Delta’s recent announcement that it was banning “pit bull type” dogs from its flights* has focused public attention on a long-standing problem in disability law; the inherent conflict between the need for easy to apply policies concerning service and emotional support animals and the prohibition in the law against basing decisions on stereotypes. You can ban any particular pit bull if there is good reason to believe it is dangerous, but you can’t ban all pit bulls just because it is a dangerous breed. More
Effective defense of ADA website lawsuits – is there such a thing?
A client of mine recently got a long letter from a defense firm informing it that it had been sued under the ADA and extolling its own expertise in defending website accessibility lawsuits. The letter laid out in some detail the defenses they were prepared to assert in a motion to dismiss, with a description of a possible standing argument, an the assertion that the ADA did not cover websites, and a due process claim based on the lack of regulations. More
Quick Hits for the ADA and FHA – World Cup edition
Those of you who are not binge watching the World Cup matches will be interested in what has been going on in the world of disability rights during the last few weeks. Here is our roundup of recent ADA and FHA decisions, some of which are notable.
Indemnity and contribution for Fair Housing Act claims.
Shaw v. Cherokee Meadows, L.P. 2018 WL 2967708 (N.D.Okla. June 12, 2018) is another in a series of cases concerning indemnity for design/build defects under the FHA that gets it completely wrong and winds up with an absurd result. The decision has little in the way of discussion because it relies on the analysis from an earlier case, Equal Rights Center v. Niles Bolton Associates, 602 F.3d 597 (4th Cir. 2010). We’ve blogged on this issue before* but the arguments are worth repeating. Equal Rights Center based its analysis on earlier cases concerning race and similar kinds of intentional discrimination found that public policy precluded indemnity and contribution for FHA discrimination claims. In cases of intentional discrimination or respondeat superior it makes sense to forbid indemnity because you want to discourage bad intent and encourage proper supervision of employees. It doesn’t make any sense at all in design/build cases under Section 3104(f)(3)(C) because this is a “no fault” provision that can be violated without any intent to discriminate. Moreover, the owner of an apartment complex has no choice but to rely on 3rd party experts – architects and contractors – to properly design and build the apartments. When architects and contractors know that they are immune from liability for their failures they have no incentive to design and build according to FHA standards, and as a practical matter they are always immune because the first target in any lawsuit will be the owner. The Ninth Circuit has rejected Equal Rights Center for good reason, and if Shaw v. Cherokee Meadows is appealed the Tenth Circuit should reject it as well. More
Website accessibility under the ADA – what do new standards mean?
This blog was named as one of the Top Ten by Texas Bar Today.
The latest iteration of the Web Content Accessibility Guidelines became effective with the publication of version 2.1. on June 5, 2018. The newest version adds an additional 17 success criteria for compliance with WCAG, 12 of which are part of success level 2, the level that has become a de facto standard for the ADA.* I’ve shared my thoughts on how this may change the ADA litigation landscape with Usablenet, which just published its overview of the changes in “New Web Content Accessibility Guidelines (WCAG) 2.1 – What When How.” In this blog I’d like to consider the deeper questions posed by this revision: Who gets to decide what discrimination means?
It is worthwhile to start with a look at the stated purpose of the ADA itself. The declaration of policy in 42 U.S.C. §12101 never uses the word “accessible” and refers to “access” only with respect to public services. The focus of the ADA is discrimination, and standards for accessibility are only part of Congress’ intent to “to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities.” (42 U.S.C. §12101(b)(2)). More
ADA Standing “when the truth don’t lie.”
“‘What is truth?’ said jesting Pilate, and would not stay for an answer.” These words from Francis Bacon’s famous essay on truth often seem to apply in the earliest part of an ADA lawsuit. Truth is important, but takes a back seat to procedure. In Gastelum v. Canyon Hospitality. LLC, CV-17-02792-PHX-GMS, 2018 WL 2388047 (D. Ariz. May 25, 2018) the Court found a way to get to the truth early in the case, before the cost of litigation made it irrelevant.
The plaintiff is a serial filer associated with Phoenix attorney Peter Strojnik, who has a long history of mass ADA filings. According to the Court, Mr. Strojnik and Mr. Gastelum are engaged in a joint enterprise to sue local hotels “without reference to whether Mr. Gastelum actually had any intent to make future visits to those facilities for reasons not related to his pursuit of ADA claims against them.” That enterprise sued more than 125 different Phoenix area hotels in a matter of months. More