This morning’s news featured a piece about ADA based attacks on workshops for the disabled (Morning Edition, National Public Radio). What’s bad about a special facility where those with intellectual and other severe disabilities can earn some money? According to the DOJ and supposed disabilities advocates it keeps the disabled from getting “real” jobs that pay at least the minimum wage. What’s the solution? Kick the disabled out of the sheltered workshops and see if they can make it in the real world, where many will not be able to find any work at all. It is worth noting, of course, that any disabled person always has the option of looking for conventional employment — none of the workshops involved compulsion. But because the DOJ and a small group of supposed advocates don’t like the way these programs serve the disabled the programs will be reduced in scope if not shut down entirely. More
ADA
The next wave – ADA lawsuits against touchscreen POS devices
By richardhunt in Accessibility Litigation Trends, ADA, ADA FHA Litigation General, Restaurants, Retail Tags: ada litigation, POS Terminals, private lawsuits, private litigants, restaurants, retail
Touchscreen point-of-sale devices are ubiquitous, and the next wave of ADA lawsuits will undoubtedly be against businesses that use them. This is easy to predict because on April 10 the DOJ filed a “Statement of Interest” supporting the claims of the plaintiff in New v. Lucky Brand Dungarees Stores, Inc. (Case No. 14-CV-20574 in the Southern District of Florida). New has filed several lawsuits making essentially the same claim; that is, that a touch screen point of sale device violates the ADA because a blind user cannot input his or her PIN when using a debit card. Unlike a traditional keypad, the touchscreen has no tactile clues as to where to push for the PIN numbers, forcing a blind person to rely on the sales clerk or a third party to input the PIN. This, of course, compromises the security of the debit card. More
Who wears the halo? For a successful ADA defense it has to be the defendant.
By richardhunt in Accessibility Litigation Trends, ADA, ADA FHA General Tags: ada litigation, ADA standing, ada violation, private lawsuits
Two cases decided only last week illustrate what a defendant must do if it is determined to win an ADA lawsuit. In one case the defendant failed, and in the other the defendant succeeded. Both cases were ATM cases filed by the same law firm, and it is safe to assume that the work on behalf of the plaintiffs was of equal quality in both cases. The difference was the defense.
In the first case, Sawczyn v. BMO Harris Bank Nat. Ass’n, 2014 WL 1089790 (D. Minn. 2014), the defendant argued that the case was moot because non-functioning audio jacks in two ATMs had been replaced. The defendant did not address other alleged failures to comply with the ADA requirements for ATMs, and could only state with respect to its overall compliance that it was “unaware” of any other problems. There was no evidence that all the ATMs were compliant before the lawsuit was filed, and no evidence of a comprehensive policy for testing to make sure the ATMs remained compliant. The court was not impressed, and denied the defendant’s Motion to Dismiss. More
Dentists, Doctors and the Deaf – The next wave of ADA lawsuits
By richardhunt in Accessibility Litigation Trends, ADA, ADA FHA General, DOJ, Professional services Tags: ada litigation, ada violation
The drums of war are pounding. Last January a disability advocate from Florida, Marc Dubin, published a short article titled “What Doctors (and Their Office Managers) Need to Know About Patients With Hearing Disabilities and Interpreter Services.” He pointed out the obvious; that is, that doctors cannot discriminate against the deaf. On March 19 of last year the Annals of Internal Medicine published and academic article on problems with care of the disabled. On May 23 the New York Times followed it with article titled “Disability and Discrimination at the Doctor’s Office” by Dr. Pauline Chen in which she described both the difficulties doctors may have treating disabled patients and the consequences to the disabled when they don’t get the right treatment. In July the Department of Justice sued a doctor in Florida based on alleged discrimination against the deaf. This was merely a continuation of its “Barrier-Free Health Care Initiative” that earlier in the year lead to a number of settlements with medical facilities. Of course when every DOJ “initiative” is a plan to investigate and sue businesses of one kind or another. Finally, just a few weeks ago the Department of Justice published its Guidance on Effective Communication.
There is plenty to worry about in these developments. Private attorneys advertise as advocates for the deaf, which means they believe there is money in litigation. High profile settlements by hospitals in cases brought by the deaf are an example to those who want to litigate, and a few deaf serial litigants have appeared. Most significant, however, is the DOJ Guidance, which seems to impose absolute requirements that many doctors and dentists will not be able to satisfy without crippling expense. It starts with this statement:
In a doctor’s office, an interpreter generally will be needed for taking the medical history of a patient who uses sign language or for discussing a serious diagnosis and its treatment options.
That’s right, no matter how small your practice and no matter how few and far between deaf patients may be, an interpreter is “generally” required.
The DOJ Guidance does note that there is an “undue expense” exception and that it may be permissable to require advance notice that an interpreter is needed, but advocacy groups, many of which shape the perception of what the law requires, tend to be more absolute, saying things like:
Hospitals, clinics, and mental health centers are covered by these laws and must also provide a qualified interpreter if needed and you are a patient, patient’s spouse or parent.
Marc Dubin, the advocate mentioned above, puts it the same way in a list of things he believes businesses should know: “In most cases, people who are deaf need a sign language interpreter to communicate with you, and you need to hire one.”
It’s also a fact that an “undue burden” defense has little or no meaning in the real world of litigation. Most businesses, including doctors, cannot afford the tens of thousands of dollars in legal fees they would have to spend winning a case based on an undue burden defense, especially since the DOJ notes that the availability of the defense might change every year depending of the financial condition of the defendant. The plaintiff’s bar is well aware that the very existence of a lawsuit will likely force a settlement, regardless of the merits.
The take-away is simple. Doctors and other medical professionals need a plan for handling patients with hearing impairments and a policy that implements that plan. The plan will have to include providing an interpreter, although it may require advance notice. That means, of course, finding a service that can provide interpreters on short notice for short periods of time. Medical professionals also need to make sure they are equipped to handle TRS phone calls from those with hearing impairments (see my January 13, 2010 blog on the obligation of professionals to handle TRS calls) . Both of these will require time and effort, but when you’ve got a target painted on your back making sure you comply with the law is a good idea.
Good News for ADA Defendants – Plaintiffs required to prove discrimination.
By richardhunt in Accessibility Litigation Trends, ADA, ADA FHA General, Title II Tags: ada litigation, ADA pleading
My friend and fellow ADA blogger William Goren wrote about Grider v. City of Aurora, 2013 WL 6633404 (D.Colo. 2013) within a week after the December 16, 2013 order denying the prevailing defendants their attorneys fees. [http://www.williamgoren.com/blog/2013/12/22/breed-restrictions-service-dogs-violation-ada/] He correctly pointed out that fights over breed restriction ordinances were likely to prove expensive for cities who have such ordinances. The Court did not reject the plaintiff’s disabilities claims out of hand, and although it ruled for the defendants it denied their request for attorney’s fees.
I find a more positive lesson in the case, for the Court held the plaintiffs to a pleading and proof requirement that is often ignored in ADA cases; that is, that they prove actual as opposed to hypothetical discrimination. The most important ruling by the Court was in its earlier unpublished Order Granting Motion to Dismiss. Grider v. City of Aurora, Case Number 10-cv-722, docket entry 84 (Feb. 23, 2011). After discussing the pleading requirements imposed on plaintiffs by Iqbal and Twombly, the Court makes this observation concerning the plaintiffs’ claims:
Each of the Plaintiffs assert, in completely conclusory fashion, that they were “denied access” or “prevented from utilizing” unspecified “programs and services offered by a public entity,” Docket # 5, ¶ 31, 40, 45, but none of the Plaintiffs identify the particular programs or services they were prevented from using.
In a footnote, the Court goes on to observe that none of the plaintiffs has explained how the help provided by his particular service animal is necessary for the use or enjoyment of particular public facilities. The footnote is lengthy, but this portion of it captures the Court’s analysis:
The Complaint alleges that Mr. Grider’s dog is trained to “enter rooms and buildings ahead of [him] and alert him if anyone else is present in the room” and to “alert [him] when another individual enters the room.” Such assistance would be useless in a public park, which has no rooms, and of dubious assistance in libraries or courthouses, where one would reasonably expect that most rooms Mr. Grider visits would be occupied by other persons and that people would be frequently entering and leaving such rooms.
In short, to prove discrimination the plaintiff must show that the particular service provided by his service dog is needed for the use and enjoyment of a specific municipal program or service. In the Court’s Order of July 30, 2013 granting the defendants’ summary judgment the Court put it plainly: “Mr. Grider would have to show that he could not access government services and benefits without the aid of his service dog.”
This is precisely what the law requires, but the requirement has been generally ignored as courts presume that every kind of restriction on a service animal is a denial of access, or that every feature violating the ADA Standards constitutes a barrier to access. [See my blogs from Nov. 6, 2013, Oct. 4, 2013, May 13, 2013, May 7, 2013 and others]. That presumption turned ADA litigation from an enforcement mechanism into a litigation mill whose primary product is attorney’s fees.
This approach to Title II cases should apply as well to Title III cases, for there is no relevant difference in the pleading requirements or the nature of the discrimination forbidden. Before the owner of a service dog can proceed with a lawsuit claiming that a “no pets” policy violated his ADA rights he should be required to plead that with his particular disability, and the particular service provided by his dog, he could not avail himself of the goods and services provided by the defendant. Before a person in a wheelchair can proceed with a lawsuit claiming an excessive slope at an entry way she should be required to plead that given her personal physical condition and abilities the slope prevented her from using the goods and services of the defendant. Otherwise, as the Court found in Grider, there has simply been no discrimination at all.