by Charles S.P. Hodge
Casey on the Green: Supreme Court Rules He Can Use a Cart
On Tuesday, May 29, the U.S. Supreme Court announced its decisions in two cases which may well have considerable impact upon blind and/or disabled people. The first case is the highly publicized case under Title III of the ADA of PGA Tour Inc. v. Casey Martin. Justice John Paul Stevens announced the opinion of the court for a seven-member majority with Chief Justice Rehnquist and Justices Kennedy, O’Connor, Souter, Ginsburg and Breyer concurring. Justice Antonin Scalia filed a separate dissenting opinion in which Justice Thomas joined.
In his opinion for the court majority, Justice Stevens quickly disposed of certain threshold questions by holding that respondent Casey Martin is a covered individual with a disability under the ADA, and that the PGA Tour is a covered public accommodation under Title III of the ADA. The court then turned its attention to one of the crucial questions in the case, i.e., whether the PGA Tour’s requirement that competitors must walk the entire length of the golf course constitutes a fundamental or essential aspect of the game of golf. Even though such legendary golfers as Arnold Palmer and Jack Nicklaus had testified during the trial that the “walking rule” embodies a test of endurance, stamina and fatigue, which is therefore an essential part of golf at its highest level of competition, Justice Stevens nevertheless holds that the “walking rule” is not a fundamental or essential aspect of golf.
The court points out that in numerous important and serious golf competitions, riding a golf cart (which is the reasonable accommodation sought by Casey Martin in this case) is permitted. In addition, factors such as changing weather conditions and other influences of happenstance have as much or even more to do with the ultimate outcome of the competition in terms of making shots as do the factors of endurance, stamina and fatigue purportedly represented by the “walking rule.”
The court goes on to hold that in addition to the obvious subset of customers of the PGA Tour represented by those members of the public who pay for admission as spectators at PGA Tour events, Casey Martin is a member of a distinct and separate subset of customers, i.e., those members of the public who vie to qualify to play and compete in PGA Tour sponsored golf tournaments. Thus, Casey Martin as a disabled customer of the public accommodation which is the PGA Tour is entitled to have that public accommodation modify its policies and procedures to reasonably accommodate his covered impairment so long as the sought reasonable accommodation does not alter the fundamental or essential aspects of the product or service being offered. In light of its earlier holdings, the majority opinion finds no alternative but to affirm the lower courts’ holdings that Casey Martin is entitled to an exception to the PGA Tour’s “walking rule” and must be permitted to use a golf cart as a reasonable accommodation in PGA Tour events in which he qualifies to compete.
Justice Stevens agrees that the reasonable accommodation sought by Casey Martin is well-tailored merely to level the playing conditions to permit the respondent to compete. He points out that while the normal professional golfer complying with the “walking rule" walks approximately five miles over a four-hour period in an average 18-hole round of golf, Casey Martin will, even while availing himself of the requested reasonable accommodation of the golf cart, still have to actually walk approximately one mile to complete an average round of golf in competition. The court then remonstrates that the exertion and endurance required of Casey Martin even utilizing a golf cart are equal to if not greater than the exertion and stamina required of the normal golfer observing the “walking rule.”
The Casey Martin decision, while limited to the very specialized and specific facts of the case presented, is a very important symbolic victory for people with disabilities. If nothing else, the court’s opinion sends an important signal to the lower federal courts to move cautiously and reflectively when they assess claims by defendants about ostensibly fundamental alterations of their programs or offered services which result from requested reasonable accommodations.
A Second Court Decision Raises Red Flags
A second decision announced by the high court on Tuesday, May 29, on the other hand, could have an important and devastating impact on the ability of people with disabilities to pursue civil rights claims in the federal courts. In the case of Buckhannon Board and Care Home Inc. v. West Virginia Department of Health and Human Resources, Chief Justice Rehnquist announced the opinion of the court for a bare five-member majority with Justices Kennedy, O’Connor, Scalia and Thomas concurring. Justice Ruth Bader Ginsburg filed a separate, stinging dissent in which Justices Stevens, Souter and Breyer joined. The issue in the case is whether a litigant who files a federal civil rights claim in federal court and gains from the defendant a desired change of policy can qualify for an award of attorneys’ fees as a prevailing party despite never obtaining a final judgment or court decision in the case.
Before the decision announced in this case by the Supreme Court, at least six federal courts of appeals had held that if a plaintiff had brought a court case which acted as a catalyst in obtaining desired changes in policy by the defendant, despite never obtaining a final court disposition of the case, that party was still entitled to an award of attorneys’ fees as the prevailing party in the litigation. The only federal appellate court which had reached the contrary conclusion was the U.S. Court of Appeals for the Fourth Circuit from which this particular case had come.
Despite this background and weight of decided precedent, Chief Justice Rehnquist’s majority opinion affirms the holding of the Fourth Circuit Court of Appeals that in order to qualify as a prevailing party under numerous similar attorneys’ fees provisions contained in a wide range of federal statutes, a plaintiff must obtain a final judgment, consent decree or final court decision disposing of his or her court case.
This holding by the high court will inevitably have a devastating impact on the ability of indigent civil rights plaintiffs to find competent legal counsel prepared to take on such cases. It could mean that disabled claimants will have difficulty finding lawyers to represent them in federal court civil rights litigation since some lawyers may be reluctant to take on causes where it may be quite difficult to recover attorneys’ fees as a prevailing party even where positive and constructive results are obtained voluntarily from named defendants.
Thus, the Buckhannon Board and Care Home decision may well have a chilling effect on the ability of numerous disabled potential claimants to mount effective federal court challenges against perceived unlawful disability discrimination. This result is a most unfortunate and unwelcome turn of the law for disabled people.
The Supreme Court’s decision in this case will also in all likelihood make it more difficult for potential disabled civil rights plaintiffs to settle cases out of court even where positive or constructive results might well be obtained voluntarily from defendants since such settlements will now have to be memorialized in written consent decrees signed by a federal court judge in order for the plaintiff then to make a claim for an award of attorneys’ fees as a prevailing party. All of these considerations make the high court’s decision in this case most troubling and very problematic.
A Week Later, the Court Removed the Cap from Front-Pay Awards
On Monday, June 4, the U.S. Supreme Court announced its decision in the case of Pollard v. E. I. Du Pont De Namours & Co. Justice Clarence Thomas delivered the opinion of the court for a unanimous eight-member court with Justice O’Connor not participating in the court’s decision of the case.
The questions presented to the high court in the Pollard case are whether awards of front pay in employment discrimination cases fall within the meaning of compensatory damages contained in the Civil Rights Restoration Act of 1991, and whether such awards are thus subject to the caps or restrictions placed on compensatory damages awards contained in that act.
In a straightforward exposition of the issues, Justice Thomas first points out that the original provision of Section 706(g) of Title VII of the Civil Rights Act of 1964 authorizing federal courts to award equitable relief in cases where such courts have found intentional employment discrimination was modeled upon the provisions of Section 10(c) of the National Labor Relations Act (NLRA). Justice Thomas then recites that the National Labor Relations Board (NLRB) and the federal courts had interpreted Section 10(c) of the NLRA to include awards of front pay before and contemporaneously with the enactment of Section 706(g) of Title VII.
The opinion then states that the lower federal courts virtually unanimously had held that awards of front pay were cognizable and appropriate within the meaning of Section 706(g) prior to the enactment by Congress of the compensatory and punitive damages and cap provisions of the Civil Rights Restoration Act of 1991. The court points out that the provisions of that act made it abundantly clear that the compensatory damages and cap provisions of the Civil Rights Restoration Act of 1991 go beyond the relief which the federal courts were authorized to award prior to their enactment.
Since awards of front pay had been recognized before enactment of the Civil Rights Restoration Act of 1991 to be an appropriate exercise of the courts’ earlier granted authority under Section 706(g) of Title VII and Section 10(c) of the NLRA, Justice Thomas holds that awards of front pay in the context of federal court employment discrimination cases do not fall within the purview of the compensatory damages and cap provisions contained in the Civil Rights Restoration Act of 1991.
Therefore, the Supreme Court reverses the limited $300,000 award of front pay granted by the lower federal courts in this case, and remands the case back to the lower federal courts for further proceedings consistent with the high court’s holding in the case.
While the Pollard decision only exempts awards of front pay from the compensatory damages and cap provisions of the Civil Rights Restoration Act of 1991, it is still a major victory for civil rights parties and advocates since the high court’s holding will give lower federal courts pause for reflection when considering whether various forms or types of proposed relief for proven wrongdoing are truly compensatory or punitive damages subject to the cap provisions of the Civil Rights Restoration Act of 1991.
Of course, in addition, the high court’s Pollard decision will permit civil rights plaintiffs who prove cases of employment discrimination against wrongdoing defendants to obtain uncapped awards of front pay in appropriate circumstances from lower federal trial and appellate courts. These enhanced front-pay awards will hopefully prove to be a deterrent to the unlawful conduct of wrongdoing employers under the various federal civil rights laws. Thus, the Pollard decision must be counted as a victory for civil rights advocates.