Understanding the ADA

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

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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).

Effective Communication Obligations Reach Beyond any Interactive Process

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School is coming up for many. Here in Atlanta, many started August 1 if not the Monday of that week. By the end of this week, just about everybody in metro Atlanta will have started school. My daughter started her second year of high school on August 1. So, this week is her first full week of her sophomore year. Good luck to everybody who has kids starting school.

Our case of the week, Tauscher v. Phoenix Association of Realtors Inc. (the defense does business at the Phoenix Association of Realtors), recently decided by the Ninth Circuit, which can be found here, is a big win for the culturally deaf, i.e Deaf. It comes out of the Ninth Circuit and it involved a culturally deaf individual who is a licensed realtor who was unable to procure an ASL interpreter for continuing education classes. As usual, our blog entry is divided into categories and they are: facts; court’s reasoning; and takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Plaintiff has a profound hearing loss and cannot hear sounds less than 90 dB, which is about as loud as a lawnmower. He cannot hear in conversational settings and does not use lip reading to understand speech. He also cannot effectively communicate with others by means of spoken words. His primary and best form of communication is ASL. Even so, plaintiff has a BA degree in biomedical photographic communication and an MBA. He works full-time for Sprint as a branch manager for product development and is also a licensed real estate salesperson in Arizona.

The Phoenix Association of Realtors is a trade association for real estate professionals selling real property in the Phoenix metropolitan area. It has 12 employees. Its membership has ranged over the years from 7,600 to 13,000 dues paying members. It offers a variety of programs and services for its members, including seminars that fulfill continuing education requirements set by the Arizona Department of Real Estate. Historically, the Phoenix Association of Realtors has charged only a nominal amount for those seminars, and the revenue from those seminars it generally less than the seminars cost.

Plaintiff registered for continuing education course that the Phoenix Association of Realtors scheduled for February 13 and 14 of 2013. His registration fee was $20. In September of 2012, plaintiff contacted the Phoenix Association of Realtors Chief Executive Officer to ask them to provide an ASL interpreter for the course. She declined to provide an ASL interpreter and instead offered him the use of an FM loop system amplifying sound. Plaintiff rejected that explaining that such a system would not provide effective communication for him because of the extent of his hearing impairment. They did discuss the possibility of closed or open captioning, but the conversation ended without any agreement.

In early of February 2013, the Phoenix Association of Realtors responded to plaintiff’s request for an auxilliary aid or service in a letter prepared by their attorney. It rejected plaintiff’s request for an ASL interpreter on the grounds that the Phoenix Association of Realtors did not have the resources to provide an ASL interpreter and that it would be an undue burden on the organization. Instead, the Phoenix Association of Realtors proposed: 1) plaintiff could attend the class and utilize lip reading and in that eventuality, the instructor would be made available for questions at breaks and lunch; plaintiff could bring another real estate agent who is willing to sign doing and they would provide the instruction and credit free to that person; or plaintiff could fulfill the continuing education requirement by taking online courses. Plaintiff and the Phoenix Association of Realtors could not reach an agreement. They then refunded plaintiff’s registration fee.

In October 2014, plaintiff registered for another course and once again asked for an ASL interpreter. The Phoenix Association of Realtors refused and proposed instead to make the instructor available for questions at break and lunch. They subsequently canceled plaintiff’s registration for the course. Plaintiff then filed a claim in the District Court alleging that the Phoenix Association of Realtors violated the ADA and the Arizonans with Disabilities Act.. When the District Court granted summary judgment for the defendant, plaintiff appealed.

 

II

Court’s Reasoning

 

  1. Nobody disputes that plaintiff is an individual with the disability or that the Phoenix Association of Realtors is a place of public accommodations and that its seminars are places of public accommodations.
  2. Applicable regulation, 28 C.F.R. §36.303(a), require that a place of public accommodation take those steps necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of ancillary aids and services. A place of public accommodation can only get out of that obligation if it can demonstrate that taking those steps either fundamentally alters the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or results in an undue burden.
  3. A place of public accommodation also must furnish appropriate axillary aids and services when necessary to ensure effective communication with individuals with disabilities. 28 C.F.R. §36.303(c)(1).
  4. Auxiliary aids and services include qualified interpreters, real-time computer aided transcription services (I happen to use this one all the time), assistive listening devices (I also use these quite a bit), and a range of additional measures. 28 C.F.R. §36.303(b)(1).
  5. The regulations also contain a general provision saying that any other effective method of making orally delivered information available to individuals who are deaf or hard of hearing is also in play.
  6. A place of public accommodation cannot require an individual with a disability to bring another individual to interpret for him or her. 28 C.F.R. §36.303(c)(2).
  7. While a place of public accommodation should consult with individuals with disabilities whenever possible to determine what type of auxiliary aid needed to ensure effective communication, the regulations implementing title III of the ADA makes clear that the ultimate decision as to what measures to take rests with the place of public accommodation providing that the method chosen results in effective communication. 28 C.F.R. §36.303(c)(1)(ii).
  8. A genuine issue of material fact existed as to whether plaintiff was offered an effective means of communication.
  9. While it is true that plaintiff was offered several different measures, many of those measures clearly were not effective means of communication. In fact, the Phoenix Association of Realtors admits that the FM loop system was not an effective means of communication for the plaintiff.
  10. Several of the other alternatives did not constitute an effective means of communication either as a matter of law. The regulations provide that a public accommodation may not require individuals with a disability to provide their own interpreter. So, defendant’s suggestion that plaintiff bring a friend to the class to interpret for him does not meet the defendant’s obligation to provide effective communication. For that matter, taking online classes instead of participating in the live classroom setting is also as a matter of law not effective communication because the regulations provide that individuals with disabilities cannot be segregated or otherwise treated differently than other individuals because of the absence of artillery aids and services. 28 C.F.R. §36.303(a). Finally, asking the plaintiff to rely on lip reading also fails as a matter of law because the plaintiff provided evidence that he was a poor lip reader.
  11. A genuine issue of material fact exists at the whether the defendant offered to provide a captioning system. While the defendant argues on appeal that captioning would have been an effective means of communication, evidence in the record exists that the defendant never offered the plaintiff that option. Instead, the CEO testified at her deposition that that option was not offered to the defendant because they had already concluded that such an accommodation was too costly and therefore, not feasible. Plaintiff also said that captioning would not be effective because he was not proficient in English.
  12. Defendant attempted to argue that plaintiff loses because plaintiff broke down the interactive process. However, the court wasn’t buying it for the reasons that follow below (¶ ¶ 13-15).
  13. The ADA does not make the interactive process requirement applicable to places of public accommodations and services. In fact, title III and its final implementing regulations make no mention of an interactive process mirroring the process required in the employment context.
  14. While the title III regulation do say that a place of public accommodation should consult with individuals with disabilities whenever possible in order to determine what type of auxiliary aid is needed to ensure effective communication, the place of public accommodation itself is independently responsible for making the ultimate decision as to what measures to take.
  15. There is no basis for holding that a place of public accommodation is relieved of its obligation to provide appropriate auxiliary aids and services if the individual requesting such managers fails to engage in good faith declaration of what measures would provide effective communication. Defendant did not cite any precedent on point and as far as the Ninth Circuit could tell there were none. So, defendant is not discharged up its obligation to ensure effective communication merely because the plaintiff did not engage in further discussion with it regarding measures other than an ASL interpreter. (Emphasis mine).
  16. Defendant also argued that an undue burden was involved, but the Ninth Circuit was saying questions of fact existed on that one as well as discussed by the court in the remaining paragraphs of this section.
  17. The ADA regulations define “undue burden,” in terms of, “significant difficulty or expense.” That determination takes into account a range of factors relating to the cost of the action compared to the financial resources of the place of public accommodation. See 28 C.F.R. §36.104. Determining whether an action places an undue burden on a place of public accommodation requires a holistic analysis of the financial resources available to the place of public accommodation, including its profits and operating expenses as well as the nature and frequency of the expense.
  18. The question of whether providing an ASL interpreter results in an undue burden raises complex issues that the trial court is better able to handle in the first place. That is the case especially here. The defendant argues that it charges only a $20 registration fee for its courses, but the cost of an ASL interpreter for the February 2013 course would have been between $1680 and $3360. On the other hand, plaintiff point to evidence in the record that the overall value of the Phoenix Association of Realtors assets in cash or cash equivalents was $839,606 at the end of fiscal year 2014 and $1,099,152 at the end of fiscal year 2013. Accordingly, the District Court has to consider whether a genuine issue of material fact exists with respect to undue burden.

 

III

Takeaways

  1. The interactive process is a title I requirement. However, it is always a good idea as a matter of preventive law for an entity to engage the person with a disability in the interactive process. If nothing else, it may prevent litigation in the future because the person with the disability, assuming the process is collaborative and not adversarial (see this blog entry), will feel respected. That said, it is extraordinarily significant that the Ninth Circuit says that an entity’s effective communication obligation goes beyond the interactive process. That is, even if a plaintiff breaks down the interactive process or it doesn’t engage in it, the effective communication obligations of a title III entity still exists.
  2. Many culturally deaf and hard of hearing individuals are lousy lip readers. Also, even the best lip reader, which I put myself in that category, can only get 50% of what is on a person’s lips.
  3. When it comes to the deaf and hard of hearing, no two people work the same way. In my situation, there are many time where an FM system with noise canceling headsets will work for me. However, I know many people who wear high-powered hearing aids for whom absolutely no headset will work for them at all. For people who were cochlear implants, headset never work for them.
  4. Just don’t ask a person fluent in ASL to bring their own interpreter. Just don’t. See also this blog entry.
  5. The case is also interesting because the Ninth Circuit says that certain accommodations fail as a matter of law given a particular set of circumstances. So, always do an individualized analysis.
  6. I have said many times in our blog, that undue burden is a very difficult defense to pull off. On the plaintiff side, consider one of your interrogatories being an inquiry as to whether the undue burden defense will be asserted, and if so, requesting the detailing of their overall financial situation. The advantage for a plaintiff doing this in an interrogatory is that it could foreclose the undue burden defense because many defendants do not want to disclose their overall financial situation to the plaintiff (the title III regulations do say that undue burden is measured against the overall financial resources of the place of public accommodation.
  7. Expect this case to have a huge impact in favor of the Deaf/deaf and HOH community. I am personally aware of deaf/Deaf/HOH attorneys that have had problems getting the kind of accommodations they need from continuing education providers. On occasion, I have even run into that myself. See also this blog entry, which is also mentioned above.
  8. Separating out a person with a disability from what is offered to people without disabilities is a very dangerous approach, is probably not defensible, and certainly increases the risk of litigation. See this blog entry for example.
  9. When it comes to legal counsel, make sure your legal counsel is knowledgeable about the ADA.