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Who discriminates

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Here is a pivotal sentence from a just-released Oregon Supreme Court decision concerning a case of alleged prisoner mistreatment:

“Buildings do not discriminate; people do.”

That simple point twists from there in unexpected directions, reflecting partly that it comes from a dissent in the decision, and which in turn came not from an Oregon court case at all. The Oregon Supreme Court was not reaching a binding decision but simply offering an opinion about Oregon law to an uncertain Ninth Circuit Court of Appeals.

But the implications of the court’s advisory, and even its dissent, could run wide – well beyond cases related to jail conditions – the trigger for the discussion – and bear some second and third thoughts by Oregonians and their state legislature.

The underlying case is Andrew Abraham v. Corizon Health, and it grew out of Abraham’s stay in the Clackamas County Jail, where in October 2015 he was incarcerated after an arrest (the decisions don’t mention the reason). Abraham is deaf and communicated through American Sign Language, which no one at the jail apparently understood. He appears specifically to have been misunderstood, because he was placed in isolation in suicide watch. This was a special problem in his case, not only because of his deafness but because he also is diabetic, and was unable to communicate his immediate medical needs.

Abraham filed a case in federal court on grounds of discrimination in “a place of public accommodation” because he is “an individual with a disability” – but he didn’t sue the jail (or county). He sued Corizon Health, which provides healthcare for the jail.

Here is where the case turns: Is either the jail, or its private health provider, a “place of public accommodation” as Oregon law understands the term?

The Ninth District Circuit Court of Appeals apparently was confused about that. So they asked the Oregon Supreme Court what it thought. And the Oregon high court, which did deliver an answer, turned out to be sharply divided on the question.

The court was united on one part of this: The jail is not a public accommodation. Oregon law explicitly says a public accommodation is “[a]ny place or service offering to the public accommodations, advantages, facilities or privileges whether in the nature of goods, services, lodgings, amusements, transportation or otherwise.” Originally, the law was set up mainly to ban racial discrimination by places such as motels and restaurants. At the same time, correctional facilities like jails were specifically excluded. But the definition of accommodations changed over time.

So the Ninth Circuit’s question was, “Is a private contractor providing healthcare services at a county jail a ‘place of public accommodation’” under Oregon law?

The Oregon Supreme Court majority (in a decision written by Chief Justice Martha Walters) said it was: “If defendant qualifies as a place of public accommodation because of the services that it provides, it does not matter whether it provides those services at a physical location that independently qualifies as a place of public accommodation.”

And went on: “When we focus, as we must, on the legislature’s definition of a ‘local correction facility’ as ‘a jail or prison,’ we cannot conclude that defendant—a private entity that contracts with a jail, but that is not a jail—is exempt from the provisions of the Act.”

The dissent, written by Justice Christopher Garrett, noted, “Under that analysis, if the Clackamas County Jail provides medical care, food, and other basic services directly, the exception for correctional facilities applies, but if the jail contracts with any other entity to provide those services, the exception does not apply to that entity.” (That matches with the bottom line of one federal judge who threw out Abraham’s case in lower court.)

Let’s consider this for a moment. Your rights may vary depending on whether a public entity does something through its own employees or whether it is contracted out to someone privately – and the private contractor is actually held to a significantly higher standard.

There’s also another significant question here. Which contractors for governments in Oregon might be held to the “public accommodation” non-discrimination standards under the terms set out by the Oregon court? Some, surely (such as medical and other jail contractors). But how many others? And how might the legal definition of the term change?

The question of what is and isn’t considered a “public accommodation” has been a quiet issue ever since the nationally famous wedding cake case involving a Gresham bakery. There’s a good chance that aftereffects of the new Oregon Supreme Court opinion may give it another kick into public awareness.

This article originally appeared in the Oregon Capitol Chronicle.
 

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