Today’s press release concerning HUD’s Fair Housing Initiative Program (“FHIP”) says all you need to know about HUD’s approach to eliminating housing discrimination. Out of more than $37 million dollars made available to improve fair housing in this program, HUD is spending about 20% on programs intended to educate the public and business about their rights and obligations, while 80% goes to funding private organizations that are in the business of either suing folks or filing HUD complaints. HUD is clearly much less interested in helping people obey the law than in punishing people who fail to obey it. The press release ends, of course, with information on how to file a complaint with HUD. There’s no mention of where to go for education on following the law. More
ADA and the Internet – Guilty until proven innocent, and you don’t get to prove you are innocent.
By Richard Hunt in Accessibility Litigation Trends, ADA Internet, ADA Internet Web, Internet, Internet Accessibility Tags: ADA Internet, ada litigation, ADA standing, ADA web, Arthur Schwab, Harbor Freight, private lawsuits, private litigants
In a decision issued on April 20, Judge Arthur Schwab of the Western District of Pennsylvania makes it clear that every potential defendant who was sent one of the Carlson Lynch firm’s ADA Internet demand letters will end up in his court, and will have little choice but to settle. Since Carlson Lynch apparently sent hundreds of letters, Judge Schwab has effectively seized control of hundreds of cases that have not yet been filed. Sipe v. Am. Casino & Entm’t Properties, LLC, 2016 WL 1580349 (W.D. Pa. Apr. 20, 2016). More
DOJ rolls out new website to provide no help whatever to businesses concerned with internet access
By Richard Hunt in Accessibility Litigation Trends, ADA Internet, ADA Internet Web, ADA regulations, ADA Web Access, Internet Accessibility Tags: ADA Internet, ada litigation, ADA web, WCAG 2.0, World Wide Web
I wish that this were one of those satires found The Onion and similar publications. On April 25 at 3:00 a.m. Central Time the Department of Justice announced a new “Accessible Technology” section in the DOJ’s ADA website (http://www.ada.gov/access-technology/index.html). The new web page is supposed to:
“assist covered entities and people with disabilities to understand how the ADA applies to certain technologies, such as Web sites, electronic book readers, online courses, and point-of-sale devices.” More
Disabled? Compared to whom? Measuring ADA disabilities
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA FHA Litigation General, Definition of disability, major life activity Tags: ADA disability, ada litigation, dyslexia, mental health disabilities, Mental Impairment, private litigants
In Winston Groom’s “Forrest Gump” a young man with a significant intellectual impairment manages to accomplish great things through a combination of luck, determination, and insistent loyalty to his friends and family. Was he disabled as that term is defined under the ADA? An April 11 decision from the Easter District of Pennsylvania reminds us how complex a disability determination can be. It also highlights a persistent question with intellectual and other mental impairments: If hard work and character allow someone to overcome their limitations, is that person really disabled? Bibber v. National Board of Osteopathic Medical Examiner, Inc., 2016 WL 1404157 (E.D. Penn. April 11, 2016). More
Obesity as disability – the Eighth Circuit weighs in.
By Richard Hunt in ADA, ADA regulations, EEOC, Obesity Tags: ADA, EEOC, obesity, Title I
Just a quick note concerning obesity. In an April 5, 2016 decision the Eighth Circuit joined the Sixth and Second Circuits to hold that even morbid obesity is not a disability unless it is accompanied by an underlying physiological disorder or condition. Morriss v. BNSF Ry. Co., 2016 WL 1319407, (8th Cir. Apr. 5, 2016). The Court’s discussion is thorough, but boils down to a straightforward reading of the ADA. The definition of “disability” in the ADA starts with the phrase “physical or mental impairment.” EEOC regulations define “physical impairment” as a “physiological disorder or condition,” and its interpretive guidance, according to the Court, states that weight is only a physical characteristic, not a physiological disorder, unless it is the result of some other physiological disorder. Obesity as the result of a thyroid disorder is a disability; obesity as a result of eating is not. Konishiki, the famous sumo wrestler, is not disabled.
The decision is notable as the first circuit court decision in a case decided after the 2008 ADA Amendments went into effect. The Amendments were broadly intended to expand ADA coverage, and there was some belief that morbid obesity would fit the more liberal standard. This does not mean the law is uniform. Some lower courts have found that morbid obesity is a disability in and of itself. Employers who want to rely on Morriss v BNSF Ry. need to make sure it is the law in their circuit, and carefully consider whether the obesity in question is not the result of some other disorder or condition.