Every few months another district court confronts the inherent tension between private enforcement of laws like the ADA and the standing requirements for individual litigants in the federal courts. The Constitution regards private lawsuits as a means to vindicate private rights, and the constitutional requirements for private litigants make an uneasy fit with the goal of promoting public policies concerning accessibility for those with disabilities. The Constitution requires that a private litigant have “ standing,” which means that the party ust have suffered an injury caused by the defendant that the courts can somehow fix. In ADA litigation neither the injury nor the court’s ability to fix it may be obvious. The result is a mishmash of inconsistent approaches to standing that leaves little certainty for litigants. More
Accessibility Litigation Trends
There’s a new sheriff in town – you
In late July two lawsuits were filed in the Northern District of Texas that make a radical new claim under the ADA. The plaintiff claims that store owners violated the ADA by failing to keep those without disabilities from parking in accessible parking spaces. Just how the property owner is supposed to keep accessible parking free from poaching isn’t entirely clear. There is a suggestion that the owner should call the police, but the same lawyers also sued the City of Burleson claiming that was violating the ADA by failing to enforce accessible parking laws. If the owner calls the police and they don’t come has he done enough?
Also left unanswered is question of how much personal risk the owner or its employees are supposed to undertake in the cause of disability rights. Short of a polite request to the authorities there isn’t much an owner More
What Kind of Place Is Cyberspace?
By Richard Hunt
Two decisions from opposite ends of the country highlight an unresolved issue that should be of real concern to many businesses. In the Northern District of California Netflix persuaded the Court to dismiss an ADA complaint based on the lack of subtitles on its streaming video content. The reason was simple – a “place of public accomodation” within the meaning of the ADA only applies to physical, not virtual places. Thus, as a practical matter services offered through the web are exempt from the accessibility provisions in Title III of the ADA. At almost the same time the District Court in Massachusetts refused to dismiss an ADA claim against Netflix. The Massachusetts court had no trouble finding that cyberspace can be a “place” covered by the ADA. More
Caveat Emptor – Buyers of post 1991 properties may take on design/build liability
That may be a bit extreme, but recent cases from Florida and Indiana hold that merely owning an apartment complex that is not in compliance with the accessibility requirements of the Fair Housing Act will require the owner to bring the entire complex into compliance with the ADA Standards for Accessible Design (“SAD”). In National Fair Housing Alliance v. S.C. Bodner Co. the Court put the matter plainly, holding that a property owner can be found liable “for merely offering to rent apartments that were designed and built out of compliance with the disabilities access standards.” Harding v. Orlando Apartments, LLC reached the same conclusion, holding that “failure to remedy” deficiently constructed apartments constituted illegal discrimination. More
ATMs and the ADA –The Next Wave of Litigation?
By Richard Hunt
In the last two months 19 class action lawsuits have been filed in the Northern and Eastern Districts of Texas claiming that ATM owners are violating the ADA because the voice guidance equipment in a single ATM is broken. More will have been filed by the time this blog is posted. The immediate impetus for these lawsuits is the March 15, 2012 effective date of the new Accessibility Standards, which require voice guidance in ATMs. This round of lawsuits may turn out to be a flash in the pan because of serious technical problems with the claims. On the other hand, if the local District Court accept the rationale in these lawsuits they may be part of a much larger wave of ADA litigation that goes beyond problems with individual ATMs. More