Must Your Stadium, Theater, or Museum Offer Complimentary Admission to Personal Care Providers?
Lexology
Are public accommodations required to admit personal care providers for free? That’s the question that the lawyers in our Disability Access Practice Group have been hearing with increasing frequency since the U.S. District Court for the Eastern District of Pennsylvania issued a decision in May of 2016 holding that The Franklin Institute, a nonprofit museum, was required to offer complimentary admission to the personal care attendant of a severely disabled individual. Below we provide a brief overview of the case and its currently narrow reach, an even shorter critique of the decision, and finally a summary of what your public accommodation may want to consider in the wake of the decision. Anderson v. The Franklin Institute, No. 13-5374 (May 6, 2016).
Overview of the Court’s Decision
Michael Anderson is a severely disabled individual who requires an around-the-clock personal care attendant (PCA) to assist him in eating, bathing, and performing other activities of daily living. Anderson and a nonprofit disability rights organization sued The Franklin Institute (TFI) under Title III of the Americans with Disabilities Act (ADA) on the grounds that the institute discriminated on the basis of disability by charging an admission fee to PCAs whose sole purpose was to assist severely disabled individuals while they enjoyed the museum. The plaintiffs contended that complimentary admission for PCAs would constitute a “reasonable modification” of TFI’s policy of charging each visitor that would permit the disabled to access and enjoy the museum.
In opposition, TFI argued that complimentary admission for PCAs would result in lost revenue, especially for those special exhibits that have a limited number of tickets or limited capacity. TFI further argued that providing complimentary admission for PCAs would also constitute a “fundamental alteration” to its current operations by compelling it to eliminate services to prevent sizable financial deficits.
The court rejected TFI’s arguments, holding that the plaintiffs’ requests were “manifestly reasonable,” especially in light of the de minimis costs imposed on TFI. In its holding, the court noted:
The ADA sometimes requires substantial investment in elevators, ramps, or special seating. These modifications result in real costs. If the ADA can require such affirmative expenditures, then certainly it can require an entity simply to forego charging a fee. In a cruel irony, the crux of [TFI’s] objection is that it cannot profit from the entrance of one who is there only because of another’s disability. To credit such a theory would not only render the ADA meaningless, but endorse a result inimical to its purposes.
Injury doesn't necessarily mean employee is disabled
Business Management Daily
Sometimes, employees misunderstand what it means to be disabled under the ADA and state disability laws. For example, injuries that require extensive time off work for treatment and recovery may not be serious enough to constitute disabilities.
The employee still has to show that his or her condition substantially impairs a major life activity.
Recent case: Carla worked for Easter Seals as a therapeutic assistant in California. In June 2014, she broke her foot. She needed extensive treatment and her doctor recommended she take time off work to recover.
She had been out for about a month when her employer notified her that she had been terminated.
Carla sued, alleging that she could not be fired because a California law protects disabled workers from discharge if a reasonable accommodation is available. But her lawsuit didn’t include much in the way of details about her condition. For example, she never explained how her fractured foot would interfere with performing essential life functions like walking or working.
The court dismissed her lawsuit. It explained that California law doesn’t cover transient or temporary conditions, just permanent and serious ones. (Salazar v. Easter Seals Southern California, No. B267211, Court of Appeal of California, 2016)
The National Law Review
The Sixth Circuit recently reversed the grant of summary judgment in favor of an employer in a case arising under the Americans With Disabilities Act. The Court determined that an issue of fact existed as to whether the ability to lift more than 35 pounds was an essential function of plaintiff’s job as a stock clerk and, if so, whether he could perform this essential function with or without reasonable accommodation. Camp v. Bi-Lo, Inc., 2016 U.S. App. LEXIS 19053 (6th Cir. Oct. 21, 2016). In Camp, the plaintiff and the two other stock clerks failed to finish shelving products because the plaintiff could not assist with heavy lifting. Plaintiff was placed on a leave while the company evaluated his capabilities In deciding to discharge plaintiff, the employer relied upon a job description, created in 2007 (i.e., long after plaintiff began his employment), which required store clerks to lift at least 20 pounds “constantly” and 20 to 60 pounds “frequently.”
The only question before the trial court and later the appellate court was whether lifting more than 35 pounds (which his doctor certified that plaintiff could not do) was an essential function of the stock clerk position. The Sixth Circuit found that it was not (and thus the discharge violated the Americans with Disabilities Act). While the employer relied on the written job description, its adherence to the job description was undermined by the immediate supervisor’s testimony that heavy lifting was not an essential function of the position. The Court distinguished the case from one involving a firefighter where the inability to lift the required weight could put another person’s life at risk. Refusing to “require blind deference to the employer’s stated judgment,” the Sixth Court found the “actual on-the-job experience” of plaintiff and his coworkers to be persuasive, thereby holding there was a genuine dispute of material fact as to whether the ability to life more than 35 pounds was an essential function of the plaintiff’s job.
This decision serves as a reminder to employers of the importance of ensuring that written job descriptions are consistent with the actual functions required of the position and of the workers’ perceptions of what they do and how they do it.
Former ExxonMobil employee claims he was terminated because of disabilities
Southeast Texas Record
A process operator from Nederland alleges he was terminated because of his medical conditions.
Richard Placette filed a complaint on Oct. 27 in the Galveston Division of the Southern District of Texas against ExxonMobil Corp. alleging that the oil and gas company violated the Texas Commission on Human Rights Act and the Americans with Disabilities Act.
According to the complaint, the plaintiff suffers from depression and post-traumatic stress disorder. The plaintiff alleges that on Sept. 3, 2015, he was terminated from his employment from the defendant. The plaintiff holds ExxonMobil Corp. responsible because the defendant allegedly discriminated against him and terminated his employment because of his disability.
The plaintiff seeks the of award compensatory and exemplary damages, back pay, reinstatement or front pay, injunctive relief, attorney's fees and costs. He is represented by Andrew S. Golub and Stephanie A. Hamm of Dow Golub Remels & Gilbreath PLLC in Houston.
Galveston Division of the Southern District of Texas Case number 3:16-cv-00306