There is nothing the Supreme Court loves more in a discrimination case than a set of shifting burdens of production, persuasion, proof, or whatever other word starting in “p” the Court thinks will describe complicating the analysis of a discrimination case. It proved this recently in Young v. United Parcel Service, a pregnancy discrimination case, but the process goes back to McDonnell Douglas Corp. v. Greene, a race discrimination case decided in 1973. The McDonnell Douglas waltz goes like this: plaintiff has to make a preliminary showing of discrimination, the defendant has to show that it had a non-discriminatory reason, and then the plaintiff has to prove the defendant was really motivated by discriminatory feelings. By way of contrast an ordinary lawsuit just puts a single burden on the plaintiff; that is, prove the defendant did something wrong. The McDonnell Douglas waltz guarantees that discrimination litigation will be more complex, time-consuming and expensive than an ordinary lawsuit. More
ADA FHA Legislation
There was a flurry of comment recently among the community of disability lawyers when a legal blogger posted a story about a pig allowed on an airplane with disastrous results. The story was interesting, but what caught the attention of those who practice in the field of disability law was his error in the law that applied. He said it was a story about ADA service animals, when in fact, as experts know, the issue was one under the Air Carrier Access Act.
I can’t blame him, or anyone else, for being confused. Even putting aside the dozens of state disability rights laws and the hundreds or thousands of municipal ordinances there are still a confusing array of federal laws and standards that might apply to any given business, and the rules about animals are particularly likely to cause confusion. Here is the briefest of explanations about where you and your business stand. More
By Richard Hunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Legislation, Convention Centers, Stadiums Tags: ada litigation, ada violation, convention centers, private lawsuits, private litigants
When public or quasi-public entities contract with private businesses to use their facilities it can be difficult to pin down just who may have violated the ADA. It doesn’t have to be, but allocating ADA responsibility requires that the parties at least think about it. When they don’t the resulting litigation is likely to be complex and lengthy.
In Disabled Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861 (9th Cir. 2004) the Ninth Circuit established that a private entity could not avoid ADA liability by renting a publicly owned facility. It found, in essence, that the facility became a public accommodation when it was being used by the private entity, and the private entity could be the operator of that public accommodation. The now decade old message for businesses was clear: Your ADA liability will depend on your contract with the facility, and in particular on whether you control some aspect of accessibility. More
By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Legislation, ADA FHA Litigation General, Condominiums, FHA, Multi-Family Tags: assistance animals, Condominiums, developers, FHA Litigation, mental health disabilities, service animals, therapy animals
Many lawyers and governmental entities believe that anyone who is “disabled” for purposes of the Americans with Disabilities Act (ADA) must also be handicapped for purposes of the Fair Housing Act (FHA). This used to be true, but may not be anymore. The difference between a disability and a handicap has important practical implications for multi-family communities and others who are subject to the accessibility provisions of the FHA. More
For the last several years I have tracked the rate of ADA litigation filing in the United States. California consistently leads the nation in ADA lawsuits. It also has the nation’s most punative accessibility statute, the Unruh Act. Florida is consistently second in the number of filings despite the fact that it has no provisions that punish ADA defendants. Between them these two states account for half or more of all ADA filings nationwide.
If it weren’t for Florida, one might conclude that a punative accessibility statute will drive an increase in lawsuits, and this criticism of the California statute lead to reform efforts that were intended to reduce the payoff for plaintiffs of unnecessary accessibility lawsuits. There is no evidence, however, that these reforms have had a real impact on the number of lawsuits filed. Is there any conclusion to be drawn from the similar rates of lawsuits in states with very different regulatory environments?
Yes. It is clear that a punative accessibility statute has no effect at all on rates of compliance with acceessibility laws. The intention of the punative damage provisions in the Unruh Act was to give businesses an additional economic incentive to bring their facilities into compliance with the federal and state accessibility standards, but with two decades of regulation in place there has been no reduction in the number of lawsuits filed. The punative damage incentive has been a complete failure from a regulatory standpoint, enriching lawyers and professional plaintiffs without effecting any change at all in the way businesses deal with accessibility.
It is equally clear that using private litigation as a means of compelling accessibility has been a complete failure nationally. Plaintiffs in Florida don’t seem to have any trouble finding non-accessible businesses to sue, and the number of ADA lawsuits has only increased over the last 20 years. Private litigation in general has proven to be a complete failure as a regulatory tool.
The reason for this is not hard to discern. Businesses do not believe that the revenue lost because of accessibility problems justifies the cost of remediation, and the risk of litigation is still too low to provide a sufficient incentive for compliance with the law. In part this is just a failure of perception. The customer that never comes in the door is invisible, so a business may not understand it is suffering any loss of revenue at all. The willingness and ability of many individuals with disabilities to adjust their behavior contributes to this perception. Most of those with disabilities are good at finding ways to work around accessibility problems and reluctant to complain because complaints are just another way in which their lives become defined by their disability.
The failure of the Unruh Act to change the behavior of business should be a lesson to those who promote private litigation and punative damages as a regulatory tool in accessibility law. While a private lawsuit may change how one defendant behaves, litigation has been a complete failure as a tool for changing how businesses behave in general. Those disability advocates who are truly concerned with accessibility rather than litigation profits should be looking new regulatory solutions, and businesses that complain about the cost of litigation should be looking for ways to become compliant in ways that make economic sense.
 For example, in November of 2013 there were 256 accessibility lawsuits filed nationwide with 96 in California and 76 in Florida. 170 of the 256 lawsuits were filed by serial plaintiffs; that is, plaintiffs who file multiple lawsuits.