Marianne Wilson of Chain Store Age Media reported that a new effort at ADA litigation reform, the “ADA Education and Reform Act of 2015”, H.R. 3765, was introduced on October 20, 2015, by Representatives Ted Poe (R-TX), Doug Collins (R-GA) and David Jolly (R-FL). Like previous attempts to amend the private remedy provisions in the ADA this one requires notice and opportunity to cure as a prerequisite to a private lawsuit. I won’t speculate on the odds that it will pass in the current legislative climate, but it does provide a reason to look at real problems with private ADA enforcement, none of which are addressed by this legislation. Instead of treating plaintiffs as the problem, Congress should look at defects in the ADA and the way the courts interpret it. More
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Thanks blog is thanks to Ken Besserman, General Counsel of the Texas Restaurant Association, who sent me this link to an article about an announced Department of Justice investigation of restaurants in Houston, Texas. Twenty-five popular restaurants will be investigated for ADA violations over the next several months.
This investigation is worthy of note for several reasons. First, none of the restaurants is the subject of any specific complaint. Instead the investigation was timed to coincide with a symposium of civil rights advocacy groups. This is a good reminder for all businesses that the power of the Department of Justice to investigate possible ADA violations does not require that DOJ wait for a specific complaint. A business thinking that it won’t be targeted because it seems to have no disabled customers needs to know that DOJ doesn’t need a disabled complaining party in order to enforce the ADA. More
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA Attorney's Fees, ADA FHA Litigation General Tags: ada litigation, ADA pleading, ADA standing, private lawsuits, private litigants, restaurants, retail, serial plaintiffs
This post was inspired by an article forwarded from fellow ADA blogger William Goren, whose blog contains excellent analysis of current cases. The article describes a Florida hotel’s fight against a local serial ADA complainant who, it appears, may be afraid to go to trial on the lawsuit he filed. It isn’t clear how the case will end, but the defendant has William Norkunas on its side. Norkunas is himself a frequent ADA plaintiff and has served as an expert witness in more than a thousand cases. He is clearly an advocate for ADA enforcement, but is quoted as saying that the plaintiff in this particular case is operating a “continuing criminal enterprise that boils down to extortion.” More
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA Attorney's Fees, ADA FHA Litigation General, ADA Policies, Policies and Procedures FHA ADA, Restaurants, Retail, Shopping Centers Tags: ada litigation, ADA Policies, private lawsuits, restaurants, retail
One of the many ADA risks that businesses face is the risk of sliding into non-compliance through maintenance failures. This seems to come up most often in the context of parking, because the markings required for accessible parking are exposed to the weather and to wear from car tires. I recently settled a case of this type, and a reported opinion from California was a reminder of how important maintenance can be.
In Lozano v. C.A. Martinez Family Ltd. P’ship, 2015 WL 5227869, at *4 (S.D. Cal. Sept. 8, 2015), the complaint concerned nothing more complicated than striping accessible parking. The paint had faded and on repeated occasions over months the access aisles were blocked. As soon as the lawsuit was filed the owner repainted, but that was too late for the Court, which found that a policy of re-striping that apparently had not been followed would not let the owner escape an injunction and, of course, paying fees to the plaintiff’s attorney. More
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA Policies, Restaurants, Retail Tags: ada litigation, ada violation, allergies, Department of Justice, gluten free, P.F. Chang's, private lawsuits, restaurants
Many restaurants have responded to consumer demand by offering various alternative menu items to satisfy special dietary needs or desires. One of the most popular is gluten free alternatives for those who need or want a gluten free diet. A recent case from California makes it clear that these options are not required by the ADA, and that many dietary restrictions are not disabilities covered by the ADA.
Phillips v. P.F. Chang’s China Bistro, Inc., 2015 WL 4694049, at *9 (N.D. Cal. Aug. 6, 2015) concerned a claim by a plaintiff with celiac disease who was unhappy with the fact that P.F. Chang’s charges $1.00 more for various gluten free alternative menu items. She claimed, in a nutshell, that celiac disease is a disability and that the additional $1.00 charge was discriminatory under the ADA. The Court rejected both ideas.
Whether an allergy or food intolerance constitutes a disability under the ADA depends on the particular allergy and its effect, but in general even serious allergies do not constitute disabilities if the consequences can be avoided by observing a restricted diet. The Court did not find any cases dealing with celiac disease, but compared it to nut allergies, which require nothing more than avoidance of nuts. (Citing Slade v. Hershey Co., 2011 WL 3159164 (M.D.Pa. Jul. 26, 2011)).
The Court did recognize a DOJ settlement with Lesley University that is predicated on the idea that celiac disease and other food allergies are disabilities; however, it referred to it for a completely different part of the analysis. Courts addressing allergy issues generally find that even allergies causing severe reactions are not disabilities because they do not substantially limit a major life activity. For example, a latex allergy may make it difficult for an individual to study nursing, but it does not impair the ability of the person to learn generally (Webb-Eaton v. Wayne Cnty. Cmty. Coll. Dist., 2013 WL 3835208, at *4 (E.D. Mich. July 24, 2013). Restaurants can reasonably conclude that food allergies are not disabilities under the ADA in most circumstances, despite DOJ’s contrary belief.
The Court in Phillips v. P.F. Chang’s also rejected the idea that a $1.00 additional charge was discriminatory. The discrimination inquiry came in two parts. First, was the restaurant required to provide meals that those with allergies could enjoy and second, was the $1.00 charge an illegal surcharge imposed on the disabled.
With respect to the first question the Court did address the DOJ’s settlement with Lesley University, and in particular an Information Sheet concerning the settlement issued by DOJ. DOJ recognized that the students at Lesley University, unlike the patrons of a restaurant, had no alternative to the University’s mandatory meal plan. DOJ agrees that ordinary restaurants are not required to provide any special foods to meet particular dietary needs, which is consistent with the more general principle that a public accommodation does not have to add to the goods and services it offers in order to accommodate the disabled. (See, 28 CFR Part 36, Appendix B at p. 224).
As for the surcharge, a higher price for goods and services is improper only if the price applies only to the disabled. For example, selling plus-sized clothing at a higher price is not discrimination against the obese (who may in some cases be disabled) because the same price applies no matter who buys the clothes. (See,Anderson v. Macy’s, Inc., 943 F. Supp. 2d 531, 537 (W.D. Pa. 2013)). P.F. Chang’s one dollar surcharge applied to all customers wanting a gluten free dish, and so it was not discriminatory.