Happy New Years – 2020 ADA and FHA retrospective

By in Accessibility Litigation Trends, ADA - serial litigation, ADA Internet, ADA Internet Web, ADA regulations, ADA Website Accessibility, Animals, Animals, FHA Emotional Support Animals, FHA Guidance, FHA Regulation, Internet Accessibility Tags: , , , , , ,

champagne glasses in a toastHere’s a toast to the end of a bad year. I don’t know anyone who won’t be happy to see 2020 behind us, but it’s worth looking back at how the law of accessibility developed in the last year.

Fair Housing Act developments were bracketed by two events, one of which was scarcely noticed but could be important. In February, to considerable fanfare, HUD rolled out its new Guidance on requests for accommodation concerning animals.¹ Its many disclaimers about not being a regulation and not having any binding effect were not enough for the U.S. Government Accountability Office, which opined on December 17, 2020² that the Guidance violated the Congressional Review Act because it was not submitted to Congress for approval before it took effect. It is not surprising that HUD ignored the law, but HUD often ignores both science and the law, so to the extent the Guidance reflects what HUD’s investigators will do it provides some useful information on staying out of trouble in a HUD investigation even if it isn’t helpful as a guide to complying with the FHA.

A couple of months before the GAO Opinion HUD’s Assistant Secretary for Fair Housing and Equal Opportunity told us exactly what HUD thinks the FHA is supposed to provide for those with disabilities. In a press release announcing an enforcement action she said “Assistance animals aren’t pets; they make it easier for persons with disabilities to perform life’s daily functions.”³ “Easier to perform life’s daily functions” is a far cry from the FHA’s requirement that accommodations be “necessary” for a person with a disability to use and enjoy a dwelling. The necessity requirement was chosen by Congress as a compromise between the special treatment required so that those with disabilities can equally use and enjoy a dwelling and the rights of landlords to control the use of their property. Making life easier was not the standard Congress chose. 2021 will bring a new administration and a new HUD secretary, but it seems unlikely HUD’s FHEO office will change its stance to comply with the law.

Covid 19 had its effect on those subject to the FHA, but primarily as a reason to think carefully about what it means to have a disability (or “handicap” in the language of the statute) under the statute. Diseases, even serious ones, are ordinarily not considered disabilities for FHA purposes. However, Covid 19’s long term effects on physical and mental health for some survivors means it can certainly lead to a patient having a disability. The significantly higher risk of severe symptoms and death for those with disabilities could also implicate the FHA as individuals who are already disabled seek accommodations to reduce their risk of infection. The pandemic has not lead to any new law, but it should be a reminder that “handicap” and “disability” are terms with careful statutory and regulatory definitions that don’t evaporate in the face of an emergency.

The most important animal development in 2020 was the issuance of DOT’s new regulations on animals in flight.(4) The regulatory review that lead to these changes was mandated by Section 437 of the FAA Reauthorization Act of 2018, part of a larger Congressional demand that the DOT address the needs of those with disabilities. It was almost certainly a congressional response to many reports of damage and injuries caused by pets being passed of as emotional support animals as well as pressure from the various interest groups. By requiring airlines to accept only service animals as defined in the ADA and limiting even those to dogs the Department of Transportation implicitly recognized that individuals with mental health disabilities do not need the constant presence of emotional support animals in order to equally participate in air travel. Of course the larger issue is whether such animals are ever “necessary,” a notion that has no scientific support and has been rejected by organizations like the Veteran’s Administration.

In 2020 interest in the ADA remained focused on the ever increasing number of website accessibility claims.(5) Despite reports that the rate of filings had slowed in 2020 Usablenet’s analysis showed a 23% increase in claims when claims filed in California state court were included. California’s Pacific Trial Attorneys leads the pack in most ADA website lawsuits filed in 2020, and their cases alone account for almost half the increase in the number of cases filed. Claims under California’s Unruh Act have always been attractive to plaintiff’s lawyers because the act includes a mandatory penalty of $4000, which substantially increases the settlement value of these cases. Filing under the Unruh Act in state court became more attractive when some federal courts began dismissing pendant Unruh Act claims and the Fourth California Court of Appeals applied a liberal standard to personal jurisdiction over claims against out of state website operators.(6) In addition, the issue of whether the Unruh Act applies to businesses without a nexus to a physical place of business is unresolved under California state law, making claims against pure internet businesses possible under the Unruh Act.(7) State court lawsuits usually limit the claimed damages and fees to less than $75,000, eliminating the chance of removal to federal court by non-California defendants and thus forcing out-of-state businesses to either litigate in an expensive and unfavorable venue or settle. In a tepid response to abuse of the Unruh Act with respect of claims based on a lack of physical access the California legislature has imposed limits on such suits that do help smaller businesses. Whether such relief will be available for small business websites is an unknown.

The big news for claims under the ADA was the introduction of the bi-partisan Online Accessibility Act of 2020.(8) The Act isn’t perfect, but its requirement that DOJ finally issue regulations and its protections for small businesses would be a huge help in limiting lawsuits filed by the ADA serial litigation industry. The Biden administration seems likely to revive the regulatory effort torpedoed in 2017 by the Trump administration in any case, but the Act still includes provisions that are helpful. It lacks the one thing necessary to help businesses avoid abusive litigation in states like California; a preemption of state law based on the inherently national and international nature of internet businesses.

I’m sure I’ve omitted a few important developments in 2020, but if you are interested in more you can look back to my earlier blogs and those of my fellow bloggers in this space. 2021 is likely to bring important new developments as the Biden administration rethinks the regulatory and enforcement priorities of HUD and DOJ and as more appellate courts consider the basic issues that rarely get litigated because settlement is a better option. Stay tuned.

¹ See my blog, “HUD’s new Guidance on assistance animals will encourage emotional support animal fraud.”

² See, https://www.gao.gov/assets/720/711347.pdf

³ See, https://www.hud.gov/press/press_releases_media_advisories/HUD_No_20_169

(4) See my blog, “DOT issues new in-flight animal restrictions”

(5) I am indebted to Jason Taylor of Usablenet for this information. Usablenet’s full report on website accessibility litigation is well worth reading and can be found at https://info.usablenet.com/2020-report-on-digital-accessibility-lawsuits

(6) See my discussion in Quick Hits and other blogs, and the decision in Thurston v. Fairfield Collectibles of Georgia, LLC, 268 Cal. Rptr. 3d 365, 372 (Cal. App. 4th Dist. 2020), review denied (Dec. 9, 2020).

(7) Federal ADA cases in California are limited by the Ninth Circuit’s holding that the ADA applies only to websites with a nexus to a physical place of business. In a lengthy review of the law applying the ADA to websites the California 2nd Court of Appeals declined to decide the issue under state law, finding that because the website in question did have a nexus to a physical place of business “we need not consider here the wholly hypothetical question whether Title III of the ADA governs a website unconnected to a physical place of public accommodation offering only purely Internet-based services or products.” Thurston v. Midvale Corp., 252 Cal. Rptr. 3d 292, 302 (Cal. App. 2d Dist. 2019). It does not appear any higher California court has considered the issue since the Midvale opinion was published.

(8) See my blog at Online Accessibility Act of 2020 for a complete analysis.


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Reality, virtual and legal – does the ADA require captioning of VR games?

By in Accessibility Litigation Trends, ADA, ADA Internet, ADA Movies, ADA Virtual Reality Tags: , , ,

Jeremy Horelick of ADA Site Compliance called my attention to a recently filed lawsuit making a novel ADA claim. In Panarra v. HTC Corporation and HTC America, Inc., Case No. 6:20-cv-06991 (W.D.N.Y.) the plaintiff claims that because he is deaf he is denied equal access to the virtual reality games and experiences offered by defendants’ website, https://www.viveport.com/infinity. This, he claims, violates the Americans with Disabilities Act and New York law.² The lawsuit can be seen as just the latest in a line of cases stretching back at least to Arizona ex rel. Goddard v. Harkins Amuse. Enterprises, Inc., 603 F.3d 666 (9th Cir. 2010), a case arguing that a chain of movie theaters was obliged to provide closed captioning for the movies it showed and even to Stoutenborough v. Natl. Football League, Inc., 59 F.3d 580, 582 (6th Cir. 1995), a case claiming that the NFL’s “blackout rule” discriminated against the deaf in violation of the ADA because it meant that for many games the only broadcast available was a radio broadcast. That chain of cases certainly includes Natl. Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196 (D. Mass. 2012) since at the center of Panarra’s argument is the fact that since Netflix provides captions for its content it must be possible for HTC to do so as well.

The legal reality is, however, more complicated than that. Panarra wants captions on the content that Defendants “create, produce, and/or provide.” That content, however, is distinct from the platform on which it runs and arguably falls under the DOJ rule at 28 CFR §36.307(a). This rule provides that a public accommodation¹ is not required to “alter its inventory to include accessible or special goods.” In Jancik v. Redbox Automated Retail, LLC,  2014 WL 1920751 (C.D. Cal. May 14, 2014) a District Court confirmed earlier cases holding that the ADA did not regulate the content and characteristics of goods, in that case the DVDs distributed by Redbox. In Stern v. Sony Corp. of Am., 459 Fed. Appx. 609 (9th Cir. 2011)(unpublished) the 9th Circuit held that video games sold by Sony Corp were not “facilities” covered by the ADA, again distinguishing goods from the place of public accommodation itself.

Anticipating this kind of argument Panarra claims that captioning is an “auxiliary aid or service” that any public accommodation must offer to those with disabilities who would otherwise be treated differently than other individuals. DOJ regulations explicitly recognize captioning as such an auxiliary aid or service. 28 CFR §36.303(b)(1) and the auxiliary aid or service theory was one of many applied to a claim with respect to captioning video content in Natl. Assn. of the Deaf v. Harvard U., 3:15-CV-30023-MGM, 2016 WL 3561622, at *11 (D. Mass. Feb. 9, 2016), report and recommendation adopted, CV 15-30023-MGM, 2016 WL 6540446 (D. Mass. Nov. 3, 2016).  That may not be the end of the story though. There is at least a reasonable argument that the auxiliary aids and services requirement is intended to provide access to the goods and services sold by a public accommodation, not to change the goods and services themselves, especially when the goods come from third parties whose rights would be infringed by modifying them. And that observation  requires considering another question – is a virtual reality video game a good or a service? If it is a service then the service itself should be accessible. If it is a good it falls into the inventory exception. It also requires asking a technology question; can captioning be added at the platform level rather than the game level? At the platform level captioning can be seen as an auxiliary aid for access to the content provided by the platform. At the game level it looks more like a part of the goods provided.(4)

There is another complication, this time involving the difference between open and closed captioning. As pointed out in Harkins, the DOJ commentary to its ADA regulations explicitly states that open captioning is not required for movie theaters. 28 C.F.R. pt. 36, App. B(C), at 727 (2009).  A virtual reality platform is not a movie theater, but the rationale for this comment was that open captioning changes the experience for everyone attending a movie, most of whom would be distracted by the captions. The auxiliary aids and services requirement specifically excepts changes that would fundamentally alter the nature of the goods and services provided, and open captioning would certainly diminish the virtual reality experience for users who were not deaf. The outcome of Panarra may turn on whether it is possible with existing technology to deliver captions to those who want them without showing the captions to those who do not.

I blogged recently about the Online Accessibility Act of 2020³, a bipartisan effort to bring the ADA into the 21st century with respect to websites. Congress has acted before to deal with lacunae in the ADA. The Congressional response to Stoughtenborough was the Telecommunications Act of 1996, which required captioning for television broadcasts, taking the issue out of the ADA entirely but without eliminated NFL blackouts. DOJ also has regulatory authority that could clarify how the ADA applies to online game and virtual reality offerings. Under the incoming Biden administration it may even be willing to exercise that authority. In the meantime decisions about what technology can and cannot achieve at a reasonable cost will be left up to the courts, with a predictable level of confusion for business as individual judges reach different conclusions in different jurisdictions. The level of future dysfunction in Congress is now tied to upcoming runoff elections in Georgia, but one thing both political parties always seem to have agreed on is the importance of equal access for the disabled. The ADA has just turned thirty, and maybe it’s time for what they call in Hollywood “a little work” here and there to bring it up to date with changes in technology.

¹ In the 2nd Circuit Defendants operate a “public accommodation” even though the platform is only online. In the 9th Circuit online VR platforms would not be subject to the ADA at all.

² For another perspective on this case see the blog from Sheri Byrne-Haber, this-week-in-accessibility-first-lawsuit-filed-over-lack-of-captions-in-vr-f82c21337d16

³ See, The Online Accessibility Act of 2020 – does it do what it needs to do?

(4) The history of captioning for movies is interesting in this regard. When DOJ updated its regulations concerning the ADA it added a requirement that movie theaters provide the equipment necessary to decode closed captions present in the movie itself (an auxiliary aid or service), leaving it up to movie producers to include the captions (a change in the goods). Movie producers began providing captions in almost all movies as digital technology replaced film and the cost of captioning fell to the point that it was a good investment from a business perspective. In the meantime the theater regulations were intended to balance the cost against the increasing availability of content with captioning, a balance that cannot be achieved when cases are decided individually.


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DOT issues new in-flight animal restrictions, and a breath of reason in regulation.

By in ACAA, ADA, Animals, Animals, FHA Emotional Support Animals Tags: , , , ,

sad looking dog with caption "I need some emotional support."Texas Bar Top 10 LogoThe Department of Transportation has issued it final rule concerning in-flight rules for animals helping those with disabilities.¹ The bottom line is straightforward. Airlines are only required to permit dogs trained to perform a specific disability related tasks in the cabin of their aircraft. This adopts the same restriction that the Department of Justice has long had in place for Title III public accommodations under the ADA (except that DOT, unlike DOJ, does not recognize miniature horses as service animals). In addition to limiting the kind of animal airlines are required to transport the DOT regulations permit airlines to do some things that DOJ would ordinarily not permit in a Title III context, including:

  • Require paperwork in advance that provides details about the animal, and its’ vaccinations and training and warns the person filling out the paperwork that misrepresentations can be punished.
  • Limit the size of the dog unless empty seats are available for a larger dog in the same class of service.²
  • Require the dog to be leashed or tethered even if its work is not consistent with a leash or tether.
  • Require a handler, who may not be the person with a disability, to have the dog under control.

In addition the rules provide specific guidance about excluding dogs that are not under control in the gate or waiting areas. This guidance, which allows the exclusion of animals that misbehave, is similar to the advice I and other lawyers give our Title III clients and is worth looking at because it should be useful in the Title III context. Here is what DOT says:

You may observe the behavior of an animal. A trained service animal will remain under the control of its handler. It does not run freely around an aircraft or an airport gate area, bark or growl repeatedly at other persons or other animals on the aircraft or in the airport gate area, bite, jump on, or cause injury to people, or urinate or defecate in the cabin or gate area. An animal that engages in such disruptive behavior demonstrates that it has not been successfully trained to behave properly in a public setting and carriers are not required to treat it as a service animal without a carrier in the cabin, even if the animal performs an assistive function for a passenger with a disability. 

 14 CFR §382.73(a)(2). 

As you might imagine, the strongest opposition to the new rule came from the emotional support animal community, which is supported largely by organizations that make money promoting the notion that everyone who feels bad should be permitted to take a puppy with them everywhere they go.³ The regulation was favored by industry groups and by groups representing the blind (because the work of guide dogs is often disrupted by untrained animals in close proximity) and those with allergies. Notably absent from the discussion was any consideration of whether emotional support animals are ever required for individuals who are disabled as a result of a psychiatric or mental impairment. Based on information I have received from various practicing and academic mental health professionals it appears there is no scientific evidence that an untrained animal can provide necessary support for an individual whose mental condition rises to the level of a disability.(4) The evidence in favor of emotional support animals for psychiatric conditions seems to be almost entirely anecdotal. It is puzzling that federal regulatory agencies like DOT and HUD have so little interest in the science that is important to their regulatory decisions, preferring instead to simply accept comments from anyone with an axe to grind and make a decision that never addresses the underlying reality of the assertions from the various parties.

Despite the lack of interest in science, the new rules do inject a fresh breath of reason into the discussion of animals for those with disabilities in public places. Disability rights laws and regulations must ultimately balance the tools necessary for those with disabilities to have equal opportunities against the disruption those tools may cause. That requires looking not only at benefits to those with disabilities, but also the opportunities for fraud and the likely cost to businesses and others, including others with disabilities. In the case of emotional support animals the benefits are dubious, the fraud apparent and the harm to others is very real. DOT’s new rules reach an appropriate balance for animals in a public but confined space by rejecting any requirement that emotional support animals  be transported by the airlines as anything other than what they are – pets.

¹ The new rules can be found at https://www.transportation.gov/briefing-room/us-department-transportation-announces-final-rule-traveling-air-service-animals.

² This may not be a problem during the current pandemic since flights are often not at capacity.

³ This included U.S. Support Animals, a for profit that claims to offer “official” support animal registration despite the fact that no state or federal agency recognizes such registrations, and whose registration is on the “honor system;” that is, they will issue a registration to anyone who is willing to lie about their pet.

(4) See my earlier blogs – Science v. HUD – science and business are the losers., HUD’s new Guidance on assistance animals will encourage emotional support animal fraud., and HUD gets it wrong again on emotional support animals – two is one too many.


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Quick Hits – What the courts are doing edition . . .

By in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees, ADA Internet Web, ADA Mootness, ADA Point of Sale, ADA Policies, ADA Web Access

Although you wouldn’t know it from watching the news many of the 677 federal judges in the U.S. are working on cases that don’t deal with how to count votes.  Here’s a look at what they’ve been up to.

Eleventh Amendment abrogation for ADA claims

In Natl. Assn. of the Deaf v. Fla., 2020 WL 6575040 (11th Cir. Nov. 10, 2020) the Eleventh Circuit held that Congress validly abrogated 11th Amendment immunity with respect to the State of Florida’s legislature, a holding that may eventually lead to a requirement that public legislative sessions be made accessible to those with hearing disabilities. The arguments are too complex for a Quick Hits blog, but it is notable that the Court found that Congress had the power to abrogate state immunity even when no fundamental right is at issue. The case seems destined for a newly constituted Supreme Court, so stay tuned. More


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OK, the new HUD regulations on disparate impact are a real tempest.

By in FHA, FHA Disparate Impact, FHA Regulation Tags: , , , ,

Tornado and lightningOn October 9, which seems like an eternity ago based on the number of emails and texts I’ve gotten asking for contributions to various political parties and politicians, I reported on HUD’s new regulations on disparate impact claims published on September 24. It was a counterpoint to the decision in Connecticut Fair Housing Center v. CoreLogic Rental Property Solutions, LLC, 2020 WL 4570110 (D.Conn. August 7, 2020) holding that third party service providers could violate the FHA. I had to update the blog on October 22 when the National Fair Housing Alliance and others filed National Fair Housing Alliance v. Ben Carson, Secretary of the Department of Housing and Urban Development, Case No.3:20-cv-07388 in the United States District Court for the Northern District of California. That lawsuit attacked the legality of the new HUD regulations on numerous grounds. (the Complaint is 66 pages long). It wasn’t the only lawsuit in the works though. On October 25, 2020 the United States District Court for the District of Massachusetts entered a Preliminary Injunction staying the effect of the new HUD rule. Massachusetts Fair Housing Center et al v. United States Department of Housing and Urban Development, Case No. 3:20-cv-11765 (October 25, 2020). Judge Mastoianni found that the changes constituted a “massive overhaul of HUD’s disparate impact standards” to the benefit of housing providers and the detriment of buyers and renters. Of the three grounds for ultimately overturning the regulation Judge Mastoianni relied on only one; that the new rule was “arbitrary and capricious.” He found that the regulation went beyond the Supreme Court’s decision in Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 576 U.S. 519, 524 (2015), the leading case on disparate impact under the Fair Housing Act. Thus, it could not be justified as an effort to align regulations with case law. He also rejected HUD’s other reason for the regulation – that it provided greater clarity – on the ground that the new rule was far from clear.

Because the ruling only concerns a preliminary injunction there is no final decision on whether the HUD rule is arbitrary and capricious. For a preliminary injunction the court must only find that the plaintiff has a “substantial likelihood of success on the merits.” The order can and probably will be appealed. In the meantime the new Rule is stayed and HUD is forbidden to implement it. Stay tuned.


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