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.
ADA
Reasonable Accommodation under the ADA – a story with a moral.
By Richard Hunt in Accessibility Litigation Trends, ADA Policies, Reasonable accommodation Tags: ADA, allergies, epipen, interactive process, reasonable accommodation
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.
“Avoiding ADA Lawsuits – A DIY Guide” – Register now for our June webinar.
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation Tags: "drive-by" ADA lawsuits, ADA parking, ADA serial litigation, lawsuit abuse
How do serial ADA litigants manage to file dozens of lawsuits at a time? It certainly is not because they conduct formal ADA surveys of the properties they sue. On June 22, 2016 at noon Central Standard Time we will present our free webinar “Avoiding ADA Litigation – A DIY Guide.” We will show you how so called “drive-by” ADA plaintiffs spot their targets and teach you how to conduct an informal ADA review of the features most likely to put you in the crosshairs of a serial ADA litigant. We will show you what tools you need (not many and all cheap) and provide diagrams and pictures to help you spot problems and decide whether you need to hire an ADA consultant. With serial plaintiffs and their lawyers continuing to troll the streets of American cities looking for victims this is must know information for any business large or small. Just click this link to register.
“Avoiding ADA Lawsuits – A DIY Guide” is part of our monthly series of free webinars for business. Look for the announcement of our July webinar, “Phoney business – dealing with “tester” phone calls.” We will cover what apartment managers, leasing agents and real estate agents need to know about calls from Fair Housing Act testers, including what to say and what not to say to avoid a HUD complaint.
A quick note on ADA injury – shouldn’t the injury be real?
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA - Standing Tags: ADA standing
The following observation from a District Court in Louisiana hardly seems radical:
Some injury or harm is a requisite element of the constitutional requirement that a plaintiff have standing to pursue a claim, and although courts differ in the test that they apply to measure standing in such cases, most assess, in at least some fashion, whether the plaintiff has suffered an injury or harm from a defendant’s alleged failure to comply with Title III of the ADA.
Gilmore v. Lake Charles PC, LP, 2016 WL 3039813, at *4 (E.D. La. May 27, 2016). What the Court did based on this observation was, however, unusual in the ADA context. The Court agreed to allow the defendant in a Title III case to prove that the plaintiff had not really been denied access to the defendant’s shopping center because of minor or technical failures to meet the regulatory standards for accessibility. More
“Cheap standing” under the ADA: district courts push back.
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation Tags: "drive-by" ADA lawsuits, ada litigation, ADA serial litigation, ADA standing, cheap standing ADA
ADA serial litigation is possible only because of a judicially created doctrine of cheap standing. What do I mean by cheap standing? Standing that can be obtained at minimal expense and inconvenience. Serial litigation is economically feasible only because a plaintiff can obtain standing merely by seeing a non-compliant parking space and then leverage that standing to include still unknown ADA violations inside a business. Cheap standing makes it possible for a few law firms and their pet plaintiffs to file dozens or hundreds of lawsuits in a short period of time with such small expense that they can still make a substantial profit on the modest settlements that are usually demanded. Cheap standing is the foundation on which serial ADA litigation rests. More