Employment & Labor Law Section Seminar Friday, January … · Employment & Labor Law Section...

presented by

The South Carolina Bar

Continuing Legal Education Division

2017 South Carolina Bar Convention

Employment & Labor Law

Section Seminar

Friday, January 20, 2017

SC Supreme Court Commission on CLE Course No. 170440

John C. Glancy

Greenville, SC

Onboarding and Offboarding in the

Digital Age—Protecting Your Trade

Secrets and Confidential Information

Against Unfair Competition

Onboarding and Offboarding in the Digital Age –

Protecting your Trade Secrets and Confidential

Information Against Unfair Competition

.

ogletreedeakins.com

Presented by

John C. Glancy


Atlanta / Austin / Berlin / Birmingham / Boston / Charleston / Charlotte / Chicago / Cleveland / Columbia / Dallas / Denver / Detroit Metro

Greenville / Houston / Indianapolis / Jackson / Kansas City / Las Vegas / London / Los Angeles / Memphis / Mexico City / Miami

Minneapolis / Morristown / Nashville / New Orleans / New York City / Orange County / Philadelphia / Phoenix / Pittsburgh / Portland / Raleigh

Richmond / San Antonio / San Diego / San Francisco / St. Louis / St. Thomas / Stamford / Tampa / Torrance / Tucson / Washington, D.C. www.ogletreedeakins.com

Part I - What are the Risks?

• A new study by LinkedIn

shows that Millennials change

jobs four times in their first ten

years out of college - nearly

double the generation before

them.

• Skills and knowledge are the

keys to a successful transfer.





Case Studies





Smart Phones &

Tablets

Storage Devices

File transfer accounts

How Does Trade Secret

Misappropriation Occur?

Email

Social media

Cloud computing





Onboarding Strategies

• What is Onboarding?

• The Process of Communicating Company

Policy and Expectations to New Employees

• Engage employees early and Manage

Expectations

• Agreements

• Digital Integration





Onboarding Strategies

Offer

Letters

and

Interviews

Non

Competition

Agreements

Discuss

Policies and

Procedures

Forensic

Review

Atlanta / Austin / Berlin / Birmingham / Boston / Charleston / Charlotte / Chicago / Cleveland / Columbia / Dallas / Denver / Detroit (Metro)

Greenville / Houston / Indianapolis / Jackson / Kansas City / Las Vegas / London / Los Angeles / Memphis / Mexico City / Miami / Milwaukee


Richmond / San Antonio / San Diego / San Francisco / Seattle / St. Louis / St. Thomas / Stamford / Tampa / Torrance / Tucson / Washington, D.C. www.ogletreedeakins.com

Offer Letter

Preview mandatory non competition

agreement

• Include

• Don’t Sign and Return

• Sign First Day





Offer Letters and Interviews

Existing Agreements/Obligations

Don’t Bring Prior Employer’s Information

Return Confidential Information

Don’t Use Prior Employer’s Information

Don’t Breach Other Obligations





Offer Letter and Interviews

BYOD Policies

Personal Devices Allowed?

Parameters and Control

Contact Company representative with

questions

Consequences of breach





Consideration

Typical Provisions

Best Efforts

Non-Disclosure covenant

Non-compete covenant

Customer non-solicitation covenant

Employee non-solicitation covenant

Non-Competition Agreements





Return of property

Inventions assignment and intellectual

property

Arbitration

Remedies

Severance and Reformation

Choice of Law, Venue, and Jurisdiction

Defend Trade Secrets Act

Original Jurisdiction

Ex Parte Seizures

Immunities and Notice

Non-Competition Agreements





What if employee has confidential

data?

Retain a forensic provider to handle

with outside legal counsel.

Discuss preserving copies of data.

May be required to return data.

What about privacy issues?

Forensic Scrub - Onboarding





Policies and Procedures During Employment





Bring Your Own Device (BYOD)





Device Security

Require that all devices be identified.

Right to inspect (during and after employment).

Right to wipe, including remotely.

Require access to external drives

and cloud accounts.

Require immediate reporting

of lost/stolen devices.

Require password protection.

Data and Device Security





Data Security

Limit access to confidential information.

Track confidential information.

Who may access, modify, copy or delete

Stamp “confidential” or

serialize

Conduct forensic reviews and

periodic audits.

Enforce policies.

Regularly train.

Data and Device Security





Tracks which work documents accessed, when, by who,

and with what device.

Remote deletion.

Separates security controls

from data storage methods and

allows security to be managed

at the document-level across

multiple content repositories.

Technology Solutions





Off Boarding - Exit Interview

Include IT on exit interview team.

Immediately restrict access.

Provide copy of confidentiality policy.

Review checklist

All property/devices returned?

Personal devices/accounts used?

Data removed from devices?

Others have access to data?

Signed employee acknowledgment.





Off Boarding - Forensic Scrub

Analyze employee’s devices.

(Data copied, transmitted,

deleted?)

Image devices /accounts.

Delete data.

What about privacy

concerns?





20

Letter to employee concerning obligations.

Send to new employer?

Tone?

Remind of obligations.

Cease and desist?

Demand preservation of evidence?

Off Boarding - Post Employment

Follow Up





21

John C. Glancy | Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

The Ogletree Building, 300 North Main Street, Suite 500 | Greenville, SC

29601 | Telephone: 864-240-8278 | Fax: 864-235-4754

[email protected] | www.ogletree.com | Bio

Questions?

mailto:[email protected]

http://www.ogletree.com/

http://www.ogletree.com/attorneys/John-C-Glancy

Ashley C. Story

Columbia, SC

Christina L. Rogers

Columbia

PDA in the Workplace

Ashley C. Story, Duff, White & Turner, LLC

Christy Rogers, Fisher & Phillips, LLP

Roadmap

The Law Regarding Pregnancy Discrimination

Young v. UPS Other Case Updates EEOC Guidelines Future Trends – Election

and the Law Tips Q&A

Pregnancy Discrimination Act and Title VII

PDA amended Title VII in 1978.

Two pertinent clauses:

1. “because of or on the basis of pregnancy,childbirth, or related medical conditions “

2. “[employers must treat women affected bypregnancy] the same for all employment-related purposes . . . as other persons not soaffected but similar in their ability orinability to work.”

Young v. United Parcel Service575 U.S. ____ (2015)

Employee brought action against her employer, alleging thatshe was the victim of pregnancy discrimination in violation ofthe Pregnancy Discrimination Act (PDA).

• Federal District Court granted summary judgment in favorof UPS;

• 4th Circuit held that the employee failed to present directevidence of discrimination or establish a prima facie case ofdiscriminatory discharge on account of pregnancy underTitle VII;

• Vacated by U.S. Supreme Court and remanded to 4th Cir. –opinion by Breyer with 6-3 vote. Scalia authored dissent.

Young v. United Parcel Service –Young’s Facts

1. Plaintiff was a part-time UPS driverwho became pregnant in 2006.

2. Doc says she should not be requiredto lift greater than 20 lbs. first 20weeks of pregnancy and no more than10 lbs. thereafter.

3. UPS requires drivers to lift up to 70lbs. and 150 lbs. with assistance.

4. Young informed by UPS occupationalhealth manager that she could notreturn to work during pregnancybecause she couldn’t meet liftingrequirements.

5. Same manger determined Youngdidn’t qualify for temporaryalternative work assignment.

6. UPS promised to provide temporaryalternative work assignments toemployees “unable to perform theirnormal work assignments due to an on-the-job injury.”

7. UPS would “make a good faith effort tocomply . . . with requests for areasonable accommodation because ofa permanent disability” under the ADA.

8. UPS would give “inside” jobs to driverswho lost DOT cert because of a failedmedical exam, lost driver’s license, orinvolvement in a motor vehicleaccident.

9. Capital Division Manager told Young (inresponse to request for accommodation)that her pregnancy was “too much of aliability” and could “not come back” untilshe “was no longer pregnant.”

10. Young stayed on LOA w/o pay. Returnedin 2007.

Young v. United Parcel Service –Young’s Facts (Accommodations)*

11. Some employees receivedaccommodations while sufferingvarious similar or more seriousdisabilities incurred on the job.

12. Some employees receivedaccommodations following injury,record unclear as to on-the-job or off-the-job injury.

13. Several employees received “inside”jobs after losing DOT certification.

14. Some employees were accommodateddespite the fact that their disabilitiesoccurred off-the-job.

15. Testimony from a 10 year employeerevealed that “the only light dutyrequested [due to physical]restrictions that became an issue werewith women who were pregnant.”

Young v. United Parcel Service –The Issues and the Majority

Major issue addressed by Court –the parties’ disagreement about theinterpretation of the PDA’s secondclause: “[employers must treat women

affected by pregnancy] the samefor all employment-relatedpurposes . . . as other persons notso affected but similar in theirability or inability to work.”

“. . . .when a court must consider aworkplace policy thatdistinguishes between pregnantand nonpregnant workers in lightof characteristics not related topregnancy.”

Court will not accept the Younginterpretation – can’t look atpregnancy as a “most-favored-nation” status. That is to say, the term “other

persons” doesn’t mean “any otherpersons.”

UPS argues second clause justdefines sex discrimination toinclude pregnancy discrimination –rejected. First clause accomplishes that

objective. If we take that stance, second

clause is rendered void orinsignificant. (Dissent argues it isnot superfluous. Check withScalia.)

Young v. United Parcel Service –The Issues and the Majority

“[T]he second clause was intended to do more than that (addpregnancy to definition of sex discrimination) – it “wasintended to overrule the holding in Gilbert and to illustratehow discrimination against pregnancy is to be remedied.”

What then?

Plaintiff can show disparate treatment through McDonnellDouglas and indirect evidence.

“by ‘showing actions taken by the employer from which one caninfer, if such actions remain unexplained, that it is more likelythan not that such actions were based on a discriminatorycriterion illegal under’ Title VII.”

Let’s Start with the Plaintiff – To establish a prima facie case on

account of pregnancy under Title VII,the plaintiff must demonstrate that: (1) she was pregnant;

(2) she suffered an adverse employmentaction;

(3) at the time of the adverseemployment action, she was performingher job satisfactorily; and

(4) employer did accommodate others“similar in their ability or inability towork.”

Burden-shifting … To Employer

Reliance on “legitimate, non-discriminatory” reasons fordenying accommodation.

Reason cannot normallyconsist of claim that it was“more expensive” or “lessconvenient” to add pregnantwomen to those “similar intheir ability or inability towork.” (No more Gilbert.)

Back to Employee Show employer’s proffered reasons

are in fact pretextual. Show that employer’s policies

impose a significant burden onpregnant workers.

Show that employer’s policies arenot sufficiently strong to justifyburden.

Create a genuine issue of materialfact (GIOMF) as to whethersignificant burden exists byproviding evidence that employeraccommodates a large percentage ofnonpregnant workers while failingto accommodate a large percentageof pregnant workers. (See Young’sfacts.)

Outcome for Young Court determines there is a

genuine dispute as to whetherUPS provided more favorabletreatment to at least someemployees whose situationscannot reasonably bedistinguished from Young’ssituation.

She introduced evidence of threeseparate accommodation policies.

4th Circuit did not considercombined effects of 3 policies.

Court did not determine whetherYoung created GIOMF as towhether UPS’s reasoning waspretextual. Vacated andremanded for 4th Circuit tohandle.

http://www.google.com/url?sa=i&rct=j&q=&esrc=s&source=images&cd=&cad=rja&uact=8&ved=0CAcQjRxqFQoTCP67lOSl1MgCFYG5gAodMTQAnw&url=http://www.thedailybeast.com/articles/2015/03/25/young-v-united-parcel-service-for-conservative-reasons-supreme-court-rules-for-pregnant-women-and-against-corporations.html&psig=AFQjCNHTII941aHNO1WbtKooJbrNdPE2Zw&ust=1445541972389897

http://www.google.com/url?sa=i&rct=j&q=&esrc=s&source=images&cd=&cad=rja&uact=8&ved=0CAcQjRxqFQoTCNyNjYSm1MgCFUWNDQodqNgKzg&url=http://www.msnbc.com/andrea-mitchell-reports/watch/pregnancy-discrimination-case-heard-by-scotus-367233603839&psig=AFQjCNGiHUfdzk-2roURfdr5tdheEDifFQ&ust=1445542071968711

Other PDA Case Updates Guessous v. Fairview Property Investments, LLC, 828 F.3d 208

(2016) Former employee bringing suit is an Arab-American Muslim woman form

Morocco

Alleged various claims under § 1981 and Title VII – including race, religion,national origin, and pregnancy discrimination

Case out of Eastern District of VA (granted employer’s motion forsummary judgment)

Vacated and remanded by Court of Appeals – Judge Gregory authoredopinion: (1) – GIOMF existed as to whether her termination (due to insufficient work) was

pretext for retaliation;

(2) – GIOMF existed as to whether reason for termination was pretext for race,religion, national origin, and pregnancy discrimination;

(3) – continuing violation doctrine applied; and

(4) – GIOMF existed as to whether supervisor’s comments to employee were based onracial animus.

EEOC Pregnancy Discrimination Guide

Four Major Parts

Part I- Provides guidance on the prohibitions under Title VII of the Civil Rights Act, as clarified by the PDA

Part II- Addresses the impact of the ADA’s expanded definition of “disability” on employees with pregnant-related impairments

Part III- Discusses other legal requirements affecting pregnant workers

Part IV-Provides best practices for employers

Prohibitions Under Pregnancy Discrimination Act

Employer cannot fire, refuse to hire, demote, or take any other adverse action against a woman if pregnancy, childbirth, or related medical condition was a motivating factor in the adverse action

Pay

Job assignments

Promotions

Layoffs

Hiring

Fringe benefits (leave and health issues)

What is “pregnancy”? Under the new guidelines, pregnancy is very expansive

and includes:

Potential or intended pregnancy, including conception (or decision not to conceive)

Pregnancy

Termination of pregnancy

Childbirth

Post childbirth, including lactation and breastfeeding

LactationEmployers must provide reasonablebreak times and a private place forbreastfeeding employees to express milk

If an employer allows employees tochange their schedules or use sick leavefor routine doctor’s appointments toaddress non-incapacitating medicalconditions, then females must be able touse sick leave or change their schedulesfor lactation-related issues

Equal Access to BenefitsGeneral Rule:

Employers have to treat women affected by pregnancy,childbirth, or related conditions the same as other employeeswho are similar in their ability or inability to work with respectto light duty, alternative assignments, disability leave, orunpaid leave.

Light Duty

If an employer offers light duty forwork-related conditions, it mustoffer light duty to pregnantworkers who need it.

Rationale: Employees with on-the-job injuries and employeeswith pregnancy-related conditionsare similar in their ability orinability to work

Parental Leave Leave related to pregnancy, childbirth, or

related medical conditions can be limitedto women affected by those conditions

Parental leave must be provided tosimilarly situated men and women on thesame terms

If an employer extends leave to newmothers beyond the period ofrecuperation from childbirth (bondingand care) it cannot lawfully fail to providean equivalent amount of time for newfathers for the same purpose

ADA and Pregnancy Discrimination

ADA Amendments Act of 2008: Question of whether an individual’s impairment is a covered disability should not demand extensive analysis

Even though pregnancy itself is not a disability under the ADA, many pregnancy-related medical

conditions may be, despite the fact they are temporary impairments

Medical Conditions Related to Pregnancy

Back pain

Preeclampsia (pregnancy-induced highblood pressure)

Gestational diabetes

Complications that require bedrest

Anemia

Pregnancy-related carpal tunnel syndrome

Depression

Nausea

After effects of a delivery

“Reasonable Accommodation” Standard

Employees are entitled to reasonable accommodationsfor:

Limitations resulting from pregnancy-related conditionsthat constitute a disability

Limitations resulting from the interaction of thepregnancy with an underlying impairment

“Reasonable Accommodation” Expanded

Employers must also accommodate pregnantemployees to the extent a worker’s normal, healthypregnancy limits her ability to perform certain jobduties, if the employer would accommodate anemployee with similar limitations.

Rationale: PDA requires that pregnant employees betreated the same as “non-pregnant employees who aresimilar in their ability or inability to work.”

Examples Redistributing marginal or nonessential functions

Modification of workplace policies

Modification of work schedule

Purchase or modification of equipment and devices

Granting leave in addition to what is normally provided under sick leave

Temporary assignment to light duty

Note: Undue hardship exception applies (significant difficulty or expense)

Employer Health PlansEmployer health insurance plans must cover prescription contraceptives on the same basis as prescription medications that prevent medical conditions other than pregnancy

Example: If employer health insurance plan covers preventive care for vaccinations, physical exams, and prescription drugs (BP and cholesterol), then prescription contraceptives must also be covered

Employer Health Plan Coverage Exceptions

Abortion, except where life of the mother wouldbe endangered if carried to term or medicalcomplications have arisen from abortion

Religious Freedom Restoration Act (Burwell v.Hobby Lobby)

Future Trends

• During candidacy proposed six weeks of paid leave to new mothers

• No paternity or other caregiver leave

• Would only apply to women who work for companies that do not provide paid leave

What Can Employers Do? Implement a strong policy against pregnancy

discrimination

Evaluate restrictive leave policies

Make it clear that reasonable accommodations areavailable to employees with pregnancy-relatedimpairments

Consult with pregnant workers to develop a plan forcovering job duties while the worker is on anticipatedleave

What Can Employers Do?

Effectively train managers

Respond to complaints promptly and effectively

Ensure light duty policies that apply to some categoriesof employees with on-the-job injuries also apply topregnant women

Evaluate other workplace policies

Check state and local laws for any additional (usuallymore expansive) requirements.

QUESTIONS?

William H. Floyd III

Columbia, SC

Service Animals and Legal Ob-

ligations: ADA, Dogs, Monkeys

& More

William H. Floyd, III*

*Certified Specialist in

Employment and Labor Law

[email protected]

(803) 253-8201

Wild Kingdom:

ADA and Service Animals

APRIL 21, 2016


2017 South Carolina Bar Convention www.nexsenpruet.com

2

2017 South Carolina Bar Convention www.nexsenpruet.com 3


Public Facilities

and

Accommodations

Housing

Employment


EMPLOYMENT

5

‣ ADA, Title I (private employers with 15 or more

employees

‣ Rehabilitation Act, Section 501 and 504

‣ Section 501 applies to federal agencies

‣ Section 504 applies to federal funded program or

entity


EMPLOYMENT

6

‣ Title I of the ADA covers the equal opportunity for

individuals with disabilities in the context of employment

‣ 42 USC §§ 12111 through 12117

‣ Title I does not define what a “Service animal” is, however

it is defined under Titles II and III of the ADA


WHO DOES THE ADA APPLY TO?

7

Protections apply to an otherwise qualified individual with a

disability.

See 29 CFR § 1630.2(o)(4).


PUBLIC FACILITIES AND

ACCOMMODATIONS

8

‣ ADA, Title II – State and local government facilities and

activities

‣ ADA, Title III – Public places (e.g. restaurants)

‣ Rehabilitation Act, §504 – federal government facilities

and federal funding


HOUSING

9

‣ Fair Housing Act – applies to provide housing

‣ Rehabilitation Act, Section 504 – applies to federal

housing and facilities

‣ ADA, Title II – applies to state or local government

housing

‣ SCHAC – prohibits housing discrimination


EMPLOYMENT


EMPLOYMENT

11

‣ There are high prices to pay for refusing to allow employees

to bring their service dogs into the workplace.

‣ See EEOC Press Release: Direct Optical to Pay $53,000 to Settle

Disability Discrimination Suit. April 14, 2014.

‣ Employer denied an employee's request for the reasonable accommodation to

bring her service dog to work because of her generalized anxiety disorder. The

dog alerted her to oncoming panic attacks, helped alleviate symptoms during a

panic attack, and could also do other tasks, such as retrieve small objects,

retrieve her medical bag and guide her to an exit.

‣ They settled for $53,000 dollars.


12

‣ Showing a Prima Facie Case of Disability

‣ Roush v. Westeac, Inc., 96 F.3d 840 (6th Cir. 1996)

‣ In order to establish a prima facie case of disability

discrimination, a plaintiff must show that:

‣ (1) he has a disability;

‣ (2) he was qualified for the job; and

‣ (3) he was either denied a reasonable accommodation for his

disability or was subject to an adverse employment decision

based solely upon his disability.


13

‣ Facts:

‣ Plaintiff’s kidney condition, although severe, was

temporary, and did not constitute a disability

within the meaning of the ADA because this

condition did not presently substantially limit a

major life activity.

‣ However, plaintiff’s bladder condition was chronic

and caused her severe pain such that she could

not engage in work without medication. Plaintiff

therefore created an issue of material fact as to

whether the bladder condition was a disability

within the meaning of the ADA.

Roush v. Westeac, Inc., 96 F.3d 840 (6th Cir. 1996)


EMPLOYMENT: REASONABLE

ACCOMMODATION VS. UNDUE HARSHIP

14

Reasonable Accommodation

‣ “Modifications or adjustments to the work environment that enable an individual

with a disability who is qualified to perform the essential functions of the position;

or…to enjoy equal benefits and privileges of employment as are enjoyed by other

similarly situated employees without disabilities.

‣ Federal guidance suggests that permitting employees to use service animals may

be a form of “reasonable accommodation” although Title I does not specifically

mention service animals.

‣ See 29 C.F.R. Appendix to Part 1630 – Interpretive Guidance on Title I of the Americans with

Disabilities Act Introduction, SS 1630.2(o) (“it would be a reasonable accommodation for an

employer to permit an individual who is blind to use a guide dog at work even though the employer

would not be required to provide a guide dog for the employee [under Title I]”).


EMPLOYMENT: REASONABLE

ACCOMMODATION VS. UNDUE HARDSHIP

15

Undue Hardship

‣ An employee must provide a reasonable accommodation for the disabled

employee unless doing so would constitute an “undue hardship” or would “pose a

significant risk of substantial harm to the employee or others in the workplace.”

‣ See Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the

Americans with Disabilities Act (2002), https://www.eeoc.gov/policy/docs/accommodation.hmtl.

https://www.eeoc.gov/policy/docs/accommodation.hmtl


REASONABLE ACCOMMODATIONS

16

‣ When deciding whether an accommodation is reasonable,

the employer is to consider (1) the particular job involved

and its essential functions, (2) the limitations of the

employee and how they can be overcome, (3) the

effectiveness of the accommodation in enabling the

individual to perform the job, and (4) the employee's

preference. See Keever v. City of Middletown, 145 F.3d

809, 812 (6th Cir. 1998) (citing 29 C.F.R. § 1630.9(a)).


17

‣ An employer’s wrongful refusal to allow a disabled person

to utilize a service dog in the workplace can constitute a

failure to provide a reasonable accommodation.


18

‣ Example: Schultz v. Alticor/Amway Corp., 177 F. Supp. 2d

674 (W.D. Mich. 2001). ‣ Plaintiff’s basic job duty involved developing detailed design drawings of existing and

proposed equipment and facilities layouts. Plaintiff had disabilities that caused hearing

loss and mobility difficulties for which he used a service dog. His coworkers complained

about the service dog, and his employer told him to stop bringing in the dog.

‣ The court rejected Plaintiff’s claim of disability discrimination, reasoning that the service

dog did not aid the employee in performing the “essential functions” of his job.

‣ Employee’s job required working at a desk the vast majority of the time, his contact

with other employees was minimal, and employee failed to identify any function of

the job that required the aid of his service dog

‣ It was difficult for the court to imagine what the aid of a service dog would provide

the employee in performing the various duties of his job


19

‣ Court found that the employer, U.S. Department of

Veteran’s Affairs, reasonably accommodated a completely

blind employee’s need for a service dog even though on one

occasion, a supervisor asked the employee to take the dog

further away from a highly trafficked area to relieve itself

‣ Disabled employee felt that her employer’s request was

highly unreasonable because she felt it was dangerous for

her to walk farther away from the building

‣ Court held that the employer reasonably accommodated her

disability – no reasonable jury would conclude that this

accommodation was inadequate because of “one single

incident that the employee perceived as insensitive.”

‣ The employer reasonably accommodated her in many ways: arranged

more frequent vacuuming due to employees’ allergies and complaints,

paid $800 for a special air filter for dog dander, addressed mistreatment

from her coworkers about the service dog

BONNETTE V. SHINSKEI, 907 F.SUPP.2D 54 (D.D.C. 2012)


AGOSTINO V. COLLIER TWP., 2010 WL 1992548 (W.D.

PA. APR. 12, 2010)

20

‣ Court found that it was not a “reasonable accommodation”

to have to provide a police officer, who had no sense of

smell, with a K-9 dog.

‣ The officer’s claim was that his inability to smell rendered

him unfit to perform his work as a police officer, such as

detecting the smell of alcohol. His employer denied his

request to be provided with a K-9 because it would be

extremely costly for the unit, since the police unit had no

other K-9 officers so it would be costly training.

‣ The officer failed to establish a prima facie case of

discrimination. According to the court, the costs of

providing the officer a dog “clearly did not exceed the

benefits” of accommodating the employee.

‣ Also, the employee failed to demonstrate that his inability to smell

rendered him unable to perform basic work functions. For example,

court reasoned that there are other ways to detect to presence of

alcohol. Therefore, there was no need to accommodate this disability.


BRANSON V. WEST, 1999 WL 1186420 (N.D. ILL. DEC. 10, 1999)

21

‣ Court granted a permanent injunction to an

employee who was wheelchair-bound

requiring her employer to allow her service

dog to accompany her to work.

‣ Employer, a hospital, failed to make a

reasonable accommodation for her where

they denied her the accompaniment of her

service dog while at work.

‣ Court held that this would be a “reasonable

accommodation” for the hospital even

though they argued that allowing the dog to

accompany the employee to work would

cause a “logistical nightmare” because it

would require the hospital to prevent the

dog’s contact with allergic or fearful patients

and other employees.


TYPES OF SERVICE ANIMALS

22

‣ Under the ADA: “dogs”

‣ See Revised ADA Requirements: Service Animals (2010)

https://www.ada.gov/service_animals_2010.htm

‣ There is also a separate provision that would allow miniature

horses in some situations. 28 C.F.R. § 35.136(i); 28 C.F.R. §

36.302(c)(9).

‣ “Wild animals” as service animals, are rare, but lawsuits

happen. Some cases have been reported as to their status

as service animals in the public accommodation and

household context




EMOTIONAL SUPPORT ANIMALS

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‣ The ADA does not consider these types of animals to be

“Service animals” as they are defined in the code.

‣ 28 C.F.R. § 35.104 (“[T]he provision of emotional support, well-

being, comfort, or companionship do not constitute work or tasks for

the purpose of this definition.”)



24

‣ The ADA does, however, distinguish between emotional support

animals and psychiatric service animals

‣ A “psychiatric service dog” is a dog that has been trained to perform

tasks that assist individuals with disabilities to detect the onset of

psychiatric episodes and lessen their effects.

‣ Tasks performed by psychiatric service animals may include

reminding a handler to take medicine, providing safety checks or

searches, turning on lights for individuals with PTSD, interrupting

self-mutilation by persons with dissociative identity disorders, and

keeping disoriented individuals from danger.

See 28 C.F.R. § 36.104; Frequently Asked Questions about Service Animals and the

ADA, U.S. Dept. of Justice, Civil Rights Division, Disability Rights Section (July 2015)

https://www.ada.gov/regs2010/service_animal_qa.html



25

‣ However, some laws such as the Fair Housing Act recognize emotional support animals

‣ The Fair Housing Act makes it unlawful to refuse to make reasonable accommodations in

policies or practices when a person with a disability requires such an accommodation, which

includes refusing to grant waivers to “no-pet” policies for persons who use assistance or

support animals.

‣ This includes “emotional support animals,” which provide support that alleviate one or more

identified symptoms or effects of a person’s disability.

‣ There are additional requirements under the fair housing act, however

‣ May ask for further documentation from your doctor that the animal provides emotional support to alleviate

symptoms of your disability

Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs, Office of Fair

Housing and Equal Opportunity (Apr. 25, 2013)

http://portal.hud.gov/hudportal/documents/huddoc?id=servanimals_ntcfheo2013-01.pdf


SUMMARY

26

1.Qualified individual with a disability

2.Reasonable accommodation

‣ Service animal

‣ Emotional support animal

3.Undue hardship


PUBLIC ACCOMMODATIONS


ADA TITLES II AND III

28

‣ “Service animal” means any dog that is individually trained

to do work or perform tasks for the benefit of an individual

with a disability, including a physical, sensory, psychiatric,

intellectual, or other mental disability. Other species of

animals, whether wild or domestic, trained or untrained,

are not service animals for the purposes of this

definition.

See 28 C.F.R. § 36.104.



29

‣ The work or tasks performed by a service animal must be

directly related to the individual’s disability.



30

‣ “Directly Related”

‣ This has been interpreted loosely. Plaintiffs must show “some

evidence of individual training to set the service animal apart

from the ordinary pet.” Baugher v. City of Ellensburg, 2007 WL

858627 (E.D. Wa. 2007) (quoting Prindable v. Ass’n of

Apartment Owners, 304 F.Supp.2d 1245, 1256 (D.Haw.2003))



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‣ “Directly Related”

‣ One case found that a small Shih Tzu/Poodle mix named Jazz

was a service animal since it provided “minimal protection”

and “retrieved small dropped items for a quadriplegic, who

used a wheelchair for mobility.” DuBois v. Ass'n of Apartment

Owners of 2987 Kalakaua, 453 F.3d 1175 (9th Cir.2006).



32

‣ Examples of work or tasks include, but are not limited to:

‣ assisting individuals who are blind or have low vision with navigation and

other tasks,

‣ alerting individuals who are deaf or hard of hearing to the presence of people

or sounds,

‣ providing non-violent protection or rescue work,

‣ pulling a wheelchair,

‣ assisting an individual during a seizure,



33

‣ alerting individuals to the presence of allergens,

‣ retrieving items such as medicine or the telephone,

‣ providing physical support and assistance with balance and

stability to individuals with mobility disabilities, and

‣ helping persons with psychiatric and neurological disabilities by

preventing or interrupting impulsive or destructive behaviors.

28 C.F.R. § 35.104


ESTABLISHING THE CONNECTION

34

‣ In order to establish that a dog is a service animal, it is not necessary to provide

evidence of certified training, nor is it necessary to provide documented evidence

of training rather than only testimony.



35

‣ Kennedy House, Inc. v. Philadelphia Com’n on Human Relations, 143 A.3d 476

(Commonwealth Court of PA 2016)

‣ Here, the court found an insufficient nexus between a person’s disability, which

affected her mobility, and her dog who helped remind her to take her medications and

get out of bed.



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‣ See Cordoves v. Miami-Dade County, 92 F.Supp.3d 1221, 1230 (S.D. Fl. 2015)

‣ The plaintiff demonstrated a genuine dispute of fact as to whether his dog was a

service animal where the dog was trained to detect when the plaintiff was about

to have a panic attack by jumping on the plaintiff, pawing her, nudging her chin,

and calling on her caretaker to assist in order to alert her.



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‣ Some Exceptions – a person with a disability can ONLY be asked to

remove his service animal from the premises if:

‣ (1) the dog is out of control and the handler does not take effective action to

control it; or

‣ (2) the dog is not housebroken

‣ Before asking the handler to remove the dog from the premises, the

staff must offer the person with the disability the opportunity to obtain

goods or services without the animal’s presence.

‣ Revised ADA Regulations Implementing Title II and Title III (2010),

https://www.ada.gov/regs2010/ADAregs2010.htm




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‣ The crime deterrent effects of an animal's presence and

the provision of emotional support, well-being, comfort, or

companionship do not constitute work or tasks for the

purposes of this definition.

‣ 28 C.F.R. § 36.104



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‣ Establishments that sell or prepare food must allow

service animals in public areas even if state or local health

codes prohibit animals on the premises.

‣ https://www.eeoc.gov/facts/restaurant_guide.html



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‣ In order to bring an ADA claim under the public accommodation

prong, the discrimination must be intentional.

‣ Sears v. Bradley County Government, 821 F.Supp.2d 987 (E.D. Tn. 2011)

‣ Courthouse employee refused Plaintiff’s entry into the courthouse because he

genuinely believed that animals were not allowed into the courthouse, even though

it turns out Plaintiff’s dog was a service dog under the ADA.

‣ Court stated that it is not enough for a plaintiff to show that the defendant acted

voluntarily in performing some action against the disabled person, such as denying

entry into a building. The courthouse employee was not “motivated by

discriminatory intent” but acted on some other benign motive (here, his genuine

confusion and lack of knowledge as to how to handle service animals). Therefore,

defendants were entitled to summary judgement on Plaintiff’s ADA claim.



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‣ When it is not obvious what service an animal provides, only limited

inquiries are allowed by staff at a public place:

‣ (1) Is the dog a service animal required because of a disability?

‣ (2) What work or task has the dog been trained to perform?

Revised ADA Regulations Implementing Title II and Title III (2010),





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‣ STAFF CANNOT ASK:

‣ About the person’s disability

‣ Ask for medical documentation

‣ Require special identification or training documentation

‣ Ask for the dog to demonstrate its ability to perform the work or task

Revised ADA Regulations Implementing Title II and Title III (2010),




ADA TITLES II AND III – MINIATURE HORSES

43

‣ Despite the language of 28

C.F.R. § 36.104, entities must

make reasonable modifications

in policies to allow individuals

with disabilities to use miniature

horses if they have been

individually trained to do work or

perform tasks for individuals with

disabilities. See 28 C.F.R. §

35.136



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‣ Plaintiff alleged that her miniature horse named Ellie was a

service animal under the ADA because it was trained to assist

her by steadying her as she walks so that she can enjoy

recreation and exercise. She brought suit against the city, who

claimed that her horse threatened the City’s “legitimate safety

requirements” and was requiring her to get rid of the horse.

‣ Court found that even though Plaintiff only needed the horse at

certain times and places it can still qualify as a service animal.

‣ ADA does not specify the amount or type of training that a

horse must undergo to qualify as a reasonable modification for

a disabled person

‣ Additionally, because Plaintiff produced evidence that it would

be reasonable for her to keep the miniature horse at her house

and because she disabled and the miniature horse qualified as

a service animal under the ADA, the defendant’s claim for

summary judgment was precluded.

Anderson v. City of Blue Ash, 798 F.3d 338 (6th Cir. 2015)



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‣ See also Access Now, Inc. v. Town of Jasper, 268

F.Supp.2d 973 (E.D. Tn. 2003) ‣ Miniature horse which 9-year-old girl suffering from spina bifida sought to

keep at her house was not a “service animal” under the ADA, where the

horse had only “some training” to be well-behaved around people and

follow basic commands, and where the horse’s owner was not disabled

within the meaning of the ADA and did not perform tasks for the owner’s

benefit to help her overcome or deal with her disability.


MONKEYS

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‣ Plaintiff suffered from autism and brought suit challenging a law

that made it illegal to possess a non-human primate unless it was

used to aid an and assist an individual with a disability. Plaintiff was

given a citation for violating this law. She brought suit alleging that

her four monkeys were service animals under the ADA, therefore

she was entitled to an accommodation for her disability.

‣ The court held that although her enjoyment of dressing the

monkeys had a calming effect on the plaintiff, she failed to allege

how the monkeys were trained to do tasks or what tasks they

performed to accommodate her disability. Additionally, although

plaintiff submitted into evidence an email from a hospital nurse that

indicated the monkey had assisted with clearing the plaintiff’s

airway while she slept or had a seizer, there was no indication that

the monkey was trained or an explanation of how a constricted

airway related to the plaintiff’s disability (autism).

Newberger v. Louisiana Dept. of Wildlife and Fisheries, 2012 WL 3579843 (E.D. La. 2012).


SUGAR GLIDERS

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‣ Plaintiff brought suit against a medical center alleging that

he was discriminated against when his animals were

denied access into his in-patient recovery room.

‣ However, the court held that the medical center provided

non-discriminatory rationale for the denial of the animals,

namely a concern for the safety and health of Plaintiff and

other patients, and the risk of post-surgical infection from

animals.

‣ Furthermore, the court stated that the definition of “service

animal” was limited to “dog[s] that are trained to do work or

perform tasks for the benefit of an individual with a

disability…” All other animal species, whether wild or

domestic, trained or untrained, are not services animals

under this definition, so the sugar gliders did not qualify.

Therefore, the plaintiff failed to plead sufficient facts to

support an ADA claim against the medical center because

his sugar gliders are not considered service animals.

Capell v. NC Div. of Vocational Rehabilitation Services, 2011 WL 3501894 (W.D. N.C. 2011).


William H. Floyd, III*

*Certified Specialist in

Employment and Labor Law

[email protected]

(803) 253-8201

Wild Kingdom:

ADA and Service Animals

APRIL 21, 2016


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