Christian Pharmacists in Washington Lose Free Exercise Challenge to Pharmacy Regulations Requiring Timely Provision of “Plan B” Contraceptives

Storman’s Inc. v. Weisman, No. 12-35221, 2015 DJDAR 8463 (9th Cir. July 24, 2015).

In a case that began in 2007, and now reaches the Ninth Circuit for the second time, the court again reverses the district court’s judgment in favor of several plaintiffs who challenged Washington state rules regulating the timely provision and delivery of pharmacy prescriptions. The plaintiffs had religious objections to delivering or stocking so-called “Plan B” contraceptives, even though the rules attempted to accommodate such objections by allowing objecting pharmacists to not provide or deliver the prescriptions so long as a substitute pharmacist can be found to meet the patient’s needs.

This decision, which attracted dozens of amicus briefs by religious organizations both conservative and liberal in their social outlook, may well head to the Supreme Court, especially in the wake of the Supreme Court’s Hobby Lobby decision last Term. After a long analysis, the panel rejects the plaintiffs’ claim that because their participation in the provision of the Plan B drug implicates the “the taking of a human life,” it constitutes a protected liberty interest under the Due Process Clause. The court ultimately concludes that the pharmacy rules at issue “are neutral, generally applicable, and rationally further the state’s interest in patient safety.”

Employer Need Not Retain or Accommodate Employee with Mental Disability, Where the Condition Causes him to Make Repeated Threats of Violence Against Supervisors and Co-Workers

Mayo v. PCC Structurals, Inc., No.13-35643, 2015 DJDAR 8590 (9th Cir. July 29, 2015).

The plaintiff in this case suffered from major depressive disorder, but with treatment and medication he performed his job without incident for a number of years. At some point, however, he began to make repeated and detailed plans, which he shared with his co-workers, about how he was going to kill—in gruesome manner–his supervisors and other workers. When he told the employer that he “couldn’t guarantee” he wouldn’t carry out these plans, he was terminated and barred from the premises. He subsequently was hospitalized, received treatment for several months, and sought reinstatement to his job, which the employer refused.

He sued, claiming disability discrimination in violation of the Americans with Disabilities Act (ADA), and an analogous state statute in Oregon, and alleged that his disturbing comments and statements were “symptoms of and caused by” his disability, making his termination discriminatory.

The district court and the Ninth Circuit disagreed. To prove an ADA claim of unlawful discharge, an employee must establish a prima facie case by showing (1) he is a disabled person, within the meaning of the statute; (2) he is a “qualified individual” with a disability; and (3) he suffered an adverse employment action due to his disability. A “qualified individual” is a person who, “with or without reasonable accommodation,” can perform “the essential functions of the job.”

Following several other circuit decisions with similar facts, the Ninth Circuit holds that “while an employee can be qualified despite adverse reactions to stress in the workplace,” he cannot be “qualified” when the stress leads him to “threaten to kill his co-workers in chilling detail.” Even assuming that the threats stemmed from his disability, requiring employers to retain such workers “would place the employer in an impossible position,” and would force the employer “to choose between ADA liability and a hostile work environment.”

In an sympathetic final paragraph, the court acknowledges that “depression and mental illness are serious problems that effect millions of persons, including judges and lawyers,” and that many such persons are capable of working despite their “struggles” with these ailments. But the ADA, concludes the court, does not require employers to “simply cross their fingers and hope that [an employee’s] violent threats will ring hollow.”

Rush to Judgment: Ninth Circuit revives race discrimination claims brought By Latino students against Arizona education officials

Arce v. Douglas, No. 13-15657, 2015 DJDAR 7887 (9th Cir. July 7, 2015).

In the 1990s, the Tucson public school district–with a student population exceeding 60% Mexican or other Hispanic heritage children–implemented a “Mexican-American Studies Program” (MAS). It was designed to “provide a culturally relevant curriculum for students from kindergarten to 12th grade by incorporating historical and contemporary Mexican-American contributions into coursework and classroom studies.”

The program drew criticism from the Arizona Superintendent of Public Instruction, who sponsored a state statute enacted in 2010 prohibiting any public school districts from including in their curricula any courses which “promote resentment towards a race or class of people;” are “designed primarily for pupils of a particular ethnic group;” “advocate ethnic solidarity instead of the treatment of pupils as individuals;” and/or, just for good measure, “promote the overthrow of the U.S. government.”

In 2011, the new Superintendent of Public Instruction (the prior one having just been elected state Attorney General) found that the Tucson MAS program violated the new law, and gave the district 60 days to eliminate the program or have its funding reduced. He made this finding to reaffirm the out-going superintendent’s premature finding of a violation (it was made even before the effective date of the new law), and in spite of an independent auditor’s finding–which the superintendent’s office had commissioned–that the MAS program did not violate the new law.

Various teachers and students from the school district sued, alleging an array of constitutional challenges to the new statute and its enforcement, including various First Amendment challenges as well as an equal protection claim that the statute was motivated by an intent to discriminate against MAS students on the basis of race and national origin.

The district court mostly granted summary judgment to the defendants, except as to plaintiffs’ First Amendment “overbreadth” attack on the statute, and in fact the district court granted summary judgment sua sponte to defendants on plaintiffs’ race discrimination claim. On appeal, a divided Ninth Circuit panel upholds the judgment as to the First Amendment claim, and reverses and remands for trial on the plaintiffs’ equal protection claim; the court observes that the (two) superintendents’ rush to find the MAS program in violation of the new law, especially in light of the contrary findings of the auditor commissioned by the superintendent, raises genuine issues of fact on plaintiffs’ claim of discriminatory intent.

Plaintiffs are represented by constitutional scholar Erwin Chemerinsky in this case, which has attracted national attention, with civil rights and education advocacy groups from both sides of the political spectrum participating as amicus curiae.