My child’s after school care program won’t agree to do any diabetic care for my child, who has Type I diabetes. Doesn’t the program have to make “reasonable accommodations” under the Americans with Disabilities Act?

February 19, 2012

The U.S. Department of Justice (“DOJ”) is tasked with enforcing the Americans with Disabilities Act (“ADA”) in connection with government-run and privately-run child care centers, including before and after school care programs.  Click to read the DOJ’s guidance on this topic.  In addition, the American Diabetes Association has a number of “Safe at School” resources.

Both the ADA and Section 504 of the Rehabilitation Act (“504”) address reasonable accommodations of diabetic children, and the legal standards under the ADA and 504 are usually analyzed the same.  Legally, what you would have to show is that your child is a person with a disability, that he is “otherwise qualified” for participation in the after school program and that he has been excluded from participation in or denied the benefits of that program or otherwise subjected to discrimination by reason of his disability.  In addition, to bring a claim under 504, you would need to show that the after school program receives federal funds.  These first legal hurdles are concerned with whether the after school program violated the ADA and 504 by failing to accommodate your child’s requests for diabetic care accommodations.  However, the analysis does not end here.

The next thing that you would have to show is that the after school program was “deliberately indifferent” to the disability discrimination alleged to exist.  If you could not show this, then the after school program would have no liability for money damages, which would mean it would have no real legal incentive to agree to the requested accommodations.    The deliberate indifference standard requires more than negligence or heightened negligence.  An after school program will be found to be deliberately indifferent when it acts with “conscious disregard” for a participant’s rights.  To show conscious disregard, you have to show that: (1) the after school care program actually knows that its actions will violate the participant’s rights; or  (2) such a violation is the “plainly obvious consequence” of the after school care program’s actions.

Therefore, in a failure-to-accommodate case, to establish the after school program’s deliberate indifference, you would first have to show that (1) you requested the accommodation; and (2) it was plainly obvious that the accommodation was reasonable and necessary.  In addition, if the after school program raised certain defenses under the ADA and/or 504, such as that making the accommodations would impose an undue burden on or would fundamentally alter the program, you would then have to show that it was “plainly obvious” when you requested the accommodation that it would not have created an undue burden on or fundamentally altered the after school program.  To put it another way, you would have to show that it was plainly obvious that these defenses would fail.  And, as at least one federal case concluded, if the after school program reasonably could have believed that the defense would succeed, it would not be liable for money damages.

In a recent case involving a public school student with Type I diabetes, Peterson v. Anoka-Hennepin Independent School District No. 11, 538 F. Supp. 2d 1125 (D. Minn. 2008), the  the parents of AP, a child with Type I diabetes, tried to enroll AP in an after-school program run by the school district.  The parents made three main requests for accommodation.  They asked the school district to provide staff that were trained and willing to (1) check AP’s blood sugar, which required operating his blood-glucose meter; (2); operate his insulin pump; and (3) give glucagon injections in the event of a hypoglycemic emergency.  The school district refused to provide any of the accommodations.

The school district asked the court to dismiss the case by filing a motion for summary judgment on the “deliberate indifference” standard.  The Minnesota federal trial court granted the school district’s motion as to the request to give the glucagon injections because it found that no reasonable jury could find that (a) it was “plainly obvious” that the glucagon injection request was a reasonable accommodation; or (b) it was “plainly obvious” that the glucagon injection request would not have placed an undue burden on the school district and would not have fundamentally altered the after school program.  The school district had presented evidence that Minnesota guidelines discourage school personnel, who are not supervised by school nurses, from giving glucagon injections, that giving glucagon injections is “at least modestly complicated”, that an unsupervised layperson should not give a glucagon injection and that it believed that it would have to hire a nurse for the after school program to give the requested glucagon injection.

However, the court found that the school district was not entitled to having the claims pertaining to the meter and pump operation dismissed on summary judgment because “both of these requested accommodations were almost certainly reasonably and almost surely would not have imposed an undue burden on [the school district] or fundamentally altered the” after school program.  The court also found that a reasonable jury could find that it was “plainly obvious” that the school district should have granted the requests and that doing so would not have been unduly burdensome.

The federal appeals court that governs cases arising in Georgia (the 11th Circuit) has not decided whether the “deliberate indifference” standard applies to civil money damages claims under the ADA and 504, or whether a more stringent standard applies, such as “discriminatory animus”.  Some recent cases have assumed that the deliberate indifference standard applies.  Litigants in Georgia can safely assume for the time being that they would have to show at least as much as AP had to show in MN, since that court applied the deliberate indifference standard.

State university did not violate graduate student’s free speech or free exercise rights

February 17, 2012

A recent decision issued by the federal appeals court that hears appeals from federal trial courts in FL, GA and AL looked at whether a state university had violated a student’s First Amendment rights regarding speech and religion when it required a graduate student to participate in a remediation plan prior to participating in a clinical counseling practicum.

The case, Keeton v. Anderson-Wiley, No. 10-13925, 2011 WL 6275932 (11th Cir. Dec. 16, 2011), involved a Christian graduate student (Jennifer Keeton) in Augusta State University’s (“ASU”) master’s degree in school counseling program who held certain beliefs about the LGBTQ population (e.g., that the LGBTQ population suffers from identity confusion, that sexual orientation is a personal choice, that gender is fixed and binary) and had stated she would refer counseling clients from that population to someone who practices conversion therapy if she could not convince them to change their behavior.

ASU’s position was that it was required to adopt and teach its school counseling graduate students the tenets of the American Counseling Association’s (ACA) Code of Ethics to maintain its accreditation by the Council for Accreditation of Counseling and Related Educational Programs and that the remediation plan was necessary so that Keeton could learn how to comply with the ACA Code of Ethics.  Keeton alleged that ASU violated her First Amendment rights by discriminating against her viewpoint, by retaliating against her for exercising her free speech rights, by compelling her to express beliefs she did not agree with, and by violating her free exercise of religion rights by requiring that she comply with the ACA Code of Ethics.

Keeton filed a lawsuit and asked the trial court to enjoin ASU from dismissing her from the graduate program if she refused to participate in the remediation plan.  The trial court denied her motion for a preliminary injunction and the 11th Circuit affirmed.  Perhaps one of the best quotes that sums up the outcome of the case is:  “Keeton does not have a constitutional right to disregard the limits ASU has established for its clinical practicum and set her own standards for counseling clients in the clinical practicum.”

An even more recent case from the Sixth Circuit Court of Appeals, Ward v. Polite, Nos. 10-2100, 10-2145, 2012 WL 251939 (6th Cir. Jan. 27, 2012), looked at similar issues and resulted in a different outcome.  To read the full opinions in either case, click on the case name:  Keeton v. Anderson-Wiley or Ward v. Polite


Can I be terminated for venting about my employer on Facebook?

February 16, 2012

It depends.  Employees have rights under the National Labor Relations Act (“NLRA”), even in “non-union” places of employment.  That is, employees have a right to discuss their salaries, wages, or form of compensation and other terms and conditions of their jobs with their co-workers and with people who do not work with them.   They also have a right to use their employer’s logo or name in connection with communications with the public about a labor dispute.  Think of the folks carrying signs outside businesses who are in a wage or other labor dispute with their employers.  Sometimes, employers try to infringe on this right by imposing social media policies on their employees that forbid, say, the sharing of compensation information with anyone other than management, or the making of disparaging remarks about the company.  In many instances, an employer’s social media policy will technically violate the NLRA.

However, just because your employer has an overly broad social media policy that steps on your rights under the NLRA does not mean that you can get your job back if you were fired for violating that policy.  There is another layer of analysis that takes place.  For the termination to be unlawful under the NLRA, an employee’s venting about her employer has to be more than just individual griping; rather, the employee must act with other employees, or on their authority with the aim of initiating, inducing or preparing for “group action”.  Bear in mind, too, that if the employee who griped on Facebook or other social media actually interfered with the employee’s own work, her co-worker’s work, or the company’s operations and was disciplined for this interference, the discipline will be lawful.

Recent cases suggest that where the venting employee is joined by other employees who voice similar concerns to those expressed, the conduct will likely be protected.  Notably, however, at least one case came down in part to whether the co-workers did more than simply “like” the comments posted by the disgruntled employee.