What’s wrong with this picture? You can be excused if you don’t immediately think, “no accessible parking,” but that might be the first thing that would come to mind for the defendant in Langer v. G.W. Properties, L.P., , 2016 WL 3419299, (S.D. Cal. June 21, 2016). Langer serves as a reminder that a business not usually covered by the ADA can become a “public accommodation” based on temporary use, and that this may lead to requirements for permanent changes. Commercial enterprises and apartment complexes should pay attention, as should any owner of raw land that allows it to be used for parking from time to time.
A news story about a children’s theater group caught my eye this week because it so vividly illustrates the trouble a business can get into if it does not understand the law of reasonable accommodation under the ADA. You can read the story HERE. In brief, a potential theater member with a severe peanut allergy requested that the theater have a “no nuts” policy and that the director be willing if necessary to help the child with his epi-pen. The owner declined and probably said some unfortunate things about the request. Eventually the DOJ got involved and now, unless the matter settles, everyone will be off to court.
What went wrong? First, it is clear that the theater director did not understand the reasonable accommodation obligation and even more important, did not understand the “interactive process” that the ADA regulations encourage.* The name of the game in reasonable accommodation is trying to find a solution to the problem presented. A requested accommodation is not something to be accepted or rejected; it is something to be talked about. For a business this has the value of creating the appearance of reasonableness and, even more important, the opportunity to think about the issue carefully. In this case the first requested accommodation – making the theatre nuts free – is about as cheap and easy as it gets. All the theater owner had to do notify other parents that nuts were forbidden.
The second accommodation – willingness to use the child’s epipen – was more problematic. Many organizations are reluctant to administer prescription drugs. In a litigation happy society, it just seems like too big a risk to take. Here too, though, simply thinking through the problem and doing a little on-line research would have led to a different result. First, it only takes a little time with the internet to find that the Department of Justice has been suing or investigating child oriented business about epipens for more than 15 years. Unless you really want to take on Uncle Sam about whether peanut allergies are a disability** the battle isn’t worth fighting.
Perhaps more important, it seems likely that the theater already had a general release of some kind that all the parents had to sign. The owner’s demand for a special waiver of liability might not have been necessary and certainly looked like discrimination against one particular child based on a disability.
Finally, it would have been worth while to think through when an epipen is to be used. Epipens are for emergency use, and in many ways a child or adult in anaphylactic shock is like a person who has suffered a severe wound. Would the theater director really stood by and watch a child suffer because he didn’t want the risk of liability? Probably not. The refusal in advance to do something he would have done in the event of an emergency was pointless.
The moral of the story? Consider every request for accommodation as an invitation to try to solve a problem, and then think through – perhaps with the help of a lawyer – what risks would come from granting the accommodation and what risks might come from denying it. Reasonable accommodations are all about being reasonable, and that requires knowledge and a rational analysis of the various risks and costs involved.
* The “interactive process” is best defined in employment cases under Title I of the ADA and landlord tenant cases under the Fair Housing Act, but courts apply it in Title III cases as well.
**Many courts hold that food allergies are not disabilities. (See my blog HERE) DOJ disagrees, and the Supreme Court has not opined on the subject. Since DOJ will fight and has unlimited resources it isn’t the best opponent to take on with respect to this kind of claim.
My clients often ask about whether doing a survey to determine ADA or FHA compliance will simply set them up for damages based on a “knowing” violation of the disabilties laws. My advice is almost always no, because the ADA and FHA are no-fault statutes when it comes to physical accessibility. Ignorance is no defense. A recent case from a district court in Pennsylvania looks at the same problem in a different way: Can ADA or FHA surveys be protected from disclosure as attorney work product or even privileged documents. Heinzl v. Cracker Barrel Old Country Store, Inc., 2015 WL 6604015, at *1 (W.D. Pa. Oct. 29, 2015). I think it is worth asking another question — do you want these documents to be privileged? 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.