A Title VII Case Leads to the Question of Whether a Referee Association is a Place of Public Accommodation and Where the Liability Exposure May Be

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Today’s blog entry comes from the Wait a Second blog. It was something that I was going to blog on anyway, but the Wait a Second blog beat me to the punch. As everyone knows, I still will blog on cases that other bloggers have blogged on if I feel I can offer a unique perspective. This case certainly qualifies. The case is Girard v. International Association of Approved Basketball Officials Inc., a summary order from the Second Circuit. Wait A Second does a great job of discussing the case here182185191197197, and the case can be found here183186192198198. This blog entry is personal to me in many ways as in my 30s I refereed basketball. The setup of the Referee Association was very very similar to what is described in the case. No doubt, the Second Circuit gets it right with respect to whether the referee is an employee. However, my question is what if the same thing happened except the reason why it happened was because the referee had a disability as the ADA defines the term that did not interfere with him or her refereeing the games. Nevertheless, let’s assume the Referee Association assumed that the disability as the ADA defines the term would interfere or would potentially interfere with refereeing and then took adverse action against the referee. If this was an ADA matter would a court reach the same result at the Second Circuit? That is the question that this blog entry will explore. As usual, the blog entry is divided into categories and they are: facts; court’s decision; is the Referee Association a place of public accommodation; if the Referee Association is a place of public accommodation, where is the liability exposure; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.
 
I
Facts
 
As alleged in the complaint, Girard officiates middle and high school basketball games in Connecticut. IAABO and Board 6 control the assignment of referees to middle and high school basketball games at schools in Connecticut, and they determine which referees will work which games. While defendants do the “matchmaking” of pairing officials with games, the referees are paid on a per-game basis directly by the “schools, school districts and league of schools.” Compl. ¶¶ 72-73. Referees are paid more for working high school varsity-level games than for “subvarsity” games at the middle school, freshman, and junior varsity levels. Compl. ¶ 51. – 4 – Defendants use a peer rating system to determine which referees are eligible to officiate varsity games. Defendants’ ratings of referees and their determinations of varsity eligibility thus significantly affect the number of work opportunities available to referees and what they will be paid. As further alleged in the complaint, the defendants’ peer rating system has led to disparate varsity-eligibility and rankings between genders. Approximately 99% of the varsity referees on Board 6’s roster are male. Defendants have refused to adopt objective methods for assessing referees, and thus continue to use subjective rankings systems that are influenced by gender bias. Defendants’ practices have caused female referees to be underrepresented at the varsity level. In 2009, Girard complained to the president of Board 6, David Anderson, that she was not receiving opportunities to develop in games with seasoned referees and advance to the varsity level. Instead, she was assigned to low-level games because of her gender. Dissatisfied with Anderson’s response, Girard filed a grievance with Board 6’s Professional Standards Committee, but the committee rejected it. Thereafter, the defendants reduced the number of games Girard was assigned to and continue to assign her to sub-varsity games in retaliation for her complaints about gender discrimination.
 
II
Court’s Decision
 
To state a Title VII claim, a plaintiff has to allege the existence of an employer-employee relationship.
No such relationship exists under two different Supreme Court precedents. That is, the plaintiff does not meet the common-law element of control nor does the plaintiff meet a 13-factor test that the Supreme Court laid out in one of its cases.
 
III
Is the Referee Association a Place of Public Accommodation under the ADA
 
1. As we have discussed here184187193199199, the trend is very much that a place of public accommodation does not have to be a physical space.
2. 42 U.S.C. §12181185188194200200(7) has 12 categories what are places of public accommodations but the examples in those categories are not exclusive. 12181(7) (F) is a service establishment and 12181(7)(L) is a place of exercise or recreation. Either of those might fit for a Referee Association. That is, the Referee Association is certainly providing a service to its referees. Also, the referees are performing their job in a place of exercise or recreation, i.e. gymnasiums.
3. The Referee Association is certainly operating an Association.
4. PGA Tour, Inc. v. Martin186189195201201 makes clear that the 12 categories of public accommodation need to be construed liberally to allow people with disabilities equal access to the wide variety of establishments available to those without disabilities.
As mentioned in PGA Tour, Inc. v. Martin, the events that the referees referee occur at types of places specifically identified by the ADA as a place of public accommodation, i.e. gymnasiums.
5. Also by way of analogy to PGA Tour, Inc. v. Martin, a Referee Association, like the PGA Tour, offers at least two privileges to the public-that of watching the basketball game with the referees and allowing people to be referees in the games if they are able to do the job of being a referee.
7. Similarly to PGA Tour, just because the Referee Association serves the schools by refereeing its games and the public by making sure the games are played within the rules, that does not preclude them from having another set, the actual referees, against whom it may not discriminate.
Being a member of the Referee Association is a privilege offered by the Referee Association and therefore title III coverage may be had under the case discussed in this blog entry187190196202202.
 
IV
 
If the Referee Association Is a Place of Public Accommodation under the ADA, Where Is the Liability Exposure
 
1. 42 U.S.C. §12182188191197203203(b)(1)(A)(i) makes it discrimination to deny an opportunity to a person with a disability on the basis of a disability from participating in or benefiting from the goods, services, facilities, privileges, advantages, or accommodations of the place of public accommodation.
2. 42 U.S.C. §12182189192198204204(b)(1)(A)(ii) makes it discrimination to deny the opportunity for a person with a disability on the basis of the disability to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals.
3. 42 U.S.C. §12182190193199205205(b)(1)(D)(i) makes it discrimination for a place of public accommodation to utilize standards or criteria or methods of administration that have the effect of discriminating on the basis of disability.
4. 42 U.S.C. §12182191194200206206(b)(2)(A)(ii) makes it discrimination or place of public accommodation to fail to make reasonable modifications and policy, practices, or procedures, when such modifications are necessary to avoid such goods, services, facilities, privileges, advantages, or accommodation to individuals with disabilities absent a fundamental alteration.
5. 28 C.F.R. §35.130192195201207207(b)(1)(v) makes it discrimination for a public entity to aid or perpetuate discrimination by providing significant assistance to an agency, organization, or person that discriminates on the basis of disability.

V
Thoughts/Takeaways
 
1. The point of this blog entry is to lay out the case as to why a person alleging disability discrimination against a Referee Association may wind up with a very different result than the referee who alleged Title VII violations.
2. The key question is going to be whether the Referee Association is a place of public accommodation. A strong argument can be laid out that it is, as discussed above.
3. If the Referee Association is a place of public accommodation, then any number of regulations and statutes can come into play.
4. If the Referee Association is a place of public accommodation and is discriminating on the basis of disability, then it would be perfectly appropriate to ask that the schools paying the referees stop contracting or utilizing the Referee Association. I could also see a referee filing suit saying that a school would have to stop contracting with the Referee Association.
5. Since this is the Super Bowl coming up, it is my understanding that most NFL referees are employees and not independent contractors. As such, they would be under title I of the ADA and not under title III. However, if a referee was an independent contractor (all high school and junior high referees are), then this blog entry would be applicable if the referee were to face discrimination based upon a disability.
6. There is absolutely no reason why a person with a disability cannot be a referee. I did it for years.
7. Of course, assuming a place of public accommodation is found the referee was still have to prove he or she had an actual disability, a record of a disability, or was regarded as having a disability. From my experience, many of those possibilities could easily be in play with respect to an aggrieved referee.