In the last two years the federal courts have had a number of opportunities to find that Title III claims under the ADA are not arbitrable and have declined the invitation. That doesn’t mean these cases are in fact going to arbitration. In every case I found the arbitration agreement was found to be unenforceable on state law grounds, leaving open the possibility of a public policy argument. Nonetheless, I think that a properly written and implemented arbitration clause can force a Title III case into arbitration and give defendants a chance to avoid much of the unnecessary cost of litigation. Here’s why.
The starting point in a discussion of arbitration for civil rights statutes has to be Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647 (1991). In Gilmer the Supreme Court found that claims under the Age Discrimination in Employment Act could be made subject to a valid arbitration agreement, rejecting claims that it was somehow inconsistent with public policy. A few months later Congress passed the Civil Rights Act of 1991, in which, among other things, it affirmed that More
The official worst heat-wave ever is now over in both the U.S. and France, but Sirius is still rising just before dawn and nothing has cooled off in the courts. Here are the latest cases on ADA and FHA issues.
Auer deference – the subject of the Supreme Court’s recent decision in Kisor v. Wilkie – has played a role in some important ADA cases, especially those concerning the line-of-sight issue for movie theaters and stadiums that Justice Kagan mentioned in her opinion. Despite this, Kisor is unlikely to have much effect on Title III jurisprudence both because of the limits on the decision, which confirmed Auer deference with a little explication, and because of the limits on Auer deference itself. Auer deference could be outcome determinative in ADA cases, but at the end of the day it is the court, not the legal principle, that matters. 
I do like to toot my own horn from time to time. I was among several ADA experts quoted in an article by Zachery Zagger on stadium line-of-sight problems under the ADA that was published by Law 360 on July 3, 2019. These cases figure prominently in the Auer deference issues for Title III of the ADA that I hope to blog on soon. See, 
Just last week the Supreme Court took a long hard look at something called “Auer deference” and decided that it would remain the law, but with some strings attached. Kisor v Wilke, No. 18-15 (June 26, 2019). I’ve never once had the occasion to mention Auer deference in this blog or in any brief I’ve filed in disability lawsuits, but the decision could have an impact on future disability rights litigation. In this blog I’ll consider the possible impact on litigation under the Fair Housing Act. In the next I’ll look at what turns out to be the more complex possible effects on litigation under Titles II and III of the ADA. Before I explain why, I should refer anyone interested in a detailed analysis of the decision to William Goren’s blog on the subject