On March 7 of this year the District Court for Colorado granted a summary judgment in a class action challenging the design of the front porch at the entrance of most Hollister stores. Colorado Cross-Disability Coalition v. Abercrombie & Fitch Co., 2013 WL 856510 (D.Colo. 2013). There are several good discussions of the merits of the case, including Julie Mills’ blog at juliesmills.typepad.com, but what struck me was the irony of the fact that the first thing a disabled shopper encounters at a Hollister store isn’t very welcoming. Of course this nationwide class is enough to get anyone’s attention, but it has one thing in common with the vast majority of ADA and FHA cases concerning physical barriers to access. They all seem to start at the front door. More
Testers and the ADA — does motive matter?
Most lawsuits brought under the ADA are brought by “testers” that is, individuals whose primary motivation is not to take advantage of particular goods and services, but rather to discover whether a particular facility complies with the ADA. This fact offends many defendants, and seems to defy the constitutional requirement that the plaintiff have suffered an actual injury. As a result, motions to dismiss that are based on the plaintiff being a tester are common. It took me very little time to find four decisions in 2013 that discuss tester standing, and more than 10 in 2012. In some of these cases the complaint was dismissed for lack of standing, but not in all. While some defendants raise the “tester” argument as if it were a generic fault, in fact its application requires careful analysis because ADA claims require not only a past injury, but also a likely future injury. More
Obesity and disability – demographics will drive litigation.
The obesity epidemic that attracts so much attention in terms of public health serves as an additional reason for businesses and property owners to pay attention to ADA and FHA accessibility issues. The statistics are well known and striking. In the last 40 years obesity (Body Mass Index >30) has increased from around 12% to more than 30% of the population. Extreme obesity (Body Mass Index > 40) has increased from around 1% to more than 6% of the population. (http://win.niddk.nih.gov/statistics/index.htm) If current trends continue, extreme obesity will become as common as mobility disabilities, which affect around 7.5% of the population (http://www.pascenter.org) . More
The yin and yang of ADA defense. Perilous settlements and temporary victories
A couple of district court decisions from late February should both comfort and warn ADA defendants. Gutierrez v. Chung, 2013 WL 655141 (E.D. Cal. 2013) reminds us that settlement alone doesn’t resolve an ADA violation. The only permanent solution is remediation. National Alliance for Accessibility, Inc. v. Millbank Hotel Partners, 2013 WL 653955 (D. Md. 2013), on the other hand, shows how to attack the boilerplate pleadings found in almost all ADA lawsuits. More
Standing for serial plaintiffs – it’s a legal issue, not a moral problem
Accessibility litigation under the ADA and FHA always seems to have a moral component. This is partly because plaintiffs almost always preface their complaints with a lengthy and unnecessary recitation of Congressional intent about the ADA and FHA, frequently accompanied by statistics about the number of disabled Americans and the discrimination they suffer. Defendants for their part are almost always outraged at being sued without notice over what they regard as purely technical violations that have often been present for decades without complaint. More