Quick Hits – Vernal Equinox edition.

March 24, 2018 By Richard Hunt in Accessibility Litigation Trends, ADA - serial litigation, ADA FHA Litigation General

Along with the crocus and narcissus we’ve got a bunch of new ADA and FHA cases, each with some interest for those in business concerned with disability law.

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In Gathers v. 1-800-Flowers.com, Inc., 17-CV-10273-IT, 2018 WL 839381, at *1 (D. Mass. Feb. 12, 2018) the defendant raised just about as many legal defenses as might be available in a motion to dismiss, but they all failed. Behind the failure is the difficulty present in all ADA cases; that is, the plaintiff’s allegations are really all that matters at the beginning of the case. In many cases the most cost-effective strategy is to remediate as needed to meet the plaintiff’s claims and then file a Motion for Summary Judgment. First Fix, Then Fight is our motto and the best game plan in most ADA cases. More

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