Some of the (really sad) commentary to the news articles about the Golden Corral discrimination lawsuit I wrote about earlier this week got me thinking about the underlying law.
It’s been a long time since I’ve handled a discrimination lawsuit under the Americans With Disabilities Act, so I took a quick look to verify the underlying law. And in the back of my mind I was worried that some of the details about the regulations and case law might not necessarily reflect what either we or the chattering classes might think it is.
The regulations on public accommodations provide that the ADA does not require accommodation if an individual “poses a direct threat to the health or safety of others”. 28 CFR 36.208(a). But guess what? In assessing “direct threat”, the law requires one to “make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence”. 28 CFR 36.208(b) (emphasis added).
So it seems that the Golden Corral has a really big problem, legally – because asserting that epidermolysis bullosa is contagious would be 100% contrary to both actual medical knowledge and objective evidence.
It gets even better, though. The Americans With Disabilities Act also protects discrimination against people “regarded as” having disabilities.
In 1987, the Supreme Court discussed the “regarded as” prong, and pointed out that the law “acknowledged that society’s myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment’.” School Board of Nassau County v. Arline, 480 U.S. 273, 284 (1987). In fact, Justice Brennan (writing for the majority) also pointed out, “Even those who suffer or have recovered from such noninfectious diseases as epilepsy or cancer have faced discrimination based on the irrational fear that they might be contagious.”
Here’s what the regulations say about that:
A person would be covered…if a restaurant refused to serve that person because of a fear of ‘negative reactions’ of others to that person…For example, persons with severe burns often encounter discrimination in community activities, resulting in substantial limitation of major life activities. These persons would be covered under this test based on the attitudes of others.”
28 CFR Pt. 36, App. B
So based upon my very quick glance at the underlying law, it seems to me that the Golden Corral is facing a really uphill battle here, legally.