The blogosphere is atwitter about the news of recent Department of Justice settlement with Lesley University. In it the University, without admitting any ADA violation, agreed to set up a number of special programs for students disabled by food allergies. One expert has called it a major expansion of the ADA [http://m.postbulletin.com/life/health/food-allergies-might-be-disability-under-law/article_61810501-3c95-5d7e-9574-7c1e985a9998.html], while others see it as a natural consequence of the changed definition of disability in the 2008 amendments to the ADA. In either case it is being seen as having important consequences for Title III entities (which includes almost all businesses) that serve food. But though the settlement is interesting, case law suggests that it does not signal a dramatic change in the definition of disability as applied by the Courts. More
ADA FHA General
The Nitty Gritty – regulatory details that matter in the defense of ADA and FHA lawsuits
By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, FHA Tags: ada litigation, ada violation, FHA Litigation
I’ve observed that in many ADA and FHA cases there is little dispute about the existence of barriers to access, but this isn’t always true. A decision from the Seventh Circuit in the first week of January serves as a reminder that sometimes the outcome of a case turns on the nitty gritty of the regulations about accessibility rather than on procedural battles over standing or limitations. More
Beware of Dog – Mental Health Support Animals and the FHA
By richardhunt in ADA FHA General, ADA FHA Litigation General, Apartments, Condominiums, FHA, Multi-Family, Residential Development Tags: Apartments, Condominiums, developers, FHA Litigation, mental health disabilities, real-estate, service animals, support animals
Support animals for individuals with mental health disabilities present special problems for the owners and managers of residential properties. A complaint filed on New Year’s Eve, Intermountain Fair Housing Council, Inc. v. Michael’s Manor, LLC, illustrates some of those problems and shows why requests for an accomodation to allow a support animal must be handled with care.
The first issue faced by owners and managers is whether an untrained support animal has to be allowed at all. In Michael’s Manor the plaintiff alleges that the leasing agent flatly refused to permit a support animal for the treatment of a mental disability A decade ago that refusal might have worked, for a number of courts held that an apartment or condominium complex was only required to permit trained service animals based on the ADA definition of “service animal.” The FHA does not mention service or support animals in its provisions concerning reasonable accommodations and most recent decisions agree that refusal to allow a mental health support animal can constitute illegal discrimination. Requiring proof that the tenant’s animal qualifies as a “service animal” for a physical disability almost certainly violates the FHA. More
What 2013 will bring for ADA and FHA accessibility litigation
By richardhunt in Accessibility Litigation Trends, ADA, ADA FHA General, ADA FHA Litigation General, Apartments, Condominiums, FHA, Hospitality, Hotels, Multi-Family, Residential Development, Restaurants, Retail, Shopping Centers Tags: ada litigation, ada violation, FHA Litigation, private lawsuits, private litigants, real-estate, restaurants, retail
2012 brought with it the final effective date for the 2010 Accessibility Standards and with that new possibilities for claims under the ADA and FHA. The most significant change in the standards from a litigation standpoint was the imposition of long pending requirements for ATM’s, which brought a wave of new cases around the nation. There were important trends for more traditional claims that will continue in 2013.
There will be an increased emphasis by plaintiffs on claims based on alleged policies regarding regarding FHA and ADA compliance as opposed to incidents of non-compliance. Once of the basic economic problems for ADA and FHA plaintiffs is that the barriers to access encountered by any individual plaintiff may be modest, and once such modest barriers are remediated the case may become moot. Unless there is a substantial controversy the fees awarded even by a generous court may be less than what is needed to justify the lawsuit in the first place. Alleging a policy of discrimination allows an individual plaintiff to assert claims based on barriers to access he or she does not know exist and may never encounter. The case law in this area is mixed at best, and plaintiffs can be expected to expand the availability of policy and practice claims in the accessibility context. More
Prying open Pandora’s Box – ATM litigation in Texas
By richardhunt in Accessibility Litigation Trends, ADA, ADA FHA General, ADA FHA Litigation General, ATM Litigation, Financial Institutions
Most of the 37 ATM lawsuits filed in Texas since June of 2012 have been dismissed or settled, but two have just moved past the motion to dismiss phase and may become significant as models for later class actions concerning ATMs and other facilities. The decisions denying the defendants’ motions to dismiss point to some of the problems with this kind of case and suggest strategies for dealing effectively with them. More