A recent news* story about a veteran with PTSD and his dog is a good reminder that service dogs and emotional support dogs are not the same, and that the subject is still confusing to many people. This is especially important now because many states are moving to criminalize misrepresenting the status of a dog, meaning that some with disabilities may become criminals because of their ignorance.** More
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
By Richard Hunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, Apartments, Building Codes, FHA, Multi-Family Tags: Consent Decree, Construction, Department of Justice, DOJ, FHA
The Department of Justice announced in late July a settlement with a substantial multi-family developer in West Virginia that had managed over a decade or so to construct 23 apartment complexes that did not comply with the accessibility requirements of the Fair Housing Act (see the DOJ press release here). In addition to remediation costs, which appear to be substantial, the developer will pay $205,000 in damages and penalties and construct new accessible units. Like most FHA cases, it is a big deal.
One of my fellow bloggers has helpfully suggested that if the DOJ investigates a situation like this you need a lawyer “like me.” What developers “like you” really need is not to be investigated in the first place, and if investigated to not be liable. You can find a link to the consent decree in the DOJ press release, and the problems it lists are the same problems that appear over and over again in FHA lawsuits. Lawyers didn’t cause them, and lawyers really can’t prevent them. Developers, however, can. More
By richardhunt in ADA, ADA FHA General, ADA regulations, ADA rulemaking, DOJ Tags: Department of Justice, DOJ, FHA ADA litigation "statute of limitations" strategy DOJ "attorney general" enforcement, private litigants
This week two ADA writers I follow, Marc Dubin and William Goren, looked at the problem of telling just what the ADA requires. Both concluded that in some respect the only way to know was to look at the latest private settlements between the Department of Justice and various businesses it investigates. You can know the statute, you can know the regulations, you can read the various guidances, but if you don’t keep track of what the DOJ is doing when it settles its private investigations you really don’t know what to do in many cases. The National Association of the Deaf, an advocacy group, recently wrote on the requirement of closed captioning in audio and audiovisual presentations (nad.org). With a few exceptions governed by statutes other than the ADA the best the N.A.D. could say was that closed captioning “may” be required or that the situation is uncertain.
This uncertainty is great for lawyers and consultants. Like most folks in the ADA and FHA consulting business Marc, William and I follow the DOJ and HUD press releases that announce their settlements, and receive updates on their regulatory initiatives. For businesses, on the other hand, it stinks. Not only is a business required to constantly pay consultants to help it comply with the ADA, it will frequently be told by the consultant that the only answer comes from reading the tea leaves and guessing what the DOJ’s position will be when and if it finally publishes a definitive regulation. Even that guess comes with a warning: the DOJ’s position in a private settlement is not binding on private litigants or the courts, so doing what DOJ appears to want won’t help a business that is sued by a disabled individual.
This uncertainty comes in part because of a regulatory process that seems hopelessly bogged down. Web accessibility regulations have been in the making for years, but the issue is still being studied. The current 2010 Standards for accessibility were originally published in the 1990’s and parts were not in effect until 2013. Haste is never good when faced with complex problems of accessibility, but when the wheels of justice grind too slowly one has to ask whether there is a systemic problem.
More important, every time the Department of Justice delays the promulgation or implementation of a regulation it creates uncertainty and expense for business. Remember, the requirements of the ADA statute apply regardless of the existence of regulations, and when the DOJ does not act private litigants have free reign to argue that it means whatever appears in their interest. DOJ itself has the same freedom, for it can change its own policies for prosecution and settlement without any oversight by the courts.
Why the DOJ has decided to act through private settlements rather than regulation is an interesting subject for speculation, but there is little doubt that the only people who benefit are lawyers and consultants. The disabled suffer the delay in promulgation and implementation of regulations that may benefit them while businesses suffer the uncertainty and expense that come from never knowing quite how to spend their money on accessibility. Although it may be impossible given the bureaucratic love of delay found in most government agencies, reform should be on the agenda for both Congress and the Executive branches.
I was surprised last month to see a major national law firm suggest, in its ADA blog, that internet businesses are legally required by the ADA to create accessible websites, and need to consult a lawyer about that requirement. While it is undoubtedly true that creating an accessible web site is good public relations, it is uncertain whether it is required by the ADA. Here is a brief look at where things stand, and a recommendation about who you need to consult.
The courts will ultimately decide what the ADA requires in terms of internet access. Right now we have a very clear decision from the Ninth Circuit Court of Appeals holding that a web site is not a place of public accommodation and is therefore not subject to the ADA. Recent district court decisions in the Ninth Circuit follow this precedent, and the Ninth Circuit remains the highest federal court to address the issue. More