ADA and FHA Defense

Not long after Trump was elected in 2016 the Department of Justice withdrew a number of older guidances intended to help businesses deal with ADA issues. For the most part the withdrawn guidances were out of date and their withdrawal was unlikely to have any effect on businesses with ADA issues.¹ The new Trump administration has just withdrawn even more older ADA guidances, so it is worth asking what, if anything, this means for the day-to-day operation of most businesses.

The first batch of guidances withdrawn by DOJ concerned Covid-19 related issues:

• COVID-19 and the Americans with Disabilities Act: Can a business stop me from bringing in my service animal because of the COVID-19 pandemic? (2021)
• COVID-19 and the Americans with Disabilities Act: Does the Department of Justice issue exemptions from mask requirements? (2021)
• COVID-19 and the Americans with Disabilities Act: Are there resources available that help explain my rights as an employee with a disability during the COVID-19 pandemic? (2021)
• COVID-19 and the Americans with Disabilities Act: Can a hospital or medical facility exclude all “visitors” even where, due to a patient’s disability, the patient needs help from a family member, companion, or aide in order to equally access care? (2021)
• COVID-19 and the Americans with Disabilities Act: Does the ADA apply to outdoor restaurants (sometimes called “streateries”) or other outdoor retail spaces that have popped up since COVID-19? (2021)

These were issued during the first year of the Biden presidency and are arguably out of date now that the pandemic has more or less ended. They all shared what might be called a “liberal” view of the ADA that interpreted its requirements in an expansive way. Their withdrawal presumably indicates that DOJ will now take a more restricted view of what the ADA requires from Title III businesses.

The next four guidances withdrawn reflect a subtle defiance of the purpose of the ADA. They are:

• Expanding Your Market: Maintaining Accessible Features in Retail Establishments (2009)
• Expanding Your Market: Gathering Input from Customers with Disabilities (2007)
• Expanding Your Market: Accessible Customer Service Practices for Hotel and Lodging Guests with Disabilities (2006)
• Reaching out to Customers with Disabilities (2005)

These four guidances encouraged businesses to view ADA compliance as a means to improve their market share by attracting customers with disabilities.  All were somewhat out-of-date, but it seems unlikely DOJ will issue updated versions. The current administration is vehemently against all forms of regulation; even the kind of mild encouragement to comply with the ADA represented by these guidances.

DOJ’s reference in the press release to the tax incentives for ADA compliance² makes it clear that this administration believes its audience of Title III businesses only cares about direct monetary subsidies. It is convinced that businesses will not comply with the ADA because it is the right thing to do or even because it might, in the long run, expand the business’s customer base. It appears to believe instead that only direct financial incentives will cause businesses to comply with the ADA

The last two withdrawn guidances are just out of date because they were issued before the 2010 ADA Standards for Accessible Design.

• Americans with Disabilities Act: Assistance at Self-Serve Gas Stations (1999)
• Five Steps to Make New Lodging Facilities Comply with the ADA (1999)

Sometimes you do just need to clean house.

Withdrawing these guidances will have no substantive effect on businesses subject to Title III of the ADA. The original guidances were not binding on Title III businesses because they were just guidances. Removing them from DOJ’s website won’t make matters any better or any worse than they were before. The Presidential Order that lead to the removal of the guidances,  “Delivering Emergency Price Relief for American Families and Defeating the Cost-of-Living Crisis” was a piece of meaningless PR presumably intended to suggest the administration is taking meaningful action when in fact it isn’t really doing anything at all to help businesses or those with disabilities. As with many other such public acts this one is a lot of sound and fury signifying nothing, or at least nothing that would really help public accommodations deal with the most pressing ADA problem for Title III entities; industrial scale litigation by so called “testers.”  I don’t expect any meaningful action by DOJ except inaction; that is, choosing not to enforce the ADA at all.

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¹ See my earlier blogs, ADA Withdraws Guidances and Service Animal Guidance

² The DOJ Press Release can be found at DOJ Press Release