I’m not Maimonides, but I do think we need a Guide for the Perplexed concerning ADA website litigation because it seems that in many cases both courts and litigants have mistakenly treated websites as if they were buildings. Websites are not buildings, and recognition of that fact would do a great deal to eliminate or slow down abusive website lawsuits. If you are a defendant in such a suit or think you might be, this blog is for you and your lawyers. There is no silver bullet, but there are approaches to defense with real promise. More
ADA Litigation Procedure
By Richard Hunt in Accessibility Litigation Trends, ADA - serial litigation, ADA Class Actions, ADA Internet, ADA Internet Web, ADA Litigation Procedure, ADA Point of Sale, ADA regulations, ADA rulemaking, ADA Web Access, ADA Website Accessibility Tags: ADA defense, Arbitration, Browsewrap, Clickwrap, Container Store, FHA Defense, Point of Sale, website accessibility
In the last two years the federal courts have had a number of opportunities to find that Title III claims under the ADA are not arbitrable and have declined the invitation. That doesn’t mean these cases are in fact going to arbitration. In every case I found the arbitration agreement was found to be unenforceable on state law grounds, leaving open the possibility of a public policy argument. Nonetheless, I think that a properly written and implemented arbitration clause can force a Title III case into arbitration and give defendants a chance to avoid much of the unnecessary cost of litigation. Here’s why.
The starting point in a discussion of arbitration for civil rights statutes has to be Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647 (1991). In Gilmer the Supreme Court found that claims under the Age Discrimination in Employment Act could be made subject to a valid arbitration agreement, rejecting claims that it was somehow inconsistent with public policy. A few months later Congress passed the Civil Rights Act of 1991, in which, among other things, it affirmed that More
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees, ADA FHA General, ADA FHA Litigation General, ADA Internet Web, ADA Litigation Procedure, ADA Mootness, ADA Policies, ADA Web Access, ADA Website Accessibility, FHA Reasonable Accommodation, Hospitals, Internet Accessibility, Statute of Limitations Tags: ADA defense, ADA Policies, ADA standing, FHA Defense, HOA litigation, Johnson v Starbucks, Midwest Disability Initiative, Pacific Trial Group, Scott Ferrell, Strojnik, unruh act, website accessibility
The official worst heat-wave ever is now over in both the U.S. and France, but Sirius is still rising just before dawn and nothing has cooled off in the courts. Here are the latest cases on ADA and FHA issues.
HOAs and the FHA
Lau et al v. Honolulu Park Place, AOAO, 2019 WL 3208644 (D. Haw. July 16, 2019) is a kind of short treatise on how the FHA applies to accommodation claims made by parents or others associated with a disabled person. What is surprising is the degree of ignorance or obtuseness shown by the HOA’s counsel in defending the case. Here’s what the Court says:
“Defendants appear to misunderstand the FHA as well as the injury-in-fact requirements of Article III. . . . Only the most obtuse reading of the Complaint could fail to construe the allegations as an injury to the person. . . . But Defendants’ conclusion is only possible when accepting their misrepresented version of what Plaintiffs seek. In other words, it is a straw man of their own creation.
HOAs should remember that the firm handling their assessment collections or dealing with personal injury suits may not have the specialized knowledge necessary for FHA defense. More
Accessibility moots a website accessibility claim – a surprising decision that shouldn’t surprise anyone.
By Richard Hunt in Accessibility Litigation Trends, ADA - serial litigation, ADA Attorney's Fees, ADA Internet, ADA Internet Web, ADA Litigation Procedure, ADA Mootness, ADA Web Access, ADA Website Accessibility Tags: ADA defense, ADA website accessibility, ADA website defense, Diaz v Kroger, Katherine Failla
On Tuesday, June 4 Judge Katherine Failla of the Southern District of New York issued a critical decision finding that a website accessibility case could be mooted by simply fixing the website. Diaz v. Kroger Co., Case No. 1:18-cv-7953 (June 4, 2019). She also found that Kroger was not subject to personal jurisdiction in New York on more conventional grounds, but the mootness holding is critical. More
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA Litigation Procedure, Restaurants Tags: ADA defense, allergies, celiac disease, Colonial Williamsburg, gluten intolerance, gluten-free meals
J.D. v. Colonial Williamsburg Foundation, Case No. 18-1725 (4th Circuit, May 31, 2019) to my attention. For those interested in the parameters of the ADA’s requirement that public accommodations modify their rules for the disabled the case has a thorough discussion of the basic case law. What I find more interesting is the Court’s failure to address its imposition of a double standard in dealing with modification requests. It seems that for businesses it is forbidden to deny a modification request based on past experience with others while for those with disabilities it is perfectly reasonable to demand a modification based on the fear that what others did in the past will be done by a completely different public accommodation. The Court never explains why this should be the case.
The background is simple. The plaintiff child has celiac disease or some similar lesser condition and reacts badly to gluten. In the context of this appeal from a summary judgment the existence of a “disability” under the ADA was assumed.** On a school trip to Colonial Williamsburg his parents packed a special gluten free meal for him despite the availability of gluten free options at the Shields Tavern, the restaurant to which the group went to for lunch. They did this because they had had bad experiences at other restaurants in the past although they had never been to this restaurant or any other at Colonial Williamsburg in the past. Based on their experience with other, unrelated, restaurants they were afraid to trust the Shields Tavern.
When they arrived at the Shields Tavern they were told they could not bring in outside food because it violated health department regulations, but the restaurant could provide gluten free meals for the child or allow them to simply wait inside with the rest of the group to enjoy the atmosphere. Things went badly and the child and his father ended up eating outside. This lawsuit followed.
The principal question was whether the restaurant had unlawfully refused a requested reasonable modification that was necessary for the child to have the same dining experience as his classmates; that is, was it necessary that the father and child be permitted to eat their special food in the restaurant. The restaurant’s argument was simple – because it offered gluten free meals no modification was necessary. Their existing gluten free options completely addressed any need related to the child’s disability. The parents, on the other hand, argued that their fear based on past experiences at other restaurants made it unreasonable to expect them to trust this restaurant. Thus it was “necessary” that they be permitted to bring their own food.
The ADA and its implementing regulations have something to say about fear based on past experience. When a public accommodation is asked to grant a modification and believes the requested modification presents some threat or danger it must make “an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence.” 28 CFR §36.208(b). This means, for example, that a basketball camp could not exclude a player with HIV because there was no objective medical evidence that there was a significant risk others would be infected through contact. Doe v. Deer Mt. Day Camp, Inc., 682 F. Supp. 2d 324, 349 (S.D.N.Y. 2010). This was so despite the fact that even if the risk is very small, the consequences of HIV infection are very severe.
In J.D. v. Williamsburg the 4th Circuit adopted a different standard for the parents’ fear of exposing their child to food cooked in a restaurant. Instead of an individualized assessment of the restaurant’s ability to produce a truly gluten free meal the parents were allowed to demand a modification based on past experience with other unrelated restaurants.
The Court addressed this as part of the “necessity” requirement for a reasonable modification. In doing so the Court completely disregarded the usual requirement that decisions be based on an individual inquiry rather than mere stereotypes. It found that the offer of a gluten free meal might not be adequate (a jury would have to decide) based on the family’s experience with food “prepared by commercial kitchens.” The phrase “commercial kitchen” applies to a very wide variety of food service establishments. The taco stand in the Chevron station a few miles from my house is a commercial kitchen, as are fast food restaurants, food trucks and, of course, the most expensive fine dining experience in the world, the Osteria Francescana in Moderna, Italy, ranked as the best restaurant in the world in 2018 according to Forbes.
Nowhere does the Court consider whether something beyond the parents’ fear creates a “necessity” for the modification; in fact it expressly disregards the actual ability of the restaurant to deliver a truly gluten free meal. The child was entitled to eat his own food in the restaurant based only the fact he had bad experiences in other restaurants in other places and without any evidence other than speculation that his other restaurant experiences were in fact the cause of symptoms or any showing the symptoms in those past incidents were especially severe.†
What seems to really stand behind this decision is not the need for the modification (because there was no objective evidence that it was needed) but rather the ease of granting it. Whether the parents’ fears were objectively rational or not, letting the child eat his special food in the restaurant would have cost the restaurant almost nothing in terms of money or convenience. As a reason for a practical decision by the restaurant’s management the low cost of granting the modification makes sense, but the ADA doesn’t require modifications unless they are necessary – reasonableness is a different inquiry. With this case we have a double standard in evaluating modification requests. A public accommodation cannot rely on fears based on past similar experiences; it must consider only the individual request before it. Those with disabilities, on the other hand, are entitled to a modification based only fear arising from the past mistakes of completely unrelated parties who happen to be in the same business (“commercial kitchens”).
The legal takeaway for restaurants is simple. If you want to avoid expensive litigation grant the unreasonable modification that probably isn’t required. After all, the person demanding it has the ability to use the courts to cause far more trouble than it is worth to stick to what the law requires or permits. This is, of course, the entire story of private enforcement of the ADA and the reason money is wasted on lawyers instead of being devoted to real issues of accessibility for the disabled.
** The circumstances under which allergies and food intolerances constitute disabilities are hard to define because in most cases there is a wide range of symptoms from almost trivial to life threatening and in many cases medical evidence of the condition is hard to find. See my blogs on “Allergies and the ADA” “Gluten free for free” and “A story with a moral” for more on this subject.
† The only evidence recited by the court was that after eating at one restaurant the child “wasn’t feeling well” and in the case of the other he “experienced symptoms consistent with having ingested gluten.” There was no evidence that restaurant food had caused severe reactions and no medical evidence that in the two cases recited by the parents the later symptoms were in fact caused by consumption of restaurant food although they did say that in one case they returned to the restaurant and found a regular noodle mixed in with the gluten free noodles in his pasta.