About a year ago we reported on a case involving allegations of genetic discrimination by a school district in California. According to the allegations, in fall 2012 the Palo Alto Unified School District used genetic information regarding cystic fibrosis in deciding to transfer a student away from his neighborhood school to another school.
Genetic nondiscrimination laws are stronger in California than anywhere else in the United States. CalGINA (S.B. 559), which took effect five years ago, extended genetic nondiscrimination rights beyond the narrow scope of the federal statute known as GINA, the Genetic Information Nondiscrimination Act of 2008, which prohibits genetic discrimination in employment and health insurance contexts. However, this case was interesting to Genomics Law Report largely because the plaintiffs did not rely on CalGINA in their complaint against PAUSD but instead focused on protections against “perceived disability” provided under the Americans with Disabilities Act or ADA (42 U.S.C.A. §§12131 et seq.) and Section 504 of the Rehabilitation Act of 1973 (29 U.S.C.A. § 794). The school district had convinced a federal district court to dismiss the complaint, but the plaintiffs filed an appeal in January 2016.
What’s happened since the appeal was filed in January 2016?
The U.S. Court of Appeals for the Ninth Circuit heard arguments on October 19, 2016, and issued a decision on November 15, 2016. The court’s ruling overturned the district court’s dismissal of the ADA and Section 504 claims and remanded the case to the district court for further proceedings. While the court issued an unpublished judgment, which “is not precedent except as provided by Ninth Circuit Rule 36-3,” the plaintiffs’ attorney, Stephen R. Jaffe, publicly announced on LinkedIn that it was “a great victory for personal privacy.” The Ninth Circuit Court of Appeals is allowing the ADA and Section 504 genetic discrimination claims to move forward, all based on the student’s genetic information being a “perceived disability.”
The court made its decision by determining that the district court erred in two ways. The first error was the district court’s finding that there was a “direct threat” defense available under the facts presented in the complaint. The school district had argued that it made its decision out of concern for the health or safety of other students at the school who do have cystic fibrosis and that it had made a reasonable judgment that the student posed a “direct threat” to those other students. According to the Ninth Circuit, the error in allowing a direct threat defense was twofold: (1) such a defense requires an individual assessment of the threat but, as per the facts in the complaint (which must be taken as true in evaluating a motion to dismiss), no such individual assessment was made; and (2) the school district’s decision that the student posed a direct threat was contrary to “reasonable judgment” with “best available objective evidence.” The district court’s second error was finding that the plaintiff had not shown the requisite intent to establish a claim for discrimination. Establishing a claim for discrimination, the Court of Appeals noted in its decision, does not require the plaintiff to show “bad motive, will, or animosity” or even an intent to cause harm. Rather, the action or decision to exclude someone categorically (e.g., because of protected class status) is “facial discrimination” and sufficient, even if no harm or injury was intended.
The case moves forward
The Ninth Circuit’s rejection of the motion to dismiss means that the case is back on track toward eventual trial. There are no apparent signs that the school district will settle the case. On December 21, 2016, the school district’s attorneys filed an answer to the amended complaint and raised a litany of affirmative defenses, including:
• failure to state a claim,
• lack of jurisdiction,
• lack of intent,
• defendant acted in conformity with law,
• equity (e.g., unclean hands and equitable estoppel),
• res judicata,
• statute of limitations,
• lack of standing,
• remedies not supported by claims, and
• no damages attributable to the defendant.
The defendant did not provide any details about these affirmative defenses to explain how or why they might be applicable. Because some affirmative defenses can be waived if not asserted, it is reasonable to treat these defenses for the moment as mere boilerplate—that is, inserted as a matter of lawyerly self-protection.
The court has ordered mediation to resume before March 14, 2017 and has since appointed a mediator to the case.
Keep this case on your watch list
Courts have never directly acknowledged a person’s genotype or carrier status as sufficient to pursue a “perceived disability” claim under the ADA or Section 504 protections against discrimination. A plaintiff’s victory would clarify (at least for people who live in the Ninth Circuit—CA, WA, OR, ID, MT, NV, AZ, AK, and HI) that those who are victims of genetic discrimination in areas of society other than employment or health insurance (the areas covered by GINA) are not left unprotected by federal law and are able to seek remedies under the Americans with Disabilities Act and Section 504.
The case is an important reminder that even if the PAUSD’s actions were permissible under federal law, state law (CalGINA) applicable at the time and applicable today prohibits school districts in California from using genetic information to make decisions about its students. The PAUSD’s decision to continue defending this case signals one or both of two things. The first is that defense attorneys believe that they can successfully slam the door on a broad ADA precedent that would allow “perceived disability” claims against those who discriminate based on genetic information. That seems somewhat unlikely, given the willingness of the Ninth Circuit to allow the case to proceed and the strength of the facts alleged by the plaintiff’s attorneys. The second is that the school district is focused solely on the money—either trying to minimize the size of any settlement or court award or trying to make sure an insurer is responsible for covering the payment of that settlement or award. Perhaps the PAUSD is showing its willingness to roll the dice if a reasonable court award is perceived as having a good chance of being substantially lower than any settlement amounts under consideration.
There has been very little public discussion of the case since initial interest when the appeal was filed last year. The plaintiff’s case has now survived a motion to dismiss, but the case has yet to be decided on the merits. For genetic rights advocates, this case should remain high on the watch list in 2017 with the Ninth Circuit Court of Appeals poised to strengthen genetic nondiscrimination rights through ADA and Section 504 case law.