Labor and Employment

A federal judge in Sacramento has continued an order that temporarily bars the State of California from enforcing a new state law that would curtail employment arbitration agreements.  The new law, AB 51, which added section 432.6 to the California Labor Code, would have banned employers from requiring employees to agree to arbitrate claims alleging violations of certain state workplace laws; specifically, the Fair Employment and Housing Act and the Labor Code.

At a hearing on January 31, 2020, U.S. District Judge Kimberly Mueller converted her prior temporary restraining order into a preliminary injunction barring the state from enforcing the new law.  In the minute order memorializing that ruling, Judge Mueller stated that she would “explain [her] reasoning in a detailed, written order” that will be dispatched “[i]n the coming days.”  The case is Chamber of Commerce of the USA et al. v. Becerra et al., U.S. Dist. Ct. E.D. Cal. Case No. 2:19-cv-02456-KJM-DB.

In federal court, there are basically three types of injunctions that compel parties to do or stop doing a particular act; namely, 1) temporary restraining orders, 2) preliminary injunctions, and 3) permanent injunctions.  Courts generally issue temporary restraining orders and preliminary injunctions to preserve the status quo while deciding whether to issue a permanent injunction.  A court can issue a temporary restraining order without notice to the other party, while a preliminary injunction requires both notice to the other party and usually a hearing where each side presents their arguments.

Although not a guarantee that a permanent injunction will ensue, the issuance of a preliminary injunction is frequently a good sign that the court is strongly leaning in that direction.  Indeed, to obtain a preliminary injunction, the party asking for it must persuade the court that there is a likelihood of ultimately prevailing on the merits.

One aspect of the new law that has employers especially concerned is that it could impose imprisonment and fines on employers who try to condition employment on workers signing arbitration agreements.  According to employers, resolving workplace disputes through arbitration is better for everyone concerned because it is faster and more economical than litigating in court or in an administrative agency.  Employers say it is wrong to impose criminal penalties on them for trying to bolster such common-sense procedures, and that doing so runs afoul of the Federal Arbitration Act.

On the other hand, proponents of the new law contend that it is needed to prevent employers from depriving mistreated workers of having their day in court (or in administrative agencies created to remedy workplace violations).  They insist that, without the new law, employers can continue to coerce workers to sign away their legal rights, and that employees who sign away such rights are then “trapped in the employer’s handpicked arbitration system.”

Judge Mueller’s preliminary injunction is likely appealable, but there is no indication yet as to whether the State of California will pursue such an appeal or wait until the conclusion of the litigation.

Effective January 1, 2020, California’s minimum wage rate increased to $13.00 per hour (from $12.00) for employers with 26 or more employees and $12.00 per hour (from $11.00) for employers with 25 or fewer employees. The minimum wage will continue to increase yearly until it reaches $15.00 per hour on January 1, 2022 for employers with 26 or more employees and January 1, 2023 for employers with 25 or fewer employees.

In California, many cities and counties are increasing their minimum wages faster than the state. Click here for a chart of increases set to take place in 2020.

Mandatory arbitration agreements in California employment have been granted a stay of execution. For now. Earlier today, a federal judge in California issued a temporary restraining order enjoining enforcement of AB 51, the new California law that would have banned employers in the state from requiring employees to sign mandatory arbitration agreements as a condition of employment.  AB 51 was set to take effect on January 1, 2020.

Earlier this month, a group of pro-commerce organizations and trade associations, including the United States Chamber of Commerce and the California Retailers Association, jointly filed a lawsuit seeking to block AB 51 from taking effect. The organizations argued that AB 51 was preempted by federal law that precludes states from limiting or interfering with the use of arbitration agreements to resolve disputes.

Judge Kimberly Mueller of the Eastern District of California accepted that argument, at least for now. The temporary restraining order prevents enforcement of AB 51 until at least January 10, 2020. The Court has set a hearing that day to decide whether to grant a preliminary injunction that would block enforcement of AB 51 until the lawsuit is resolved.

So what does this ruling mean for California employers? For now, not much other than hope. AB 51 will still take effect on January 10 unless Judge Mueller grants the longer injunction. Granting the temporary restraining order, however, does suggest that she believes the preemption argument may have merit. That said, employers would be best suited taking a wait-and-see approach between now and the next ruling from the court. In the meantime, employers may consider permissive, rather than mandatory, arbitration agreements that make clear entering into it is not a condition of employment. Also, because AB 51 does not apply retroactively, employers will still be able to enforce mandatory arbitration agreements that were entered into before January 1, 2020.

In 2018, this author blogged about how religious entities can navigate the potential traps when they seek to comply with the federal laws against anti-harassment, discrimination and retaliation laws by adopting handbook policies and training their employees, while protecting their status as exempt from the California analog to Title VII, the Fair Employment and Housing Act (FEHA).  While that case was up on appeal, the parties settled, leaving the state of the law unsettled.

Happily for religious entities, the Court of Appeal for the Sixth Appellate District of California, in another case pending at the same time has paved a clearer path forward for religious employers.

Mathews v Happy Valley Conference Center

Background

Plaintiff Jeremiah Mathews was an employee of a religious employer, Happy Valley Conference Center (“Happy Valley”), a subordinate affiliate (but separate legal entity) of the Community of Christ Church (“Church”) in the Santa Cruz mountains.  (The sordid details and other legal issues are laid out in the appellate court’s opinion. This post focuses only on the religious entity exemption issue.)

In short, Mathews blew the whistle, reporting sexual harassment by his supervisor of a coworker.  A month later, Mathews was terminated – according to the employer, the termination was for unrelated conduct.  He initially filed an EEOC charge alleging retaliation for reporting harassment, and then sued for retaliatory termination under various theories, including under Title VII (which does not contain a general exemption for religious entities) and FEHA (which does).  Out of the gate, Mathews sought affirmative declaratory relief as to the scope of FEHA’s religious entity exemption and the interpretation of Happy Valley’s handbook anti-harassment and retaliation provisions.  Among other defenses, Happy Valley asserted that it was exempt from FEHA as a religious entity.  The Church also asserted the FEHA religious exemption.

Happy Valley used software purchased from a popular provider of human resources forms and handbooks.  The employee handbook was a “canned” handbook created using standardized templates; there was no option in the software Happy Valley used for religious entity-specific provisions related to discrimination, harassment, or retaliation.  As adopted and provided to plaintiff during his employment, the employee handbook stated Happy Valley’s company policy “prohibits unlawful discrimination based on race, color, creed, gender, religion, marital status, registered domestic partner status, age, national origin or ancestry, physical or mental disability, medical condition including genetic characteristics, sexual orientation, or any other consideration made unlawful by federal, state, or local laws.”  The handbook continued that Happy Valley is “committed to compliance with all applicable laws providing equal employment opportunities” (emphasis added) and advised employees that they could contact the federal Equal Employment Opportunity Commission or the California Department of Fair Housing and Employment (which enforces the FEHA) if they feel they have been harassed or retaliated against.

Mathews claimed that defendants had waived and/or should be estopped from asserting its exemption, because it had a handbook policy prohibiting retaliation and harassment under “all applicable laws”.   The trial court determined that defendants had waived the right to assert the religious entity exemption from the FEHA, based on the employee handbook, and because the defendants did not raise the religious entity exemption in their initial response to the EEOC charge. The court made similar findings to support estoppel and found that Mathews’ detrimental reliance was expending money pursuing his claims in reliance on the employee manual and the fact that the Church did not assert the exemption during the administrative claim investigation. The jury then found that the defendants’ firing of Mathews was in retaliation for reporting sexual harassment, and returned a $900,000 verdict and the employer was ordered to pay almost $1,000,000 in attorney’s fees.

Appeal

1.         Defendants’ Handbook did Not Waive the Exemption from the FEHA.

On appeal, the court considered the waiver claim de novo, and found that there was no waiver of the religious entity exemption.

The EEOC notified defendants it was investigating a potential Title VII violation, not a FEHA violation. So, assertion of a FEHA exemption was immaterial to the EEOC proceedings and failure to raise it in that context did not waive the exemption.

As to the handbook, the court of appeal notes that the handbook never explicitly references the FEHA – it simply states that Happy Valley prohibits harassment, discrimination, and retaliation; that Happy Valley is “committed to compliance with all applicable laws providing equal employment opportunities”; and that employees “should be aware that the Federal Equal Employment Opportunity Commission and the California Department of Fair Employment and Housing investigate and prosecute complaints of prohibited harassment in employment.” The handbook makes no promise that defendants will be bound by FEHA; the handbook refers to being bound by “applicable” laws. Nothing in the handbook amounts to a “knowing and voluntary” waiver of the religious entity exemption.

    2.         Defendants’ Conduct did not Support Estoppel

On appeal, the court considered the estoppel claim de novo, and found that the defendants were not estopped by their conduct from asserting the religious entity exemption.

The Court considered both the definition of “estoppel” in California Evidence Code section 623, and the doctrine of equitable estoppel founded on the concepts of fair dealing. “Whenever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it.” (Evid. Code, § 623.)  The Court found it important that equitable estoppel is “defensive in nature only,” and “operates to prevent one [party] from taking an unfair advantage of another.”

The Court found that there was no evidence that a crucial element of estoppel – conduct by the party that causes detrimental reliance by the other. “  The employee handbook was ambiguous and makes no affirmative representation that FEHA will apply.  The failure to raise the FEHA exemption before the EEOC, which only enforces Title VII, was reasonable, because it was not relevant.  And finally, defendants’ denial in the case put Mathews on notice that they believed the religious entity exemption applied. There was no indication that Mathews would have abandoned the FEHA cause of action had he known earlier that defendants would assert the religious entity exemption.

   3.         Religious Employers are Exempt from the Retaliation Provision of FEHA

The appellate court considered and rejected Mathews’ argument that even if the FEHA’s religious exemption applies to defendants as “employers,” the retaliation provision – which prohibits retaliation by any “employer, … or person” – still applies.  The court rejected this tortured reading, stating that “because we have already determined that defendants … were plaintiff’s employer, they fall under the ‘employer’ category for purposes of” the anti-retaliation provision.  As employers that are religious entities, they are exempt from FEHA liability.

Although, at the end of the day, these findings did not ultimately absolve Happy Valley of all liability for conduct that fell outside of the purview of the FEHA, it did reaffirm this author’s views that a religious entity’s good faith efforts to prevent harassment, retaliation and discrimination through policies, training and notices of employee rights, should not create liability.  In addition, while it appears the Church’s use of out-of-the-box canned templates ultimately did not create liability, the Church had to spend five years and thousands of dollars defending that position before it prevailed on appeal.

Employers – particularly those who believe themselves exempt (as a small business, religious employer, or otherwise) from, would be wise to consult with competent California legal counsel and have their handbooks, offer letter templates, applications and related materials reviewed annually to minimize these risks.  Templates are no substitute for customized counsel.

It is important to note that there is a possibility that this Sixth Appellate District opinion could be reviewed by the California Supreme Court.  If that occurs, watch for an update to this post.

In a decision that may lead employers to feel a little less gratified on Thanksgiving Day, a California appellate court determined last week that “even a legitimate company policy, if mistakenly applied,” can lead to liability for disability discrimination in the Golden State.  Specifically, the Court of Appeal ruled that “a lack of [discriminatory] animus does not preclude liability for a disability discrimination claim.”  A copy of that decision in is available at this link.

The plaintiff in Glynn v. Superior Court was a pharmaceutical sales representative who requested and obtained a leave of absence from his employer due to an eye condition that left him unable to drive.  So far so good.  But things started to take a turn for the worse when the employer declined to reassign the plaintiff to a new job in the company that did not require driving (even though the plaintiff applied for several such positions).

Things got even worse yet when a temporary corporate benefits staffer mistakenly concluded that the plaintiff had transitioned from short-term disability to long-term disability.  This mistake led the staffer to conclude, innocently but incorrectly, that the plaintiff was unable to work with or without a reasonable accommodation.  Based on that seemingly good-faith mistake, the staffer fired the plaintiff (even though the employer’s policies did not allow such a termination unless the employee actually applied for and was receiving long-term disability benefits).  The plaintiff tried to correct the misunderstandings over the course of a few months, but the employer ignored his entreaties.

Things went from worse to worst when the plaintiff filed a lawsuit alleging, among other things, disability discrimination in violation of the California Fair Employment and Housing Act, Cal. Govt. Code §§ 12940 et seq. (“FEHA”).  After realizing that a mistake was at the root of terminating the plaintiff’s employment, the employer tried to make things better by offering to reinstate him.  However, the plaintiff rejected that offer because the employer did not identify any specific position being offered or the rate of compensation.

With seemingly nothing left to do but defend itself in litigation, the employer persuaded the Los Angeles County Superior Court to dismiss the plaintiff’s disability-discrimination claim.  However, the plaintiff filed an emergency appeal and convinced California’s Second Appellate District to reverse that dismissal.  The Court of Appeal reasoned that the FEHA “‘does not require an employee with an actual or perceived disability to prove that the employer’s adverse employment action was motivated by animosity or ill will against the employee. Instead, California’s statutory scheme protects employees from an employer’s erroneous or mistaken beliefs about the employee’s physical condition.’”

Ultimately, the appellate court opined that “‘the financial consequences of an employer’s mistaken belief that an employee is unable to safely perform a job’s essential functions should be borne by the employer, not the employee, even if the employer’s mistake was reasonable and made in good faith.’”  This is not to say that liability in such circumstances is a forgone conclusion; it remains to be seen whether a jury might forgive such missteps if they do not appear to be borne of any discriminatory animus.  Still, there are important lessons to be learned from this decision.

The take away is that disability accommodation is an area of the workplace that presents many traps for the unwary.  At the same time, any decision to terminate an employee, particularly one who is arguably entitled to some type of disability accommodation, can lead to costly litigation.  Similarly, an offer to reinstate a terminated employee may provide an employer with a valuable defense that might reduce exposure, but that offer must be handled correctly to be effective.  Therefore, it is advisable to review such decisions with an experienced employment attorney before executing them.

I have discussed in the past how the use of “no-rehire” provisions in settlement agreements between employers and their former employees were coming under attack in court.  In 2015, the Ninth Circuit in Golden v. California Emergency Physicians Medical Group held that a “no-rehire” provision in a settlement agreement between the plaintiff doctor and his former employer could be found to violate section 16600 of the Business and Professions Code, which codifies California’s long standing public policy favoring employee mobility.  Section 16600 prohibits, with certain limited exception, any contract or agreement that places a restraint on a person’s trade or profession.

Employers find the use of “no-rehire” provisions useful in settlement agreements as a means of protecting themselves against “boomerang” lawsuits.  That is, these provisions provide some protection to employers who settle claims with a former employee who claims that he or she was terminated because of discrimination from having to face a subsequent discrimination lawsuit if a former employee submits a new job application and is not hired.

California’s Legislature took up this issue and passed Assembly Bill No. 749, which was signed by Governor Gavin Newsom on October 12, 2019.  AB 749 creates a new statutory provision, section 1002.5 of the California Code of Civil Procedure, which will apply to any settlement agreement entered into on or after January 1, 2020.  This new law prohibits an employer from entering into a settlement agreement with an employee to resolve an employment dispute from inserting a provision “prohibiting, preventing or otherwise restricting a settling party that is an aggrieved person from obtaining future employment with the employer against which the aggrieved person has filed a claim” or any affiliate of that employer.  Any provision that violates this section will be void.

The new law will define “aggrieved person” to mean any person who has filed a claim against the employer either in court, before an administrative agency, in an alternative dispute resolution forum such as arbitration, or through the use of the employer’s internal complaint process.  The law does allow the employer and the settling employee to agree to “end a current employment relationship” as well as allows an employer to use a “no-rehire” provision provided that “the employer has made a good faith determination that the [former employee] engaged in sexual harassment or sexual assault.”  Finally, the new law does nothing to affect an employer’s ability to decline to rehire a person “if there is a legitimate non-discriminatory or non-retaliatory reason for terminating the employment relationship or refusing to rehire the person.”

When this new law goes into effect, employers are encouraged to seek legal advice in resolving any disputes with an employee that may involve the termination of that employee’s employment as well as the handling of future applications for rehire from terminated employees who have entered into settlement agreements after January 1, 2020.  This may include reviewing an employer’s form severance agreement to ensure compliance.  While the new law does not apply by its terms to agreements containing such provisions entered into prior to January 1, 2020, employers must tread carefully.  For further details about AB 749 and its history, please see the article, “New California Law Ban `No-Rehire’ Clauses after Worker Lawsuits,” by Wes Venteicher in The Sacramento Bee.

The October 13, 2019 deadline for Governor Newsom to take his final actions in the 2019 legislative season has come and gone and as expected, he signed into law a number of employment-related bills. Below is a summary of just a few of those bills that will have a significant impact on employment litigation in California.

A.                Assembly Bill 51.

AB 51 was introduced by Assemblymember Lorena Gonzales and will severely restrict the use of mandatory arbitration agreements in employment. The Bill adds section 12953 to the California Government Code (“FEHA”) and states that it is an unlawful employment practice for an employer to violate section 432.6 of the California Labor Code. In part, the newly enacted section 432.6 provides that:

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On September 12, 2019, the California Supreme Court issued its decision in ZB, N.A., and Zions Bancorporation v. Superior Court [Lawson, real party in interest] (“Lawson”).  In analyzing whether the Plaintiff’s lawsuit could be compelled to binding arbitration under the arbitration agreement she entered into with her employer, the Supreme Court clarified that under Labor Code section 558, employees are not entitled to recover underpaid wages in a Private Attorneys General Act (“PAGA”) claim.

Before the enactment of the PAGA, section 558 gave the Labor Commissioner authority to issue overtime violation citations for a civil penalty as follows:

(1)        For any initial violation, fifty dollars ($50) for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages.

(2)        For each subsequent violation, one hundred dollars ($100) for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages.

(Labor Code §558, italics added.)

The Lawson case concerned a PAGA action seeking civil penalties under Labor Code section 558.  Lawson brought the representative action against her employer, ZB, N.A. — with whom she agreed to arbitrate all employment claims and forego class arbitration — and its parent company, Zions Bancorporation (collectively, “ZB”).  ZB filed a motion compelling that Lawson individually arbitrate her “unpaid wages” claim under section 558 because it was not a PAGA civil penalty claim.

The trial court generally agreed, bifurcating Lawson’s action and granting ZB’s motion to compel arbitration of the “unpaid wages” issue.  However, it ordered the issue to arbitration “as a representative action” for the unpaid wages of all aggrieved ZB employees.  ZB responded by filing both an appeal and petition for writ of mandate with the Court of Appeal.  After consolidating the two, the appellate court dismissed the appeal, holding that Code of Civil Procedure section 1294 only gave it appellate jurisdiction over an order dismissing, not granting, a motion to compel arbitration.  However, ZB persuaded the Court of Appeal to issue the writ of mandate, but the court did so on a different ground from the one ZB asserted.  The appellate court concluded that Lawson’s request for “unpaid wages” under section 558 in fact could not be arbitrated at all.  Relying on Thurman v. Bayshore Transit Management (Thurman), the Court of Appeal interpreted section 558 to expressly include “underpaid wages” within the scope of its “civil penalty” provision.  In the appellate court’s view, an employee could pursue the entire, indivisible civil penalty through the PAGA action, and that pursuant to Iskanian v. CLS Transportation Los Angeles, LLC, her employer could not compel the PAGA claim to arbitration.

The Supreme Court granted review of the Lawson case to decide whether the Iskanian case controlled the facts and whether or not the Federal Arbitration Act (FAA) (9 U.S.C. § 1 et. seq.) had preemptive force where an aggrieved employee seeks to recover an amount sufficient to recover underpaid wages in a PAGA action.  In its prior Iskanian case, the Supreme Court held that a court may not enforce an employee’s alleged pre-dispute waiver of the right to bring a PAGA claim in any forum.  The Court found that where such a waiver appears in an employee’s arbitration agreement, the FAA does not preempt state law.

However, the Supreme Court determined that to resolve the Lawson case it was required to ask an even more fundamental question: Can a plaintiff seek “an amount sufficient to recover underpaid wages” [as stated in Section 558] in a PAGA action at all?  The Court of Appeal thought so and concluded that section 558’s civil penalty encompassed the amount for unpaid wages [into the “civil penalty”], and therefore Lawson’s claim for unpaid wages could not be compelled to arbitration under Iskanian.

The Supreme Court concluded differently.  It held that the civil penalties a plaintiff may seek under section 558 through a PAGA action do not include the “amount sufficient to recover underpaid wages.” The Court reasoned that, although section 558 authorizes the Labor Commissioner to recover such an amount, “… this amount –– understood in context –– is not a civil penalty that a private citizen has authority to collect through the PAGA.”

The Court found that its conclusion — that unpaid wages under section 558 must be distinguished from the civil penalty aggrieved employees may recover under the PAGA — is not inconsistent with the Labor Code’s broader remedial purpose or “the protection of employees.”   It also rejected Lawson’s contention that unpaid wages recovered under section 558 meet the definition of “civil penalty” because prior to the PAGA, only the state could bring an action under section 558 because there is no private right of action under that section.  (Iskanian, supra, 59 Cal.4th at p. 381.)  However, as the Court explained, while section 558 gave the state exclusive power to collect unpaid wages through its citation procedure, section 558 achieves the same result with respect to unpaid wages as a private right of action for unpaid wages under Labor Code section 1194 does.  Therefore, only the fixed amount stated in section 558 qualifies as a “civil penalty” for purposes of a PAGA claim.

As for the question of arbitration in this case, the motion to compel the “unpaid wages” part of the section 558 claim to arbitration really became a moot point.  There is no private right of action to recover such “unpaid wages” under section 558.  As such, the Court affirmed the order denying ZB’s motion to compel arbitration and remanded the case to the trial court who can decide whether or not to grant her leave to amend her complaint to pursue the “unpaid wages” claim under section 1194 instead of section 558.

Beth West and the other employment attorneys at Weintraub Tobin are available to assist you in your wage and hour compliance and are happy to discuss the Lawson case further.  Feel free to contact any one of them.

Last year, new California legislation effective January 1, 2019 expanded the mandatory sexual harassment prevention training requirements for California employees.  That law required that, by January 1, 2020, employers with 5 or more employees must provide their supervisory employees with two hours of classroom or other effective interactive training and education AND must provide their non-supervisory employees with one hour of classroom or other effective interactive training and education.  This training must be provided within 6 months of hire, within 6 months of assumption of a supervisory role, and every two years going forward.  In addition, even if these employees had already been trained in 2018, the Department of Fair Housing and Employment (DFEH) announced that the new law requires these employees to be retrained during calendar year 2019.

California employers raised concerns about these requirements – and the legislature responded. On August 30, 2019, Governor Gavin Newsom signed emergency legislation (SB 778) which is effective immediately.  SB 778 extends the training deadline for training supervisory and non-supervisory employees from January 1, 2020, to January 1, 2021.

The bill also specifies that an employee who has received this training and education in 2019 is not required to be retrained again until two years from the date of their last training.

This means that employers who trained their regular* employees in 2018 do not need to provide refresher training again until 2020.  Employers who retrained or trained their regular employees in 2019 do not need to provide refresher training until 2021.

*Note: the emergency legislation does not change the law regarding seasonal and temporary workers. Beginning January 1, 2020, seasonal and temporary employees who are hired to work for less than six months, must be trained within 30 calendar days after their hire date or within 100 hours worked, whichever occurs first.

The Training Division of the Labor & Employment Department offers the training and education required by this law.  Please feel free to contact any member of our Labor and Employment team, or our department assistant, Ramona Carrillo to discuss and schedule a training program that meets the specific needs of your workplace.

The United States Court of Appeals for the Ninth Circuit recently confirmed in Tauscher v. Phoenix Board of Realtors, Inc. that while employers must engage in an “interactive process” with disabled employees to explore possible accommodations, there is no interactive process requirement for public accommodations and services.  By the same token, businesses and entities providing public accommodations cannot discharge the duties they owe to disabled patrons because of a failure to engage in the interactive process.

Title III of the ADA provides that no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.  (42 U.S.C. § 12182(a).)  A public accommodation must furnish “appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.”  (28 C.F.R. § 36.303(c)(1).)  While “[a] public accommodation should consult with individuals with disabilities whenever possible to determine what type of auxiliary aid is needed to ensure effective communication,” the regulations make clear that “the ultimate decision as to what measures to take rests with the public accommodation, provided that the method chosen results in effective communication.”  (Id. § 36.303(c)(1)(ii).)

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