On October 7-8 I’ll be joining Jason Taylor of Usablenet and Jeremy Horlick of ADA Site Compliance at American University’s Digital Accessibility Legal Summit in a panel discussion of accessibility overlays, widgets and plug-ins titled “The Great Accessibility Overlays Battle.” You can find the complete program at www.accessibility.legal. As you know, the use of widgets and overlays has generated some controversy, with makers of this software claiming they can create an accessible website and every credible consultant claiming they cannot. You can read my blogs about his subject at Is there a silver bullet for ADA website accessibility? Sorry, but the answer is no. and Thanks for the shout-out Lainey – a website plug-in followup. Those looking for an interesting technical analysis of the differences between various products will find one by Jason Taylor at https://blog.usablenet.com/inclusive-accessibility-crushes-widgets-and-overlays. Any attorney with clients who own a website – and that should be most of us – will find the entire Summit usefuls. The need for digital accessibility and the risk when it is absent colors every kind of business and consumer transaction, so keeping up to date is critical.
Same old wine in a brand new bottle – Pursuit of Justice, Inc. and the FHA
I had forgotten that this classic song was from Loggins & Messina until I looked it up after getting an old demand letter packaged by a new firm. I have blogged before about Legal Justice Advocates, a front for a group of attorneys who sent hundreds of demand letters making unsustainable claims about website accessibility under the Fair Housing Act.¹ Their business was taken over by the Portell Law Group² when the original members of LJA dropped out of sight and one of them was disbarred. Now another member of the group, Jerome Ramsaran, has created a new supposed disability rights group, Pursuit of Respect, Inc., to pursue the old business of making demands on website owners in different real estate related businesses. I know this because I was recently provided a demand letter sent by a lawyer in Chicago who also practices in Florida, the original home of Legal Justice Advocates. J. Kevin Benjamin is the lawyer sending demands on behalf of Pursuit of Respect, Inc. Unlike the claims from Legal Justice Advocates and the Portell Law Group Benjamin’s claims include ADA allegations, and unlike the LJA and Portell Claims the letters from Benjamin give the recipient fourteen days to correct the supposed website violations before there is a threat of a money demand. Of course the demands do not include any details about the supposed problems, and fourteen days is an impossible period for website remediation under the best circumstances. I expect the soft touch is intended to get an equally soft response that lets Benjamin solicit some kind of payment, and once the fourteen days are up there will probably be a stronger money demand.
Besides the Ramsaran connection the Benjamin demands share with the LJA and Portell demands a lack of any evidence that there will ever be a federal court filing. According to federal court records Pursuit of Respect, Inc. has never been the plaintiff in a lawsuit and Benjamin’s litigation history appears to be entirely in the field of bankruptcy and tax avoidance; in fact, his website only mentions his bankruptcy and foreclosure practice and offers to help his clients become “debt free and credit rich.” According to the Pursuit of Respect website its membership does not include anyone from Illinois, meaning it would be hard to establish standing for websites related only to local Illinois real estate businesses.³
The last time I mentioned Mr. Ramsaran in a blog he threatened to have his lawyer sue me. It never happened, probably because Ramsaran really doesn’t want the kind of scrutiny that comes from legal proceedings. I don’t know anything about Benjamin beyond what appears above, and he does at least have a client that has been incorporated in Florida and whose officers seem to be real people, but it seems unlikely the claims made in his demands are any more legitimate than those made by Legal Justice Advocates and the Portell Law Group.
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¹ See, Legal Justice Advocates – a New Kids on the Block Update and the blogs linked to it.
² See, ADA and FHA Quick Hits – is it safe to come out yet edition.
³ It appears some of the “members” are fictitious. “Davina” is supposedly a “girl who is interested in psychology” but the accompanying picture is clearly of a man. “Miguel” is a real person and really a student, but his picture is from the Clark College website. Another website, advocacyforequality.org, has many of the same members, but this time “Sean” is the Director instead of “Cassandra.” Advocacy for Equality, Inc. was created by Ramsaran a few months after Pursuit of Respect, Inc. and has the same officers and directors. I’m sure it will be showing up as the “client” in demand letters in the near future if it has not already. Both websites were clearly created in haste with little effort, which suggests that they are nothing but a front for the same old business. In the meantime the old legaljusticeadvocates.com website shows an “account suspended” notice.
Because of Winn-Dixie: the Eleventh Circuit takes a conservative stand on website accessibility.
On April 7 the Eleventh Circuit issued what is likely to be among the most important ADA decisions in the last twenty years. (6) In Gil v. Winn-Dixie Stores, Inc., 2021 WL 1289906 (11th Cir. Apr. 7, 2021) the Eleventh Circuit not only rejected the idea that Title III of the ADA covers websites as public accommodations, it also adopted a very limited view of the circumstances in which websites would be required to be accessible even when associated with a physical place of business. The impact on regional businesses in the Eleventh Circuit will be immediate – almost all ADA website lawsuits brought in the Eleventh Circuit are probably subject to dismissal unless carefully repled. More important is the prospect of an application of writ of certiorari to the Supreme Court. Unlike the Robles v Dominos case¹ Gil v. Winn-Dixie deals directly with the question of the ADA’s scope, making it an appropriate vehicle for Supreme Court review. There is finally a chance that we will have a definitive answer about the extent to which websites are subject to ADA accessibility requirements.
The Court dealt with the first issue before it; that is, are websites places of public accommodation, in the expected way. Because Title III gives only physical places of business as examples of public accommodations the Court found that a public accommodation is necessarily a physical place.² Websites are not physical places and are therefore not directly subject to the ADA’s accessibility requirements.
The next step in Court’s decision takes on the thornier issue of just what constitutes the “goods, services, privileges or advantages” of a public accommodation. The Court’s discussion is tangled because it tries to fit the problem into its earlier cases discussing “intangible barriers” and the question of what auxiliary aids and service might be required. When you look past this chaff the approach is clear: for the 11th Circuit the “goods, services, privileges and advantages” of a public accommodation are those offered at its physical place of business. Just because a website is created by or associated with a public accommodation does not make it a service of that public accommodation. It may be, as in the case of Winn-Dixie’s website, simply an alternative means of offering services already offered in the store. Because the website is not a service in and of itself there is no requirement that it be accessible.
This leads to the consideration of auxiliary aids and services, a particularly confused area of analysis when it comes to websites. It is clear from the language of the ADA that auxiliary aids and services are something that must be provided when necessary to avoid exclusion of the disabled. Screen readers and other assistive technologies are typical auxiliary aids and services, but in the context of a website they are not something provided by the public accommodation; they are something brought to the public accommodation or to its website by the disabled user. Thus, the auxiliary aids and services requirement in the ADA really cannot apply to website accessibility issues unless the website itself is treated as an auxiliary aid or service that must be provided in order to give those with disabilities equal access. The Court does not address this possibility, but would certainly reject it because, as it points it out, all the goods and services at Winn-Dixie were already available to those with disabilities at the physical stores.
This doesn’t mean websites associated with a physical place of business will never have to be accessible in the 11th Circuit. The Court’s discussion of the 9th Circuit’s decision in Robles v. Domino’s Pizza (4) suggests that an e-commerce website through which customers could purchase the same goods available in the physical store might be subject to an accessibility requirement. The logic of the distinction drawn by the Court isn’t clear though. The Court rejects the idea that a somewhat more convenient online re-fill process created a privilege that had to be equally accessible to those with disabilities, so taking the additional step of allowing on-line payment doesn’t seem to change the fact that a buyer is just doing on-line what they could do in the store. The very early decision in Access Now, Inc. v Southwest Airlines, Inc. rejected the idea that just because it was harder to do something in a physical store did not mean that an easier alternative had to be accessible.³
The decision also leaves open the possibility that an inaccessible website might be an intangible barrier to use of the goods and services of a store. If prescriptions could only be refilled online it seems clear the Court would find the inaccessibility of the website made it an intangible barrier to access to the goods and services of the store itself.
The long dissent makes it clear that what is really at stake in Winn-Dixie is the majority’s limited definition of the “goods, services privileges and advantages” of a public accommodation. For the majority the Winn-Dixie pharmacy is just in the business of selling drugs and refilling prescriptions. If a disabled customer can buy drugs and get their prescription refilled at the store there has been no denial of the full and equal enjoyment of the public accommodation even if other customers can do the same thing in a more convenient way online. After all, the majority points out, it is never possible to give those with disabilities a truly equal experience. Gil’s ability to do business at Winn-Dixie did not change just because the website became available as a convenience to other customers. For the dissent, on the other hand, any convenience offered to non-disabled customers must be offered to disabled customers as well even if the convenience is not fundamental to the acquisition of goods and services offered by the business. The majority is focused on meaningful access to goods and services; the dissent is focused on achieving equality in the entire range of interactions between customers and public accommodations.
The difference in views is not, I think, one that can be resolved by simply appealing to the text of the ADA or its regulations. The ADA’s requirements are premised on compromise; if true equality is impossible, how much money has to be spent getting close to true equality. The 11th Circuit would draw the line at enough money so those with disabilities can buy what is being sold. The dissent would require more equality at some additional cost, though it isn’t clear how much. This line drawing is implicit in the ADA, but that doesn’t make it easy to do. When the Winn-Dixie case was filed in 2016 online prescription refills may have looked like nothing but a slightly more convenient way to do what customers were already doing. During 2020, when shopping in person was far more difficult and dangerous, online prescription refills began to look like something close to a fundamental need. The more the general public uses on-line services of any kind the less likely it is that even physical places of public accommodation will devote the same resources to serving their customers any other way. That in turn makes it harder to claim services offered through the internet are merely an alternative to a traditional trip to the store. The difficulty in drawing the line between convenience and necessity can be seen in the Court’s discussion of Robles v. Dominos. Why is the ability to pay online more like a necessity than the ability to order online and pay in the store, or more like a service that should be provided equally to all? The Eleventh Circuit doesn’t answer that question or many similar questions that could arise in defining the line between a website as an intangible barrier and a website as merely an alternative means of doing something.
The best argument for the 11th Circuit’s conservative approach is that major technological and social shifts should be addressed explicitly by amendments to the ADA rather than being decided by hundreds of different federal judges in thousands of different specific fact situations. This could happen as the effort to amend the ADA to explicitly cover websites has started anew. (5) In the meantime, businesses in the 11th Circuit can breathe a sigh of relief and businesses everywhere can hope the Supreme Court will have an opportunity to better define just what the ADA requires for business websites.
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¹ See my blogs Supremes refuse to hear Domino’s v Robles, ADA Website litigation may get Supreme Court review – Domino’s fights on and ADA and the Internet – 9th Circuit overrules Robles v Dominos.
² See my blog, What Kind of Place Is Cyberspace? for a discussion of this issue.
³ 227 F. Supp. 2d 1312, 1316 (S.D. Fla. 2002). “Plaintiffs claim that although purchasing tickets at southwest.com is “technically possible, plaintiffs found purchasing a ticket to be extremely difficult…” (Compl. at 7). Plaintiffs do not argue that they are unable to access such goods and services via alternative means such as telephone or by visiting a particular airline ticket counter or travel agency.”
(4) The Court also rejects the “nexus” theory that holds websites must be accessible if they have the appropriate “nexus” to a physical place of business. Because “nexus” has never been defined with any precision it has never been a real “theory” about how the ADA applies to the internet. It is, rather, a term that embraces a range of possible connections between a website and a physical place of business that might or might not be sufficient to impose an accessibility requirement on the website.
(5) See, The Online Accessibility Act of 2020 – does it do what it needs to do? and https://www.adatitleiii.com/2021/03/renewed-attempt-at-ada-web-accessibility-legislation/
(6) Just to be clear, this blog is not about the bestselling children’s classic “Because of Winn-Dixie” by Kate DiCamillo. I just couldn’t find an interesting picture about Winn-Dixie the grocery store.
Quick Hits – April Fools Edition
If foolishness were limited to one day a year this blog would be well overdue, but a glance at the news – legal, political or other, shows that every day in April can be April fools day, so I make no apologies for the delay in getting this out.
The difference between accommodation and modification under the ADA and FHA
Any discussion of S.W. Fair Hous. Council v. WG Chandler Villas SH LLC, 2021 WL 1087200 (D. Ariz. Mar. 22, 2021) must begin with a vocabulary note. The thing called “modification” under the ADA is called “accommodation” under the FHA and the thing called “modification” under the FHA doesn’t really exist under Title III of the ADA. The vocabulary matters because under the FHA a “modification” is a change to a physical feature that the tenant must pay for while an “accommodation” is a change in policy that the landlord must pay for on the theory that the costs will usually be nominal. In WG Chandler Villas the plaintiff, a fair housing organization that was testing local apartment communities for their responsiveness to the needs of the deaf, asserted that installation of a flashing doorbell was an accommodation rather than a modification, thus making the cost the landlord’s responsibility. The Court held that how to characterize such a request depended on what kinds of services the landlord already provided:
The Court finds that a flashing doorbell is a reasonable accommodation under the ADA—not merely a modification—in the context of Defendant’s housing facility, because one of the services that Defendant provides residents is safety checks.
Those safety checks included ringing the doorbell to see if the resident responded. Since deaf residents would not benefit from that safety check if they didn’t know the doorbell was being rung the addition of the flashing doorbell was better characterized as a change in policy about safety checks rather than a physical modification in the form of a new doorbell. This reasoning could apply to an array of services that any apartment complex might provide. If reserved parking is a service, for example, then a reserved accessible parking space would be an accommodation despite the physical changes (including using up an entire extra parking space) and their cost.²
More on hotel websites and the litigation beast.
The beast must be fed. The California Legislature and Ninth Circuit created a litigation monster in California; the former by creating a $4,000 penalty for even innocent violations of the Unruh Act and the latter by defying the Constitution and permitting lawsuits by individuals who suffered no injury from their encounter with a supposed ADA violation. There are, however, only so many ADA targets and plaintiffs like Samuel Love and his attorneys are making increasingly implausible claims in what I see as a desperate effort to keep the settlement money rolling in. That, at least, is my interpretation of cases like Love v Marriot Ownership Resorts, Inc., 2021 WL 1176674, at *7 (N.D. Cal. Mar. 29, 2021) and Love v. KSSF Enterprises Ltd., 2021 WL 1056604 (N.D. Cal. Mar. 18, 2021)¹ in which Love claims that hotel websites fail to meet ADA requirements for describing accessible features because they lack sufficient detail for him to determine whether the hotel is telling the truth about its accessibility. In these, as in other similar cases, his claims were dismissed because on their face they had no merit. Will this deter future suits? Probably not. For every defendant willing to spend thousands, or tens of thousands of dollars defending meritless lawsuits there are a dozen who will just pay off the plaintiff’s attorneys to be rid of the case. Until the California legislature and Congress decide to put an end to exploitative ADA litigation the rampage will continue.
Brooke v. Superb Hospitality, LLC, 2021 WL 1173208 (E.D. Cal. Mar. 29, 2021) is another case that seems to have been filed only as a way to make money for the plaintiff’s lawyers. Brooke claimed the hotel violated the ADA because its only suite was not accessible. Buried in a long but informative discussion of mootness and ADA liability for information on 3rd party websites is the observation that under the applicable regulations a hotel is not required to make one of every type of room accessible as long as there are comparable rooms available that are accessible, which was the case with this hotel. In other words, the hotel never violated the ADA. Why then did Brooke file suit? The beast must be fed.
Speaking of hotel websites. . .
The plaintiff in Katz v. Wanderstay Hotels, LLC, 2021 WL 1093169, at *4 (E.D.N.Y. Mar. 4, 2021), report and recommendation adopted, 2021 WL 1091907 (E.D.N.Y. Mar. 22, 2021) probably thought he had it made when the defendant failed to file an answer, making a default judgment possible. Unfortunately the court found he had failed to make all the allegations needed under New York’s long arm jurisdiction statute (4), so even if everything in the Complaint was presumed true (which is what happens in a default case) there wasn’t enough for the plaintiff to win. The most interesting sentence in the opinion, and one that defendants will likely want to quote, is this:
Plaintiff fails to allege that defendant engaged in a “transaction” with him in the way that the term is typically understood, but rather, plaintiff states that he visited Wanderstay’s website and witnessed the ADA violation. Courts in this Circuit have held that a New York resident viewing the website of an out-of-state defendant, absent more, is not enough to establish personal jurisdiction over the defendant.
For businesses with no substantial business in New York it appears that a typical serial litigant claim won’t be sufficient to drag the defendant out of their home in another state.
Policies and procedures under the ADA.
The long discussion of class action certification in Allen et al v Ollie’s Bargain Outlet, Inc. 2021 WL 1152981, at *1 (W.D. Pa. Mar. 26, 2021) includes one sentence that says all you need to know: “Ollie’s does not train or educate its employees on ADA compliance.” The defense arguments were thorough and well researched, and it is not clear that the plaintiffs can prevail at trial, but the defendant’s real problem was that it could not say its employees knew they were supposed to keep the aisles clear so goods were accessible by wheelchair. It followed, of course, that the defendants has probably failed to keep the aisles clear in many stores over many years. If your business doesn’t want to be sued it past time to have an ADA training policy in place that covers not just employment issues, but also Title III accessibility issues.(6)
Merely filing a lot of lawsuits does not make one a vexatious litigant.
The decision in Bouyer v Rocky’s Racquet World, LP, 2021 WL 1146384 (C.D. Cal. Mar. 25, 2021) includes discussions of supplemental jurisdiction of Unruh Act claims (they were dismissed) and the specificity required in declarations intended to prove mootness (a good deal). It also includes an important observation for those who are outraged at the litigation beast described above. The Court denied a motion to declare the plaintiff a vexatious litigant because, for that designation to apply, “the plaintiff’s claims must not only be numerous, but also be patently without merit.” Id. at p.8.³ ADA serial litigation is often outrageous, and frequently involves what are clearly lies about intent to return and motivation, but if there is a real ADA violation the character of the plaintiff and the lawyers is never going to overcome the fact that the defendant didn’t follow the law.
Feasibility and cost
Bronx Independent Living Services et al v. Metropolitan Transportation Authority et al, 2021 WL 1177740 (S.D.N.Y. Mar. 29, 2021) is a long opinion about two complex subjects, associational standing and technical infeasibility. The opinion doesn’t reach any conclusion except that competing expert testimony creates a fact issue requiring a trial, but the explication of the law is a worthwhile resource.
ADA Tester Standing
Laufer v. Q Ill Developement, LLC, 2021 WL 1202329 (C.D. Ill. Mar. 30, 2021) includes an unusually clear and concise explanation of tester standing that correctly applies the Supreme Court’s holding in Havens Realty Corp. Most courts read Havens to simply say that testers have standing, but in Q Ill Dev. the Court correctly notes that testers have standing only when they suffer precisely the injury the statute was intended to prevent. Because the ADA regulations concerning hotel websites are intended to make sure disabled individuals have information about accessibility a disabled person who cannot find that information has suffered precisely the injury the statute was intended to prevent. Without identifying the specific injury the statute was intended to prevent and determining whether a tester suffered that injury any discussion of tester standing is incomplete.
Mahoney v. Waldameer Park, Inc., 2021 WL 1193240 (E.D. Pa. Mar. 30, 2021) reaches, in a roundabout way, the same conclusion as Q Ill Dev. Mahoney is a serial filer who originally claimed an ADA violation based on the defendant’s inaccessible website then pivoted to a claim based on the defendant’s place of business when he realized that the Third Circuit does not recognize websites as public accommodations. The Court considered his standing under two tests – the four-part proximity test used by many courts outside the Ninth Circuit and the deterrent effect test sometimes used by the Ninth Circuit. Mahoney “flunked,” as the Court put it, the proximity test because he had never visited the business and lived too far away to plausibly claim he would ever do so. He failed the deterrent test as well because you cannot be deterred from visiting a place you never intended to visit in the first place. As a final step the Court considered the possibility of “tester” standing. Without defining what tester standing might require, the Court rejected its application to Mahoney because “Mahoney is no tester.” Mahoney only tried to test the website, and without testing the physical place of business his testing of the website did not give rise to an ADA claim. This makes sense when looking at “precisely the injury” the ADA was intended to prevent. In the Third Circuit the ADA covers websites only because they are connected to a physical place of business, so the injury must necessarily relate to the the physical business, not the website.
More about supplemental jurisdiction
Whitaker v. Mouallem, 2021 WL 1152899 (C.D. Cal. Mar. 17, 2021) is another in the string of cases I have discussed in which the Court declines to exercise supplemental jurisdiction over Unruh Act claims because the federal filing was used to circumvent the state law requirements intended to deter serial litigation. California counsel will find it useful because it has a very complete discussion of the state legislation, its purposes, and the reasons plaintiffs’ law firms try to circumvent it. Boyer v. Pizza Hut No. 026192, 2021 WL 1153062 (C.D. Cal. Mar. 8, 2021) reaches the same conclusion with quite a bit less discussion.
In Morgan v. Bank of Am., Natl. Assn., 2021 WL 1056589 (S.D. Cal. Mar. 18, 2021) the judge was willing to exercise supplemental jurisdiction over an Unruh Act claim when the issue came up later in the proceedings and only after the defendants had effectively lost the case even though the court found there remained issues for trial. It was a reasonably straightforward claim concerning missing handrails on a set of steps brought by two plaintiffs who didn’t appear to be serial filers, which meant there was no strong state law policy requiring that the case go back to state court. The opinion is also a lesson in how even with small cases (the cost of remediation was only a few thousand dollars) you still have to dot your i’s and cross your t’s. The plaintiff didn’t quite get an outright victory because the pleading for injunctive relief wasn’t as specific as it should have been.
Dotting your i’s and crossing your t’s
The defendant in Sandhu Brothers Liquor, Inc. 2021 WL 1145994 (N.D. Cal. Mar. 25, 2021) almost got it right when asserting that the plaintiff’s claim was moot because a single parking space had been remediated. “Almost” because the declarations concerning the work did not specify the dimensions of the parking place, making it impossible to tell whether the remediation actually met ADA standards. It takes time to do things right, no matter how small the case.
I originally noted the case of Green v. Mercy Hous., Inc., 2021 WL 1080679 (9th Cir. Mar. 19, 2021) when the plaintiff survived a motion to dismiss.(7) The defendant had better luck at the summary judgment stage, obtaining a dismissal of the claims against it. Unfortunately the record the district court found sufficient did not satisfy the Ninth Circuit, which overturned the summary judgment and remanded the case with the observation that with respect to the reasonableness of the accommodation sought by Green “the record is somewhat vague.” There are no shortcuts in this kind of litigation.
Default as a strategy
Winegard, Pl., v. Crain Commun., Inc., Def. 2021 WL 1198960 (S.D.N.Y. Mar. 30, 2021) is an unusual default case because it is from the Second Circuit rather than California and because it concerns a website instead of a strip shopping center or family owned restaurant. For small businesses accused of not being physically accessible default poses little risk because the cost of remediation can be defined and is often less than the cost of attorneys’ fees. Website remediation is another matter because the cost to remediate a modest website can be far in excess of the revenue it generates. This is true even when, as in this case, the only claimed ADA violation concerns closed captions. However, it seems unlikely that the Court’s order – “Defendant is therefore ordered to bring its website into compliance with the ADA and its implementing regulations” – can be enforced since an order to obey the law is not sufficiently specific to be enforceable. See, Peregrine Myanmar Ltd. v. Segal, 89 F.3d 41, 51 (2d Cir.1996). Because there are no regulations defining website accessibility the injunction in this case may pose no threat at all to the defendant.
Does the ADA require that cities regulate jerky behavior?
Electric scooters for rent are an energy saving convenience that help reduce traffic and pollution or, perhaps, are a curse and danger to all pedestrians. Montoya v. City of San Diego, 2021 WL 1056594 (S.D. Cal. Mar. 19, 2021) doesn’t decide which of these is true, but does explain in considerable detail why a preliminary injunction requiring the City of San Diego to ban all such scooters was not appropriate. For me the key observations are that reckless driving and scooters blocking the sidewalk affect those with disabilities and those without disabilities alike and that skateboards and bicycles pose the same kinds of problems. (5)
Strojnik – again
Strojnik v. Flagrock Hosp. LLC, 2021 WL 1085395, (D. Ariz. Mar. 22, 2021) is a bizarre case of winning by losing, sort of. Peter Strojnik filed a typical ADA claim in state court, hoping to avoid the federal courts in Arizona that have declared him a vexatious litigant. The case was removed based on federal question jurisdiction, a move opposed by Strojnik. The Court found that Strojnik lacked standing to sue under the ADA, which eliminated federal question jurisdiction, and remanded the case to state court, where Strojnik’s various state law claims seem unlikely to succeed, but is where Strojnik wanted to be in the first place.
Uber preview
In the next few days I’ll be taking a close look at the decision in nlawful discriminatory Equal Rights Ctr. v. Uber Techs., Inc., 2021 WL 981011 (D.D.C. Mar. 15, 2021), a case that raises two important issues. Do broad allegations of deterrence satisfy the pleading requirements for an ADA claim and can a business that serves the public structure itself so that it avoids any ADA obligation. Stay tuned.
¹ See also, Quick Hits – Vernal Equinox edition
² This case, like the similar case covered in Quick Hits – Vernal Equinox edition and other earlier blogs also dealt with the obligation to provide ASL interpretation to prospective tenants. The message here is the same as in those earlier cases – don’t refuse a requested accommodation until you’ve discussed it and tried to resolve it.
³ This was the subject of one of my blogs in 2013, Standing for serial plaintiffs – it’s a legal issue, not a moral problem. The situation hasn’t changed. If your defense is mootness because the ADA violation was fixed after the suit was filed it doesn’t make much sense to say the suit had no merit at the time it was filed.
(4) Long arm jurisdiction is the legal doctrine that allows someone who does not live in a state to be sued there. In very broad terms (there are books about this) a defendant can’t be sued away from their home state unless it is fair to sue them elsewhere. Fairness usually comes from either having done business with the particular plaintiff or having done a good deal of business in the state with others. If ADA serial filers are forced to prove their target defendant actually did business with others in the state they will be forced to do more work before filing suit.
(5) This isn’t a brand new issue. See, ADA and FHA Quick Hits – Day that will live in infamy edition, Quick Hits – Making a list and checking it twice edition and Rental bikes and the ADA – Hunt quoted in Dallas News Article
(6) See my 2018 blog, ADA Compliance Policies and Procedures – you need them, and now.
(7) ADA and FHA Quick Hits – Happy New Year edition
Covid-19, sneeze guards, social distancing signs and the ADA
I’ve gotten two emails from John Garra at Square One Architecture¹ with papers on different aspects of physical accessibility and Covid-19 that frankly had not occurred to me. The first dealt with sneeze guards that have been put up at most sales counters may, and frequently do infringe on the space required for those with disabilities to access the counter. The second concerned the signs being used to space out folks waiting in line or to block access to seating. These are not readable by the blind, who therefore can’t tell where seating or standing is appropriate. I think these are the first non-mask related Covid-19 item I’ve seen.
Sales counters are a frequent source of ADA complaints and litigation, usually because they are not low enough, not wide enough, or cluttered with point-of-sale displays. Adding a sneeze guard that isn’t carefully designed can easily create problems that didn’t exist before. Garra also points out that the reason sales counters have a maximum height is that wheelchair users are sitting at a height lower than almost all standing users. That means the portion of a sneeze guard that is open for passing receipts or goods may be a just the face level of a wheelchair user, making the sneeze guard less effective or ineffective.
I’ll share any additional insights that Garra sends me, but once you begin looking at public spaces in terms of accessibility it isn’t hard to imagine other unintended consequences of Covid-19 protection. Restaurants that have eliminated tables in order to create greater social distance might easily have eliminated accessible seating without thinking about why some tables are differently configured. Sneeze guards aren’t just a problem at counters. The picture above shows a sneeze guard that makes a booth inaccessible for a person in a wheelchair. The focus on masks as a problematic requirement for those with breathing disabilities may cause us to overlook the problem presented for deaf individuals who rely on lip reading when a clerk or server is wearing a mask.
There are, as Garra points out, many resources on accessibility available online from the U.S. Access Board,² the federal agency with general responsibility for accessibility standards. I would add this suggestion for businesses that want to both avoid litigation and better serve customers with disabilities. Just take a few minutes to walk through your business imagining you are in a wheelchair and see what barriers might exist because of Covid-19 precautions or for any other cause. Think as well about the experience of a blind customer or a deaf customer. The technical standards can be daunting, but in most cases the problems are easy to identify and understand with a little imagination.
¹You can contact John at john@sq-1.net if you want more information. His website is Square One Architecture.
² https://www.access-board.gov