Understanding the ADA

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

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ADA Pleading Tips

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Happy new year everybody. Hope everybody enjoyed their holiday and is now raring to get back to work. Just to give everybody a heads up, the week of January 28 and February 3 may not see a blog entry for me at all. During those two weeks, I will be testifying in two different trials and attending and speaking at a convention. That means in that period of time I will be in three different cities (Houston-trial testimony; Austin-attending and speaking at the Accessibility Professionals Association convention; and Albuquerque-trial testimony).

 

Also, worth noting is the 11th Circuit just came down with another huge decision in favor of Deaf, deaf, HOH communities. That case, which deals with the lack of captioning for legislative streaming by the State of Florida, can be found here. I blogged on the District Court opinion here.

 

Turning to today’s blog entry, I have a whole bunch of cases in my pipeline. For some time I have been thinking about doing a blog entry discussing how to plead ADA cases. I thought a list of tips would be very helpful. So, here goes:

 

  1. Especially when it comes to disability discrimination cases, notice pleading is going to get a plaintiff into trouble. Much better off using a fact-notice hybrid. I’d like to think of it as the way Illinois does pleadings. That is, give enough facts to put a reasonable person on notice as to what the claims are. This applies regardless of whether exhaustion of administrative remedies is required first.
  2. See if you can’t structure your substantial limitations on a major life activity allegations in such a way so that medical testimony will not be required.
  3. Know the prima facie elements of the cause of action you are pleading. Depending upon the particular cause of action alleged and the jurisdiction you are in, those elements can vary.
  4. Keep in mind that when it comes to summary judgment you will deal with any or all of the principles of direct evidence, indirect evidence, or convincing mosaic. These distinctions are not necessarily important for pleadings, but they are certainly important down the road when it comes to summary judgment.
  5. If a title II case is involved, know how your court deals with intentional discrimination. What is intentional discrimination with respect to title II most certainly varies from jurisdiction to jurisdiction. This is much less of an issue with respect to title I cases.
  6. If a title II entity is involved and the defendant is the State or an arm of the State, be prepared for a sovereign immunity defense. Know that sovereign immunity and persons with disabilities gets decided on a case-by-case basis and such analysis can get very complicated.
  7. Know the various ways courts deal with when the statute of limitations in a disability discrimination case begins to run. Also, investigate what is the statute of limitations for disability discrimination in your state. The particular state statute used and the length of time can vary radically from State to State.
  8. Depending upon the jurisdiction, not everything may be a separate cause of action. Rather, it may be part of another cause of action. For example, jurisdictions differ on whether failure to engage in the interactive process is a separate cause of action.
  9. If a plaintiff, never plead working as the major life activity unless you absolutely have no choice.
  10. On the defense side, don’t forget about any affirmative defenses, such as: undue hardship; undue burden; fundamental alteration; readily achievable, etc.
  11. If a title II architectural barrier case, remember readily achievable doesn’t enter into the equation.
  12. On the defense side, don’t forget about standing.

 

Interactive Process Framework

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I recently had the privilege of presenting at the Georgia ADA Coordinators conference held at the Georgia aquarium. In the room that I presented in, it ran right up against the beluga whales exhibit. There were times when I would look around the room, and I would see a couple of beluga whales staring at me. Kind of cool and weird at the same time. I had the opportunity to present on effective communications as well as be a co-panelist for an excellent presentation by Cheryl Frazier of the Georgia ADA Coordinator’’s office’s office on transition plans and self-evaluation plans. However, before I did those presentations, I had the opportunity to go to any presentation I wanted. I chose to go to Professor Simpson’s of the University of West Virginia presentation where after a brief presentation, which was also excellent, from an EEOC attorney, Professor Simpson spoke about the framework for the interactive process. I asked her for permission to use her presentation as the basis for a blog entry. She said absolutely but wanted to be sure I gave a shout out to the Job Accommodation Network as that is where her presentation came from. She used to work at the Job Accommodation Network, which is associated with the University of West Virginia, before moving into the faculty at the University of West Virginia. Professor Simpson’s website can be found here, and the Job Accommodation Network appears in my blogroll. I also thought the blog entry would do a nice job of building on my do’s and don’ts of the interactive process blog entry. You really need both. Think of this blog entry as the framework for the house, and my do’s and don’ts blog entry as a way the people are supposed to behave within the house. I do want to thank Stacey Peace, the Georgia ADA Coordinator, and Cheryl Frazier for allowing me to participate in the convention. They did a really great job. I also want to thank them both for the fabulous CART services they provided me so that I was able to equally benefit from the communications at the conference. The blog entry is really short. So, I am not going to break it down into categories. The framework for the interactive process goes like this:

 

  1. Recognize the accommodation request. Doing this means doing the following: remembering that magic words are not required, which we discussed here among other places; acting quickly; assigning responsibility so that it happens; and conducting training done by a qualified individual.
  2. Gathering information. Doing this means doing the following: finding out the individual’s limitations and problems; talking to the employee; remembering the rules on medical exams and disability related inquiries, which we discussed here among other places; remembering that the ADA has confidentiality rules, particularly for employment.
  3. Exploring accommodation options. Doing this means the following: consulting with the employee and making calls. I would add that be sure to consult with the employee first as the employee or the person with a disability as that person generally knows what works best. You can waste a lot of time trying to figure out a solution if you don’t ask the person with the disability first.
  4. Choosing the accommodation. Choosing the accommodation can get complicated. For example, if effective communication is involved and you are outside of the employment context, you have title II and title III effective communication rules to consider. As we have mentioned previously, those two rules are not the same in that under title II, primary consideration must be given to the person with a disability preferred mode of communicating while that is not the case with respect to title III. If effective communication is not involved, then you want to conduct the interactive process described in the do’s and don’ts blog entry. Remember, with respect to title I, reasonable accommodations have to be made unless an undue hardship is involved. With respect to title II title III, reasonable modifications have to be made unless an undue burden or fundamental alteration exists.
  5. Implement the accommodation. Doing this means doing the following: making sure all necessary steps are taken to implement the accommodation; and communicating with essential personnel about the accommodation.
  6. Monitoring the accommodation. Doing this means doing the following: checking on the effectiveness of the accommodation over time; and maintaining the accommodation. That is, don’t take it away if it is working; and making sure ongoing communication occurs.

 

So, there you have it. Between this blog entry in my dues and don’ts blog entry, you now have the house and the rules of the house.

Are Plasma Centers Places of Public Accommodations?

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blood plasma

 

Previously, we have discussed here and here whether a plasma center is a place of public accommodation under title III. That discussion shows there is already a split in the Circuit Courts on the issue. On August 30, 2019, the Third Circuit weighed in on this in Matheis v. CSL Plasma Inc., A published decision. They came down in favor of a plasma center as a place of public accommodation. The facts in this case are pretty straightforward. Here, you have a retired police officer with PTSD who routinely and safely donated plasma roughly 90 times in 11 months. When he obtained a service dog, the plasma center refused to allow him to donate blood arguing that anybody who had a service dog for PTSD was automatically prohibited from donating blood because they must have extreme anxiety too severe to undergo safely the donation process. The retired police officer loses on summary judgment and appeals to the Third Circuit. The blog entry is divided into the categories of court’s reasoning and takeaways. I imagine the reader will want to read the whole thing.

 

I

Court’s Reasoning

 

  1. 42 U.S.C. §12181(7)(F) says that a place of public accommodation includes, “a laundromat, dry cleaner, bank, barbershop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a healthcare provider, hospital, or other service establishment (emphasis mine).
  2. The question is whether a plasma center is an, “other service establishment.”
  3. It notes that the 10th Circuit and the 5th Circuit have reached opposite conclusions.
  4. The court spent considerable time attacking the Fifth Circuit opinion (see ¶ ¶ 6-10 of this section of the blog entry, below). With respect to the 10th Circuit opinion finding that a plasma center is a place of public accommodation, the court notes the following from the 10th Circuit opinion: 1) “service,” has a broad, common definition- i.e. conduct or performance assisting or benefiting someone or something; 2) “establishment,” also has a broad, common definition, i.e. a place of business; 3) giving the term “service establishment,” the ordinary meaning of its components does not result in ambiguity nor does it result in anything irrational. After all, plasma donation centers are places of business assisting or benefiting those who wish to provide plasma for medical use-whether for altruistic reasons or for pecuniary gain-by supplying personnel and medical equipment necessary to accomplish that goal.
  5. The 10th Circuit has the better view.
  6. No support exists for the Fifth Circuit’s statement that donors do not benefit from the act of donating. That is simply not the case, donors receive money, a clear benefit, to donate plasma.
  7. The argument that secondary profit motive can dictate a finding a plasma center is not a place of public accommodation doesn’t wash. After all, a bank, which is explicitly a place of public accommodation also has a secondary profit motive.
  8. Businesses offering services to the public convey something of economic value in return for something else of economic value. That value is often money, but it doesn’t have to be. Money is just one proxy for economic value, and economic value is fungible.
  9. Banks and customers often exchange services not fitting simply into a money for service model. A pawnshop is another example. A recycling center is yet another example. Both pawnshops and recycling centers have been held to be subject to the ADA.
  10. Providing services means providing something of economic value to the public. It simply doesn’t matter whether that economic value is paid for with money or something else of value.
  11. Failure to accommodate cases turn on three questions: 1) whether the requested accommodation to the program was reasonable; 2) whether the requested accommodation was necessary to assure meaningful access; and 3) whether it would represent a fundamental alteration in the nature of the program.
  12. Plaintiff bears the initial burden of establishing that the desired accommodation is reasonable and necessary, while the defendant bears the burden of showing that it would fundamentally alter the nature of the program.
  13. Title III entities are required by 28 C.F.R. §36.302 to modify policies, practices, or procedure to permit the use of a service animal by an individual with a disability.
  14. A service animal used by a person with a disability is reasonable under the ADA as a matter of law so long as no DOJ regulation supersedes it.
  15. A plaintiff does not need to show intentional discrimination in order to demonstrate a violation of title III of the ADA. Accordingly, McDonnell-Douglas simply does not apply. The only question is whether the defense established an exception permitting a plasma donation center to deny an individual with a disability his or her use of a service animal. If no exceptions apply, then the use of a service animal is a reasonable accommodation and plaintiff prevails.
  16. 28 C.F.R. §36.208 permits places of public accommodation to deny anyone services who poses a direct threat to others. However, the direct threat exception requires an individualized assessment to determine the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policy, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk.
  17. Safety requirements per 28 C.F.R. §36.301(b) have to be based upon actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities.
  18. The defendant simply has not made its case that its policy of excluding donors with service dogs is based upon anything other than mere speculation, stereotypes, or generalizations about individuals with disabilities. There isn’t any medical justification or other scientific evidence backing up the defense’s conclusion that all those person having severe anxiety will put staff, other donors, or themselves at risk when donating plasma.
  19. The defense fails to explain why the plaintiff, who has managed his PTSD for nearly 2 decades and safely donated plasma roughly 90 times, should only be considered safe to donate when he renounces the new service animal that helps him better manage his PTSD.

 

II

Takeaways

  1. We now have two Circuits taking the position that a plasma center is a place of public accommodation. We have one taking the position that it is not. A Circuit Court split is one of the reasons the United States Supreme Court agrees to hear cases. As I have mentioned previously, people with disabilities do very well at the Supreme Court outside of the employment context. Here, you have a person who donated blood successfully 90 times without a service dog. He is also a retired police officer. Finally, this is not an employment case. Even with the current configuration of the United States Supreme Court, I like the chances of the plaintiff at the Supreme Court should this case get appealed to the Supreme Court.
  2. In the case involving South Dakota, which we discussed here, the Supreme Court has already signaled that it would be open to broadly construing what is a place of public accommodation.
  3. This decision is published, and so, no restrictions exist on citing it as precedent.
  4. This case contains a nice description of what failure to accommodate cases turn on.
  5. This case also has a very nice explanation of the burden of proof. Too often, the burden of proof explanation gets overly legalistic, which is not the case here.
  6. This opinion says McDonnell Douglas doesn’t apply to title III cases.
  7. Blanket exclusions are always a bad idea. The ADA operates on an individualized analysis.
  8. As a matter of preventive law, don’t get stuck on whether a particular business is specifically listed in 42 U.S.C. §12181(7) when trying to determine if the business is a place of public accommodation. For that matter, as a matter of preventive law, unless you want to chew up a lot of money in litigation, which may or may not be successful, I wouldn’t get stuck on whether it is a physical place either. The question is whether what is going on is of the kind listed in any of the categories in 42 U.S.C. §12181(7).