interactive process

The interactive process under ADA Title III – maybe not the law, but a good idea anyway.

By in Accessibility Litigation Trends, ADA Litigation Procedure, Interactive Process Tags: , , ,

rvp-yelling-at-refIn its May 2, 2017 decision in Koester v. Young Men’s Christian Assn. of Greater St. Louis, 855 F.3d 908, 909 (8th Cir. 2017) the Eighth Circuit casually suggested that the “interactive process” does not apply to accommodation requests under Title III of the ADA. It sidestepped the issue in the end, but wrote that it approached a claim based on a failure of the process with a “a healthy dose of skepticism that these concepts are applicable in this Title III case.” As authority it dropped a footnote to its earlier decision, Mershon v. St. Louis U., 442 F.3d 1069, 1078 (8th Cir. 2006). In Mershon the Court expressed doubt that the interactive process applied to a claim in an academic setting, referring in turn to the decision in Stern v. U. of Osteopathic Med. and Health Scis., 220 F.3d 906, 909 (8th Cir. 2000).  The Stern case did not include any expression of doubt; only a recognition that the question was unresolved: “Even if such an interactive process is required in an academic setting. . . .” This time the authority cited was a lower court decision, Guckenberger v. Boston U., 974 F. Supp. 106, 142 (D. Mass. 1997). In Guckenberger, oddly enough, the Court assumed that an interactive process was required by Title III, but found that the system in place at the defendant university was sufficiently interactive.

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Reasonable Accommodation under the ADA – a story with a moral.

By in Accessibility Litigation Trends, ADA Policies, Reasonable accommodation Tags: , , , ,

Moral-Of-The-StoryA news story about a children’s theater group  caught my eye this week because it so vividly illustrates the trouble a business can get into if it does not understand the law of reasonable accommodation under the ADA. You can read the story HERE. In brief, a potential theater member with a severe peanut allergy requested that the theater have a “no nuts” policy and that the director be willing if necessary to help the child with his epi-pen. The owner declined and probably said some unfortunate things about the request. Eventually the DOJ got involved and now, unless the matter settles, everyone will be off to court.

What went wrong? First, it is clear that the theater director did not understand the reasonable accommodation obligation and even more important, did not understand the “interactive process” that the ADA regulations encourage.* The name of the game in reasonable accommodation is trying to find a solution to the problem presented. A requested accommodation is not something to be accepted or rejected; it is something to be talked about. For a business this has the value of creating the appearance of reasonableness and, even more important, the opportunity to think about the issue carefully. In this case the first requested accommodation – making the theatre nuts free – is about as cheap and easy as it gets. All the theater owner had to do notify other parents that nuts were forbidden.

The second accommodation – willingness to use the child’s epipen – was more problematic. Many organizations are reluctant to administer prescription drugs. In a litigation happy society, it just seems like too big a risk to take. Here too, though, simply thinking through the problem and doing a little on-line research would have led to a different result. First, it only takes a little time with the internet to find that the Department of Justice has been suing or investigating child oriented business about epipens for more than 15 years. Unless you really want to take on Uncle Sam about whether peanut allergies are a disability** the battle isn’t worth fighting.

Perhaps more important, it seems likely that the theater already had a general release of some kind that all the parents had to sign. The owner’s demand for a special waiver of liability might not have been necessary and certainly looked like discrimination against one particular child based on a disability.

Finally, it would have been worth while to think through when an epipen is to be used. Epipens are for emergency use, and in many ways a child or adult in anaphylactic shock is like a person who has suffered a severe wound. Would the theater director really stood by and watch a child suffer because he didn’t want the risk of liability? Probably not. The refusal in advance to do something he would have done in the event of an emergency was pointless.

The moral of the story? Consider every request for accommodation as an invitation to try to solve a problem, and then think through – perhaps with the help of a lawyer – what risks would come from granting the accommodation and what risks might come from denying it. Reasonable accommodations are all about being reasonable, and that requires knowledge and a rational analysis of the various risks and costs involved.

* The “interactive process” is best defined in employment cases under Title I of the ADA and landlord tenant cases under the Fair Housing Act, but courts apply it in Title III cases as well.

**Many courts hold that food allergies are not disabilities. (See my blog HERE) DOJ disagrees, and the Supreme Court has not opined on the subject. Since DOJ will fight and has unlimited resources it isn’t the best opponent to take on with respect to this kind of claim.


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