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reasonable modification

Accommodating Nut Allergies

June 13, 2019 by William Goren 3 Comments

I know it has been awhile since I did a blog entry, but I have a really good excuse. The last day of May was my daughter’s last day of her freshman year in high school. Then, the following week dealt with chasing her around and also going to Portland Maine for the ABA Law Practice convention. Beautiful country up there. Then, when I came back, I had to make sure that my daughter had everything she needed and was all packed to go off to overnight camp for four weeks in the Georgia mountains. It is her second year there, and so we are optimistic that she will have an even better time than last year, and she liked it a lot last year. I got her off the camp yesterday morning. So, my wife and I are now empty-nesters for the next four weeks.

Today’s blog entry is a twofer. That is, one Department of Transportation letter and one case. In both cases, the plaintiffs were represented by Mary Vargas of the law firm Stein and Vargas. Full disclosure: I refer probably three cases a month to Mary. She and her firm do fabulous work, and it is not unusual for me to blog on her cases. Also, with respect to the case that we are going to discuss, my colleague Richard Hunt, beat me to it here. Richard’s blog entries are always provocative. He and I are going to be presenting on two different webinars in Dallas, Texas, on June 26 and June 27. The difference in our perspectives should make for a very lively webinar. The two webinars will discuss the whole deal with service animals and emotional support animals under federal laws and separately, the wild west of Internet accessibility litigation. With respect to signing up for the first seminar dealing with animals under federal laws, you can do so here if you are a member of the Federal Bar Association and here if you are not. As usual, the blog entry is provided into categories and they are: DOT letter facts and holding; DOT letter takeaways; JD v. Colonial Williamsburg foundation introduction and facts; majority reasoning vacating summary judgment and remanding case for further proceedings; dissenting opinion; and thought/takeaways. Of course, the reader is free to focus on any or all of the categories. This blog entry is unusual in that you might get away with respect to the JD v. Colonial Williamsburg sections of the blog entry just reading the facts and the takeaways. I don’t recommend it, but it’s possible as the thought/takeaways section evolved into something rather different this time.

I

DOT Letter Facts and Holding

May 21, 2019 letter from the General Counsel’s office of the US Department of Transportation involving American airlines and a person with severe peanut allergies.

This matter involved a seven-year-old girl with a severe allergy to peanuts, tree nuts and seeds and at risk of anaphylactic shock if she is exposed to or ingests these allergens. Accordingly, upon arrival at the airport to take an American Airlines flight, her father identified her daughter’s severe food allergy to an agent and requested pre-boarding in order to wipe down their assigned seats and tray tables. The American Airlines agent refused the request to pre-board. Also, it was alleged that the agent became hostile when the family identified the disability as a food allergy. A similar set of occurrences occurred in advance of the return flight from Charlotte to Portland.

American Airlines asserted that unlike some carriers, it doesn’t serve peanuts. However, it does serve other nut products. While the airline cleans its aircraft regularly, those cleanings are not designed to ensure the removal of nut allergens nor is its air filtration system designed to ensure the removal of nut allergens. Finally, American Airlines indicated that other customers can bring peanuts or tree nuts on board. Subsequent to the complaint being filed with the Department of Transportation, American Airlines amended its pre-boarding policy to allow pre-boarding for nut allergies effective December 2018.

Based upon the above facts, the Department of Transportation concluded that passengers with severe nut allergies are passengers with disabilities for purposes of the Air Carrier Access Act. Further, when a passenger with a severe allergy asks for pre-boarding to wipe down seating surfaces, that passenger is requesting additional time to be seated because from the passenger’s perspective, the seating area cannot be safely access unless totally wiped down. Accordingly, the Department of Transportation believes that when an airline fails to allow passengers with severe nut allergies to pre-board to wipe down seating services, 14 C.F.R. §382.93 is violated, and therefore, American Airlines gets a warning from the Department of Transportation.

II

DOT Letter Takeaways

  1. 14 C.F.R. §382.93 requires carriers to offer pre-boarding to passengers with a disability who self-identify at the gate as needing additional time or assistance to board, store accessibility equipment, or be seated. Department of Transportation is going on record here that nut allergies are a disability.
  2. Since Delta basically owns Atlanta, has 80% of the gates I have read, Delta is pretty much the option for flying out of Atlanta. Southwest does have a hub here, but I can never get used to the cattle call on Southwest. Also, I have always enjoyed the Delta experience. That said, I know Southwest has a lot of fans out there. What I am trying to say is that Delta is one of those airlines offering nuts on its flights. I happen to love nuts, and they can be healthy too. In fact, just last week, on my way to and back from Portland, Maine, I had almonds as my snack with my usual tomato juice on ice. It would be hard to say how many people on Delta choose nuts for their snack. It would make sense that this family would choose an airline not offering nuts. I suppose this family would have to fly as a group to ensure that a person sitting next to their daughter does not eat nuts. Apparently, the aircraft filtration system works for the daughter so long as her area is wiped down. That may or may not be true for everyone.
  3. The Air Carrier Access Act, as we have discussed here, contains no private cause of action. So, it is remarkable that an attorney of Mary’s stature took on the filing of a matter with the Department of Transportation.

III

J.D. v. Colonial Williamsburg Foundation Introduction and Facts

As I mentioned above, I was first alerted to this case by Richard Hunt’s blog entry on it. I know Richard quite well. His blog entries are always very thought-provoking. He is also extremely knowledgeable about title III of the ADA and the Fair Housing Act as well. He and I communicate regularly. It also is not unusual for he and I to discuss the same cases since our perspectives are so different from each other. The particular blog entry where he discussed this case was so thought-provoking that I had people encouraging me to write my own blog entry on this. Finally, I have warned Mary that this blog entry may not go precisely as she would like, and she was okay with that. Even so, this blog entry has a different take on the case from Richard’s. I do hope you can join us for our webinars in a couple of weeks. I have never actually met Richard in person, and I am looking forward to doing so.

Facts:

JD is an 11-year-old boy suffering from several health problems and experiences a host of symptoms whenever he ingests gluten. Those symptoms include: significant constipation; abdominal pain; foot pain; numbness; cognitive impairment; elevated liver enzymes; and temporary loss of consciousness. The diagnosis is either celiac disease or non-celiac gluten sensitivity. For such a condition, the only medically accepted treatment is a strict gluten-free diet, and JD’s physician is of the opinion that a gluten-free diet is medically necessary for JD. Further, JD’s parent testified that his health significantly approved once he is on a strict gluten-free diet. However, whenever he accidentally ingests gluten even in trace amounts, the symptoms come crashing back. Accordingly, JD’s parents regularly prepare his food and use separate tableware to ensure that he can participate in school parties, celebrations, and meals to the greatest extent possible. Although there are some restaurant his parents do trust, in general, they no longer eat out as a family due to the risk of gluten exposure.

The school went on a field trip to Colonial Williamsburg. That trip included dinner at Shields Tavern. The restaurant has a policy against allowing outside food into its restaurant subject to two exceptions: 1) parents can bring baby food or snacks for infants and toddlers; and 2) patrons may bring cakes and wine for a band subject to a plating and corkage fee. Shields Tavern also appears to allow outside food at the discretion of the manager (emphasis mine).

Months before the trip, JD’s father informed the school that he and JD wouldn’t be eating at any of the restaurants but instead would bring their own food. However, nothing in the record suggested that the school relayed that message to the restaurant. In fact, an invoice from Colonial Williamsburg showed that the school placed an order for two gluten-free meals at Shields Tavern. The parties disputed whether those meals were intended for JD and his father.

When JD and his father arrived at the restaurant, they sat down at a two-person table. The father informed a server not to bring out any food for them. He then unpacked a cooler filled with plates, cups, and utensils, and began making a gluten-free chicken sandwich. Another server told JD’s father that he couldn’t bring in outside food because it would violate the health code. The father then asked to speak to the manager, who confirmed the policy, and insisted that they would have to eat their food outside. The head chef soon arrived and offered to prepare a gluten-free meal for JD.

The Virginia Health Code prohibits food prepared in a private home from being used or offered for human consumption in a food establishment unless the home kitchen is inspected and regulated by the Virginia Department of Agriculture and Consumer Services. That code also requires that food that is unsafe or contaminated must be rendered unusable and discarded.

According to Colonial Williamsburg, the head chef had already prepared the gluten-free meals based on the order placed by the school. JD’s father testified that the meals were not yet prepared and that the head chef offered to prepare them on the spot. The father alleged that he did not trust the tavern to be able to prepare gluten-free meals after preparing fried chicken meals for the other guests. The court said that the District Court properly viewed these facts in the light most favorable to JD.

IV

Majority’s Reasoning Vacating the District Court’s Grant of Summary Judgment and Remanding the Case for Further Proceedings

  1. The ADA was enacted to remedy widespread discrimination against people with disabilities and to provide clear, strong, consistent and enforceable standards addressing such discrimination.
  2. Title III provides that no individual can be discriminated on the basis of disability in the equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.
  3. Prevailing under title III of the ADA means a plaintiff has to show: 1) he is a person with a disability within the meaning of the ADA; 2) the defendant owns, leases, or operates a place of public accommodation; and 3) the defendant discriminated against him because of his disability.
  4. The parties did not dispute that Shields Tavern was a place of public accommodation. They did dispute whether JD was disabled and whether he was discriminated against because of his disability.
  5. The ADA defines a disability as a physical or mental impairment substantially limiting one or more major life activities. Eating is a major life activity.
  6. Viewing the facts in the light most favorable to the plaintiff, the district court correctly believed that JD’s impairment qualified as a disability under the ADA.
  7. Any time you consider whether an impairment substantially limits an individual in a major life activity, that has to be looked at broadly in favor of expansive coverage. That approach is consistent with the purpose of the amendments to the ADA. Finally, the amendment to the ADA make clear that whether a major life activity is substantially limited has to be decided without regards to any mitigating measures, including learned behavioral modifications.
  8. JD submitted extensive evidence about the serious consequences to his health when he ingests gluten.
  9. While no one can eat whatever he or she desires without experiencing some negative health effect, persons with disabilities who have a disability due to severe dietary restrictions must be allowed to enjoy the protections of the ADA. Unlike a person with simple diet restrictions, JD must monitor everything he eats and there is no margin for error. Accordingly, the District Court correctly determined that a genuine dispute of material fact existed as to whether JD was disabled within the meaning of the ADA.
  10. 42 U.S.C. §12182 is the failure to accommodate provisions of title III of the ADA. That particular provision requires a place of public accommodation to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodation to individuals with disabilities in the absence of a fundamental alteration.
  11. Proving up a claim under 42 U.S.C. §12182 involves showing: 1) whether the requested modification is necessary for the individual with a disability; 2) whether it is reasonable; and 3) whether it would fundamentally alter the nature of the public accommodation. For each element, the ADA requires an individualized inquiry based upon the particular circumstances of that case.
  12. In determining whether a modification is necessary, the Fourth Circuit uses a like experience standard. That is, you start by considering how the facility is used by persons without disabilities and then consider what are the necessary and reasonable steps to provide guests with disabilities with a like experience.
  13. The District Court erred by not drawing the factual inferences stemming from JD’s history of repeatedly getting sick when eating purportedly gluten-free meals prepared by commercial kitchens, which he says shows that he was at a significant risk had they accepted the gluten-free meal offered by the restaurant.
  14. In a footnote, the court could not see how sitting at a restaurant and not eating would have provided JD a like experience to the people without disabilities.
  15. The necessary inquiry requires an individualized inquiry into the plaintiff’s capacity. Here, the evidence showed that JD repeatedly became sick when exposed to gluten at restaurants and that happened despite his parents best effort to ensure gluten-free meals.
  16. While it is true that the restaurant averred that rigorous protocols existed for preparing gluten-free needles and that a jury might well reject JD’s evidence about the severity of his gluten intolerance and find that the restaurant’s protocols were sufficient to account for his disability, JD did put forth enough evidence to raise a genuine dispute of material fact as to whether that accommodation sufficiently accounted for his disability. So, the District Court’s granting of summary judgment that the accommodation proposed was not necessary must be overturned.
  17. Whether an accommodation is reasonable is a fact specific inquiry looking to whether modification is reasonable under the circumstances. One of the things to think about is whether the cost of the accommodation does not clearly exceed its benefits.
  18. JD pointed out that the restaurant allows parent to bring in outside food for toddlers and infants. The record also shows that two weeks after the events in this case, the restaurant granted a similar accommodation to a child visiting a different one of its restaurants. In that situation, the restaurant was notified before the child’s visit of severe allergies and Colonial Williamsburg determined that it could not accommodate him. So, it allowed the child to eat a homemade meal in the restaurant. The fact that Colonial Williamsburg granted a similar request speaks directly to the reasonableness of JD’s request.
  19. Colonial Williamsburg’s argument that advanced notice is required makes no sense. Nothing in title III of the ADA or the implementing regulations mandate prior notice at a place of public accommodation. In fact, the regulations emphasized that advanced notice requirement are generally undesirable and should only be used when necessary to ensure the accommodation can be made.
  20. In this situation, advanced notice wasn’t necessary because JD was not asking the restaurant to take any action or provide any additional services. Further, the restaurant allows outside food for toddlers and infants without prior notice.
  21. With respect to the state health code provision, Virginia case law has never interpreted the provision. The Fourth Circuit believed that the provision was actually vague because while the provision does prohibit restaurants from serving food prepared in a private home, that provision doesn’t necessarily prohibit customers from bringing in outside food.
  22. While a place of public accommodation can impose legitimate safety requirements necessary for safe operation per 28 C.F.R. §36.301(b), those safety requirement don’t always override a reasonable modification request. Further, it is not even clear here whether JD’s request posed a safety concern in the first place since there is no evidence of the risk of contamination from JD’s meal and the restaurant permits guest to bring outside food in other circumstances.
  23. The defendant bears the burden of proof when it comes to fundamental alteration, and the Fourth Circuit holds that a genuine issue of material fact exists here as well.
  24. A fundamental alteration is anything that is a modification to an essential aspect of the place of public accommodation’s program.
  25. Food service is an essential aspect of the restaurant.
  26. No evidence exists that Colonial Williamsburg has been deluged with request from people seeking to bring in outside food to the extent that it could not give individualized attention to the handful of requests that it might receive.

V

Dissenting Opinion by Judge Wilkinson

  1. Judge Wilkinson also refers to 42 U.S.C. §12182(b)(2)(A)(ii), title III failure to accommodate provisions with respect to policy, practices, and procedures.
  2. He also agrees with the three-part inquiry for handling cases under this regulation.
  3. Necessity is determined with respect to the person with a disability ability to obtain full and equal enjoyment of the place of public accommodation. That means the ADA requires a customer with a disability to have an experience that is as equal as possible.
  4. As long as a guest with a disability has meaningful access to a place of public accommodation, the ADA’s requirements are satisfied.
  5. The availability of the restaurant’s gluten-free meal allowed JD meaningful access to the restaurant offering and renders the modification sought by JD unnecessary.
  6. When JD arrived at the restaurant on a class trip, the head chef, Anthony Zurowski, offered to personally make and serve JD a gluten-free meal. Had JD accepted the offer, he would have been able to sit with his classmates inside the tavern and enjoy its educational offering alongside them. Instead, JD decided to eat a meal prepared at home. He was asked by the restaurant to do that at some nearby picnic tables. After finishing his home prepared meal, JD rejoined his classmates in the tavern for the remainder of their time there.
  7. JD’s own expert testified that the meal offered by the head chef would have been gluten-free. Also, no dispute existed that the head chef had extensive training as a chef, including one-on-one training from Colonial Williamsburg’s head chef specifically focused on gluten-free meal preparation. Therefore, the head chef: knew how to ensure that JD’s gluten-free meal was not contaminated by any trace amounts of gluten; knew how to use a separate designated area to prepare the meal; knew how to sanitize the area and his utensils beforehand; knew how to use a fresh set of gloves and aprons; and knew to use a separate oven. Further, once the meal left the kitchen, no dispute existed that the restaurant’s procedures required that JD’s meal be labeled gluten-free and that the food be specially covered with a meal lit to avoid cross-contamination. Other facts include: the restaurant had extensive experience preparing gluten-free meals for patrons with disability similar to JD’s; over the past five years, the head chef had prepared roughly 4 to 5 gluten-free meals a day for a total of over 5000 meals without ever receiving a single complaint that the meals actually contain gluten; and JD’s father even admitted he had no reason not to trust the tavern’s kitchen staff.
  8. If JD had accepted the restaurant’s genuine offer of a gluten-free meal, he would have had a virtually identical experience to that of his classmates.
  9. The ADA does not require places of public accommodation to provide the precise modification requested by an individual with a disability. Instead, the ADA allows places of public accommodations the freedom to decide how to best provide meaningful access to patrons with disabilities.
  10. Reasonableness must be evaluated with respect to the disruption of the restaurant’s business and the threat to safety occasioned by the modification. A policy allowing patrons to consume home prepared meals inside the restaurant with no advance notice affects a significant disruption on the restaurant’s business.
  11. Allowing patrons to ignore the restaurant’s menu disrupts business. It would let people bring in their own meals, occupy the restaurant’s tables, and take time and attention of the servers, and otherwise divert resources from paying customers all without ever purchasing food from the restaurant itself. Such a policy denies the restaurant much needed revenue in an industry that is notoriously low margin. It also denies the servers gratuities they rely on to make ends meet as tips are usually calculated based upon the cost of the food ordered from the restaurant. Such disruptions are in no way mandated by the ADA.
  12. Allowing patrons to consume home prepared meals opens the gate to all manners of cuisines without any respect for the restaurant’s historical theme. People can bring in food utterly inconsistent with the atmosphere provided by the restaurant. The smell of the food or even its appearance might spoil and undercut the experience for paying customers.
  13. Food brought from home may pose a safety hazard to the restaurant’s other customers. The presence of outside food in the restaurant also increases the risk of provoking food allergies and sensitivities in other patrons.
  14. The proposed modification is unreasonable because it imposes a vague and unmanageable standard on restaurants everywhere. Under the majority rule, a patron requests to be allowed to eat outside food will sometime be reasonable and other times not, thereby, putting managers in the middle of a crazy line drawing exercise without any defined criteria for them to apply. Under the majority rule, advanced notice is not even required. Therefore, restaurant managers would have to evaluate any disruption in the safety hazard of the customer’s outside meal on the fly with the specter of litigation overhead. Finally, under the majority rule, even restaurants that have made intense efforts to prepare gluten-free meals are strung up for liability. Such a rule could only be dreamed up in the judicial monastery.
  15. While it is possible that Colonial Williamsburg may well prevail at trial, the majority reasoning has the flavor of a de facto per se rule. That is, restaurants must either allow patrons to consume food prepared outside the premises or they must justify that refusal at a costly trial.

VI

Thoughts and Takeaways:

  1. What is really going on here and how did we get here? In my opinion, what is really lurking here, is that title III of the ADA contains no specific requirements of an interactive process. If title III of the ADA contained an interactive process requirement, then you could argue that the restaurant and JD’s family had the obligation to engage in an interactive process. Such an interactive process may have included the chef specifically explaining and even showing JD and his family just how the gluten-free meal would be prepared and where it would be prepared. I don’t see why the family would necessarily have to enter the kitchen to do that. Even so, perhaps the restaurant could have taken the same health precautions that their cooks take prior to entering the cooking area so that they could see how the gluten-free meal would be prepared.
  2. If an interactive process was required by title III, then if the restaurant specifically showed JD and his family how the gluten-free meal would be prepared and all the precautions they took, and the family nevertheless walked away from the accommodation, then you could say that the family blew up the interactive process. Under title I of the ADA and case law interpreting the interactive process, the party blowing up the interactive process bears the consequences.
  3. Arguing that an interactive process applies to title III is not a stretch. There are cases interpreting title II holding the interactive process applies to title II. After all, how can you come up with a reasonable modification if you don’t engage in an interactive process?
  4. The other problem here is that title III has no explicit provisions for a person with a disability being otherwise qualified/qualified. If title III had such explicit provisions, then you would look to the essential eligibility requirements of the business and try to determine whether a reasonable accommodation makes any sense. It isn’t a stretch to find an otherwise qualified requirement in title III because how can you figure out if a fundamental alteration exists without knowing the essential eligibility requirements of the business? Judge Wilkinson essentially takes this approach in his dissent. In fact, the majority and the dissent disagree on just what is the essential eligibility requirement at issue. The majority view is that the essential eligibility requirement is eating in the restaurant. However, the dissent’s view is that the essential eligibility requirement is eating food prepared by the restaurant. You get to different places depending upon how you characterize the essential eligibility requirement.
  5. The ADA requires an individualized analysis based upon the particular circumstances of the case. The history that JD and his family had with other restaurants is historical, but shouldn’t be the deciding factor with respect to the particular restaurant. The key should be just what are the individual facts found in this situation. Again, importing essential eligibility requirements from title II and the interactive process from title I would solve a lot of his confusion.
  6. Is there a title II case against the school? The parents notified the school that they needed a gluten-free meal. The school then may or may not have relayed the message to the restaurant. Since the essential eligibility requirements of the field trip was going to Colonial Williamsburg and having lunch at the restaurant, an argument exists that the school may have violated its title II obligations. I also don’t think that the plaintiff would have to exhaust administrative remedies either in an action against the school system given the case we discussed here.
  7. I agree with the majority that the Virginia Health Code prohibiting food prepared in a private home from being used or offered for human consumption in a restaurant is vague.
  8. If you are a restaurant and a person shows up with home food because of a gluten-free allergy situation, it would be a really good idea to engage in an extensive interactive process with the family to see if there is some way the restaurant can serve food to the family. It would also be a good idea for a restaurant that does prepare gluten-free meals for its customers to have rigorous protocols for doing so and to be able to explain and demonstrate them if need be.
  9. I find the like experience standard a bit unwieldy. The problem with the like experience standard is that it most likely involves a person without a disability, a judge, trying to compare that experience to the experience of people with disabilities. That, is a very difficult task indeed.
  10. The restaurant ran itself into a problem with its policy of allowing parents to bring in outside food for toddlers and infants. It ran itself into a bigger problem when Colonial Williamsburg granted a similar accommodation to a child visiting another of its restaurants. Moral of the story here: training, training, training, and more training is necessary across all of a company’s restaurants. Further, everybody should receive the same high quality training and the restaurant needs to be monitored to ensure that they are doing it right.
  11. As a person with a disability, I get the whole advanced notice debate. I want to be able to show up anywhere I want without advanced notice and be accommodated. For example, I expect restaurant, movie theaters, and entertainment venues to have what I need if I just want to show up on the spur of the moment. On the other hand, sometimes it is more complicated than that. For example, as a consultant, I do some traveling. It is a real pain in the tuchas, but after making my hotel reservation at the hotel’s central reservation booking system and asking for a room for persons with disabilities, I always call the hotel directly and have an elaborate conversation with them about what it means to accommodate a deaf patron in the hotel room. If I don’t have that extensive conversation with the hotel itself, no way are the accommodations put in place when I walk into the room. Even if I have that conversation, it is anybody’s guess as to whether the room will accommodate me once I get there.
  12. Another thing missing from this case, is the concept of direct threat, which we discussed here. Both the majority opinion and the dissenting opinion talk about safety requirements and reach different conclusions. To borrow from other sections of the ADA, direct threat needs to be based upon the best objective and current medical evidence. Of course, that is nice to say, but how that can possibly be carried out in the restaurant setting is a difficult question for sure, especially when a restaurant allows food to be brought in in some circumstances.
  13. Fundamental alteration is an affirmative defense and the burden is on the defendant.
  14. The dissent’s standard that a person with a disability is only entitled to an experience “as equal as possible,” as a person without a disability also troubles me. The reason it troubles me is once again you have a judge, probably one without a disability, deciding what is an equal as possible experience when compared to persons without disabilities. I would prefer the more objective meaningful access standard over an “equal as possible,” standard.
  15. One thing that is happening more and more now is you are seeing litigation over what is necessary. Litigation over what is necessary is a recent development, but I would expect that trend to continue.
  16. Absolutely agree that the ADA does not require places of public accommodation to provide the precise modification requested by the disabled individual. However, if that is the case, then the ADA must require outside of the employment context an interactive process. How else can this be figured out?
  17. I don’t agree with the dissent’s view that people who bring in home-cooked meals will stiff the servers on tips. It doesn’t work like that. Oftentimes, a person is so grateful for being accommodated, that they will leave a tip as if they had purchased a meal even though they didn’t.
  18. A petition for an en banc rehearing would not surprise me.
  19. The majority keep referring to “because,” when it comes to causation. However, that isn’t the standard. For title III claims, the standard is on the basis of per 42 U.S.C. §12182(a).
  20. Appealing this decision to the United States Supreme Court would be very dangerous assuming that the United States Supreme Court would take it. There are all kinds of wildcards here. For example, the Supreme Court could decide that on the basis and because mean two different things. Also, the Supreme Court could decide that title III incorporates an otherwise qualified/qualified element into it. They could also decide that title III incorporates an interactive process. It is not a given at all that the United States Supreme Court would necessarily decide with the Corporation when it come to this scenario, which is a nonemployment scenario. As I have mentioned before, persons with disabilities have fared very well at the Supreme Court outside of the employment context. So, if I was on the defense side here, I would probably pass on appealing to the United States Supreme Court. I might go for an en banc rehearing. Otherwise, I would take my chances at trial. Just too many things could happen at the Supreme Court with this particular case to risk it.

Filed Under: General Tagged With: 14 C.F.R. §382.93, 28 C.F.R. §36.301, 42 U.S.C. §12182, ADA, ADA compliance, ADA compliance attorney, ADA compliance consultant, ADA consultant, ADA defense attorney, advanced notice, air carrier Access act, airplane, airplane seat, allergens, American Airlines, because of, causation, celiac, Chevron v. Echazabal, Department of Transportation, direct threat, equal enjoyment, essential eligibility requirements, Fry v. Napoleon community schools, full and equal enjoyment, fundamental alteration, gluten sensitivity, gluten-free, interactive process, JD v. Colonial Williamsburg foundation, like experience, meaningful access, necessary, necessity, Nicole MacKenzie, nuts, on the basis of, otherwise qualified, peanut allergies, place of public accommodation, policy practices procedures, pre-boarding, qualified, reasonable accommodations, reasonable modification, Shields Tavern, substantially limits, title I, title II, title III

Standing in Cyberspace and Other Issues

January 25, 2019 by William Goren 1 Comment

I know I am late with the blog entry this week, but I have an excuse. I had plenty of client matters that had to be attended to with some deadlines. So, have some time today, and here goes. Today’s blog entry is actually a twofer. We are going to discuss the concept of standing in cyberspace as well as some additional issues raised by ADA litigation against Uber. The cases raise some interesting issues. First, does a person actually have to download an app in order to have standing to sue the app’s owner for disability discrimination? Does an organization with employees who desire to use the app but cannot, have standing to sue because of the increased cost associated with the employees having to find alternative transportation? Is Uber a place of public accommodation? Is Uber a transportation entity? Does a person have standing to sue a website’s owner for disability discrimination when there is no possible way that the person could ever actually benefit from the services provided by that owner through the website? With respect to our second case, my colleague, Richard Hunt, has already blogged on it here, which is how I found out about it, and I commend readers to its reading. As usual, the blog entry is divided into categories and they are: Access Living of Metropolitan Chicago v. Uber Technologies Inc. facts; court’s reasoning on standing for all plaintiffs; court’s reasoning on the merits of suing Uber; Griffin v. Department of Labor Federal Credit Union; Griffin’s reasoning denying standing to plaintiff; takeaways Access Living; and takeaways Griffin. Of course, the reader is free to focus on any or all of the categories.

I

Access Living of Metropolitan Chicago V. Uber Technologies Inc. Facts

  1. The court describes the Uber app and notes that Uber has a specific app allowing users to request a wheelchair accessible vehicle.
  2. Uber controls all aspects of the rides. In particular: 1) it sets the requirements for the type and age of vehicles, conducts mandatory vehicle inspection, and help drivers arrange leases for Uber approved vehicles; 2) it regulates drivers by conducting background checks and setting requirements for drivers age, experience, licensing, and driving records; 3) it instructs the driver on the expected quality of the rides by issuing community guidelines, making recommendations about the amenities to stock in the vehicles and the radio station choice, and imposing cleanliness requirements; 4) it can deactivate drivers who break its rules; and 5) it sets the cost of the trip using a certain formula.
  3. Access Living of Metropolitan Chicago is an independent living center where 14% of its employees and 20% of its board members either use a motorized wheelchair or cannot transfer to a standard vehicle from manual wheelchairs. Independent living centers are organizations run by people with disabilities with the purpose of advocating for people with disabilities to ensure that the chances of a person with a disability living independently are maximize. Generally, they don’t offer legal services, but some, such as Access Living, do engage in legal representation.
  4. Uber is virtually unavailable to people using motorized wheelchairs in Chicago as it provided them with just 14 rides from September 2011 to August 2015. The lack of such accessible rides requires Access Living to incur increased costs in transporting its staff and board members requiring accessible rides.
  5. In August 2016, Access Living approached Uber about it. They showed Uber the app, which at the time had no available accessible vehicles, and asked it to provide motorized wheelchair users with services equivalent to those it offers others. Uber responded that it had no intention of providing equivalent response times.
  6. Three individual plaintiffs all work or volunteer at Access Living and all use a motorized wheelchair. None of them downloaded the Uber app because they believe that Uber does not provide equivalent service to people using motorized wheelchairs.
  7. Each of them found out differently about the lack of accessible services from Uber. Garcia heard from other motorized wheelchair users at Access Living that they could not use Uber because it did not have accessible vehicles, and he was shown the Uber app in September 2016, which at the time had just one accessible vehicle available in all of Chicago. Cooper once wanted to take an Uber ride to the mall but believed he could not because he had heard that Uber did not offer equivalent services to motorized wheelchair users. He figured that because he knew about an unsuccessful effort to pass an ordinance requiring equivalent service and that Uber lobbied to be free of such a requirement. He also saw the Uber app on someone else’s phone, which showed no available accessible vehicles. Patrick’s husband downloaded Uber to take advantage of a promotion but did not complete the registration because a colleague from the theater told him that Uber did not accommodate motorized wheelchair users.

II

Court’s Reasoning on Standing for All Plaintiffs

  1. Standing requires an injury in fact that is concrete and particularized and actual or imminent, not conjectural or hypothetical. Since injunctive relief is also required, a real and immediate threat of future ADA violations must exist as well.
  2. Deterrence can be an injury in fact.
  3. For deterrence to be sufficiently concrete and not speculative, the deterrence must be reasonable. Here, it is reasonable that Garcia’s and Cooper’s observations about the lack of accessible vehicles available on the Uber app combined with the fact they had heard about accessibility problem from others, caused them to refrain from using Uber’s services. Accordingly, that is sufficient to create a deterrence injury.
  4. Patrick’s claim gets thrown out because it was her husband that was aware of Uber’s alleged ADA violations and not her.
  5. Garcia and Cooper did not have to download the app and request the Uber ride in order to be injured. After all, they saw the app, learned of the lack of wheelchair accessible rides, and wanted to use the app in the future but reasonably believed they could not. They also alleged that Uber has no intention of making modifications, which Uber actually said. Accordingly, that is sufficient to establish the real and immediate threat of future violations to seek prospective injunctive relief.
  6. In a footnote, the court notes that the reason the plaintiff may not have downloaded the app was to avoid the activation of an arbitration agreement, but even so, that does not mean they weren’t injured.
  7. In another footnote, the court notes that the plaintiffs each allege they wanted to use Uber but did not downloaded the app because it does not provide equivalent services to people with motorized wheelchairs. The reasonable inference of that is that they would download the app and use it but for the alleged discrimination.
  8. Access Living alleges more than just an abstract injury to civil rights for those with disabilities. That is, the injury goes beyond an abstract injury because Access Living has to pay increased transportation costs for its employees who can’t use Uber because of discrimination.
  9. To show standing, you also have to show causation and redressability. Causation requires plaintiffs injury to be fairly traceable to the challenged action of the defendant and not the result of the independent action of some third-party before the court. Redressability means showing that a decision in the plaintiff’s favor is likely to redress their injuries.
  10. Uber’s policies or actions have a determinative or coercive effect on the driver’s choices. The allegations in the complaint suggest that Uber drivers are not independent of Uber and, as a result, their choices do not break the chain of causation that traces back to Uber. Therefore, an injunction against Uber directing it to use its control of the driver to get an adequate supply of wheelchair accessible rides is something likely to redress the injuries. Access Living’s allegations that it incurs increased cost to transport its employee due to Uber’s discrimination suggests that Access Living paid transportation costs before the discrimination occurred and that it did not take up the practice only to inflict injury on itself. So, Access Living’s alleged injuries are not completely its own fault.

III

Court’s Reasoning on the Merits of Suing Uber

  1. Access Living’s claim against Uber on the merits fails because title III of the ADA by its language requires a plaintiff to have been subjected to him or herself to discrimination on the basis of disability and Access Living had not alleged that it was subjected to discrimination by Uber. Instead, it alleges only that its injuries flowed from Uber’s discrimination against others. Title III of the ADA does not allow for a private cause of action from secondhand harm from discrimination.
  2. While it is true that title III of the ADA does allow for associational discrimination claims, Access Living did not allege that kind of discrimination.
  3. While title III of the ADA does not demand that people with disabilities achieve identical results or levels of achievement of persons without disabilities, it does demand that persons with disabilities are afforded equal opportunity to obtain the same result. That is, title III of the ADA does require entities to provide equal access to people with disabilities when reasonable.
  4. A place of public accommodation does not have to be a physical space. The court cited to the Carparts case as well as two cases from the Seventh Circuit strongly suggesting that a place of public accommodation need not be a physical space. While it is absolutely true, that the Seventh Circuit statements on the matter are dicta, it is clear that in at least one of those cases, the dicta was not a passing thought, but rather an explicit rejection of the principle that a public accommodation must be a physical site. Further, in a footnote the court notes that briefs filed in disability discrimination matters understand the Seventh Circuit to have picked the side of the split saying that a place of public accommodation does not have to be a physical space. See also this blog entry.
  5. In another footnote, the court says that it is not buying the argument that Uber does not operate a travel service because Uber’s control over its drivers would satisfy the definition of “operate,” in the dictionary.
  6. Uber’s argument that the ADA only applies to accessing goods and services and not to the content of the goods or services does not apply at the motion to dismiss stage because without accessible vehicles that can actually transport plaintiffs, they are shut out of the service and effectively turned away due to their disabilities.
  7. At this stage of the litigation, plaintiffs have sufficiently alleged that Uber is a transportation provider and it is the equal access to that service that Uber has blocked.
  8. It is certainly true that when it comes to reasonable accommodations, a request for reasonable accommodation should be made first. However, that isn’t necessary when an entity is already on notice about the need for modification, which is the case here. That is, Uber already knew that a reasonable modification was necessary to make its services accessible to plaintiffs and chose not to do so. In that case, requiring an express request from plaintiff serves no purpose. The meeting with Access Living was sufficient to put Uber on notice that people like plaintiff needed accessible vehicles and required a modification to access Uber’s services.
  9. It is at least plausible that more accessible vehicles can be made available through reasonable measures. It too early to say at the motion to dismiss stage what those reasonable measures may be, but it is at least reasonable to think that such measures do exist.
  10. Uber made no argument about claims that plaintiffs were discriminated against in ways other than by failing to make reasonable accommodations, such as by denying them the opportunity to participate in the services and to participate in the services with equal benefit and using discriminatory administrative methods. Accordingly, those claims survive.
  11. Uber is subject to 42 U.S.C. §12184 because the complaint alleges that it operates a travel service by arranging rides between passengers like and a fleet of drivers while it maintains control over the cost, the vehicle, the driver qualification, and the general ride experience for each trip. Accordingly, that means that Uber is primarily engaged in the business of transporting people.
  12. Nothing suggest that an entity has to own or leased vehicles in order to be subject to §12184.

 

IV

Griffin v. Department of Labor Federal Credit Union Facts

  1. Plaintiff is a person who is blind and uses a screen reader to access the Internet.
  2. The Department of Labor Federal Credit Union is a federal credit union that accept as members only those who share the common bond of being current and former employees of the Department of Labor and their immediate families and households. Only members can take advantage of the credit union’s products or services; only members may open an account or take out a loan or enjoying any way the benefit of the credit union. The credit union maintains a website describing his services and products.
  3. Plaintiff is not eligible for membership in the credit union. He does not work for the Department of Labor and never has. No one in his immediate family has ever worked for the Department of Labor, nor has any member of his household. No allegations are made in the complaint that he is legally permitted to make use of the credit union’s benefits.

V

Griffin’s Reasoning Denying Standing to Plaintiff

  1. The question before the court is whether a plaintiff barred by law from making use of defendant’s services may nevertheless sue under the ADA for a deficient website.
  2. To have standing, a plaintiff has to show an injury in fact, causation, and redressability.
  3. An injury in fact only exist if it is sufficiently concrete and particularized.
  4. If injunctive relief is involved, which it is here, an additional requirement for standing is there must be a real or immediate threat that the party will suffer an injury in the future (in architectural barrier cases, this is referred to as, “intent to return).”
  5. An injury is concrete when it is real and not abstract.
  6. A neutral proposition of federal law making it impossible for Griffin to interact directly with the credit union makes it impossible for the plaintiff to be personally subject to the dignitary harms occasioned by the website.
  7. Inability to obtain information sufficiently concrete to be an injury in fact occurs only when the information has some relevance to the litigant, which it does not here.
  8. The injury does not affect the plaintiff in a way that is individual. That is, there has to be some connection between the plaintiff and the defendant to differentiate the plaintiff so that his injury is not common to all members of the public. For example, anyone going to the zoo to see a particular animal does not have the right to sue a defendant whose actions have harmed that species in a particular part of the world. On the other hand, a person who, as a vocation, studies that animal in the part of the world in question plausibly does have enough of the connection to convert the general harm to the species into a particular harm to the plaintiff.
  9. The Federal Credit Union Act positively prohibits Griffin from taking advantage of any of the credit union’s products or services because he does not meet the membership criteria.
  10. The Menkowitz case, which we discussed here, doesn’t help the plaintiff because the doctor there actually had privileges with the hospital. That fact supplied the particularized connection allowing for standing.
  11. An injury should be certainly impending in order to serve as the basis for standing in a suit for injunctive relief. Here, it simply makes no sense that the plaintiff could intend to return to the credit union’s website because there was no hope of ever making use of its services.
  12. While the plaintiff may be a tester, standing still doesn’t work because why on earth would someone return to a website if they could not avail himself of the website’s services. That is, plaintiff’s role as a tester without more is insufficient to establish an intent to return.
  13. For a harm to be concrete and particularized, it has to be greater than a procedural violation divorced from any concrete harm. There simply cannot be an injury in fact where a plaintiff is not eligible to become a member of the credit union and has no plan to become eligible to be a member that credit union. Further, there is nothing the court could do to make the plaintiff eligible for the credit union.
  14. Deciding otherwise would allow any aggrieved person to challenge any allegedly deficient website belonging to anyone in the country. It would require the court to open the courthouse doors to abstract and hypothetical controversies in violation of Supreme Court precedent.
  15. A concurring opinion by Judge King was filed. In his view, the case could be dismissed on the intent to return grounds and it wasn’t necessary to visit everything else.

VI

Takeaways Access Living

  1. I wanted to put these two cases side-by-side because there is overlap between the two. The Seventh Circuit has not been very friendly to people with disabilities of late. So, considering Griffin, I would expect an appeal in the Uber case.
  2. I know Lyft has been subject to disability discrimination litigation as well, but from what I have read, they have not been as adversarial and have been more willing to work things out with respect to persons with disabilities. I also have not seen the cultural issues that are well-known with respect to Uber. When I travel, I do use a ridesharing app…
  3. I agree with the court in the Access Living case that the Seventh Circuit is very likely to hold explicitly that a place of public accommodation does not have to be a physical space.
  4. I find it very interesting the Access Living discussion of how Access Living has standing to bring a claim due to its increased costs that it incurred. Also, I find interesting that the court throws that claim out on the merits because of secondhand discrimination not flying. However, the court lets the world know that an association discrimination claim might fly in that eventuality. All of which create new opportunities for plaintiff lawyers.
  5. When dealing with ridesharing apps, §12184 is in play.
  6. Avoidance of an arbitration agreement does not affect the calculation of whether the injury itself occurred.

 

VII

Takeaways Griffin

  1. Much of the web is available for the taking to the public, though there are places such as credit unions and other kinds of websites that are membership specific. So, Griffin is really helpful to the website that are membership specific, but not to the rest of the Internet universe.
  2. The question isn’t whether the plaintiff is a member of that website, but whether the plaintiff could conceivably become a member of that website regardless of whether they are a tester or not.
  3. The court’s statement that a person who, as a vocation, studies animals in a part of the world having enough of a connection to the general harm to the species to turn it into a particular harm to the plaintiff in the context of cyberspace is mind blowing. That is, I know of academic institutions that have disability studies programs. I know also of academic institutions that study what goes on with respect to the Internet in depth. It is absolutely conceivable to me that an academician who studies screen readers and voice dictation technology and preferably needs to use one or the other or both because of a disability, would in the course of his or her duties come across all kinds of websites and software as a service products that are not accessible to persons with disabilities. Maybe I would even qualify under this standard. This particular language of the court is a huge opportunity for researchers in the academic and private sector to go after inaccessible websites. IMO, it wasn’t necessary for the court to bring up this example, and I would expect it to create problems.

Filed Under: General Tagged With: 42 U.S.C. §12184, abstract injury, Access living, access living of Metropolitan Chicago v. uber technologies Inc., accessing goods and services, ADA, arbitration agreement, associational discrimination, Carparts distribution center Inc. v. automotive wholesalers Association of New England, causation, content of goods and services, determinative or coercive effect, Deterrence, Doe v. Mutual of Omaha, Griffin v. Department of Labor Federal credit Union, injury in fact, intent to return, Internet, Menkowitz v. Pottstown Medical Center, physical space, place of public accommodation, reasonable accommodation, reasonable modification, redressability, standing, sufficiently concrete and not speculative, tester, title III, Uber, vocation, website accessibility, websites, World Wide Web

Judge Kavanaugh and Persons with Disabilities

September 5, 2018 by William Goren 4 Comments

Before getting started on the blog entry of the week, next week is the Jewish new year. I want to take the opportunity to wish all of my Jewish brethren a happy and healthy new year for them and their families. It also means that no one should be surprise if the blog entry for next week goes up on Wednesday since Monday and Tuesday are the Jewish new year.

As I write this, Judge Kavanaugh is appearing before the United States Senate. Previously, I wrote about how then Judge Gorsuch might deal with persons with disabilities on the Supreme Court, and I promised I would do the same for Judge Kavanaugh. So, I did a search for the cases involving the ADA and the Rehabilitation Act to see how he went about dealing with the rights of persons with disabilities. I also looked into Chevron and Auer deference as well. The blog entry will be divided into two categories. First, the cases and a brief description of what Judge Kavanaugh decided either by joining an opinion, concurring, or dissenting. Second, overall themes of his jurisprudence. I will say that unlike Judge Gorsuch I don’t see an overriding judicial philosophy from the opinions, though there are certain themes that emerge.

I

The Cases

  1. In Adams v. Rice, Judge Kavanaugh joined an opinion written by Judge Tatel with Judge Henderson dissenting reversing summary judgment for the United States Foreign Service. The case involved a candidate for the United States Foreign Service being discriminated against on the basis of her had breast cancer. There are several things that are interesting about the case. First, the majority opinion held that cancer in remission is not a physical impairment. Second, the majority held that sexual relations is a major life activity. Third, a person with cancer in remission does have a record of an impairment. Finally, the majority opinion held that the employer’s knowledge of a physical or mental impairment is sufficient to trigger ADA coverage. That is, to trigger the ADA the employer did not need to know just how the physical impairment substantially limited a major life activity to have ADA obligations.
  2. In Johnson v. Interstate Management Company, LLC, Judge Kavanaugh wrote the opinion where he said: 1) he was not going to find a cause of action if the authority for that was not explicitly laid out in the statute; and 2) the plaintiff did not produce enough evidence to overcome the legitimate nondiscriminatory reason offered by the employer for termination as part of the McDonnell-Douglas process.
  3. In Koch v. Cox, Judge Kavanaugh joined an opinion with Judge Ginsburg and Judge Brown holding an acknowledgment of depression is not the same as putting a person’s mental health at issue where no emotional distress claim existed. The issue in the case was whether to quash a subpoena for the plaintiff’s therapist records. Also, in that case the court noted that it did consider the motivation of the litigant in revoking his consent that his therapist record be disclosed. The court believed that the motivations were not nefarious.
  4. In United States Department of State v. Coombs, Judge Kavanaugh joined an opinion with Judge Garland and Judge Silberman writing in reversing the District Court’s award for summary judgment on behalf of the United States Department of State. The holding of the case was the Foreign Service Board needed to consider the Rehabilitation Act as it goes about its business and had not properly done so.
  5. In Baloch v. Kempthorne, Judge Kavanaugh wrote the majority opinion holding that the plaintiff could not show any adverse action. Also, the plaintiff did not present sufficient evidence to show the employer’s reason for termination was not discriminatory under the McDonnell-Douglas scheme.
  6. In Stuart v. St. Elizabeth’s Hospital, Judge Kavanaugh wrote an opinion holding that a request for reasonable accommodation must be clear before the employer has an obligation to engage in the interactive process. He was part of a per curiam opinion in Thompson v. Rice, holding the same thing as well.
  7. In Long v. Howard University, Judge Kavanaugh wrote the opinion for the court in a §504 case holding that the statute of limitation could begin to run at the time of the request made or at the time of the denial. For a blog entry on this subject, see this one.
  8. In Northeast Hospital Corporation v. Sibelius, Judge Kavanaugh filed a concurring opinion saying that the relevant inquiry was a narrow reading of statutory text.
  9. In Sims v. Johnson, involving a dispute over a settlement agreement, Judge Kavanaugh dissented essentially on the grounds that the motive of the plaintiff in contesting the settlement cut against the claim that the settlement terms should be figured out by the lower court.
  10. In Allen v. Johnson, Judge Kavanaugh joined a unanimous opinion by Judge Rogers giving latitude to the employer with respect to whether the employer held an honest belief. Further, to find that the employer was culpable more evidence was needed than just proximity of the adverse action. Finally, there was no material dispute of fact over the reason offered by the employer as a legitimate basis for the termination.
  11. In Doe by her next friend Tarlow v. District of Columbia, Judge Kavanaugh wrote the opinion holding that he was not inclined to expand statutes as they were written. This is a case that has disability rights advocates concerned. This case involved persons with disabilities in the District of Columbia who could not consent for healthcare and never could consent for healthcare. Further, they had no particular individual whom could exercise such consent. So, the issue is whether the statutory scheme was inconsistent with District of Columbia statutes and the due process clause of the Fifth Amendment. I can see where disability rights advocates are coming from in this case as the opinion is written in a way that some might construe as paternalistic, which is a real sensitive spot for people with disabilities.
  12. In Carter v. Carson, Judge Kavanaugh joined a per curiam opinion holding that the complaint did not satisfy Iqbal/Twombly standards, which we discussed here.
  13. In Hester v. District of Columbia, a special education case, Judge Kavanaugh wrote the opinion where he decided the case based upon a literal reading of the four corners of the critical document.
  14. In Redman v. Graham, Judge Kavanaugh dissented saying that he was not inclined to expand the statute as written.
  15. In Hill v. Associates for Renewal in Education, Inc., Judge Kavanaugh joined an opinion by Judge Wilkins in an absolutely fascinating case. In this case, the court held a request for reasonable accommodation must be related to the limitation rendering the person disabled. The court affirmed the District Court’s conclusion that the plaintiff did not bring forth sufficient facts to establish a hostile work environment claim. However, the court reversed the summary judgment and remanded for trial on the failure to accommodate claim. The case is also fascinating because it came down July 27 of 2018. The related piece is interesting. In just about all cases, I don’t see how the related piece is going to be much of an issue. A big exception would be dealing with the situation where an employee needs a service dog with them because of his or her disability. I could see in that situation a dispute over “relatedness,” assuming that is the standard a court wants to use. See also this blog entry for a similar discussion.
  16. In City of Anaheim, California v. FERC, Judge Kavanaugh said that Chevron deference was not applicable because the statute was clear that what California did was not permissible.

II

Themes

Unlike my review of Justice Gorsuch, I don’t see an overriding judicial philosophy in these opinions. However, I do see certain pillars and they are:

  1. In city of Anaheim, California v. FERC Judge Kavanaugh said, “The precise words of the statutory text matter.” Judge Kavanaugh clearly will look to what the statute literally says and interpret those statutes whenever possible before looking to other matters to explain what the statute might mean.
  2. In a couple of cases, the motivation of plaintiffs with respect to their litigation strategy are a factor in his conclusions.
  3. Chevron deference is not something he is against. However, he doesn’t like to go there unless he has to. With respect to agency interpretations of their regulations, Auer deference, he does not have a judicial opinion on that. However, when I did a Google search on the Internet, I did come across a speech where he praises Justice Scalia’s opinion, which we discussed here, saying that Auer deference should be thrown out.
  4. He seems to be quite comfortable with the McDonnell-Douglas scheme, which we discussed here. Further, he expect plaintiff’s to meet their burden of proof to overcome nondiscriminatory reasons offered by the employer.
  5. We have often said that magic words are not required to trigger the interactive process. Just what words are required depends. With respect to Judge Kavanaugh, the closer a plaintiff comes to magic words, the better off a plaintiff will be in arguing that the interactive process should have been triggered.
  6. Judge Kavanaugh seem to be quite willing to give employers latitude with respect to the honestly held belief rule.
  7. With respect to the rights of persons with disabilities, the two most interesting cases I find are Hill and Long. In the former, Judge Kavanaugh says that the statute of limitations with respect to a reasonable accommodation request can start either at the time of the request made or at the time of denial. In the latter, Judge Kavanaugh joined an opinion saying that the accommodation sought must be related to the disability. Both of those decisions could have a significant impact on ADA jurisprudence if they become the law of the land.

Happy new year y’all!

Filed Under: General Tagged With: A.L. v. Walt Disney Parks, ADA, Adam v. Rice, adverse action, Allen v. Johnson, Auer deference, Baloch v. Kempthorne, Carter v. Carson, Chevron deference, city of Anaheim California v. FERC, Doe by her next friend Tarlow v. District of Columbia, failure to accommodate, Hill v. associate for renewal in education Inc., honest belief, Iqbal, Johnson v. interstate management company LLC, judge Kavanaugh, Koch v. Cox, long v. Howard University, magic words, Major life activity, McDonnell Douglas, Northeast Hospital Corporation v. Sibelius, Ortiz v. Werner enterprises, Perez v. MBA, physical or mental impairment, pretext, Reasonable accommodation requests, reasonable accommodations, reasonable modification, record of impairment, Redman v. Graham, rehabilitation act, sex relations, Sims v. Johnson, statute of limitations, Stuart v. St. Elizabeth's Hospital, Thompson v. Rice, title I, title II, title III, Title V, tolling, Twombly, United States Department of State v. Coombs

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