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.