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Obesity Under the Americans With Disabilities Act

The U.S. has the dubious honor of being the on again off again world leader in obesity throughout the 21st century.  Mexico has only recently knocked us off our top spot. Obesity has grown from 13% of people in 1962 to 19.4% in 2003 to 35.7% in 2010.  The most recent figures show a slight decrease in obesity: only 34.9%, or 78.6 million U.S. adults, are obese.

Obesity-related illnesses have led to between 100,000 and 400,000 deaths per year in the U.S., depending on the statistics you read. Approximately $147B is spent on medical expenses for obesity-related diseases every year in the US—exceeding even the health care costs associated with smoking.

Obesity is clearly a serious health epidemic. However, it is a particularly divisive one.  While countless people struggle with obesity due to an underlying medical issue, it can also be caused by lifestyle and diet choices.  These diet choices can also be essentially forced on a person through food deserts, areas with little access to fresh food, limiting the availability and affordability of healthier food options.  This dichotomy has left the courts struggling to agree on an approach to obesity under the Americans With Disabilities Act (ADA)—the act which provides federal protection against discrimination based on a disability. Is obesity a disability?  How do we approach providing legal protection to people based on something that could be the product of potentially changeable behaviors?

Defining Obesity

In order to discuss obesity, we’ll first need to define exactly what it is. The American Medical Association (AMA)  has classified obesity and morbid obesity as diseases.  The AMA defines a disease as something which incorporates 1) an impairment of the normal functioning of some aspect of the body; 2) characteristic signs or symptoms; and 3) harm or morbidity.  While this isn’t a legally binding holding, it is persuasive and underscores how dangerous widespread obesity is as an epidemic. Obesity

Obesity is distinct from being overweight. While overweight is defined as simply being over a weight that is set for your height and bone structure, obesity requires having a body mass index (a comparison of your height to your weight) greater than 30.  To put that in context, the average healthy person has a BMI of 18.5-25.  Morbid obesity is defined as either having a body mass index of 40 or more, being greater than 100 pounds over the average weight for your height, or a body mass index of 35 or higher coupled with serious obesity-related medical complications.

A Changing Approach to Obesity Over Time

Up until 2008, the ADA did not cover obesity unless there was a proven underlying medical cause.  Some courts considered morbid obesity as a disability regardless of cause, but obesity without an associated medical condition basically never got the nod.  However, new amendments to the ADA in 2008 under the particularly hard to say ADAAA have changed the analysis of obesity by requiring that the term “disability” be provided a broader reading by the courts.

The ADA now defines disability as a person who has one of three things: a physical or mental impairment which substantially limits one or more major life activities, a history or record of such an impairment, or is perceived by others as having such an impairment.  The amendments also broadened the interpretation of “substantially limits” to require less, forbad the consideration of mitigating measures that could be taken in the analysis of a disability, expanded the definition of “major life activities,” and provided a non-exhaustive list of such activities which included caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.

These changes have made it much more likely that obesity, regardless of cause, is a protected disability under the ADA. The fact that mitigating measures that could be taken are not considered, coupled with the fact that obesity likely substantially limits many of the enumerated major life activities.  What’s more, a discrimination claim under the ADA now only requires a showing that a person’s been subject to adverse employment action (eg. fired or refused a promotion) because their employer perceives that they have a physical or mental impairment—regardless of whether they have an actual disability covered by the ADA or whether their impairment actually limits a major life activity. However, this type of discrimination can be awfully hard to prove without a smoking gun email or letter as it mostly concerns the mental state of an employer.

The Equal Employment Opportunity Commission (EEOC) certainly has decided that the changes mean that obesity is a disability, regardless of cause. After the ADAAA, the EEOC stated that, based on their guidelines, all obesity and morbid obesity are considered disabilities which can be subject to disability discrimination.

Since the changes, case law has been relatively sparse on the issue. However, recent cases are mixed in their approach.  A number of rulings since the ADAAA, including decisions as recent as 2010, 2012 and 2014 have held that obesity can be a disability, regardless of voluntariness. This being said, earlier this very year the 8th Circuit Appeals Court held that all obesity—including morbid obesity—can only be considered a disability if there is an underlying medical issue.

While some courts still seem reticent towards broad recognition of obesity as a disability, arguing the impracticality of declaring a third of the population disabled and that the actual disability of obesity is the underlying medical cause, the trend seems to be towards recognizing all obesity as a disability under the ADA. At the very least, it has reached the point where it would behoove employers to take steps to ensure they make reasonable accommodations—any accommodation that would not cause undue burden to the employer—for their obese employees.

Racially-Themed Dorms Fair for All?

California State University of LA (CSULA), UC Davis, UC Berkeley, and University of Connecticut (UCONN) have all recently come under scrutiny due to their racially themed dorms.  The concern is that the themed living arrangements—targeted as they are at persons of color—represent a revived attempt at racial segregation. These colleges are far from alone in offering such housing. There are quite a few campuses that offer similar housing arrangements.

The many housing arrangements vary from sections of a dormitory hall reserved exclusively for African-American men (UCONN), to sections of a dormitory hall designed to be focused on respect for the cultures of persons of color (CSULA and UC Davis), to entire houses dedicated to respecting the culture of persons of color (UC Berkely).

Joining these housing arrangements is 100% voluntary. With the exception of the UCONN hall section, all of these housing arrangements are open to any who apply.  The hall sections are all within a fully integrated dorm.  Generally, they are all created with the goal of creating a more comfortable space for persons of color—free from micro-aggressions and bullying.  The exception to this is, again, UCONN’s attempt at themed housing, which has a stated goal of promoting higher retention and graduation rates among African-American men.

My colleague has recently written a truly excellent article, addressing whether or not these themed housing arrangements are, in fact, veiled racial segregation. It notes that racial discrimination is still an everyday experience for persons of color—providing a safe space from hate crimes and bullying is something to be lauded. It also determines, probably correctly, that these themed dorms are not unconstitutional segregation. Dorm 2

However, the possibility of segregation is an extremely dangerous one. UCONN’s African-American male exclusive dorm hall has already drawn complaints from the U.S. Commission on Civil Rights as beneficent racism.  Their complaints cite the words of Dr. Kenneth B. Clark, the psychiatrist whose testimony contributed to the U.S. Supreme Court striking down segregation in schools once and for all—the greatest triumph of white racism would be “to persuade its black victims that segregation was not only acceptable but desirable in itself, and that the justification for this separatism was color alone.”

What are the potential dangers to minority students? What legal liability could the colleges implementing them may open themselves up to?

Segregation and Fair Housing Rules

Suffice it to say Supreme Court decisions and the Civil Rights Act of 1964 work together to make government and private acts of segregation illegal and unconstitutional today. However, despite being made unconstitutional over a half a century ago; segregation is still not exclusively a thing of the past.  With this in mind, the Fair Housing Act exists to prevent discrimination in housing—including in college dorms.

The Fair Housing Act prohibits, among other protected classes, race-based discrimination in housing by public or private actors. The Act protects against many types of discrimination, first and foremost refusal to rent or sell (or make available for rent or sale) a property to somebody based on a protected characteristic such as race. It also bars discriminating in terms of conditions rental or sale, misrepresenting availability of housing, or advertising for housing.  Fair housing claims also frequently arise out of discriminatory application processes.  The act also bars “steering,” or directing somebody to look in a specific place for housing based on a protected characteristic.

Even beyond all these protections provided by the Fair Housing Act, organizations which take grants from the federal government—such as every single university which has introduced racially-themed housing listed above—are held to an even higher standard by the U.S. Department of Housing and Urban Development (HUD). Just last year HUD published a ruled placing an obligation on those who take advantage of certain grants to affirmative further fair housing by taking “steps proactively to overcome historic patterns of segregation, promote fair housing choice, and foster inclusive communities for all.”

What Does This Mean for Themed Dorms and the Universities that Offer Them?

As my colleague determined, these themed dorms are very unlikely to be actual segregation based on the facts in front of us. Just considering that they are open to all who apply by itself points heavily in this direction.  The only program that is actually exclusionary in any sense is the UCONN program that has come under fire—only serving men who identify as black.  Even then, the fact that participation is totally voluntary would undercut most arguments of segregation.  HUD standards explicitly state that the Fair Housing Act does not prevent people from living where they choose—it only prohibits “policies and actions by covered entities and individuals that deny choice or access to housing or opportunity through the segregation of persons protected by the Fair Housing Act.”

The most common complaint now is “reverse racism.” To be blunt, these housing arrangements do not represent discrimination against white people.  While race-based discrimination under the Fair Housing Act does indeed include discrimination against Caucasians, such claims are generally held to a higher evidentiary standard because, not surprisingly, discrimination against majority groups is much more uncommon.

These housing programs are usually open to all who apply and represent a very small percentage of the comparable housing readily available, often within the same dormitory hall. We know nothing of the application and acceptance process.  Even were potentially discriminatory practices to come to light, it seems unlikely that this housing would pose a constitutional issue.

As has been seen with affirmative action in the past—including in the realm of housing—providing opportunities based on race can be acceptable where the purpose behind the policy is to offset previous and ongoing racial discrimination—something that undeniably exists for minorities in the realm of housing.  In fact, under HUD guidelines one could even argue that universities are required to make such safe-space housing available.

When it comes to fair housing generally, the issue essentially comes down to the terms, cost, and quality of the housing they provide. While most of the housing is open to all, housing such as UCONN’s is especially vulnerable to suit if the housing provided is not of comparable quality with other dorm halls.  What’s more, universities will need to be careful about steering.  Even well intentioned prodding towards racially-themed housing may well leave them vulnerable to a lawsuit.

It is important to be wary of any housing program which limits its services to such a narrow group of minorities. While creating safe spaces is indeed to be congratulated, it is crucial to keep an eye on the quality of the services and housing these programs offer.  It is a small step for such a program to move from safe spaces to segregation.

Black Priority Housing: Safe Haven or Return to Separate but Equal?

With most Universities back in session, many college students are settling into their housing, but the months leading up to school may have been riddled with anxiety about student housing.

On-campus housing is offered at most four-year universities. Campus housing is student housing that is owned and controlled by the college campus. It offers several benefits, including an environment where students can meet and befriend one another, on-campus housing (often within walking distance to classes), and may be cheaper than living off-campus.

California State University, Los Angeles (“CSULA”) is the most recent university to offer priority on-campus housing to their African American students. The housing is in response to demands from the campus’ black students who say they experienced insensitive remarks and “macroaggressions” (daily verbal, behavioral, or environmental indignities such as racial slights or insults) from white classmates. University of Connecticut, UC Davis and UC Berkeley already offer similar housing to their black students. Dorm

Proponents of the housing believe students can draw on their common experiences to support one another in black housing. Non-black students are not barred from applying for the housing.

While it is certainly admirable to enact housing regulations in an attempt to make black students feel comfortable on their own campus, the housing can be said to segregate black students. Are CSULA’s good intentions unintentionally contributing to the underlying problem of racism?

History of Segregation

Without going into the details of the horrific way our country treated blacks historically, African Americans have experienced extreme mistreatment, oppression, and inequality based entirely on their race.

In 1896, the pivotal constitutional law case of Plessy v. Ferguson upheld a legal doctrine that would be known as “separate but equal.” Under this doctrine, accommodations for blacks and whites could be separate but were for all intents and purposes supposed to be “equal.” They were not. Blacks had inferior everything – bathrooms, water fountains, schooling, modes of transportation, etc. Things were labeled “blacks” versus “whites” to designate who could use what. It was not a proud time in our history.

It wasn’t until 1954 that the “separate but equal” doctrine was overturned by the Supreme Court case of Brown v. Board of Education. The Court concluded that state laws establishing separate public schools for black and white students was unconstitutional, thereby overturning Plessy v. Ferguson. The case was one of the first acts of the Civil Rights Movement.

We have made great strides since the days of “separate but equal,” going so far as to elect our first African American president in 2008, but we still have a ways to go. Nothing exemplifies the disparity in treatment more than the recent “Black Lives Matter” movement. The movement was created in 2012 in response to Trayvon Martin’s murderer, George Zimmerman, being acquitted for his crime. Since then, numerous African Americans have been killed at the hands of citizen and police who have not been held accountable for their actions.

Will the Housing Stay?

Given the historical context and how many years it took to achieve desegregation, does the CSULA housing revert back to the days of segregation?

Probably not. Themed housing or student communities focusing on cultural identity is not new to college campuses. On-campus housing is offered to students based on their gender. Further, some colleges have “Common Interest Communities,” which provide students the opportunity to live in a space around a common interest, such as a social group, specific major or charity. None of these on-campus housing initiatives have been deemed inappropriate or criticized as a way to foster a culture of segregation within the school.

It is also important to note that CSULA is not the first campus to create black housing for its black students. The housing does not discriminate against peers who are not black, but wish to live in the designated housing. Finally, the housing was a direct result of requests from CSULA’s black students, who felt that some of their white counterparts were acting aggressively toward them.

And we mustn’t forget the case of the freshman African American student, Donald Williams Jr., who was assigned a dormitory suite with seven other suitemates at San Jose State in California. Williams was targeted in a number of hijinks as the only black student in the suite, including his roommates sneaking up behind him to place a U-shaped bike lock around his neck, hanging a Confederate flag in the common room, writing racial slurs on the dry-erase board in the common room, and calling him names such as “three-fifths” and “fraction.” Three of the white roommates were found guilty of a misdemeanor against Williams for bullying, but not for a hate crime.

If CSULA’s housing can prevent bullying or the commission of a hate crime, then they should be welcome at all college campuses.

ITT Tech’s Sudden Shutdown Brings New Legal Woes

ITT Technical Institute became a household name for many people who remember seeing the commercials on daytime tv during soap operas and daytime talk shows. However, ITT Tech is now becoming known for a business move that is as shocking as anything on the television programs that it once advertised. That move was to abruptly close its educational centers without much, if any, warning.

The for-profit educational juggernaut is now finding itself in legal trouble after suddenly shutting the company doors. Three employees have filed lawsuits against ITT Educational Services, Inc., the company in charge of the ITT Tech educational centers, over the fact that the company failed to provide an adequate warning to its employees before closing.

Under the Worker Adjustment and Retraining Notification (WARN) Act, companies with 100 or more employees are required to provide 60 days notice to their employees in the event of a plant closing that results in a mass layoff. A mass layoff is defined as a layoff of 50 or more employees. ITT

When the details of the WARN Act are applied to the facts of the ITT Tech situation, it does appear that ITT Educational Services, Inc. did owe its laid-off employees a warning. The mass closings of the ITT Tech educational facilities occurring all at once can equivocate to a major plant closing despite occurring at different locations instead of a singular location.

Also, the aggregate number of employees working at the various shuttered educational facilities was around 4100 employees, which means that the shutting down of the ITT Tech facilities did lead to a mass layoff if viewed as a singular action.

ITT’s Defense

However, there are two arguments that ITT Educational Services, Inc. may be able to use to successfully defend itself. First, the company could argue that the closures cannot be treated as a singular closure that triggered a mass layoff because the facilities are located all across the country with many facilities employing less than 50 employees.

Closing several smaller offices rather than one large office has a different impact on a community than if a single location employing several people in that community shuts down without warning. The court can choose to look at each facility closure as a single instance instead of choosing to aggregate all of the closures and employee numbers into a single event. If the court does choose to look at the different closures as unique events, then the number of employees lost at each educational facility may not be enough for the employment loss to count as a mass layoff.

In the event that the court does choose to look at the closures as a single event, ITT Educational Services, Inc. may still be free to argue that it should be exempt  because the closures were a result of an unforeseeable business circumstance. Under the WARN Act, a company is not required to provide a 60-day notice to its employees if an unforeseeable business circumstance is what caused the plant closing.

In the case of an unforeseeable business circumstance, the company only needs to provide as much warning as is reasonably possible. ITT Educational Services, Inc. could potentially argue that the imposition of sanctions by the federal government was an unforeseeable circumstance that made it impossible to continue operations. On its website, ITT Educational Services, Inc. claims that it had no intention of closing the ITT Tech educational services until the sanctions prohibiting it from accepting federal loans were imposed.

Danger Was Foreseeable

However, the company had been evaluated and monitored by the federal government with the threat of sanctions if certain changes were not implemented by a certain date. Also, Corinthian Colleges, a for-profit education company similar to ITT Educational Services, Inc., shut down operations just over a year ago after going through the same evaluation process and being given the same sanctions as ITT Educational Services, Inc. Thus, it could be argued that ITT Educational Services, Inc. should have been able to foresee that they may be put into a position of having to shut down operations shortly after the deadline provided by the government, and should have provided its employees with a warning of a probable closure.

Even with the availability of two possible defenses, it does appear that ITT Educational Services, Inc. may have owed its former employees a 60-day warning for the educational facility closures. If the court does find that the employees were owed a warning, then ITT Educational Services, Inc. will owe its laid-off employees wages and benefits for the amount of time in which they were owed a warning, which would be 60 days in this case. ITT Educational Services, Inc. may owe even more money beyond the wages and benefits if the court determines that the company should have also provided notice  to local governments of the intention to close its educational facilities.

Mass layoff and plant closures have a seriously negative economic impact on local communities when they happen. If a large employer such as ITT Educational Services, Inc. fails to provide an adequate warning about a mass layoff, then the economic impact cannot be mitigated by the former employees finding new employment to replace their former employment with little to no gap between periods of employment.

Thus, it is important to enforce laws such as the WARN Act. If you have recently been laid off suddenly without warning, you may be entitled to back wages under the WARN Act or another federal law.  To find out if you are entitled to such compensation, contact an employment lawyer today.

How the EpiPen Price Hike is Not the Last of Its Kind

In 2015, the head of Turing Pharmaceuticals, Martin Skhreli, became the man that everyone loved to hate. After Turing acquired a patent for Daraprim, an older medication, they increased the price of the drug from $13.50/pill to $750/pill.

In August of 2016, Mylan Pharmaceuticals increased the price of the EpiPen from $56 to over $317. The EpiPen contains vital medication to counteract life-threatening allergic reactions. Soon, the media began to cover stories of parents struggling to afford EpiPens for their children.

After the price hikes, the CEO’s of Turing and Mylan faced heavy criticism. Public outcry demanded the reason for such an outrageous price increase, but the response seemed to be “because we can.” Unsatisfied by the logic, the nation questioned if the laws of the free-market should still apply when it concerns matters of life and death.

Yes, Martin Skhreli was Indicated, But It Was Not Because of the Price Hike

Martin Skhreli, Turing’s CEO, faced charges and was indicted of securities fraud in December 2015. As of September 2016, Skhreli is free on bail until his case heads to court. But his indictment of securities fraud comes from his time as a hedge fund manager and the CEO to a different company. During that time, Skhreli took the money from his company to make up for the money his investors lost in his hedge fund. His criminal charge have nothing to do with the price hike at Turing.

In fact, Skhreli, or any other CEO or company that increases the price of a necessary medication, cannot face criminal charges for the price increase. There is no law that criminalizes a drastic price increase.

It Is Not Illegal to Raise the Price of Drugs, In Fact It’s Good Business

Every discussion about the economy usually relies on the fact that the U.S. economy relies on capitalism. Capitalism can be a difficult concept, but the key point to understand is that a capitalistic economy relies on private ownership and is driven by profit. supreme court generic drugs

Companies like Turing and Mylan that produce life-saving and vital medications can adjust the price to whatever would give them the most profit. If there are no alternatives to the medications supplied by those companies, then they have no competition and can set the drugs at the highest possible price.

This was the case for the price hikes by Turing and Mylan. Where there is a drastic price hike, capitalism says that other companies will create their version to undermine a competitors’ profits.

For Daraprim, the drug created by Turing, other corporations were able to create a generic version which costs only $1 per pill. But for the EpiPen, the price increase applies to the medication sold in the auto-injector and not the actual medication itself. The auto-injector is patented by Mylan.

After Mylan offered a “generic” version at $300 per box instead of $600, the nation was not convinced. To avoid paying such an outrageous price, some users of the EpiPen have resorted to buying the drug in the auto-injector (epinephrine), and injecting it themselves.

But is that the only solution? Do we need to wait until another corporation decides to create a profit?

If We Ask for the Government to Step In, It Will Be a Long Wait

Healthcare seems to be heavily regulated by the U.S. government. But out of all possible aspects of healthcare, the pharmaceutical industry faces the least amount of regulation. In fact, Daraprim and EpiPen are not the only drugs that have increased by over 100%.

In 2002, a drug called “Abilify” entered the market to treat acute psychiatric disorders like schizophrenia. It soon proved to be effective in treating other disorders, but the other treatments were not approved by the Food and Drug Administration (“FDA”). So insurance companies refused to cover the cost for “off-label” use.

Currently, the price of ability without insurance can range from $700 to $1,000 for 30 pills. It was only in 2015 that the FDA approved a generic version of Abilify. For 13 years, patients were spending hundreds and thousands of dollars on a medication that was necessary to their daily function.

In short, what has happened with Turing and Mylan is not something new, and it’s also not something that will go away. Drug companies have been doing this for a long time, and the U.S. government makes no attempt to stop them.

If you feel like drug companies need to be regulated, then 3 out of 4 Americans agree with you. The majority of the nation are beginning to feel like pharmaceutical industries need to be regulated and stopped. It is hard not to want regulation when a person needs to decide between financial ruin to survive a treatable illness, or death. It is time for each citizen to tell lawmakers and the pharmaceutical industry that enough is enough.