I was planning on another review of recent decisions in the ADA and FHA world but was struck by the number of recent decisions about voting and the ADA. They are a pleasant break from the usual run of ADA cases motivated by nothing but the greed of the plaintiffs’ bar, and while they may cause political disagreements they do illustrate some key issues under the ADA.
Lainey Feingold, a long time and well know advocate for those with disabilities, referred to my earlier blog on website plug-ins* that promise accessibility in her latest blog. HONOR THE ADA: AVOID WEB ACCESSIBILITY QUICK-FIX OVERLAYS. That was nice, but even better was the way she collected other sources on website plug-ins and their problems, making her blog well worth reading for anyone interested in this subject. Of course no matter how much you study the situation the conclusion is always the same – you can’t make a website accessible with a plug-in and you certainly can’t avoid lawsuits with a plug-in. Businesses need relief from lawsuits that do nothing to promote accessibility and drain resources away from remediation, but that relief isn’t going to come in the form of doing almost nothing.
By Richard Hunt in ADA, ADA Internet, ADA Internet Web, ADA Web Access, ADA Website Accessibility Tags: accessible.org, ADA defense, ADA Internet, ADA website, FHA Defense, Kris Rivenburgh, WCAG 2.0, WCAG 2.1
By Richard Hunt in Accessibility Litigation Trends, ADA - Hotels, ADA - serial litigation, ADA Litigation Procedure, ADA Mootness Tags: ADA defense, Braille gift cards, COVID-19, mootness, negligence and ADA, Readily Achievable, Service Counters, Strojnik, Voting Rights Alabama
Here’s a very unhappy looking King Richard III contemplating the murder of his nephews and possible rivals for the throne, or perhaps the latest headlines. While the latest cases on accessibility law don’t usually look like light reading, right now they are a cheery diversion from the rest of world events. Here we go:
Voting Rights and the ADA
Mootness done right, eventually
Johnson v. Montpelier One LLC, 2020 WL 3268613 (N.D. Cal. June 17, 2020) appears to be on the way to dismissal for mootness, but only after a false start with an affidavit that did not state in sufficient detail how the alleged architectural barriers had been remediated. Mootness is the best defense to a physical access case under the ADA, but cutting corners with a conclusory affidavit won’t get you there.
Accessible counters – a Ninth Circuit victory for common sense.
Kong v. Mana Inv. Co., LLC, 2020 WL 3265179 (9th Cir. June 17, 2020), Johnson v. Starbucks Corp., 2020 WL 3265063, at *1 (9th Cir. June 17, 2020) and Lindsay v. Starbucks Corp., 19-55738, 2020 WL 3265180, at *2 (9th Cir. June 17, 2020). Are a trio of Ninth Circuit rulings on an issue that has been litigated frequently: Does the counter length requirement in the ADA require that the counter be free of clutter? The answer is a definitive no, at least in the 9th Circuit. *
Braille gift cards and the ADA – the answer is no.
Another federal court declines supplemental jurisdiction over Unruh Act claims
In Schutza v. Enniss Family Realty LLC et al 2020 WL 3316969 (S.D. Cal. June 18, 2020) another federal judge in California declined to exercise supplemental jurisdiction over an Unruh Act claim, depriving the plaintiff of the damage remedy that drivers higher settlements in California. The decision is not unique* but other courts disagree with the arguments for declining supplemental jurisdiction. Until the 9th Circuit rules on this issue the rule will be to know your judge because these decisions are being made on a court by court level.
Negligence and the ADA
Strojnik again – and perhaps in real trouble.
Peter Strojnik is a prolific litigator who does not always lose, but may have pushed his luck too far. In Strojnik v. Village 1017 Coronado, Inc., 2020 WL 3250608 (S.D. Cal. June 16, 2020) his claims were dismissed for lack of standing because he never visited the defendant hotel, but in its discussion the Court noted that in another case:
the Court has an evidentiary hearing scheduled for July 24, 2020 on the issue of whether Plaintiff should be declared a vexatious litigant in part for misrepresenting his disability status in that complaint.
Strojnik has already been declared a vexatious litigant by another Federal Court in California and was disbarred in his home state of Arizona. See, Strojnik v. IA Lodging Napa First LLC, 2020 WL 2838814 (N.D. Cal. June 1, 2020). He remains unrepentant and undeterred because there are few effective remedies against those who abuse the legal system and even fewer judges willing to take strong action against lawyers and non-lawyers who use the system to wreck legal and economic havoc on the lives of innocent business owners.
Pleading the “readily achievable” standard.
Girotto v. LXC, Inc. et al, 2020 WL 3318275 (S.D.N.Y. June 18, 2020) includes a number of little lessons. For example, it is not basis for early dismissal to call the plaintiff a liar because the Court assumes the allegations in the complaint are true. It does touch on an issue on which not all courts agree; that is, whether the plaintiff must plead that removal of architectural barriers is readily achievable. This Court says no; the plaintiff must prove the remediation is readily achievable at trial, but does not need to plead it. Other courts have disagreed**, so know your court and judge is, as usual, the rule.
The danger of being the enforcer
Advocacy or idiocy? A blogger prevails
* I have blogged about this trend several times, most recently in Blogathon – not so quick hits on the ADA and FHA.
² I should say I have a personal interest in this, having been threatened many times with suits for defamation based on my blogs. So far no one has had the nerve to follow through on those threats, but there is clearly a segment of the ADA plaintiffs’ bar that doesn’t like those who tell the truth about their business.
“Standing” comes from the provision in the U.S. Constitution that says Federal Courts can hear cases and controversies. The Supreme Court has long said that for there to be a “case or controversy” you need a plaintiff that has been harmed in a way the court can fix. Without both there is no case or controversy and the court doesn’t have the power to consider the matter. This is a basic constitutional requirement, but it isn’t the end of the story. When the harm comes from some violation of a federal law that law will say just who has the right to file a lawsuit That is where Access Living found it had a problem.
Access Living claimed that it was harmed by Uber’s failure to provide services available to the disabled equal to the services offered others. Access Living claimed that when it paid for transportation for its disabled staff members and others it had to pay too much because it couldn’t always use Uber, which was often the least expensive way to travel. The Seventh Circuit agreed that this was an injury – Uber’s supposed discrimination against the disabled cost Access Living money.* It was also an injury the court could in theory do something about. The ADA would permit an order that required Uber to provide equal service so that Access Living wouldn’t have to spend to much in the future. Thus, Access Living met the requirements of Article III of the Constitution – it had “standing” to bring a lawsuit.
For Access Defense the problem was the next step. Did the ADA give Access Defense the right to file a lawsuit? The ADA forbids discrimination against those with disabilities and with those who are associated with someone who is disabled.** This is common in civil rights statutes, and prevents attacks on organizations and people who might try to assist the disabled. However, Access Defense was not claiming that Uber discriminated against it – the discrimination was against its disabled staff who were not given equal Uber service. According to the Seventh Circuit merely being harmed by discrimination against someone else was not enough for Access Living to have a right to sue under Title III of the ADA. The provision in Title III that says who can sue to enforce Title III gives that right to anyone “being subjected to discrimination.”† The Seventh Circuit read this to mean that only a direct victim of discrimination has the right to sue. Someone who has indirectly suffered from discrimination cannot.‡ The staff members who couldn’t ride an Uber were subjected to direct discrimination; Access Living was only indirectly harmed. Thus Access Living could be a victim of discrimination without having the right to sue.
It is worth noting that this ruling only applies to Title III of the ADA. Other civil rights statutes under which disability rights groups often sue are not as limited as Title III of the ADA. The Fair Housing Act, for example, gives the right to sue to any “aggrieved person,” which is defined to mean any one injured by discrimination. The FHA allows individuals and entities who are indirectly harmed by discrimination against others to sue because it only requires an injury, not a direct injury. At the other end of the spectrum are laws like the Air Carrier Access Act which contains no provision for a private lawsuit. Even a direct victim of disability discrimination in violation of the ACAA cannot sue. According to the Seventh Circuit even Title II of the ADA would have granted Access Defense the right to sue because a Title II case can be brought by anyone “alleging discrimination on the basis of disability” even if they were not the direct subject of the discrimination. Courts have treated Title VII of the Civil Rights Act of 1964 just like Title III of the ADA, holding that the statute only allows suits by “employees or applicants for employment,” not organizations of employees. See, Cook v. Billington, 541 F. Supp. 2d 358, 363 (D.D.C. 2008).
It also has to be noted that while this is a good case for defendants, it isn’t going to stop organizations from suing under Title III of the ADA. Under many circumstances an organization can file suit as a representative of its members who were subjected to discrimination even if it suffered no harm itself.‡ There is a more general lesson though; when considering who has a right to sue for a violation of civil rights, including the rights of the disabled, merely invoking “organizational standing” or even standing under Article III of the Constitution isn’t enough. Who was harmed, how they were harmed, and the precise words of the statute all matter.
* The appeal came from an early dismissal of the claims by Access Living when the Court was only considering what Access Living said happened, not whether it was actually true. The first requirement in any lawsuit is that you make a claim that can be recognized if your allegations are true. If you can’t do that, whether they are true or not doesn’t matter.
** The prohibition against associational discrimination is found in § 12182(b)(1)(E), which says it is discriminatory to deny equal services to “to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association.”† Section 12188(a)(1).
‡ The difference between direct and indirect harm isn’t always clear, but in this case could be illustrated by what lawyers love; a hypothetical. Suppose Access Living tried to open a corporate Uber account and was told that it could not do so because disability rights organizations are not allowed to open such accounts. In that case Access Level would be a direct victim of discrimination that came from its association with disabled individuals.
‡ See, for example, Equal Rights Ctr. v. Abercrombie & Fitch Co., 767 F. Supp. 2d 510, 525 (D. Md. 2010), on reconsideration in part (Jan. 31, 2011). Like Access Living, the plaintiff in Equal Rights Center was not able to show a right to sue for the injuries it supposedly suffered as a result of discrimination against its members, but it was able to show it had a right to sue as a representative of its members.