Quick Hits for the ADA and FHA – World Cup edition

June 18, 2018 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.

Mootness for website accessibility

Gil v. SMG Holdings I, LLC, 18-20107-CIV, 2018 WL 2435162 (S.D. Fla. May 29, 2018) highlights the problem we addressed in our last blog concerning the lack of regulations concerning website accessibility. The defendant tried to moot the plaintiff’s claims concerning its website by fixing the problems, but found some could not be fixed in the way demanded. Without any standard for accessibility the court could only conclude that mootness was not established beyond doubt and the case had to go forward. Given the regulatory impasse at DOJ even a perfectly accessible website is probably not immune from an ADA claim.

Mootness done right

Kelley v. Sparrer, 2:17-CV-00688, 2018 WL 2768660 (D. Utah June 8, 2018) simply illustrates the fact that properly correcting physical barriers to access can lead to dismissal based on mootness. It is worth reading for comparison with other cases in which mootness was done wrong.

Another credit union standing victory

Credit Unions continue to obtain dismissals of ADA website accessibility cases, as shown by Carroll v. Roanoke Valley Community Credit Union, 7:17CV00469, 2018 WL 2921106 (W.D. Va. June 11, 2018). We’ve blogged on this before**, and this case follows the pleasant trend of taking the injury-in-fact requirement for Article III standing seriously.

ADA Standing for serial litigants

In Kennedy v. Solano, 18-10250, 2018 WL 2411761 (11th Cir. May 29, 2018) the 11th Circuit confirmed its willingness to apply the Iqbal and Twombly pleading requirements to allegations related to ADA standing, and in particular to require plaintiffs to do more than allege a general intent to return when the circumstances make the allegation implausible. Relying on the distance the plaintiff lived from the defendant restaurant and the lack of prior patronage the Court had no trouble finding that a general allegation of intent to return was not plausible.

The opposite result was reached by a 2nd Circuit court in Norkunas v. Sandeep Partners, LLC, CV 17-12089-PBS, 2018 WL 2727899 (D. Mass. June 5, 2018), but the facts were quite different. Norkunas is a habitual ADA plaintiff from Florida who sued a motel in Massachusetts. Although the distance from his home was considerable, he alleged he had family in the area and that he had stayed at the hotel three times in the past. As a rule of thumb, multiple past visits will almost always result in denial of a motion to dismiss based on standing in any circuit. It is also worth nothing that in cases involving hotels distance is less of a factor than reason to travel because hotels are almost never close to the plaintiff’s home. Challenges to standing require careful thought because if they fail they represent a useless expense of legal fees.

Default as a strategy in ADA cases

We continue to see defendants choosing to default as the best way to reduce litigation expenses in California cases. In Cervantes v. Vargas, 2018 WL 2455615 (E.D. Cal. June 1, 2018) the defendant failed to appear and the plaintiff got a default judgment requiring remediation and awarding the California statutory minimum damages of $4000 plus about $4000 in attorneys fees and costs. It is hard to imagine how the defendant could have done better with a defense of any kind. Sometimes surrender may be the best defense, though it carries real risks that should be considered first.

Pleading standards for readily achievable barrier removal.

Norkunas v. Sandeep Partners, LLC, CV 17-12089-PBS, 2018 WL 2727899 (D. Mass. June 5, 2018) is also a reminder that regardless of the burden of pleading that barrier removal is readily achievable the plausibility of an ADA claim can be determined by the allegations in many cases. The court was unpersuaded by the defendant’s claim the plaintiff failed to plead barrier removal was readily achievable, finding that the nature of the alleged barriers made it plausible they could be removed at minimal cost. “Don’t shoot till you see the whites of their eyes” is good advice for the defense of ADA claims – money spent on defenses that just won’t work is money that would have been better spent on remediation.

FHA claims can be a complicated mess.

In Elliott v. QF Circa 37, LLC, 16-CV-0288-BAS-AGS, 2018 WL 2933467 (S.D. Cal. June 12, 2018) the District Court patiently waded through a plethora of claims under the Fair Housing Act and related statutes before dismissing all but two of the plaintiff’s discrimination claims. The individual claim by claim decisions are not remarkable, but the case is a reminder that because tenants and landlords have long term relationships their interactions can be complicated. Landlords wanting to avoid lawsuits need to be careful with both procedures and paperwork. Even more important, employees must be trained to recognize that disabled tenants will almost always be “difficult” in the sense that they require more attention than other tenants. There is an distinct undercurrent of annoyance by the apartment manager in the one claim that survived summary judgment. It’s hard to be perfect, but with the FHA that is sometimes what is required.

Bus stops and shopping malls under the ADA.

Access Center for Independent Living v. WPG, Inc. et al, 3:15-CV-444, 2018 WL 2763453 (S.D. Ohio June 8, 2018) illustrates some of the problems that arise at the intersection of private property and public transportation. The ADA requires that public accommodations offer an accessible route from the edge of the property to the facility, and in particular from public transportation stops. In the case of a large mall that accessible route can be long and will traverse a parking lot and traffic areas. Does that mean the mall must allow a public bus to pick up passengers at the mall entrance? This Court found it was not necessary, using roughly this line of argument:

There was no failure to meet ADA design standards because they only require a route from the edge of the property – not that public transportation be permitted to enter the property.
The ADA does require reasonable modifications of policies and procedures, but only if necessary. In this case it was not “necessary” for public buses to be allowed at the mall entrance because disabled passengers could get to the mall from the property line and, more important, the public transportation system offered a special ride service for those with disabilities and the special ride service was allowed to pick up and drop off passengers next to the mall. The fact that the special service was less convenient and sometimes unavailable did not change the result.

Beyond the technical arguments this case is a reminder that the ADA is meant to insure equal access, not special access. If ordinary users of public transportation must cross a parking lot in order to get to the mall entrance and the route is equally usable by those with disabilities then those with and without disabilities have equal access, which is all the statute is intended to provide.

The meaning of auxiliary aids and services under the ADA

The ADA requires that public accommodations provide “auxiliary aids and services” if necessary to prevent a disabled person from being “excluded, denied services, segregated or otherwise treated differently than other individuals.” The relevant regulations focus on communications services, and in Est. of Smith v. Forest Manor, Inc., 7:16-CV-01774-RDP, 2018 WL 2770203 (N.D. Ala. June 8, 2018) the Court reminded that for the Department of Justice, at least, auxiliary aids and services means only aids and services related to communications. The Court rejected the idea that various kinds of equipment related to transportation might be required as an auxiliary aid or service because transportation is not communication.

* “What were they thinking? Indemnity and accessibility under the ADA and FHA” and “Time for a do-over – the 9th Circuit gets indemnity and contribution right.”

** “Credit Union victories in ADA website litigation: an opportunity for all defendants.“

Good news for the Fair Housing Act: TWC puts a dent in dialing for dollars

August 22, 2016 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

Reasonable Accommodation under the ADA – a story with a moral.

June 20, 2016 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.

Gluten free for free? An ADA and P.F. Chang’s update

December 7, 2015 By Richard Hunt in Accessibility Litigation Trends, ADA regulations, Hospitality, Reasonable accommodation, Restaurants Tags: ADA, celiac disease, P.F. Chang's, restaurants

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

Who’s on first? Shifting burdens in ADA accessibility litigation

April 9, 2015 By Richard Hunt in Accessibility Litigation Trends, ADA FHA Legislation, ADA Policies, Reasonable accommodation Tags: ada litigation, ADA pleading, ada violation, private lawsuits

There is nothing the Supreme Court loves more in a discrimination case than a set of shifting burdens of production, persuasion, proof, or whatever other word starting in “p” the Court thinks will describe complicating the analysis of a discrimination case. It proved this recently in Young v. United Parcel Service, a pregnancy discrimination case, but the process goes back to McDonnell Douglas Corp. v. Greene, a race discrimination case decided in 1973. The McDonnell Douglas waltz goes like this: plaintiff has to make a preliminary showing of discrimination, the defendant has to show that it had a non-discriminatory reason, and then the plaintiff has to prove the defendant was really motivated by discriminatory feelings. By way of contrast an ordinary lawsuit just puts a single burden on the plaintiff; that is, prove the defendant did something wrong. The McDonnell Douglas waltz guarantees that discrimination litigation will be more complex, time-consuming and expensive than an ordinary lawsuit. More