Every few months another district court confronts the inherent tension between private enforcement of laws like the ADA and the standing requirements for individual litigants in the federal courts. The Constitution regards private lawsuits as a means to vindicate private rights, and the constitutional requirements for private litigants make an uneasy fit with the goal of promoting public policies concerning accessibility for those with disabilities. The Constitution requires that a private litigant have “ standing,” which means that the party ust have suffered an injury caused by the defendant that the courts can somehow fix. In ADA litigation neither the injury nor the court’s ability to fix it may be obvious. The result is a mishmash of inconsistent approaches to standing that leaves little certainty for litigants. More
The ADA and FHA are peculiar anti-discrimination laws. We usually think of discrimination as treating people differently. The ADA and FHA, on the other hand, start out by defining a class of people – those with disabilities – who are different in their physical or mental abilities. The statutes then require that this different class of people be treated differently when different treatment is required to give the same opportunity or access. The ADA and FHA require affirmative action in favor of the disabled. The required affirmative action is sketched out in the statutes and then described in painstaking detail in the regulations promulgated under them – the Accessibility Standards and their predecessor Accessibility Guidelines. More
In late July two lawsuits were filed in the Northern District of Texas that make a radical new claim under the ADA. The plaintiff claims that store owners violated the ADA by failing to keep those without disabilities from parking in accessible parking spaces. Just how the property owner is supposed to keep accessible parking free from poaching isn’t entirely clear. There is a suggestion that the owner should call the police, but the same lawyers also sued the City of Burleson claiming that was violating the ADA by failing to enforce accessible parking laws. If the owner calls the police and they don’t come has he done enough?
Also left unanswered is question of how much personal risk the owner or its employees are supposed to undertake in the cause of disability rights. Short of a polite request to the authorities there isn’t much an owner More
By Richard Hunt
“Drive-by litigation.” That is how two major real estate trade groups referred to abusive ADA litigation in a letter to Congress. Do we really think a guy in a wheelchair who couldn’t get into the bathroom is like a murderous gang member killing for sport? To be fair, many members of the plaintiffs’ bar use equally strong language when describing real estate developers and owners. I’d like to suggest that if both sides focused on real problems instead of rhetoric we would have more progress and less litigation. More
By Richard Hunt
Two decisions from opposite ends of the country highlight an unresolved issue that should be of real concern to many businesses. In the Northern District of California Netflix persuaded the Court to dismiss an ADA complaint based on the lack of subtitles on its streaming video content. The reason was simple – a “place of public accomodation” within the meaning of the ADA only applies to physical, not virtual places. Thus, as a practical matter services offered through the web are exempt from the accessibility provisions in Title III of the ADA. At almost the same time the District Court in Massachusetts refused to dismiss an ADA claim against Netflix. The Massachusetts court had no trouble finding that cyberspace can be a “place” covered by the ADA. More