Understanding the ADA

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

interference

The Washington and Hawaii Approaches to the Misrepresentation of Service Dogs

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Previously, I had mentioned that I was going to explore how some States are reacting to the increasing use of dogs being misrepresented as service dogs. I also previously covered here the approach Texas took with respect to service dogs in general. So, today, I want to explore how Hawaii and Washington are reacting to the problem. Hawaii gets it right, but Washington, effective January 1, 2019, goes way too far. Finally, if you have not voted yet for understanding the ADA’s inclusion in the ABA 100 for this year, please do so as the deadline for voting is tomorrow. The link for voting can be found here, and you have until August 7 to vote. As usual, the blog entry is divided into categories and they are: Hawaii’s reaction to the service dog problem; Washington’s reaction to the service dog problem; and my thoughts on the Washington approach. As usual, the reader is free to concentrate on any or all of the categories, but probably will want to read the whole thing.

I

Hawaii’s Reaction to the Service Dog Problem

Hawaii recently enacted legislation without the Governor’s signature in response to the service dog backlash. It isn’t easy to find the engrossed bill on their website, but the site where you can find it would be located here. The important provisions are as follows:

  1. The definition of a service animal tracks the definition of a service animal under DOJ’s title II and title III final regulations.
  2. Hawaii believes that a penalty for misrepresentation of a dog or other animal as a service animal would discourage people from fraudulently representing their pets as service animals.
  3. Imposes a civil penalty for a person to knowingly misrepresent as a service animal any animal not meeting the requirements of the service animal statute.
  4. Clear and convincing evidence is the burden of proof in order to find that a person is subject to a civil penalty for misrepresenting an animal as a service animal.
  5. Hawaii previously had a section of the statute making it a penalty for someone to intentionally interfere with the use of a service dog and that section has not changed in any substantive way.

II

Washington’s Reaction to the Service Dog Problem

The Washington Attorney General leads the charge against many of President Trump’s actions. So, I was a little bit surprised that the Governor of Washington actually signed this legislation. Let’s explore how this legislation goes too far. Particularly, if you are working on behalf of enforcement officers in the state of Washington, I would check your ability to respond to the inevitable increase in both §1983 claims and ADA interference claims, as those claims are about to go through the roof. Let’s see why. Here are the key provisions of the Washington law:

  1. As in the case of Hawaii, Washington also finds that too many people are misrepresenting their animals as service animals. Such misrepresentation is a disservice to both persons relying on the use of legitimate service animals as well as the places of public accommodations and their patrons.
  2. The definition of a service animal tracks the definition of the service animal in DOJ’s title II and title III final implementing regulations.
  3. Makes it a civil infraction for any person to misrepresent an animal as a service animal.
  4. A violation of the misrepresentation provision occurs whenever: A) a person expressly or impliedly (emphasis added), represents an animal as a service animal for the purpose of securing the rights or privileges afforded disabled persons accompanied by service animals set forth in Washington or federal law; or B) a person knew or should have known (emphasis added), that the animal in question did not meet the definition of the service animal.
  5. Allows an enforcement officer to investigate and enforce the statute by making an inquiry of the person accompanied by the animal in question and issuing a civil infraction. Further, any refusal to answer the questions allowable creates a presumption that the animal was not a service animal and the enforcement officer may issue a civil infraction and require the person to remove the animal from the place of public accommodation.
  6. The two inquiries an enforcement officer can make of an individual with an alleged service animal are whether the animal is required because of a disability and what work or task the animal has been trained to perform. Generally speaking, an enforcement officer or place of public accommodation may not make those inquiries about a service animal when it is readily apparent that an animal is trained to do work or perform tasks for a person with a disability.
  7. Miniature horses are allowed if they are used in the same way as a service animal.
  8. The maximum penalty is $250 but increases to $500 where a person refuses to answer the enforcement officer’s questions.

III

My Thoughts on the Washington Approach

  1. Like many States, the definition of disability is different than the ADA. With respect to Washington, the definition of disability includes a record of an impairment as well as regarded as. However, the first prong of a disability under Washington law is different than the ADA. Under Washington law, disability means the presence of a sensory, mental, or physical impairment that is medically cognizable or diagnosable. That prong is quite a bit different than the first prong under the ADA. Also, Washington essentially takes the ADA’s definition of major life activities and incorporates its into their definition of an impairment. Finally, Washington has some very interesting provisions with respect to disability in the workplace. Did I mention, I am not a Washington lawyer?
  2. Don’t have a problem with the definition of service animal under Washington law as it tracks the DOJ’s title II and title III final implementing regulations.
  3. I very much have a problem with how Washington law imposes a civil penalty where a person either impliedly or should have known that the animal in question does not meet the definition of a service animal. The reason I have a problem with it, is that a person may not actually know whether their animal is a service animal or not. They may honestly think their animal is a service animal when it isn’t. Another thing I have seen is a person honestly thinks their animal is an emotional support animal when it is actually a service animal.
  4. Enforcement officers in the state of Washington now have to worry about added liability under both 42 U.S.C. §1983 as well as under 42 U.S.C. §12203.
  5. 42 U.S.C. §1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

Washington law, RCW 7.80.040, defines an enforcement officer as, “a person authorized to enforce the provisions of the title or ordinance in which the civil infraction is established.” That means police officers are included within that definition. Accordingly, if they implement this law wrongly. For example, ask questions when they are not supposed to, or do not ask the proper questions, or do not make the proper determination after asking the proper questions, then they are depriving the person with a disability the rights and privileges under the ADA. Further, qualified immunity won’t be of help since what enforcement officers are supposed to do is all laid out in Washington statutes.

  1. The knowingly or should have known provisions of the Washington law are so vague as to make the argument that the law and certainly its implementation will interfere with the rights of persons with disabilities thereby violating 42 U.S.C. §12203(b). That is, a person with a disability with a dog or a miniature horse trained to engage in recognition and response (i.e. a true service animal), now has a very strong disincentive not to bring their service animal into a place of public accommodation or into a public entity knowing that he or she is likely to be challenged by both employees and even police officers, and perhaps aggressively so. The vagueness of the law also creates the argument of a substantive due process/equal protection claim as well.
  2. Considering the aggressiveness of the Washington Attorney General with respect to responding to numerous initiatives of President Trump, I wonder if he will even bother defending the inevitable challenges to this law. Also, considering the increased liability under §1983, I am a bit surprised that the enforcement officers in the state of Washington did not mobilize against it (I am assuming they did not mobilize against it because otherwise it is hard to believe the law would have been signed, though I don’t have actual knowledge either way).
  3. When it comes to service dogs, the approaches of the States can vary significantly. You do want to contact knowledgeable legal counsel with respect to your specific jurisdiction’s laws. Many States are basically codifying the final title II and title III implementing regulations of the DOJ. That is okay. The problem is when States overreact, such as in Washington’s case. Washington’s particular problems are that the statute is extraordinarily vague and it imposes obligations on enforcement officers. I do think enforcement officers in the State of Washington need to be checking to make sure they are prepared for the increase in 42 U.S.C. §1983 claims that are likely to occur now. I also look for more interference claims to occur as well.
  4. The problems in the Washington law could be solved by getting rid of “impliedly or should have known language,” in the statute and by not imposing a civil penalty on a person refusing to answer an enforcement officer’s question. Also, the Washington service animals misrepresentation provisions do not mention any burden of proof for finding a violation. Considering the federal rights involved, I like Hawaii’s clear and convincing evidence standard.

Finally, don’t forget to vote for understanding the ADA’s inclusion in the ABA 100, here. Deadline tomorrow.

Fear of Future Disability Actionable Under ADA?

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Today’s blog entry deals with the question of whether taking adverse action against a person who does not currently not have a disability but where the employer fears will develop a disability in the future is actionable under the ADA. We will discuss two cases going opposite ways. They are: EEOC v. STME, LLC d/b/a/ Massage Envy-South Tampa from the Middle District of Florida decided February 15, 2018, and Shell v. Burlington Northern Santa Fe Railway Company from the Northern District of Illinois Decided March 5, 2018. As usual, the blog entry is divided into categories and they are: Massage Envy facts; Massage Envy reasoning; Shell facts; Shell’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.

I

Massage Envy Facts:

In September 2014, plaintiff requested time off to visit her sister in Ghana, West Africa. Massage Envy’s business manager approved the request. On October 22, 2014, three days prior to her trip, plaintiff was terminated out of concern that she would be infected with Ebola if she traveled to Ghana and would bring it home to infect Massage Envy’s employees and clients upon her return. Plaintiff subsequently did take her trip to Ghana. When she returned, she filed a claim with the EEOC. The EEOC found reasonable cause to believe that plaintiff was regarded as disabled and engaged in informal conciliation effort to reach a resolution. When the resolution effort failed, EEOC filed suit.

II

Massage Envy’s Reasoning in Granting the Motion to Dismiss:

  1. Under 42 U.S.C. §12102(3)(A) an individual is regarded as having a disability when she is subject to a prohibited action because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
  2. In an interpretive guidance, the EEOC said impairment does not include characteristics or predisposition to illness or disease.
  3. The owner did not perceive plaintiff as presently having Ebola. Instead, he perceived her as having the potential to become infected with Ebola in the future. As such, the owner did not believe the plaintiff was presently impaired.
  4. The court declined to expand the regarded as having a disability definition in the ADA to cover cases where the employer perceives an employee to be presently healthy with only the potential to become a person with a disability in the future due to voluntary conduct.
  5. Massage Envy correctly argues that the EEOC failed to state an association discrimination claim because the defendant had not yet had any association with persons in Ghana, or with identified people known by the owner to be a person with a disability as required by the ADA. At the time of her termination, the plaintiff had not yet had any association with persons in Ghana. Further, there is no evidence that the owner knew any individual in Ghana with Ebola.
  6. The plain language of the ADA makes clear that the plaintiff must be known to have [present tense] (brackets appear in the opinion itself), a relationship or association with a person known to have a disability in order for that relationship to serve as a basis for association discrimination.
  7. Citing to an 11th Circuit case, the court noted that one of the prima facie elements is that the employer knew at that time that the plaintiff had a relative or associate with a disability.
  8. The plain language of the ADA and binding case law says that an employer must know of a presently existing or past association with a person with a disability at the time of the adverse action in order to fall under the ADA’s association discrimination provision. The EEOC did not give the court nor was the court aware of any 11th Circuit case where an association discrimination claim was sustained based upon the employer’s knowledge of the potential future association with a person with a disability or persons with disabilities.
  9. No question in this case that the owner was without knowledge of a current association between the plaintiff and individuals in Ghana at the time of the plaintiff’s termination because no such association had occurred yet.
  10. Even if it is assumed that a plaintiff could bring an association discrimination claim for potential future association with a person with a disability, the ADA requires that such an individual have a known disability. In fact, the EEOC in its interpretive guidance says the ADA prohibits an employer from discharging the employee because the employee does volunteer work with people who have AIDS, and the employer fears that the employee may contract the disease.
  11. The ADA does not establish a cause of action for discrimination against an individual associating with people who are merely regarded as having a disability.
  12. The interference claim fails because it could not be reasonably assumed from the charge that such a claim existed.

III

Shell Facts:

Shell was employed by Rail Terminal Services, which was responsible for intermodal operations at Burlington Northern Santa Fe’s Corwith railyard. In July 2010, Burlington Northern Santa Fe announced that it would be taking over the operations at that yard and invited employees to apply for positions with Burlington Northern Santa Fe. Burlington Northern Santa Fe required that intermodal equipment operators act as groundsmen, hostlers, and crane operators. Groundsmen are responsible for climbing on railcars to insert and remove container interlocker devices; hostlers are responsible for operating trucks to move trailers within the yard; and crane operators are responsible for operating overhead cranes that load and unload intermodal containers from trains and truck chassis. While the plaintiff had previously worked for Rail Terminal Services, that position did not require him to fulfill all three functions. Even so, the plaintiff had many years of experience working in a similar capacity and also had experience in operating a broad array of relevant equipment.

Following an interview process, Burlington Northern Santa Fe made the plaintiff a conditional offer of employment with a scheduled start date of January 1, 2011 conditional on his completion of a background check, drug test, physical examination, and medical evaluation. As part of the medical evaluation process, Burlington Northern Santa Fe considered the body mass index of applicants for safety sensitive positions, which included plaintiff’s position. Burlington Northern Santa Fe believes that there are significant risks associated with having individuals of a body mass index of 40 or greater working in safety sensitive roles. In particular, such individuals are at a substantially higher risk of developing a number of medical conditions including sleep apnea, diabetes, and heart disease, all of which can manifest as a sudden incapacitation or serious impairment of alertness or cognitive ability. Accordingly, Burlington Northern Santa Fe does not hire applicants for safety sensitive position if their body mass index is over 40.

Physical exams established that the plaintiff was 5’10” tall and weighed 331 pound with a BMI of 47.5. Accordingly, Burlington Northern Santa Fe withdrew its offer of employment, but did inform the plaintiff that he might be eligible for reconsideration if he lost 10% of his weight, maintained that weight loss for six months, and provided any additional test results that were requested. That decision was based solely on plaintiff’s BMI and not on any existing physiological disorder or functional limitation. For that matter, no further examination was requested to determine if the plaintiff did in fact suffer from sleep apnea, diabetes, or heart disease and no evidence suggested that the plaintiff suffered from these conditions presently. Finally, no evidence suggested that the plaintiff’s weight resulted from the underlying medical condition.

IV

Shell’s Reasoning for Denying Defendant’s Motion for Summary Judgment

  1. In order to prevail on an ADA discrimination claim, plaintiff has to show that: 1) he is a person with a disability; 2) he is otherwise qualified to perform the essential functions of the job; and 3) the employer took an adverse action against him on the basis of his disability.
  2. Under 42 U.S.C. §12112(b)(6), one of the acts constituting discrimination against a qualified individual on the basis of disability is using qualification standards, employment tests, or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities. Further, the use of such qualification standards, tests, or other criteria only flies if it is shown to be job-related for the position in question and consistent with business necessity.
  3. Under 42 U.S.C. §12102(3), a person is regarded as having a disability if he can establish an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
  4. The court agrees with the weight of authority that obesity is not a disability under the ADA unless it results from an underlying physiological condition. Further, plaintiff also failed to establish that Burlington Northern Santa Fe perceived his obesity is a disability.
  5. The court cited to a case from the Southern District of Illinois where that court found in the case of a person who was not hired because of the employer’s fear that he would develop carpal tunnel syndrome in the future, that the plaintiff there was regarded as having a disability and that no reasonable jury could find otherwise.
  6. Burlington Northern Santa Fe readily admitted that it refused to hire the plaintiff based on its fear that he would develop sleep apnea, diabetes, or heart disease, and as a result, he might become suddenly and unexpectedly incapacitated while performing his duties.
  7. A question of fact exists as to whether Burlington Northern Santa Fe is treating the plaintiff as if he does suffer from sleep apnea, diabetes, or heart disease. Burlington Northern Santa Fe apparently views the plaintiff as a ticking time bomb who at any time may be suddenly and unexpectedly incapacitated by one or more of the potential medical conditions that he might develop.
  8. Burlington Northern Santa Fe’s refusal to consider hiring the plaintiff and monitoring him for the conditions it fears will develop suggests that the defendant believes the plaintiff suffers from these conditions or at the very least suffers from the potential effects of those conditions at the present time.
  9. The court sees no reason why Burlington Northern Santa Fe should be held to a lesser standard simply because it is engaging in adverse employment actions before an impairment arises, when there can be no doubt that Burlington Northern Santa Fe is acting based on its belief that plaintiff poses a present safety risk as a result of potential disabilities. Burlington Northern Santa Fe is acting upon the anticipated worst-case scenario derived from precisely the sort of myths, fears, or stereotypes that the ADA is meant to guard against.
  10. The court perceived a clear distinction between being predisposed to illness generally v. being predisposed to developing a disability subject to the ADA.
  11. In its guidance, the EEOC specifically recognizes that obesity can independently give rise to regarded as disability discrimination claims.
  12. In a footnote, the court said that Burlington Northern Santa Fe essentially argues that although it cannot discriminate against individuals who actually have a disability, it can discriminate against those who are likely to have disabilities but have yet to develop them. That argument is facially illogical and antithetical to the protections afforded by the ADA and other antidiscrimination statutes.
  13. With respect to business necessity, the employer’s burden is quite high and is not to be confused with mere expediency.
  14. From the record, it is impossible to determine whether the plaintiff’s health posed so great a safety risk that his exclusion from safety-sensitive positions constituted business necessity. In a footnote, the court noted that while it is true that the plaintiff offered no testimony from a medical expert to controvert Burlington Northern Santa Fe’s assessment of the risks of plaintiff’s obesity, Burlington Northern Santa Fe’s own evidence was based solely on indefinite and vague comparative statements of risks.
  15. Burlington Northern Santa Fe’s willingness to employ the plaintiff providing he lost some weight undermines its claim that the plaintiff was inherently too dangerous to be in a safety sensitive position. Accordingly, a dispute of material fact existed as to whether it was truly necessary to exclude the plaintiff and other individuals like him from safety sensitive positions.

V

Takeaways:

  1. I don’t see how the two cases can be reconciled. I would certainly look for the EEOC to appeal and use Shell in its appeal. The 11th Circuit as of late has often been favorable to persons with disabilities.
  2. Interesting that the same interpretive guidance gets used in both cases to reach opposite conclusions.
  3. As a preventive law matter, assume that Shell is the law and don’t take adverse action against an employee over the fear that the employee will develop a disability in the future.
  4. It isn’t a bad idea to have a lawyer draw up the EEOC charge where possible. Also, whoever draws up the charge should be sure to put in it any and all claims that reasonably stem from the facts in that charge.
  5. For more explanation as to what constitutes business necessity, check out this blog entry.
  6. Burlington Northern Santa Fe made a big mistake by not doing an individual analysis as to whether the plaintiff either had a disability or whether the plaintiff constituted a direct threat per this blog entry.
  7. While Shell goes along with the majority trending that obesity must be based upon an underlying condition to be protected under the ADA, it is significant that this court says that obesity can independently give rise to regarded as disability discrimination claims.
  8. Massage Envy specifically talks about voluntary conduct of plaintiff in the decision, and will be interesting to see how that plays out, if at all.
  9. As a preventive matter, individual analysis is critical.

Sovereign Immunity and Title II and III of ADA: This Case Should be Appealed

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Today’s case, Glueck v. National Conference of Bar Examiners illustrates the perils of proceeding pro se. The case is certainly worth appealing to the Fifth Circuit. However, the plaintiff is now proceeding with a constitutional challenge to various statutes, which I don’t think will go anywhere. At any rate, the case bears discussing and it also bears discussing why I believe the case should be appealed. So, the blog entry as usual is divided into categories and they are: facts; court’s reasoning national conference of bar examiners; court’s reasoning title II; court’s reasoning title III; why the case should be appealed; and takeaways. The reader is free to focus on any or all of the categories.

I

Facts:

The plaintiff is a third-year law student with ADHD, reading and comprehension impairments, and dyslexia. He received accommodations while pursuing a graduate degree and on law school exams. However, when it came time to take the multistate professional responsibility examination, the national conference of bar examiners, which administered the exam, denied his request for time-and-a-half, audio CD, and a non-Scantron answer sheet. Nevertheless, he took the exam anyway and failed. He ran into a similar issue with the Texas bar, which also denied him accommodations. He brought suit under titles III and V against the National Conference Of Bar Examiners and under title II,III, and V against the Texas Board of Law Examiners.

 

II

Court’s Reasoning against National Conference of Bar Examiners

 

With respect to the interference and retaliation claims, the court said that plaintiff made no factual allegations as to how the National Conference Of Bar Examiners retaliated or interfered with his exercise or enjoyment of his rights. For that matter he didn’t state any allegations at the Hollywood discriminated against because he opposed any act or practice of the National Conference Of Bar Examiners. Accordingly, the complaint failed under Iqbal and Twombly. However, the court said that the §12189 (the portion of the ADA that goes to discrimination in standardized examinations), claim survived.

III

Court’s Reasoning Against the Texas Board of Law Examiners

  1. The right to practice law is not a fundamental right and so Tennessee v. Lane does not apply.
  2. Reickenbacker v. Foster, 274 F.3d 974 (5th 2001), is the applicable case. That case said that title II of the ADA outside of fundamental rights, exceeds the enforcement clause of the U.S. Constitution and therefore, does not forcibly abrogate sovereign immunity.
  3. The court acknowledged the issue of sovereign immunity and title III is an open question since title III cases usually involve private entities. Nevertheless, the possibility of sovereign immunity does apply since a governmental entity is administering the exam. Again, since a fundamental right is not involved, title III of the ADA goes beyond the enforcement clause of the 14th amendment, and therefore, sovereign immunity cannot be forcibly waived.
  4. The court allowed the title V claim to proceed saying that it was not aware of any case law saying that Congress invalidly abrogated sovereign immunity in enacting title V of the ADA

IV

Why the Case Should Be Appealed

  1. The court’s reliance on Reickenbacker makes little sense. That case was decided three years before Tennessee v. Lane and five years before United States v. Georgia.
  2. Tennessee v. Lane used a variety of language, fundamental right being just one of them, to talk about how persons with disabilities were in a higher equal protection class when it came to the court system. At no point did it say that the decision only applied to fundamental rights. In fact, it said title II sovereign immunity with respect to persons with disabilities was on a case by case basis.
  3. No mention whatsoever is made in the opinion of United States v. Georgia, which held that if a situation rose to the level of a constitutional violation, then sovereign immunity was waived, but that case specifically did not address the question as to what would happen if there was disability discrimination that did not rise to the level of a constitutional violation. There are many cases out there (see ¶ 1 of takeaways § below), that say sovereign immunity has been validly waived even though fundamental rights are not involved.

V

Takeaways:

  1. The case should definitely be appealed. The court’s analysis of Tennessee v. Lane and its omission of United States v. Georgia are particularly troublesome. Also, sovereign immunity can be forcibly waived even where fundamental rights are not involved, such as in this case: Association for Disabled Americans v. Florida International University, 405 F.3d 954 (11th 2005). Finally, sovereign immunity does not apply to injunctive and declaratory relief actions.
  2. To my mind, this was a case that the plaintiff should have been able to get pass sovereign immunity on, or at least make a solid argument on. What it illustrates is the danger of proceeding pro se. Considering the nature of my practice, I am fully aware of how difficult it is for persons with disabilities to get competent representation considering the resources they often lack. That leaves persons with disabilities having to turn to law schools, non-profit disability rights organizatons, protection and advocacy organizations (which vary widely in what they do and how they do), and pro bono departments of large firms to vindicate their rights.