Good news and a sobering reminder about “sober homes” and the FHA

November 14, 2016 By Richard Hunt in ADA FHA General, ADA FHA Legislation, FHA Guidance, FHA Reasonable Accommodation, FHA Regulation, Internet Accessibility

The Department of Justice and Housing and Urban Development have just issued a guidance document concerning sober homes and other types of group living arrangements. It should help provide some clarity to cities and towns still wrestling with issues related to group living after decades of litigation. At the same, however, the document reminds us of the sobering reality that the Department of Justice and Housing and Urban Development believe they are above the law in their roles as advocates for the disabled, and will not hesitate to use their essentially unlimited resources to litigate intellectually unsustainable positions. More

What a Trump presidency means for the ADA

November 10, 2016 By Richard Hunt in Accessibility Litigation Trends, ADA, ADA - serial litigation, ADA Class Actions, ADA Internet, ADA Internet Web, ADA Web Access, DOJ Tags: ADA, DOJ, enforcement, presidency, Trump

The ADA played a typically minor role in the recent election. Democrats made it clear they were for the disabled but did not propose specific new programs. Republicans barely mentioned the disabled except for a brief controversy involving Trump mocking a disabled reporter. With disability rights playing such a minor role in Republican politics one might think that Trump’s election means no change, but in fact a Trump presidency may lead to a significant narrowing of the ADA’s application and reduced federal enforcement action. More

Fair Housing traps – when targeted advertising becomes discrimination

November 3, 2016 By Richard Hunt in Accessibility Litigation Trends, FHA, FHA Policies, Landlord-tenant Tags: Facebook discrimination, FHA Advertising, FHA Discrimination, Google discrimination, Pro Publica, Targeted Advertising

A recent study from ProPublica, “Facebook Lets Advertisers Exclude Users by Race” describes how Facebook’s tools for audience targeting allow housing advertisers to exclude specific racial and ethnic groups from seeing their ads. Facebook justifies this practice with the argument that: “Everyone benefits from access to content that’s more relevant to them” and points out that targeted advertising is commonplace. This is certainly true – billboards in Spanish are generally found in communities with large Spanish speaking populations, and advertisements for hair care products and cosmetics aimed at black consumers are never found in mostly white suburbs. The positive side of targeted advertising has, however, an ugly negative equivalent. Everyone who is not targeted is excluded, and that exclusion may be illegal. Who’s not standing on the bulls-eye in this picture? A family, someone with a disability, perhaps a Muslim. Does that mean they are unwelcome? Perhaps not, but it sure looks likes it. More

Mootness and the ADA – Fighting may not be the best way to win.

November 1, 2016 By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA Mootness Tags: ADA Mootness, ADA Policies, Albertson's, Cracker Barrel, Fix First then Fight

Fight fight fight fight fight. It’s a great way for lawyers to make money, but it may not be the best way to win an ADA case. A look at the cases shows why having a good ADA policy and the right attitude toward ADA violations are critical in the defense of an ADA case.

We can start with the contrast between Moras v. Albertson’s LLC, 2016 WL 5661985 (D. Idaho Sept. 29, 2016) and Heinzl v. Cracker Barrel Old Country Stores, Inc., 2016 WL 2347367 (W.D. Pa. Jan. 27, 2016). Both cases involved chain stores with multiple locations and accessibility problems in their parking lots. In both cases the defendant moved for summary judgment based on having corrected the ADA violations, and in both the plaintiff conceded that the remediation work had been done. Beyond that, however, there were significant differences in the two defendants’ approach to the cases. More

ADA and the Gig Economy – what Uber and Lyft cases mean for everybody.

October 22, 2016 By Richard Hunt in Accessibility Litigation Trends, ADA Class Actions, ADA Gig Economy, ADA Internet, ADA Internet Web, Internet Accessibility Tags: Gig Economy, Kardashian, Lyft, National Federation of the Blind, uber

Uber and Lyft have made news for the last couple of years because of allegations that their drivers do not provide appropriate service to disabled individuals.(1) Settlement of a national class action against Uber is awaiting court approval in the Northern District of California,(2) but as recently as October 13 another lawsuit was filed claiming that Uber drivers did not comply with the ADA.(3) Legal arguments about the application of the ADA to app based services using independent contractors are fascinating, but these lawsuits have a much broader importance in the modern gig economy, for increasing numbers of individuals have dropped or been forced out of traditional employment positions and are now on their own, dealing directly with the public and making decisions that may have ADA and fair housing implications.(4)

One of the persistent myths about the ADA is that it only applies to businesses of a certain size, and many indivduals operating solo businesses assume that they are just too small for the ADA to apply to them. The confusion comes because Title I of the ADA, concerning employment, is limited to businesses with more than 15 employees. Title III of the ADA, which governs the interactions of a business with the public, has no such limitation. The homeless man who washes your windshield at a stop light and hopes for a few bucks as a tip is just as much a “public accommodation” subject to Title III of the ADA as a Walmart or a Holiday Inn hotel.(5) In a gig economy the freedom that comes with working for yourself is accompanied by a legal obligation to those with disabilities that may be hard to understand. Here are just a few examples:

Internet sellers have varying degrees of control over the websites they use to display their goods and receive payment, and may not understand that the very act of selling makes them public accommodations with some obligation to sell through accessible websites. You don’t have to be a Kardashian to be sued under the ADA for having an inaccessible website.(6)
Ride share drivers are public accommodations just like the companies they contract with. The first target of a lawsuit will usually be Uber or Lyft or a similar organization for the very good reason they are bigger and have more money, but individual drivers can be targets as well.
Boutique bakers, brewers and pastry chefs operating out of a tiny storefront or old house may discover the ADA requires that their premises be accessible.
Freelance yoga instructors may need to consider what they will do when a student with physical or intellectual impairments wants to join their class in the park.

The ADA and the ADAAG and 2010 Standards make a nod toward small businesses, and the hypothetical, long awaited DOJ regulations concerning internet accessibility may as well, but the ADA and existing regulations were not written with the gig economy or the possibility of internet businesses in mind. Unless and until new regulations are issued, which is years away at best, folks who have embarked on independent careers working for themselves should carefully consider what their ADA obligations might be.(7)

1) You can read my earlier blogs Is it all Uber for ride-sharing businesses that don’t comply with the ADA? and Need a Lyft? The ADA may apply to app based businesses as well as these more recent articles: Court hits Uber and Lyft for ADA Violations,

2) National Federation of the Blind v. Uber Technologies, Inc., Case No. 3:14-cv-04086. A hearing is set for December 1, 2016 on approval of the settlement.

3) See, Chicago Disability Advocates file Lawsuit Against Uber over Wheelchair Accessibility.

4) An interesting take on this phenomenon can be found at Why I Tell My MBA Students to Stop Looking for a Job and Join the Gig Economy

5) 42 U.S.C. section 12181 limits “public accommodations” to those that affect interstate commerce, but interstate commerce has been so broadly defined by the courts that this does not limit the meaning of “public accommodation” in any meaningful way. After all, the homeless windshield washer may well be washing the windshield of a car from another state.

6) See, Legally Blind Man Sues Kardashian DASH Stores For Violating His Rights — But Is It Just A Money Grab?!

7) Employers interested in telecommuting and other issues related to the gig economy will find a lengthy article on Title I issues at http://www.jdsupra.com/legalnews/telework-under-the-ada-other-16761/