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Iron Fist in a Latex Glove

By Michael Lentz, Wagonheim Law Attorney

As a business lawyer with cerebral palsy who generally uses a wheelchair to get around, I can see both sides of the “reasonable accommodation” for disabilities debate in a way that few people can. I know what it’s like to grip a folder in my teeth so I can use both hands to wheel my chair forward while kicking open a door. One of my favorite T-shirts features the handicapped icon over the legend: “I’m only in it for the parking.”

Perhaps it’s my personal status or just the nature of my field, but I found myself fascinated (and not a little bit appalled) at the recently published opinion by Maryland’s highest court placing large and uncertain burdens on Maryland’s businesses. In Meade v. Shangri-La Partnership, the Court exposed business owners to potentially unavoidable liability, with no intelligible standard to guide their conduct.

The mother wrote to the school, politely requesting that the school switch to non-latex gloves. She even provided the school with a temporary supply, at her own expense. Nonetheless, the school refused to switch, because of existing contracts with suppliers. Instead, the school asked that the mother place her son in another pre-school.

The mother sued, claiming that the school, a private institution, had discriminated against her due to a handicap, and had retaliated against her because she complained about the discrimination.  After a small victory for the Plaintiff at trial, the case eventually found itself in the Court of Appeals.

The Court noted the statutory definition of “handicap” as a “substantial impairment of a major life activity.”  In upholding the trial court verdict, the Court decided that parenting constituted a major life activity, and that the plaintiff’s parenting had been substantially impaired because she could not fully interact with her son while at this particular school.

While detailed analysis of legal opinions is well beyond the scope of this blog, this writer respectfully opines that the underpinnings of the opinion are weak at best.  Instead, the opinion is particularly important for what it might mean in the future.

First, the mother’s claim is noteworthy because she was not the customer of the business that her lawsuit victimized.  While she chose (and presumably paid for) the school in question, it was not she who attended the school on a daily basis.  She did not rely on the school for her education.  She chose to place her child in a school where she could have known that she might encounter difficulty, then sued the school when she encountered that difficulty.

The school – a private business, remember – could not evaluate or even foresee the liability that it ultimately faced.  The school was placed in the impossible position of having to accommodate the alleged disabilities of not only its students but anyone related to any of them, or face liability for failing to do so.

Imagine the potential parallels.  Is a business required to hold its holiday dinner in a wheelchair accessible location, to make sure that the wheelchair-bound spouse of an employee can attend?  Must a business prohibit the consumption of peanuts, or products containing them, to protect normal”>potential customers with peanut allergies?

As the more reasoned voices on the Court pointed out (unfortunately, they were too few to establish a majority), the insidious danger of the Meade opinion is its complete lack of a standard by which businesses can guide their behavior.  The Court decided both that parenting is a “major life activity,” and that the inability regularly to visit one’s child in the school of one’s choice is a “substantial” limitation on that activity.

Herein lies the problem:  Who is to say when a limitation becomes “substantial” enough to become a handicap?  More importantly, how is the decision to be made?

If the answer is determinable only on a case-by-case basis after litigation, no one is well served.  Businesses and their owners cannot even identify the newly-expanded universe of risks against which they must now guard, and litigants (on either side) have no meaningful way to predict the outcome of a potential (or actual) lawsuit.

The Meade opinion, completely missing any meaningful standard, turns businesses and their owners into piñatas –  strung up at the mercy of blindfolded plaintiffs, all stumbling about with sticks, hoping to land exactly the right blow to disgorge all the loot. Under the circumstances, a disorganized, random mess is the inevitable result.  Not bad, perhaps, for a child’s party – but a lousy environment in which to run a business.