Touchscreen point-of-sale devices are ubiquitous, and the next wave of ADA lawsuits will undoubtedly be against businesses that use them. This is easy to predict because on April 10 the DOJ filed a “Statement of Interest” supporting the claims of the plaintiff in New v. Lucky Brand Dungarees Stores, Inc. (Case No. 14-CV-20574 in the Southern District of Florida). New has filed several lawsuits making essentially the same claim; that is, that a touch screen point of sale device violates the ADA because a blind user cannot input his or her PIN when using a debit card. Unlike a traditional keypad, the touchscreen has no tactile clues as to where to push for the PIN numbers, forcing a blind person to rely on the sales clerk or a third party to input the PIN. This, of course, compromises the security of the debit card. More
Two cases decided only last week illustrate what a defendant must do if it is determined to win an ADA lawsuit. In one case the defendant failed, and in the other the defendant succeeded. Both cases were ATM cases filed by the same law firm, and it is safe to assume that the work on behalf of the plaintiffs was of equal quality in both cases. The difference was the defense.
In the first case, Sawczyn v. BMO Harris Bank Nat. Ass’n, 2014 WL 1089790 (D. Minn. 2014), the defendant argued that the case was moot because non-functioning audio jacks in two ATMs had been replaced. The defendant did not address other alleged failures to comply with the ADA requirements for ATMs, and could only state with respect to its overall compliance that it was “unaware” of any other problems. There was no evidence that all the ATMs were compliant before the lawsuit was filed, and no evidence of a comprehensive policy for testing to make sure the ATMs remained compliant. The court was not impressed, and denied the defendant’s Motion to Dismiss. More
On January 31 of this year the Department of Justice published a new guidance (www.ada.gov/opdmd.pdf) on the use of mobility devices other than wheelchairs. Business owners cannot avoid paying attention to the guidance despite the fact that the DOJ has taken a position that is diametrically opposed to the existing judicial decisions regarding Segways as well as a class action settlement involving Segways at Disney theme parks. As is too often the case the guidelines invite litigation by requiring that businesses do more than is possible when trying to decide how to accommodate disabled visitors.
This guidance appears to be a reaction to several lawsuits that reached results DOJ did not like. The largest in scope was Ault v. Walt Disney World Co., 692 F.3d 1212 (11th Cir. 2012). In Ault the 11th Circuit approved a class action settlement in which Walt Disney World was allowed to ban 2 wheeled devices, including Segways, from use in its theme parks. The suit was brought under the ADA by a guest with a mobility impairment who wanted to use her Segway because she was unable to walk the distances required at the theme park. The settlement allowed Disney to continuing banning Segways, even for those with mobility impairments, in exchange for a promise to develop a 4 wheeled stand up vehicle. The settlement was approved in part because the District Court found that safety concerns were such that the plaintiffs were unlikely to prevail at trial.
The Department of Justice was among a group of objectors to the settlement. The DOJ’s regulations concerning mobility devices (28 CFR 36.311) were promulgated during the litigation, and the DOJ claimed that these regulations made it more likely the plaintiffs would prevail at trial. The District Court disagreed, in essence finding that the DOJ was wrong in its analysis of the safety risks of using the Segway in a crowded theme park.
The second lawsuit was Baughman v. Walt Disney World Co., 217 Cal.App.4th 1438 (2013). In that case the California Court of Appeals found that there was no violation of the ADA when Disney forbade the use of the plaintiff’s Segway. Once again the issue was safety, with the Court agreeing that the device was simply too dangerous for use in a theme park. A third case, also brought by Baughman in federal court in California was dismissed based on the class action settlement in the 11th Circuit case. In two of other decisions involving Segways and the ADA, the courts agreed that because of safety concerns at least some limits on Segway use are appropriate in public accommodations. See, McElroy v. Simon Prop. Grp., Inc., 2008 WL 4277716 (D. Kan. 2008) [plaintiff could be required to sign a registration and safety form], Komperda v. Hilton Hawaiian Vill., LLC, 2010 WL 4386758 (D. Haw. 2010) [plaintiff lost his ADA claim after a jury trial].
It appears, based on these cases, that everyone but the Department of Justice understands that Segways are simply too dangerous for use in crowded public areas. Despite this the new DOJ guidance insists that “devices such as Segways® can be accommodated in most circumstances,” pointedly giving theme parks as an example where Segway use should be accommodated. Armed with this guidance there is little doubt that Segway litigation will continue as disabled users claim they should be allowed to go anywhere their machine can fit, regardless of the danger to others.
What can a business do? The DOJ guidance is almost useless when it comes to answering this question, for it requires every business to formulate a policy covering all power driven mobility devices (OPDMD’s in DOJ jargon) based on five “assessment factors” that cannot be objectively measured. Businesses are allowed to develop rules, but exactly what rules are permissible remains vague. Businesses are also allowed to require “credible assurance” that the individual has a disability requiring use of the Segway, but “credible assurance” includes the user just claiming to be disabled and need the Segway. This means, in effect, that anyone who is willing to lie will be able to take a Segway into almost any public accommodation despite the fact that courts and experts agree that it is unreasonably dangerous to allow this.
Of course this isn’t just about Segways. Electric golf carts fall into the same category, and based on the DOJ’s definition the guidance would also apply to electric scooters and skateboards of all kinds. The DOJ’s position is that every disabled person is entitled to decide what device best helps him or her on a purely subjective basis, and there are no objective criteria a business can rely on to determine which devices are too dangerous to others to be excluded. Businesses are left to balance the likely costs of a personal injury lawsuit resulting from inadequate control of a Segway or other OPDMD against the cost of defending an ADA lawsuit supported by the DOJ. While it will certainly be worthwhile for businesses to pay experts to develop a policy based on the DOJ guidance, in the end, as is too often the case, the primary beneficiaries of the ADA will be experts and lawyers.
Have you ever wondered just why certain kinds of ADA lawsuits recur so often, while others are rare? Or how a business owner can be proactive in avoiding ADA and FHA Litigation? On Thursday, March 13, at 1:00 Eastern Time I’ll be presenting a webinar for the TASA Group on “Understanding, Avoiding and Defending Accessibility Lawsuits.” You can register at http://www.tasanet.com/forAttorneys.aspx.
The drums of war are pounding. Last January a disability advocate from Florida, Marc Dubin, published a short article titled “What Doctors (and Their Office Managers) Need to Know About Patients With Hearing Disabilities and Interpreter Services.” He pointed out the obvious; that is, that doctors cannot discriminate against the deaf. On March 19 of last year the Annals of Internal Medicine published and academic article on problems with care of the disabled. On May 23 the New York Times followed it with article titled “Disability and Discrimination at the Doctor’s Office” by Dr. Pauline Chen in which she described both the difficulties doctors may have treating disabled patients and the consequences to the disabled when they don’t get the right treatment. In July the Department of Justice sued a doctor in Florida based on alleged discrimination against the deaf. This was merely a continuation of its “Barrier-Free Health Care Initiative” that earlier in the year lead to a number of settlements with medical facilities. Of course when every DOJ “initiative” is a plan to investigate and sue businesses of one kind or another. Finally, just a few weeks ago the Department of Justice published its Guidance on Effective Communication.
There is plenty to worry about in these developments. Private attorneys advertise as advocates for the deaf, which means they believe there is money in litigation. High profile settlements by hospitals in cases brought by the deaf are an example to those who want to litigate, and a few deaf serial litigants have appeared. Most significant, however, is the DOJ Guidance, which seems to impose absolute requirements that many doctors and dentists will not be able to satisfy without crippling expense. It starts with this statement:
In a doctor’s office, an interpreter generally will be needed for taking the medical history of a patient who uses sign language or for discussing a serious diagnosis and its treatment options.
That’s right, no matter how small your practice and no matter how few and far between deaf patients may be, an interpreter is “generally” required.
The DOJ Guidance does note that there is an “undue expense” exception and that it may be permissable to require advance notice that an interpreter is needed, but advocacy groups, many of which shape the perception of what the law requires, tend to be more absolute, saying things like:
Hospitals, clinics, and mental health centers are covered by these laws and must also provide a qualified interpreter if needed and you are a patient, patient’s spouse or parent.
Marc Dubin, the advocate mentioned above, puts it the same way in a list of things he believes businesses should know: “In most cases, people who are deaf need a sign language interpreter to communicate with you, and you need to hire one.”
It’s also a fact that an “undue burden” defense has little or no meaning in the real world of litigation. Most businesses, including doctors, cannot afford the tens of thousands of dollars in legal fees they would have to spend winning a case based on an undue burden defense, especially since the DOJ notes that the availability of the defense might change every year depending of the financial condition of the defendant. The plaintiff’s bar is well aware that the very existence of a lawsuit will likely force a settlement, regardless of the merits.
The take-away is simple. Doctors and other medical professionals need a plan for handling patients with hearing impairments and a policy that implements that plan. The plan will have to include providing an interpreter, although it may require advance notice. That means, of course, finding a service that can provide interpreters on short notice for short periods of time. Medical professionals also need to make sure they are equipped to handle TRS phone calls from those with hearing impairments (see my January 13, 2010 blog on the obligation of professionals to handle TRS calls) . Both of these will require time and effort, but when you’ve got a target painted on your back making sure you comply with the law is a good idea.