Fall mushrooms are beautiful, but also potentially poisonous, which is a real stretch for an analogy to the disability protection provisions of the ADA and FHA. Here’s a roundup of the latest decisions.
Website accessibility – let’s review
- Websites are covered by Title III of the ADA only as a service or means of communication for a physical place of business. That nexus requirement implies that to suffer an ADA injury from an inaccessible website the plaintiff must be seeking the goods and services offered by the physical business.
- Websites are covered by Title III of the ADA when associated with a physical place of business, but a plaintiff can suffer an ADA injury from being denied access to the website regardless of whether they seek the goods and services of the physical business.
- Websites are public accommodations covered by Title III of the ADA regardless of whether they are associated with a physical place of business, so a denial of access necessarily causes the plaintiff to suffer an ADA injury.
The first and third choices have their own logic, but the middle one makes no sense at all. An ADA injury arises when the plaintiff is denied access to the goods and services of a public accommodation. If the plaintiff has no interest in those goods and services then a denial of access causes no injury.² Decisions like Roman v Greenwich Village Dental do nothing to help those with disabilities who might need access to the goods and services of a business but do help lawyers get rich and create the legal atmosphere in which some plaintiffs’ lawyers don’t bother with having a real plaintiff (see Antonini v. Nieves below). After all, if you don’t need a real injury to maintain a suit under Title III of the ADA why bother having a real person as plaintiff?
Williams v Kincaid, 2022 WL 3364824 (4th Cir. August 16, 2022) is not the first case to consider gender dysphoria as a disability, and marks the second time the Fourth Circuit has considered the difference between gender identity and gender dysphoria.¹ However, as a circuit court opinion holding that gender dysphoria can be a disability covered by the ADA it has special prominence, not only because of its possible effect on individuals suffering from gender dysphoria, but also because of what it teaches about interpreting the ADA in light of changing science and technology and the possible need for updating the ADA’s definitions in light of those changes.
August is (in Texas at least) the month of afternoon thunderstorms. It’s a good metaphor for running a business subject to the ADA or FHA. Everything’s sunny and warm one minute then suddenly the wind is blowing and you are soaking wet. But the plants need the rain, so as usual there’s good and bad in ADA and FHA developments.
HUD’s press releases are interesting reading, not because they help you understand the law, but because they help you understand what HUD thinks the law is, and because they are often object lessons in mistakes no housing provider should make. This is a round up of press releases in the last four or five months, each of which has its own lesson to teach. I’ve also included a discussion of HUD’s guidance on animal accommodations at the end based on Bill Goren’s recent blog on the subject.