Pictures of bombed out buildings and civilian casualty counts are a reminder that aggravating and expensive as ADA and FHA lawsuits can be, taking these disputes to court is a luxury most people in the world do not enjoy. For those of us who can engage in a civilized discussion of legal issues, here are the latest cases and other news. You’ll see where I think the courts and administration have gone wrong, but I’d rather be here than most of places in the news these days.
ADA – Hotels
Quick Hits – Who needs the Grinch when you’ve got Bowser?
Almost everyone who ever was, had or has a child probably knows Bowser, the character from many Nintendo games. In Mario Party he often offers “gifts” that don’t always (or ever) turn out to be something you might want. Recent developments in accessibility law are, as usual, a mixed bag. Here’s what I found underneath the tree. Bwahahahaha!
A shiny new article about the ethics of communication.
My partner, Jeanne Huey and I collaborated on an article about ABA Formal Opinion 500 that was published by the American Bar Association Litigation Section Professionalism and Ethics Committee, but is easiest to find at her blog, Legal Ethics Today. Communication with those who are disabled is a statutory obligation under the ADA for all businesses open to the public as well as the Fair Housing Act for housing providers. For lawyers it is an ethical obligation as well. More
ADA and FHA Quick Hits – dog days of summer edition
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?
Wright v. Thread Experiment, LLC, 2021 WL 243604, at *4 (S.D. Ind., Jan. 22, 2021) is a default judgment case, but it remains interesting because the Court expressly declined to order compliance with any version of WCAG, choosing instead to enter a much less specific permanent injunction ordering that the Defendant be enjoined:
from operating, utilizing, or maintaining www.threadexperiment.com unless and until it fully complies with the requirements of Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq., and its implementing regulations, 28 CFR § 36.302 et seq. Defendant is ORDERED to modify the existing features of www.threadexperiment.com and to remove barriers that prevent this website’s compatibility with screen reading technology so that it is accessible to blind or low-vision individuals utilizing screen reading technology.
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.
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
Quick Hits – almost Bastille Day edition
Serial litigators file lots of cases and that means lots of decisions, sometimes coming in batches. I’ve omitted a few decisions that say nothing more than the cases I have reviewed just to keep this blog manageable. If there is a theme, it is simply that despite very clear trends toward limiting serial litigation by paying more attention to standing, the outcome of any given case depends very much on the judge because there is still relatively little Circuit court guidance on some issues. Like Delacroix’s inspirational painting of Liberty Leading the People, celebrations of freedom from abusive ADA and FHA litigation may be premature. Before making any strategic decision you need to research the specific decisions of the judge who will hear your case because the ancien régime isn’t gone yet. More