Mark Silguero and Amy Wolfe v. Csl Plasma, Incorporated
Mark Silguero and Amy Wolfe v. Csl Plasma, Incorporated
Opinion
In this opinion we consider two questions certified to this Court by the Fifth Circuit Court of Appeals: (1) Is a plasma collection center a "public facility" under Texas Human Resources Code (THRC) section 121.002(5), and if so, (2) what standard applies for determining whether a public facility's rejection of a person with a disability constitutes impermissible discrimination under the THRC? We hold that a plasma collection center is a "public facility" under section 121.002(5). We further hold that a plasma collection center may reject a person with a disability-eliminating their opportunity to donate plasma and receive compensation-without committing impermissible discrimination under section 121.003(a) when: (1) the plasma center's rejection does not meet the THRC's definition of "discrimination" or satisfies an exception to the definition of "discrimination," such as the application of eligibility criteria that screen out persons with disabilities, but are shown to be necessary for the provision of services; or (2) the defendant establishes that allowing the person with a disability full use and enjoyment of the public facility would pose a direct threat to the health or safety of others.
See
I. Background
CSL Plasma, Inc. operates plasma collection centers across the United States. At these centers, CSL extracts the donor's blood, separates the donor's plasma from the red blood cells, and then returns the red blood cells to the donor's bloodstream. 1 After this extraction process, CSL compensates the donor, 2 processes the plasma to create a marketable plasma byproduct, and ultimately sells this byproduct to pharmaceutical companies. The federal Food and Drug Administration (FDA) regulates this plasma extraction process. The FDA licenses and audits plasma collection centers.
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Under the FDA's regulations, CSL must screen all potential donors to determine whether each individual is eligible to donate.
See
Silguero suffers from bad knees and uses a cane. CSL and Silguero agree that Silguero qualifies as a person with disabilities under the Americans with Disabilities Act (ADA) and the THRC. Silguero had previously donated plasma at CSL between January and April 2014. Silguero attempted to donate again on January 2, 2015. At that time, the condition of Silguero's knees had worsened to the point of needing knee replacements. Silguero went through CSL's donor-screening process, and CSL informed him that he would be deferred and unable to donate that day. Silguero claims he was deferred because of his "unsteady gait" and because CSL believed that he could not transfer safely to and from the donation bed. Silguero became upset, shook his finger at the medical staff, and told them they would be sorry. As a result, CSL deferred Silguero permanently, banning him from donating at CSL.
Wolfe suffers from an anxiety disorder and utilizes a service dog to improve her symptoms. Having never donated at CSL before, Wolfe went to CSL to donate plasma on October 9, 2016. Both CSL and Wolfe agree that Wolfe qualifies as a person with a disability under the ADA and the THRC. CSL did not allow Wolfe to donate because she required a service animal to treat her anxiety. In deferring her, CSL relied on its guidelines that a person is ineligible to donate if they suffer from anxiety requiring the use of a service dog.
Silguero filed suit against CSL in federal court on August 24, 2016, alleging unlawful discrimination on the basis of his disability. He sought injunctive relief under Title III of the ADA and both injunctive relief and damages under chapter 121 of the THRC. The district court allowed Wolfe to intervene as a plaintiff on March 28, 2017, because her claims against CSL for disability discrimination presented common questions of fact and law. On August 14, 2017, each side moved for summary judgment. CSL argued that it was neither a place of "public accommodation" under the ADA, because it did not qualify as a "service establishment," nor a "public facility" under the THRC. It further asserted that Silguero and Wolfe (collectively, the "plaintiffs") could not establish a genuine issue of material fact as to whether CSL fell under the ADA or THRC. The plaintiffs argued that a plasma collection center falls within the plain meaning of "service establishment" under the ADA because it is simply an establishment that provides a service. The plaintiffs cited a Tenth Circuit Court of Appeals case in support of this argument.
See
Levorsen v. Octapharma Plasma, Inc.
,
The district court granted summary judgment in favor of CSL. No. 2:16-CV-361,
Having decided that the ADA does not apply, the district court elected to maintain supplemental jurisdiction over the plaintiffs' state law claims.
See
id.
at *5 (citing
Baker v. Farmers Elec. Coop., Inc.
,
[A] plasma-donation center does not supply any good or service for convenience or need. Rather, the donor sells blood plasma to the center. Because the roles of seller and buyer are reversed in the plasma-donation context, plasma-donation centers such as CSL do not qualify as places of public accommodation under Texas Human Resources Code § 121.002(5).
The Fifth Circuit affirmed the district court's holding that a plasma collection center is not an "other service establishment" under the ADA.
1. Is a plasma collection center [like those operated by CSL] a "public facility" under Texas Human Resources Code § 121.002(5) ?
2. If so, would Texas law allow the plasma collection center to reject a "person with a disability," see TEX. HUM. RES. CODE § 121.002(4), based on the center's concerns for the individual's health that stem from the disability? What standard would apply to determining whether the plasma collection center properly rejected the person, rather than committed impermissible discrimination under Texas Human Resources Code § 121.003(a) ?
II. Texas Human Resources Code Chapter 121
Chapter 121 of the THRC, which was enacted before and differs substantially
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from its federal counterpart in the ADA, embodies the purpose of "encourag[ing] and enabl[ing] persons with disabilities to participate fully in the social and economic life of the state, to achieve maximum personal independence, ... and use all public facilities available within the state." TEX. HUM. RES. CODE § 121.001 ;
see also
Americans with Disabilities Act of 1990, Pub. L. No. 101-336,
The THRC provides that "[p]ersons with disabilities have the same right as persons without disabilities to the full use and enjoyment of any public facility in the state." TEX. HUM. RES. CODE § 121.003(a) (emphasis added). Specifically:
(c) No person with a disability may be denied admittance to any public facility in the state because of the person's disability. No person with a disability may be denied the use of a white cane, assistance animal, wheelchair, crutches, or other device of assistance.
(d) The discrimination prohibited by this section includes a refusal to allow a person with a disability to use or be admitted to any public facility , a ruse or subterfuge calculated to prevent or discourage a person with a disability from using or being admitted to a public facility , and a failure to:
(1) comply with Chapter 469, Government Code;
(2) make reasonable accommodations in policies, practices, and procedures; or
(3) provide auxiliary aids and services necessary to allow the full use and enjoyment of the public facility .
a street, highway, sidewalk, walkway, common carrier, airplane, motor vehicle, railroad train, motor bus, streetcar, boat, or any other public conveyance or mode of transportation; a hotel, motel, or other place of lodging; a public building maintained by any unit or subdivision of government; a retail business, commercial establishment, or office building to which the general public is invited; a college dormitory or other educational facility; a restaurant or other place where food is offered for sale to the public; and any other place of public accommodation, amusement, convenience, or resort to which the general public or any classification of persons from the general public is regularly, normally, or customarily invited.
The THRC expressly requires that persons with disabilities have the same use and enjoyment of "public facilities" as non-disabled persons-more specifically, a public facility cannot deny admittance to a person with a disability because of his or her disability, deny a person with a disability use of a device of assistance, such as an assistance animal, and must make reasonable
*59
accommodations in policies, practices, and procedures, providing support and services to allow the person with a disability full use and enjoyment of the facility.
In answering certified questions, we are limited to answering only the questions before us.
See, e.g.
,
Amberboy v. Societe de Banque Privee
,
In interpreting statutes, we must look to the plain language, construing the text in light of the statute as a whole.
See
III. "Public Facility" Under the Texas Human Resources Code
We begin by considering the first certified question: Is a plasma collection center a "public facility" under THRC
*60 section 121.002(5) ? The plaintiffs argue that a plasma collection center, such as those operated by CSL, qualifies as a "public facility" under the THRC. Specifically, the plaintiffs argue that a plasma collection center invites the general public to engage in the commercial transaction of giving plasma in exchange for payment. The fact that some individuals are determined to be ineligible to donate is of no consequence, according to the plaintiffs, because the plasma collection center is inviting the general public to donate, public facilities often have certain screening rules, and the THRC applies to facilities that invite "any classification of persons from the general public."
On the other hand, CSL argues that the Legislature did not intend to apply the THRC to a plasma collection center, such as CSL's, and that a plasma collection center differs from an establishment with an open invitation for the public to visit the premises and receive a product or service in exchange for payment. Although the ADA and THRC differ, CSL argues that the district court's and the Fifth Circuit's reasoning in determining that a plasma collection center is not a place of public accommodation should likewise lead to the conclusion that a plasma collection center is not a "public facility" under the THRC.
The Legislature's definition of "public facility" is broad.
See
TEX. HUM. RES. CODE § 121.002(5). The THRC provides an extensive definition of "public facility" with seven enumerated lists, each followed by a catch-all phrase.
4
See
Two of the THRC's categories are potentially applicable to a plasma collection center: "a retail business, commercial establishment, or office building to which the general public is invited"; and "any other place of public accommodation, amusement, convenience, or resort to which the general public or any classification of persons from the general public is regularly, normally, or customarily invited."
"Commercial" is not defined in the THRC, but it is generally defined as being
*61
related to or dealing with commerce.
See Commercial
, WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (2002);
Commerce
, WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (2002) ("[T]he exchange or buying and selling of commodities especially on a large scale and involving transportation from place to place."). And "establishment" is defined as "a public or private institution."
See Establishment
, WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (2002). Plasma collection centers are for-profit businesses that extract plasma, compensate donors, and package and ship plasma for it to be processed and sold. Under the plain language of the statute, a plasma collection center, of the type operated by CSL, is a commercial establishment, as plasma collection centers are profit-oriented, private institutions that deal in the commerce of extracting and selling plasma and plasma byproducts.
See
Rodriguez
,
Although we conclude that a plasma collection center is a "commercial establishment," the crux of the issue as to whether a plasma collection center is a "public facility" under the THRC is whether it is a facility to which the general public is ordinarily invited. There is no question that a plasma collection center invites the general public into its business to engage in the donation-screening process to determine donation eligibility. But CSL argues that because a plasma collection center allows only individuals who pass the screening process to donate and reserves the right to reject certain individuals, the general public is not invited to donate plasma. Therefore, we must determine whether, under the plain meaning of the THRC, a facility is public by virtue of its general invitation for anyone to enter and be screened, or whether such a facility is nevertheless excluded from the definition of "public facility" because its invitation to donate plasma is restricted and limited.
The plain language of the terms "invite," "invitation," and "invited" suggests that allowing any member of the general public to enter a facility and be present for, or participate in, a screening process is "inviting" the member of the public.
See Invite
, WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (2002) (meaning "to offer an incentive or inducement"; "to provide opportunity or occasion for"; "open the way"; "increase the likelihood of"; "open the door");
Invitation
, WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (2002) (meaning "the requesting of a person's company or participation"; "a written or verbal request to be present or participate"; "a written or verbal request to do or undertake");
Invited
, WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (2002) (meaning "present or done by invitation"). It follows that the plain language of the THRC's definition of "public facility"-specifically, a "commercial establishment ... to which the general public is invited"-means that a member of the general public is "invited" by a plasma collection center when it merely opens the door to them, allowing them to be present in the facility and providing them the opportunity to participate in the plasma donation process, beginning with screening.
See
TEX. HUM. RES. CODE § 121.002(5). And as such, a member of the public need not actually be able to engage in a business transaction-that is, plasma extraction and resulting compensation-to be "invited" to the commercial establishment.
See generally
Here, CSL, like other plasma collection centers, extends an invitation to all members of the public to enter its collection facilities and engage in the donor screening process. In fact, a plasma collection
*62
center, such as CSL's facilities, desires to admit and screen as many potential donors as possible to increase the number of donors, in turn increasing the supply of plasma that can be processed and ultimately sold for profit.
5
That a plasma collection center may not then invite all who accepted the initial invitation-made to the general public-to participate further in the plasma donation process, by allowing them to donate and receive compensation, is of no consequence. At that point, the plasma collection center, a commercial establishment, has already invited the general public into its facility for a commercial opportunity. Thus, the plasma collection center's selectivity in extending donation invitations has no bearing on whether CSL is a "public facility" under the THRC. Under the plain language of the statute, as long as the facility is a commercial establishment to which the general public is invited for some purpose, it is a "public facility" subject to the THRC.
6
See
In Beeman v. Livingston , in which deaf inmates at a state prison filed suit under the THRC, this Court held that the prison was not a "public facility" subject to the THRC. 468 S.W.3d at 543. The inmates claimed that the prison violated the THRC by denying deaf inmates an opportunity to participate in and benefit from certain programs available to inmates without disabilities. Id. at 536. They appealed to this Court, asserting that the court of appeals misconstrued the phrase "public building" within the THRC's definition of "public facility." Id. at 537. The inmates argued that under the plain meaning of "public building" in section 121.002(5), a building must be used for a public purpose, but need not be open and accessible to the general public. Id. We concluded that "construing the term 'public facility' to include prisons [did] not reflect [the] legislative intent as expressed in the term's definition and the statute as a whole." Id. at 539. When looking to the definition of "public facility" as a whole and the plain language, we concluded that the "Legislature used the term 'public' to indicate a status of openness and accessibility, and not a public use." Id. at 540. "[E]ven assuming inmates are part of the public," we noted that nothing in the statute indicates that the "Legislature intended for one small subset of the public that is involuntarily segregated from the public and has seriously constricted freedoms ( i.e. [prison] inmates) [to] qualif[y] as the 'public'-the community as a whole." Id. at 542. Additionally, we noted that section 121.002(5)'s use of "public building" and "a building to which the general public is invited" could not have the same meaning. Id. at 540. The phrase "a building to which the general public is invited" includes "privately owned buildings that are not public buildings because they are maintained for private purposes, but to which the premises owner has extended an invitation to the general public." Id. at 541. This differs from a public building maintained by the government, such as a prison. See id. at 541-42.
Beeman 's plain language definition of "public"-open and accessible to the general population-applies with equal force *63 to this certified question. As we observed in Beeman , prison inmates are not the general public-though they may be a small part of it-and prisons are not generally open to persons who are not inmates, with the exception of certain prison personnel and employees. See id. at 542. Unlike prisons, which confine inmates and separate them from the general public, a plasma collection center is a commercial establishment which offers anyone the opportunity to initiate the plasma donation process, beginning with eligibility screening. As part of its public invitation, a plasma collection center offers an incentive-compensation for those eligible donors whose plasma is extracted-to help increase the number of donors and the amount of plasma byproduct that can be sold for profit. A plasma collection center is not open only to certain members of the population-it is open to everybody, though the extraction process is limited to those who are eligible based on the screening process. 7 This is consistent with Beeman 's analysis that "a building to which the general public is invited" includes privately owned buildings to which the "owner has extended an invitation to the general public." Id. at 541.
CSL argues that the THRC's definition of "public facility" should be construed in the same manner as the corresponding ADA definition of place of "public accommodation" in determining whether a plasma collection center qualifies as a "public facility."
Compare
TEX. HUM. RES. CODE § 121.002(5),
with
We conclude that a business's selectivity as to whom it ultimately conducts business with does not take it out of the purview of the THRC's definition of "public facility." The Legislature broadly defined "public facility," and we cannot unduly restrict or expand the scope of the THRC.
See
Janvey
,
IV. Texas Human Resources Code Discrimination Standards
Because we hold that a plasma collection center qualifies as a "public facility" under the THRC, we next must answer the question of what standard the THRC provides in determining whether a public facility unlawfully discriminates against a person with a disability. In other words, can a plasma collection center of the type operated by CSL ever justify excluding a potential donor based on health concerns related to the individual's disability? 9 At the outset, we note that the answer to this question applies only to facilities that do not fall under the ADA's definition of "public accommodation" but meet the THRC's definition of "public facility." Practically speaking, this situation is uncommon; the ADA applies to most public facilities, and therefore the potential implications of the answer to this question are significant only insofar as they relate to the unusual public facility that is not subject to the ADA's standards.
In construing a statute, our primary goal is to ascertain the Legislature's intent.
See, e.g.
,
Janvey
,
Regulations relating to the use of public facilities by any designated class of persons from the general public may not prohibit the use of particular public facilities by persons with disabilities who, except for their disabilities or use of assistance animals or other devices for assistance in travel, would fall within the designated class.
Silguero contends that he was discriminated against on the basis of his disability when CSL did not allow him to donate plasma because he has bad knees, requiring use of a cane, and CSL believed that he might not be able to maneuver himself to and from the donation bed. He does not allege that CSL denied him use of his cane, nor does he allege that he was denied entrance into the facility. Wolfe claims that CSL discriminated against her on the basis of her anxiety, deferring her solely because her use of a service dog indicated that she was severely anxious. Wolfe does not allege that CSL rejected her because it could not accommodate her use of a service dog at the facility, nor does she allege that she was denied entrance into the facility because of her use of a service dog. And CSL points to its policy to defer potential donors who suffer from anxiety requiring the use of a service dog, citing safety concerns about a donor having an anxiety attack while undergoing the extraction process.
Whether CSL violated the THRC in discriminating against the plaintiffs turns on whether CSL can deny the plaintiffs use and enjoyment of a public facility by excluding them from donating plasma on the basis of their disabilities, citing safety concerns or difficulties in carrying out the plasma extraction process. Thus, the question is whether a plasma collection center violates the THRC when it concludes that a potential donor's disability makes him or her unfit, and therefore ineligible, to donate plasma. The Fifth Circuit asks specifically about the standard for determining whether a plasma collection center's rejection of a potential donor would violate the broad prohibition against discrimination in section 121.003(a) -in other words, can a public facility lawfully deprive a person with a disability of full use and enjoyment of the facility? See TEX. HUM. RES. CODE § 121.003(a) ("Persons with disabilities have the same right as persons without disabilities to the full use and enjoyment of any public facility in the state.").
Here, the parties agree that certain health concerns and disabilities can justify exclusion from the use and enjoyment of a public facility. The plaintiffs advocate for a standard under which an exclusion is justified if (1) the reason given is not pretextual, *66 and (2) serving the individual poses a direct threat, would result in an undue burden on the facility, or the facility would be required to fundamentally alter its services to serve the person with a disability. CSL advocates for a more liberal standard-that if the public facility articulates a legitimate business purpose for exclusion from use and enjoyment based on a disability, it does not violate the THRC. Thus, the parties agree that the THRC is not a strict liability statute and that a public facility may lawfully deprive persons with disabilities from use or enjoyment of a public facility under certain circumstances; however, the parties disagree as to the circumstances.
In interpreting the applicability of the THRC's anti-discrimination standards, we must be mindful of the statute's context and its meaning as a whole.
See
Fitzgerald v. Advanced Spine Fixation Sys., Inc.
,
The plain language of the THRC indicates an intent to prohibit pretextual discrimination-since its enactment in 1969, section 102.003(d) has provided that the discrimination prohibited by the THRC includes "a ruse or subterfuge calculated to prevent or discourage a person with a disability from using or being admitted to a public facility."
In addition to generally prohibiting discrimination that deprives persons with disabilities of the full use and enjoyment of public facilities, section 121.003(d) further defines the types of conduct that violate the THRC, including "a failure to ... make reasonable accommodations in policies, practices, and procedures" and a failure to "provide auxiliary aids and services necessary to allow the full use and enjoyment of the public facility," among others. TEX. HUM. RES. CODE § 121.003(d)(2), (3). By using the term "reasonable accommodations," the Legislature accepted that accommodations may be either reasonable or unreasonable, and by using the term "aids and services necessary," the Legislature accepted that the use of auxiliary aids or services may be either necessary or unnecessary.
See
Unlike the ADA, the THRC is not explicit in laying out such circumstances. But
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just as the THRC indicates a clear legislative intent to allow discrimination under some circumstances, it also indicates legislative intent that the circumstances under which discriminatory conduct can be lawful be similar to the ADA.
11
We have utilized comparable federal law as guidance in situations where our state statute and the federal law contain analogous statutory language.
See, e.g.
,
Chatha
,
Cognizant of the fact that the Legislature enacted some of the discrimination standards in section 121.003
after
Congress enacted the ADA, and that the purpose of the THRC aligns with the ADA's purpose, we find the ADA and the case law interpreting it helpful in analyzing the circumstances under which a public facility may lawfully discriminate by depriving a person with a disability of full use and enjoyment of the facility.
See
Grady v. City of Fort Worth
, No. 4:00-CV-1871-A,
We observe that the THRC's structure is similar to the ADA's as to prohibited discrimination.
Compare
The ADA provides that discrimination includes:
(i) the imposition or application of eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations, unless such criteria can be shown to be necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered ;
(ii) a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations ;
(iii) a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden ....
Section 12182(b)(2)(A)(i) of the ADA, in particular, is relevant in illustrating how we may draw on the ADA in interpreting the THRC. That ADA provision prohibits certain conduct that constitutes discrimination
*70
within the meaning of the ADA-the imposition or use of eligibility criteria that screens out persons with disabilities and deprives them of full use and enjoyment-but it explains that "discrimination includes [such conduct] unless" the use of such criteria is necessary to providing the services being offered.
See
42 U.S.C § 12182(b)(2)(A)(i). Thus, under this provision, a defendant's conduct may be lawful if it either does not meet the definition of "discrimination" or if it satisfies the exception.
See
Emery v. Caravan of Dreams, Inc.
,
The plaintiffs look to the THRC's reference to "reasonable accommodations" in THRC section 121.003(d)(2) as the basis for their proposed lawful discrimination standard, arguing that although the term is not defined in the THRC, it must be interpreted to have a meaning similar to that in the ADA's modification provision, particularly because the Legislature added this language after the enactment of the ADA.
See generally
Similarly, a defendant will not be liable under the ADA for refusal to provide auxiliary aids and services that are not necessary to ensure that persons with disabilities are not treated differently from others.
See
Moreover, the ADA specifically provides that nothing in the ADA "shall require an entity to permit an individual to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations of such entity where such individual poses a direct threat to the health or safety of others."
The question certified to this Court asks specifically about deprivation of full use *72 and enjoyment of a public facility under section 121.003(a). Section 121.003(d) references section 121.003(a) in referring to "discrimination prohibited by this section." See TEX. HUM. RES. CODE § 121.003(a), (d). So a claim under section 121.003(a) that a person with a disability has been unlawfully deprived of full use and enjoyment of a public facility also constitutes a claim under section 121.003(d) that the individual was refused use of a public facility-as both section 121.003(a) and (d) prohibit depriving a person with a disability from use of a public facility. Therefore, to the extent that section 121.003(d) contemplates lawful discrimination and excuses the exclusion of persons with disabilities from use of public facilities, these exceptions allowing for lawful discrimination extend to claims under section 121.003(a). And to the extent that the plaintiffs here allege claims under section 121.003(a) relating to CSL's rejection of them as plasma donors, their complaints should be construed to also allege claims under the parallel part of section 121.003(d). 12
Generally, a plaintiff alleging a THRC discrimination claim has the burden to establish that the defendant discriminated against the plaintiff due to the plaintiff's disability, and the plaintiff must satisfy that burden by a preponderance of the evidence.
See
Tex. State Hotel, Inc. v. Heagy
,
We hold that a defendant's exclusion of a person with a disability from full use and enjoyment of a public facility, including services provided at the public facility, does not run afoul of the THRC's broad discrimination prohibition in section 121.003(a) when: (1) the defendant's conduct does not meet the definition of "discrimination" contemplated by the THRC or satisfies an exception, such as the exclusion that allows a defendant to use eligibility or screening criteria that exclude persons with disabilities from full use and enjoyment when such criteria are shown to
*73
be necessary for the provision of services; or (2) the defendant establishes that allowing the person full use and enjoyment of the public facility would pose a direct threat to the health or safety of others.
See
V. Conclusion
The Legislature broadly defined "public facility." A commercial establishment that invites the general public into its doors for the opportunity to do business falls within the THRC's definition of "public facility." Therefore, we answer the first certified question in the affirmative-that a plasma collection center, such as those operated by CSL, is a "public facility" under the THRC. The ADA's analogous provisions are informative as to the standards by which a facility may lawfully discriminate on the basis of a disability. Based on the plain language of the THRC and the relevant provisions of the ADA, we conclude that the Legislature intended the THRC to encompass exceptions to the requirement that persons with disabilities be afforded full use and enjoyment of a public facility to the same extent as the general public. We answer the second certified question that a defendant's exclusion of a person with a disability from full use and enjoyment of a public facility does not run afoul of the THRC's broad discrimination prohibition when: (1) the defendant's conduct does not meet the THRC's definition of "discrimination" or satisfies an exception to the definition of "discrimination," such as the exception for use of eligibility criteria that screen out certain persons with disabilities, but are necessary for the public facility's provision of services; or (2) the defendant establishes that allowing the person with a disability full use and enjoyment of the public facility would pose a direct threat to the health or safety of others.
See
Both the district court and the Fifth Circuit Court of Appeals are cautious about using the words "donate" or "donor" in this context because the individuals (or donors) receive compensation for supplying their plasma and are therefore not making a donation in the ordinary sense of the term.
See
Amicus curiae Plasma Protein Therapeutics Association, whose members operate more than 750 plasma collection centers, makes a point to say that plasma collection centers do not pay donors for their plasma; rather, the "compensation is for their time and inconvenience, not a quid pro quo for their plasma."
To answer only the questions certified to us, we must not consider the facts relating to the plaintiffs or to CSL, and we instead must decide, as a general matter, whether a plasma collection center qualifies as a public facility, recognizing that the structure of plasma collection centers and their policies can vary.
The enumerated lists in the THRC, however, are not nearly as specific and comprehensive as the list in the ADA, which specifies types of businesses.
Compare
In explaining that CSL would not defer a blind individual merely because of his or her disability, counsel for CSL admitted that CSL needs as many members of the public as possible to donate plasma.
We note that there is no indication in our record as to the physical structure of CSL's plasma collection centers, whether Silguero and Wolfe attempted to donate at the same facility or different facilities, or the extent to which CSL's plasma collection centers may differ in structure from one to the next. We limit our answer to the question before us, which asks generally about plasma collection centers of the type described in the certified question.
To be clear, the fact that a facility meets the definition of a "public facility" under the THRC does not mean that the public must be invited to all areas of the facility, nor does it mean that the facility must allow persons with disabilities full use and enjoyment of all parts of the facility. Indeed, most public facilities will necessarily have areas the public is not permitted to use or enjoy; in those areas, excluding persons with disabilities from use and enjoyment does not constitute discrimination under the THRC because all members of the general public are equally excluded.
See
Tex. Hum. Res. Code § 121.003(a) (reciting the general discrimination prohibition under which "[p]ersons with disabilities have the same right as persons without disabilities to the full use and enjoyment of any public facility in the state");
see also
Sapp v. MHI P'ship, Ltd.
,
We note that even if we were to look to the ADA's definition of "public accommodation" and the federal case law interpreting it, there is a federal circuit court split as to whether a plasma collection center falls within the ADA's definition of "public accommodation."
Compare
We do not answer whether CSL unlawfully discriminated against Silguero and Wolfe in denying them full use and enjoyment of CSL's public facility. Nor do we address any structural, physical, or architectural standards CSL, or plasma collection centers generally, must satisfy to accommodate persons with disabilities. And we do not address any physical exclusion from CSL's facility, as the plaintiffs allege no such exclusion, but contend only that they were deprived full use and enjoyment of the facility by CSL's rejecting them from the plasma donation process. These questions are beyond the scope of the questions certified to this Court.
In fact, the Legislature's use of this "ruse or subterfuge" language since it enacted the predecessor to section 121.003, decades before Congress enacted the ADA, shows that the Legislature has long intended that defendants not be liable for certain discriminatory conduct, provided that their reason is not pretextual.
See
Act of May 20, 1969, 61st Leg., R.S., ch. 416, § 3,
In fact, the House Human Services Committee Report addressing the bill that was ultimately enacted to amend certain THRC provisions after Congress enacted the ADA stated that the legislation's purpose was to enact "revisionary language [that] conforms with the terminology in the [ADA]." House Comm. on Human Servs., Bill Analysis, Tex. H.B. 2525, 75th Leg., R.S. (1997). A Bill Analysis, prepared by the Senate Research Center, similarly explained that the " 'clean up' revisions proposed by the committee would conform Section 121, Human Resources Code, to the terminology in the [ADA]." Senate Research Ctr., Bill Analysis, Tex. H.B. 2525, 75th Leg., R.S. (1997).
We express no opinion as to whether Silguero's and Wolfe's complaints also allege claims as to pretextual reasons for rejecting them and thus depriving them of the opportunity to donate plasma and receive compensation, or claims as to the failure to make reasonable accommodations as to a policy, practice, or procedure. The record before us does not contain their complaints, and we are therefore limited by the information the Fifth Circuit has provided to us. We trust that the Fifth Circuit will analyze each plaintiff's complaint to determine exactly what discrimination allegations each makes under section 121.003(d).
See
Emery
,
Reference
- Full Case Name
- Mark SILGUERO and Amy Wolfe, Appellants, v. CSL PLASMA, INCORPORATED, Appellee
- Cited By
- 99 cases
- Status
- Published