case at all. Gross v. FBL Financial Services 557 U.S. 167 (2009) is one such case and today’s case is another. As is my usual practice, the blog entry has been divided into several categories: introduction; today’s case; the concurring opinions; the final rule from the Department of Transportation pertaining to transportation for individuals with disabilities…; The specific provisions of the final rule; highlights of the language of the final rule; why Perez matters; the appendix; and takeaways. The reader is free to concentrate on any or all of the categories.

II
Today’s Case

Today’s case, Perez v. Mortgage Bankers Association, a unanimous decision from the United States Supreme Court decided on March 9, 2015 is another such case. In this case, the Department of Labor’s wage and hour division issued letters stating that it was their opinion that mortgage loan officers do not qualify for the administrative exemption to overtime pay requirements under the fair labor standards act. In 2006, the wage and hour division completely reversed course. In 2010, they reversed again. MBA file suit alleging that under the jurisprudence of the United States Court of Appeals for the District of Columbia, when an agency does something like this, it must go through the Administrative Procedure Act’s notice and comment procedures.

The United States Supreme Court in a unanimous opinion, said the terms of the Administrative Procedure Act were very clear when it states that the notice and comment requirement does not apply to interpretive rules, general statement of policy, or rules of agency organization, procedure, or practice. Therefore, an agency was not required to go through the notice and comment procedures when it issues interpretive rules regardless of its interpretation in the past, and the line of cases from the US Court of Appeals of the District of Columbia saying otherwise was in error.

In reaching this conclusion, the majority opinion made a few additional critical points that are useful here. First, interpretive rules do not have the force and effect of law and are not accorded that weight in the adjudicatory process. Second, prior case law from the United States Supreme Court merely meant that an agency may only change its interpretation if the revised interpretation is consistent with the underlying regulations and was not in support of the line of cases stating otherwise from the US Court of Appeals for the District of Columbia. Third, the Administrative Procedure Act does require an agency to provide more substantial justification when a new policy rests upon factual finding contradicting those underlying a prior policy or when a prior policy has led to serious reliance interests. To ignore both of those situations would be arbitrary and capricious.

III
The Concurring Opinions

That all may be true, but what is extremely significant about this case is the concurring opinions. The concurring opinions reveal that there are at least three justices of the United States Supreme Court that would go even further. To their view, it is simply not enough to say that interpretive rules do not have the effect of law because while they do not have the effect of law, there is a line of cases from the United States Supreme Court that requires deference to agency interpretations of regulations unless it is plainly erroneous or inconsistent with the regulation. The three justices (Scalia and Thomas explicitly and Alito signifying he is leaning that way), believe that doctrine should be overruled as well, which brings us to….

IV
The Final Rule from the Department Of Transportation Pertaining to Transportation for Individuals with Disabilities; Reasonable Modification of Policies and Practices

On March 13, 2015, the Department of Transportation issued a final rule pertaining to Transportation for Individuals with Disabilities; Reasonable Modification of Policies and Practices. The final rule requires public transportation entities to make reasonable modifications/accommodation to their policies, practices, and procedures in order to ensure program accessibility. The necessity for the rules was mandated by case law that was finding against the Department of Transportation by holding that transportation entities were not obligated to make such modifications under the ADA because the Department of Transportation had no regulations explicitly requiring transportation entities to make reasonable modifications.

V
The Specific Provisions of the Final Rule:

1. Recipients of federal financial assistance are required to provide reasonable accommodation to policies, practices, or procedures when the accommodations are necessary to avoid discrimination on the basis of disability unless there exist a fundamental alteration to the nature of the service, program, or activity or there exist an undue financial and administrative burden.

What is interesting about this particular provision of the final rule is the requirement that a defense exist where there exist an undue financial AND administrative burden. When I first saw this, I said to myself this can’t be right and so I double checked it. It turns out that under the implementing regulations for title I of the ADA, it is clear that undue hardship, which is a title I term, can either be an undue hardship in the financial sense OR in the logistical sense. See 29 C.F.R. § 1630.2(p)(2). With respect to title III’s implementing regulations, it is clear that undue burden can be either financial or logistical. See 28 C.F.R. § 36.303(a). While I don’t have it handy at the moment, there is plenty of case law to support that undue hardship can either be financial or logistical and that undue burden under title II can either be financial or logistical. Nevertheless, the final regulations dealing with title II of the ADA, 28 C.F.R. § 35.150(a)(3) do refer to undue financial AND administrative burdens. It doesn’t seem that the Department of Transportation believes that both have to be satisfied because otherwise much of its appendix, more on that later, to this final rule would not make any sense.

2. Those providing public transportation, including fixed route, demand responsive, and complementary paratransit services must implement their own processes for making decisions on providing reasonable modification to their policies and practices. There is freedom on how to go about it but certain things have to happen. First, information about the process and how to use it must be readily available to the public, including persons with disabilities. Second, the process must allow for accessible means by which persons with disabilities can request reasonable modifications/accommodations. Third, the process must also provide for those situations where an advance request and determination is not feasible.

3. Requested modification can be denied in any of three different situations: a fundamental alteration of the provider’s services exist; providing the modification results in a direct threat to the health or safety of others; providing the accommodation is not necessary to permit the passenger to use the entity’s services for their intended purpose in a nondiscriminatory fashion (that is, while the modification might make things more convenient for the passenger, the passenger could nevertheless use the services in a nondiscriminatory manner without the modification).

4. All public and private entities providing these transportation services must have a complaint process in place. The Department of Transportation will look to take action where a complaint process is not in place, the complaint process is not being operated properly, the complaint process is not being operated in good faith, or a particular case raises a federal interest.

VI
Highlights of The Language of the Final Rule

5. With respect to an entity receiving federal financial assistance, what is really interesting is that the final rule itself uses a bit of different language. The final rule talks about reasonable accommodations and not reasonable modifications. Reasonable accommodations is a title I term, whereas reasonable modifications are the terms used in title II and title III. Nevertheless, the final rule specifically uses the term reasonable accommodations but then says that reasonable accommodations mean the same thing as reasonable modifications under title II of the ADA and not reasonable accommodations under title I of the ADA. I find this all strange. I do not know why the Department of Transportation does not stick with the term reasonable modifications instead of going through a complicated endeavor to use the term reasonable accommodations in the final rule.

6. Whether a public entity or a private entity, it must have at least one person designated to coordinate its efforts to comply with nondiscrimination on the part of persons with disabilities (recipients of federal financial assistance due to § 504 regulations should already have such a person).

7. The final rule specifically defines origin to destination service and mandates that where an ADA paratransit operator chooses curb to curb service as the primary means of providing service, assistance must be provided to passengers with disabilities beyond the curb unless such assistance results in a fundamental alteration or a direct threat.

8. Public and private entities must give priority to methods offering services, programs, and activities to qualified individuals with disabilities in the most integrated setting appropriate to the needs of the person with a disability.

9. Public entities have until July 13, 2015 to get a complaint process in place.

10. In determining whether to grant a requested modification, public entities shall be guided by the provisions of appendix E, coming up next.

VII
Why Perez Matters

11. Perez matters because in the world of the ADA you have guidances and interpretive rules everywhere. The decision puts everyone on notice that the guidances and interpretive rules are at considerable risk of subsequent litigation. Further, calling a guidance something else, such as in this case attaching an appendix, is also at considerable risk.

VIII
The Appendix:

12. The provisions of the final rule clearly suggests that the appendix only applies to public entities (See new 49 C.F.R. 37.169(d)), yet the appendix itself doesn’t seem to make that distinction.

13. The appendix actually uses the term, “…explains the department’s interpretation of §§ 37.5(g) and 37.169 [and] is intended to be used as the official position of the department concerning the meaning and implementation of these provisions.”

Two points here. First, the rule as literally set up seems to suggest that private entities do not have to worry about the appendix. Second, it is clear that the appendix is the Department of Transportation’s interpretation of the final rule and as such may run into the problem of whether this interpretation will be granted deference per Scalia, Thomas, and presumably Alito, if their views prevail.

14. Things that the Department of Transportation will consider reasonable modifications:

A. A passenger’s request for a paratransit driver to walk over a pathway that has not been fully cleared of snow and ice where such request is to help the passenger with a disability navigate the pathway;

B. If snow or icy conditions at a bus stop make it difficult or impossible for a fixed route passenger with a disability to get to the lift or for the lift to deploy, moving the bus to a cleared area for boarding if moving the bus is available within reasonable proximity to the stop;

C. A paratransit rider’s request to be picked up at home but not at the front door of his or her home or to be dropped off at an entrance requested by a passenger to a frequently visited public place with multiple entrances so long as the requested pickup location did not pose a direct threat;

D. Picking up a paratransit passenger on private property in a gated community or parking lot, mobile home community, business or governmental facility where vehicle access requires it also pass through a security barrier so long as every reasonable effort to gain access to that area has been made;

E. Granting a passenger’s request for a driver to position the vehicle to avoid obstruction to the passenger’s ability to enter or leave the vehicle at a designated stop location, such as park cars, snowbanks, and construction so long as the vehicle avoiding the obstruction does not pose a direct threat;

F. Granting a passenger’s request for transit personnel to handle the fare when the passenger with a disability cannot pay the fare by the generally established means;

G. Granting a passenger with diabetes or another medical condition request to eat or drink aboard a vehicle or in a transit facility in order to avoid adverse health consequences;

H. Granting a passenger’s request to take medication while aboard a fixed route or paratransit vehicle or in a transit facility;

I. Granting a wheelchair user’s request aboard a fixed route or paratransit vehicle separately from his or her device when the occupied weight of the device exceed the design load of the vehicle lift;

J. A passenger’s request for the driver to open an exterior entry door to a building to provide boarding and/or alighting assistance to a passenger with a disability so long as such assistance does not pose a direct threat or leave the vehicle unattended or out of visual observation for a lengthy period of time;

K. A passenger requesting that a paratransit vehicle navigate to a pickup point where it is difficult to maneuver a vehicle so long as the passenger does not expose the vehicle to a hazard posing a direct threat.

L. A paratransit passenger’s request for a driver to help him or her navigate an incline with the passenger’s wheel device. Same goes for assistance in traversing a difficult sidewalk or getting around obstacles between the vehicle and a door to a passenger’s house or destination unless such assistance results in a direct threat or leaves the vehicle unattended or out of visual observation for a lengthy period of time.

M. A passenger’s request to be assisted from his or her door to a vehicle during extreme weather conditions so long as the driver leaving the vehicle to assist would not pose a direct threat or leave the vehicle unattended or out of visual observation for a lengthy period of time;

N. Where a passenger’s request for assistance means that the driver will need to leave passengers aboard a vehicle unattended or out of visual observation for a lengthy period of time, unless accommodating the request is a direct threat to the health or safety of the unattended passengers, which the Department of Transportation says “could involve direct threat,” in that situation.

The use of the term “could involve direct threat…,” Is extremely problematic in terms of what it might mean.

O. Accommodating a passenger with a disability on a return trip when they did not need that assistance on the initial trip;

P. A passenger’s request for a telephone call five minutes in advance or at time of vehicle arrival.

What is not a reasonable modification/accommodation:

1. Fixed route operators having to establish flag stop or route deviation policies;

2. Reaching into pockets or backpacks of the passenger with a disability in order to extract the fare;

3. A paratransit passenger’s request for special equipment so long as that requested equipment is not required by the ADA or Department of Transportation rules. Same goes for a dedicated vehicle or a specific type or appearance of vehicle;

4. A person’s request to have the transportation provider travel outside of its service area or to operate outside of its operating hours;

5. Providing a personal care attendant or a personal care attendant services to meet the needs of passengers with disabilities on paratransit or fixed route trips;

6. Providing the passenger with a disability free fixed route or paratransit driver services;

7. Being asked to follow a path to a pickup or drop-off point that exposes the vehicle and its occupant to hazards;

8. A passenger’s request for a specific driver;

9. A passenger’s request for a fixed route or paratransit driver to assist with luggage or packages where it is not the normal policy or practice of the transportation agency to do that;

10. A paratransit passenger’s request not to ride with certain riders.

11. Unless an emergency exists, a passenger’s request for a driver to lift the passenger out of his or her mobility device.

Optional

1. Granting a paratransit passenger’s request for a driver to make an intermediate stop where the driver would be required to wait is something the paratransit operator can or cannot do at their option.

Wild West

1. A paratransit or fixed route passenger’s request that the driver take charge of the service animal may be denied. Caring for a service animal is the responsibility of the passenger or a personal care assistant.

True enough. But what does caring for the animal mean. See this blog entry of mine.

IX
Takeaways:

1. Guidances and interpretive rules when it comes to the world of the ADA are absolutely everywhere. Perez is putting everyone on notice that the ability of agencies to issue the guidances and interpretive rules is unfettered, but the days of such interpretive guidances and rules being given a great deal of discretion by the court may be coming to an end. Thus, agencies may have won the battle in Perez, but may be on the verge of losing the war.

2. These Department of Transportation regulations may be the perfect case for the Supreme Court to evaluate whether interpretive rules and guidances must be given deference by the courts. Apendix E is clearly an interpretive rule regardless of what you might call it, and the very nature of the rule takes away the individual case by case analysis that the ADA requires.

3. Apendix E on its face only applies to public entities. Therefore, if you are a private entity, a plausible argument can certainly be made that appendix E is not applicable. Also, nothing in the final regulation seems to suggest that appendix E would apply to a private entity accepting federal funds either.

4. Despite what the title II regulations say, I am not aware of any case law that says for something to be an undue burden it has to be both financial and administrative.

5. As I have mentioned before, with rare exceptions, I don’t like guidances and interpretive rules for many reasons. First, the guidances and interpretive rules avoid the notice and commenting process of the Administrative Procedure Act. Second, such guidances and rules can create their own problems (example-what does caring for an animal mean? What does it mean to say that an intermediate stop is optional but could rise to a fundamental alteration?). Finally, the guidances and rules are used as a crutch by attorneys so that attorneys don’t have to go through the individual analysis to figure out whether an undue burden/hardship or fundamental alteration exists. It won’t surprise me in the least if appendix E is used as a vehicle to test whether the doctrine of giving deference to interpretive rules and guidances is still good law.

What Kennedy Giveth Scalia Taketh Away?

April 15, 2014 by William Goren Leave a Comment

I want to wish all those celebrating Passover, which started yesterday, and Easter, which is Sunday, a happy holiday.

This blog entry is divided into separate categories, but unlike my usual system, the categories are little bit different. Here we have: introductory comments, the case that is the subject of this blog entry (Burrage v. United States), whether a certain aspect of the court’s reasoning in that case (I call it reason 9), will become controlling as it might apply to ADA matters, and takeaways.

I
Introductory Comments

One of my most popular blog entries every day involves the United States Supreme Court decision in University of Texas Southwestern Medical Center v. Nasser where the United States Supreme Court in a 5-4 ruling, with Justice Kennedy being the swing vote, held that mixed motive is dead with respect to retaliation claims under title VII of the Civil Rights Act. As mentioned in that blog entry, the reasoning in that opinion is such that this decision most certainly means mixed motive is dead with respect to retaliation claims under the ADA; thereby, giving a huge victory to ADA defense lawyers. On the other hand, the reasoning of the majority is such, that mixed motive is now in play under title I of the ADA; thereby, giving a huge victory to ADA plaintiff employment lawyers. In a second blog entry, I discussed a case out of the District Court in Oregon holding that mixed motive is in play for employment discrimination claims under the ADA.

As anybody knows who has taken an introduction to law class, lower courts are bound by decisions of higher courts. Thus, if Nassar was the last word on mixed motive, there is, as I mentioned in my blog entries above, little doubt that mixed motive would apply to title I claims. However, what if the United States Supreme Court sends confusing messages, then what are the lower courts to do?

It is curious as to how I found out about the particular case that is the subject of this blog entry. My office is not far from the Emory Law school and I have had the privilege of benching various moot court teams as they prepare for their competitions. This year, I benched the criminal procedure team as they prepared for their competition. Their problem set was based upon two cases that were before the United States Supreme Court, which decisions came down before the regional competitions occurred.

II
The Case That Is the Subject of This Blog Entry (Burrage v. United States)

One of the cases that the problem set was based on was the case of Burrage v. United States.

Burrage is a criminal procedure case and therefore, would seem to have nothing to do with the ADA. However, that case is a causation case and that is where it becomes relevant for our purposes. In this case, a longtime drug user died following an extended binge that included using heroin purchased from Burrage. The purchase of the heroin from the defendant was a contributing cause to Burrage’s death but could not be said to be a but for cause. The controlled substances act imposes a 20 year mandatory minimum sentence on a defendant who unlawfully distributes a schedule one or two drug when death or serious bodily injury results from the use of such substance. Thus, the issue the U.S. Supreme Court was faced with was whether this statutory provision has any causation element to it. If so, what is that causation standard? Assuming a causation standard, the U.S. Supreme Court could have gone any of three ways. First, they could have applied a contributing factor test, which what was the grant of cert seemed to assume. Second, they could have applied a substantial factor test along the lines of what is commonly seen in tort law. Finally, they could have applied a but for causation test.

Scalia in coming to the conclusion that but for causation was the way to go and therefore reversing the Eighth Circuit’s imposition of the mandatory sentence reasoned as follows:

1. Because the enhancement increases the minimum and maximum sentences for a defendant, whether “death resulted,” is an element that has to be submitted to the jury and found beyond a reasonable doubt. Accordingly, the statutory phrase “resulting from,” must mean “death caused by.”

2. When the law speaks of causation, it speaks of both actual cause and legal cause.

3. Citing to the New Shorter Oxford English dictionary, Scalia says a fair interpretation of “results from,” is but for causation.

4. The Model Penal Code also says that conduct is the cause of a result if it is an antecedent but for which the result in question would not have occurred.

5. You can still use but for causation even where there is multiple causes so long as the other causes alone would not have produced a different result.

6. Scalia analogizes it to a baseball game where a team wins one to nothing and he goes on to say that every person competent in the English language and familiar with baseball would agree that the victory resulted from the home run and that it is besides the point that the victory also resulted from a host of other necessary causes, such as skillful pitching and the like. Therefore, it makes little sense to say that an event resulted from the outcome of some earlier action if the action merely played a nonessential contributing role in producing the event.

7. He cites to Nassar when he notes that they held that retaliation requires but for causation.

8. Scalia rejects the argument that contributing factor, which he equates with substantial factor, should be the rule because “results from,” requires that to result from use of the unlawfully distribute drug, not from a combination of factors to which drug use merely contributed. If Congress did not intend but for causation they could have specified as much and they didn’t. He also goes on to note that contributing factor, or substantial factor, is not a test that is easily applied.

What I find interesting about the court’s reasoning with respect to the rejection of contributing factor/substantial factor is that the court seems to assume that the two tests are the same. It doesn’t have to be that way. Contributing factor could conceivably refer to any factor while substantial factor could require a higher standard along the lines of tort law. In fact, Scalia mentions that very point in his opinion, when he says- citing to Prosser and Keeton’s Law of Torts- that even in tort law excepting the situation where two causes are independently effective-, no cases has been found where the act was a substantial factor when the event would have occurred without it. This isn’t quite the way I learned it back in law school and one wonders whether a scholarly analysis of tort law cases applying the substantial factor test would reach the conclusion that substantial factor and but for causation are really the same test.

9. Reasoning numbers 1-8 could be dealt with easily enough. However, Scalia also mentions in his opinion while discussing Nassar that but for causation is not limited to statutes using the term, “because of.” For example, the Supreme Court has held that “based on,” indicated but for causal relationship. They have also held that “by reason of,” requires at least a showing of but for causation.

III
More on Reasoning 9

If reason 9 become controlling, it could have a huge impact on ADA matters. First, both title I and title III of the ADA contain on the basis language. Second, title II of the ADA contains by reason of language. Are there arguments against reason 9 becoming controlling with respect to title I and title III ADA matters? In my opinion, there are and those arguments would be as follows:

1. Reason 9 is arguably dicta as this reason wasn’t necessary to the decision in Burrage

2. The reasoning of Justice Kennedy in Nassar suggests that reason 9 could not become controlling with respect to title I and, for that matter, title III matters. In particular in Nassar:

A. Justice Kennedy and the majority make a distinction between status-based claims and retaliation claims. Status-based claims are subject to a mixed motive analysis as a result of the Price Waterhouse v. Hopkins decision, which he discusses in some detail. He also discusses how the Civil Rights Act was amended in 1991 so as to allow for limited recovery for mixed motive situations.

B. Justice Kennedy spends some time talking about Gross v. FBL Financial Services and that but for causation is required for claims under the Age Discrimination in Employment Act. He notes that title VII is very comprehensive, and therefore, its specific structure needs to be taken as it is laid out. In particular, the structure of title VII of the Civil Rights Act makes clear that status discrimination gets treated in one way and that there is no indication that retaliation should be treated in the same way. What is critical here for our purposes is that disability discrimination is status discrimination. That is, the plaintiff is alleging that an employer has discriminated against him based upon his or her status, i.e. having a disability.

C. Justice Kennedy said that if Congress wanted mixed motive to apply to retaliation claims, “it could have inserted the motivating factor provision as part of the section applying to all such claims, such as 42 U.S.C. §2000e-5, which establishes the rules and remedies for all title VII enforcement actions.” (emphasis added). With respect to the ADA, this language is a virtual slam dunk that mixed motive is in play with respect to title I claims because the ADA specifically references 42 U.S.C. § 2000e-5 as the remedies available to a plaintiff alleging discrimination under title I of the ADA. See 42 U.S.C. § 12117(a). I should point out here that further support of the argument that the ADA’s reference to § 2000e-5 in title I means that Congress intended to include mixed motive is the legislative history of why “qualified individual with a disability,” was kept in. In particular, Congress wanted to make clear that the indirect burden of proof, which presumes a motivating factor, was still in play. H.R. Rep. 110-730(I) at discussion of, “Discrimination on the Basis of Disability.” Further, that same legislative intent also says that the reason why Congress went from “because,” from the original ADA to “on the basis,” in the amendments act was to make the ADA more like title VII so that the emphasis would be placed on the critical inquiry of whether a qualified person with a disability have been discriminated against on the basis of disability and not on the question of whether a particular person was even a person with a disability in the first place. Id.

D. Justice Kennedy specifically cites to the ADA. In particular, he notes that the ADA is also a comprehensive statutory scheme and that Congress in the ADA clearly spoke to retaliation separate and apart from status-based claims.

3. As mentioned by the Oregon District Court decision in a blog entry mentioned above, there is this:

A. The amendments act to the ADA dropped “because,” in favor of “on the basis of disability,” as the causation standard.

B. The amendments act to the ADA was done specifically for the purpose of broadening the scope of the ADA after the Supreme Court had interpreted the ADA narrowly.

C. The court referred to the legislative history regarding “on the basis of,” which, as we have talked about before, says that the ADA is meant to mirror the structure of nondiscrimination protection found in title VII of the Civil Rights Act. That legislative history, as we have mentioned before, also talks about how indirect evidence and mixed motive cases should be permitted under the ADA discrimination causes of action.

D. The court also noted plaintiff’s argument stating that under Nassar motivating factor applies to status-based claims, which a title I ADA suit most certainly is.

E. The court concluded that the ADA discrimination provision is substantially more similar to title VII status-based discrimination than to the retaliation provision, and accordingly, existing precedent in the Ninth Circuit, which uses motivating factor, had to be respected.

IV
Takeaways:

1. I am very glad that I benched (since I know that this term also applies to what members of the Jewish faith, particularly those tracing their ancestry to Europe – Ashkenazics- call grace after meals, I always do a double take when I hear the term in the moot moot court context), the Emory Law school criminal procedure moot court competition because this particular case has a definite impact on the world of ADA jurisprudence. In particular, it most likely means that mixed motive causation under title II of the ADA is dead because that title uses “by reason of,” language. Prior to this decision, I think an argument could have been made that the difference between “solely by reason of,” and “by reason of,” meant that the omission of the word solely in title II of the ADA was significant, particularly in light of the changes to title I and title III of the ADA with respect to getting rid of the “because of,” language in favor of, “on the basis language.” Therefore, title II arguably could get a mixed motive jury instruction but the Rehabilitation Act could not. I am not sure that this argument will work anymore in light of reason 9. I suppose a counter argument would be that title II still involves status-based discrimination. However, it’s remedies are tied into the Rehabilitation Act and the causation standard in title II of the ADA was not changed by the amendments. All of that when combined with reason 9 would make it very difficult, in my opinion, for this counter argument to succeed.

2. Will reason 9 become controlling with respect to title I and title III of the ADA? I don’t think so because of Justice Kennedy’s opinion in Nassar, which the Oregon District Court based their decision upon. Also, the nature of title III being what it is, mixed motive rarely comes up in title III matters. Even so, this decision now give defense attorneys permission to argue that Nassar notwithstanding, but for causation is the rule for title I claims. Again, as mentioned above, it is hard to believe that such an argument would succeed because it would mean doing away with the reasoning of Justice Kennedy in Nassar. That said, reason 9 arguably makes such an attempt no longer frivolous.

3. One wonders if this decision will have a huge impact on tort law with respect to cases involving substantial factor when it comes to causation. Will state courts revisit substantial factor cases using Scalia’s reasoning in this case? If so, will they get different results from what they currently do if they apply Scalia’s test of whether the multiple causes play an essential contributing role in producing the event. If so, is “essential contributing role,” the same as, “but for?”

Justice Scalia

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