The picture on the left is of a ParaGolfer – a mobility device that helps the disabled user stand up to play golf or engage in other sporting activities. The base price is around $34,000, and a pair of recent decisions from California, Nevarez v. Sumavision SFO LLC, 2018 WL 827969 (N.D. Cal. Feb. 12, 2018) and Nevarez v. Canyon Lakes Golf Course & Brewery LLC, 2017 WL 5479649 (N.D. Cal. Nov. 15, 2017) suggest that every golf course in America may be legally obligated to buy one or more of them. These decisions raise an important question about the interaction of preference, necessity and equality in providing equal access for the disabled. The cases were wrongly decided based on sloppy reasoning, but before discussing the law let’s take a look at golf cart technology. More
Accessibility Litigation Trends
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Internet, ADA Internet Web, ADA Web Access Tags: ADA, ada litigation, Credit Union, CUNA, WCAG 2.0, Website litigation
It seems that CUNA, the Credit Union National Association has been slaying the dragon of serial website accessibility litigation.* In fact, the filing of a CUNA brief recently caused the plaintiff to just give up, dismissing the case voluntarily rather than face another unfavorable decision.** Looking at why CUNA has succeeded when the history of website litigation is mostly a story of defense failures points to an important rejection of standing based on dignitary harm, a rejection that may give defendants in non-credit union cases a useful argument of their own. More
On March 27 Richard was interviewed by the Morning Dose program on the CW network concerning the Facebook lawsuit about which we blogged yesterday. You can watch the story using this link: Facebook Being Sued for Alleged Discrimination with Housing Ads. Since the interview and our last blog we’ve continued to find fascinating and disturbing ramifications of the legal theory on which National Fair Housing Alliance v Facebook case is based. For example, one way to illegally discriminate is by geography. HUD has sued cities that ghettoize subsidized housing by putting it only in traditionally minority neighborhoods. A more subtle form of the same kind of discrimination could take place using zip codes for ad placement because there is widespread residential segregation in most cities. Affluent zip codes are mostly white, poor zip codes will be disproportionately inhabited by minorities. When we took a brief fling at internet advertising a few years ago the first thing our agency offered was targeting ads by zip code, which is apparently easy to do in an automated way. We were aiming at an affluent audience, and the relevant zip codes were easily identified. We wanted affluent readers, but one effect was certainly that we mostly got white readers. If we had been advertising housing the legal theory in the Facebook case would allow a claim that the ad agency illegally facilitated discrimination by providing a filter that would, as a practical matter, make sure our advertisements were seen mostly by whites. Of course the information about demographics came from other sources, including the Census Bureau. The theory of the Facebook case would allow an argument that those sources of information are facilitating illegal discrimination based not on the information they provide, but on how it is used. Facebook is taking a lot of lumps these days, but no matter what you think of Facebook, the consequences of the Facebook litigation will reach much farther than its own advertising practices.
Yesterday (March 27, 2018) the National Fair Housing Alliance and other fair housing groups sued Facebook for alleged violations of the Fair Housing Act.* The lawsuit seeks a sweeping expansion of the FHA by creating liability for those who “facilitate” discrimination even though they do not engage in it directly. The issue is not new, but the effort to hold Facebook responsible for its advertisers is.**
First though, a little background. Section 804(c) of the Fair Housing Act (42 U.S.C. §3604(c)) prohibits making, printing or publishing discriminatory advertisements. This prohibition can apply not only to the person who places the ad, but also to the person who prints or publishes it. When Facebook puts an ad on someones Facebook page it is publishing the ad, and so it could have some responsibility if the ad is discriminatory. More
In Gathers v. 1-800-Flowers.com, Inc., 17-CV-10273-IT, 2018 WL 839381, at *1 (D. Mass. Feb. 12, 2018) the defendant raised just about as many legal defenses as might be available in a motion to dismiss, but they all failed. Behind the failure is the difficulty present in all ADA cases; that is, the plaintiff’s allegations are really all that matters at the beginning of the case. In many cases the most cost-effective strategy is to remediate as needed to meet the plaintiff’s claims and then file a Motion for Summary Judgment. First Fix, Then Fight is our motto and the best game plan in most ADA cases. More