Short Term Depression is not a Disability

In a recent case out of the Third Circuit Court of Appeals, Seibert v. Lutron Electronics, the court held that depression that was not permanent and caused by specific non-recurring events did not qualify as a disability under the ADA.  In Seibert, the plaintiff-employee suffered from depression that was caused by "her fiance's alcohol consumption, the stress of planning her wedding, financial problems, and her grandfather's illness."  This depression lead to the employee taking a leave of absence from April 2005 to October of 2005.  However, upon returning to work the employee continued to have attendance issues, which the court found were not attributable to depression, and the employer offered the employee the option to either resign her position or be terminated, with the employee choosing to resign.

The court explained that "[t]ransitory, temporary or impermanent impairments" do not meet the definition of an impairment that substantially limits a major life activity under the ADA.  In this case, accordingly, the court found that the depression was temporary.  The ADA itself defines transitory as lasting less than 6 months. 

The case is helpful for school districts in the ADA and Section 504 employment context in that it shows that short term depression caused by a specific event is not a disability.  Likewise, it is helpful under Section 504, which also applies to most school district, because Section 504 borrows the definition of disability from ADA.  Moreover, while perhaps a little less clear, this could also have implications for students in that students who claim to be disabled under Section 504 and/or IDEA due to depression might not so qualify if the depression is short term in nature and attributable to a specific event. 

DOES AMERICANS WITH DISABILITIES ACT AMENDMENTS ACT OF 2008 APPLY RETROACTIVELY?

 

In 2008, President Bush signed the Americans with Disabilities Act Amendments Act (“ADAAA”), which expanded the protections of the ADA to include those who have an actual or perceived physical or mental impairment “whether or not the impairment limits or is perceived to limit a major life activity.” In passing this bill, Congress expressly rejected several Supreme Court decisions that took a more narrow view of the ADA. The question that remains is what standard applies to cases of alleged discrimination that occurred prior to the ADAAA?

 

It appears that several courts have looked at this issue and reached different conclusions. In Rohr v. Salt River Project Agricultural Improvement & Power District, out of the Ninth Circuit Court of Appeals, while not addressing the issue directly, the court noted that “the ADAAA sheds light on Congress’ original intent when it enacted the ADA” in 1990 and suggests it may be appropriate to read the amendments to allow for protection to a broader class of individuals, even in cases where the alleged discrimination occurred prior to the enactment of the ADAAA. However, the United States District Court for the Northern District of Indiana reached a different conclusion in the matter of Brooks v. Kirby Risk Corp. and found that the more limited standard endorsed by the Supreme Court applies to claims prior to the ADAAA, which went into effect in January of 2009, should be applied to these types of cases. The Brooks court notes that the Seventh, Fifth, Sixth and D.C. Circuit Court of Appeals have taken the view that the broader protections of the ADAAA only apply to actions of alleged discrimination after its enactment, while the Ninth, Tenth and Eleventh Circuits have declined to decide the issue, but at least implied they could by applied to actions prior to the effective date of the ADAAA.

 

Interestingly, if the Circuit Courts continue to split on this issue, it may be the Supreme Court, whose analysis of the ADA was expressly overturned by the ADAAA, that may get the last word on this issue. Unless, of course, Congress decides that the Supreme Court gets it wrong and decides to amend again.   

ADA AND SECTION 504 ANTI-RETALIATION PROTECTIONS NOT LIMITED TO INDIVIDUALS WHO ARE DISABLED

The Ninth Circuit Court of Appeals has found in the case of Barker v. Riverside County Office of Education (October 23, 2009) that the anti-retaliation provisions of Section 504 of the Rehabilitation Act of 1973 and the ADA apply even if the person who claims to have been retaliated against is not themselves disabled. In Barker, a special education teacher voiced concerns that her employer’s special education program was not in compliance with federal and state law and then, along with a coworker, filed a complaint on this alleged non-compliance with the U.S. Department of Education’s Office for Civil Rights. In response to this complaint, according to the employee, the school district retaliated by reducing her case load, intimidating her, excluding her from meetings and other activities that, according to the employee, led to an intolerable work environment.

The employee filed suit claiming she had been retaliated against for filing the complaint and voicing concerns about the alleged non-compliance of the district’s special education program. The court was asked to determine whether this teacher, who herself was not disabled, was afforded the protections of the anti-retaliation provisions of the two statutes. Looking at both statutes the court found that both protected "any person" who was retaliated against. The court further noted its belief that Congress intended to protect other individuals in recognition of the fact that disabled individuals may need assistance in vindicating their rights.

The lesson of Barker is clear. If school districts or other educational entities have employees who complaint internally or to outside agencies about the treatment provided to disabled students or employees, they must be treated the same as other employees and any appearance of retaliation for the complaints must be avoided.

ADA Amendments: retroactive application will find more disabled claimants

In a case of what may be the future, the U.S. Court of Appeals for the Sixth Circuit remanded a case for further consideration of the “broad” impact of the Americans With Disability Act Amendments.

In Jenkins v. National Board of Medical Examiners, the plaintiff, a third year medical student, sought and was denied extended time on the United States Medical Licensing Exam.  Prior to then, he had, since a young student, been identified with a reading disorder and received additional time. The trial court rejected his claim under the pre-amendment ADA.  During the appeal, the Amendments took effect and the appeals court reinstated the claim.

While the case was about a legal technical issue involving the retroactive effect of new laws, the court discussed the Amendments. The future of such litigation is suggested by the court highlighting that the under the Amendments the definition of “disability” is “broadened” “to the maximum extent permitted by the terms of the [Amendments],”  with the term “substantially limits” being treated similarly.  Although the discussion was in the nature of information not mandate, it appears that the courts will not hold back from finding substantially limiting disabilities in far greater numbers than before.

Eventually, this case will come to end.  It will be interesting to see how a person who has achieved so much academic success, far more than the statistically normal person does, can be substantially limited in the life activity of reading.  If that is the end result, it appears anyone performing below average will end up identified as disabled.  With all due respect to the law, struggling for success is not a disability. But that may be the law.

Protect your right to the ADA religious exemption

Religiously-affiliated independent schools and colleges need to take certain steps to have the protection offered by the religious exemption in the Americans With Disabilities Act, which states: “The provisions of this subchapter shall not apply to . . . religious organizations or entities controlled by religious organizations, including places of worship.” 42 U.S.C. § 12187. Whether an institution is entitled to the exemption is a factual question. A summary of factors is at the end of this entry.  

The Third Circuit “touched” on the issue of ADA’s religious exemption as applied to private schools in Doe v. Abington Friends School, 480 F.3d 252 (3d Cir. 2007). The plaintiffs claimed Abington Friends School (“AFS”) discriminated against their son, a student with disabilities (ADHD and learning disabled) attending the school. Among other things, the plaintiffs claimed AFS used improper discipline and failed to accommodate him.  

Procedurally, the issue was whether the District Court erred by not allowing discovery first after the school moved for summary judgment based on the exemption. Not surprisingly, the Third Circuit reversed and vacated. But it doing so, it noted as follows. 

Whether [AFS] qualifies for the ADA's religious exemption is a mixed question of law and fact, the answer to which depends, of course, on the existence of a record sufficient to decide it. The ADA's exemption can apply only if [AFS] (1) is a religious organization or (2) is controlled by a religious organization. See 42 U.S.C. § 12187No court of appeals has yet fully examined the ADA's religious exemption, and the undeveloped state of this record makes us reticent to do so now. Whatever the scope of that exemption, though, the District Court here needed to allow the parties to develop the record as to potentially relevant facts. The extent of discovery, of course, is within the Court's discretion, but the circumstances of this case require more than was given.

Doe, 480 F.3d at 258 (footnote omitted). Although the District Court’s decision was reversed on the procedural issues, the trial court’s opinion, Doe v. Abington Friends School, slip. op 04-4647, 2005 WL 289929 (E.D. Pa.), is still instructive. 

The court observed that only one other case, White v. Denver Seminary, 157 F. Supp. 2d 1171 (D. Colo. 2001), had considered the religious exemption under Title III of the ADA. Considering that case, together with the U.S. Department of Justice’s regulations, 28 CFR Part 36, App. B, interpreting the religious exemption, the court in Doe looked to the following factors: AFS is owned and controlled by the Abington Monthly Meeting of the Religious Society of Friends (“church”); the church ensures AFS adheres to Quaker principals, manages AFS’s, and selects the Headmaster; students are taught Quaker principals and values and are required to attend a weekly Quaker meeting; and AFS is classified by the Commonwealth of Pennsylvania as religiously affiliated. 

Later that same year, another district court case addressed applicability of the religious exemption to a disability discrimination claim. Marshall v. Sisters of the Holy Family Of Nazareth, 399 F. Supp. 2d 597 (E.D. Pa. 2005).  Plaintiffs claimed the private religious primary school violated the ADA and § 504 of the Rehabilitation Act when it refused to readmit the student for the following school year. The court found the school properly met the religious exemption test looking at similar factors: Nazareth Academy is a religious organization or is controlled by a religious organization; the Academy is controlled and solely operated by a canon law religious community composed of Roman Catholic nuns; the Academy has a religious mission; the curriculum includes religious instruction and focus on religious principals; and the Academy is a § 501(c)(3) tax-exempt organization based on affiliation with the Roman Catholic Church. 

Both cases repeat the regulatory appendix’s statement that the religious exemption is “very broad.” 28 CFR Pt. 36, App. B (page 682) (2004). The source and authority for this interpretation is not identified in the cases or regulations. The statute itself is quite direct and clear that Title III does not apply to “religious organizations or entities controlled by religious organizations. . . .” It makes no reference to either broad or limited scope. Given the Supreme Court’s recent ruling regarding plain statutory language, see Arlington Central School District v. Murphy, 548 U.S. 291 (2006), and the general tendency to view broad regulatory pronouncements with skepticism, private schools should not put stock into regulatory protection. Rather, taking in all information and the important factors assessed by the court, religiously affiliated schools need to review their currency with those factors and make changes if desired.

Although the claims of disability discrimination against independent schools and colleges are not yet numerous, they do occur. As a matter of responsible risk-assessment, an institution should review its circumstances against the apparent salient factors, including—

  • Curriculum
  • Religious instruction and or service requirements
  • Religious mission
  • Board membership
  • Ownership or control by a religious entity
  • Affiliation or sponsorship by a religious entity
  • Head of school is selected by the religious entity
  • State recognition or categorization
  • Ownership of school property
  • Tax status
  • Funding support

The religious exemption is based on a desire to protect the free exercise of religious belief. Still, there may be limits. In the end, entitlement to the exemption depends on whether there is enough religion in the entity; the law, however, does not say how much is enough. At some point, the facts of the entity’s religious nature could be trumped by the facts of the bad conduct. 

The ADA's business necessity defense

The Ninth Circuit Court of Appeals, sitting en banc, in Bates v. United Parcel Service, Inc., re-visited the issue of the business necessity defense and an employer’s safety-based qualification requirements. The court ruled that a government safety rule that does not apply directly to the job at issue but is nonetheless related to the job’s requirements can be considered when determining whether the employer’s safety requirement is proper or discriminatory. 

In this case, UPS had a rule that required all package car drivers to meet a U.S. Department of Transportation (“DOT”) hearing standard. The DOT standard, however, applied only to drivers of trucks over 10,000 pounds gross vehicle weight. UPS applied the rule to all drivers, a rule that was discriminatory on its face.

A class of hearing impaired potential drivers challenged the rule. The trial court found for the plaintiffs, but the Court of Appeals, en banc, reversed and remanded for further proceedings in light of its “clarification” of the law.

The question was whether UPS’s action was defensible under the business necessity rule. “It may be a defense to a charge of discrimination . . . that an alleged application of qualification standards . . . has been shown to be job-related and consistent with business necessity, and that such performance cannot be accomplished by reasonable accommodations. . . .” 42 U.S.C. § 12113(a).  As an initial matter, the employer has the burden of proving what are the essential functions of the job (in distinction from qualification standards). The employee then must show he can perform the essential functions. If so, then the issue turns to whether the qualification standard (the DOT hearing requirement) satisfies the business necessity rule, a matter the employer must prove.

UPS had to prove the connection between hearing at the employer-adopted DOT standard and the essential function of driving a package truck safely.  “[W]hen an employer asserts a blanket safety-based qualification standard – beyond the essential job function – that is not mandated by law and that qualification standard screens out or tends to screen out an individual with a disability, the employer – not the employee – bears the burden of showing that the higher qualification standard is job-related and consistent with business necessity, and that performance cannot be achieved through reasonable accommodation.” Bates, slip. op. at 16909-910. Thus, to prevail on the business necessity defense, the employer must show the standard is: job-related; consistent with business necessity; and reasonable accommodations are not possible. The burden was on UPS to prove its contention – that, in order to be a safe driver, the employee must meet the hearing qualification; the employee did not need to disprove UPS’s position.

In reading this conclusion, the Bates decision repudiated a previous 9th Circuit case that imported the concept of bona-fide occupational qualification into ADA claims. And, in the end, this distinction is the needed “clarification” noted above that required an en banc decision.

Advanced placement and disabled students: U.S. Department of Education guidance

In a December 26, 2007 "Dear Colleague" letter, the U.S. Department of Education addressed "an issue involving students with disabilities seeking enrollment in challenging academic programs, such as Advanced Placement and International Baccalaureate classes or programs (accelerated programs)."  The letter would be applicable to any covered entity.

Apparently, some schools refuse to allow qualified disabled students the right to participate in such programs or require the student’s to forego some other right. These actions, said the Department, "are inconsistent with Federal law, and the Office for Civil Rights (OCR) in the U.S. Department of Education will continue to act promptly to remedy such violations where they occur."

OCR notes that "[i]t is unlawful to deny a student with a disability admission to an accelerated class or program solely because of that student’s need for special education or related aids and services, or because that student has an IEP or a plan under Section 504." (Footnote omitted.)

[I]f a qualified student with a disability requires related aids and services to participate in a regular education class or program, then a school cannot deny that student the needed related aids and services in an accelerated class or program.  For example, if a student’s IEP or plan under Section 504 provides for Braille materials in order to participate in the regular education program and she enrolls in an accelerated or advanced history class, then she also must receive Braille materials for that class.  The same would be true for other needed related aids and services such as extended time on tests or the use of a computer to take notes.

Schools are not, however, required to admit a student who happens to have a disability to advanced courses if the student is not otherwise qualified for the program. But the qualification requirements must be proper and not, among other things, tend to disqualify a student because of a disability. The example above of a visually impaired student is illustrative: being able to visually read text would probably not be a proper qualification. Having certain background or prerequisite knowledge probably would be proper.

Although OCR’s jurisdiction falls under Section 504 and the Americans With Disabilities Act, the letter notes that the advice is issued after consulting with the Office of Special Education Programs, which oversees the IDEA. OCR offers technical assistance to schools interesting in improving their programs. The guidance contains contact information.

 As with all things involving disabilities and education, each decision must be individualized. And ultimately, the rationale behind any decision must be clearly articulable, proper, and objective in order to be convincingly proper and defensible.

No second helpings: limits on ADA claimants collecting disability

Guest blogger, Mark Fitzgerald, writes about the tension between employment disability discrimination claims under the Americans With Disabilities Act (“ADA”) and claims for disability benefits. The legal concept of “estoppel” in such circumstances generally holds that an employee cannot certify to being disabled in order to obtain disability benefits, while claiming in court that she is not disabled and qualified to work. Mark is a member of the Education Law Group with a practice emphasis in Labor and Employment. Click here to find out more about Mark’s background and contact information.

 In a case that underscores the federal courts’ heightened scrutiny of employment disability discrimination claims following a plaintiff’s successful application for Social Security Disability, the United States District Court for the Middle District of Pennsylvania granted summary judgment for the employer because plaintiff-employee was estopped from raising claims under the ADA  after successfully applying for Social Security Disability benefits.

In an ADA employment discrimination case, a plaintiff must initially be able to show

a “prima face” case:  (1) that she has a disability within the meaning of the ADA, (2) is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations, and (3) was subject to some adverse action as a result of the disability. In Jones v Southcentral Employment Corp., 488 F. Supp. 2d 475 (M.D. Pa. 2007), the employer sought summary judgment because plaintiff’s actions and the facts leading up to her discrimination claim prevented her from meeting this initial burden.

The employer argued that settled principles of judicial estoppel, a doctrine that prevents a litigant from asserting a position inconsistent with a position asserted in a previous proceeding, precludes the plaintiff from establishing an essential element of her prima facie case, namely, that she was “qualified” for the position in question.

The court agreed. In granting the motion, the Middle District relied on Cleveland v. Policy Management Corp., 526 U.S. 795 (1999), in which the Supreme Court held that to survive summary judgment, an ADA plaintiff who previously was awarded disability benefits must provide a sufficient explanation to reconcile a sworn statement claiming “total disability” and later asserting an ability to “perform the essential functions of the job.”

Simply put, Cleveland added additional criteria to the prima facie case where judicial estoppel is implicated. Taking Cleveland a step further, Jones underscores that merely explaining away the inconsistencies of past statements is not enough to satisfy the Cleveland criteria.

In an attempt to explain away her conflicting claims, the plaintiff in Jones ineffectively argued that in contrast to an ADA claim, the Social Security Administration does not take into account reasonable accommodations in evaluating qualifications for benefits and, therefore, the two claims should be considered mutually exclusive.

The Middle District did not buy her explanation for several reasons. Most notably, merely identifying the differences in the two statutory schemes was not enough to cure her conflicting statements. The court stressed such clear inconsistencies in prior statements had to be supported by fact. The plaintiff could not demonstrate a sufficient explanation for her prior statements, especially in light of the fact she never requested reasonable accommodations from her employer after she was injured in the first place.