What is I-O?

For reasons to be discussed below, it was the Casey Martin case (Martin v. PGA Tour, 2000) that reminded me about these aforementioned workshops. At first blush, I thought this case was simply about golf. Being an avid golfer and occasional participant in the annual hunt for the Hugo Cup,¹ I followed the case with much personal but little professional interest. Casey Martin suffers from Klippel-Trenaunay-Weber Syndrome in his right leg, severely restricting his ability to walk a golf course. Martin won the right in the lower courts to ride a golf cart during PGA and Nike Tour events wherein historically there has always been a walking rule for all competitors. The Supreme Court has heard oral arguments in this case and will rule probably by June 2001. My purpose below is to isolate some issues I think may concern us, even though our primary interest in life is the workplace, not the fun-place. 

¹ For those who do not know and/or who could care less, the battle for the Hugo Cup is an annual SIOP pre-conference event in which a good time is generally had by all.

Handicapping the Casey Martin Case 

If we analyzed the job of golfer, the emphasis would likely be on shot
making, while walking would not likely emerge as an essential job function. After all, many recreational golfers ride carts, and carts are permitted in some of the events conducted by the Professional Golf Association (PGA) (e.g., the Senior Tour). Indeed, during early qualification rounds for a Tour Card (to play on the PGA and Nike Tours), all golfers are permitted to ride a cart. Therefore, what Casey Martin successfully challenged in the lower courts was the selective application of the walking rule to some PGA events but not others. There are two key issues in this case: whether (a) Title I or Title III of the ADA is the applicable statute; and (b) cart riding is a reasonable accommodation or a fundamental alteration of the golf competitions in question. A third issue of potential importance is, given that cart riding is reasonable, is it an undue burden (or hardship) on the PGA to determine who should and should not ride? 

Casey Martin Is Not Alone 

To begin with, there is a parallel case (Olinger v. USGA, 2000) which, thus far, has received little press. Ford Olinger suffers from bilateral avascular necrosis, a degenerative disease that severely restricts his ability to walk. Olinger sued the United States Golf Association (USGA) challenging its walking rule as it applies to a single annual event; the United States Open golf championship. Martins case involves dozens of other events conducted by the PGA throughout the year. In Olinger, the district court and the 7^th Circuit ruled for the USGA, whereas in Martin, the district court and the 9^th Circuit ruled against the PGA. Can both of these rulings be correct?

Both Casey Martin and Ford Olinger sued under Title I and Title III of the ADA. In Martin, the 9^th Circuit ruled that Title I does not apply, affirming the district courts ruling that Casey Martin is an independent contractor, not an employee, and that Title I applies to employees only. The 7th Circuit ruled similarly in the Olinger.² The major disagreement in these two rulings is on the second issue; the 7th Circuit ruled that cart riding is a fundamental alteration of the U.S. Open, whereas the 9^th Circuit ruled it was not for PGA and Nike Tour events.

² More precisely, the 7th Circuit ruled that Title I does not apply, but did not directly rule on the Title III issue, believing it was irrelevant in view of its ultimate ruling that cart riding does fundamentally alter the U.S. Open competition.

Issue 1: Title I or Title III? 

In its Supreme Court briefs, the PGA argues that Martins claim of discrimination arises under Title I of the Act, or not at all. This sets up a potential catch 22, since the PGA also argues that the lower courts in this case correctly decided that Title I does not apply. Therefore, in essence, the PGA argues that no statute in the ADA applies to professional golfers on the PGA and Nike Tours.³ 

³ The ADA has five titles, including: (I) Employment; (II) Public Services; (III) Public Accommodations and Services Operated by Private Entities; (IV) Telecommunications; and (V) Miscellaneous Provisions. If Titles I or III does not apply, it is difficult to envision how Titles II, IV or V would.

In the lower court cases, the PGA argued, based on Title III regulations, that a golf course is a mixed-use facility in which different rules apply outside the ropes (to spectators) versus inside the ropes (to competitors) at PGA events. In rejecting this argument, the 9^th Circuit cited several cases involving nonprofessional athletic competitions and ruled that Title III applies to the playing field, not just the stands.⁴ The 9th Circuit also cited Menkowitz v. Pottstown Memorial Medical Center (1998), in which the 3rd Circuit ruled that Title III applies to both hospital staff and hospital patient areas, even though there are places within a hospital reserved for doctors and medical staff that for patients and visitors are, in essence, out of bounds.

⁴ These cases include Anderson v. Little League Baseball (1992); Bowers v. NCAA (1999); Garden v. NCAA (1996); and Tatum v. NCAA (1998).

The PGA countered that cases involving lesser athletic competitions (e.g., college sports and little league) do not apply to PGA events because PGA Tour competition is reserved for an elite group of golfers possessing extremely high levels of skill. In rejecting this argument, the 9th Circuit ruled that Title III clearly applies to students at colleges and universities, where the academic competition is also very keen and, particularly at the highest-ranked schools, the students are considered elite.

In its Supreme Court briefs, the PGA counters that the 9th Circuit erred in comparing university students to PGA golfers, arguing instead that the proper comparison for PGA golfers in a university is to teachers, not to students. For example, the PGA states the following: 

An independent contractor lecturing at a private university, for example, is given among other things, the opportunity to associate with distinguished academics, to meet with students at prearranged times and places, to demonstrate his skills to interested observers, and to gain visibility within his profession, but it would be fanciful to say that, as a consequence, he is properly regarded as a member of the public partaking of goods and services offered by the university. On the contrary, a university lecturer is helping to provide educational services to university students (who are clients and customers of the university) and, while he may receive incidental benefits in addition to payment for his labor, those benefits are truly incidental that is, they are a direct consequence of, and inseparable from, his agreement to work for the university. He remains in the capacity of a person working for the operator of a place of public accommodation, and his complaints about the terms and conditions established for working there are not cognizable under Title III. 

Of course, this argument completes another catch 22. Clearly, university teachers, even adjuncts, and even in private institutions, are employees of the university. As such, they are undoubtedly protected by Title I of the ADA. Consequently, the parallel between golfer and teacher suggests that if Martin is not covered by Title III then he must be covered by Title I. 

Issue 2: Reasonable Accommodation or Fundamental Alteration? 

Adding irony to the aforementioned circularity, in arguably the two most important landmark Supreme Court cases decided under Section 504 of the Rehabilitation Act of 1973, Southeastern v. Davis (1979) featured a student, and School Board v. Arline (1987) featured a teacher. Frances Davis, who was nearly deaf, demanded substantial modifications of a nursing curriculum because she could not, with or without accommodations, complete the program as structured. The Supreme Court ruled the school was not obligated to fundamentally alter its program. Gene Arline was fired after a recurrence of tuberculosis because she posed a significant risk to the health of others. The Supreme Court ruled Arline could perform the essential functions of her teaching job when not infectious and that the school board was obligated to consider if reasonable accommodations (e.g., sick leave) were possible.

Why is this ironic? Logic dictates that if Davis and Arline were retried based on ADA law, Davis would likely belong to Title III and Arline would likely belong to Title I. Therefore, to enhance the case, logic also dictates that lawyers for the PGA should have argued that Casey Martin is in the student role, not the teacher role. In this way the PGA could further argue for the same reasons that a college or university has the discretion to establish its curriculum, the PGA has the discretion to establish the fundamental rules for its PGA and Nike Tour events.

Interestingly, the lower courts decided the reasonable accommodation issue on the Davis precedent, concluding that cart riding does not fundamentally alter the nature of the PGA and Nike events. To begin with, the 9^th Circuit ruled that walking is not essential because the central competition in shot-making would be unaffected by Martins accommodation. Subsequently, in response to the PGAs argument that walking is essential because it adds an element of fatigue to PGA and Nike events, the 9^th Circuit affirmed the district courts ruling that Casey Martin is more fatigued while riding a cart than are other competitors who are required to walk.

A central counter argument in the PGA Supreme Court briefs is that the issue of fatigue is a substantive one that should fall to the discretion of the PGA and not the judgment of the courts. The PGA also argues it enforces this rule uniformly and that it would be an undue burden to determine who would be and who would not be eligible for a cart riding exemption. 

Why Should This Case Concern Us? 

First, one of (many) historical problems with Section 504 of the Rehabilitation Act is that because of its broad brush (i.e., all entities receiving federal funds), it failed to distinguish among such issues such as employment, public accommodation, public services, telecommunication services, and so on. The ADA, with its separate titles, makes these distinctions, and it is important to clearly delineate the lines among these titles.

Second, even within the confines of Section 504 of the Rehabilitation Act, there were key differences in how the Supreme Court decided curriculum issues in Davis in comparison to job issues in Arline. Davis focused on the fundamental nature of college curriculum, whereas Arline focused on the essential functions of a job. These two issues seem separable and should remain so.

Third, even within the confines of the fundamental nature argument, it would seem that the PGA is defining itself as being beyond the reach of the ADA by arguing it has total discretion over substantive issues in tour events. To suggest that such issues are beyond the reach of a court is tantamount to a university arguing it has so much discretion over its curriculum, that it could, in theory, without court intervention, impose on all students a requirement to take physical education courses (and thereby exclude thousands of physically disabled students from academic coursework).

Fourth, the argument that it would be an undue burden to force the PGA to decide who qualifies and who does not qualify to ride carts runs against a critical grain of the Rehabilitation Act and the ADA; reasonable accommodation is not a classwide issue, but rather, a decision to be made on a case-by-case basis.

Fifth, if there is a place where the lower courts made a clearly erroneous ruling, it involves the issue of whether Casey Martin in a cart is more fatigued than are other competitors who walk. Such a conclusion appears arbitrary, particularly when there are empirical methods for measuring fatigue.⁵

⁵ Also questionable in this case is the district courts ruling that fatigue is primarily mental, not physical.

Finally, the reason why this case reminds me of vague job descriptions is that as a fan of golf since early childhood, I always assumed that professional golfers walked simply because of tradition. Therefore, I wonder whether the fatigue argument is a post-lawsuit justification for a rule that has never been clearly articulated. If so, perhaps the lawyers who advocate ambiguity in job descriptions are giving good advice. 

References 

Anderson v. Little League Baseball (D. Ariz, 1992) 794 F.Supp 342.

Bowers v. NCAA (D.N.J 1999) 9 F.Supp 2.

Garden v. NCAA (N.D. Ill, 1996) 1996 WL680000.

Martin v. PGA Tour (2000). Electronic citation: http://laws.findlaw.com/9th/9835309.html.

Menkowitz v. Pottstown Memorial Medical Center (CA3 1998) 154 F.3d 113.

Olinger v. USGA (CA 3 2000) 205 F.3d 1001.

Southeastern Community College v. Davis (1979) 442 US 397.

School Board of Nassau County v. Arline (1987) 480 US 273.

Tatum v. NCAA (E.D. Mo 1998) 992 F.Supp 1114.