The ADA and FHA decisions handed down in the last few weeks share a common theme: technicalities matter. Sometimes the lack of technical standards increases the time and money spent in litigation, as in the first entry below, but more often technical matters of procedure and expert testimony determine the outcome of a case. The ancient Greek dramatist Aeschylus famously said “wrong must not win by technicalities,” but it is easier to sort out right and wrong when you get to write the play and decide who says and does what. When people don’t agree they go to court, and a commitment to the rule of law is a commitment to deciding disputes based on technicalities instead of fluctuating political and individual notions of what is right and wrong. More
FHA Defense
Quick Hits – HUD and DOJ are on a roll with FHA complaints
By Richard Hunt in Accessibility Litigation Trends, FHA, FHA design/build litigation, FHA Emotional Support Animals, FHA Training Tags: DOJ FHA litigation, FHA Defense, HUD complaint
My next Quick Hits blog will discuss federal court decisions in the last month; this special is about only one thing – HUD’s very active enforcement activities concerning the Fair Housing Act, especially with respect to disability rights claims. Here are the press release headlines from September 1 to the present:
HUD AWARDS OVER $47 MILLION TO FIGHT HOUSING DISCRIMINATION
These grants go to local organizations that file FHA lawsuits, engage in FHA testing, and help process FHA Complaints. Most of the money is going to organizations that conduct testing campaigns in which they either expose discrimination or trap innocent landlords using calculated deception, according to how you view tester tactics. It may be a little of both since not all organizations are equally committed to fairness in fair housing. It is telling that litigation related activities will get three times as much money as education related activities. HUD seems to be more interested in punishing landlords than in helping them understand the law. This is an attitude left over from the decades in which most FHA complaints were based on obviously wrong conduct in the form or racism. Disability discrimination is far more difficult for landlords to understand because it is usually in found in failures to grant modifications or accommodations in situations where the morally correct choice is not necessarily the same as the legally correct response. HUD might take note that the education to enforcement ratio is backwards in an era where most claims arise out of ignorance rather than obviously evil conduct. If you are a landlord or HOA you need to be aware that more money means more testing, so you need to be careful in dealing with callers who claim to have a disability or fall into a protected category under the FHA. They really are out to get you. More
FHA and ADA Odds and Ends
By Richard Hunt in Accessibility Litigation Trends, ADA - serial litigation, ADA FHA General, ADA FHA Legislation, DOJ, FHA, FHA design/build litigation, FHA Emotional Support Animals, Uncategorized Tags: ADA defense, Emotional Support Animals, ESA fraud, FHA Defense, Pursuit of Respect
“Odd and Ends” is the title of a Bob Dylan concert compilation film that was recently released in digital format.³ My odds and ends are probably not as interesting, but I’ve been busy for the last month litigating claims under the FHA and ADA, so this blog is part one of a two part effort to catch up. I’m hoping to release a “greatest hits” blog in the near future.
Pursuit of Respect keeps sending demands
I’ve gotten a dozen calls in the last few weeks from businesses in Pennsylvania, California and Florida who got demand letters from one attorney or another claiming to represent Pursuit of Respect. When I last checked none of those lawyers had filed a lawsuit, which I believe is because their client is fictitious and they’d rather not expose themselves to any kind of judicial inquiry. They will, however, keep harassing businesses that don’t respond with calls and additional letters. If anyone reading this knows of a lawsuit filed on behalf of POR I would be very interested in hearing about.¹ More
ADA and FHA Quick Hits – dog days of summer edition
By Richard Hunt in Accessibility Litigation Trends, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Bars, ADA Internet, ADA Internet Web, ADA Mootness, ADA Website Accessibility Tags: accessible bar seating, ADA defense, ADA Mootness, FHA Defense, Robles v Dominos, Strojnik
The constellation Canis Major rises and falls with the sun during the hottest part July and August; hence the “dog days of summer.” Although only mad dogs and Englishmen go out in the midday sun* the courts have been busy working in air conditioned chambers on ADA and FHA matters:
Just what is an accessible website?
The first sentence of this injunction seems to violate the general rule against injunctions that simply order compliance with the law. See, e.g., E.E.O.C. v. AutoZone, Inc., 707 F.3d 824, 842 (7th Cir. 2013). As the Court observes, there are no regulatory requirements for websites, so the first sentence is just an order to follow the ADA. More
DOJ announces that there is no safe harbor for physical accessibility.
By Richard Hunt in Accessibility Litigation Trends, ADA - Hotels, ADA Internet, ADA Internet Web, ADA regulations, ADA rulemaking, Hospitality, Hotels, Inventory requirements Tags: accessible beds., ADA defense, FHA Defense, Hotel beds, Migyanko v. Aimbridge
Early last month the Department of Justice filed a “Statement of Interest” in Migyanko v. Aimbridge Hospitality LLC¹ that should give pause to every business subject to Title III of the ADA; that is, every business. Two sentences from the Statement of Interest are of particular concern:
“The ADA Standards do not address every aspect of physical accessibility.”
and
“Of course, in the absence of specific requirements for bed height, hotels have some degree of flexibility in making reasonable modifications to provide usable beds for a person with a disability. This flexible standard is inherently fact-specific.”
To understand why these innocuous statements are of such concern requires a look at this case and the problems created when DOJ declares that something is discriminatory without defining what discrimination means. More