You Can Still be Subject to Place of Public Accommodation Rules Even if You are Not a Place of Public Accommodation

Picture of Hockey helmet, puck, and stick (brown and black colors).

 

As readers know, I have long been interested in the intersection of the ADA and sports. Many of my blog entries cover that topic. The very first edition of Understanding the ADA back in 2000 had a whole chapter on it. The subsequent editions of my book always had a chapter on it. As far as the book goes, think of my blog like as updating the book in real time from week to week. The case of the day, M.U. v. Team Illinois Hockey Club, Inc. and the Amateur Hockey Association of Illinois, Inc., here, is one such case. I had the complaint in my pipeline for quite a long time. Yesterday, I decided to try and figure out whatever happened to that case. When I did that I found out that the case had been appealed to Appellate Court of Illinois and that the Appellate Court of Illinois, Second District issued a decision on August 19, 2022. The decision bears discussing because it covers a lot of topics that we have covered before. By way of explanation, the ¶ is what appears in every Illinois opinion. Several years ago, Illinois went to an Internet-based citation system and the ¶ is how you cite to a particular case. As usual, the case is divided into categories and they are: facts; Team Illinois is not a place of public accommodation; Team Illinois is not a place of public accommodation but it doesn’t matter; plaintiff properly pled that the Amateur Hockey Association of Illinois aided and abetted discrimination; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Plaintiff is a high school student and long-time player of hockey in organized hockey leagues and teams. She is also a person with a disability, in that she suffers from anxiety and depression. She has received professional medical and mental health support, and her medical providers approved and encouraged her hockey playing as a means to support her mental health. Over the years, plaintiff’s mental health has benefited from the physical activity, structure, and social connections that come with playing on a hockey team.

 

¶ 4 Prior to the 2019-20 hockey season, plaintiff participated in public tryouts for, and later joined, the “Girls 14U [hockey] team” operated by Team Illinois. Team Illinois is an Illinois nonprofit corporation that operates youth hockey teams as part of AHAI, which is the governing body in Illinois for USA Hockey. Team Illinois offers a variety of activities and services, including club hockey teams, practices, clinics, workouts, team meals, travel opportunities, sessions to review game tape, coaching, and opportunities to play in hockey games and tournaments before family, friends, hockey scouts, and the general public. Relatedly, AHAI is an Illinois nonprofit corporation and affiliate of USA Hockey. It regulates and controls youth hockey leagues and teams throughout the state, including Team Illinois.

 

¶ 5 Team Illinois “leases and operates the Seven Bridges Ice Arena” (Seven Bridges) in Woodridge, in addition to other related facilities, for its activities and services. Seven Bridges is open to the public and includes “an ice rink with space for spectators, locker rooms, training facilities, concessions, offices for Team Illinois, and other related facilities.” Most of Team Illinois’s activities, such as hockey tryouts, practices, and games, are held at Seven Bridges. – 2 – 2022 IL App (2d) 210568

 

¶ 6 On November 13, 2019, just prior to hockey practice, plaintiff and her mother informed plaintiff’s coach, Larry Pedrie, that plaintiff struggled with mental health and suicidal thoughts. Plaintiff’s mother also informed Pedrie that plaintiff had the support of mental health providers and she expressed that hockey was an important and supportive aspect of plaintiff’s life.

 

¶ 7 The next day, November 14, 2019, Pedrie spoke to Mike Mullally, who is both a member of AHAI’s board of directors and a director of the central district for USA Hockey. Together, they “agreed *** to banish [plaintiff] from Team Illinois until she was able to participate 100% in Team Illinois Activities.” Pedrie then called plaintiff’s parents and informed them that, due to her suicidal thoughts, depression, and anxiety, plaintiff was prohibited from participating in Team Illinois activities and events until she could be “cleared by a doctor to return to 100% of Team Illinois activities.”

 

¶ 8 Team Illinois likewise “prohibited [plaintiff] from [having] any contact with Team Illinois players,” and it sent an e-mail to the other players and their parents directing them to have no contact with plaintiff. The e-mail stated that plaintiff was removed from any involvement and communication with her teammates until she was back to “the positive, happy, smiling kid that we all know she is.” On November 16, 2019, Pedrie reiterated in an e-mail that plaintiff was prohibited from Team Illinois activities until she could “take part 100% in all team activities,” including team strength training sessions and practices, as well as attend all games and all other team functions, such as meals, meetings, and video sessions. Two days later, on November 18, 2019, plaintiff’s parents had a telephone call with Mullally, who “confirmed that he and [Pedrie] had *** decided to exclude [plaintiff] from hockey” and “reaffirmed the 100% participation requirement as AHAI’s position for when [plaintiff] could return to hockey.” – 3 – 2022 IL App (2d) 210568

 

¶ 9 Plaintiff was barred from Team Illinois activities until December 11, 2019—after her parents obtained counsel and threatened litigation. In all, plaintiff was prohibited from Team Illinois activities for just under one month. She completed the 2019-20 hockey season with Team Illinois and thereafter began playing hockey for a different youth hockey team within AHAI’s purview.

 

¶ 10 On April 9, 2020, plaintiff filed a charge of discrimination with the Illinois Department of Human Rights (Department), asserting that defendants subjected her to discriminatory treatment because of her disability. In February 2021, after an investigation, the Department dismissed the charge because it found that the claim lacked substantial evidence.

 

¶ 11 On April 20, 2021, plaintiff timely filed a three-count complaint against defendants, alleging disability discrimination in violation of the Act and seeking damages and injunctive relief. See id. § 7A-102(D)(3) (providing that, if the Department concludes that the charge lacks substantial evidence, the complainant may “seek review of the dismissal order before the [Human Rights] Commission or commence a civil action in the appropriate circuit court”). Counts I and II alleged that Team Illinois violated the Act by denying her the full and equal enjoyment of Team Illinois facilities (including Seven Bridges) and services because of her disability or, in the alternative, that she was denied those things because she was perceived by Team Illinois to have a disability. Count III alleged that AHAI, through Mullally, “aided, abetted and/or conspired” with Team Illinois to violate the Act.

 

 

II

Court’s Reasoning That Team Illinois Is Not a Place of Public Accommodation

 

1. 775 ILCS 5/5-101 describes what is a place of public accommodation under the Illinois Human Rights Act (the list is identical to what is seen in 42 U.S.C. §12181(7) except that it adds public conveyances on air, water, or land as an additional category).
2. Neither a youth hockey team nor any type of Sports Association organization is specifically enumerated and what is a place of public accommodation in the Illinois Human Rights Act.
3. When a statute lists several classes of persons of things but provides that the list is not exhaustive, the class of unarticulated person or things is interpreted as those other such named persons or things.
4. Places of public accommodation in §5-101(A) relate to physical, tangible places.
5. Article 5 of the Act prohibits the denial or refusal of the full and equal enjoyment not of public accommodation but rather of a public place of accommodation.
6. While the term “place,” is not defined, it is assumed that the legislature intended for it to have its ordinary and popularly understood meaning. When one looks at the dictionary, dictionaries repeatedly define place in terms of spatial location. Therefore, a straightforward reading of §5-102(A) reveals that it concerns the facilities, goods, and services offered by a physical place, rather than some entity that is abstract or intangible.
7. All but one of the categories (public conveyances on air, water, or land), set forth specific examples followed by a general residual or catchall clause. Those examples share a distinctive and unquestionable attribute as they all concern tangible physical places. Even the residual clauses that follow the specific examples are couched in terms of physical location.
8. In the clauses that use the term “establishment,” dictionaries make clear that establishment is also a physical place.
9. In a footnote, the court notes that several federal courts have distinguished between places of public accommodation and membership organizations in finding that the membership organizations are not places of public accommodations.
10. The biggest difference between Team Illinois and the entities listed as places of public accommodation in the Illinois Human Rights Act is that Team Illinois is not itself a physical place. As such, that feature alone is enough to exempt Team Illinois, the organization, from the definition of a place of public accommodation.
11. In another footnote, the court notes that the various U.S. Courts of Appeals are divided on whether a public accommodation must be a physical place. The First, Second, and Seventh Circuits hold that a public accommodation is not limited to physical structures. On the other hand, The Third, Fifth, Sixth, and Ninth Circuits hold that a public accommodation must be or have a connection to a physical place.

 

II

Team Illinois Is Not a Place of Public Accommodation but it Doesn’t Matter

 

1. Federal authority is clear that athletic organizations are subject to civil rights laws if the exercise sufficient control over a place of public accommodation by, for example, leasing or operating the venue where its public sporting events are held.
2. The controlling case is PGA Tour v. Martin, here , where the Supreme Court held that the PGA Tour was subject to title III of the ADA because the events occurred at golf courses, which are specifically enumerated as a place of public accommodation under the ADA. Additionally, the PGA Tour leased and operated the golf courses for qualifying rounds and tours. The court said that as a leasing entity and operator of golf courses the PGA Tour could not discriminate against any individual in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of those courses.
3. In Martin, the Supreme Court explained that the privileges offered by the PGA Tour at golf courses were: 1) the privilege to observe the competition; and 2) the privilege to compete in it. The Supreme Court stated that although the latter privilege is more difficult and more expensive to obtain than the former, it is nonetheless a privilege that the PGA Tour makes available to members of the general public. Therefore, because the golfer qualified to play in the tour, the ADA prohibited the PGA Tour from denying him equal access because of his disability. In other words, the ADA prohibited the PGA Tour from discriminating against not only the spectators at its advanced but also the competitors themselves.
4. Martin stated in broad terms that even though the PGA Tour was a private organization and not itself a place of public accommodation, it was nevertheless subject to the ADA as a leasing entity and operator of a place of public accommodation-the golf course.
5. Martin is directly on point to this case: 1) Team Illinois is a membership organization holding competitive sporting events at a place of public accommodation; 2) Seven Bridges, which is where the events are held, is a place of public accommodation under the Illinois Human Rights Act because it is of the type of activity like a golf course, which is specifically listed as a place of public accommodation; and 3) while Team Illinois is not a place of public accommodation, it is subject to the Illinois Human Rights Act because it barred plaintiff on the basis of her disability from participating in Team Illinois events, such as hockey games and tournaments, that were held at a place of public accommodation that Team Illinois leased and operated.
6. Team Illinois by virtue of its lease and operation of a place of public accommodation offer the general public at least three distinct services: 1) watching Team Illinois competition; 2) open tryout turn membership on the team; and 3) the opportunity to actually play in competitive hockey games as a member of the team if selected. As in Martin, while earning a spot to play in competitive athletics for Team Illinois is distinctly more difficult and expensive than simply watching the team play, it nevertheless is a privilege that Team Illinois makes available to the public at Seven Bridges-a place of public accommodation.
7. It doesn’t matter that profit is not involved because the Martin decision did not turn on profit aspirations. In fact, profit aspirations were not even mentioned in Martin.
8. Martin teaches that once a place constitutes a place of public accommodation, the service allegedly denied to the plaintiff need not have been available to the general public. Therefore, the fact that Team Illinois is selective in choosing its members is not important because a facility does not lose its status as a place of public accommodation merely because entry to the field of play during athletic competitions is limited. Here, the plaintiff earned a place on Team Illinois roster and therefore, Team Illinois cannot then deny her on the basis of her disability the privilege of participation at athletic events held at place of the public accommodations, such as Seven Bridges.
9. Federal courts have relied on Martin to hold that other athletic organizations open to the public and tied to places of public accommodations are subject to the ADA (NCAA and a youth football Association for example).

 

III
Plaintiff’s Claim Alleging That the Amateur Hockey Association of Illinois Aided and Abetted Discrimination Was Properly Pled

 

1. Plaintiff adequately allege facts to support that the Amateur Hockey Association of Illinois through a board member aided and abetted Team Illinois and violating the Illinois Human Rights Act.
2. Specific allegations were made that Team Illinois and the board member spoke and agreed to exclude plaintiff from Team Illinois until she was able to fully participate in its activities. That conversation was confirmed in a subsequent phone call that also reaffirmed the 100% participation requirement at the American Hockey Association of Illinois’s position for when plaintiff could return to Hockey. The joint decision is sufficient for a showing that the American Hockey Association of Illinois knowingly and substantially assisted in violating the Illinois Human Rights Act.

 

IV

Thoughts/Takeaways

 

1. The Illinois Protection and Advocacy organization, Equip For Equality, filed an amicus brief for the plaintiff. This organization does tremendous work on behalf of people with disabilities in Illinois.
2. I continually am mystified by how plaintiff attorneys in cases where a question exists whether a place of public accommodation must be a physical place ignore the Supreme Court decision in South Dakota v. Wayfair, which we discussed here. As mentioned in that blog entry, the Supreme Court literally has 23 different statements strongly suggesting that a place of public accommodation need not be a physical place.
3. The Illinois Human Rights Act, similar to Texas, applies to public conveyances on air, water, or land as an additional category. With respect to air, there are serious preemption issues that arise thanks to the Airline Deregulation Act and that can get quite complicated (I have consulted on several such cases like that).
4. Per Martin, you do not have to be a place of public accommodation to be subject to the laws governing places of public accommodation when it comes to disability discrimination if you are using a place of public accommodation to carry out your activities.
5. I do look for the Supreme Court to eventually step in to try to figure out whether a place of public accommodation must be a physical place. I’m not optimistic that Congress will step in to clarify that. As far as what the Supreme Court will do, impossible to say. I will be completely befuddled if the plaintiff in such a case did not bring up South Dakota v. Wayfair.
6. We discussed PGA Tour v. Martin a bit in this blog entry,
7. There was also a 100% participation requirement of volunteer. We discussed here how 100% return to work policies are no longer kosher. 100% participation or return to work policies are a really bad idea.
8. It was not accurate for the court to say that all the plates of the public accommodations listed in the Illinois Human Rights Act concern physical places. Like 42 U.S.C. §12181(7), travel is also listed, which many courts have said over the years was not necessarily a physical place even at the time the ADA was enacted. Also, while the categories in both the Illinois human rights act and in 42 U.S.C. §12181(7) are exclusive, specific entities listed are not.
9. We discussed the applicability of the ADA to a youth football Association here.
10. In November 2022, the Illinois Supreme Court agreed to hear the case. I wasn’t able to find easily when it will be argued.

from Texas Bar Today https://ift.tt/NdUea87
via Abogado Aly Website