When it comes to the ADA, there are three possible kinds of lawsuits. First, disparate treatment. Second, failure to accommodate. Third, disparate impact. You don’t see a lot of disparate impact cases. As a result, I thought it would be useful to blog on a decision dealing with the disparate impact issue. Our case of the day is Oross v. Kutztown University decided by the Eastern District of Pennsylvania on January 8, 2024, here.. As usual, the blog entry at the bite in the categories and they are: facts; court’s reasoning changing its mind from prior ruling and holding that plaintiff’s disparate impact claim can proceed; court’s reasoning that plaintiff’s emotional distress claim goes nowhere; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.
Plaintiff, a tenured Associate Professor of Psychology at Defendant Kutztown University (“Kutztown” or the “University”), brought this action claiming the Defendants Kutztown and its President, Dr. Kenneth Hawkinson (“Dr. Hawkinson”) and its Vice President for Equity, Compliance, and Liaison for Legal Affairs, Jesus Pena (“Mr. Pena”) violated Section 504 of the Rehabilitation Act (“RA”), 29 U.S.C. § 794, when they denied his request for a remote work accommodation for the Fall Semester of 2021. Plaintiff claims that in denying his request, the Defendants refused to consider his individual circumstances of having recently undergone a heart transplant that requires life-long immunosuppressive medications to reduce his risk of organ rejection and which place him at a higher risk of contracting COVID-19 and instead relied on a recently formulated general policy that any request to change the course modality from in-person to remote would be considered a substantial alteration to the course offerings and would represent an undue hardship to the University.
The Complaint consisted of the following 12 counts: Failure to Accommodate (Count One); Facial Invalidity of Defendants’ Full-duty Requirement (Count Two); Intentional Discrimination Because of Disability (Direct Evidence)(Count Three); Intentional Discrimination Because of Disability (Pretext) (Count Four); Disparate Impact based on Prohibited Standards, Criteria, or Methods of Administration (Count Five); Kutztown University’s Retaliation and Interference under Section 504(Count Six); Section 504 Retaliation and Interference Claims against Dr. Hawkinson (Count Seven); 42 U.S.C. Section 1983 claims against Dr. Hawkinson for Deprivation of Federal Statutory Rights under Section 504 (Count Eight); Section 1983 Claims against Dr. Hawkinson for Violations of First and Fourteenth Amendments (Count Nine); Mr. Pena’s Retaliation and Interference under Section 504 (Count Ten); Section 1983 Claims against Mr. Pena for Violations of Plaintiff’s Federal Statutory Rights under Section 504 (Count Eleven) and Section 1983 Claims against Mr. Pena for First Amendment Violations (Count Twelve).
Both Plaintiff and the Defendants filed motions for summary judgment. In granting and denying both motions in part, the Court entered judgment in favor of Plaintiff and against Defendants on Counts I, II, III, IV, VI (interference), of the Complaint [ECF 69 and 70]. The Court also entered judgment in favor of the Defendants and against the Plaintiff on Counts V, VII, VIII, IX, X, XI, XII of the Complaint. Id. Finally, the Court ordered that Plaintiff’s request for emotional and punitive damages under the Rehabilitation Act (RA) be stricken from the Complaint. Id.
Plaintiff then filed a motion for partial reconsideration.
Court’s Reasoning Changing Its Mind from Prior Ruling and Holding That Plaintiff’s Disparate Impact Claims Can Proceed
- A plaintiff can prove a prima facie case for disparate impact under the ADA and under the Rehabilitation Act by simply establishing that the plaintiff alone was screened out in Violation of 42 U.S.C. §12112(b)(6). Therefore, no supporting statistical evidence is required.
- 42 U.S.C. §12112(b)(6) prohibits using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard test or other selective criteria, as used by the covered entity, is shown to be job-related for the position in question and consistent with business necessity.
- To establish a prima facie disparate impact claim, a plaintiff must: 1) identify the challenged employment practice or policy; 2) demonstrate that the practice or policy had an adverse impact on the plaintiff with a disability; and 3) demonstrate a causal relationship between the identify practice and disparate impact.
- With respect to the ADA, unlike title VII, a plaintiff can satisfy the second prong of ¶ 3 above by demonstrating an adverse impact on himself rather than on an entire group.
- The undisputed record shows that the plaintiff identified the challenged policy as the University’s full-time full duty policy.
- Plaintiff also clearly demonstrated that the full-time full duty policy had an adverse impact on himself by demonstrating that he was: 1) denied a reasonable accommodation of remote teaching in office hours that forced him to use up the remainder of his paid leave and into an unpaid leave status for the fall semester of 2021; 2) denied a restoration of health sabbatical that forced him to use up the remainder of his paid leave and into an unpaid leave status for the fall semester of 2021; and 3) informed that a full-time full duty release member turning to work in person that not only forced him to use up the remainder of his paid leave but also forced him into an unpaid leave status for the fall semester of 2021 as well as forced him to give up his medical benefits as of December 29, 2021, and limit his return to work rights.
- Plaintiff established a causal connection between the full-time full duty policy and the disparate impact on the plaintiff in several ways: 1) his request for an accommodation was denied based upon a recently devised mantra that any accommodation request which any change to the modality for a scheduled class would fundamentally alter the course and therefore place an undue burden on University. That mantra made no sense because the University offered 1700 classes each semester, the vast majority of which are in person, and it would not have fundamentally altered the University’s pedagogical model.
- For a defendant to assert a business necessity defense, a defendant has to show that the allegedly discriminatory qualification requirement is all of: 1) job-related; 2) consistent with business necessity; and 3) that the performance cannot be accomplished with a reasonable accommodation. Defendant simply failed to demonstrate any of those elements.
Court’s Reasoning That Plaintiff’s Emotional Distress Claims Go Nowhere
- Cummings held that emotional distress damages were not available under §504 of the Rehabilitation Act, as we discussed here.
- Even though this is an employment case, Cummings still prevails. It might be a different story if the plaintiff was a federal employee, in which event the case would be governed by §501 of the Rehabilitation Act and not §504, but that is not the case here.
- You don’t see a lot of disparate impact cases. Lots of good things can be taken from this case. The biggest thing being, it is enough to allege an impact on just one individual and no statistical evidence is needed.
- It makes a world of difference if the employment discrimination claim is based upon §504 v. §501 of the Rehabilitation Act when it comes to emotional distress damages as a result of Cummings, which we discussed here.
- Be careful of mantras demanding a return to office when the facts don’t support it given the job of the person with a disability has and the person’s disability.
- Nice explanation of what a defendant must show to assert a business necessity defense.