The title of today’s blog recognizes the gift bestowed by Judge Nannette Brown on everyone interested in the ADA in all its many details. Bailey v. Bd. of Commissioners of Louisiana Stadium and Exposition Dist., 2020 WL 5309962 (E.D. La. Sept. 4, 2020) is the latest of Judge Brown’s decisions concerning the dispute over stadium seating in the Superdome. Written after trial, the 64 page decision methodically dissects the law concerning concerning which standards apply to what parts of a facility after alterations, what the sight-line requirements for stadiums are under the various standards, including an exposition of the law concerning Auer deference and the effect of Kisor v. Wilke, how Title II program accessibility requirements fit into design/build standards, what kind of control is required for a person to be an “operator” of a public accommodation, when and how the “reasonable modification” requirement in Title III of the ADA applies to Title II entities, and last but not least the extent to which Title I’s “interactive process” requirement might apply to Titles II and III. The Fifth Circuit, and maybe the Supreme Court, will have the last word in this case, but if you are looking for a quick reference to almost every issue that comes up in a case involving altered facilities you can find it in this decision.¹ More
By Richard Hunt in Accessibility Litigation Trends, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees Tags: accessible Uber cars, ADA "deterrent effect, ADA arbitration, ADA defense, ADA standing, Naminsnak v Uber
The August 24 decision in Naminsnak et al v. Uber Technologies, Inc. Case No. 18-15860 (9th Cir. August 24, 2020) is interesting for many reasons, so I’m glad my fellow blogger Bill Goren forwarded the opinion.¹ The short version is that Uber was sued because it did not make accessible cars available in New Orleans and failed in its effort to force the case into arbitration. How the case and court got to that conclusion is what’s interesting.
Arbitration agreements can be a very effective tool for reducing the time and money it takes to resolve a dispute, which is why I advocate their use as one tool to reduce exposure to surf-by lawsuits.² They can be good for consumers for the same reason if fairly written. They are not, however, good for plaintiffs’ lawyers in ADA lawsuits. The primary strategic advantage the ADA gives to plaintiffs is the asymmetric rules concerning attorneys’ fees for the winner. A winning plaintiff inevitably has their attorneys’ fees paid by the defendant. A winning defendant almost never does. For an ADA defendant a lawsuit is a lose/lose proposition and so most settle quickly, often regardless of merit.
That is why, I believe, Uber was so anxious to enforce its arbitration provision against the plaintiffs and the plaintiffs’ attorneys were so anxious to make sure it could not be enforced. For Uber arbitration would create a level playing field, or even one tilted in Uber’s favor. For plaintiffs it would take away their strongest strategic advantage.
The plaintiffs attorneys used a clever strategy to avoid arbitration. The Uber app includes an arbitration agreement that is almost unavoidable because once you download the app and create an account you have agreed to arbitrate. California, where this suit originated, recognizes this kind of built in arbitration agreement, so the plaintiffs’ lawyers were faced with a conundrum. How to sue Uber for violating the ADA when your client never downloaded, let alone tried to use the Uber app. The answer was clever. Don’t download the app and claim you didn’t do so because it would be futile. Section 12188(a)(1) of the ADA provides that nothing in it requires that a person with a disability engage in a futile gesture if they have notice the defendant does not intend to comply with the law. In this case the plaintiffs knew that accessible vehicles are not available through Uber in New Orleans. They therefore sued without ever downloading the app; claiming it would be futile to do so.
Futility is not the end of the story though. A plaintiff may not be required to engage in a futile gesture, but they still have to show they suffered a concrete injury as a result of the discrimination they never faced. For this Uber hung its hat on cases that suggested a plaintiff who knew of a discriminatory condition but never tried to face it only suffered an injury from being humiliated. Uber claimed that the plaintiffs never suffered humiliation because they never even tried to get an accessible vehicle. The Ninth Circuit found that humiliation was not required because of its “deterrent effect” doctrine. In the Ninth Circuit a plaintiff who is deterred from trying to gain access to a service or place because they know it is not accessible has already suffered an injury. It is a convenient doctrine for plaintiffs’ lawyers because it means their client can sue based on conditions almost anywhere without ever leaving the comfort of home. After all, once the plaintiff knows about the problem they can claim they were deterred from so much as lifting a finger in pursuit of whatever goods or services they claim they wanted.
But the deterrent effect doctrine doesn’t just apply to an initial injury because it comes in three flavors. In the Uber case it supported the initial injury a plaintiff must suffer to file suit. It can also be used to cover the hypothetical future injury that is necessary for standing because Title III of the ADA provides only for injunctive relief. Finally, it can be used to expand a lawsuit beyond what a plaintiff even knows about if the plaintiffs claim they were deterred from trying to find out by some initial barrier they encountered.
It is most commonly used to create a future injury, and many courts contrast it with the “intent to return” theory that requires proof of an intent to return. Of course this distinction makes no sense at all, and it is surprising that so many cases make it. A plaintiff cannot be deterred from returning to a place they never intended to return to in the first place – to be deterred is to be induced not to do something one intended to do. The “deterrent effect” doctrine should have no practical effect at all on the outcome of an ADA case; it is just a different name for the future injury that accompanies an intent to return that will never be realized.³ The use of the doctrine to expand ADA lawsuits beyond what the plaintiff even knew about is on similar shaky intellectual footing.† It may be futile for a plaintiff to go someplace knowing there are barriers to access, but until a plaintiff knows it is futile the “futile gesture” rule can’t possibly apply.
Is this the end of the story for Uber? Hardly. The decision about whether to send a case to arbitration is made early, and Uber will have plenty of chance to defend the lawsuit on its merits and to attack the standing of the plaintiffs to sue. Alleging that a plaintiff was deterred from downloading the app is easy, proving it may be more difficult. In the rare ADA Title III case that goes to trial plaintiffs not infrequently lose because they can’t persuade the court they really ever intended to buy goods or services and were deterred from doing so. However, no matter what one thinks of the plaintiffs and their lawyers in this case, the question remains: Why doesn’t Uber offer accessible cars in New Orleans? Making its service available to those with disabilities would certainly be the best defense to this and any similar lawsuit. ADA litigation is hugely wasteful in terms of money that goes to lawyers instead of accessibility, but a first step to avoiding that waste is for businesses like Uber to work on making their services available to all.
¹ Bill’s blog is at https://www.understandingtheada.com/
³ A point I have made before. See, ADA and FHA Quick Hits – Great Caesar’s Ghost edition
I was planning on another review of recent decisions in the ADA and FHA world but was struck by the number of recent decisions about voting and the ADA. They are a pleasant break from the usual run of ADA cases motivated by nothing but the greed of the plaintiffs’ bar, and while they may cause political disagreements they do illustrate some key issues under the ADA.
The limits of accessible technology and deciding what works well enough
Lainey Feingold, a long time and well know advocate for those with disabilities, referred to my earlier blog on website plug-ins* that promise accessibility in her latest blog. HONOR THE ADA: AVOID WEB ACCESSIBILITY QUICK-FIX OVERLAYS. That was nice, but even better was the way she collected other sources on website plug-ins and their problems, making her blog well worth reading for anyone interested in this subject. Of course no matter how much you study the situation the conclusion is always the same – you can’t make a website accessible with a plug-in and you certainly can’t avoid lawsuits with a plug-in. Businesses need relief from lawsuits that do nothing to promote accessibility and drain resources away from remediation, but that relief isn’t going to come in the form of doing almost nothing.
In late June Florida became, with the passage of Senate Bill 1084, the latest state to take on the problem of emotional support animals. From the descriptions in various articles it would have appeared two opposite bills were passed, for the statute was praised as both helping eliminate fraudulent ESA claims and helping disabled individuals obtain accommodations for their ESAs. It may have no real effect at all since nothing in it can affect the Fair Housing Act, which is the statute that is most relied on in making ESA requests. What it does do, though, it point out some of the problems with the way HUD and others call for accommodation requests to be evaluated. If it means what it says Florida can justly claim to be the first state to recognize that few if any ESA* requests meet the reasonable accommodation requirements of the FHA and its Florida equivalent.
The best place to start is with a basic definition of handicap or disability found in all the statutes: A disability is a mental or physical impairment that substantially limits a major life activity. There is plenty of room for argument about what constitutes a physical as opposed to a mental impairment given the fact that mental impairments are associated with the brain, which is a physical organ; nonetheless the distinction reflects a reality about scientific knowledge of mental as opposed to physical impairments. Physical impairments can almost always be objectively determined by a physical examination. Many mental impairments, especially those like anxiety, depression and PTSD, are diagnosed based on what the patient reports to the doctor about how they feel. If a patient lies or exaggerates those lies and exaggerations may be difficult or impossible to detect, especially if the patient only sees a doctor or therapist a few times, or the diagnosis is based on a standardized test. Equally important, these mental impairments range from being so mild as to constitute a mere annoyance to so severe that the person is unable to function, and the doctor or therapist has to rely on the patient to tell them how severe the impairment is.
I mention anxiety, depression and PTSD because almost every request for an emotional support animal is based on one of these three mental impairments. This is where the language of the Florida statute becomes important. Section 760.27(2)(b) says a property owner can request information that “reasonably supports that a person has a disability,” including information from a health care provider, provided that the provider “has personal knowledge of the person’s disability and is acting within the scope of his or her practice to provide the supporting information.” “Personal knowledge” is in italics because it is a phrase with a very specific legal meaning. “Personal knowledge” is knowledge obtained by direct observation. In contrast, “hearsay,” is knowledge based on something that is reported. To use a classic example, if I see a traffic light turn from green to red then I have personal knowledge that it changed. If I had my back turned but my companion tells me that she saw it turn from red to green then I do not have personal knowledge; I only have hearsay knowledge. If a patient tells their therapist they cannot sleep at night without their cat the patient has personal knowledge but the therapist has only hearsay knowledge.
If the Florida legislature means what they said, there will be very few, if any, letters from doctors and therapists that “reasonably support” a demand for an emotional support animal based on a diagnosis of anxiety, depression, PTSD and similar disorders. Why? Because the mental health professional writing the letter has no personal knowledge of the patient’s mental impairment. They only know what the patient tells them about feelings that cannot be seen and actions that take place elsewhere. In most cases, of course, not only is their only knowledge hearsay, but it is unreliable because it was obtained when the patient came in specifically to ask for an emotional support animal prescription.¹
There is another phrase in the statute that could make a difference. The statute says an ESA letter reasonably supports a request only if the doctor or therapist is “acting within the scope of his or her practice to provide the supporting information.” “Scope of practice” is not defined in the statute, but is defined elsewhere in Florida law. For example, the definition of “marriage and family therapy” is therapy in the context of marital and family systems² and would presumably not include a “diagnosis” for the individual problems of a single person. Given the number of ESA requests supported by someone with a marriage and family counseling license this alone would be a significant limit on fake ESA requests.
In addition, under Florida law every kind of mental health service is specifically limited to those who are “appropriately trained in the use of such methods, techniques, or modalities. . .” Because there is no scientific evidence that emotional support animals provide benefits to individuals suffering from disabling anxiety, PTSD and depression³ it is unlikely any mental health professional will be able to show they have training in techniques or modalities of treatment that include ESAs, making the prescription of an ESA beyond the scope of practice for any mental health professional.
If the Florida legislature were the U.S. Congress this statute would be great news for landlords everywhere. As it is, it probably won’t be that helpful even to Floridians. No state legislature can change the application of federal laws like the Fair Housing Act or change how a federal agency like HUD interprets those acts. HUD has always taken its advice on ESA’s from pet advocates and groups who believe as an article of faith rather than a matter of scientific inquiry that emotional support animals are beneficial for those with disabilities. That doesn’t mean the Florida legislature could not act in a very effective way if it chose to do so. The federal government decides what the FHA means and how it is applied, but state governments establish professional standards for doctors and therapists. It is well within the State of Florida’s power to simply declare that the prescription of an ESA constitutes unprofessional conduct subjecting a doctor or therapist to discipline or the loss of their license. That is something the legislature might want to consider when it realizes that the current law will not solve the problem.
¹ This is not by any means the only problem, of course. It is unlikely that any mental health professional other than a psychiatrist or psychologist is professionally qualified to diagnose a disabling mental impairment. There is also a clear conflict between a mental health professional’s duty to the patient (get them what it seems they need) and the duty to tell the truth to others (that is, tell the landlord the patient is not entitled to an ESA.). Finally, of course, whether any mental or physical impairment is a disability depends on a legal test (“substantially limits a major life activity”) that mental health professionals are not trained to apply.
² FS 491.003(8)
³ See my blog “Science v. HUD” It is important to recognize the difference between specially trained animals (service animals) whose work may include some component of emotional support, therapy animals that provide support during therapy but don’t go home with the patient, and emotional support animals, that have no training and live with the patient. There has been quite a bit of scientific study of therapy animals; but little or none concerning emotional support animals.