Essential Legal and Practical Knowledge for Handling Disputes for Persons Living with LGBTQIA+ Identities, Persons Living with a Disability, and Persons Living at Their Intersections

Karen Anderson: Good afternoon, everybody.  My name is Karen Anderson, I'm going to be your Zoom host for this afternoon.  Appreciate all of you attending.  

Before we get started, I wanted to make a couple quick announcements.  Unless you are presenting or interpreting we ask that you keep your video off so that everyone who needs to see the interpreters can.  Of course if you need to communicate via ASL or another form that requires video of course feel free to turn on your video and do whatever is necessary for that.  

Also the chat is open.  Everyone should be able to chat.  

M. GERON GADDS:  My name is Geron Gadds with the AARP, and I am joined by Shelly Skeen and Nicholas Guillory, who is the law fellow with Lambda Legal Defense.  The title of our presentation, Essential Legal and Practical Knowledge for Handling Disputes for Persons Living with LGBTQIA+ Identities, Persons Living with a Disability, and Persons Living at Their Intersections is fairly broad so you would like to say a word about our hopes and expectations for our discussion today.  I am delighted to see all who have joined.  

We are mindful that it is Friday and here the intersection of disability, LGBTQIA+ status, BIPOC status and HIV status and we are hopeful as we humbly come to this session that our clients are people and we are hoping all of us leave today with a holistic understanding of our clients' lived experience and specifically with respect of raising our awareness.  And we hope to provide more complete legal representation that gets to what our clients need.  We are going to talk about different areas and for everyone, really, not assuming a lot of knowledge or experience on the part of participants and walk through key areas and laws with respect to disability and LGBTQ -- disability which will include HIV status and LGBTQ status and BIPOC status and the ways those intersection.  

With that, we want this to be as much of a conversation, and the three of us are going to present in a conversational format so we are making sure we are representing as much as possible with respect to relevant law and relevant parts of our identities to get to a more complete picture.  With that, we will do our best to monitor the chat but also raise your hand so that we can include you in the conversation because we would like to do so.  We have reserved a good bit of time at the end for discussion.  

Please, if anything is unclear, interrupt us.  Overall as a road map for today we are going to go through the relevant statutes, executive orders as well as decisions in the various areas that are relevant to the discussion.  We are hopeful that the bulk of our time will be spent on hypotheticals followed by discussion of the material so we can get -- dig in, in terms of how we can better address the intersection of these essential components of our identities.  

We are going to begin our discussion with the legal landscape if you will with the relevant statutes that apply to disability as well as -- and that includes HIV status but also includes race as well as sexual orientation and gender identity.  Many of you who have been attending other sessions tenBroek conference, probably know this, but we wanted to discuss this, that public and private entities, we have the Americans With Disabilities Act and the Rehabilitation Act.  The Rehabilitation Act was passed first and the ADA is a broader statute but for purposes of our discussions today you would begin with those two statutes.  A quick word about Section 1557 of the Affordable Care Act, a statute that was passed a decade ago.  It is intended to provide and secure protections to healthcare for those within the United States.  Section 1557 is noteworthy because it is the antidiscrimination provision of the Affordable Care Act and provides incredibly robust protection on the protected categories.  

The protected categories of antidiscrimination and both Shelly and Guilly will speak more fully to this but note there is that broad antidiscrimination because it matters as it relates to access to healthcare.  Finally the Civil Rights Act which speaks to discrimination on the race and disability and the Fair Housing Act relates to our clients’ needs for living, housing and there are antidiscrimination provisions there.  So we offer these basically to remind you that there are antidiscrimination provisions that would cover most of our clients' essential needs.  

The test is in practice.  

As we go forward with the cases, figuring out what the scope of the protections are and being mindful of the ways that your client may present with one need but that need may be implicated or predicated by other statutes as well.  

So quickly want to cover what many of you may be familiar with.  The beginning of the Biden Administration actually on day one, President Biden issued Executive Order 13988.  I have included the specifics of what it is here so you will have it as you go forward.  What is important to know is that it announced the policy of the Biden Administration to prevent and combat discrimination on the basis of gender identity and sexual orientation and it included a specific policy of the Administration to address overlapping forms of discrimination which also includes race and disability status, both of which were explicitly mentioned in the executive order.  

So you have a clearly enunciated policy of the Administration to address the kinds of discrimination that we are going to be talking about here today but it also directed the various federal agencies to review their existing order, guidance, and agency action to find out where they stand on whether any of the previously issued guidance was insufficiently sensitive to these various forms of discrimination.  One critical thing to note.  

For the purposes of obtaining relief for your clients who are living and experiencing intersectional discrimination or compound discrimination is that it also directed the Offices of Civil Rights within the agencies to accept complaints based on discrimination and to follow up on that.  So it indicated a posture of the Administration to welcome those complaints.  So for those of us who are asking where the Administration is going to be on these issues, I think it was an important first step in enunciating those policies.  

I know that Shelly and Guilly will discuss those more fully.  

SHELLY SKEEN:  Since we are going to be conversational, let me add, quickly, not only did the Biden Administration issue this executive order but also on a very same day or may have been the day after, the Biden Administration issued another executive order on race equity.  In that particular executive order it lacks similar to this one but with respect to race.  In both of these, the Biden Administration talks about the overlapping intersection between being LGBTQIA+, being a member of a historically and systematic, institutionalized community that's marginalized and taking a look at making sure that what the government does with respect to those communities and the overlapping intersectionality is to make sure that the government is providing services to folks as they need them.  

And trying to root out that institutionalized discrimination.  

M. GERON GADDS:  I'm so glad you interrupted.  Again, Guilly, if you have anything to add hear, too, please feel free to jump in because we want to do this.  Checking the chat to make sure there have been no questions.  I scanned the pictures and it doesn't look like we have any raised hands.  So we have covered that and we're going to pivot to the legal landscape so we can lay a predicate for digging into further discussions on these issues.  With respect to the case law, many of you disability advocates are probably familiar with the Olmstead decision one of the Supreme Court's seminal decisions.  

The Court found that unnecessary institutionalization or unnecessary segregation, even when that occurs in the community is a form of disability discrimination under the ADA.  So this is one of the seminal vehicles by which advocates have advocated on behalf of people who had previously been confined in institutional settings, whether those are nursing facilities, psychiatric facilities, other congregate and institutional settings for people with intellectual disabilities.  Many of you may remember the Willowbrook series that Geraldo Rivera did years ago which brought to light the confinement of mass institutions and advocates have used these broadly in the efforts and are continuing to expand those as we speak.  

But that is the key one that for the purposes of disabilities, to be mindful of.  I'm now going to turn it over to Shelly and Guilly to talk about other healthcare related decisions as it relates to nondiscrimination.  
Shall we pause for a second and let me check quickly to make sure there aren't any questions on the disability piece.  I'm not seeing any.  Take it away.  

SHELLY SKEEN:  Okay.  Thank you, Geron.  So I was going to say you are dating yourself with Geraldo Rivera. 


M. GERON GADDS:  We didn't include that but being mindful of your client's age is important and yes, I did date myself. 

SHELLY SKEEN:  It's Friday afternoon so just to make sure everybody is having a good time as we roll into the end of the day.  I'm going to talk about the Whitman-Walker case and Guilly is going to talk about Flack versus Snyder.  But Whitman-Walker case looks at many things including language proficiency and what this case was about was for the purposes of Section 1557 of the ACA, which many of you may know or not the federal government provides $500 billion in funding to different entities to provide services for people in the United States.  And Section 1557 is a section that under the Obama Administration said you cannot discriminate based on sexual orientation, gender identity and gender expression.  When the Trump Administration came in, they rolled back what was rule during the Obama Administration.  So when it was still a rule -- 

Now I'm getting confused but when they rolled back the Obama rule what Lambda did is we sued.  We said look it's clear that at a bare minimum the term "sex" which this particular statutes also prohibits discrimination based on sex and a lot of what this looks at is healthcare providers, doctors, nurses, they cannot discriminate on the basis of sexual orientation, gender identity, gender expression and sex.  So we sued and we won."  

That's what this particular case is.  Then you can see it's in November of 2021, so we're walking into the time of the Biden Administration as well and so now we have clear guidance from the Biden Administration but also more specifically saying from federal government that there can be no discrimination based on sexual orientation, gender identity and gender expression.  

For those folks who have limited English language proficiency, they can't be discriminated against either.  As you'll know Section 1557 also covers people who are living with disabilities.  This is a good case.  When anybody has time go out and take a look at it.  I'm going to turn it over to Guilly.  

NICHOLAS GUILLORY:  I just wanted to mention that 1557 at least the rule prior to throw back was used in many cases and you will see it in Flack to secure gender care for transgender individuals.  We see the fight continue on today and you will see it in other cases as well.  So a little bit about Flack versus Wisconsin Department of Health Services, and it was an class-action lawsuit seeking to challenge the categorical exclusion for gender identities with gender dysphoria.  The exclusion was challenged under the Section 15 five 7 as well as another clause and federal Medicaid Act.  A judgment for plaintiffs permanently enjoined DHS from enforcing the exclusion and helping to create a policy previously excluded under the challenge.  
The state didn't appeal which is a good thing and that's one good case but not all circuits conformed to this ruling that we saw in this case.  So most recently in Doe versus Snyder a similar case was brought by the National Health Program and co-counsel and two teenagers challenging an Arizona law prohibiting gender reassignment surgeries, in that case the 9th Circuit Court found the plaintiff did not meet their burden showing that the preliminary injunction had clear error there was it was denied.  That case is still going on today.  Another case, it's not on here we have a West Virginia Medicaid case that's being done by Lambda Legal Defense and Education Fund with similar claims.  

Geron, Shelly, any input there?  

M. GERON GADDS:  If I can jump in, Shelly to underscore something that Guilly mentioned that we neglected in our layout which is the importance of the Medicaid Act as well as a vehicle for obtaining healthcare.  When we started this we were talking -- we are talking about the intersection specifically of disability BIPOC status, and LGBTQIA+ status and the ways that we experience that.  But we also know that income level is also something that is something that we experience as we navigate.  

For members of our community, particularly older members of our community who have experienced historical and often historically compound discrimination, that including employment discrimination, which when it's lifetime savings which limits access to healthcare that the Medicaid Act is an important federal statute that is certainly robust and provides a lot of entitlements to care and certainly causes of action but just wanted to lift up not just that statute for the purpose of law but also being mindful of our clients' financial status and the ways that advocating for them and making sure we are being mindful of the various forms of discrimination that they have experienced will also include income which we have not discussed here but is something that also then leads to substantive law, right?  So you have the ACA but the made Kayed Act is a companion to that.  Even though we will not discuss it significantly here, lift that up as well.  

So, Shelly, I will turn it over to you for the purposes of the discussion -- it's frozen, I'll get the slide to catch up with you.  

SHELLY SKEEN:  Actually Guilly is going to take that one.  

M. GERON GADDS:  I'm sorry.  

SHELLY SKEEN:  Let me add, Guilly and I are both in Texas, and Texas is the state that has the least inform people who have health insurance and we do not have expanded Medicaid.  That's something we have been working on at the legislature but it makes a huge difference.  At least in the LGBTQ community we have 26% of folks don't have health insurance and if you add on BIPOC status on top of the LGBTQ status, that number goes up much higher.  It's more like 39%.  So I think it's important to recognize those intersections when you can and how they really impact the lives of the people that you are representing.  

NICHOLAS GUILLORY:  Also on that note there is a case called Franciscan Alliance and when you look at that mike the Medicaid Act are good things to lien on in areas where they don't have good laws with regard to Section 1557.  I will hop in and discuss Doe versus Garrett.  A case on behalf of a naval reserve member living with HIV who brought an action challenging his release from the Naval Academy.  Plaintiff contended that the relief granted by the Naval Academy through an administrative process was inadequate and asserted the Rehabilitation Act and due process claims and claims of estoppel.  While the 11th circuit held that the Rehabilitation Act did not apply to this uniformed member we got great language in that case that stated it was well established that HIV constituted a physical impairment for the purposes of the ADA.  So we used that language in that case in a lot of our cases going forward.  Shelly?  

SHELLY SKEEN:  Couldn't come off of mute.  Usually it's the opposite, right?  The Bragdon case, this is a famous case and the opinion was written by -- there is a Supreme Court case so maybe we don't have the proper cite but the opinion was written by Justice Kennedy and in that case what the Court said was for the purposes of the ADA, HIV was a covered status under the ADA.  So that was the first case that really said that.  

And so I will leave it at that for that case.  I'm going to ask Guilly to talk about East versus Blue Cross/Blue Shield. 

NICHOLAS GUILLORY:  In 2014 Lambda Legal Defense and Education Fund filed a lawsuit against blue close of Louisiana after the insurer, Louisiana's largest announced it no longer accepted the premium subsidies that enabled low-income Louisianans who were living with HIV.  And this case was one that granted. 

Louisianans relief.  

SHELLY SKEEN:  Lambda was able to do a case Janssen versus Granite Mesa.  And the plaintiff learned he was HIV positive, he went to his positives and said I'm not able to transfer, but I did test positive and he was asked for blood work and private and personal medical records and when he refused to provide those Granite Mesa fired him and we ended up getting back wages for the client and for attorney’s fees so for all those attorneys out there, don't forget we can get attorney’s fees in many of these cases and that's helpful to us especially if we work for a nonprofit.  The next case, Moore versus AirEvac Lifeteam, similar case, but we had a paramedic who worked on heck cop needs, this was based out of Missouri and the company was -- did business in many states, actually five different states.  So he had worked there since about 2008 and then learned several years later that he was HIV positive.  When he learned -- he was undetectable, which means untransmittable and we will talk about that again.  So he was told that he had to provide, again, medical information and he refused to do that.  In fact, what Air Evac -- Lifeteam, what they said was that you need to petition to be able to be on our helicopters in every of the five states that we do business.  So he refused to do that.  We ended up suing on his behalf and ended up getting a settlement.  Both of these cases we sued under the ADA.  As y'all know it prohibits discrimination based on HIV status in part because of Justice O'Connor's opinion and I think Geron put the cite in the chat.  That's all I've got on those.  
M. GERON GADDS:  That's really helpful.  I think I want to let you when we are at a halfway point to wake everyone up with your questions which I thought were incredible, but really to underscore in the sort of intersection with the employment and experience the ways that the ADA was able to sort of advance interests that you would -- it was an Lambda case related to employment and without trying to beat anyone over the head about intersectionality, I do want to underscore as we go through this the sort of unexpected ways. 

That you have to be creative in advancing your client's interest and mostly to underscore the point Shelly and Guilly and I work together, our organizations work together regularly, that it's really not about being an expert on all of these, but really making sure that you are partnering and maintaining relationships with folks who have relevant expertise both so you can competently represent your clients who have compound issues but really so that it's easier to know what needs to be done and be creative as the law develops in these cases and they become perhaps more difficult.  So you have that resource for the creative development, plus it's just fun.  

SHELLY SKEEN:  Sure.  I don't think we have these questions on the PowerPoint, full give me one second?  

SHELLY SKEEN:  Is our presentation an hour or hour and a half?  

M. GERON GADDS:  I believe it is, an hour and a half. 

SHELLY SKEEN:  Go on to the next slide before I pull up my questions.  

M. GERON GADDS:  Will do that and basically to Orient everybody as we move along, the cases that we were just discussing really are the cases that are ADA but the HIV-specific cases as a disability advocate I just want to underscore the importance of the recognition of HIV as a qualifying condition for the purposes of the ADA because I think that piece of it is often left -- when people think of it they think that's an Lambda issue and remembering availability.  

We have one more cluster of cases that we want to provide you a quick overview of and those relate both to employment but also some FHA cases so you can think about where the state of the law is right now and where it's evolving on that piece.  Then we are going to try to synthesize this and then talk through hypotheticals so we can get in the weeds in terms of how these issues come up and also we would love to hear from you.  

If you have any questions, if there are issues that you're grappling with in your practice in a way that we can be helpful.  

I think we're going to turn to Bostock now.  

SHELLY SKEEN:  So Bostock is a case that came down a couple of years ago and this is a seminal case. First off, it was written by Justice Gorsuch who is pretty conservative and what the issue in the case was whether for the purposes of Title VII which prohibits discrimination on the basis of sex in the workplace for employers who have 15 or more employees you can't be discriminated against based on in the privileges, conditions, competition and the benefits of employment.  So what the Court said was sex in Title VII is not defined and the issue before the Court was does the term include sexual orientation and gender identity and what the Court said was yes, you can't consider sex without considering gender identity and sexual orientation or should I say you can't consider sexual orientation and gender identity without considering sex. So that particular case is important.  

The term "sex" is included in 100 other federal statutes.  So, for example, we're going to talk about housing. Housing is one of them, education is one of them.  Also credit, being able to get that credit is one of them."  
If you all are not familiar with the Equality Act, I'm going to go off script for a minute, everybody should become familiar with the Equality Act, because what that would do would be to specifically enumerate sexual orientation, gender identity and also the scope for disability of those places for which you cannot be discriminated against.  

And when I say that what I mean is public accommodations, housing, employment, education, and also credit and jury service.  So that is pending before Congress, it's been pending before Congress and there are many ways in which it shores up the gaps not just based on sexual orientation, gender identity but also sex.  
If you are a woman and also disability so we can get the services we need every day and walk through our lives in a way that allows us to access opportunities that we haven't been able to access.  So I kind of went off on a tangent.  

NICHOLAS GUILLORY:  Something that Bostock that I found interesting through my work at Lambda, we see that sometimes in our arguments trying to get equal protection rights for status, and that's one area of persuasion we use is hey look at the Bostock case, says sex is necessary based on gender identity and we should have those as well under the equality of the Constitution.  I think that's interesting and you will probably see that if you look at these cases throughout the nation you see that come in in certain circuits.  

SHELLY SKEEN:  Did you want to do some questions now or would you rather -- questions?  


SHELLY SKEEN:  Okay.  I'm going to call this HIV by the numbers but I want to also say just for everybody that's here to understand that HIV is a manageable condition, and for people who are undetectable, that means it's untransmittable.  We will do a few questions and that may give you a better feel for this.  Approximately how many Americans over the age of 13 are living with HIV as of 2015?  

So what everybody can do is make a note, or think in their head what the answers are and kind of think about what you think the answer is and then I will tell you what the answer is.  Our choices are -- this is how many Americans over the age of 13 living with HIV as of 2015, 600,000, 1.2 million, 2.47 million and 10.3 million?  The answer is -- does anyone know?  Guilly, what do you think?  

NICHOLAS GUILLORY:  I would have to go with C.  

SHELLY SKEEN:  Well you would be absolutely correct!  So on C is 2.47 million.  That's a good question. Another question of Americans who are living with HIV what percentage are in care and vie really depressed, 30%?  56%, 64% or 84%?  Guilly, what do you think?  

NICHOLAS GUILLORY:  I would have to go with 84%.  


M. GERON GADDS:  I'm going to go with Guilly on this one.  

SHELLY SKEEN:  It's 56%.  

M. GERON GADDS:  So roughly half. That's interesting. 

SHELLY SKEEN:  Roughly half.  All right.  There's one that I think is important and we can come back and do some more of these in a minute and, again, forgive me for looking at different screens here.  A 2011 study shows that taking antiviral therapy reduced risk to partners by how much?  52%?  67%, 81% or 96%? So Guilly?  

NICHOLAS GUILLORY:  Did you say 52?  

SHELLY SKEEN:  52, 67, 81 or 96?  



M. GERON GADDS:  I was going to go 52.  

SHELLY SKEEN:  There you go.  

M. GERON GADDS:  We have talked about the point of providing you all this information being many of the advocates with us today and certainly you guys deal with this much of what we have to combat with our clients isn't simply the fact of their experience, it's with respect to the disabilities, the expectations and sigma that persists in some yards, which I think frankly is true and I think what is most interesting to me, I will questions a good bit of ignorance on some of those figures is that it reminds us that when we are advocating for each population but particularly for clients who are experiencing each of those conditions together.  

Part of our job is to share that information, deal with stigmas, to counteract low expectations.  Steven Gold has been doing that, he is a well-regarded disability advocate and has been doing that for a long time and as I scan the people who have joined us, they have as well and would echo that.  

But I wanted to pause because I know in the disability conversations that I'm most often involved with we aren't talking as much about HIV and I think those recent numbers do a lot to show that the science has changed a lot.  Knowing that that information is out there, whether it's for amicus briefs or even merits litigation or settlement discussions.  

Being able to change the conversation as it relates to expectations I know that you all appreciate as well as I do how important that can be.  Which is really the impetus for sharing these and kind of testing ourselves in terms of what our expectations and biases might be.  

SHELLY SKEEN:  And let me add -- go ahead, Guilly.  

NICHOLAS GUILLORY:  Going further, too, I think when we are in front of judges, it's a really important factor that we're educating them on this, especially as -- there has been so much progress made in the HIV realm in so very little years, I think it was 2017 and you all probably know more than me was the first time that the -- I'm blanking the federal health people said that -- our work in Lambda just because someone is living with HIV doesn't mean they can transmit HIV and that's a huge stigma and fact that we have had to nail down into judge's minds because many of these justices are older and grew up in a time where this data and this information wasn't readily available to them.  

M. GERON GADDS:  Good point.  

SHELLY SKEEN:  And to Guilly's point and Geron's point and also back to the cases, the Jansen case and the Moore case our clients were vie really subpoena expressed, which meant that neither one of them needed any accommodation.  

So in one of the cases we had Mr. Moore, in the Jansen case we had Mr. Jansen was a CNA.  So he is dealing with people and all their bodily functions.  He needed no accommodation whatsoever adequately and properly perform his job functions.  Same thing with Mr. Moore, the paramedic on the helicopters.  

He was a paramedic so he is doing things like intubating people if that needs to take place so, again, needed no accommodation based on being HIV positive.  And the same thing, we have had lots of case where we represented police officers who are in the line of duty and also military.  If you are undetectable you cannot transmit it.  The chances are, like, below 1%, very, very far below like .08.  So just to raise that.  

M. GERON GADDS:  I am going to -- we had a slide that just tried to aggregate this because we're just going to do one more thing before we turn our attention to a robust discussion but this is a summary to remind you what we've gone through in these different areas, how you integrate the different statutes and the cases.  

So before actually turning to our hypos there are a couple of additional things to tick through as your clients come to you, clients who may have disabilities, also LGBTQ or BIPOC status and the ways that those intersect.  Couple things to remember:  Capacity and ways that capacity or the lack of capacity can be planned for.  Obviously guardianships, et cetera, are things that will impact this because of the fact that there are so many prejudices that we just talked about.  

People with disabilities or older members of the LGBTQ community are especially subject to challenges to their capacity and the way that that relates to family members, et cetera, making decisions on their behalf can be thorny so just raising that issue is something to be especially sensitive to as clients approach you for assistance.  People with disabilities and other conditions may have different expectations or hopes for privacy that maybe this -- obviously we all want privacy for our personal issues, but the way that those cut, again, may be very different when you are talking about someone who is experiencing different forms of their identity.  

Where they can be subject to prejudice or actual discrimination.  Finally, remembering your ethical obligations to your client and particularly as it relates to confidential information and who your client is when someone else is paying those things matter.  

Thinking about forum.  Shelly mentioned Texas.  I'm currently sitting in Alabama and have practiced here for most of the last decade.  We as impact lawyers very often want to do class actions, you know, in Federal Court that are public.  Why?  So we can get decisions that help a lot of people.  

But if you are situated in a place where you are having a very different experience then you might -- in, say, a major urban area you might be comfortable with arbitration or mediation that is confidential in a way that if you lived elsewhere you might be more open to a Federal Court action.  

So just reminding you to think about forum selection and your client's relative tolerance in that area.  Really thinking about relief requested, which may be different and maybe impacted differently, for example, by the forum and your client's privacy considerations or, for example, their need for retrospective relief.  The need for damages, where someone has been subject to compound employment discrimination, right, like they may need to do a damages case that's seeking only injunctive relief.  Other populations might be able to carry that, right?  

Just thinking broadly about the way that your client's particular situatedness, particularly when they are experiencing intersectional issues, and I know you all are competent lawyers so I'm ticking through the things that can fall through the cracks when we are not thinking with two hats on.  But it's just a reminder and finally for the same reasons that will be obvious to you, different tolerances as it relates to media coverage, relating to legal actions, et cetera.  

So, again, that's just intended as a reminder.  In order to cap the legal overview.  Now we are going to pivot to our discussion of hypotheticals.  I'm scanning through and I don't see any hands up, any questions at this point.  I don't see any in the chat.  

I'm going to turn it over and Shelly, let you begin with the first hypothetical.  

SHELLY SKEEN:  Okay and because I love statistics and I have the one question that I think is really important that I did not ask before so I'm going to ask one more question, here is the question:  What is an HIV negative person's risk of contracting HIV from a single act of condomless receptive anal sex with a person who is not in treatment and not undetectable.  I'm going to just tell you because my PowerPoint is not working very well, but it's 1-2%.  So you have someone in full blown, for example, who is manifesting AIDS so it's very, very low.  I think people just don't realize how low it is and we see, especially in a context with prisons and police thinking that perhaps if a prisoner who spits on them who is HIV positive they're going to get HIV, that's just not even possible.  

Okay, first one, Black female hypothetical here, you can read the screen here, age 65, loses her long-term partner and moves into an assisted living facility for folks over age 55.  The female is a person with a disability and uses a wheelchair or scooter to get around.  She is repeatedly subjected to statements regarding her race and sexual orientation and is pushed off of her scooter by another are not more than once.  Management moves her to a room at the end of the hall that is smaller than the other rooms but charges her the same monthly rate as her prior room which had a window.  Management tries to evict her claiming that she is the source of the treatment that she is receiving from the other residents.  So we will walk through these.  Does she have a claim under the Fair Housing Act and against who?  The second one is does they have a claim under the ADA and against who?  And does they have a claim under the Civil Rights Act and against who.  Let's start with the first question, does she have a claim under the Fair Housing Act?  Against who?  What do you think?  

M. GERON GADDS:  Guilly, did you want to kick us off?  

NICHOLAS GUILLORY:  I think to make things interesting how about I look for help in the chat from one of our awesome participants.  

M. GERON GADDS:  Excellent. 

NICHOLAS GUILLORY:  I will give you a few minute to think about it but whoever can help me out please drop it in the chat.  

SHELLY SKEEN:  I love it.  

M. GERON GADDS:  Our esteemed colleagues may say it is almost the end of a Friday and if that is your reaction, we certainly will help you out.  If it helps at all these facts are remarkably similar to the facts in the Wetzel case we discussed.  

SHELLY SKEEN:  We did not discuss it.  We're getting ready to. 

NICHOLAS GUILLORY:  I would say yes she has a claim against the management of the independent living facility.  

SHELLY SKEEN:  What kind of a claim?  

NICHOLAS GUILLORY:  Of the Fair Housing Act.  

SHELLY SKEEN:  Okay.  And does she have any other claims?  Well, let me be more specific.  Let's ask why do you think she has a claim under the Fair Housing Act?  

NICHOLAS GUILLORY:  Because she is being evicted due to her race and sexual orientation as well as disability status.  

SHELLY SKEEN:  I think Guilly just hit all three of our questions here.  I think you're absolutely right but Geron I'm going to let you weigh in.  

M. GERON GADDS:  I actually agree.  I think the eviction and the harassment were not based on a disability.  She moved into this particular setting based on her need for presumably disability have related assistance.  So if she was going to have to go for example to a more segregated setting because of this, there might be something associated but here it doesn't look to me like any evident actionable disability discrimination but there are other facts that could come to play.  

Where a claim would arise under the ADA or the Rehabilitation Act, but I think there are potentially claims under the Fair Housing Act because management knew about the harassment and because the movement of her and then the eviction, they participated in some way in what would be tantamount to retaliation.  

SHELLY SKEEN:  What about the Civil Rights Act?  What would be the analysis there?  For either of you?  

M. GERON GADDS:  I think that's more of a stretch.  


SHELLY SKEEN:  I think that keys in on the issue, which is we don't always know exactly in what ways we're being discriminated against.  So to me that's -- there's so much overlap and intersection between race and disability and LGBTQ status that if we are good lawyers we need to be mindful we can bring all those claims if they are relevant, if the facts, of course, support it.  But I think it's also really important in those situations to educate the judge because that's really where the term -- the terms came from.  

Kimberly Crenshaw in 1989 brought a case on behalf of black women and sued on the basis of race and sex and the judge didn't know what to do with it and dismissed the case.  

So I think that's why it's important to know what those overlaps are and to make a colorable claim.  

M. GERON GADDS:  And Shelly, you and I didn't talk about Wetzel and the Kings Manor and the split, did you want to cover those?  

SHELLY SKEEN:  Sure.  I will do Wetzel, it's a seventh circuit case and we had a woman who was almost -- very similar facts except for she was not black.  What the Court ended up saying in that instance was that the Fair Housing Act covered what was happening.  Many residents were treating her terribly and then management did all it could try to do to evict her and retaliate against her.  

She wasn't allowed to come into common areas and she repeatedly complained and so in the case what the Court said was that she was able to meet her burden on all three elements.  So unwelcome treatment, based on her sexual or orientation based on sex and what she experienced was severe and pervasive and that it interfered with her sort of quiet enjoyment of her living facility where she was and the last piece was that there was harm.  

So that case, it's also important because it shows that the Fair Housing Act doesn't just protect you when you are trying to get into a place but it protects you afterwards.  The Court imputed -- this is the other piece.  Yes, I will come back to Dave.  The Court imputed knowledge about the management.  They knew about this because she had complained.  So the Court at the end of the day held management responsible for what happened.  So that's not unlike employment law, rate, to impute your knowledge to your employer, someone who is high enough up to know that you are sitting in a severe and or hostile work environment or just environment in general.  That's what the Wetzel case was about and I think Geron you did work on Francis versus Kings Manor and or Guilly?  

M. GERON GADDS:  The piece about Francis, the only reason I think it was important to include it here was that the scope of the landlord's duty to intervene in tenant on tenant harassment is one that is evolving. Courts have not come out the same way so I included Francis because the Second Circuit in a case involving tenant-on-tenant race-based harassment found that the landlord was not liable.  

This one was more to say, this is an evolving area, and it's important to kind of stay on top of it as you would anything.  But especially in an area where the laws are certainly not uniform.  What is the piece that's there. But I think this one is particularly important when we are talking about intersectionality again not to be too obvious about it, right, but a lot of people with disabilities, particularly older adults who need to go into, for example, assisted living or other supported living situations.  

They do, then -- they do experience in many ways at least a tension or complication between their identity as a person living with and managing a disability and a person of LGBTQIA+ status because some of them face the question of recloseting in order to obtain the support that they need.  Mr. LGBTQ adults who are living with disabilities who need healthcare in order to manage those conditions then are concerned about disclosing their LGBTQIA+ status to their doctors for fear they will receive different or lesser treatment or not be afforded the same opportunities to access, for example, experimental drugs or testing, that kind of thing.  So this one in particular, while I -- 

On the facts I said that I'm not sure there is an evident ADA claim I think it does -- it certainly highlights the Fair Housing Act nondiscrimination provisions and as you say, not just when you go in, being able to access it, really, within it but then thinking about what kind of condition and medical care or supportive services are you getting once you are in those situations.  

I think it's also if you are living at the intersection you can have different experiences based on different components of your identity that then could or could not be legally protected based on whether the courts in your jurisdiction are.  

SHELLY SKEEN:  Let me add one more thing to be on the lookout for.  The Supreme Court in the last few years is expanding religious exemptions or religious liberties.  We have seen, there is a case called our lady of Guadalupe looking at school teachers who were working at Catholic schools and there was a non comprehensive nondiscrimination ordinance and bear with me.  One of the teachers believed that she had been fired based on age and the other school teacher ended up getting breast cancer and was also fired by the other Catholic school.  

So each one of them brought claims under the nondiscrimination provisions that were available to them. What the Court ended up saying was that they were -- because they taught some religious doctrine that they were not able to bring discrimination claims based on their status, age and also the woman who got cancer.  
And she had brought an ADA claim.  So where this -- where this goes is for folks who are in long-term care, many of those -- and also hospitals, right, that are religiously affiliated.  When the Court came down with this decision and said that there is an exemption for people who may or may not pray at the bedside of perhaps someone that's in the hospital.  So a nurse.  If she had a claim against the hospital and arguably the hospital was religiously based.  

And then if she had a claim against the hospital she may not be able to take advantage of the nondiscrimination provisions in the law and in federal law as well.  So I wanted to race that as a potential issue for y'all.  

NICHOLAS GUILLORY:  Thanks, Shelly.  Hypothetical No. 2.  

SHELLY SKEEN:  Yes, please.  

NICHOLAS GUILLORY:  So a black decorated police officer of the year who is straight and living with HIV seeks a job in a police department in a city where his wife has been transferred for her job.  She is a professor and not taking the job in the other city would impede her ability to obtain tenure at a prestigious institution.  His wife and kids moved to the other city while the police officer continues to work where the family previously lived until he can get a job and sell his family home.  The police department in the new city offers him a conditional job offer pending his physical and mental evaluations.  The offer passes both evaluations and discloses his HIV status and the medication he is taking on his medical forms.  The HIV is undetectable.  He has no accommodations at his current employer and does not need accommodation to perform the essential duties of his job.  The police department in the new city denies him the job afternoon it learns he is living with HIV.  Does he have a claim against the police department for failing to hire him?  If so what claim?  Shelly?  

SHELLY SKEEN:  I'm going to let Geron go first and then I will chime in, and anybody in the chat as well may do so.  

M. GERON GADDS:  Why don't you go ahead.  


M. GERON GADDS:  I've been talking a lot today.  

SHELLY SKEEN:  I was going to say I'm abdicating responsibility.  The short answer is yes he does have a claim.  Yeah, all right, let me read Kathleen's statement.  He has an ADA and likely a Section 504 Rehabilitation Act claim against the city, you are spot on.  Spot on, Kathleen.  Wow.  Okay.  Well then Kathleen answered it all.  She said he has an ADA and likely a Section 504 claim against the city.  Only defense possible is direct threat which will fail.  I'm going to ask Kathleen to tell us why direct threat will fail if she is willing to come on.  

Kate Wolfe: Are hi, y'all, this is Kate Wolfe I'm an attorney in the disability rights section at DOJ so enjoying this session.  Two things, because he does not need an accommodation he could bring his claim under the regarded act prong of the ADA in Section 504 instead of showing that he has an actual disability.  That's not a big deal in this case because with HIV he does have a disability and he has a record of a disability so he's covered with a disability.  

He's not going to be able to -- they're not going to be able to show that he is a direct threat because that analysis is set out in the Title I regulations in quite some detail.  The important thing is that it requires an individualized assessment based on current and objective best medical evidence, and here that evidence is going to show that the duties that he performs -- he's just not a direct threat as is considered under the case law and the regulations there.  

So, you know, query maybe you could even get that defense kicked out at a motion in limine stage, something like that.  Sometimes I think in some of these HIV cases the risk is so low that, I don't know, sometimes I think they shouldn't be able to argue those to the fact finder or at least it's worth thinking about. But I would be thrilled to have this police officer working in my city.  

SHELLY SKEEN:  That's a fabulous -- everything that Kathleen just said was absolutely spot on.  Especially with the individual assessment and in some of these cases we have been able to file a motion for summary judgment and didn't get a ruling but sure got a settlement pretty soon thereafter.  

NICHOLAS GUILLORY:  Kathleen mentioned about how the risk is so low.  One thing in a case I'm working on, we are looking at using language around the difference between medical likelihood of transmission versus the actual practical risk of transmission, so because of science and all the things that go into science and I'm by no means a scientist they have to say it's basically 0.  Well, basically 0 in science is very different than 0 in reality, so whereas a medical journal and things might use the phrase basically zero or probably zero I think it's important to educate judges on what that practicality looks like.  

SHELLY SKEEN:  One other thing, too.  I think we have been talking about the intersections, right?  It's important to know that most of that he is statutes that we're looking at cover actual or perceived, so actual or perceived sexual orientation, actual or perceived disability, actual or perceived gender identity.  I know I'm saying all three of them but you tonight have to be LGBTQ to be able to, for example, make a claim that you've been discriminated against on the basis of sex if someone else thinks that you are.  Right?  And so just pointing that out.  The other thing, too, with title VII is from the get-go it was meant to strike at sex stereo types or gender stereo types, one of the first cases Phillips versus Martin Marietta so not conforming to gender norms.  

M. GERON GADDS:  Absolutely.  I am trying to keep an eye on time and we only have a few more minutes and we had one more hypothetical that I want to share with you all, I don't know how much we will be able to discuss because I would prefer to answer any lingering questions that participants have but in part because there are arguments for this one but it's not squarely covered by decisions.  

Then I will give you our contact information.  We invite you to visit with us or email us if you have any questions.  We're also very good at -- if we don't know an answer we can get you to somebody who will know the answer.  Thank you all for participating.  So our final hypothetical is a 21-year-old transgender woman who has a mild intellectual disability and seeks to live in a supported housing with the assistance of a live-in aide.  The woman is dating another woman who is currently living in the supported housing development, the pair met in high school.  The state's ID service provider suggests that the 21 year old moving into a group home because providers are having a hard time finding an aide willing to live with a transgender woman dating a woman.  There are some ADA issues here, Olmstead being one of them to the extent that a move from supported house to go a group home would be more institutional situation.  

Obviously the potential sex discrimination that is involved as it relates to transgender -- excuse me, sexual orientation as it pertains to the relationship, gender identity its it pertains to the woman being a transgender woman and invite all of you to further comment.  This is one where it would largely be an argument and I have not squarely decided it but wanted to tie it back together for the purposes of the disability piece and get everyone thinking as they move into their weekend.  Do you have questions or final comments?  
Okay.  I'm checking our chat.  It doesn't look like there are any further questions in the chat, and I'm trying to scroll down if there are any hands raised.  Doesn't appear that there are.  

Again, just want to thank you so much joining us in this process.  If you have any questions, this is our contact information.  If you have any questions, please feel free to reach out to us, we would be delighted to help you or direct you in the right direction and thanks for all that each of you are doing in your daily work.