Jeremy Horelick of ADA Site Compliance called my attention to a recently filed lawsuit making a novel ADA claim. In Panarra v. HTC Corporation and HTC America, Inc., Case No. 6:20-cv-06991 (W.D.N.Y.) the plaintiff claims that because he is deaf he is denied equal access to the virtual reality games and experiences offered by defendants’ website, https://www.viveport.com/infinity. This, he claims, violates the Americans with Disabilities Act and New York law.² The lawsuit can be seen as just the latest in a line of cases stretching back at least to Arizona ex rel. Goddard v. Harkins Amuse. Enterprises, Inc., 603 F.3d 666 (9th Cir. 2010), a case arguing that a chain of movie theaters was obliged to provide closed captioning for the movies it showed and even to Stoutenborough v. Natl. Football League, Inc., 59 F.3d 580, 582 (6th Cir. 1995), a case claiming that the NFL’s “blackout rule” discriminated against the deaf in violation of the ADA because it meant that for many games the only broadcast available was a radio broadcast. That chain of cases certainly includes Natl. Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196 (D. Mass. 2012) since at the center of Panarra’s argument is the fact that since Netflix provides captions for its content it must be possible for HTC to do so as well. More
DOT issues new in-flight animal restrictions, and a breath of reason in regulation.
By Richard Hunt in ACAA, ADA, Animals, Animals, FHA Emotional Support Animals Tags: ADA defense, department of transportation, Emotional Support Animals, FHA Defense, service animal
The Department of Transportation has issued it final rule concerning in-flight rules for animals helping those with disabilities.¹ The bottom line is straightforward. Airlines are only required to permit dogs trained to perform a specific disability related tasks in the cabin of their aircraft. This adopts the same restriction that the Department of Justice has long had in place for Title III public accommodations under the ADA (except that DOT, unlike DOJ, does not recognize miniature horses as service animals). In addition to limiting the kind of animal airlines are required to transport the DOT regulations permit airlines to do some things that DOJ would ordinarily not permit in a Title III context, including: More
Quick Hits – What the courts are doing edition . . .
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees, ADA Internet Web, ADA Mootness, ADA Point of Sale, ADA Policies, ADA Web Access
Although you wouldn’t know it from watching the news many of the 677 federal judges in the U.S. are working on cases that don’t deal with how to count votes. Here’s a look at what they’ve been up to.
Eleventh Amendment abrogation for ADA claims
In Natl. Assn. of the Deaf v. Fla., 2020 WL 6575040 (11th Cir. Nov. 10, 2020) the Eleventh Circuit held that Congress validly abrogated 11th Amendment immunity with respect to the State of Florida’s legislature, a holding that may eventually lead to a requirement that public legislative sessions be made accessible to those with hearing disabilities. The arguments are too complex for a Quick Hits blog, but it is notable that the Court found that Congress had the power to abrogate state immunity even when no fundamental right is at issue. The case seems destined for a newly constituted Supreme Court, so stay tuned. More
OK, the new HUD regulations on disparate impact are a real tempest.
By Richard Hunt in FHA, FHA Disparate Impact, FHA Regulation Tags: FHA Defense, FHA disparate impact, HUD, Judge Mark Mastroianni, Massachusetts Fair Housing Center
On October 9, which seems like an eternity ago based on the number of emails and texts I’ve gotten asking for contributions to various political parties and politicians, I reported on HUD’s new regulations on disparate impact claims published on September 24. It was a counterpoint to the decision in Connecticut Fair Housing Center v. CoreLogic Rental Property Solutions, LLC, 2020 WL 4570110 (D.Conn. August 7, 2020) holding that third party service providers could violate the FHA. I had to update the blog on October 22 when the National Fair Housing Alliance and others filed National Fair Housing Alliance v. Ben Carson, Secretary of the Department of Housing and Urban Development, Case No.3:20-cv-07388 in the United States District Court for the Northern District of California. That lawsuit attacked the legality of the new HUD regulations on numerous grounds. (the Complaint is 66 pages long). It wasn’t the only lawsuit in the works though. On October 25, 2020 the United States District Court for the District of Massachusetts entered a Preliminary Injunction staying the effect of the new HUD rule. Massachusetts Fair Housing Center et al v. United States Department of Housing and Urban Development, Case No. 3:20-cv-11765 (October 25, 2020). Judge Mastoianni found that the changes constituted a “massive overhaul of HUD’s disparate impact standards” to the benefit of housing providers and the detriment of buyers and renters. Of the three grounds for ultimately overturning the regulation Judge Mastoianni relied on only one; that the new rule was “arbitrary and capricious.” He found that the regulation went beyond the Supreme Court’s decision in Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 576 U.S. 519, 524 (2015), the leading case on disparate impact under the Fair Housing Act. Thus, it could not be justified as an effort to align regulations with case law. He also rejected HUD’s other reason for the regulation – that it provided greater clarity – on the ground that the new rule was far from clear.
Because the ruling only concerns a preliminary injunction there is no final decision on whether the HUD rule is arbitrary and capricious. For a preliminary injunction the court must only find that the plaintiff has a “substantial likelihood of success on the merits.” The order can and probably will be appealed. In the meantime the new Rule is stayed and HUD is forbidden to implement it. Stay tuned.
HUD gets it wrong again on emotional support animals – two is one too many.
By Richard Hunt in ADA, FHA, FHA Emotional Support Animals Tags: charge of discrimination, Emotional Support Animal, Fairfield Properties, FHA Defense, Pinewood Estates, reasonable accommodation
On October 7, 2020 HUD filed a charge of discrimination against Fairfield Properties and Pinewood Estates at Commack Condominium because they denied an accommodation for two emotional support dogs. FHEO No. 02-17-5246-8. The Charge includes the facts, which don’t seem to be disputed. It does not include an explanation of how HUD thinks these facts constitute discrimination, but HUD’s thinking on the subject can be inferred from the Charge and shows why landlords and condominium or owners associations must be careful even when dealing with truly meritless requests. HUD is perfectly capable of making a charge of discrimination that cannot be reconciled with the text of the Fair Housing Act or the case law interpreting it. That’s hardly news, but it is worth remembering. More