I’ve observed before that titles II and III of the ADA create what can be called a crime looking for a victim.* The decision in Hamer v. City of Trinidad, 2019 WL 2120132 (10th Cir. May 15, 2019) shows how defining the crime can change the burden cities may face today based on decisions that go back decades or even centuries. The decision in Hamer will allow almost any person with a disability to demand that every inaccessible facility of a town like Trinidad be fixed regardless of its historical origin and regardless of how long the plaintiff has known of the problem. This decision contradicts decisions from other Circuits and follows a dubious analytical path. (For those who want a different view on this case, William Goren’s blog Repeated Violations Doctrine makes the case for this decision being correct). More
Accessibility moots a website accessibility claim – a surprising decision that shouldn’t surprise anyone.
By Richard Hunt in Accessibility Litigation Trends, ADA - serial litigation, ADA Attorney's Fees, ADA Internet, ADA Internet Web, ADA Litigation Procedure, ADA Mootness, ADA Web Access, ADA Website Accessibility Tags: ADA defense, ADA website accessibility, ADA website defense, Diaz v Kroger, Katherine Failla
On Tuesday, June 4 Judge Katherine Failla of the Southern District of New York issued a critical decision finding that a website accessibility case could be mooted by simply fixing the website. Diaz v. Kroger Co., Case No. 1:18-cv-7953 (June 4, 2019). She also found that Kroger was not subject to personal jurisdiction in New York on more conventional grounds, but the mootness holding is critical. More
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA Litigation Procedure, Restaurants Tags: ADA defense, allergies, celiac disease, Colonial Williamsburg, gluten intolerance, gluten-free meals
J.D. v. Colonial Williamsburg Foundation, Case No. 18-1725 (4th Circuit, May 31, 2019) to my attention. For those interested in the parameters of the ADA’s requirement that public accommodations modify their rules for the disabled the case has a thorough discussion of the basic case law. What I find more interesting is the Court’s failure to address its imposition of a double standard in dealing with modification requests. It seems that for businesses it is forbidden to deny a modification request based on past experience with others while for those with disabilities it is perfectly reasonable to demand a modification based on the fear that what others did in the past will be done by a completely different public accommodation. The Court never explains why this should be the case.
The background is simple. The plaintiff child has celiac disease or some similar lesser condition and reacts badly to gluten. In the context of this appeal from a summary judgment the existence of a “disability” under the ADA was assumed.** On a school trip to Colonial Williamsburg his parents packed a special gluten free meal for him despite the availability of gluten free options at the Shields Tavern, the restaurant to which the group went to for lunch. They did this because they had had bad experiences at other restaurants in the past although they had never been to this restaurant or any other at Colonial Williamsburg in the past. Based on their experience with other, unrelated, restaurants they were afraid to trust the Shields Tavern.
When they arrived at the Shields Tavern they were told they could not bring in outside food because it violated health department regulations, but the restaurant could provide gluten free meals for the child or allow them to simply wait inside with the rest of the group to enjoy the atmosphere. Things went badly and the child and his father ended up eating outside. This lawsuit followed.
The principal question was whether the restaurant had unlawfully refused a requested reasonable modification that was necessary for the child to have the same dining experience as his classmates; that is, was it necessary that the father and child be permitted to eat their special food in the restaurant. The restaurant’s argument was simple – because it offered gluten free meals no modification was necessary. Their existing gluten free options completely addressed any need related to the child’s disability. The parents, on the other hand, argued that their fear based on past experiences at other restaurants made it unreasonable to expect them to trust this restaurant. Thus it was “necessary” that they be permitted to bring their own food.
The ADA and its implementing regulations have something to say about fear based on past experience. When a public accommodation is asked to grant a modification and believes the requested modification presents some threat or danger it must make “an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence.” 28 CFR §36.208(b). This means, for example, that a basketball camp could not exclude a player with HIV because there was no objective medical evidence that there was a significant risk others would be infected through contact. Doe v. Deer Mt. Day Camp, Inc., 682 F. Supp. 2d 324, 349 (S.D.N.Y. 2010). This was so despite the fact that even if the risk is very small, the consequences of HIV infection are very severe.
In J.D. v. Williamsburg the 4th Circuit adopted a different standard for the parents’ fear of exposing their child to food cooked in a restaurant. Instead of an individualized assessment of the restaurant’s ability to produce a truly gluten free meal the parents were allowed to demand a modification based on past experience with other unrelated restaurants.
The Court addressed this as part of the “necessity” requirement for a reasonable modification. In doing so the Court completely disregarded the usual requirement that decisions be based on an individual inquiry rather than mere stereotypes. It found that the offer of a gluten free meal might not be adequate (a jury would have to decide) based on the family’s experience with food “prepared by commercial kitchens.” The phrase “commercial kitchen” applies to a very wide variety of food service establishments. The taco stand in the Chevron station a few miles from my house is a commercial kitchen, as are fast food restaurants, food trucks and, of course, the most expensive fine dining experience in the world, the Osteria Francescana in Moderna, Italy, ranked as the best restaurant in the world in 2018 according to Forbes.
Nowhere does the Court consider whether something beyond the parents’ fear creates a “necessity” for the modification; in fact it expressly disregards the actual ability of the restaurant to deliver a truly gluten free meal. The child was entitled to eat his own food in the restaurant based only the fact he had bad experiences in other restaurants in other places and without any evidence other than speculation that his other restaurant experiences were in fact the cause of symptoms or any showing the symptoms in those past incidents were especially severe.†
What seems to really stand behind this decision is not the need for the modification (because there was no objective evidence that it was needed) but rather the ease of granting it. Whether the parents’ fears were objectively rational or not, letting the child eat his special food in the restaurant would have cost the restaurant almost nothing in terms of money or convenience. As a reason for a practical decision by the restaurant’s management the low cost of granting the modification makes sense, but the ADA doesn’t require modifications unless they are necessary – reasonableness is a different inquiry. With this case we have a double standard in evaluating modification requests. A public accommodation cannot rely on fears based on past similar experiences; it must consider only the individual request before it. Those with disabilities, on the other hand, are entitled to a modification based only fear arising from the past mistakes of completely unrelated parties who happen to be in the same business (“commercial kitchens”).
The legal takeaway for restaurants is simple. If you want to avoid expensive litigation grant the unreasonable modification that probably isn’t required. After all, the person demanding it has the ability to use the courts to cause far more trouble than it is worth to stick to what the law requires or permits. This is, of course, the entire story of private enforcement of the ADA and the reason money is wasted on lawyers instead of being devoted to real issues of accessibility for the disabled.
** The circumstances under which allergies and food intolerances constitute disabilities are hard to define because in most cases there is a wide range of symptoms from almost trivial to life threatening and in many cases medical evidence of the condition is hard to find. See my blogs on “Allergies and the ADA” “Gluten free for free” and “A story with a moral” for more on this subject.
† The only evidence recited by the court was that after eating at one restaurant the child “wasn’t feeling well” and in the case of the other he “experienced symptoms consistent with having ingested gluten.” There was no evidence that restaurant food had caused severe reactions and no medical evidence that in the two cases recited by the parents the later symptoms were in fact caused by consumption of restaurant food although they did say that in one case they returned to the restaurant and found a regular noodle mixed in with the gluten free noodles in his pasta.
My colleague William Goren recently shared with me some correspondence with an internet service for attorneys that was offering a free webinar. Bill is deaf and was inquiring about captioning for the webinar. The response was that the service through which the webinar was offered didn’t offer captioning. I had looked at the same issue myself a few years ago in an effort to make my own webinars more accessible. What I found was that to add captions to a prerecorded webinar is relatively easy and inexpensive, but that live captioning was both technically difficult and expensive. Bill’s inquiry made me spend some additional time looking at whether captioning is something the ADA should require (assuming, of course, that the ADA even applies to websites and services provided on the internet).
The first place to look for web accessibility standards is, of course, the Web Content Accessibility Guidelines. They have no legal standing, but they have been used as the de facto standard by the Department of Justice and at least one district court. They are also incorporated into the regulations for Section 508 of the Rehabilitation Act, which requires accessibility for federal government electronic communications, including websites.
WCAG 2.0 success criterion 1.2.4 requires captioning for live audio content in synchronized media – meaning live video presentations in which someone talks. This is a success level AA criterion, so it falls within the requirements imposed by Section 508 and the many settlements negotiated by DOJ and others. However, WCAG success criteria seem to be based more on the availability of technology than the cost of the service. The underlying principle seems to be if you can do it you should do it even though the cost may be prohibitive.
This is where reasonableness and undue burden come into play. Remember that unlike other anti-discrimination statutes the ADA requires affirmative action to make public accommodations and their services accessible.* For the disabled, equal treatment isn’t enough because their disabilities make it difficult or impossible to take advantage of facilities and services as they exist. Without the requirement of affirmative action any public accommodation could claim it was not discriminating as long as it provided the same physical space and services to everyone. Sections 12182(b)(2) and 12183 contain the affirmative action requirements at the heart of Title III of the ADA. Section 12183 concerning new construction doesn’t apply to websites at all, so disabled website accessibility advocates must find relief in something under Section 12182(b)(2)(A). Of these only (ii) and (iii) plausibly apply to an inaccessible website, and these are both qualified. Section 12182(b)(2)(A)(ii) requires “reasonable” modifications in policies, procedures etc while Section 12182(b)(2)(A)(iii) requires the provision of auxiliary aids and services only if they do not impose an “undue burden.”
Thus, under any theory of website accessibility the changes needed to make a website accessible must either be reasonable or not impose an undue burden. WCAG 2.0 suggests that captioning is not so technically difficult providing it would be unreasonable or burdensome, but WCAG 2.0 doesn’t look at cost, and for captioning cost is as much an issue as technical ability. So, where can we find information about what cost is reasonable for captioning?
Fortunately there is a law and set of regulations that looked very specifically at the cost of captioning technology. The Telecommunications Act of 1996 was passed in part as a reaction to the holding in Stoutenborough v. Natl. Football League, Inc., 59 F.3d 580 (6th Cir. 1995), a case that refused to apply the ADA to football broadcasts. It did not directly address captioning, but the effect was to exempt broadcasters from any ADA accessibility requirement. The Telecommunications Act remedied this by providing for a phased in requirement that TV broadcasts be captioned. It gave the FCC authority to implement the captioning requirement and in particular to determine by rule when it would be too costly.
The FCC regulations took cost into account when creating a series of “self-executing” exemptions to the captioning requirement. Two of those exemptions are relevant to the reasonableness and undue burden problem under the ADA. The FCC exempts from captioning any broadcaster with less than three million dollars in annual revenue or for whom captioning would cost in excess of 2% of gross revenues. This is pretty clearly a regulatory finding that these costs are excessive in relation to the benefit of captioning live video.
Television broadcasts and webcasts are not perfectly comparable, of course, but it seems unlikely the cost of captioning a live webcast is any less than the cost of captioning a live television broadcast despite possible differences in technology. The biggest difference is likely to be that the capital and licensing costs associated with television broadcasting mean most broadcasters will not meet this economic exemption. The ease and low cost of internet webcasting, on the other hand, make it very likely that a large majority of webcasters would be exempt under these standards. In any case, for this slice of the accessibility pie we do have a reasonably authoritative determination as to when the cost of accessibility imposes an undue burden on the owner or operator of a webcast. If the webcaster has revenues of less than three million dollars or the cost of captioning would exceed 2% of its revenues then notwithstanding the WCAG success criteria captioning of live webcasts should be regarded as an undue burden.
* See the discussion in Natl. Fedn. of the Blind v. Target Corp., 452 F. Supp. 2d 946, 951 (N.D. Cal. 2006).
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees Tags: ADA defense, ADA Website Litigation, FHA Defense, Oscar Rosales, Pacific Trial Group, Peter Strojnik, Scott Ferrell, Scott Johnson, unruh act
This Memorial Day we are once again firing up the grill with hundred dollar bills to celebrate how the ADA its current form encourages litigation that makes lawyers rich without any correspondening improvement in meaningful access for the disabled. The first case presents the unappetizing picture of a single claimed lack of access generating parallel state and federal proceedings as defendants and plaintiffs maneuver for a procedural advantage. The last explores the exploitation of California law by plaintiffs who can use internet accessibility claims to bring the whole world into their favorable local courts. In between we will see some courts pushing back, though only in the most egregious cases. More