2017 South Carolina Bar Convention
Employment & Labor Law Section Seminar
Friday, January 20, 2017
presented by The South Carolina Bar Continuing Legal Education Division
SC Supreme Court Commission on CLE Course No. 170440 Onboarding and Offboarding in the Digital Age—Protecting Your Trade Secrets and Confidential Information Against Unfair Competition
John C. Glancy Greenville, SC
PDA in the Workplace
Ashley C. Story Columbia, SC
Christina L. Rogers Columbia
Ashley C. Story, Duff, White & Turner, LLC Christy Rogers, Fisher & Phillips, LLP Roadmap
The Law Regarding Pregnancy Discrimination Young v. UPS Other Case Updates EEOC Guidelines Future Trends – Election and the Law Tips Q&A Pregnancy Discrimination Act and Title VII
PDA amended Title VII in 1978. Two pertinent clauses: 1. “because of or on the basis of pregnancy, childbirth, or related medical conditions “
2. “[employers must treat women affected by pregnancy] the same for all employment- related purposes . . . as other persons not so affected but similar in their ability or inability to work.” Young v. United Parcel Service 575 U.S. ____ (2015) Employee brought action against her employer, alleging that she was the victim of pregnancy discrimination in violation of the Pregnancy Discrimination Act (PDA). • Federal District Court granted summary judgment in favor of UPS; • 4th Circuit held that the employee failed to present direct evidence of discrimination or establish a prima facie case of discriminatory discharge on account of pregnancy under Title VII; • Vacated by U.S. Supreme Court and remanded to 4th Cir. – opinion by Breyer with 6-3 vote. Scalia authored dissent. Young v. United Parcel Service – Young’s Facts 1. Plaintiff was a part-time UPS driver 6. UPS promised to provide temporary who became pregnant in 2006. alternative work assignments to employees “unable to perform their 2. Doc says she should not be required normal work assignments due to an on- to lift greater than 20 lbs. first 20 the-job injury.” weeks of pregnancy and no more than 7. UPS would “make a good faith effort to 10 lbs. thereafter. comply . . . with requests for a 3. UPS requires drivers to lift up to 70 reasonable accommodation because of lbs. and 150 lbs. with assistance. a permanent disability” under the ADA. 8. UPS would give “inside” jobs to drivers 4. Young informed by UPS occupational who lost DOT cert because of a failed health manager that she could not medical exam, lost driver’s license, or return to work during pregnancy involvement in a motor vehicle because she couldn’t meet lifting accident. requirements. 9. Capital Division Manager told Young (in 5. Same manger determined Young response to request for accommodation) didn’t qualify for temporary that her pregnancy was “too much of a liability” and could “not come back” until alternative work assignment. she “was no longer pregnant.” 10. Young stayed on LOA w/o pay. Returned in 2007. Young v. United Parcel Service – Young’s Facts (Accommodations)* 11. Some employees received accommodations while suffering various similar or more serious disabilities incurred on the job. 12. Some employees received accommodations following injury, record unclear as to on-the-job or off- the-job injury. 13. Several employees received “inside” jobs after losing DOT certification. 14. Some employees were accommodated despite the fact that their disabilities occurred off-the-job. 15. Testimony from a 10 year employee revealed that “the only light duty requested [due to physical] restrictions that became an issue were with women who were pregnant.” Young v. United Parcel Service – The Issues and the Majority Major issue addressed by Court – Court will not accept the Young the parties’ disagreement about the interpretation – can’t look at interpretation of the PDA’s second pregnancy as a “most-favored- clause: nation” status. “[employers must treat women That is to say, the term “other affected by pregnancy] the same persons” doesn’t mean “any other for all employment-related persons.” purposes . . . as other persons not so affected but similar in their UPS argues second clause just ability or inability to work.” defines sex discrimination to include pregnancy discrimination – “. . . .when a court must consider a rejected. workplace policy that First clause accomplishes that distinguishes between pregnant objective. and nonpregnant workers in light If we take that stance, second of characteristics not related to clause is rendered void or pregnancy.” insignificant. (Dissent argues it is not superfluous. Check with Scalia.) Young v. United Parcel Service – The Issues and the Majority “[T]he second clause was intended to do more than that (add pregnancy to definition of sex discrimination) – it “was intended to overrule the holding in Gilbert and to illustrate how discrimination against pregnancy is to be remedied.” What then? Plaintiff can show disparate treatment through McDonnell Douglas and indirect evidence. “by ‘showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a discriminatory criterion illegal under’ Title VII.” Let’s Start with the Plaintiff – To establish a prima facie case on account of pregnancy under Title VII, the plaintiff must demonstrate that: (1) she was pregnant; (2) she suffered an adverse employment action; (3) at the time of the adverse employment action, she was performing her job satisfactorily; and (4) employer did accommodate others “similar in their ability or inability to work.” Burden-shifting …
To Employer Back to Employee Show employer’s proffered reasons Reliance on “legitimate, non- are in fact pretextual. discriminatory” reasons for Show that employer’s policies denying accommodation. impose a significant burden on pregnant workers. Reason cannot normally Show that employer’s policies are consist of claim that it was not sufficiently strong to justify burden. “more expensive” or “less Create a genuine issue of material convenient” to add pregnant fact (GIOMF) as to whether women to those “similar in significant burden exists by providing evidence that employer their ability or inability to accommodates a large percentage of work.” (No more Gilbert.) nonpregnant workers while failing to accommodate a large percentage of pregnant workers. (See Young’s facts.) Outcome for Young Court determines there is a genuine dispute as to whether UPS provided more favorable treatment to at least some employees whose situations cannot reasonably be distinguished from Young’s situation. She introduced evidence of three separate accommodation policies. 4th Circuit did not consider combined effects of 3 policies. Court did not determine whether Young created GIOMF as to whether UPS’s reasoning was pretextual. Vacated and remanded for 4th Circuit to handle. Other PDA Case Updates Guessous v. Fairview Property Investments, LLC, 828 F.3d 208 (2016) Former employee bringing suit is an Arab-American Muslim woman form Morocco Alleged various claims under § 1981 and Title VII – including race, religion, national origin, and pregnancy discrimination Case out of Eastern District of VA (granted employer’s motion for summary judgment) Vacated and remanded by Court of Appeals – Judge Gregory authored opinion: (1) – GIOMF existed as to whether her termination (due to insufficient work) was pretext for retaliation; (2) – GIOMF existed as to whether reason for termination was pretext for race, religion, national origin, and pregnancy discrimination; (3) – continuing violation doctrine applied; and (4) – GIOMF existed as to whether supervisor’s comments to employee were based on racial animus. EEOC Pregnancy Discrimination Guide Four Major Parts Part I- Provides guidance on the prohibitions under Title VII of the Civil Rights Act, as clarified by the PDA Part II- Addresses the impact of the ADA’s expanded definition of “disability” on employees with pregnant- related impairments Part III- Discusses other legal requirements affecting pregnant workers Part IV-Provides best practices for employers Prohibitions Under Pregnancy Discrimination Act Employer cannot fire, refuse to hire, demote, or take any other adverse action against a woman if pregnancy, childbirth, or related medical condition was a motivating factor in the adverse action Pay Job assignments Promotions Layoffs Hiring Fringe benefits (leave and health issues) What is “pregnancy”? Under the new guidelines, pregnancy is very expansive and includes: Potential or intended pregnancy, including conception (or decision not to conceive) Pregnancy Termination of pregnancy Childbirth Post childbirth, including lactation and breastfeeding Lactation
Employers must provide reasonable break times and a private place for breastfeeding employees to express milk
If an employer allows employees to change their schedules or use sick leave for routine doctor’s appointments to address non-incapacitating medical conditions, then females must be able to use sick leave or change their schedules for lactation-related issues Equal Access to Benefits
General Rule:
Employers have to treat women affected by pregnancy, childbirth, or related conditions the same as other employees who are similar in their ability or inability to work with respect to light duty, alternative assignments, disability leave, or unpaid leave. Light Duty
If an employer offers light duty for work-related conditions, it must offer light duty to pregnant workers who need it. Rationale: Employees with on- the-job injuries and employees with pregnancy-related conditions are similar in their ability or inability to work Parental Leave
Leave related to pregnancy, childbirth, or related medical conditions can be limited to women affected by those conditions Parental leave must be provided to similarly situated men and women on the same terms If an employer extends leave to new mothers beyond the period of recuperation from childbirth (bonding and care) it cannot lawfully fail to provide an equivalent amount of time for new fathers for the same purpose ADA and Pregnancy Discrimination
ADA Amendments Act of 2008: Question of whether an individual’s impairment is a covered disability should not demand extensive analysis
Even though pregnancy itself is not a disability under the ADA, many pregnancy-related medical conditions may be, despite the fact they are temporary impairments Medical Conditions Related to Pregnancy
Back pain Preeclampsia (pregnancy-induced high blood pressure) Gestational diabetes Complications that require bedrest Anemia Pregnancy-related carpal tunnel syndrome Depression Nausea After effects of a delivery “Reasonable Accommodation” Standard
Employees are entitled to reasonable accommodations for: Limitations resulting from pregnancy-related conditions that constitute a disability
Limitations resulting from the interaction of the pregnancy with an underlying impairment “Reasonable Accommodation” Expanded
Employers must also accommodate pregnant employees to the extent a worker’s normal, healthy pregnancy limits her ability to perform certain job duties, if the employer would accommodate an employee with similar limitations. Rationale: PDA requires that pregnant employees be treated the same as “non-pregnant employees who are similar in their ability or inability to work.” Examples Redistributing marginal or nonessential functions Modification of workplace policies Modification of work schedule Purchase or modification of equipment and devices Granting leave in addition to what is normally provided under sick leave Temporary assignment to light duty
Note: Undue hardship exception applies (significant difficulty or expense) Employer Health Plans
Employer health insurance plans must cover prescription contraceptives on the same basis as prescription medications that prevent medical conditions other than pregnancy Example: If employer health insurance plan covers preventive care for vaccinations, physical exams, and prescription drugs (BP and cholesterol), then prescription contraceptives must also be covered Employer Health Plan Coverage Exceptions
Abortion, except where life of the mother would be endangered if carried to term or medical complications have arisen from abortion
Religious Freedom Restoration Act (Burwell v. Hobby Lobby) Future Trends
• During candidacy proposed six weeks of paid leave to new mothers • No paternity or other caregiver leave • Would only apply to women who work for companies that do not provide paid leave What Can Employers Do? Implement a strong policy against pregnancy discrimination Evaluate restrictive leave policies Make it clear that reasonable accommodations are available to employees with pregnancy-related impairments Consult with pregnant workers to develop a plan for covering job duties while the worker is on anticipated leave What Can Employers Do?
Effectively train managers Respond to complaints promptly and effectively Ensure light duty policies that apply to some categories of employees with on-the-job injuries also apply to pregnant women Evaluate other workplace policies Check state and local laws for any additional (usually more expansive) requirements. QUESTIONS? Service Animals and Legal Ob- ligations: ADA, Dogs, Monkeys & More
William H. Floyd III Columbia, SC
2017 South Carolina Bar Convention
Wild Kingdom: ADA and Service Animals
William H. Floyd, III* APRIL 21, 2016 *Certified Specialist in [email protected] Employment and Labor Law (803) 253-8201
2017 South Carolina Bar Convention www.nexsenpruet.com 2
2017 South Carolina Bar Convention www.nexsenpruet.com 3 Public Facilities and Housing Accommodations
Employment
2017 South Carolina Bar Convention www.nexsenpruet.com 4 EMPLOYMENT
‣ ADA, Title I (private employers with 15 or more employees ‣ Rehabilitation Act, Section 501 and 504 ‣ Section 501 applies to federal agencies ‣ Section 504 applies to federal funded program or entity
2017 South Carolina Bar Convention www.nexsenpruet.com 5 EMPLOYMENT
‣ Title I of the ADA covers the equal opportunity for individuals with disabilities in the context of employment ‣ 42 USC §§ 12111 through 12117 ‣ Title I does not define what a “Service animal” is, however it is defined under Titles II and III of the ADA
2017 South Carolina Bar Convention www.nexsenpruet.com 6 WHO DOES THE ADA APPLY TO?
Protections apply to an otherwise qualified individual with a disability. See 29 CFR § 1630.2(o)(4).
2017 South Carolina Bar Convention www.nexsenpruet.com 7 PUBLIC FACILITIES AND ACCOMMODATIONS
‣ ADA, Title II – State and local government facilities and activities ‣ ADA, Title III – Public places (e.g. restaurants) ‣ Rehabilitation Act, §504 – federal government facilities and federal funding
2017 South Carolina Bar Convention www.nexsenpruet.com 8 HOUSING
‣ Fair Housing Act – applies to provide housing ‣ Rehabilitation Act, Section 504 – applies to federal housing and facilities ‣ ADA, Title II – applies to state or local government housing ‣ SCHAC – prohibits housing discrimination
2017 South Carolina Bar Convention www.nexsenpruet.com 9 EMPLOYMENT
2017 South Carolina Bar Convention www.nexsenpruet.com 10 EMPLOYMENT ‣ There are high prices to pay for refusing to allow employees to bring their service dogs into the workplace. ‣ See EEOC Press Release: Direct Optical to Pay $53,000 to Settle Disability Discrimination Suit. April 14, 2014.
‣ Employer denied an employee's request for the reasonable accommodation to bring her service dog to work because of her generalized anxiety disorder. The dog alerted her to oncoming panic attacks, helped alleviate symptoms during a panic attack, and could also do other tasks, such as retrieve small objects, retrieve her medical bag and guide her to an exit.
‣ They settled for $53,000 dollars.
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‣ Showing a Prima Facie Case of Disability ‣ Roush v. Westeac, Inc., 96 F.3d 840 (6th Cir. 1996) ‣ In order to establish a prima facie case of disability discrimination, a plaintiff must show that: ‣ (1) he has a disability; ‣ (2) he was qualified for the job; and ‣ (3) he was either denied a reasonable accommodation for his disability or was subject to an adverse employment decision based solely upon his disability.
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Roush v. Westeac, Inc., 96 F.3d 840 (6th Cir. 1996)
‣ Facts: ‣ Plaintiff’s kidney condition, although severe, was temporary, and did not constitute a disability within the meaning of the ADA because this condition did not presently substantially limit a major life activity. ‣ However, plaintiff’s bladder condition was chronic and caused her severe pain such that she could not engage in work without medication. Plaintiff therefore created an issue of material fact as to whether the bladder condition was a disability within the meaning of the ADA.
2017 South Carolina Bar Convention www.nexsenpruet.com 13 EMPLOYMENT: REASONABLE ACCOMMODATION VS. UNDUE HARSHIP
Reasonable Accommodation
‣ “Modifications or adjustments to the work environment that enable an individual with a disability who is qualified to perform the essential functions of the position; or…to enjoy equal benefits and privileges of employment as are enjoyed by other similarly situated employees without disabilities.
‣ Federal guidance suggests that permitting employees to use service animals may be a form of “reasonable accommodation” although Title I does not specifically mention service animals.
‣ See 29 C.F.R. Appendix to Part 1630 – Interpretive Guidance on Title I of the Americans with Disabilities Act Introduction, SS 1630.2(o) (“it would be a reasonable accommodation for an employer to permit an individual who is blind to use a guide dog at work even though the employer would not be required to provide a guide dog for the employee [under Title I]”).
2017 South Carolina Bar Convention www.nexsenpruet.com 14 EMPLOYMENT: REASONABLE ACCOMMODATION VS. UNDUE HARDSHIP
Undue Hardship
‣ An employee must provide a reasonable accommodation for the disabled employee unless doing so would constitute an “undue hardship” or would “pose a significant risk of substantial harm to the employee or others in the workplace.”
‣ See Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (2002), https://www.eeoc.gov/policy/docs/accommodation.hmtl.
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REASONABLE ACCOMMODATIONS
‣ When deciding whether an accommodation is reasonable, the employer is to consider (1) the particular job involved and its essential functions, (2) the limitations of the employee and how they can be overcome, (3) the effectiveness of the accommodation in enabling the individual to perform the job, and (4) the employee's preference. See Keever v. City of Middletown, 145 F.3d 809, 812 (6th Cir. 1998) (citing 29 C.F.R. § 1630.9(a)).
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‣ An employer’s wrongful refusal to allow a disabled person to utilize a service dog in the workplace can constitute a failure to provide a reasonable accommodation.
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‣ Example: Schultz v. Alticor/Amway Corp., 177 F. Supp. 2d 674 (W.D. Mich. 2001). ‣ Plaintiff’s basic job duty involved developing detailed design drawings of existing and proposed equipment and facilities layouts. Plaintiff had disabilities that caused hearing loss and mobility difficulties for which he used a service dog. His coworkers complained about the service dog, and his employer told him to stop bringing in the dog. ‣ The court rejected Plaintiff’s claim of disability discrimination, reasoning that the service dog did not aid the employee in performing the “essential functions” of his job. ‣ Employee’s job required working at a desk the vast majority of the time, his contact with other employees was minimal, and employee failed to identify any function of the job that required the aid of his service dog ‣ It was difficult for the court to imagine what the aid of a service dog would provide the employee in performing the various duties of his job
2017 South Carolina Bar Convention www.nexsenpruet.com 18 BONNETTE V. SHINSKEI, 907 F.SUPP.2D 54 (D.D.C. 2012)
‣ Court found that the employer, U.S. Department of Veteran’s Affairs, reasonably accommodated a completely blind employee’s need for a service dog even though on one occasion, a supervisor asked the employee to take the dog further away from a highly trafficked area to relieve itself
‣ Disabled employee felt that her employer’s request was highly unreasonable because she felt it was dangerous for her to walk farther away from the building
‣ Court held that the employer reasonably accommodated her disability – no reasonable jury would conclude that this accommodation was inadequate because of “one single incident that the employee perceived as insensitive.”
‣ The employer reasonably accommodated her in many ways: arranged more frequent vacuuming due to employees’ allergies and complaints, paid $800 for a special air filter for dog dander, addressed mistreatment from her coworkers about the service dog
2017 South Carolina Bar Convention www.nexsenpruet.com 19 AGOSTINO V. COLLIER TWP., 2010 WL 1992548 (W.D. PA. APR. 12, 2010) ‣ Court found that it was not a “reasonable accommodation” to have to provide a police officer, who had no sense of smell, with a K-9 dog.
‣ The officer’s claim was that his inability to smell rendered him unfit to perform his work as a police officer, such as detecting the smell of alcohol. His employer denied his request to be provided with a K-9 because it would be extremely costly for the unit, since the police unit had no other K-9 officers so it would be costly training.
‣ The officer failed to establish a prima facie case of discrimination. According to the court, the costs of providing the officer a dog “clearly did not exceed the benefits” of accommodating the employee.
‣ Also, the employee failed to demonstrate that his inability to smell rendered him unable to perform basic work functions. For example, court reasoned that there are other ways to detect to presence of alcohol. Therefore, there was no need to accommodate this disability.
2017 South Carolina Bar Convention www.nexsenpruet.com 20 BRANSON V. WEST, 1999 WL 1186420 (N.D. ILL. DEC. 10, 1999) ‣ Court granted a permanent injunction to an employee who was wheelchair-bound requiring her employer to allow her service dog to accompany her to work.
‣ Employer, a hospital, failed to make a reasonable accommodation for her where they denied her the accompaniment of her service dog while at work.
‣ Court held that this would be a “reasonable accommodation” for the hospital even though they argued that allowing the dog to accompany the employee to work would cause a “logistical nightmare” because it would require the hospital to prevent the dog’s contact with allergic or fearful patients and other employees.
2017 South Carolina Bar Convention www.nexsenpruet.com 21 TYPES OF SERVICE ANIMALS
‣ Under the ADA: “dogs” ‣ See Revised ADA Requirements: Service Animals (2010) https://www.ada.gov/service_animals_2010.htm ‣ There is also a separate provision that would allow miniature horses in some situations. 28 C.F.R. § 35.136(i); 28 C.F.R. § 36.302(c)(9). ‣ “Wild animals” as service animals, are rare, but lawsuits happen. Some cases have been reported as to their status as service animals in the public accommodation and household context
2017 South Carolina Bar Convention www.nexsenpruet.com 22 EMOTIONAL SUPPORT ANIMALS
‣ The ADA does not consider these types of animals to be “Service animals” as they are defined in the code. ‣ 28 C.F.R. § 35.104 (“[T]he provision of emotional support, well- being, comfort, or companionship do not constitute work or tasks for the purpose of this definition.”)
2017 South Carolina Bar Convention www.nexsenpruet.com 23 EMOTIONAL SUPPORT ANIMALS
‣ The ADA does, however, distinguish between emotional support animals and psychiatric service animals ‣ A “psychiatric service dog” is a dog that has been trained to perform tasks that assist individuals with disabilities to detect the onset of psychiatric episodes and lessen their effects. ‣ Tasks performed by psychiatric service animals may include reminding a handler to take medicine, providing safety checks or searches, turning on lights for individuals with PTSD, interrupting self-mutilation by persons with dissociative identity disorders, and keeping disoriented individuals from danger. See 28 C.F.R. § 36.104; Frequently Asked Questions about Service Animals and the ADA, U.S. Dept. of Justice, Civil Rights Division, Disability Rights Section (July 2015) https://www.ada.gov/regs2010/service_animal_qa.html
2017 South Carolina Bar Convention www.nexsenpruet.com 24 EMOTIONAL SUPPORT ANIMALS
‣ However, some laws such as the Fair Housing Act recognize emotional support animals
‣ The Fair Housing Act makes it unlawful to refuse to make reasonable accommodations in policies or practices when a person with a disability requires such an accommodation, which includes refusing to grant waivers to “no-pet” policies for persons who use assistance or support animals.
‣ This includes “emotional support animals,” which provide support that alleviate one or more identified symptoms or effects of a person’s disability.
‣ There are additional requirements under the fair housing act, however
‣ May ask for further documentation from your doctor that the animal provides emotional support to alleviate symptoms of your disability
Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs, Office of Fair Housing and Equal Opportunity (Apr. 25, 2013) http://portal.hud.gov/hudportal/documents/huddoc?id=servanimals_ntcfheo2013-01.pdf
2017 South Carolina Bar Convention www.nexsenpruet.com 25 SUMMARY
1. Qualified individual with a disability 2. Reasonable accommodation ‣ Service animal ‣ Emotional support animal 3. Undue hardship
2017 South Carolina Bar Convention www.nexsenpruet.com 26 PUBLIC ACCOMMODATIONS
2017 South Carolina Bar Convention www.nexsenpruet.com 27 ADA TITLES II AND III
‣ “Service animal” means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. See 28 C.F.R. § 36.104.
2017 South Carolina Bar Convention www.nexsenpruet.com 28 ADA TITLES II AND III
‣ The work or tasks performed by a service animal must be directly related to the individual’s disability.
2017 South Carolina Bar Convention www.nexsenpruet.com 29 ADA TITLES II AND III
‣ “Directly Related” ‣ This has been interpreted loosely. Plaintiffs must show “some evidence of individual training to set the service animal apart from the ordinary pet.” Baugher v. City of Ellensburg, 2007 WL 858627 (E.D. Wa. 2007) (quoting Prindable v. Ass’n of Apartment Owners, 304 F.Supp.2d 1245, 1256 (D.Haw.2003))
2017 South Carolina Bar Convention www.nexsenpruet.com 30 ADA TITLES II AND III
‣ “Directly Related” ‣ One case found that a small Shih Tzu/Poodle mix named Jazz was a service animal since it provided “minimal protection” and “retrieved small dropped items for a quadriplegic, who used a wheelchair for mobility.” DuBois v. Ass'n of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175 (9th Cir.2006).
2017 South Carolina Bar Convention www.nexsenpruet.com 31 ADA TITLES II AND III
‣ Examples of work or tasks include, but are not limited to: ‣ assisting individuals who are blind or have low vision with navigation and other tasks,
‣ alerting individuals who are deaf or hard of hearing to the presence of people or sounds,
‣ providing non-violent protection or rescue work, ‣ pulling a wheelchair, ‣ assisting an individual during a seizure,
2017 South Carolina Bar Convention www.nexsenpruet.com 32 ADA TITLES II AND III
‣ alerting individuals to the presence of allergens, ‣ retrieving items such as medicine or the telephone, ‣ providing physical support and assistance with balance and stability to individuals with mobility disabilities, and ‣ helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors.
28 C.F.R. § 35.104
2017 South Carolina Bar Convention www.nexsenpruet.com 33 ESTABLISHING THE CONNECTION
‣ In order to establish that a dog is a service animal, it is not necessary to provide evidence of certified training, nor is it necessary to provide documented evidence of training rather than only testimony.
2017 South Carolina Bar Convention www.nexsenpruet.com 34 ESTABLISHING THE CONNECTION
‣ Kennedy House, Inc. v. Philadelphia Com’n on Human Relations, 143 A.3d 476 (Commonwealth Court of PA 2016)
‣ Here, the court found an insufficient nexus between a person’s disability, which affected her mobility, and her dog who helped remind her to take her medications and get out of bed.
2017 South Carolina Bar Convention www.nexsenpruet.com 35 ESTABLISHING THE CONNECTION
‣ See Cordoves v. Miami-Dade County, 92 F.Supp.3d 1221, 1230 (S.D. Fl. 2015) ‣ The plaintiff demonstrated a genuine dispute of fact as to whether his dog was a service animal where the dog was trained to detect when the plaintiff was about to have a panic attack by jumping on the plaintiff, pawing her, nudging her chin, and calling on her caretaker to assist in order to alert her.
2017 South Carolina Bar Convention www.nexsenpruet.com 36 ADA TITLES II AND III
‣ Some Exceptions – a person with a disability can ONLY be asked to remove his service animal from the premises if:
‣ (1) the dog is out of control and the handler does not take effective action to control it; or
‣ (2) the dog is not housebroken ‣ Before asking the handler to remove the dog from the premises, the staff must offer the person with the disability the opportunity to obtain goods or services without the animal’s presence.
‣ Revised ADA Regulations Implementing Title II and Title III (2010), https://www.ada.gov/regs2010/ADAregs2010.htm
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‣ The crime deterrent effects of an animal's presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition. ‣ 28 C.F.R. § 36.104
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‣ Establishments that sell or prepare food must allow service animals in public areas even if state or local health codes prohibit animals on the premises. ‣ https://www.eeoc.gov/facts/restaurant_guide.html
2017 South Carolina Bar Convention www.nexsenpruet.com 39 ADA TITLES II AND III
‣ In order to bring an ADA claim under the public accommodation prong, the discrimination must be intentional.
‣ Sears v. Bradley County Government, 821 F.Supp.2d 987 (E.D. Tn. 2011)
‣ Courthouse employee refused Plaintiff’s entry into the courthouse because he genuinely believed that animals were not allowed into the courthouse, even though it turns out Plaintiff’s dog was a service dog under the ADA.
‣ Court stated that it is not enough for a plaintiff to show that the defendant acted voluntarily in performing some action against the disabled person, such as denying entry into a building. The courthouse employee was not “motivated by discriminatory intent” but acted on some other benign motive (here, his genuine confusion and lack of knowledge as to how to handle service animals). Therefore, defendants were entitled to summary judgement on Plaintiff’s ADA claim.
2017 South Carolina Bar Convention www.nexsenpruet.com 40 ADA TITLES II AND III
‣ When it is not obvious what service an animal provides, only limited inquiries are allowed by staff at a public place:
‣ (1) Is the dog a service animal required because of a disability? ‣ (2) What work or task has the dog been trained to perform?
Revised ADA Regulations Implementing Title II and Title III (2010), https://www.ada.gov/regs2010/ADAregs2010.htm
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‣ STAFF CANNOT ASK: ‣ About the person’s disability ‣ Ask for medical documentation ‣ Require special identification or training documentation ‣ Ask for the dog to demonstrate its ability to perform the work or task
Revised ADA Regulations Implementing Title II and Title III (2010), https://www.ada.gov/regs2010/ADAregs2010.htm
2017 South Carolina Bar Convention www.nexsenpruet.com 42 ADA TITLES II AND III – MINIATURE HORSES
‣ Despite the language of 28 C.F.R. § 36.104, entities must make reasonable modifications in policies to allow individuals with disabilities to use miniature horses if they have been individually trained to do work or perform tasks for individuals with disabilities. See 28 C.F.R. § 35.136
2017 South Carolina Bar Convention www.nexsenpruet.com 43 ADA TITLES II AND III – MINIATURE HORSES
Anderson v. City of Blue Ash, 798 F.3d 338 (6th Cir. 2015) ‣ Plaintiff alleged that her miniature horse named Ellie was a service animal under the ADA because it was trained to assist her by steadying her as she walks so that she can enjoy recreation and exercise. She brought suit against the city, who claimed that her horse threatened the City’s “legitimate safety requirements” and was requiring her to get rid of the horse. ‣ Court found that even though Plaintiff only needed the horse at certain times and places it can still qualify as a service animal. ‣ ADA does not specify the amount or type of training that a horse must undergo to qualify as a reasonable modification for a disabled person ‣ Additionally, because Plaintiff produced evidence that it would be reasonable for her to keep the miniature horse at her house and because she disabled and the miniature horse qualified as a service animal under the ADA, the defendant’s claim for summary judgment was precluded.
2017 South Carolina Bar Convention www.nexsenpruet.com 44 ADA TITLES II AND III – MINIATURE HORSES
‣ See also Access Now, Inc. v. Town of Jasper, 268 F.Supp.2d 973 (E.D. Tn. 2003) ‣ Miniature horse which 9-year-old girl suffering from spina bifida sought to keep at her house was not a “service animal” under the ADA, where the horse had only “some training” to be well-behaved around people and follow basic commands, and where the horse’s owner was not disabled within the meaning of the ADA and did not perform tasks for the owner’s benefit to help her overcome or deal with her disability.
2017 South Carolina Bar Convention www.nexsenpruet.com 45 MONKEYS
Newberger v. Louisiana Dept. of Wildlife and Fisheries, 2012 WL 3579843 (E.D. La. 2012).
‣ Plaintiff suffered from autism and brought suit challenging a law that made it illegal to possess a non-human primate unless it was used to aid an and assist an individual with a disability. Plaintiff was given a citation for violating this law. She brought suit alleging that her four monkeys were service animals under the ADA, therefore she was entitled to an accommodation for her disability.
‣ The court held that although her enjoyment of dressing the monkeys had a calming effect on the plaintiff, she failed to allege how the monkeys were trained to do tasks or what tasks they performed to accommodate her disability. Additionally, although plaintiff submitted into evidence an email from a hospital nurse that indicated the monkey had assisted with clearing the plaintiff’s airway while she slept or had a seizer, there was no indication that the monkey was trained or an explanation of how a constricted airway related to the plaintiff’s disability (autism).
2017 South Carolina Bar Convention www.nexsenpruet.com 46 SUGAR GLIDERS
Capell v. NC Div. of Vocational Rehabilitation Services, 2011 WL 3501894 (W.D. N.C. 2011). ‣ Plaintiff brought suit against a medical center alleging that he was discriminated against when his animals were denied access into his in-patient recovery room.
‣ However, the court held that the medical center provided non-discriminatory rationale for the denial of the animals, namely a concern for the safety and health of Plaintiff and other patients, and the risk of post-surgical infection from animals.
‣ Furthermore, the court stated that the definition of “service animal” was limited to “dog[s] that are trained to do work or perform tasks for the benefit of an individual with a disability…” All other animal species, whether wild or domestic, trained or untrained, are not services animals under this definition, so the sugar gliders did not qualify. Therefore, the plaintiff failed to plead sufficient facts to support an ADA claim against the medical center because his sugar gliders are not considered service animals.
2017 South Carolina Bar Convention www.nexsenpruet.com 47 2017 South Carolina Bar Convention
Wild Kingdom: ADA and Service Animals
William H. Floyd, III* APRIL 21, 2016 *Certified Specialist in [email protected] Employment and Labor Law (803) 253-8201
2017 South Carolina Bar Convention www.nexsenpruet.com