I blogged last year about the Fifth Circuit’s decision in Magee v. Coca–Cola Refreshments USA, Inc., 833 F.3d 530, 531 (5th Cir. 2016) (ADA and the Internet – what non-internet cases can tell us.) as well as the District Court’s similar holding (Vending Machines and the ADA). It looked like an interesting case, and it seems the Supreme Court may agree. As reported by Dan Fisher in Forbes (Supreme Court asks government if a Coke machine must be ADA compliant),* on February 27 the Supreme Court docketed a request to the Solicitor General for input on Magee’s pending petition for certiorari. The Supreme Court’s ADA decisions have focused almost exclusively on employment and education, not business accessibility, and while certiorari has not been granted, this request shows unusual interest in this aspect of the ADA. More
Three interesting decisions, and a news report were published last week that deserve attention, but really don’t need a lengthy discussion. First, in Natl. Assn. of the Deaf v. Harvard U., 2016 WL 6540446, at *2 (D. Mass. Nov. 3, 2016) the Court adopted the earlier Magistrate Judge’s recommendation against dismissal claims against Harvard for failing to caption its on-line video courses. The case will now continue into discovery or, more likely, settle as the costs of defense become unreasonable when compared to the cost of settlement. A related news story , Pitt Professor Sues Southside Works Cinema discusses a lawsuit based on the lack of closed captioning at a local movie theater. As with internet access, closed captioning in theaters is an area in which DOJ’s failure to regulate has created a situation in which litigation is going to define the requirements of the ADA because DOJ is incapable of figuring out how to make a good rule. I’m sympathetic to the difficulties face by DOJ after reading through the mass of requirements imposed on the regulatory process (see, Fed. Reg. vol. 79, pages 44976 to 44514), but these regulations were first announced in 2010. The regulatory process simply cannot keep up with the rapid pace of technological change, and so DOJ has adopted the far more inefficient and regulatory method of letting the requirements of the ADA be set through hundreds of different judicial decisions whose outcome depends not only on the quality of the judge, but also the quality and position of the litigants. If DOJ cannot regulate the details of accessibility, it should at least provide that accessibility is not required until those details are provided.
The inefficiency and sometimes outright stupidity of ADA litigation is perfectly illustrated by Love v. Sanchez, 2016 WL 6683152 (C.D. Cal. Nov. 14, 2016). The plaintiff alleged, correctly, that the defendant lacked accessible parking. Defendant provided a space, but did it wrong. Plaintiff obtained an expert report to that effect and filed a motion for summary judgment. Defendant hired an expert and made the space compliant except, perhaps, for slightly excessive cross slopes at two locations. Plaintiff hired a new expert who found those excessive cross-slopes. Defendant’s expert disagreed and, at the end of the day, the Court denied the motion for summary judgment because it could not determine the fact question as to which expert was right.
Conceding that the lawsuit had the beneficial effect of persuading the defendant to put in an accessible spot, consider the time and money spent afterwards quibbling about the difference between a 2.8% and 2.0% cross slope. The plaintiff’s motive was simple. His attorneys would not be paid unless they won. The defendant’s motive was equally simple. Losing would more than double his liability because he would also have to pay the plaintiff’s attorney’s fees. The focus of the lawsuit, almost from the beginning, was on payment for the attorneys, not accessibility for the disabled. This is a perpetual theme in ADA litigation, with access for the disabled usually taking second place to profits for the lawyers.
A third decision concerned public restrooms; or more accurately, a former public restroom. In Ramirez v. Golden Crème Donuts et al., 2016 WL 6648699 (9th Cir. Nov. 10, 2016) the Ninth Circuit reminded us that the ADA does not require public restrooms in public accommodations, and that closing a restroom to the public is one way to solve the problem of non-compliant restrooms. This is true even when local ordinances may require public restrooms because compliance with local law is a matter between the business and local authorities in which the federal courts will not ordinarily participate. Restroom renovation is frequently the most complex and expensive part of ADA compliance, so the quick fix of closing the restroom may be a good option in avoiding litigation even though in the long run the expense is unavoidable.
20 or more times a day an ADA claim is filed in Federal Court somewhere in the United States. This has been true for decades, and yet non-compliance appears to be as prevalent as ever. Maybe it’s time to re-think the way the ADA is enforced.
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
After reading a recent blog in which the author asserted that “handicap” under the Fair Housing Act had the same meaning as “disability” under the Americans with Disabilities Act I thought it would be useful to re-visit this question, which I last wrote about in 2014. There have been a few new decisions, none decisive, and the bottom line remains the same. The 2008 amendments to the ADA changed the definition of “disabled,” but there was no equivalent amendment to the FHA. Ordinary principles of statutory interpretation require the conclusion that the two words no longer have the same meaning. For all the details see my earlier blog by clicking this LINK. It has been updated with the more recent decisions in this area.
A news story about a children’s theater group caught my eye this week because it so vividly illustrates the trouble a business can get into if it does not understand the law of reasonable accommodation under the ADA. You can read the story HERE. In brief, a potential theater member with a severe peanut allergy requested that the theater have a “no nuts” policy and that the director be willing if necessary to help the child with his epi-pen. The owner declined and probably said some unfortunate things about the request. Eventually the DOJ got involved and now, unless the matter settles, everyone will be off to court.
What went wrong? First, it is clear that the theater director did not understand the reasonable accommodation obligation and even more important, did not understand the “interactive process” that the ADA regulations encourage.* The name of the game in reasonable accommodation is trying to find a solution to the problem presented. A requested accommodation is not something to be accepted or rejected; it is something to be talked about. For a business this has the value of creating the appearance of reasonableness and, even more important, the opportunity to think about the issue carefully. In this case the first requested accommodation – making the theatre nuts free – is about as cheap and easy as it gets. All the theater owner had to do notify other parents that nuts were forbidden.
The second accommodation – willingness to use the child’s epipen – was more problematic. Many organizations are reluctant to administer prescription drugs. In a litigation happy society, it just seems like too big a risk to take. Here too, though, simply thinking through the problem and doing a little on-line research would have led to a different result. First, it only takes a little time with the internet to find that the Department of Justice has been suing or investigating child oriented business about epipens for more than 15 years. Unless you really want to take on Uncle Sam about whether peanut allergies are a disability** the battle isn’t worth fighting.
Perhaps more important, it seems likely that the theater already had a general release of some kind that all the parents had to sign. The owner’s demand for a special waiver of liability might not have been necessary and certainly looked like discrimination against one particular child based on a disability.
Finally, it would have been worth while to think through when an epipen is to be used. Epipens are for emergency use, and in many ways a child or adult in anaphylactic shock is like a person who has suffered a severe wound. Would the theater director really stood by and watch a child suffer because he didn’t want the risk of liability? Probably not. The refusal in advance to do something he would have done in the event of an emergency was pointless.
The moral of the story? Consider every request for accommodation as an invitation to try to solve a problem, and then think through – perhaps with the help of a lawyer – what risks would come from granting the accommodation and what risks might come from denying it. Reasonable accommodations are all about being reasonable, and that requires knowledge and a rational analysis of the various risks and costs involved.
* The “interactive process” is best defined in employment cases under Title I of the ADA and landlord tenant cases under the Fair Housing Act, but courts apply it in Title III cases as well.
**Many courts hold that food allergies are not disabilities. (See my blog HERE) DOJ disagrees, and the Supreme Court has not opined on the subject. Since DOJ will fight and has unlimited resources it isn’t the best opponent to take on with respect to this kind of claim.