A confusing decision on what ‘public hosting’ is could shift the issue into the public spotlight
By Randy Stapilus, Oregon Capital. the Chronicle
Here’s a key phrase from a just-released Oregon Supreme Court decision regarding a case of alleged prisoner abuse: “Buildings don’t discriminate; people do.”
This simple statement then twists in unexpected directions, partly reflecting that it stems from a dissent in the decision, and which in turn does not stem from an Oregon court case at all. The Oregon Supreme Court was not ruling on any of its own cases, but was offering an opinion on Oregon law to the United States Court of Appeals for the Ninth Circuit.
But the implications of the court’s opinion, and even its dissent, could go far beyond cases related to prison conditions and give rise to second and third thoughts from Oregonians and the legislature.
The underlying case is Andrew Abraham v. Corizon Health, and it arose out of Abraham’s time in the Clackamas County Jail, where in October 2015 he was jailed after an arrest (the decisions do not mention the reason ). Abraham is deaf and communicates through American Sign Language, which no one at the prison apparently understood.
He seems to have been misunderstood, as he was placed in solitary confinement under suicide watch. This was a particular problem for him, not only because of his deafness, but also because he was diabetic and unable to communicate his immediate medical needs.
Abraham sued in federal court for discrimination in “a place of public accommodation” because he is “a disabled person.” But he didn’t sue the jail or the county. He sued Corizon Health, which provides health care at the prison.
Here’s where the matter turns: Is the prison or its health care provider a “public accommodation” as Oregon law understands the term?
The Ninth Circuit was apparently confused about this. They therefore sought the opinion of the Supreme Court of Oregon. And the Oregon high court, which issued an answer, was very divided on the issue.
The court was united on one point: Prison is not public housing. Oregon law explicitly states that public accommodation is “any place or service providing accommodation, benefits, facilities, or privileges to the public, whether in the nature of goods, services, accommodations, entertainment, transportation or otherwise”. The law was originally put in place primarily to prohibit racial discrimination in places such as motels and restaurants.
At the same time, correctional institutions like prisons were specifically excluded. But the definition of hosting has changed over time.
Thus, the Ninth Circuit’s question was, “Is a private contractor providing health care services in a county jail a ‘public lodging facility’ under Oregon law?”
The majority of the Oregon Supreme Court (in a decision written by Chief Justice Martha Walters) said yes. “If the defendant qualifies as a public accommodation because of the services it provides, it does not matter that it provides those services at a physical location that independently qualifies as a public accommodation,” he said. she writes.
The opinion continues: “When we focus, as we must, on Parliament’s definition of a ‘local correctional facility’ as ‘jail or prison’, we cannot conclude that the defendant – a private entity that contracts with a prison, but it is not a prison — is exempt from the provisions of the law.
The dissent, written by Judge Christopher Garrett, noted: “Based on this analysis, while the Clackamas County Jail directly provides medical care, food and other basic services, the exception for correctional facilities s applies, but if the prison contracts with another entity to provide those services, the exception does not apply to that entity.
(That matches the bottom line reached by a federal judge who dismissed Abraham’s case in a lower court.)
Consider that for a moment. Your rights may vary depending on whether a public entity is doing something through its own employees or if it is outsourced to someone private – and the private contractor is actually held to a much higher standard. .
There is also another important question here. Which Oregon government contractors could be required to meet non-discrimination standards for “public accommodations” under the conditions set forth by the Oregon court? Some, surely (like medical providers and other correctional facilities). But how many others? And how could the legal definition of the term change?
The question of what is and is not considered “public accommodation” has been a quiet question since the nationally renowned wedding cake case involving a Gresham bakery. Chances are the aftermath of the Oregon Supreme Court’s new opinion will give it another boost in public awareness.
Randy Stapilus has researched and written about Northwestern politics and issues since 1976 for a long list of newspapers and other publications. A former journalist and editor, and more recently a book author and editor, he lives in Carlton. Oregon Capital Chronicle (oregoncapitalchronicle.com) is a nonprofit, professional news organization focused on in-depth and helpful reporting on Oregon state government, politics and politics.