ADA Pleading Tips

Originally published by William Goren.

Happy new year everybody. Hope everybody enjoyed their holiday and is now raring to get back to work. Just to give everybody a heads up, the week of January 28 and February 3 may not see a blog entry for me at all. During those two weeks, I will be testifying in two different trials and attending and speaking at a convention. That means in that period of time I will be in three different cities (Houston-trial testimony; Austin-attending and speaking at the Accessibility Professionals Association convention; and Albuquerque-trial testimony).

 

Also, worth noting is the 11^th Circuit just came down with another huge decision in favor of Deaf, deaf, HOH communities. That case, which deals with the lack of captioning for legislative streaming by the State of Florida, can be found here. I blogged on the District Court opinion here.

 

Turning to today’s blog entry, I have a whole bunch of cases in my pipeline. For some time I have been thinking about doing a blog entry discussing how to plead ADA cases. I thought a list of tips would be very helpful. So, here goes:

 

1. Especially when it comes to disability discrimination cases, notice pleading is going to get a plaintiff into trouble. Much better off using a fact-notice hybrid. I’d like to think of it as the way Illinois does pleadings. That is, give enough facts to put a reasonable person on notice as to what the claims are. This applies regardless of whether exhaustion of administrative remedies is required first.
2. See if you can’t structure your substantial limitations on a major life activity allegations in such a way so that medical testimony will not be required.
3. Know the prima facie elements of the cause of action you are pleading. Depending upon the particular cause of action alleged and the jurisdiction you are in, those elements can vary.
4. Keep in mind that when it comes to summary judgment you will deal with any or all of the principles of direct evidence, indirect evidence, or convincing mosaic. These distinctions are not necessarily important for pleadings, but they are certainly important down the road when it comes to summary judgment.
5. If a title II case is involved, know how your court deals with intentional discrimination. What is intentional discrimination with respect to title II most certainly varies from jurisdiction to jurisdiction. This is much less of an issue with respect to title I cases.
6. If a title II entity is involved and the defendant is the State or an arm of the State, be prepared for a sovereign immunity defense. Know that sovereign immunity and persons with disabilities gets decided on a case-by-case basis and such analysis can get very complicated.
7. Know the various ways courts deal with when the statute of limitations in a disability discrimination case begins to run. Also, investigate what is the statute of limitations for disability discrimination in your state. The particular state statute used and the length of time can vary radically from State to State.
8. Depending upon the jurisdiction, not everything may be a separate cause of action. Rather, it may be part of another cause of action. For example, jurisdictions differ on whether failure to engage in the interactive process is a separate cause of action.
9. If a plaintiff, never plead working as the major life activity unless you absolutely have no choice.
10. On the defense side, don’t forget about any affirmative defenses, such as: undue hardship; undue burden; fundamental alteration; readily achievable, etc.
11. If a title II architectural barrier case, remember readily achievable doesn’t enter into the equation.
12. On the defense side, don’t forget about standing.

 

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