legal memo 法律备忘录(21)

legal memo

While not as strategically desirable as policies that are discriminatory on their face, facially neutral policies can "violate the ADA when such policies unduly burden disabled persons, even when such policies are consistently enforced." McGary, 386 F.3d at 1265 (rejecting the state's argument that it did not discriminate "by reason of' plaintiff's disability because non-disabled residents were subject to the same ordinance). In Crowder, the Ninth Circuit held that although Hawaii's quarantine of dogs applied equally to all persons entering the state, the enforcement of the quarantine unduly burdened visually disabled persons "in a manner different and greater than", Crowder, 81 F.3d at 1484; see also McGary, 386 F.3d at 1265 (adding disproportionate burden as a third characterization of how a facially neutral policy can violate the ADA).

Facially neutral policies can amount to discrimination in violation of the ADA when there is a failure to make a reasonable accommodation, Crowder, 81 F.3d 1480, or a denial of "meaningful access." Scott, 370 F.Supp.2d at 1075.40

The distinction between lack of "meaningful access" and failure to make a reasonable accommodation is as a practical matter indistinguishable. The Ninth Circuit interpreted the U.S. Supreme Court's holding in Alexander v. Choate, 469 U.S. 287, 83 L. Ed. 2d 661, 105 S. Ct. 712 (1985) "that judicial review over each and every instance of disparate impact discrimination would be overly burdensome [a nd] … Rather than attempt to classify a type of discrimination as either 'deliberate' or 'disparate impact,' the Court determined it more useful to assess whether disabled persons were denied "meaningful access" to state-provided services." Crowder, 81 F.3d 1480, citing 41Choate, 469 U.S. at 302.

42In Scott v. Garcia, an inmate brought an ADA challenge alleging discrimination when prison officials and policy failed to allow him additional time to consume his meals in the prison cafeteria. Scott, 370 F.Supp.2d at 1059-60. Having established that his gastrointestinal disease was a disability and that he was otherwise qualified individual entitled to the benefit of food, the Ninth Circuit determined that the policy and the correction officials had denied the inmate "meaningful access" to the "prison food service." Id. at 1075. The existing policy which did not allow him to follow medical advice and eat food small frequent meals and avoid certain foods altogether was deemed a denial of meaningful access. Id.

What constitutes a reasonable modification or accommodation under the ADA is a fact-specific inquiry of the reasonableness of the modification given the circumstances of the disabled individual by applying the Arline risk factors: (1) the nature of the risk (how the disease is transmitted); (2) duration of the risk (how long is the carrier infectious), (3) the severity of the risk (what is the potential harm to third parties) and (4) the probabilities the disease will be transmitted and will cause varying degrees of harm. Crowder, 81 F.3d at 1483; see also McGary, 386 F.3d at 1270 (holding that a plaintiff had alleged sufficient factual allegations of failure to provide a reasonable accommodation when the city refused to grant him an variance to clean up his property until the meningitis brought on by AIDS allowed him to leave the hospital).

When challenging a violation of Title II of the ADA for failure to make a reasonable modification, defendants can raise the affirmative defenses of fundamental alteration or undue hardship. 43Bullock v. Gomez, 929 F. Supp. 1299 (D. Cal. 1996) citing 28 C.F.R. Pt. 35, App. A at 466 (1995). ("Title II requires a public entity to make its programs accessible in all cases, except where to do so would result in a fundamental alteration in the nature of the program or in undue financial and administrative burdens."). Public entities are required to "to make reasonable modifications … unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity." 28

C.F.R. § 35.130(b)(7) (2004); Townsend v. Quasim, 328 F.3d 511, 516-17 (9th Cir. 2003). Financial and resource limitations can be used to show fundamental alteration, Olmstead v. L.C., 527 U.S. at 587, but "budgetary constraints alone are insufficient to establish a fundamental alteration defense." Pa. Prot. & Advocacy, Inc. v. Pa. Dep't of Pub. Welfare, 402 F.3d 374, 380 (3d Cir. 2005); Townsend, 328 F.3d at 520 (focusing instead on whether extra expense would, in fact, compel cutbacks in services to other beneficiary recipients).

Here, certain conditions of confinement such as the solitary confinement, wearing handcuffs when outside lest he remove any facemask, and freely moving about for reasons other than seeking medical treatment would be heavily scrutinized to see if the current policy comports with the Crowder reasonableness standard. Others, such as the frosted window not allowing him to see outside, no showers, no means whatsoever of interacting with the world seem as if they would fail under this reasonableness test. Mr. Daniels should be prepared to have the court apply the Arline factors to each condition of confinement to determine whether they comport with the standard.44

Strategically, this could come down to a "numbers game" where the defendants raise arguments such as the cost of washing down the shower after every one of Mr. Daniels' use, or the cost of maintaining protective equipment for escorts and handlers. However, it appears that after Crowder, the state cannot rely on purely financial and budgetary arguments. Mr. Daniels has a very good chance of effecting some practical changes in his conditions, shou …… 此处隐藏：3768字，全部文档内容请下载后查看。喜欢就下载吧 ……