Obvious but often overlooked – it takes more than an impairment to be disabled under the ADA (or FHA)

March 21, 2018 By Richard Hunt in Accessibility Litigation Trends, ADA, ADA FHA General, ADA FHA Litigation General, ADA regulations, Definition of disability, FHA definition of handicap, Uncategorized Tags: ADA, Alcoholism, disability, FHA, Major life activity

The March 13 decision in Johnson v. NYS Office of Alcoholism and Substance Abuse, 1:16-cv-9769 (S.D.N.Y. March 13, 2018) shouldn’t be particularly interesting. The plaintiff claimed to be disabled because he was a recovering alcoholic. The Court dismissed the complaint because the plaintiff did not allege that his alcoholism interfered with a major life activity, explaining:

Although alcoholism is considered an ” impairment” under the ADA and the Rehabilitation Act , “more than a physical or mental impairment is required ” to satisfy the definition of “disability. ” Because ” [m]ere status as an alcohol or substance abuser does not necessarily imply a limitation under the anti-discrimination statutes, a plaintiff who alleges that he is disabled “must demonstrate not only that he . . . was actually addicted to drugs or alcohol in the past, but also that this addiction substantially limits one or more of his . . . major life activities. ” (quoting an earlier case). More

Texas Bar Today lists Accessibility Defense among its top ten blogs

March 13, 2018 By Richard Hunt in Accessibility Litigation Trends Tags: Accessibility Defense, Texas Bar Today, Top 10 Blogs

Accessibility Defense was one of the Top Ten Blogs for the week of March 5, 2018 at Texas Bar Today, the daily news site for the Texas Bar Association. Our goal is to provide the kind of useful information about the ADA and FHA that will continue to bring in awards like this. You can help by sending an email to me (rhunt@hunthuey.com) with your comments about what you like and don’t like about the blog.

ADA Compliance Policies and Procedures – you need them, and now.

March 5, 2018 By Richard Hunt in Accessibility Litigation Trends, ADA - Standing, ADA Class Actions, ADA Litigation Procedure, ADA Policies Tags: ADA Class Action, ADA Policies and Procedures, Auto Zone, Casey's

A pair of recent cases, both brought by the same law firm on behalf of different plaintiffs, underscore the importance for every business of having policies and procedures for both ADA compliance and maintenance. This is especially important for businesses with multiple stores because a policy and procedure class action will elevate a single bad parking space to a nationwide class action, making both remediation and settlement or remediation very expensive.* More

Fighting fake ESA’s – Guidance on what constitutes reliable evidence of disability

February 28, 2018 By Richard Hunt in Accessibility Litigation Trends, ADA FHA General, Animals, FHA definition of handicap, FHA Emotional Support Animals, FHA Guidance, Landlord-tenant Tags: Emotional Support Animal, Fair Housing Act, FHA Guidance, FHA medical verification

This week’s news is a year old, but very important for apartment owners and managers confronted by the increasing flood of fake emotional support animal requests.* In March of 2017 the Virginia Fair Housing Board, which carries out Virginia’s mandate for disability rights in housing, issued a formal guidance on what constitutes reliable evidence of a disability and a disability related need for an emotional support animal. You can download the guidance here, but here are the highlights. They are based on the Board’s position that reliable evidence of a disability can only come from someone who has a therapeutic relationship with the tenant. More

Quick Hits – Presidents’ day edition.

February 19, 2018 By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Web Access Tags: "drive-by" ADA lawsuits, ADA, ADA cheap standing, ADA standing, serial ADA filers

Cases decided in the last few weeks are mostly good for business, not because they fail to enforce the ADA, but because they refuse to let dubious serial filer claims get beyond the initial pleading stage. Here’s the lineup.

Standing and cheap standing

Cheryl Thurston v. FCA US LLC, et al., EDCV172183JFWSPX, 2018 WL 700939, at *3 (C.D. Cal. Jan. 26, 2018) is a district court decision that in some ways anticipates the 5th Circuit decisions we blogged about earlier this week. It is a web accessibility case and could be crucial in the effort to stop abusive serial litigation against websites. The plaintiff alleged in general terms that she had tried to use the defendant’s website to find a dealer and that she found barriers to access. She did not allege that she was unable to find a dealer, and for the Court this meant she had failed to allege an injury. This may seem obvious, but courts in the Ninth Circuit have a long history of holding that mere exposure to an inaccessible public accommodation is sufficient to state a claim under the ADA based on the notion that it makes the plaintiff feel bad to see ADA violations. Rejecting that argument and requiring at least an allegation of real injury would be a giant step forward for getting rid of abusive litigation. More