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.

Ability grouping: issues and concerns?

Recently, a reader wrote with a question and a situation.   

“I was looking at your website, and I was unable to find the answer to this question.  Is ability grouping allowed under Pennsylvania law?  In other words, a school has four classes for each grade level, and the students are grouped into four ability levels, from high achieving to low.  I've heard conflicting answers would like your insights.”

As readers know, I cannot give specific legal advice through this Blog.  But I can give my thoughts, generally (and welcome to hear yours), about this situation, so here goes. 

I am not aware of any specific legal prohibitions on ability grouping as a general matter; however, certain circumstances might present problems for a school. But first, what we do know is that gifted and special education both support the notion of, at least, narrow ability grouping. 

At the higher end (whether gifted, disabled, or neither), many schools offer Advanced Placement and honors courses, which by their nature, are groupings by ability to achieve in that subject. Many schools also use a “pull-out” style of program to offer enrichment to gifted children, especially at the elementary level (I am not addressing this further, today).

On the opposite side, special education laws have always presented tension between the opposite forces of placement in the least restrictive environment (“LRE”), known as “inclusion” or “mainstreaming” versus grouping by common needs for more intensive instruction.  

This tension can, I believe, carry over where ability grouping and the individual LRE right meet each other. Ability grouping is a broader application of common grouping for intensive, level-appropriate instruction. This does seem to make sense. But, depending on the make-up of the various ability levels, a student or group of students might argue the grouping violates the LRE right. That is, a particular level might have a statistically too high number of special education students thereby rendering the apparent LRE placement illusory.

In such a case, that would essentially be a segregated setting, which brings up a final concern: discrimination. If minority or protected class students make up a disproportionate number of students in a particular track, the school could be open to charges of improper segregation and discrimination.

The lesson is that a school using ability grouping is probably doing so for legitimate pedagogical reasons. But the school must be aware of how the student population is grouped as factors other than just ability can have serious consequences. 

Unlawful treatment of employees with caregiving responsibilities

The U.S. Equal Employment Opportunity Commission (“EEOC”) last year issued an enforcement guidance regarding discriminatory conduct toward employees with caregiving responsibilities. The guidance, which is used by EEOC investigators, provides data regarding workplace demographic changes and scenario examples of conduct that might be discriminatory.

Although the status of being a caregiver (whether to a child, adult, or a disabled relation) alone is not a protected classification, discriminatory conduct toward a caregiver can violate anti-discrimination laws when the conduct is related to the caregiver’s otherwise protected status. For example, refusing to grant tenure to a female professor who tool a leave of absence to care for a child. Like this example, a number of the scenarios and underlying case-law citation involve educational institutions. 

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.

Glass houses and investigation of employment discrimination

Employee claims employer’s practices and or supervisors are discriminating. Employer investigates the claims and finds, not discrimination, but other facts showing conduct justifying termination. Did the employer retaliate? 

At least in the case below, the U.S. Seventh Circuit Court of Appeals said no. Given that employer investigations are a necessary part of good employment practices, the ruling makes sense. But employers might consider making sure that policies and practices are clear regarding how the employer may use information uncovered in an investigation.

The employees, university police officers, in Nichols v. Southern Illinois University, --- F.3d ---, 2007 WL 4553649 (7th Cir.), claimed retaliation arising from the University’s investigation into their complaints of discrimination.

They claimed, among other things, that they were denied “upgrades” (temporary promotions) based on race. Eventually, the officers wrote complaint letters to the University President leading to a University investigation regarding their complaints. The investigation uncovered facts and circumstances that resulted in formal dismissal charges against two of the officers. After separate hearings, the Merits Board found just cause for the charges against the two officers. 

After noting that the Merit Board, and not the University, actually dismissed the officers, the court observed that the officers were dismissed for reasons that were separate and distinct from the discrimination claims (reason such as gross insubordination, personal use of police cars, making false statements, failure to cooperate with an investigation, and “their baseless allegations against fellow officers.”). Their termination was based on their “objectively baseless allegations” against the other officers. Those officers’ retaliation claims, based on the Merit Board’s action, failed. 

Of course, the court addressed more than just retaliation. The court also considered a third officer’s claim of discrimination when he was placed on paid administrative leave pending a fitness-for-duty investigation arising from how he handles one particular situation. The court first determined that such paid administrative leave is not a materially adverse action. 

The court also rejected the officer’s discrimination claims based on “disproportionate” assignments to one, less desirable, campus rather than another. The court had little trouble dismissing this claim, particularly as the evidence showed the officers often requested assignment to the campus in question and that, in any event, the officers did not suffer a materially adverse employment action (change in compensation, etc.; reduced career prospects; or other negative change in the workplace). 

To me, however, the retaliation issue is the interesting part of the case. I believe it illustrates what is meant by not throwing stones in glass houses. 

TItle IX, gender discrimination, and money damages

The question of money damages under various anti-discrimination / inclusion education statutes seems to be a hot subject recently. The recent en banc Third Circuit Court decision in A.W. v. The Jersey City Public Schools, 341 F.3d 234 (3d Cir. 2007), discussed in another entry, ruled that there is no cause of action under Section 1983 for money damages based on a violation of IDEA and or Section 504.  

A recent federal district court case from Puerto Rico, Frechel Rodriguez v. Puerto Rico Dept. of Educ., 478 F. Supp. 2d 191 (D. Puerto Rico 2007) (unfortunately, I have not found a public domain copy), reached a similar outcome in a Title IX-based claim of gender discrimination. Specifically, the issue was whether a plaintiff has a right of action under § 1983 to redress violations of Title IX.  According to the case, the Sixth and Eighth Circuits have held such a right exists, but the Second, Third, and Seventh Circuits have ruled such a § 1983 claim is barred under the Sea Clammers doctrine announced in Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1 (1981).  The Frechel Rodriguez decision dismissed the Title IX-based § 1983 claims.

So what does this trial court case from Puerto Rico mean for us? 

While the Frechel Rodriguez case is statistically not likely to become a Supreme Court case (indeed, it was not appealed), it clearly demonstrates an area in which the federal courts of appeals disagree. 

Interested parties should look ahead for such “splits among the circuits” in order to raise and preserve possible appeal issues. Disagreements among the courts is a factor the federal appeal courts and the Supreme Court consider when reviewing federal statutory claims or constitutional rights. Not surprisingly, if all the cases are going one way, the chances of convincing the court to go the other way on appeal are not good.  In contrast, a split gives the case and the issue juridical life.

In Title IX actions, litigants need to be cognizant of the “split of authority” highlighted in Frechel Rodriguez when strategizing about their cases.