Quick Hits – fall color edition.

By in Accessibility Litigation Trends, ADA, ADA - serial litigation, FHA Reasonable Accommodation, Internet Accessibility Tags: , , , ,

red mushroom on background of rocks

Fall mushrooms are beautiful, but also potentially poisonous, which is a real stretch for an analogy to the disability protection provisions of the ADA and FHA. Here’s a roundup of the latest decisions.

Website accessibility – let’s review

Roman v. Greenwich Village Dental Arts P.C., 2022 WL 4226026 (S.D.N.Y. Sept. 13, 2022) isn’t an extraordinary case, but it is a reminder that the law of website accessibility remains fractured. In this case the plaintiff’s only claim was that as a blind person he could not use the website of defendant dental office. He does not appear to have alleged he wanted to actually have work done on his teeth, just that he wanted to use the website. The Court recognized that some 2nd Circuit courts require that a website have a nexus with a physical business to be covered by Title III of the ADA, but held that because this website was associated with a physical business there was no doubt about coverage.  With that we can consider the various views:
  • Websites are covered by Title III of the ADA only as a service or means of communication for a physical place of business. That nexus requirement implies that to suffer an ADA injury from an inaccessible website the plaintiff must be seeking the goods and services offered by the physical business.
  • Websites are covered by Title III of the ADA when associated with a physical place of business, but a plaintiff can suffer an ADA injury from being denied access to the website regardless of whether they seek the goods and services of the physical business.
  • Websites are public accommodations covered by Title III of the ADA regardless of whether they are associated with a physical place of business, so a denial of access necessarily causes the plaintiff to suffer an ADA injury.

The first and third choices have their own logic, but the middle one makes no sense at all. An ADA injury arises when the plaintiff is denied access to the goods and services of a public accommodation. If the plaintiff has no interest in those goods and services then a denial of access causes no injury.² Decisions like  Roman v Greenwich Village Dental do nothing to help those with disabilities who might need access to the goods and services of a business but do help lawyers get rich and create the legal atmosphere in which some plaintiffs’ lawyers don’t bother with having a real plaintiff (see Antonini v. Nieves below). After all, if you don’t need a real injury to maintain a suit under Title III of the ADA why bother having a real person as plaintiff?

Speaking of fees . . . 

Brooke v. Harbor Suites LLC, 2022 WL 4234960, (9th Cir. Sept. 14, 2022) is a case that can be explained only as an effort by the plaintiff’s lawyers to keep their claim for fees alive. Brooke is a serial filer whose attorneys can be fairly said to operate an industrial scale ADA litigation business. This lawsuit claimed the defendant’s property lacked an access aisle. The district court dismissed her claims under California state law because it found the exercise of supplemental jurisdiction was not appropriate. Months later it dismissed her federal claims because they were moot, the access aisle having been installed. Why did Brooke, having gotten the hotel to do what she wanted, the appeal the dismissal of her state court claims? Money. She had the option of re-filing in state court seeking statutory damages and attorneys’ fees under state law. However, because she is a high-frequency litigant she would have faced a higher filing fee and other impediments created by state law. She almost certainly filed suit in federal court to avoid those impediments because when you are operating a high volume business maintaining low costs is a key to profitability (just ask Walmart). Serial ADA litigation creates huge waste in terms of legal fees paid because the litigation is driven by fees, not accessibility.

Another problem with industrial litigation. . . 

Elliott v. Mejia, 2022 WL 4120276 (C.D. Cal. Sept. 9, 2022) is one of several recent decisions dismissing an ADA claim for failure to timely effect service of process. It isn’t hard to file a lawsuit based on a form complaint, but it takes real work to track down a hard-to-find defendant, and real work is not what industrial litigation is about.

If it works it is good enough.

In Bax v. Doctors Med. Ctr. of Modesto, Inc., 2022 WL 4127522, at *7 (9th Cir. Sept. 12, 2022) the Ninth Circuit confirmed that under the Rehabilitation Act what constitutes effective communication depends on the circumstances. The plaintiff is deaf and in various interactions with the defendant hospital communicated with notes or was provided remote video ASL interpretation that sometimes did not work perfectly. The District Court found no violation after a detailed analysis of the facts and the Ninth Circuit confirmed that “We do not apply categorical rules to determine which auxiliary aids are required to achieve effective communication.” It is good news for businesses that must effectively communicate because it means there is no absolute requirement for ASL interpretation, remote or in person. It is also a reminder though that businesses must think about what constitutes effective communication in each particular context and be prepared, if necessary, to arrange for different means to communicate when hand written notes are not appropriate.

Burden of proof on “readily achievable”

Antolini v. Nieves et al.  2022 WL 4219655 (S.D.N.Y. Sept. 13, 2022) confirms that the plaintiff has the burden of proof on whether barrier removable is readily achievable, a burden that must be met with evidence at the summary judgment stage. Un-answered is the question of whether the plaintiff’s attorney, Stuart Finkelstein, will be filing future suits from jail since he “entered a guilty plea to one count of mail fraud, 18 U.S.C. § 1341, admitting to his filing of fraudulent lawsuits in the Southern District of New York and elsewhere.” He has not, however, been disbarred yet, it appears.

Do those with disabilities need more opioids?

Smith v. Walgreens Boots Alliance, Inc., 2022 WL 4126274  (N.D. Cal. Sept. 9, 2022) makes a clever argument that wasn’t quite clever enough. Boiled down to its essentials it goes like this. First, people who are prescribed lots of opioids are likely to be disabled. Second, Walgreens policy of discouraging its pharmacists from dispensing what look like excessive opioid prescriptions deprives those who have such descriptions of their drugs. Thus, the policy discriminates against those with disabilities in violation of the ADA. The Court was not persuaded. It found the policy did not facially discriminate because it treats those with and without disabilities equally. It found the policy did not have a disparate impact because both disabled and non-disabled individuals were equally deprived of their prescriptions. Finally, because the policy affected those with and without disabilities the same way there was no need for a “reasonable modification” to create equal access. The discussion of disparate impact is the most interesting part of the decision because it illuminates a principle that can be overlooked. The comparison in a disparate impact analysis is between those with and without disabilities who are affected by the policy, not between those with disabilities and the whole world. Walgreens’ policy had a greater impact on those with disabilities who had prescriptions for “excess” amounts of opioids than it did on those with an ordinary prescription or no prescription at all, but that’s because those people were not subject to the policy at all. The comparison had to be between those with disabilities and those without disabilities who had prescriptions for “excess” quantities, and between those groups there was no difference.

The cost of default

Brian Whitaker, Pl., v. D.S.A. Sports, Inc., Def.., 2022 WL 4280639  (N.D. Cal. Sept. 15, 2022) – $6,415.00 plus an order to remediate.
Gilbert v Gswar Inc., 2022 WL 4245325 (E.D. Cal. Sept. 15, 2022)   $5,984.25 plus remediation.

It’s tough to run a city, but that isn’t always an excuse.

Ramos v. Department of Homeless Services, 2022 WL 4234557 (S.D.N.Y. Sept. 14, 2022) is one of those lawsuits that drives city attorneys crazy. The plaintiff, appearing pro se, had any number of complaints about services offered to him as a homeless Hispanic. He lost his request for a preliminary injunction because, it appears, none of his claims had any merit at all. This was, however, the second go-round and of course the case remains alive even without immediate injunctive relief.

Keith v. City of San Diego, 2022 WL 4241271 (S.D. Cal. Sept. 12, 2022) on the other hand shows that even a pro se plaintiff may have enough of a point to keep her case alive. The plaintiff had been given a designated accessible parking space on the street in front of her home many years in the past in keeping with the city’s obligation under Title II of the ADA to provide accessible street parking.¹ Then the city decided to create a bike lane on the opposite side of the street and paint what the plaintiff said were some confusing arrows indicating cyclists could also use her side of the street, making it dangerous for her to enter and exit her car. Her complaint was not a model of clarity, but it was enough to defeat a motion to dismiss. Everything done to help one group of people (cyclists) has the potential to harm another. My only question would be why, since the plaintiff had a coherent complaint, the city dedicated so much time and effort to a battle in court that might have been solved with some paint on the street. First fix, then fight.

Finally, any municipal or state agency responsible for housing should pay careful attention to the recent settlement between the Housing and Urban Development and the Dallas Housing Authority.³ The City of Dallas agreed to pay $500,000 to a single individual who filed a claim of disability discrimination. The number is extraordinary: HUD’s other recent press releases announced settlements for $29,000 and $45,000 and a judgment for $70,000. However, if the facts in the press release are true the City really messed up. It isn’t hard to imagine how this might have happened. The first mistakes were by local managers whose compassion for tenants had been long since worn away by being paid too little to do too much for tenants that were often too demanding. When it escalated stubbornness set in and the us against them attitude commonly found in municipal service organizations took over. It reminds me of a line in a Raymond Chandler novel, The Continental Op, when the protagonist complains about having been roughed up by the police. To paraphrase; the problem – said the police lieutenant – is that this job calls for the highest kind of person, and nothing about the job attracts the highest kind of person.

 

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¹ The exact nature of municipal obligations with respect to street parking and sidewalks varies by Circuit. See my blogs ADA Title II – Maybe sidewalks aren’t services after all, Eternal liability under ADA Title – It’s what you don’t do that matters and Frame v City of Arlington, what’s wrong with this picture?

² For a more detailed explanation see my blogs Stigmatic injury and how the 11th Circuit got in wrong in Laufer v Arpan,  Laufer v Looper – the death of tester standing, and not just in ADA cases. Laufer v Looper – chapter 2 and Tester standing under the ADA – Getting it wrong, getting it right, and an interesting but irrelevant analysis.

³ HUD’s press release is at https://www.hud.gov/press/press_releases_media_advisories/HUD_No_22_166

 


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What Williams v Kincaid tells us about interpreting the ADA

By in Accessibility Litigation Trends, ADA, ADA Internet

Cover of DSM-5 hardback editionWilliams v Kincaid, 2022 WL 3364824 (4th Cir. August 16, 2022) is not the first case to consider gender dysphoria as a disability, and marks the second time the Fourth Circuit has considered the difference between gender identity and gender dysphoria.¹ However, as a circuit court opinion holding that gender dysphoria can be a disability covered by the ADA it has special prominence, not only because of its possible effect on individuals suffering from gender dysphoria, but also because of what it teaches about interpreting the ADA in light of changing science and technology and the possible need for updating the ADA’s definitions in light of those changes.

The ADA has a specific exclusion from the definition of disability for homosexuality and bi-sexuality (42 U.S.C. §12211(a) and for “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders” (42 U.S.C. §12211(b)(1)). Although these were treated differently in the statute, both exclusions appear to be based on the fear that employers and others would not be able to exclude LGBTQ people based on issues of sexuality.²

To understand the importance of Williams v. Kincaid as a guide to interpreting the ADA requires a little history. When the ADA was introduced in 1989 the Diagnostic and Statistical Manual of Mental Disorders III treated anything but traditional straight gender identity or behavior as a form of mental illness. The DSM is the standard reference for mental disorders, and because the ADA definition of disability begins with “a physical or mental disorder” it was not hard to see that gay, lesbian, bisexual, transsexual and other people might claim that the ADA prohibited discrimination against them based on questions of sexuality. This was morally abhorrent to many legislators and so the ADA was written with a specific exclusion from the definition of disability for homosexuality and bi-sexuality (42 U.S.C. §12211(a) and for “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders” (42 U.S.C. §12211(b)(1)). Although these were treated differently in the statute, both exclusions appear to be based on the fear that employers and others would not be able to exclude LGBTQ people based on issues of sexuality² and a belief that these behaviors represented a moral failing rather than a mental disorder.³ The only issue with the exclusion appeared to be that it might exclude individuals with HIV/AIDS because of the association of that disease with homosexual behavior. The exclusion remained after different legislators pointed out that HIV/AIDS was not limited to homosexuals. What the ADA ended up doing was excluding conditions that were regarded as mental disorders in the scientific community but which most legislators thought were merely moral failings.

The treatment of LGTBQ sexuality as a mental disorder continued in DSM IV, but the current version of the DSM – version 5 – no longer treats questions of sexual identity as a mental disorder. It recognizes instead that “gender dysphoria” can be a mental disorder because individuals whose sexual identity does not match their gender at birth may suffer from severe mental distress as a result. In the thirty years since the ADA was passed science has advanced and the notions about sexual identity current in 1989 are no longer considered to have a scientific basis. Note that this is not an observation about social change. Societal attitudes about LGBTQ individuals have also dramatically changed in the last thirty years, but the DSM understanding of sexual identity is based on science, not social change.

This brings us to the analysis in Williams v. Kincaid. Williams is a transgender woman who had lived for fifteen years as a woman and was shown female on her drivers license. She was diagnosed as having gender dysphoria and received hormone therapy as part of her treatment. When arrested and jailed she was originally treated as a woman, but later transferred to male prisoner housing in the county jail and otherwise treated as a man. She was denied her hormone therapy for at least two weeks and only received it irregularly after that. Not surprisingly she was mocked by male prisoners and suffered at least some abuse from male guards. After her release she sued under the disability discrimination provisions of the ADA and Rehabilitation Act. Kincaid, the sheriff, defended on the exclusion of transsexuality from the definition of disability under the ADA.

The Fourth Circuit rejected this defense based only on principles of statutory interpretation. In its simplest form the argument went like this:

  • transsexuality as used in the ADA must have been based on the definitions of mental disorders in the DSM III (4) in which it was one of several “gender identity disorders.”
  • “gender dysphoria” was not mentioned as a mental disorder in the DSM III.
  • DSM 5 no longer recognizes gender identity disorders, but does recognize “gender dysphoria” as a mental disorder.
  • therefore Congress could not have intended to exclude gender dysphoria from the definition of disability in the ADA.

In other words, Congress only intended to exclude what it knew to be mental disorders in 1989 and the exclusion in the statute could not be re-written to encompass a newly recognized mental disorder even if that mental disorder arose out of transsexuality. As the Fourth Circuit wrote:

Thus, the ADA excludes from its protection anything falling within the plain meaning of “gender identity disorders,” as that term was understood “at the time of its enactment.” Bostock, 140 S. Ct. at 1738. But nothing in the ADA, then or now, compels the conclusion that gender dysphoria constitutes a “gender identity disorder” excluded from ADA protection. For these reasons, we agree with Williams that, as a matter of statutory construction, gender dysphoria is not a gender identity disorder.

2022 WL 3364824, at *6 (emphasis added).
This is interesting enough, but does it have broader ramifications in interpreting the ADA? It should. After all, advances in science and technology since 1989 have not been limited to the understanding of mental illness. Courts arguing one way or the other concerning the application of the ADA to websites and internet based applications almost always assert that Congress never thought about the internet when the ADA passed because it was relatively insignificant at the time. The Fourth Circuit approach – what Congress didn’t think about it didn’t include – supports the law in the various circuits that find stand-alone websites are not places of public accommodation.(5)
This approach may also require re-thinking the meaning of phrases like “architectural barriers” or “communication barriers.” Is the definition of an architectural or communication barrier frozen in terms of assistive technologies available in 1989 or will improvements in technology change the way these phrases are understood? The same may become true of technologies that ameliorate a disability. Congress explicitly stated that the ameliorative effects of various physical devices would not be considered in determining whether a physical disability substantially limits a major life activity(6), but there is no similar provision for gene therapy, another technology not available in 1989. There may be a time when some mental or physical disorders are not reasonably considered disabling because of the effectiveness of new therapies that don’t fit the definition of “medication” in the list of things not to be considered when determining whether a disability exists.
The very high profile controversy about websites as public accommodation has prompted efforts at legislative change(7).The decision in Williams v. Kincaid tells us that this may not be the only statutory reform needed. In Williams v. Kincaid the Fourth Circuit was able to bring the ADA in line with modern medical practice because of a change in vocabulary, but that may not always be true. Congress went to a lot of much trouble to specifically exclude the ameliorative effect of different technologies without considering whether those technologies might, in the future, become the equivalent of “ordinary eyeglasses” whose effects can be considered. Courts can only do so much to bring an old law into a new millennium. Congress may need to do some work as well.

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¹ See my blog https://accessdefense.com/?p=5193#more-5193 for a discussion of earlier district court cases, and see Grimm v. Gloucester County Sch. Bd., 972 F.3d 586, 611 (4th Cir. 2020), as amended (Aug. 28, 2020), cert. denied, 141 S. Ct. 2878 (2021) for an earlier discussion of gender dysphoria discrimination.

² In the Congressional Record a poll showing widespread opposition to laws that would forbid discrimination against homosexuals was entered in the record on the same day the first draft of the ADA was presented. (C.R. 101 – May 9, 1989 at pp. 39, 138). The Fourth Circuit certainly viewed the ADA exclusion as evidence of discrimination in Grimm v. Gloucester County Sch. Bd. writing:

First, take historical discrimination. Discrimination against transgender people takes many forms. Like the district court, we provide but a few examples to illustrate the broader picture. See Grimm, 302 F. Supp. 3d at 749 (“[T]here is no doubt that transgender individuals historically have been subjected to discrimination on the basis of their gender identity, including high rates of violence and discrimination in education, employment, housing, and healthcare access.” (collecting cases)). As explained in the Brief of the Medical Amici, being transgender was pathologized for many years. As recently as the DSM-3 and DSM-4, one could receive a diagnosis of “transsexualism” or “gender identity disorder,” “indicat[ing] that the clinical problem was the discordant gender identity.” See John W. Barnhill, Introduction, in DSM-5 Clinical Cases 237–38 (John W. Barnhill ed., 2014). Whereas “homosexuality” was removed from the DSM in 1973, “gender identity disorder” was not removed until the DSM-5 was published in 2013. See Kevin M. Barry et al., A Bare Desire to Harm: Transgender People and the Equal Protection Clause, 57 B.C. L. Rev. 507, 509–10, 517 (2016). What is more, even though being transgender was marked as a mental illness, coverage for transgender persons was excluded from the Americans with Disabilities Act of 1990 (ADA) after a floor debate in which two senators referred to these diagnoses as “sexual behavior disorders.” See Barry et al., supra, at 510; see also 42 U.S.C. § 12211(b)(1). The following year, Congress added an identical exclusion to the Rehabilitation Act of 1973, “stripping transgender people of civil rights protections they had enjoyed for nearly twenty years.” Barry et al., supra, at 556; see also H.R. Rep. No. 102-973, at 158 (1992).

972 F.3d 586 at 611.

³ I found these in the materials collected at The ADA Law Project

(4) Although it did not survive into the final statute the DSM III was explicitly included in one of the early versions as part of the description of what was excluded from the meaning of disability. https://www.congress.gov/bill/101st-congress/house-bill/2273/text?r=7

(5) The Fourth Circuit has not ruled on this issue, but District Courts in the Circuit have held that stand-alone websites are places of public accommodation. The Ninth and EleventhCircuits say that stand-alone websites are not places of public accommodation and the Third and Sixth have excluded non-physical places of business in other contexts. The First, Second and Seventh have suggested in non-website cases they would extend the ADA to definition of public accommodation in ways that include websites. District courts in all but the Ninth and Eleventh Circuits have taken varying views of the question.

(6) 42 U.S.C. §12102.

(7) see my blog The Online Accessibility Act of 2020 – does it do what it needs to do?


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FHA and ADA Quick Hits – afternoon showers edition

By in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Internet Web, ADA Litigation Procedure, FHA, FHA design/build litigation, Internet Accessibility Tags: , , , , ,

August is (in Texas at least) the month of afternoon thunderstorms. It’s a good metaphor for running a business subject to the ADA or FHA. Everything’s sunny and warm one minute then suddenly the wind is blowing and you are soaking wet. But the plants need the rain, so as usual there’s good and bad in ADA and FHA developments.

Unruh Act and the Internet – half a loaf is better than none.

You can read a detailed analysis of Matinez v. Cot’n Wash in Bill Goren’s blog “Gateway is Everything in California” so I’ll just hit the highlights. There is an ongoing controversy about whether the Americans with Disabilities Act applies to the websites of businesses with no physical facility open to the public. Some courts say yes and some say no. The Ninth Circuit, which covers federal courts in California, says “no.” As result the most prolific serial ADA filers, including the Pacific Trial Group and Apex Trial Law¹ turned in recent years to California’s Unruh Act and the California state courts, arguing that the Unruh Act does cover online only businesses. At least some lower California courts have agreed, but in Martinez v. Cot’n Wash one California Appeals court (there are six in all) said no, holding that the Unruh Act does not apply to the websites of online only businesses. This is big news coming from a state where thousands of serial ADA lawsuits and even more demand letters are sent every year. It isn’t the end of the road. While the decision is binding on lower courts, it isn’t binding on other California appellate courts or on the California Supreme Court, to which Marinez v. Cot’n Wash is likely headed. It also doesn’t apply to websites associated with physical facilities open to the public so it is not likely to lead to an immediate end of demand letters and lawsuits. California’s ADA litigation industry relies more on the threat of costly litigation than on the reality of winning and losing so until making a threat is sanctionable (which will require that the California Supreme Court speak) they probably won’t slow down. It likely though that the price of settlement will go down as it already has in face of other less dramatic losses in the last couple of years.

And for a different view of website accessibility.

In Walters v. Fischer Skis U.S., LLC, 2022 WL 3226352, at *7 (N.D.N.Y. Aug. 10, 2022) a New York federal court agreed with many of its sister courts that the ADA does apply even to internet only businesses. It also rejected a standing challenge based on the plaintiff’s alleged history as a skier, which made it plausible that he would shop at a ski manufacturer’s website. ADA website litigation is far from over.

Hotel websites – good enough for DOJ is good enough.

A number of ADA serial plaintiffs have tried to advance the notion that a hotel website whose accessibility information meets DOJ regulations might still not be sufficient to satisfy the ADA. In Love v. Marriott Hotel Services, Inc., 40 F.4th 1043 (9th Cir. 2022) the Ninth Circuit agreed with what I think is the unanimous opinion that if a website meets DOJ requirements then it satisfies the ADA.(7) It didn’t take long for lower courts to agree and dismiss cases. See, Salinas v. IA Lodging San Diego, L.L.C., 2022 WL 3219409, at *5 (S.D. Cal. Aug. 8, 2022).

Treating everyone the same can be an invitation to litigation.

A pair of recent cases and a DOJ press release all remind businesses that they must accommodate(9) those with disabilities even if that means not following internal procedures and treating disabled patrons differently than others. The problem is illustrated Martinez v. County of Alameda, 2022 WL 3327924 (N.D. Cal. Aug. 11, 2022). Martinez was blind. When she tried to file an assumed name certificate with the county an employee told her that it contained errors and what they were. Because she could not fix the mistakes herself she asked the clerk and then a supervisor for help. They refused because the county had a strict policy that while clerks were required to point out mistakes and even let a patron correct them on the spot clerks could never provide any help at all to anyone beyond telling them what was wrong with their forms. The Court denied motions for summary judgment on both sides, finding the plaintiff had a viable claim for failure to accommodate discrimination and for a claim that the county’s policy had a disparate discriminatory impact on those with disabilities.  Treating everyone the same may not be good enough for the ADA.

The defendant did better in Williams v. Bank of Am., 2022 WL 3141863 (E.D. Cal. Aug. 5, 2022) perhaps because the plaintiff was pro se and didn’t present her case properly. Williams wanted Bank of America to stop escrowing her insurance and taxes for reasons related to her mental illness. The Court’s analysis was simple: Bank of America treated her exactly like everyone else and so there was no discrimination. What Williams wanted, of course, was not equality but an accommodation in the bank’s policies that she thought was necessary for her equal use of the bank’s services. Equality of treatment isn’t a defense in an  accommodation case; after all, the point is to get different treatment, not the same treatment. The bank probably would have won regardless because the accommodation requested related less to the plaintiff’s needs than to an obsession with written receipts, but like Alameda County banks and other businesses must remember that a policy that merely treats those with disabilities the same as those without might violate the ADA.

That brings us to a recent DOJ press release announcing a settlement of a claim that a state agency didn’t provide interpretation services to those with disabilities.² The settlement sets out DOJ’s three requirements for interpretation services; requirements that would apply to Title III public accommodations as well as Title II governmental entities:

  • There must be an ADA coordinator to make sure the ADA is followed
  • There must be contracts in place with interpretation services so the services can be readily supplied and
  • Everyone involved needs training so they understand the obligation.

It is a good outline for any business that might have sustained interactions³ with hearing disabled individuals, but the key is not the degree of bureaucracy and rules, but the awareness of employees that they must accommodate disabled clients and customers in a way that is suitable for the occasion. It isn’t enough to treat everyone equally or to strictly follow the rules; sometimes the ADA requires different treatment and breaking the rules to accommodate the needs of those with disabilities.

What’s the right price for accessible seating?

Another DOJ settlement, this time with the City of Denver as owner of the Red Rocks Amphitheatre (as well as various promoters) reminds theaters, concert venues, stadiums and others to be careful about pricing accessible seating.(4) I was recently at Red Rocks and understand (I think) the origin of the problem. The amphitheatre is set in the side of a mountain and it wasn’t easy to make seating accessible except along the edge of the plaza at the top and in the first row at the bottom. These are, respectively, the worst and best seats in the house. I don’t know the specific prices in question, but I would bet the complaint was that accessible locations in row 1 were charged at the usual premium price, meaning non-ambulatory concert goers had no less expensive alternative than the worst seats possible. Federal regulations do not require creating accessible seats where it isn’t possible to do so, but they do require that disabled individuals have available the full range of ticket prices. In other words, if you have different ticket prices based on how far back the concert-goer sits there must be some accessible seats at each price point even if the only seats are in the most expensive location. Since you can’t charge more for the bad seats I assume Red Rocks will be required to charge those at the top the cheapest price like the rows immediately below them, but divide the accessible seating in row 1 into different groups and charge for them as if they were at various levels higher up. There is no way to make this fair to everyone all the time. Somebody in row 1 is going to be paying the same price as those up in row 50 while the person next to them is paying the premium price of a row 1 seat. The good news is that this won’t happen often because accessible seating is mostly unused.  There are about ten times as many accessible seating locations as are usually sold based on the numbers in DOJ’s press release, so a full range of prices should be available most of the time.

Another FHA settlement based on badly built apartments.

A recent settlement of an FHA case brought by local advocacy groups should remind apartment developers that the FHA’s requirements for accessibility can’t be ignored although apartment designers and contractors often do so.(5) The problems listed are all problems I have seen in similar FHA lawsuits:

  • kitchens with insufficient room for wheelchair users
  • bathrooms with insufficient room for wheelchair users
  • sliding glass doors with thresholds too high for wheelchair users
  • mailboxes too high for wheelchair users
  • inaccessible public spaces.

Having seen these so many times I can almost guarantee many of the problems were caused by:

  • galley kitchens specified with exactly the minimum width so that when the contractor misplaced the cabinets by an inch or two, or used wider countertops, the kitchen became too narrow.
  • kitchens of any kind where the designer didn’t take into account the fact that standard refrigerators are deeper than standard countertops, so the refrigerator created a space that was too narrow.
  • the designer specified bathrooms at the minimum to meet FHA requirements without considering that an in-swinging door could not be closed by a wheelchair users.
  • the designer specified bathrooms at the minimum to meet FHA requirements so that mis-located walls made it too small or mis-located plumbing stacks put the toilet to close to or too far from the wall.
  • the contractor used standard sliding glass doors with a typical 1″ or higher lip, which is twice as high as the FHA standards allow.
  • no matter what the designer specified, the electrician installed a/c and heating controls at a height that is convenient to install, which is a foot higher than the maximum permitted by FHA standards
  • sidewalks leading to common use facilities were too steep
  • gates to pools had the opening mechanism too high (because local codes require child-proof mechanisms and making them high is the cheapest way to do this)
  • the approaches to gates and doors were not large enough to meet FHA standards
  • mailboxes were standard stock units that have many mail slots higher than the maximum allowed by the FHA(6)

Developers of multi-family housing (remember the FHA covers condominiums as well as apartments) must take into account how easy it is for designers to make mistakes and that their contractors believe in industry tolerances that may not apply in an FHA or ADA context. The name of the game in multi-family is often to create the maximum number of units in the minimum amount of space, and that leads inevitably to construction that doesn’t meet FHA requirements.

How equal is equal enough?

The discussion of standing in Barnes v. AKM Foods, Inc.,  2022 WL 3229832 (E.D. Cal. Aug. 10, 2022) illustrates but doesn’t resolve a common problem in ADA litigation. If equality is impossible, how close do you have to get? The plaintiff alleged that the path of travel from accessible parking to the restaurant in question was too long and had excessive slopes that made it difficult for her although she did make it in the door (where she was turned away because of her dog). The defendant said that since the plaintiff made it inside she suffered no injury from the length and steepness of the route, but the court was willing to say there was an injury alleged and declined to consider evidence related to the details. The ADA accessibility standards are supposed to eliminate the question of how equal is equal enough. If the physical route meets those standards it is good enough; if not it isn’t. The plaintiff’s subjective experience is (in theory) irrelevant. The problem in this and similar cases is that the plaintiff pleaded a subjective case and the court refused to consider objective evidence at the motion to dismiss stage. Plaintiffs should be required to specify that the supposed architectural barriers violated the 2010 ADA Standards and, to give defendants a chance to get out without unnecessary legal fees, courts should be willing to accept evidence of compliance with those standards at the earliest stages of the lawsuit.

Surrender as a strategy

A typical ADA serial filer case settles because the cost of defense exceeds the cost of settlement and, of course, the harder you fight the more attorneys’ fees must be paid if the plaintiff wins. Half of this problem can in theory be solved by an offer of judgment. Under federal procedural rules this offer cuts off the plaintiff’s ability to run up their fees provided that they win no more than they were offered. The problem is the plaintiff can turn down the offer and still force the defendant to spend money defending the case. In
Cuesta v. DTC Lodging LLC, 2022 WL 3212924 (D. Colo. Aug. 9, 2022) the defendant avoided this problem by a complete surrender. It made an offer of judgment, admitted to ADA violations, and then moved for a judgment against itself to cut off the plaintiff’s ability to prolong the case. And it worked. The district court, over the plaintiff’s objections, entered a judgment against the defendant. The plaintiff’s lawyers will get fees, but only what they can justify for doing almost nothing. There is a bonus as well. The terms of the court’s permanent injunction are probably too broad to be enforceable, so the plaintiff may have no ability to force the defendants to fix anything at all.

Why not make an offer of judgment in every case? It may not be the cheapest way out. I routinely settle cases where the total cost to my client is less than what it would cost to go through the procedural machinations in Cuestra.  There is also a risk that remediation will involve unexpectedly high expenses. This is always a problem in website cases where remediation costs are high and difficult to estimate.  It can also be a problem in physical accessibility cases unless the defendant has paid for an expert analysis of all the items needing remediation. If the plaintiff’s attorney insists that the court’s injunction be specific enough to enforce, the defendant has the possibility of crippling remediation costs. I see this strategy as a useful means to push the plaintiff into a cheaper settlement, but if that doesn’t work Cuestra shows how the defense can win a case by agreeing to lose it.

And fighting for the sake of the fight.

In Brooks v. Tapestry, Inc.,  2022 WL 3229779 (E.D. Cal. Aug. 10, 2022) the defendant did what I’ve done hundreds of times in substantial business lawsuits; that is, launched their defense with a barrage of affirmative defenses (22 to be exact) that left open the possibility of defending the case on every theory imaginable. The plaintiff, a well known serial filer, responded with an all out attack on the propriety of pleading these defenses, arguing in many cases that they were not technically affirmative defenses because the plaintiff had the burden of proof. The defense won this round, with the court allowing it to plead all but one defense that was merely a duplicate of another. What the decision doesn’t answer is why so much time and money was spent on these issues. It is almost certain the plaintiff would have settled for less than the attorneys’ fees spent on this one very preliminary procedural skirmish, and while that might have included an agreement to make the website in question accessible the defendants claimed it already was. As for the plaintiff’s response, attacking the pleading of an affirmative defense is almost certainly a waste of time. After all, what matters in the end is the defendant’s ability to prove their affirmative defenses, not their ability to put it in a pleading.

There are justifications for a scorched earth litigation strategy. Maybe the defendant wanted to show to other prospective plaintiffs that they should find other, easier prey to attack. Maybe the plaintiff wanted to prove their willingness to fight so other defendants wouldn’t try the same thing. Maybe there were other motives on both sides that we’ll never know. What I can say for certain is this strategy probably doesn’t make sense in any case where the defendant just wants to get out as cheaply as possible.

Holding plaintiffs to the same standard as defendants.

ADA lawsuits often rest on what are at best technical violations of the ADA standards – a ramp that is 1/2% too steep or a sign that is an inch too low. In Gastelum v. C. Valley Hosp. LLC,  2022 WL 3211747 (E.D. Cal. Aug. 9, 2022) the Court held the plaintiff  to a similarly rigid standard when he sought a default judgment against the defendant. After several tries the plaintiff properly served one defendant, but the motion for default judgment had been filed based on an earlier failed attempt and so the magistrate judge refused to recommend it be granted. This isn’t something any defendant should count on happening and default can be very risky, but it is nice to see the old legal principal “what’s sauce for the goose is sauce for the gander” in action.

Tenant v. tenant – what’s a landlord to do?

I found the decision in Hume v. Guardian Mgt. LLC, 2022 WL 3226992 (D. Or. Aug. 10, 2022) particularly interesting because a client asked me about a similar issue just yesterday. In Hume a disabled tenant made an escalating series of accommodation requests concerning reserved parking, the last of which was that her parking space have an access aisle next to it. The landlord drew the line at the last request because it would have meant kicking some other tenant out of their reserved spot. The Court agreed the last request for accommodation was not reasonable because of the effect on another tenant. The FHA should never require a landlord to grant an accommodation that has a direct negative impact on another tenant; after all, the cost of providing fair housing should not fall on innocent bystanders.(8)

When serial filers can’t win against an opponent who doesn’t show up.

Brian Whitaker is a typical ADA serial filer. In order to avoid making it obvious that he never intended to do anything but file a lawsuit his complaints are intentionally vague about where he lives in relation to the places he sues. In Whitaker v. Authentic Sole, LLC, 2022 WL 3327375 (E.D. Cal. Aug. 11, 2022) the Court refused to grant a default judgment in Whitaker’s favor because it did not have enough information to determine whether Whitaker had standing to sue. Whitaker gets another bite at the apple, but it isn’t clear being more specific will help his cause. When a complaint is vague about the truth the usual reason is that the truth hurts.

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¹ “Apex” is a popular name for law firms, including at least one other that handles disability law cases. I’m referring to Ryan Ferrell’s law firm.

² https://www.justice.gov/usao-edva/pr/goochland-powhatan-community-services-agrees-settle-americans-disabilities-act

³ businesses with only short term interactions of less consequence, like restaurants and retailers, can use more informal means of communication like notes.

(4) https://www.justice.gov/usao-co/pr/us-attorney-s-office-reaches-settlement-city-denver-and-concert-promoters-relating.

(5) I was not able to get the settlement itself, but an article about it can be found at https://www.syracuse.com/crime/2022/08/company-with-cny-apartment-complexes-agrees-to-pay-7m-to-settle-disability-lawsuit.html

(6) I’m not picking on this vendor, but the picture on their home page illustrates the problem. The maximum height for an accessible mailbox is 48″ which is probably shoulder height on the smiling gentleman at https://www.mailboxes.com/apartment-building-mailboxes/?gclid=EAIaIQobChMIlPCz9bnH-QIVH8LCBB0jzwFCEAAYASAAEgJg6PD_BwE

(7) If you search my blogs for “Reservations Rule” you’ll find most if not all the previous cases discussed at least briefly.

(8) See my blog The horns of a dilemma – landlords, tenants and emotional support animals under the FHA for a similar case. There is a difference between a direct harm to another tenant like taking away a parking space and the indirect harm every other tenant suffers when an animal is allowed as an accommodation in a “no pets” apartment complex. For landlords the difficulty is knowing what constitutes a direct harm in cases of conflict between tenants with opposing needs.

(9) There is a persistent vocabulary problem in discussing both the ADA and the FHA in the same blog. The ADA requires that covered entities “modify” their policies and procedures when it is necessary for the equal use of or access to their goods and services. The FHA requires that housing providers “accommodate” those with disabilities in the same way, and uses “modify” to refer strictly to physical changes in a dwelling. I use “acccommodate” in the FHA sense when discussing ADA matters because it seems to be readily understood, while using the word “modify” in ADA cases can lead to confusion.


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A victory on tester standing – lawsuit by Rafael Segovia dismissed.

By in ADA - drive-by litigation, ADA - serial litigation, ADA - Standing Tags: , , , , , ,

I’m not above patting myself on the back, and today Judge Sam Lindsay granted a Motion to Dismiss I filed for the defendant in Segovia v. Admiral Realty, Inc., Case No. 3:21-cv-2478 (N.D. Texas August 4, 2022). Judge Lindsay found, correctly, that Segovia had failed to plead the concrete and particularized injury and imminent threat of future harm required to maintain an action under Title III of the Americans with Disabilities Act.  Segovia and his lawyers¹ have filed the same form complaint in at least 31 lawsuits in the Northern District of Texas, and every single one of those cases that is still open should be subject to dismissal based on the same reasoning used by Judge Lindsay.² This isn’t, by the way, Segovia’s first setback. In June he voluntarily dismissed a lawsuit against another of my clients because he had made a fatal error when amending his complaint to avoid my original motion to dismiss. In July his attorneys voluntarily dismissed an almost identical complaint against one of my clients (though filed by a different serial ADA filer) rather than face the possibility of losing on summary judgment.

The conventional wisdom in the kind of serial ADA case filed by Segovia is that a quick settlement is the cheapest way out, but with Judge Lindsay’s opinion clients willing to take some risk could well decide they are not interested in paying off plaintiffs like Segovia whose industrial approach to litigation seems to be more about making money than helping those with disabilities.

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¹ He was represented in this case by William Strickland. He is represented in others by Matthew Sapp and Michael Sturgill of the Sapp Sturgill firm.

² Other District Judges are not obligated to agree with their colleagues, so other judges in the Northern District might reach a different result, but it is reasonable to hope other judges will appreciate the value of consistency among different courts when confronted with identical claims.


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What’s bugging HUD – the latest HUD actions based on disability

By in Accessibility Litigation Trends, FHA, FHA Emotional Support Animals, FHA Policies, FHA Regulation, Landlord-tenant, Policies and Procedures FHA ADA Tags: , , , ,

Seal of the Dept of Housing and Urban Development.HUD’s press releases are interesting reading, not because they help you understand the law, but because they help you understand what HUD thinks the law is, and because they are often object lessons in mistakes no housing provider should make. This is a round up of press releases in the last four or five months, each of which has its own lesson to teach. I’ve also included a discussion of HUD’s guidance on animal accommodations at the end based on Bill Goren’s recent blog on the subject.

Conditions on an animal accommodation are o.k., but there are limits.

HUD has charged an HOA in Wyoming with discrimination because while a housing provider like an HOA can impose reasonable conditions on an accommodation, it cannot impose unreasonable conditions. See. https://www.hud.gov/press/press_releases_media_advisories/HUD_No_22_134 It’s worth taking a look at where this HOA went wrong, at least as HUD sees it, so others can avoid the same mistakes.

The first problem was the HOA’s evident hostility toward requests for accommodation for animals of all kinds. Instead of just asking homeowners who required an accommodation to request one, the HOA made a point of noting that it is a criminal violation of Wyoming law to misrepresent a service animal and specifically noting that other residents “do not like to see dogs” in the development. There is nothing wrong with a no-pets policy, but evident hostility towards those with disabilities is an FHA violation.

A second problem was inflexible demands for documentation in a specific form. Housing providers can request that a specific form be used for an accommodation request, but if the request comes in some other form it has to be evaluated in just the same way as a request on the right form. The specific requirements imposed by the HOA concerning the kind of information it needed were probably reasonable, but insisting that only a particular form be used to provide the information will never be acceptable to HUD.

Third, and probably most important, the HOA decided to retaliate against the complaining parties when they filed a complaint with HUD. As soon as the complaint was filed the HOA sent a letter to all residents criticizing the complaining parties for filing the complaint and suggesting that they lied about the status of their dogs. Nobody likes being on the receiving end of a HUD complaint, but the place to fight back is the investigation or litigation, not a public forum or some kind of public shaming. No matter how annoyed a housing provider is by a complaint that is or seems to be unjustified it will always be illegal to retaliate in any way. In fact, many complaints that originally had no merit at all turn into to very strong retaliation claims because of the response of the housing provider. It isn’t clear from the HUD charge of discrimination whether the HOA was represented by counsel, but an experienced FHA lawyer would certainly have advised them that they were going to have problems with HUD if they behaved as claimed in the charge of discrimination.

Being an awful person is likely to lead to a HUD charge or fine.

In early July HUD announced a $70,000 fine against a landlord who allegedly refused to rent to a family because their daughter had cerebral palsy and who had a history of posts on social media that expressed a prejudice against all children. https://www.hud.gov/press/press_releases_media_advisories/HUD_No_22_131 The landlord didn’t appear to defend himself, so we only have HUD’s side of the story, but the lesson is clear. It isn’t against the law to be an awful person and hate people because they are disabled, but it is against the law to act out your awfulness as a landlord or housing provider. Landlords and other housing providers make mistakes, often because HUD’s internal standards don’t make any sense at all or because they don’t understand the law. There is, however, a difference that should be obvious to most people between a mistake and outright intentional discrimination.

Along the same lines, HUD resolved a charge of discrimination against a condominium management company that refused to waive its two person per bedroom limit for a family that needed temporary housing while one of the children had a bone marrow transplant. This was a settlement and we don’t know the management company’s side of the story, but it cost them more than $35,000 plus whatever they spent on lawyers after the complaint was filed. Reasonable occupancy limits are not discriminatory, but when a disabled child requires an accommodation landlords and HOAs need to think carefully about the optics and cost of refusal. https://www.hud.gov/press/press_releases_media_advisories/HUD_No_22_109

Being awful plus a mistake? There’s a lesson here.

On July 1 HUD announced a conciliation agreement with a landlord that allegedly engaged in race and disability discrimination. https://www.hud.gov/press/press_releases_media_advisories/HUD_No_22_122. Once again we only know HUD’s side of the story, but the disability discrimination claim is based on a situation that comes up all the time. The disabled tenant asked for a reserved parking space, presumably to shorten the distance from their parking space to their front door. The landlord refused, probably because of a no reserved parking policy. Providing a reserved parking spot is one of those accommodations that HUD, DOJ and the       courts will almost always consider reasonable. There may be room to argue about whether the tenant is disabled or has a disability related need, but otherwise a refusal to provide reserved parking for the tenant is likely to trigger a finding of cause.¹

Service animal issues again, and the cost of being the bearer of bad tidings

HUD issued a charge of discrimination against a landlord and their leasing agent with disability discrimination because they refused to allow a blind woman’s guide dog due to a no pets policy. https://www.hud.gov/press/press_releases_media_advisories/HUD_No_22_087 This isn’t even a close call for a reasonable accommodation, but what apartment and HOA managers need to note is that the leasing agent was also charged even though it doesn’t appear she did anything but relay the owners’ position on the lease. I’ve blogged about this before² and the lesson is worth repeating. If you are a leasing agent or manager and your owner insists that you carryout their discriminatory orders your best bet is to quit because otherwise you may have personal liability.

Design/build liability – reasonable modification for out-of-compliance buildings.

I recently settled a small dispute with a landlord that wanted a tenant to pay for the curb ramp needed for them to access their apartment. The landlord messed up, but their lawyers knew that when an apartment complex is covered by the FHA design/build standards then modifications to make it meet those standards are at the landlord’s expense. This isn’t an uncommon problem it seems since HUD just resolved a similar dispute with property owners in Hawaii. https://www.hud.gov/press/press_releases_media_advisories/HUD_No_22_080 The rules are not complicated, but if you aren’t sure talk to a lawyer before you turn down an modification request. Here they are:

  • For housing built before the effective date of the 2008 FHA Amendments the tenant bears the cost of accessibility modifications.
  • For housing built after the effective date of the 2008 FHA Amendments the tenant bears the cost of accessibility modifications if they are something in addition to what the FHA standards require.
  • For housing built after the effective date of the 2008 FHA Amendments the landlord bears the cost of accessibility modifications needed to bring the property into compliance with the FHA standards.

This last point applies even if the current owner is not liable for the original failure to build the apartments correctly. Another a good reason to require an accessibility survey before acquiring multi-family housing.

HUD believes in the interactive process – so should you.

HUD issued a charge of discrimination against a landlord and management company for refusing to even consider an accommodation for an “assistance animal” that would have violated a no pets policy. https://www.hud.gov/press/press_releases_media_advisories/HUD_No_22_078 What stands out in this case is that the owners did not even start the accommodation process. I have real doubts about whether most or any assistance animal (as opposed to service animal) claims are legitimate because there is essentially no scientific support for the notion that emotional support animals provided needed help to those with various mental health disabilities. I’ve also found that most of the individuals requesting an accommodation for an emotional support animal are probably not suffering from a mental disorder that constitutes a disability. Having said that, refusing to even look at an accommodation request is going to trigger a charge of discrimination in every case. Refusing to engage in the “interactive process” is not discrimination according to the courts, but HUD believes it is and it is a long and expensive road from dealing with a charge of discrimination before HUD and finding a federal court that applies the law as written.³

Just how much deference should the courts give HUD’s guidance on assistance animals.

Bill Goren just blogged on the technical issue of the degree of deference courts should give HUD’s guidance on assistance animals (4) which reminded me of a general misunderstanding of reasonable accommodation law that lies behind some of the cases above. Bill asks the specific question of whether HUD’s belief that breed restrictions are not a valid reason to deny an accommodation would be deferred to by the courts.  Breed restrictions get a lot of attention in the animal accommodation world, but the discussion usually misses the point. A breed restriction is just another rule that might have to be waived as a reasonable accommodation, and there is no such thing as a generic dangerous dog. Pit bulls may be more dangerous or aggressive than other breeds in general, but the only pit bull a landlord will be asked to accommodate is the specific pit bull belonging to a disabled resident. If it is a sweetheart then the characteristics of the breed don’t matter. I advise my clients to interview the dog as part of the accommodation process. If it barks and snaps at a stranger it might be dangerous regardless of its breed and if it is calm and placid the opposite is true. In addition, it is always possible to put conditions on an accommodation if necessary to make it reasonable. Just because a dog is allowed despite a no pets policy the landlord isn’t required to let it or the owner do anything they want. With rare exceptions you can require a dog to be on a short leash, only be in specific areas outside the apartment, not make noise or disturb the neighbors and so forth. Every accommodation request has to be determined based on the specific circumstances, including the nature of the disability, the behavior of the dog, the kinds of places the dog may need to go, or not need to go, in order to fulfill its function, and so on. When HUD says things like a landlord cannot impose breed restrictions or cannot charge a pet deposit HUD is making the same mistake landlords who impose hard and fast rules on accommodations make; that is, it is failing to recognize that the principle of reasonable accommodation is always based on balancing the tenant’s need against the landlord’s responsibilities and needs in an effort to find a compromise that works for everyone involved. Given the huge diversity of disabilities and disability related needs trying to impose hard and fast rules on accommodations is absurd. Bureaucrats and businesses both love rules, but this is a situation in which rules just cause problems.

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¹ There is a difference between parking

² See, Shoot the messenger! Agent liability under the Fair Housing Act

³ I’ve blogged about recent cases holding that failure to engage in the interactive process is not itself actionable discrimination. FHA and ADA Odds and Ends

(4) See, Upon Further Review, the HUD Circular Just Might Survive Kisor as well as EPA v. West Virginia and be Given Judicial Deference I have blogged on this issue as well. See, Auer deference and the Fair Housing Act – does Kisor change anything?

 


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