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
Disability, criminality, and disparate impact under the FHA – brewing a tempest in a teapot.
The recent decision from Judge Vanessa Bryant in Connecticut Fair Housing Center v. CoreLogic Rental Property Solutions, LLC, 2020 WL 4570110 (D.Conn. August 7, 2020) was followed only weeks later by HUD’s final regulation on disparate impact claims, 85 FR at 60288, September 24, 2020.¹ The CoreLogic decision’s most important holding was that a third party tenant screening service could be liable for providing information that had a disparate impact on a protected class, but Judge Bryant’s denial of a slew of defense motions for summary judgment was a reminder of the potential power of disparate impact claims. HUD’s new regulation, titled “HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard” creates a set of landlord friendly rules for disparate impact claims that may make CoreLogic irrelevent.
NOTE: on October 22, 2020 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. The lawsuit attacks the legality of the new HUD regulations on numerous grounds. (the Complaint is 66 pages long). It was presumably filed in a plaintiff friendly court, and the Ninth Circuit is a civil rights friendly circuit, but the legality of the rule will ultimately go to a Supreme Court that is far less friendly to civil rights legislation. If there is a change of administration in November this regulation is likely to be short lived, so housing providers should probably not make too much of it until we know where the political winds will decide to blow.
The Online Accessibility Act of 2020 – does it do what it needs to do?
On October 2, while the news covered President Trump’s admission to Walter Reed for treatment of Covid-19, Congressmen Lou Correa (D-CA) and Ted Budd (R-NC) introduced the bipartisan Online Accessibility Act, which they claim will “increase website accessibility and reduce predatory lawsuits filed against businesses.”¹ Will it work? That’s a reasonable question.
Quick Hits – Christmas in September
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
Uber, arbitration and the ADA – the 9th Circuit weighs in.
The August 24 decision in Naminsnak et al v. Uber Technologies, Inc. Case No. 18-15860 (9th Cir. August 24, 2020) is interesting for many reasons, so I’m glad my fellow blogger Bill Goren forwarded the opinion.¹ The short version is that Uber was sued because it did not make accessible cars available in New Orleans and failed in its effort to force the case into arbitration. How the case and court got to that conclusion is what’s interesting.
Arbitration agreements can be a very effective tool for reducing the time and money it takes to resolve a dispute, which is why I advocate their use as one tool to reduce exposure to surf-by lawsuits.² They can be good for consumers for the same reason if fairly written. They are not, however, good for plaintiffs’ lawyers in ADA lawsuits. The primary strategic advantage the ADA gives to plaintiffs is the asymmetric rules concerning attorneys’ fees for the winner. A winning plaintiff inevitably has their attorneys’ fees paid by the defendant. A winning defendant almost never does. For an ADA defendant a lawsuit is a lose/lose proposition and so most settle quickly, often regardless of merit.
That is why, I believe, Uber was so anxious to enforce its arbitration provision against the plaintiffs and the plaintiffs’ attorneys were so anxious to make sure it could not be enforced. For Uber arbitration would create a level playing field, or even one tilted in Uber’s favor. For plaintiffs it would take away their strongest strategic advantage.
The plaintiffs attorneys used a clever strategy to avoid arbitration. The Uber app includes an arbitration agreement that is almost unavoidable because once you download the app and create an account you have agreed to arbitrate. California, where this suit originated, recognizes this kind of built in arbitration agreement, so the plaintiffs’ lawyers were faced with a conundrum. How to sue Uber for violating the ADA when your client never downloaded, let alone tried to use the Uber app. The answer was clever. Don’t download the app and claim you didn’t do so because it would be futile. Section 12188(a)(1) of the ADA provides that nothing in it requires that a person with a disability engage in a futile gesture if they have notice the defendant does not intend to comply with the law. In this case the plaintiffs knew that accessible vehicles are not available through Uber in New Orleans. They therefore sued without ever downloading the app; claiming it would be futile to do so.
Futility is not the end of the story though. A plaintiff may not be required to engage in a futile gesture, but they still have to show they suffered a concrete injury as a result of the discrimination they never faced. For this Uber hung its hat on cases that suggested a plaintiff who knew of a discriminatory condition but never tried to face it only suffered an injury from being humiliated. Uber claimed that the plaintiffs never suffered humiliation because they never even tried to get an accessible vehicle. The Ninth Circuit found that humiliation was not required because of its “deterrent effect” doctrine. In the Ninth Circuit a plaintiff who is deterred from trying to gain access to a service or place because they know it is not accessible has already suffered an injury. It is a convenient doctrine for plaintiffs’ lawyers because it means their client can sue based on conditions almost anywhere without ever leaving the comfort of home. After all, once the plaintiff knows about the problem they can claim they were deterred from so much as lifting a finger in pursuit of whatever goods or services they claim they wanted.
But the deterrent effect doctrine doesn’t just apply to an initial injury because it comes in three flavors. In the Uber case it supported the initial injury a plaintiff must suffer to file suit. It can also be used to cover the hypothetical future injury that is necessary for standing because Title III of the ADA provides only for injunctive relief. Finally, it can be used to expand a lawsuit beyond what a plaintiff even knows about if the plaintiffs claim they were deterred from trying to find out by some initial barrier they encountered.
It is most commonly used to create a future injury, and many courts contrast it with the “intent to return” theory that requires proof of an intent to return. Of course this distinction makes no sense at all, and it is surprising that so many cases make it. A plaintiff cannot be deterred from returning to a place they never intended to return to in the first place – to be deterred is to be induced not to do something one intended to do. The “deterrent effect” doctrine should have no practical effect at all on the outcome of an ADA case; it is just a different name for the future injury that accompanies an intent to return that will never be realized.³ The use of the doctrine to expand ADA lawsuits beyond what the plaintiff even knew about is on similar shaky intellectual footing.† It may be futile for a plaintiff to go someplace knowing there are barriers to access, but until a plaintiff knows it is futile the “futile gesture” rule can’t possibly apply.
Is this the end of the story for Uber? Hardly. The decision about whether to send a case to arbitration is made early, and Uber will have plenty of chance to defend the lawsuit on its merits and to attack the standing of the plaintiffs to sue. Alleging that a plaintiff was deterred from downloading the app is easy, proving it may be more difficult. In the rare ADA Title III case that goes to trial plaintiffs not infrequently lose because they can’t persuade the court they really ever intended to buy goods or services and were deterred from doing so. However, no matter what one thinks of the plaintiffs and their lawyers in this case, the question remains: Why doesn’t Uber offer accessible cars in New Orleans? Making its service available to those with disabilities would certainly be the best defense to this and any similar lawsuit. ADA litigation is hugely wasteful in terms of money that goes to lawyers instead of accessibility, but a first step to avoiding that waste is for businesses like Uber to work on making their services available to all.
¹ Bill’s blog is at https://www.understandingtheada.com/
² See my blogs Browsewrap could tame the ADA website litigation monster and A quick hit – arbitration could tame the ADA website litigation monster update
³ A point I have made before. See, ADA and FHA Quick Hits – Great Caesar’s Ghost edition
† See my blog ADA standing and pleading – common sense from the 8th Circuit