With more than 40 new decisions in the last two weeks it hasn’t been easy getting this blog out. I’m not the only lawyer with too much to do too fast, as the following cases demonstrate.
The problem with industrial litigation
In a classic episode of “I Love Lucy” she and her friend Ethel get a job in a chocolate factory but find they can’t keep up with the assembly line and have to resort to stuffing chocolates in their mouths and shirts.³ I thought of their predicament when I read Garcia v. Hwangbo, 2021 WL 149086 (C.D. Cal. Jan. 15, 2021), one of hundreds of cases filed on behalf of Orlando Garcia by the “Center for Disability Access.” The problem with an assembly line practice is keeping up with the speed of the line, and Garcia’s lawyers found they couldn’t keep up on January 15 when Judge Olguin dismissed the Hwangbo case under the terms of a docket control order that required the defendants be served within 90 days of filing. More
The title of today’s blog recognizes the gift bestowed by Judge Nannette Brown on everyone interested in the ADA in all its many details. Bailey v. Bd. of Commissioners of Louisiana Stadium and Exposition Dist., 2020 WL 5309962 (E.D. La. Sept. 4, 2020) is the latest of Judge Brown’s decisions concerning the dispute over stadium seating in the Superdome. Written after trial, the 64 page decision methodically dissects the law concerning concerning which standards apply to what parts of a facility after alterations, what the sight-line requirements for stadiums are under the various standards, including an exposition of the law concerning Auer deference and the effect of Kisor v. Wilke, how Title II program accessibility requirements fit into design/build standards, what kind of control is required for a person to be an “operator” of a public accommodation, when and how the “reasonable modification” requirement in Title III of the ADA applies to Title II entities, and last but not least the extent to which Title I’s “interactive process” requirement might apply to Titles II and III. The Fifth Circuit, and maybe the Supreme Court, will have the last word in this case, but if you are looking for a quick reference to almost every issue that comes up in a case involving altered facilities you can find it in this decision.¹ 
One of the more frequently quoted cases dealing with the relationship between the FHA and poverty is Salute v. Stratford Greens Garden Apartments, 136 F.3d 293, 301 (2d Cir. 1998). In Stratford the Second Circuit wrote that the FHA “addresses the accommodation of handicaps, not the alleviation of economic disadvantages that may be correlated with having handicaps.” The 11th Circuit’s decision in Schaw v. Habitat for Humanity, 938 F.3d 1259 (11th Cir. Sept. 18, 2019) takes up the question of just where one draws the line between disability discrimination and economic discrimination. Along the way it also clarifies who gets to decide what accommodation is required and just what “necessary” means. 
In My Fair Lady Henry Higgins famously described his ideal room as having an atmosphere as quiet as an undiscovered tomb. Some anti-noise advocates would like to have the ADA impose this kind of requirement on every public accommodation. A recent news story* about this illustrates how little the press and public understand about what the ADA requires.