A client of mine was recently advised that the client’s FHA forms for reasonable accommodation requests were illegal because “The law specifically prohibits inquiry into the nature or extent of a disability.” This is a common misconception, and one that can easily result in an apartment complex full of supposed therapy animals owned by individuals who are not disabled. It is worth understanding where this misconception came from and what the law really allows. More
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA - drive-by litigation, ADA - serial litigation, ADA Internet, ADA Internet Web, ADA Web Access, FHA, FHA Emotional Support Animals, FHA Reasonable Accommodation, Internet, Internet Accessibility, Reasonable accommodation, Rehabilitation Act Tags: ADA defense, ADA drive-by litigation, ADA Mootness, ADA website accessibility, FHA Defense, World Cup
Those of you who are not binge watching the World Cup matches will be interested in what has been going on in the world of disability rights during the last few weeks. Here is our roundup of recent ADA and FHA decisions, some of which are notable.
Indemnity and contribution for Fair Housing Act claims.
Shaw v. Cherokee Meadows, L.P. 2018 WL 2967708 (N.D.Okla. June 12, 2018) is another in a series of cases concerning indemnity for design/build defects under the FHA that gets it completely wrong and winds up with an absurd result. The decision has little in the way of discussion because it relies on the analysis from an earlier case, Equal Rights Center v. Niles Bolton Associates, 602 F.3d 597 (4th Cir. 2010). We’ve blogged on this issue before* but the arguments are worth repeating. Equal Rights Center based its analysis on earlier cases concerning race and similar kinds of intentional discrimination found that public policy precluded indemnity and contribution for FHA discrimination claims. In cases of intentional discrimination or respondeat superior it makes sense to forbid indemnity because you want to discourage bad intent and encourage proper supervision of employees. It doesn’t make any sense at all in design/build cases under Section 3104(f)(3)(C) because this is a “no fault” provision that can be violated without any intent to discriminate. Moreover, the owner of an apartment complex has no choice but to rely on 3rd party experts – architects and contractors – to properly design and build the apartments. When architects and contractors know that they are immune from liability for their failures they have no incentive to design and build according to FHA standards, and as a practical matter they are always immune because the first target in any lawsuit will be the owner. The Ninth Circuit has rejected Equal Rights Center for good reason, and if Shaw v. Cherokee Meadows is appealed the Tenth Circuit should reject it as well. More
By Richard Hunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, Apartments, FHA, FHA Reasonable Accommodation, Reasonable accommodation Tags: City Vision, dialing for dollars, Fair Housing Advocates, HUD complaint, Patrick Coleman, Texas Workforce Commission
I’ve written before about the dialing for dollars phenomenon in Fair Housing Act claims (click here) and about how cheap standing facilitates litigation aimed more at profit than progress (click here). There is good news on both fronts from the Texas Workforce Commission, which recently dismissed several FHA complaints because the organization that filed them, a private corporation called Fair Housing Advocates, could not demonstrate it had standing. Fair Housing Advocates is operated by Patrick Coleman, one of the two owners of City Vision, a similar organization devoted to making money by means of HUD complaints. Citi Vision appears to have abandoned the dialing for dollars business earlier this year, probably because TWC started dismissing its complaints for lack of standing. More
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.
I reported in September on the decision in Phillips v. P.F. Chang’s China Bistro finding that a plaintiff with celiac disease had not stated a claim for discrimination under the ADA based on P.F. Chang’s policy of charging $1.00 extra for gluten free meals. On November 23, 2015 the same court found that the plaintiff had stated a claim based on an enhanced set of allegations in her Amended Complaint. Phillips v. P.F. Chang’s China Bistro, Inc., 2015 WL 7429497, at *1 (N.D. Cal. Nov. 23, 2015). This is a very common pattern in ADA litigation: Once the plaintiff knows what to say, he or she is almost always willing to say it in order to get past a Motion to Dismiss. For restaurants and their owners this latest decision requires some thought and possibly the adoption of new policies concerning menu items. More