fundamental alteration

Baseball season is about to get up and running. Good luck on your team for this year. In my case: the Chicago Cubs are expected to be good; the Chicago White Sox not so good; and the Atlanta Braves, anybody’s guess. Also, hope everyone is having fun if not success with the NCAA tournament. Currently, in a bragging rights pool run by my brother, I find myself in last place just behind my daughter, who watches absolutely zero basketball, though she did just finish a season of organized basketball in our local recreation league.

Today’s blog entry are appellate updates on two cases I have blogged upon previously. In the first, Lewis v. City of Union City, Georgia, the 11^th Circuit came down with a published decision on March 21, 2019. In the second, Gati v. Western Kentucky University, decided January 29, 2019, the Sixth Circuit came down with an unpublished decision.

As usual, the blog entry is divided into categories and they are: Lewis v. City of Union City, Georgia; Gati v. Western Kentucky University; and Gati takeaways. The reader is free to focus on any or all of the categories.

I

Lewis v. City of Union City, Georgia

Previously, I blogged on this case here. My blog entry focused on the ADA piece of the case. That part of the case still remains at the lower court level. What was appealed was the civil rights (title VII), part of the case. The question on appeal was just when has the plaintiff put forth appropriate comparators. The 11^th Circuit concluded that a plaintiff put forth an appropriate comparator when the comparators are similarly situated in all material respects. In determining whether a comparator is similarly situated in all material respects, the 11^th Circuit suggested some factors to consider with respect to any comparator: 1) he or she will have engaged in the same basic conduct or misconduct as the plaintiff; 2) he or she will been subject to the same employment policy, guideline, or rule as the plaintiff; 3) he or she will ordinarily, although not invariably, have been under the jurisdiction of the same supervisor as the plaintiff; and 4) he or she will share the plaintiff’s employment or disciplinary history. The list does not appear to be exclusive because the court uses the phrase, “ordinarily, for instance, a similarly situated comparator-.” Finally, a valid comparison will not turn upon formal labels, but rather on how substantively alike the situations are. That is, the plaintiff and his or her comparators must be sufficiently similar, in an objective sense. That is, plaintiff and his or her comparators cannot reasonably be distinguished.

With respect to the ADA, I don’t see this case having much of an impact. Due to the nature of how the ADA works, you don’t often see comparators an issue in ADA cases. As mentioned previously, the ADA portion of the case is still in the District Court. Also, there is now a Circuit court split on the comparator issue. So, expect to see that question go to the United States Supreme Court at some point.

II

Gati v. Western Kentucky University

I previously blogged on this case here. Here are the key aspects of the Sixth Circuit’s reasoning affirming the District Court.

1. A prima facie case for title II discrimination involves showing: 1) plaintiff has a disability; 2) plaintiff was otherwise qualified; and 3) plaintiff was excluded from participation in, denied the benefits of, or subjected to discrimination under the program because of her disability.
2. A person with a disability is otherwise qualified if he or she can meet a program’s necessary requirements with reasonable accommodations.
3. The ADA does not require an educational institution to lower or substantially modify its standards when making modifications. Rather, only reasonable not fundamental adjustments are required.
4. The federal judiciary is ill-equipped to evaluate the proper emphasis and content of a school’s curriculum and should afford a university’s judgment and discretion great respect. That is, in assessing the importance of academic requirements and healthcare programs especially, where the conferral of a degree places the college or university’s signature upon the student as qualified to practice, the judiciary ought only to reluctantly intervene.
5. Plaintiff bears the initial burden of proposing an accommodation and proving that it is reasonable.
6. Western Kentucky’s faculty did not find the plaintiff’s proposed accommodations reasonable.
7. Looking to title I cases, an employee cannot force his or her employer to provide a specific accommodation if the employer offers another reasonable accommodation.
8. Again, looking to title I cases, if an employee rejects a reasonable accommodation, then he or she is no longer a qualified individual as a matter of law.
9. With respect to the interactive process, even if an interactive process is required in an academic setting, that process is a means to find a person with the disability reasonable accommodations and is not an end in and of itself. Here, negotiations broke down when the plaintiff refused to consider the University’s proposed accommodations and transferred to another school.
10. A failure to engage in the interactive process only becomes an independent violation of the ADA when the plaintiff establishes a prima facie showing that he or she proposed a reasonable accommodation, which was not the case here.

III

Gati Takeaways

1. With respect to academic deference and disability discrimination, courts are not always going to be so nice to the University, such as discussed here. From the University perspective, it really helps if the faculty has done its homework with respect to what are the essential eligibility requirements of the program. We discussed that process here.
2. The court says that the plaintiff bears the initial burden of proposing the accommodation and proving that it is reasonable. I always have trouble with this formulation because undue burden and fundamental alteration are affirmative defenses. Also, what is reasonable under the ADA is whatever does not constitute an undue burden or a fundamental alteration. So, does this formulation of the court’s mean that undue burden and fundamental alteration are not affirmative defenses and is something the plaintiff has to prove?
3. The University did have its faculty consider whether they could make the proposed accommodation work without fundamentally altering the program, and the faculty decided that it could not.
4. As we have mentioned previously, such as here, failure to engage in the interactive process is not always a separate cause of action depending upon the jurisdiction. In the Sixth Circuit, it appears that failure to engage in the interactive process can be an independent violation of the ADA where the plaintiff proposes a reasonable accommodation.
5. The person who blows up the interactive process bears the responsibility, which is the same rule in title I cases.
6. U.S. Department of Education’s Office of Civil Rights has said for years that failure to engage in the interactive process is an independent violation of the ADA. There is also this case holding that colleges and universities have an obligation to engage in the interactive process with respect to their students. That said, interactive process is a title I construct. Even so, I do not understand how reasonable modifications under title II and under title III are even possible to determine without engaging in an interactive process first. If you subscribe to the publication Disability Compliance for Higher Education put out by Wiley, Professor Masinter of Nova Southeastern Shepard Broad School of Law in its April 2019 issue has an excellent article on OCR’s insistence, which may or may not be problematic, on the interactive process and why it is a good idea to use it even if it is a title I construct.
7. “Because,” is not the standard for causation in title II matters. Rather, the standard for causation is “by reason of,” which is different from the Rehabilitation Act, “solely by reason of” standard. We just discussed that here.
8. Otherwise qualified is not the term found in title II of the ADA as amended. Rather, that term is found in the Rehabilitation Act. The term in title II of the ADA is, “qualified.” Even so, the meaning of “otherwise qualified,” and, “qualified,” are identical.
9. Universities and colleges have a lot of programs where they signify a student is qualified to practice upon completion. You see this all the time with associate degrees and certificate programs (paralegals-an area I taught full-time in for 12 years, including running an ABA approved program for four years). So, any university or college doing our two-step process first should be in good shape if after they have completed our two-step process, it denies certain accommodation request on the grounds the program will be fundamentally altered.