On August 11, 2016 the Department of Justice finally issued its regulations implementing the expanded definition of disability contained in the 2008 Americans with Disabilities Act Amendments. The actual content of the regulations, which apply to Titles II and III of the ADA, will already be familiar to most businesses because they are intended to be consistent with the EEOC’s 2011 regulations implementing the 2008 ADAA for Title I. Equally important, they appear after eight long years of lawsuits brought under the 2008 ADAA in which the courts and litigants had to wrestle with the meaning of the statute. More
By Richard Hunt in ADA, ADA - drive-by litigation, ADA - serial litigation, ADA FHA Legislation, ADA Internet, ADA Internet Web, ADA Miniature Horses, ADA regulations, ADA rulemaking, ADA service animals, DOJ, Uncategorized Tags: ADA service animals, miniature horses, service animals
“The Arizona Legislature altered laws this year that govern those service animals, specifically allowing businesses, especially restaurants, to tell an owner the animal must be removed if it is out of control or not housebroken.”
(Click here for complete article). This is interesting because the “altered law” does not appear to change anything. Under both the ADA and its Arizona equivalent businesses have always been entitled to exclude service animals that are out of control or not housebroken. Other details in the new law are also consistent with existing federal regulations concerning service animals. More
By Richard Hunt in Accessibility Litigation Trends, ADA Internet, ADA Internet Web, ADA regulations, ADA Web Access, Internet Accessibility Tags: ADA Internet, ada litigation, ADA web, WCAG 2.0, World Wide Web
I wish that this were one of those satires found The Onion and similar publications. On April 25 at 3:00 a.m. Central Time the Department of Justice announced a new “Accessible Technology” section in the DOJ’s ADA website (http://www.ada.gov/access-technology/index.html). The new web page is supposed to:
“assist covered entities and people with disabilities to understand how the ADA applies to certain technologies, such as Web sites, electronic book readers, online courses, and point-of-sale devices.” More
Just a quick note concerning obesity. In an April 5, 2016 decision the Eighth Circuit joined the Sixth and Second Circuits to hold that even morbid obesity is not a disability unless it is accompanied by an underlying physiological disorder or condition. Morriss v. BNSF Ry. Co., 2016 WL 1319407, (8th Cir. Apr. 5, 2016). The Court’s discussion is thorough, but boils down to a straightforward reading of the ADA. The definition of “disability” in the ADA starts with the phrase “physical or mental impairment.” EEOC regulations define “physical impairment” as a “physiological disorder or condition,” and its interpretive guidance, according to the Court, states that weight is only a physical characteristic, not a physiological disorder, unless it is the result of some other physiological disorder. Obesity as the result of a thyroid disorder is a disability; obesity as a result of eating is not. Konishiki, the famous sumo wrestler, is not disabled.
The decision is notable as the first circuit court decision in a case decided after the 2008 ADA Amendments went into effect. The Amendments were broadly intended to expand ADA coverage, and there was some belief that morbid obesity would fit the more liberal standard. This does not mean the law is uniform. Some lower courts have found that morbid obesity is a disability in and of itself. Employers who want to rely on Morriss v BNSF Ry. need to make sure it is the law in their circuit, and carefully consider whether the obesity in question is not the result of some other disorder or condition.
I reported in September on the decision in Phillips v. P.F. Chang’s China Bistro finding that a plaintiff with celiac disease had not stated a claim for discrimination under the ADA based on P.F. Chang’s policy of charging $1.00 extra for gluten free meals. On November 23, 2015 the same court found that the plaintiff had stated a claim based on an enhanced set of allegations in her Amended Complaint. Phillips v. P.F. Chang’s China Bistro, Inc., 2015 WL 7429497, at *1 (N.D. Cal. Nov. 23, 2015). This is a very common pattern in ADA litigation: Once the plaintiff knows what to say, he or she is almost always willing to say it in order to get past a Motion to Dismiss. For restaurants and their owners this latest decision requires some thought and possibly the adoption of new policies concerning menu items. More