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
ADA Public Accommodation
Covid-19, sneeze guards, social distancing signs and the ADA
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 john@sq-1.net if you want more information. His website is Square One Architecture.
² https://www.access-board.gov
Quick Hits – Hearts and Flowers Edition
Valentines Day, which has been in the stores since December 26, has finally arrived in reality. Since I last blogged a few weeks ago the courts have continued to decide cases and the blogosphere has continued to cover, or mis-cover, accessibility related news. Here’s a sweet collection of matters to read after you’ve finished your celebration of the day.
WCAG 3.0 – Will it really matter at all?
The preliminary draft of WCAG 3.0 has generated a lot of attention. From a litigation defense standpoint the possible new standards are irrelevant, as is compliance with existing standards. Lawsuits are not filed to make the web more accessible; they are filed to make lawyers rich (or richer). As long as it is cheaper to settle than fight most businesses will continue to pay off the plaintiffs lawyers regardless of how accessible their websites might be. For those who do care about accessibility the new standard adopts a different approach that is focused less on specific technical requirements and more on the actual experience of the disabled user. Lawyers will recognize this as similar (though with much more detail) to the meaningful access standard required by Title II of the ADA. It remains to be seen whether DOJ, which will almost certainly restart the regulatory process under the Biden administration, can balance the certainty of strictly technical standards against the purpose of the ADA, which is meaningful access. That balance and the courts’ willingness to require plausible allegations concerning web access in order to meet the Iqbal / Twombly pleading standard will determine the future of website accessibility litigation. If courts are willing to require plaintiffs to plead facially credible claims that they were denied meaningful access to the content of a website than a new regulatory standard based on meaningful access could slow down the litigation industry and help businesses make their websites accessible in a meaningful way. If not the abuse of the ADA for the benefit of lawyers will continue unabated. More
ADA and FHA Quick Hits – Dog Days of Summer Edition
Congress and the President are taking a break, but the ADA and FHA cases keep coming. It has been an unusual few weeks because we have two circuit court opinions to discuss, though neither breaks much new ground. A third circuit court decision – Mielo v. Steak and Shake Operations – will get a blog of its own.
Temporary obstructions under the ADA
One of the circuit court decisions is Hillesheim v. Myron’s Cards and Gifts, Inc., 17-1408, 2018 WL 3602372 (8th Cir. July 27, 2018), which deals with problem of aisles blocked by “temporary” obstructions. We’ve blogged about this before* and the law really hasn’t changed. DOJ’s regulations acknowledge that aisles that are required to be 36″ wide will from time to time be blocked when shelves are being re-stocked or perhaps repaired. This doesn’t excuse the case in which the aisles are always blocked with something temporary. The line between temporary obstructions and permanent clutter can be hard to draw, and early in a lawsuit is not when hard lines are drawn. In this case the District Court dismissed a claim based on clutter in the aisles, applying an absolute rule that temporary obstructions could not violate the ADA. The Eighth Circuit disagreed, finding that the issue required factual development to decide whether the temporary obstructions were really temporary. This put it in line with the earlier cases cited in our past blogs. More
DOJ withdraws ADA guidance on service animals – Good news, bad news or no news?
On December 21, 2017 Attorney General Jeff Sessions announced that the Department of Justice was withdrawing 25 guidance documents related to disabilities and other forms of discrimination.* The documents were withdrawn because, according the Department of Justice, they were outdated, used to circumvent the regulatory process, or went beyond the requirements of the regulations.
The politics of these withdrawals will certainly be subject to debate, but the impact on businesses is less certain. This blog will discuss the effect (if any) on how public accommodations deal with service animals. Tomorrow we’ll cover construction related topics and the day after remaining items of interest for business.
The guidances concerning service animals that have been withdrawn are:
“Commonly Asked Questions about Service Animals in Places of Business” published July 1996 and updated January 14, 2008.
“ADA Business Brief – Service Animals” published April 2002
Not withdrawn in this list of guidances were:
“Frequently Asked Questions about Service Animals and the ADA” published July 2015
“ADA 2010 Revised Requirements Service Animals” published July 2011
Comparing the withdrawn guidances to those that have been retained, at least for now, reveals only a few differences.
- the 1996 “Commonly Asked Questions” includes in the term service animal “any animal individually trained” to perform a service. This contradicts existing regulations, which limit the term “service animal” to dogs. (28 CFR §36.104).
- The 1996 “Commonly Asked Questions” suggested that the only question permissible by a business owner was whether the animal “is a service animal required because of a disability.” This contradicts existing regulations, which permit two questions: “if the animal is required because of a disability and what work or task the animal has been trained to perform.” (28 CFR §36.302(c)(6)).
- The “ADA Business Brief” somewhat misleadingly says that businesses can be required to pay money damages and penalties. This is only true in actions brought by the Attorney General. Ordinary plaintiffs can obtain only injunctive relief and attorneys’ fees.
More interesting is the tone of the guidances that were not withdrawn. They are hardly business friendly, but they accurately describe the regulations that apply and the limits on what businesses must do. A few examples:
- The answer to question 6 in the “Frequently Asked Questions” makes it clear that service dogs in training are not required to be accommodated. The rights of disabled individuals to bring dogs in training into public accommodations is often misunderstood, as this article from the last week shows: “Disabled veterans file suit involving service dogs against gluten-free bakery, city of Longmont.”
- The answer to question 13 in the “Frequently Asked Questions” makes it clear that service dogs cannot block the space between tables in a restaurant, but must be under the table.
- The answer to question 22 confirms that service dogs cannot sit at a table or be fed in the restaurant.
- The 2010 Revised Requirements make it clear that in most cases a service animal must be harnessed or leashed – the exception is when it’s job requires that it be loose. This is consistent with the regulations (28 CFR §36.302(c)(4)). A surprising number of businesses report that individuals claiming to be disabled will insist that their dog be off leash.
Oddities remain, and if the Department of Justice really wants to make its regulations and guidances meet the goals of the ADA without inviting abuse it could take some additional steps. For example:
- DOJ’s position on public health is that service dogs can be required to comply with local public health requirements concerning shots and registration, but not with local health requirements concerning the service of food. A dirty dog at a salad bar is far more likely to cause public health problems than a clean dog without tags. Business owners should be allowed to exclude dogs that are obviously dirty or diseased because they are a threat to public health.
- DOJ permits local authorities to limit the use of accessible parking to those with appropriate identification, and permits businesses to ask for credible evidence of a disability (such as a local disability placard) for individuals using motorized devices other than wheel chairs. (32 CFR §36.311(c)(2).) There is no reason not to allow businesses to ask for similar credible evidence of a disability before allowing a supposed service animal on the premises when the disability is not obvious.
- Dogs are required by regulation to be under the handler’s control and housebroken. Owners should be permitted to ask not only what task the dog has been trained to perform, but also whether it is housebroken and trained to behave in public.
In this connection the Department of Justice needs to ask what it can do to stop the business of selling fake disability certifications to people who are not disabled and the business of selling fact certificates, vests, etc. for dogs that are not service dogs. Question 17 in the FAQ recognizes the latter problem, but DOJ needs to take responsibility for the fact that its guidance and regulations created these organized on-line scams. The limits DOJ places on business owners invited ADA fraud and created the fake service animal problem businesses face today. It’s nice to get rid of out-dated guidances, but what business really needs is permission to ask obviously pertinent questions like “what is your disability” and “why is your dog necessary for you to use and enjoy our facility and services?”
Finally, withdrawing these guidances should be seen as a first step to providing a single, easy to understand guide to the ADA for businesses. The fact that DOJ has two guidances on service dogs as well as many other individual guidances on particular business obligations and a 2011 Primer for Small Business and the still in effect 1999 Small Business Guide reflects an organizational failure to keep track of what it has said and when it said it. Even guidances and other publications that are correct need to be eliminated and replaced by a single resource to which businesses can confidently turn for all of their questions.
* The press release and list of guidances can be found here“
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