Once again – as in past Memorial Day editions – I’m firing up the grill with hundred dollar bills in honor of the money wasted on lawyers, who are the only ones who really benefit from most ADA and FHA litigation. There are, however, some cases dealing addressing important substantive issues, and few in which Courts seem ready to turn the ADA and FHA into laws to help people instead of laws to make lawyers rich. More
By Richard Hunt in ADA, ADA - serial litigation, ADA Point of Sale, ADA Public Accommodation, Design Build Discrimination, Public Facilities Tags: ADA defense, COVID-19, sneeze guard, Square One Architecture, wheelchair access
I’ve gotten two emails from John Garra at Square One Architecture¹ with papers on different aspects of physical accessibility and Covid-19 that frankly had not occurred to me. The first dealt with sneeze guards that have been put up at most sales counters may, and frequently do infringe on the space required for those with disabilities to access the counter. The second concerned the signs being used to space out folks waiting in line or to block access to seating. These are not readable by the blind, who therefore can’t tell where seating or standing is appropriate. I think these are the first non-mask related Covid-19 item I’ve seen.
Sales counters are a frequent source of ADA complaints and litigation, usually because they are not low enough, not wide enough, or cluttered with point-of-sale displays. Adding a sneeze guard that isn’t carefully designed can easily create problems that didn’t exist before. Garra also points out that the reason sales counters have a maximum height is that wheelchair users are sitting at a height lower than almost all standing users. That means the portion of a sneeze guard that is open for passing receipts or goods may be a just the face level of a wheelchair user, making the sneeze guard less effective or ineffective.
I’ll share any additional insights that Garra sends me, but once you begin looking at public spaces in terms of accessibility it isn’t hard to imagine other unintended consequences of Covid-19 protection. Restaurants that have eliminated tables in order to create greater social distance might easily have eliminated accessible seating without thinking about why some tables are differently configured. Sneeze guards aren’t just a problem at counters. The picture above shows a sneeze guard that makes a booth inaccessible for a person in a wheelchair. The focus on masks as a problematic requirement for those with breathing disabilities may cause us to overlook the problem presented for deaf individuals who rely on lip reading when a clerk or server is wearing a mask.
There are, as Garra points out, many resources on accessibility available online from the U.S. Access Board,² the federal agency with general responsibility for accessibility standards. I would add this suggestion for businesses that want to both avoid litigation and better serve customers with disabilities. Just take a few minutes to walk through your business imagining you are in a wheelchair and see what barriers might exist because of Covid-19 precautions or for any other cause. Think as well about the experience of a blind customer or a deaf customer. The technical standards can be daunting, but in most cases the problems are easy to identify and understand with a little imagination.
¹You can contact John at firstname.lastname@example.org if you want more information. His website is Square One Architecture.
By Richard Hunt in ADA, ADA - drive-by litigation, ADA - Hotels, ADA - Standing, ADA Internet Web, ADA Litigation Procedure, ADA Voting Rights, FHA, Interactive Process, Internet Accessibility, Public Facilities, Reasonable accommodation, Stadiums Tags: ADA defense, ADA standing, Braille gift cards, Catalina Express, FHA Defense, Greyhound, Nanette Brown, Peter Strojnik, Scott Johnson, Stadium Sightlines, Tom Hanks, voting rights
The title of today’s blog recognizes the gift bestowed by Judge Nannette Brown on everyone interested in the ADA in all its many details. Bailey v. Bd. of Commissioners of Louisiana Stadium and Exposition Dist., 2020 WL 5309962 (E.D. La. Sept. 4, 2020) is the latest of Judge Brown’s decisions concerning the dispute over stadium seating in the Superdome. Written after trial, the 64 page decision methodically dissects the law concerning concerning which standards apply to what parts of a facility after alterations, what the sight-line requirements for stadiums are under the various standards, including an exposition of the law concerning Auer deference and the effect of Kisor v. Wilke, how Title II program accessibility requirements fit into design/build standards, what kind of control is required for a person to be an “operator” of a public accommodation, when and how the “reasonable modification” requirement in Title III of the ADA applies to Title II entities, and last but not least the extent to which Title I’s “interactive process” requirement might apply to Titles II and III. The Fifth Circuit, and maybe the Supreme Court, will have the last word in this case, but if you are looking for a quick reference to almost every issue that comes up in a case involving altered facilities you can find it in this decision.¹ More
By Richard Hunt in ADA, ADA Litigation Procedure, Public Facilities, Title II Tags: ADA defense, ADA Title II, continuing violation, FHA Defense, Hamer v Trinidad, repeated violations, Statute of limitations, Supreme Court, Tenth Circuit
I blogged about the 10th Circuit’s decision in Hamer v City of Trinidad earlier this year.* The City has now filed a Petition for Certiorari that may well take the case to the Supreme Court because the issues and conflict between the Circuits are well defined.**
The heart of the dispute concerns a novel doctrine invented by the Tenth Circuit, the “repeated violations doctrine.” Under this doctrine every Title II entity has an immediate obligation to fix every problem with accessibility everywhere, and its failure to do so constitutes a new ADA violation every day. The age of the facility doesn’t matter because the obligation is to fix things regardless of when they were built. A sidewalk built a century before passage of the ADA must be fixed in the same way a sidewalk built last week must be fixed. Other Circuits have refused to impose this kind of endless liability, tying the limitations period either to the when the facility was built or renovated or to the date the plaintiff first suffered an injury, and refusing to find a generalized obligation to fix things that did not violate the law when they were built. More
By Richard Hunt in Accessibility Litigation Trends, ADA Litigation Procedure, ADA regulations, Movies, Public Facilities, Stadiums Tags: ADA defense, Seattle Mariners, Stadium accessible seating, Stadium Sightlines, T-Mobile Stadium
Nobody knows. The August 19, 2020 decision in Landis v. Washington State Major League Baseball Stadium Pub. Facilities Dist., 2019 WL 3891566 (W.D. Wash. Aug. 19, 2019) is thoughtful, thorough, and from the standpoint of those looking for certainty concerning the stadium sightlines argument inconclusive. The Court denied the plaintiffs’ request for a ruling that as a matter of law the T-Mobile Stadium at which the Seattle Mariners play failed to meet ADA requirements, but the Court found it could not do so without a trial. This is the inevitable result of the complexity of stadium design and impossibility of promulgating regulations concerning the location of wheelchair accessible seating that are both specific and cover every possibility. At trial the Court will hear more evidence and make fact findings about just what comparable sightlines means in this particular stadium, but that result will likely cover only the single stadium at issue, leaving other courts and other cases to determine on a stadium by stadium basis what is good enough. More