You Can’t Be Discriminated Against for Your Disability in Banks, Barber Shops, and Hospitals, but in One Circuit You Can Be in a Plasma Donation Center

by Caroline Hardig, Associate Member, University of Cincinnati Law Review Vol. 91

I. Introduction

This article explores the circuit split on what constitutes a public accommodation under the Americans with Disabilities Act (“ADA”). The Tenth and Third Circuits agreed that a plasma donation center is a service establishment, and therefore is a public accommodation protected by the ADA.¹ However, the Fifth Circuit concluded the opposite.² While all the circuits interpret the statute similarly, the main distinction is whether a plasma donation center provides a service.³ While the Seventh Circuit has not ruled on the issue, a case has been brought to an Illinois District Court.⁴ Section II provides background on how the Tenth, Fifth, and Third Circuits have analyzed the issue. Section III discusses the various implications of the split. Finally, Section IV concludes by why it would be unjust to allow disability discrimination in plasma donation centers.

II. Background

With over 300 locations in the United States, CSL Plasma is a plasma donation center which allows donors to be compensated for donating their plasma.⁵ In Illinois, there are fourteen CSL Plasma locations.⁶ When going to a donation center, like CSL Plasma, donors are not required to provide insurance and do not have to pay to donate.⁷ However, CSL Plasma does not take all potential donors.⁸ Before donating, donors are required to answer medical questions along with a physical examination.⁹ Donors can be ineligible due to “age, weight, medical conditions, and the potential donor’s geographic radius to the donation center.”¹⁰ Typically, a donor will receive forty dollars for each donation, which can be done twice a week.¹¹

In Illinois, the Attorney General filed suit against CSL Plasma in federal court.¹² Illinois alleges that CSL Plasma did not allow donors with “mental health disabilities who use a service animal or who are deaf from providing plasma and being compensated for their time, in violation of the ADA.”¹³

The ADA was enacted in 1990 to protect people with disabilities.¹⁴ The statute provides that “[n]o 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.”¹⁵

In Illinois v. CSL Plasma, the phrase “public accommodation” was in contention. The statute reads, “public accommodation includes ‘professional office of a health care provider, hospital, or other service establishment.’”¹⁶ Plaintiffs moved for summary judgment on the question of whether CSL Plasma falls into the definition of a “service establishment.”¹⁷ The district court for the Northern District of Illinois explained that there is currently a circuit split on the issue.¹⁸ The court explained that the Seventh Circuit (which governs the Northern District of Illinois) has not answered this question, but other circuits have.¹⁹ The district court followed the holdings of the Tenth and Third Circuits. However, the Fifth Circuit ruled differently.²⁰

A. Tenth Circuit

In 2016, the Tenth Circuit ruled in Levorsen v. Octapharma Plasma, Inc. that plasma donation centers, under the plain language of the statute, are service establishments, and thus are public accommodations covered by the ADA.²¹ The plaintiff in Levorsen had schizophrenia.²² After donating plasma for years, Octapharma Plasma learned that the plaintiff had the disorder and rendered him ineligible to continue to donate plasma.²³ The court looked to the plain meaning of the statute, where it discussed the definitions of service and establishment.²⁴ The court explained that a service establishment is “a place of business or a public or private institution” (such as a school or hospital).²⁵ The court continued its analysis in clarifying that a service is “conduct or performance that assists or benefits someone or something,” or “useful labor that does not produce a tangible commodity.”²⁶ The court held that this is a “straightforward conclusion,” and by the plain meaning of the text, “a service establishment is —unsurprisingly— an establishment that provides a service.”²⁷ Therefore, Octapharma, a plasma donation center, falls under the definition of service establishment, and therefore is a public accommodation.²⁸

B. Fifth Circuit

The Fifth Circuit disagreed with the reasoning of the Tenth Circuit in Silguero v. CSL Plasma, Inc.²⁹ In Silguero, plaintiffs both had disabilities.³⁰ One had a limp and used a cane and the other used a service dog for her anxiety.³¹ The court did not disagree with the Tenth Circuit on their definition of service establishment, but rather disagreed on whether a plasma donation center provides a service.³² The court explained three reasons why a plasma donation center does not provide a service.³³

First, the word ‘service’ implies that the customer is benefitted by the act, and no such benefit occurs here.³⁴ Second, the list preceding the catchall term ‘other service establishment’ does not include any establishments that provide a ‘service’ without a detectable benefit to the customer.³⁵ Finally, third, the structure of the ADA indicates that an establishment typically does not pay a customer for a ‘service’ it provides.³⁶

Therefore, the court held a plasma donation center does not fall within a service establishment, and thus is not a public accommodation because there is no “detectable benefit” when a donor donates plasma.³⁷

C. Third Circuit

The Third Circuit adopted the Tenth Circuit’s approach in 2019.³⁸ In Matheis v. CSL Plasma, Inc., the plaintiff, a retired police officer who had post-traumatic stress disorder (“PTSD”), was prohibited from donating plasma when he brought his service dog with him to the plasma donation center.³⁹ The donation center cited a policy that barred “any individual who is prescribed daily more than two separate anxiety medications or who uses a service animal to manage anxiety.”⁴⁰ However, prior to being barred from donating, the plaintiff had donated plasma over ninety times.⁴¹ The court adopted the Tenth Circuit’s reasoning, holding that a plasma donation center is a service establishment.⁴² Disagreeing with the Fifth Circuit, the court explained that donors do receive a clear benefit when they donate—money.⁴³ Further, even though some service establishments receive money from customers rather than giving money, that should not “narrow the scope of ‘service establishments.’”⁴⁴

III. Discussion

If the Seventh Circuit decides on the issue of whether a plasma donation center is considered a service establishment under the ADA, the court should adopt the reasonings of the Tenth and Third Circuits.⁴⁵ Courts in the future should adopt the plain meaning of service establishment.⁴⁶ The statute expressly lists various public accommodations such as “a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment.”⁴⁷

The Third Circuit analogized a bank, which is one of the listed examples in the statute, to a plasma donation center.⁴⁸ The court explained that a bank not only “provides the means and expertise to hold safely the public’s money, it also may provide interest or other benefits (including cash or rewards) to convince customers to entrust them with their savings.”⁴⁹ Like plasma centers, banks “pay the public to use their services.”⁵⁰ The court also explained how a pawnshop is a service establishment, even though it “pays money in exchange for people’s possessions.”⁵¹ Based on these analogies, a plasma donation center falls squarely into the definition of a service establishment.⁵²

As explained by the Illinois court, the Fifth Circuit was incorrect by applying the canon of ejusdem generis (“of the same kind”).⁵³ The Fifth Circuit used this canon by arguing that the service establishment “is a catchall phrase” and “should be read in light of the preceding list.”⁵⁴ The court argued because all of the examples preceding “service establishment” are used in a way that “clearly benefits the individual,” plasma donation centers should not be included as they do not benefit the individual.⁵⁵ However, courts should only apply ejusdem generis when a statute’s language is ambiguous, which, in this provision of the ADA, the language is not ambiguous.⁵⁶ Even if the statute was ambiguous, donors do confer a benefit.⁵⁷ First, donors receive money for their donation.⁵⁸ Second, even if donors decline compensation, “the collection centers confer a benefit to even these ‘altruistic’ donors by providing the equipment and medical staff necessary to consummate these donor’s altruistic acts.”⁵⁹ Further, collection centers benefit donors, whether or not they wish to receive compensation, “by supplying the trained personnel and medical equipment to accomplish that goal.”⁶⁰ Therefore, even if courts read “service establishment” as ambiguous, a benefit is still conferred, which would be sufficient to classify a plasma donation center as a service establishment under the ADA.⁶¹

IV. Conclusion

Based on the holdings of the Tenth and Third Circuits, and now the Northern District of Illinois, courts in the future should hold that a plasma donation center falls within the definition of a service establishment covered by the ADA.⁶² The goal of the ADA is to protect people with disabilities and ensure they have “the same opportunities as everyone else to participate in the mainstream of American life – to enjoy employment opportunities, to purchase goods and services, and to participate in State and local government programs and services.”⁶³ Since the law protects people with disabilities in dry-cleaners, banks, barber shops, etc., a plasma donation center should not be an exception.⁶⁴ If the goal is to protect those with disabilities, it would be unjust to not protect them in a plasma donation center.

Cover Photo by Nguyễn Hiệp on Unsplash

Caroline Hardig

Prior to law school, Caroline Hardig attended the University of Kentucky where she received a degree in Psychology and a minor in Spanish. Caroline is unsure of exactly what area of law she wants to practice, so she is excited to explore various topics in the law as an Associate Member.

References

1
Mary Anne Paznowski, Plasma Donation Center Can Be Sued Under Disability Bias Laws, Bloomberg L. (Oct. 18, 2022, 2:18 PM), https://news.bloomberglaw.com/bloomberg-law-news/plasma-donation-center-can-be-sued-under-disability-bias-laws? [https://perma.cc/YR2E-SMQX].
2
Id.
3
Id.
4
Id.
5
Illinois v. CSL Plasma, Inc., No. 20-CV-3535, 2022 U.S. Dist. LEXIS 189855 (N.D. Ill. Oct. 18, 2022).
6
Id.
7
Id. at *5.
8
Id.
9
Id.
10
Id.
11
Id.
12
Id. at *6.
13
Id. at *6-7.
14
Id. at *7.
15
42 U.S.C. § 12182(a).
16
42 U.S.C. § 12181(7)(F).
17
Illinois, 2022 U.S. Dist. LEXIS 189855, at *8.
18
Id. at *9.
19
Id.
20
Id. at *9-12.
21
Levorsen v. Octapharma Plasma, Inc., 828 F.3d 1227, 1229 (10th Cir. 2016).
22
Id.
23
Id.
24
Id. at 1231.
25
Id.
26
Id.
27
Id.
28
Id. at 1234.
29
Silguero v. CSL Plasma, Inc., 907 F.3d 323, 330 (5th Cir. 2018).
30
Id. at 325.
31
Id.
32
Id. at 328.
33
Id. at 329.
34
Id.
35
Id.
36
Id.
37
Id. at 332.
38
Illinois v. CSL Plasma, Inc., No. 20-CV-3535, 2022 U.S. Dist. LEXIS 189855, at *8 (N.D. Ill. Oct. 18, 2022).
39
Matheis v. CSL Plasma, Inc., 936 F.3d 171, 174 (3d Cir. 2019).
40
Id.
41
Id.
42
Id. at 178.
43
Id. at 177.
44
Id. at 178.
45
Levorsen v. Octapharma Plasma, Inc., 828 F.3d 1227, 1227 (10th Cir. 2016); Matheis, 936 F.3d at 171.
46
Levorsen, 828 F.3d at 1238.
47
42 U.S.C. § 12181(7)(F).
48
Matheis, 936 F.3d at 178.
49
Id. at 177.
50
Id. at 178.
51
Id.
52
Id.
53
Silguero v. CSL Plasma, Inc., 907 F.3d 323, 329 (5th Cir. 2018).
54
Id.
55
Id. at 330.
56
Illinois v. CSL Plasma, Inc., No. 20-CV-3535, 2022 U.S. Dist. LEXIS 189855, at *16 (N.D. Ill. Oct. 18, 2022).
57
Id.
58
Id. at *5.
59
Id. at *16.
60
Id.
61
Id.
62
See discussion supra Part III.
63
Introduction to the ADA, ADA, https://www.ada.gov/ada_intro.htm [https://perma.cc/G8EC-8EZP] (last visited Nov. 4, 2022).
64
42 U.S.C. § 12181(7)(F).