Hockey, Ice Hockey, Puck, Hockey Stick

Picture of Hockey helmet, puck, and stick (brown and black colors).

 

Before getting started on the blog entry of the day, Dr. Bob Emmons, a forensic psychiatrist, and I just published a peer-reviewed paper in the Journal of American Physicians and Surgeons entitled, “The Americans with Disabilities Act and Appropriateness of Referral In Physician Fitness for Duty Evaluation.” The paper, which can be found here, focuses on the ethical and legal obligations of the person doing the fitness for duty evaluation as well as other things. While the paper focuses on the physician, the same issues arise whenever a professional has been referred into professional recovery programs, which I have seen often go by the terms PHP or PRP or HRP (the acronym list is not exclusive). This area has become an increasingly large part of my practice over the last couple of years. Bob and I are very excited and hope you enjoy it.

 

Turning to the blog entry of the day, the Illinois Supreme Court on March 8, 2024, here, issued a unanimous opinion in a case that we previously blogged on here. That case explored whether under the Illinois Human Rights Act, the entity running youth hockey could be held liable for their own disability discrimination since they rented out a place of public accommodation. The Illinois Supreme Court said that the case could go forward. We don’t need to dive into the facts because the prior blog entry on this case covered all that. So, the blog entry is divided into categories and they are: key provisions of the Illinois Human Rights Act; applying the Illinois Human Rights Act to this case; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Key Provisions of the Illinois Human Rights Act

 

  1. The legislature’s objective in enacting the Illinois human rights act is specifically stated in 1 – 102. In §A, it states that one of the purposes is to secure for all individuals within Illinois freedom from discrimination against any individual because of, among other things, a person’s physical or mental disability. The same section goes on to say that it is a civil rights violation for any person on the basis of unlawful discrimination to deny or refuse to another the full and equal enjoyment of the facilities, goods, and services of any place of public accommodation.
  2. The Act must be liberally construed to achieve its purpose, which in this case is the prevention of unlawful discrimination in public accommodations for all individuals.
  3. 1-103(Q) states, among other things, that unlawful discrimination is discrimination again a person because of his or her actual or perceived disability.
  4. 1-103(I)(1)(d) defines disability in part as the determinable physical or mental characteristic of a person, the history of type characteristic, or the perception of that characteristic by the person complained against, and which characteristic is unrelated to a person’s ability to utilize and benefit from a place of public accommodation.
  5. 5-101(A) defines a place of public accommodation as including all of the categories listed in 42 U.S.C. §12181(7) plus the additional one of public conveyances on air, water, or land.
  6. Plain language in §5-102(A) is clear and unambiguous.
  7. The Act prohibits a person from unlawfully discriminating against another by denying or refusing the full and equal enjoyment of the facilities, goods, and services of any place of public accommodation.
  8. Team Illinois is a “person,” as defined in the Act. In particular, the Act defines a person as one or more individuals, partnerships, associations or organizations, labor organization, labor unions, joint apprenticeship committee, or union labor association, corporation, the State of Illinois and its instrumentalities, political subdivisions, units of local government, legal representative, trustees in bankruptcy or receivers. §1-103(L).
  9. As alleged in the complaint, Team Illinois fits squarely within the definition of a person as it is both a corporation and an organization.
  10. The place where Team Illinois has its offices and rents out the facility is a place of public accommodation because it fits squarely within places of exercise or recreation as an ice arena (Seven Bridges in this case), is obviously a place of exercise or recreation. An ice arena is certainly akin to a gymnasium, bowling alley, or golf course, so it should be given the same interpretation as falling within that category.

 

 

II

Applying the Illinois Human Rights Act to This Case

 

  1. The complaint alleges that Team Illinois leases and operates portions of the ice arena, a place of public accommodation.
  2. The complaint also alleges that Team Illinois segregated, isolated, and excluded the plaintiff from participating in Team Illinois program, events, and activities at Seven Bridges (the ice arena), because of her disability and, by doing so, denied her the full and equal enjoyment of the facilities and services of a place of public accommodation.
  3. 5-102(A) does not differentiate between the portions of the place of public accommodations subject to the Act and the portions that are not. It also does not state that only a member of the public at large can file an antidiscrimination claim. For that matter it does not restrict a claim to those portions of the facility that are open to the public at large. The defendants’ interpretation reads in additional language into the Act to reach their desired result. That just will not work because the court cannot depart from the plain language of the statute by reading into an exception, limitation, or condition that the legislature did not express. Further, those limitations would be contrary to the liberal construction that must be given to the Act.
  4. Reading the Act liberally, it applies to a member of an organization who, because of her disability, has been denied the full and equal enjoyment of a place of public accommodation.
  5. Martin v. PGA Tour, Inc. decided by the Ninth Circuit and then by the Supreme Court, here, which we have also discussed numerous times in the blog, is critical to the analysis.
  6. In Martin, the Ninth Circuit specifically rejected any distinction between what occurs on the playing field v. what occurs in the area where spectators are watching. While at the Supreme Court that argument was abandoned, the Supreme Court specifically rejected a similar phrasing of the argument. In particular, the Supreme Court held that the PGA simultaneously offered at least two different privileges to the public-that of watching the golf competition and that of competing in it. While competing in it was more difficult and more expensive to obtain, it was nonetheless a privilege made available to members of the general public. So, Team Illinois cannot escape liability under §5-102(A) by claiming that the plaintiff was not barred from the parts of the facility open to the public at large. Like the competitive areas “behind the ropes,” on golf courses, the areas of the ice arena restricted to members of Team Illinois are no less a place of public accommodation in the areas that are open to the general public.
  7. The Martin cases are directly applicable in the following ways: 1) plaintiff tried out for and was accepted as a member of Team Illinois; and 2) plaintiff alleges that Team Illinois discriminated against her by restricting her from the portions of a place of public accommodation reserved for Team Illinois members.
  8. Team Illinois cannot distinguish Martin on the basis that it lacks a sufficient nexus with the place of public accommodation because it leases parts of the ice arena, has its office at the ice arena, and uses the ice arena at the primary location for its activities.
  9. 5-102(A) does not subject all activities of an organization to the Act. Rather, it is strictly limited to action denying a person the full and equal enjoyment of the place of public accommodation.
  10. It isn’t necessary to decide the question of whether Team Illinois itself is a place of public accommodation because the gravamen of the complaint is that Team Illinois denied the plaintiff the full and equal enjoyment of the facilities, goods, and services of the ice arena. Thus, it is unnecessary to determine whether the complaint states a separate cause of action based on an alternate reading of the factual allegations.
  11. The Illinois Supreme Court declined to provide guidance regarding how far the private club exemption might go. Even if the private club exemption applied, the gist of plaintiff’s complaint doesn’t rise or fall on whether Team Illinois is a place of public accommodation. Further, Team Illinois does not contend that the ice arena is a private club. Therefore, any guidance that the Illinois Supreme Court may provide on this exception would amount to an advisory opinion, which isn’t something that it does.

 

IV

 

Thoughts/takeaways

 

  1. The Illinois Human Rights Act has a very peculiar definition of disability that I have not seen in any of the other States that I have come across. In particular, it’s focus on “unrelated,” is very confusing.
  2. State’s often have their own disability nondiscrimination laws and those laws should be looked at. Not every state has such laws. For example, Alabama doesn’t. For that matter, Georgia doesn’t either, except for a very limited law directed to state employees of Georgia.
  3. Whether a place is a place of public accommodation is a distinct question from whether a person has been denied the privileges and benefits associated with that place.
  4. I am licensed in Georgia, Texas, and Illinois in reverse chronological order. I can tell you that both Illinois and Texas include public conveyances on air, water, or land in their statutes as being a place of public accommodation. I can also tell you that with respect to air, there may be preemption issues with the Airline Deregulation Act. So, if you are dealing with discrimination by the airlines, you will want to be looking at the Air Carrier Access Act as well as title II of the ADA with respect to the airport facility. By way of full disclosure, I have consulted on cases involving the intersection of negligence laws, the Airline Deregulation Act, the Air Carrier Access Act, and title II of the ADA.
  5. You can’t forget about the importance that disability nondiscrimination laws apply to privileges and benefits. This topic, which we have discussed here for example, is being litigated more and more every day.
  6. The Supreme Court in Martin, as well as the Illinois Supreme Court in this case, does not differentiate between the portions of places of public accommodations open to competitors in the portions of places of accommodations open to spectators.
  7. Interesting that the court brings up the nexus issue. As we know, in the area of Internet site accessibility, such as what we discussed here, nexus can be a very big deal indeed.
  8. One thing that comes across my desk frequently is the question of what happens if an outfit like Team Illinois uses at the facility of a nonfederal governmental entity. In that case, the public entity per 28 C.F.R. §35.130(b)(1)(v), cannot provide significant assistance to an agency, organization, or person that discriminates on the basis of disability. So, the public entity can use that as leverage to get the actor doing the wrong thing to do the right thing.
  9. While the Illinois Supreme Court was just saying in this case that the case could go forward, the facts are pretty egregious. It is also pretty clear from the decision how the Illinois Supreme Court sees it playing out, assuming the facts as stated, given the applicable law. So, I would be surprised if this case doesn’t settle quickly.
  10. Illinois years ago did away with the unpublished v. published distinction. Every case gets a citation that can be easily found by way of a computer. So, all Illinois decisions at any level are fair game.
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…

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.