Previously, we have discussed here and here whether a plasma center is a place of public accommodation under title III. That discussion shows there is already a split in the Circuit Courts on the issue. On August 30, 2019, the Third Circuit weighed in on this in Matheis v. CSL Plasma Inc., A published decision. They came down in favor of a plasma center as a place of public accommodation. The facts in this case are pretty straightforward. Here, you have a retired police officer with PTSD who routinely and safely donated plasma roughly 90 times in 11 months. When he obtained a service dog, the plasma center refused to allow him to donate blood arguing that anybody who had a service dog for PTSD was automatically prohibited from donating blood because they must have extreme anxiety too severe to undergo safely the donation process. The retired police officer loses on summary judgment and appeals to the Third Circuit. The blog entry is divided into the categories of court’s reasoning and takeaways. I imagine the reader will want to read the whole thing.

I

Court’s Reasoning

  1. 42 U.S.C. §12181(7)(F) says that a place of public accommodation includes, “a laundromat, dry cleaner, bank, barbershop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a healthcare provider, hospital, or other service establishment (emphasis mine).
  2. The question is whether a plasma center is an, “other service establishment.”
  3. It notes that the 10th Circuit and the 5th Circuit have reached opposite conclusions.
  4. The court spent considerable time attacking the Fifth Circuit opinion (see ¶ ¶ 6-10 of this section of the blog entry, below). With respect to the 10th Circuit opinion finding that a plasma center is a place of public accommodation, the court notes the following from the 10th Circuit opinion: 1) “service,” has a broad, common definition- i.e. conduct or performance assisting or benefiting someone or something; 2) “establishment,” also has a broad, common definition, i.e. a place of business; 3) giving the term “service establishment,” the ordinary meaning of its components does not result in ambiguity nor does it result in anything irrational. After all, plasma donation centers are places of business assisting or benefiting those who wish to provide plasma for medical use-whether for altruistic reasons or for pecuniary gain-by supplying personnel and medical equipment necessary to accomplish that goal.
  5. The 10th Circuit has the better view.
  6. No support exists for the Fifth Circuit’s statement that donors do not benefit from the act of donating. That is simply not the case, donors receive money, a clear benefit, to donate plasma.
  7. The argument that secondary profit motive can dictate a finding a plasma center is not a place of public accommodation doesn’t wash. After all, a bank, which is explicitly a place of public accommodation also has a secondary profit motive.
  8. Businesses offering services to the public convey something of economic value in return for something else of economic value. That value is often money, but it doesn’t have to be. Money is just one proxy for economic value, and economic value is fungible.
  9. Banks and customers often exchange services not fitting simply into a money for service model. A pawnshop is another example. A recycling center is yet another example. Both pawnshops and recycling centers have been held to be subject to the ADA.
  10. Providing services means providing something of economic value to the public. It simply doesn’t matter whether that economic value is paid for with money or something else of value.
  11. Failure to accommodate cases turn on three questions: 1) whether the requested accommodation to the program was reasonable; 2) whether the requested accommodation was necessary to assure meaningful access; and 3) whether it would represent a fundamental alteration in the nature of the program.
  12. Plaintiff bears the initial burden of establishing that the desired accommodation is reasonable and necessary, while the defendant bears the burden of showing that it would fundamentally alter the nature of the program.
  13. Title III entities are required by 28 C.F.R. §36.302 to modify policies, practices, or procedure to permit the use of a service animal by an individual with a disability.
  14. A service animal used by a person with a disability is reasonable under the ADA as a matter of law so long as no DOJ regulation supersedes it.
  15. A plaintiff does not need to show intentional discrimination in order to demonstrate a violation of title III of the ADA. Accordingly, McDonnell-Douglas simply does not apply. The only question is whether the defense established an exception permitting a plasma donation center to deny an individual with a disability his or her use of a service animal. If no exceptions apply, then the use of a service animal is a reasonable accommodation and plaintiff prevails.
  16. 28 C.F.R. §36.208 permits places of public accommodation to deny anyone services who poses a direct threat to others. However, the direct threat exception requires an individualized assessment to determine the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policy, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk.
  17. Safety requirements per 28 C.F.R. §36.301(b) have to be based upon actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities.
  18. The defendant simply has not made its case that its policy of excluding donors with service dogs is based upon anything other than mere speculation, stereotypes, or generalizations about individuals with disabilities. There isn’t any medical justification or other scientific evidence backing up the defense’s conclusion that all those person having severe anxiety will put staff, other donors, or themselves at risk when donating plasma.
  19. The defense fails to explain why the plaintiff, who has managed his PTSD for nearly 2 decades and safely donated plasma roughly 90 times, should only be considered safe to donate when he renounces the new service animal that helps him better manage his PTSD.

II

Takeaways

  1. We now have two Circuits taking the position that a plasma center is a place of public accommodation. We have one taking the position that it is not. A Circuit Court split is one of the reasons the United States Supreme Court agrees to hear cases. As I have mentioned previously, people with disabilities do very well at the Supreme Court outside of the employment context. Here, you have a person who donated blood successfully 90 times without a service dog. He is also a retired police officer. Finally, this is not an employment case. Even with the current configuration of the United States Supreme Court, I like the chances of the plaintiff at the Supreme Court should this case get appealed to the Supreme Court.
  2. In the case involving South Dakota, which we discussed here, the Supreme Court has already signaled that it would be open to broadly construing what is a place of public accommodation.
  3. This decision is published, and so, no restrictions exist on citing it as precedent.
  4. This case contains a nice description of what failure to accommodate cases turn on.
  5. This case also has a very nice explanation of the burden of proof. Too often, the burden of proof explanation gets overly legalistic, which is not the case here.
  6. This opinion says McDonnell Douglas doesn’t apply to title III cases.
  7. Blanket exclusions are always a bad idea. The ADA operates on an individualized analysis.
  8. As a matter of preventive law, don’t get stuck on whether a particular business is specifically listed in 42 U.S.C. §12181(7) when trying to determine if the business is a place of public accommodation. For that matter, as a matter of preventive law, unless you want to chew up a lot of money in litigation, which may or may not be successful, I wouldn’t get stuck on whether it is a physical place either. The question is whether what is going on is of the kind listed in any of the categories in 42 U.S.C. §12181(7).
William Goren

William D. Goren is one of the country’s foremost authorities on the American with Disabilities Act (ADA) and the Rehabilitation Act of 1973. For 28 years and continuing, he has been advising on ADA compliance as both an attorney and professor—of which during his time as a full-time academic at various institutions in Chicago, he won numerous teaching awards and achieved tenure.