Rehabilitation Act

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. More

Hunt quoted on Rehabilitation Act Section 508 provisions for web access

January 18, 2018 By Richard Hunt in Rehabilitation Act, Section 508 Web Access Tags: Rehabilitation Act, Section 508 Refresh

Tooting our own horn as they say, we note that B2B E-Commerce World quoted Richard in a January 17, 2018 article by Paul Demery, “The government’s push to higher web accessibility standards.” For businesses that do business with the federal government the article provides a good overview of the Section 508 “ICT Refresh” that incorporated WCAG 2.0 into the requirements of Section 508. Richard’s observation was simply that litigation under Section 508 is far less common that litigation under Title III of the ADA because the requirements apply primarily to the federal government and some of its technology contractors so disputes are handled directly between the government and those contractors. It should be noted that Title III and Title II lawsuits against entities that receive federal funding frequently include a claim under Section 504 of the Rehabilitation Act, which has only a general non-discrimination provision and whose regulations do not explicitly incorporate a web accessibility standard. DOJ takes the position that both Section 504 and Title III of the ADA require web accessibility.