ADA and FHA Defense

    • ADA Title II website regulations – does anyone have a better idea?

      There has been plenty of commentary about the new DOJ website accessibility regulations for Title II entities, which fall into the good news / bad news category typical of all regulations. The good news is they have adopted WCAG 2.1 AA as the technical standard, using a standard everyone is or should be familiar with. They have also given local governments a few years to comply, a much needed break that, if applied to Title III regulations, will put a real dent in abusive litigation. The bad news is that DOJ has decided to use a generally inflexible technical standard that, as any expert will admit, can never be met. Equally important, it has denied local government the option to use alternate conforming versions as a means of compliance despite WCAG 2.1 AA’s recognition that such versions provide equal access. I’ll start with the problem of using a technical standard and, in my next blog, talk about the alternate conforming version issue.

      The new regulations require that local governments perfectly meet an impossible to meet technical standard. I say impossible to meet not only because every expert I’ve talked to agrees with this, but also because the biggest government of all – the federal government – hasn’t managed to comply with it.¹ If the Department of Justice cannot manage to comply with WCAG 2.1 AA how does it expect Smallville U.S.A. to do so?² This is not an idle question. Section 508 of the Rehabilitation Act – which governs federal website accessibility – does not provide for a private cause of action in most cases.³ Title II of the ADA, on the other hand, allows anyone claiming an injury from an inaccessible website to sue the state agency or municipality that operates it. It’s easy to impose a standard on others that you don’t have to meet yourself, and that what DOJ has done.(4)

      This isn’t to say it is easy to define a rule about what the world should be like that makes sense in the world that exists, especially when the rule applies to a huge range of entities with a huge range of budgets. In this case though there is a fundamental problem DOJ has not recognized; the three way disconnect between the complexity of a website, the size of the entity that maintains it, and the cost of bringing it into conformance with WCAG 2.1 AA.

      One of the tenets of the original ADA regulations concerning physical accessibility was that the cost to implement them would be modest in new construction and limited in old construction to what was “readily achievable.” Concrete ramps, accessible parking signs, wider doors and the like are relatively cheap. Where changing an existing building under the readily achievable standard the kinds of changes that are very expensive – such as those that require work on a load bearing wall – are recognized as being unduly burdensome.(5) There is no similar exception in the new website design regulations. They do recognize the possibility of an undue financial burden, but DOJ seems to have adopted a standard that any cost up to 1% of the budget of the entity in question is not too burdensome. 1% is a significant chunk of the budget for any municipality and a number high enough to mean “undue burden” will never be a good defense.

      That 1% number comes from DOJ’s estimate of the costs and benefits of the new regulation. For small entities DOJ’s figures show much smaller annual costs for compliance over a ten year period, but of course under these regulations any website remediation must be accomplished within three years, not ten. In addition, ongoing costs of around $10,000 a year (DOJ’s estimate for small towns) bear no relation to the immediate cost imposed by the regulation.(6) Most important, looking at average costs based on entity size disregards the reality that website complexity is not related to entity size. One promise of the internet is that it allows even the smallest entity to provide services it could never afford to provide any other way. However, if a small town website offers the same services as the website of a much larger city, the cost of compliance will likely be the same for both despite the very unequal impact on their budgets. The immediate impact of the rule, at least for covered entities that try to comply, will likely be that smaller entities with more limited budgets begin to scale back the services they offer on the internet so they can more easily comply with WCAG 2.1 AA. Creating equality by making the internet less useful for non-disabled users is a poor way of accomplishing the goals of the ADA.

      DOJ did face a real problem when developing these regulations; that is, the ability to create accessible websites and applications at a reasonable cost depends on the existence of tools and trained developers. DOJ’s cost estimates for smaller Title II entities were based on looking at about 87,000 counties, towns, junior colleges and other entities. If all 87,000 tried to find the resources needed for WCAG 2.1 AA compliance the existing accessible development community would be very happy, but also overwhelmed.   When too many customers chase too little talent the result is an inevitable increase in costs, something it does not appear DOJ has taken into account.

      I do have a positive suggestion for what DOJ could do. DOJ should have adopted a perfectly fair implementation deadline; that is, Title II entities would be required to conform to WCAG 2.1 AA just as soon as the General Services Administration reports that all websites covered by Section 508 of the Rehabilitation Act conform to WCAG 2.1 AA. More seriously, DOJ could agree that a website satisfies the requirements of the ADA if it delivers the essential services it was intended to deliver in a non-discriminatory manner. I’ll discuss the difference between the idea of a website as a means of delivering services and a website as a place in my next blog. In the meantime, I think it is fair to say the adoption of an impossible to meet technical standard was simply a very clumsy way and even ineffective way to accomplish what the ADA is intended to accomplish.(7)

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      ¹ A recent GSA survey of government websites found “The government as a whole is not meeting the minimum standard or legal obligation to provide equal access to all members of the public and federal employees with disabilities.” To be more specific, more than 70% of federal government websites do not meet the Section 508 standard, which is, by the way, WCAG 2.1 AA.  See, GSA Report. There is, however, a big difference between the federal government and state and local governments. Section 508 does not let ordinary disabled citizens sue the federal government because it failed to provide equal access to its websites. The ADA does permit private lawsuits, exposing Title II entities to litigation risks and costs that DOJ, as a federal agency, will never face. It’s easy to make rules for others that you don’t really have to adhere to yourself.

      ² Some DOJ websites had very high conformance ratings, but many did not or had not been tested.

      ³ See, D’Amore v. Small Bus. Administration, No. 21-CV-01505 (CRC), 2021 WL 6753481, at *3 (D.D.C. Sept. 16, 2021) for a discussion of the limited availability of a private cause of action against federal agencies for violations of the Rehabilitation Act.

      (4) Technical standards that must be perfectly met are the serial lawsuit filer’s dream because it is easy to file a suit in good faith over what may be trivial failures to comply but expense to prove as a defense that the failures do not in fact deprive a disabled user of equal access. This is not a problem for DOJ. It is, of course, required to follow the law; however, the penalty for non-compliance is a mild scolding from the General Services Administration somewhere after page 100 in Appendix D to a 391 page report, and even that comes with GSA suggesting that more money be budgeted for compliance. What agency wouldn’t like more money?

      (5) The 2010 ADA Standards for Accessible Design include in the definition of “technically infeasible” work on load bearing walls.

      (6) DOJ’s comparison of costs and benefits is somewhat deceptive. In calculating benefits DOJ considered benefits to disabled and non-disabled users alike. If there is a feature in a website that interferes with non-disabled users as well as disabled users then, by definition, the interference is not discriminatory. The ADA prohibits discrimination, not bad web design, and in calculating the benefits of the new regulations any benefit to non-disabled users must be excluded.

      (7) Here I will acknowledge another problem DOJ faced. Creating and adopting regulations is a very slow process. Technological change is a very fast process. When DOJ first began work on these regulations a decade or more ago the internet was a very different place and mobile apps as a means of delivering services were far less common.


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    • The Alice in Wonderland world of HUD’s definition of “handicap.”

      Welcome to the Alice in Wonderland world of HUD reading the FHA. We can start with a quote from the novel by Lewis Carroll that sums up the problem:

      “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master—that’s all.

      Like Humpty Dumpty, HUD believes it is the master of the word “handicap.” Among the many lessons to be learned from HUD’s recent charge of discrimination against the Housing Authority of Grapevine,¹ (including the risk of pulling the trigger too soon on efforts to evict a tenant with medical problems) is that HUD continues to assert that the meaning of “handicap” in the Fair Housing Act is the same as the meaning of disability in the Americans with Disabilities Act, a notion that is unsupportable under the ordinary principles of statutory interpretation. This is what HUD says in a footnote to the Charge:

      The Fair Housing Act uses the terms “handicap,” whereas this document uses the term “disability.” Both terms have the same legal meaning. See Bragdon v. Abbott, 524 U.S. 624, 631 (1988). 

      Bragdon v. Abbott concerned whether HIV infection was a disability as that term is defined in the ADA. As part of its analysis the Supreme Court observed that:

      The ADA’s definition of disability is drawn almost verbatim from the definition of “handicapped individual” included in the Rehabilitation Act of 1973, 87 Stat. 361, as amended, 29 U.S.C. § 706(8)(B) (1988 ed.), and the definition of “handicap” contained in the Fair Housing Amendments Act of 1988, 102 Stat. 1619, 42 U.S.C. § 3602(h)(1) (1988 ed.). Congress’ repetition of a well-established term carries the implication that Congress intended the term to be construed in accordance with pre-existing regulatory interpretations

      Bragdon v. Abbott, 524 U.S. 624, 631 (1998). The problem here is that Bragdon v. Abbott was decided in 1998, a decade before Congress amended the definition of “disability” in the ADA to make it more expansive. Congress did not amend the definition of “handicap” in the Fair Housing Act, and under the usual rules of statutory construction when Congress changes one statute but not another it is presumed the choice not to amend the parallel statute was deliberate.²

      The complainant in Housing Authority clearly had a “handicap” under the definition found in the Fair Housing Act as well as a “disability” as defined in the ADA. The footnote quoted above was, therefore, unnecessary. Why then did HUD feel it was necessary to assert the two words mean the same thing?

      One reason might be that “handicap” is no longer an acceptable word to describe the conditions that meet the definition of “handicap” in the Fair Housing Act. Noting this use of “disability” instead of “handicap” to recognize changing usage makes sense. A footnote explaining that “disability” is used to mean the same thing as “handicap” in the brief or opinion avoids confusion while using the more acceptable term. That use does not, however, require the assertion that “disability” in the ADA and “handicap” in the FHA mean exactly the same thing, which is what HUD has done.

      The reason, I believe, is that HUD thinks Congress should have expanded the meaning of “handicap” to match that in the ADA. HUD could amend its regulatory definition to try to accomplish this, but of course amending regulations is time consuming, tedious, and subject to review in the courts. Instead HUD seems to have simply taken the position that for its purposes the two words have the same expansive meaning. As a result, housing providers must assume that HUD will issue a charge of discrimination on behalf of an individual who does not meet the FHA’s statutory definition of “handicap” but does meet the ADA’s statutory definition of “disability.” This is important because housing providers are often confronted by tenants or home purchasers whose claim to have a handicap is tenuous at best, especially with regard to mental impairments that have no visible symptoms. When evaluating accommodation requests from such individuals, housing providers must understand that until HUD is required to appear before a federal judge it is a law unto itself. It will ignore what the courts say to follow its own internal policies and getting to court for rigorous application of the law can be had only after spending tens of thousands of dollars in legal fees.³ Dealing with accommodation requests that involve mental impairments requires careful consideration of HUD’s position on the meaning of “handicap” and a strategy that creates a record meeting HUD’s expectation of how housing providers should behave. It can also mean swallowing hard and granting accommodations that are not required by the FHA but are required by HUD’s interpretation of the FHA. You can fight Uncle Sam, but it isn’t cheap.

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      ¹ You can find it at Housing Authority of Grapevine Charge

      ² See, Rodriguez v. Village Green Realty, Inc., 788 F.3d 31, 40 at n. 10 (2nd Cir. 2015) and see Logan v. Matveevskii, 57 F. Supp. 3d 234, 255 (S.D.N.Y. 2014) for a collection of authorities discussing why the 2008 ADA amendments did not change the meaning of “handicap” in the FHA. The Ninth Circuit has recently disagreed without noting the disagreement in what can only be called a rather slippery argument. See. Socal Recovery, LLC v. City of Costa Mesa, 56 F.4th 802, 811 (9th Cir. 2023), cert. denied sub nom. City of Costa Mesa, California v. SoCal Recovery, LLC, 144 S. Ct. 422 (2023). In any event, the dicta found in Socal Recovery is just that, for it had nothing to do with the outcome of the case.

      ³ I should note as well that some federal courts may agree with HUD on this issue, so taking the case to court is not a guarantee of success.


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    • Starbucks again – Lactose intolerance, alternative milk and the ADA

      Back in 2022 a plaintiffs’ firm filed a national class action in Florida against Starbucks claiming that it discriminated against those with lactose intolerance by charging extra from non-dairy milk alternatives. The case progressed in fits and starts, as most such cases do, until February 27 of this year, when the Court gave the plaintiffs seven days to explain how one of them could establish the requirements for asserting that the Court in Florida had personal jurisdiction over Starbucks. On March 6 the plaintiffs dismissed the lawsuit entirely rather than meet the Court’s demand for an explanation.

      After waiting only six days the same law firm filed a new lawsuit against Starbucks, this time in California. The claims are identical; in fact, most of the new Complaint was cut and pasted from the Florida Complaint. It isn’t clear why the plaintiffs’ lawyers decided to move from the east to the west coast – after all, it was only one of the two plaintiffs that had a problem in Florida – but move they did, so the entire process is starting over.(8)

      It isn’t hard to predict what will happen next. In Florida, Starbucks, represented by Minh Vu and other attorneys at Seyfarth Shaw, moved to dismiss the Complaint because it failed to state a claim under the ADA.  That motion was never ruled on because of the jurisdiction issue and dismissal, but it is a safe bet that Judge Thurston (the judge in the California case) will soon be presented with an almost identical motion to dismiss. There are no meaningfully different allegations in the California lawsuit, so there isn’t much reason to do more than change the names and file the same motion again.¹

      What that means for this blog is that I don’t need to wait to say what Starbucks’ position will be and explain why it is correct. Instead, I’d like to look at an argument Starbucks made in its original motion to dismiss but did not include in its motion to dismiss the plaintiff’s amended complaint, perhaps because it is the kind of fact based argument that cannot easily be raised in a motion to dismiss. I’d also like to consider a bigger question – just when does the basic unfairness of life tip over into the realm of a disability that requires statutory protection.

      Under the ADA a disability is “a physical or mental impairment that substantially limits one or more major life activities. . . .” After a pair of  Supreme Court interpretations finding the definition was fairly narrow² Congress amended the ADA in 2008 to explain in some detail just what this did and did not mean. The ADA amendments made it clear that “major life activities” includes “the operation of a major bodily function” including “digestive” functions. Thus, a person who is “substantially” limited in their ability to digest food has a disability. The 2008 ADA Amendments make that clear.

      Both the old and new Starbucks cases rest on the claim that lactose intolerance is a disability because those who suffer from it are limited in their ability to digest lactose. The 2008 ADA Amendments made it clear that “substantially limits” no longer means “completely or severely” but leaves open the question of just what it means. The few courts to have considered the matter indicate lactose intolerance is not a substantial limitation on digestion.³ Whether they are right is a question that can be approached in a couple of ways. One is to ask what digestion is all about. Is it about being able to consume every kind of food that any human can consume? In that case any kind of food allergy or intolerance is a disability. Or is it, more sensibly, about being able to obtain the nourishment necessary for a healthy life? Since dairy products containing lactose are not the exclusive source of any nutrient a lactose intolerance does not significantly restrict one’s ability to digest.

      One easy way to see that lactose intolerance does not substantially limit digestion is to look at how many people suffer from some degree of lactose intolerance. According to the National Institutes of Health about 68% of the world population suffers from some degree of “lactose malabsorption.”(4) Lactose intolerance, which is simply lactose malabsorption that causes symptoms, is less common, but the term covers a large range of symptoms, including bloating, diarrhea and gas, all of which are symptoms for many people of things like eating especially spicy foods, eating some kinds of beans, and so forth and so on. If indigestion is a disability then almost everyone is disabled. In addition, as the NIH observes, “[m]ost people with lactose intolerance can consume some amount of lactose without having symptoms.” That means, of course, that for a lactose intolerant person the occasional Starbucks latte made with whole milk may not have any effect at all.

      The bottom line, looking at disability in this way, is that “lactose intolerance” as such is not a disability. Even for those whose ability to digest lactose is limited the limitation is not substantial because they can consume some lactose with no ill effect. There is some small number or people with severe lactose intolerance, but even those may only be limited in their ability to consume milk and soft cheeses.(5) And, of course, those who cannot tolerate any lactose still have the entire range of non-dairy food products available to them. In fact, lactose intolerance is especially high in parts of the world that do not, or have only recently, relied on cows’ milk as a source of food.(6) Billions of people around the world get along in life without milk products, because in some places most of the population consume little or no milk. If a very large majority of the people in South Asia are lactose intolerant it would be more than a little odd to claim it is a disability. In fact, claiming that a condition common to an identifiable ethnic group constitutes a disability is a common first step to outright racism – “they” must be inferior because “they” are all disabled.

      As I said above, this was not the focus of Starbucks’ later brief in the Florida case. It focused instead on the three more technical arguments suitable for an early motion to dismiss; that is:

      • If everyone pays the same price it isn’t discrimination on its face.
      • DOJ regulations say that a business is never required to change the goods and services it offers and if Starbucks were forced to provide milk alternatives for free it would, in essence, be required to provide such alternatives, and
      • The additional charge is not an illegal surcharge(7) because it is not disability related and not imposed only on those with disabilities.

      Any of these might succeed and make the question of whether lactose intolerance is even a disability irrelevant, but the question will continue to be important as an example of a broader issue. Should every identifiable impairment be a disability? If not, how do you draw the line between “life isn’t always fair” and “we need to take action to correct a real injustice.” One answer, and the correct answer I think, is to ask whether the condition is one that has traditionally been a source of discrimination. The ADA is an anti-discrimination statute whose purpose was to combat discrimination against those with disabilities. The evil of that kind of discrimination lies in its irrationality – those with disabilities should not be treated as incapable in ways that are not related to their disability or when their impairment can be overcome with relative ease. There is no history of irrational discrimination against those with lactose intolerance; indeed there is no history of such discrimination at all. The same can be said of many other allergies and digestive problems. Behind all the definitions and statements of Congressional intent lies the problem of irrational discrimination, and that is the ultimate test of whether any condition constitutes a disability. Under that test lactose intolerance is not a disability at all.

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      ¹ The new Motion is likely to be a little bit different because Starbucks’ lawyers now know from the Florida case what the plaintiffs’ lawyers are likely to do, so they will anticipate those arguments in their motion. And they will inevitably change things they wish they had said better the first time around. I’ve never met a lawyer that didn’t want chance to improve on their last brief.

      ² Sutton v. United Airlines, Inc., 527 U.S. 471 (1999); and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002).

      ³ See, e.g., Griffin v. United Parcel Service, Inc., 661 F.3d 216 (5th Cir. 2011).

      (4) See, Lactose Malabsorption NIH

      (5) The bacteria that create cheese consume lactose, so hard cheeses do not contain significant amounts. Lactose in hard cheeses

      (6) See Regional Lactose Intolerance

      (7) Businesses are not permitted to charge more for goods or services to cover the supposed expense of making them usable by those with disabilities. You don’t have to offer accessible goods or services, but if you do so you can’t charge more than you charge for otherwise identical goods or services.

      (8) Keeping up to date, similar lawsuits have been filed against Dunkin’ Donuts – Case No.3:23-cv-06621 in the Northern District of California and International Coffee & Tea – Case No. 2:24-cv-03132 in the Central District of California. In the Dunkin’ Donuts case a Motion to dismiss has already been filed, but has not yet been decided.


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    • ADA and FHA Standing – good news, bad news and a twist

      I don’t usually blog about my own cases because it requires that I put in a disclaimer.¹ However, a trio of district court decisions, including two in cases where I represent the defendant, justify another look at standing after  Transunion and the Laufer cases.²

      I’ll start with the good news of an apparent trend in ADA website cases filed in the Southern District of New York. The most recent case is Martin v. Second Story Promotions, Inc., No. 1:22-CV-10438 (MKV), 2024 WL 775140 (S.D.N.Y. Feb. 26, 2024), a decision by Judge Vyskocil. The case was a typical³ serial filer suit alleging that a website was not accessible and therefore violated Title III of the ADA.  Judge Vyskocil dismissed the case because the necessary allegations were not sufficiently specific. As she observed:

      Plaintiffs allege no facts whatsoever regarding how they learned of the Website, what piqued their interest in the Website, any particular products they viewed or were interested in viewing or purchasing, whether they searched for comparable products elsewhere, or why Defendant’s products or Website are preferable over comparable products or websites

      She did not say what I think is obvious; that is, these allegations were not included because the plaintiffs could not have included them and told the truth. It was a victory for common sense and the Case and Controversy clause in Article III of the Constitution.

      Judge Vyskocil is not alone in her views of this kind of pleading. In fact, the most recent decisions from the Southern District of New York seem to show a clear trend toward finding that serial filers do not have standing after the 2nd Circuit’s decision in Calcano v. Swarovski North American Limited (4). See, Feliz v. IHealth Labs Inc., No. 23-CV-00354 (JLR), 2024 WL 342701, at *5 (S.D.N.Y. Jan. 30, 2024), Loadholt v. Oriental-Decor.com Inc., No. 22CV8205ASRWL, 2024 WL 78243, at *1 (S.D.N.Y. Jan. 4, 2024), report and recommendation adopted, No. 22-CV-8205 (AS), 2024 WL 247107 (S.D.N.Y. Jan. 23, 2024), and Zinnamon v. Profound Color, LLC, No. 1:23-CV-2722-LJL, 2023 WL 6882415, at *3 (S.D.N.Y. Oct. 17, 2023) and Dawkins v. Schott NYC Corp., No. 22CV3617PKCTAM, 2023 WL 6283285, at *5 (E.D.N.Y. Sept. 26, 2023).

      This does not mean, however, that the battle is won. Judge Liman, who has dismissed ADA website cases based on lack of standing, found that standing was sufficiently pled in Davis v. Wild Friends Foods, Inc., No. 22-CV-04244 (LJL), 2023 WL 4364465, (S,D.N.Y. July 5, 2023). More important, the pleading defects in all the cases cited above can be fixed by simply making the plaintiff work a little harder to provide more specific allegations. Those allegations may not be true, but these cases settle because it is cheaper than winning at trial. If a pleading can withstand a motion to dismiss, settlement will remain the cheapest option and serial filers will continue to file suit.

      Turning from the ADA to the Fair Housing Act and my own cases, it is worthwhile to compare two decisions in cases brought by the same serial FHA filer, Dana Bowman. In an unreported opinion dated February 13, 2024 Judge Reed O’Conner denied the defendants’ Motion to Dismiss based on standing, relying on the Supreme Court’s decision in Havens Realty v Coleman and earlier decisions in favor of Bowman from other district courts. See, Bowman v. Shannon Creek  et al, Case No. 4:23-cv-00325-O (N.D. Tex. Feb. 14, 2024). The opinion is brief and contains no analysis of TransUnion or any of the Laufer cases, so there isn’t much to learn from it except that a defendant can lose a motion to dismiss in the Northern District of Texas.

      Judge Brantley Starr’s decision in Bowman v. SWBC Real Estates Services, LLC, No. 3:23-CV-00970-X, 2024 WL 1123035, at *5 (N.D. Tex. Mar. 14, 2024), on the other hand, contains a reasonably detailed and very interesting analysis of FHA and ADA standing in cases involving multi-family housing. The analysis begins with a show of independance, for Judge Starr writes that: “The parties point to other non-binding cases, but the Court opts to stick with the cases that bind it.” Those are, of course cases from the Fifth Circuit and Supreme Court; not the district court cases holding in Bowman’s favor.

      Judge Starr begins his analysis by observing that in public accommodation cases under Title III of the ADA plaintiffs have standing with respect to barriers to access in public areas because they are an invitee. They do not have standing for non-public areas that they cannot lawfully enter. After finding that Bowman failed to state a claim under Section 3604(f)(1) of the FHA because he did not allege any interest in buying or renting an apartment, Judge Starr turns to Section 3604(f)(2), which more broadly covers the privileges associated with renting an apartment, Judge Starr begins with his ADA analogy to distinguish accessibility barriers in places  to which Bowman had “lawful access” and those he did not.

      If these [thermostats and bathrooms] were in common use areas of a dwelling Bowman had a lawful right to enter, they seem fair game for him to sue. If Bowman is complaining about thermostats and bathrooms in rented units he has no right to access, then it does not seem that he encountered those barriers or was harmed by them—predicates to standing in any case.

      Bowman v. SWBC Real Estates Services, LLC, 2024 WL 1123035, at *4.  Bowman was granted leave to replead so it remains to be seen whether he will be able to satisfy Judge Starr with respect to these allegations.

      Judge Starr’s opinion finds that Bowman did plead standing with respect to mail boxes and the lack of a route to the public street because these were both things he might encounter in the common areas of the apartments. It is not clear, however, that these allegations can support standing past the pleading stage.(5) While a visitor like Bowman might see an inaccessible mailbox, unless they were expecting mail the inaccessibility would have not real life consequences for them. The same is true of an accessible route from the street for a person who, like Bowman, probably drove to the property.  It might also be true of the bathroom or kitchen in an unoccupied unit shown during a tour of the apartments. One thing Laufer made clear was that merely being aware of a statutory violation is not sufficient to create an injury that gives rise to standing. Unless Bowman needed use a bathroom in a display unit it seems unlikely that a lack of accessibility would create more than the dignitary injury the Fifth Circuit has rejected. Bowman has until April 11, 2024 to replead, so stay tuned.

      Taken together, these cases demonstrate that “know your judge” is still critical in defending ADA and FHA serial filer cases. Not only might you get a clear thumbs up or thumbs down, you might also find you have a judge who has adopted a more complex analysis of their own.

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      ¹ The disclaimer is that I can’t say the result will be the same in other cases, and if you read on you will understand why.

      ² To avoid a very long string of references I’ll refer you first to Acheson Hotels – I had to say something. in which I review the correct (in my view) legal arguments about this issue and ADA Serial Litigation – Will the Supreme Court cut the head off this snake for footnotes with references to even more blogs on this subject.

      ³ Typical is something of an understatement. Cases of this kind  are essentially identical except for the name of the defendant and the pet plaintiff on whose behalf the lawsuit was filed.

      (4) See my blog at A short sharp shock.

      (5) Although Judge Starr did not treat other district court cases as binding, He did look closely at the decision in Bowman v. Wildwood of Lubbock, LLC, No. 5:19-CV-164-H, 2020 WL 10458628, at *5 (N.D. Tex., Oct. 23, 2020). In that case the finding that Bowman adequately pled standing rested in part on Bowman’s use of a wheelchair and allegations that as a wheelchair user he could not even enter some parts of the apartments he visited. Bowman is now able to walk on artificial limbs and apparently does not use a wheelchair when he visits the apartments he sues. That means that while a mailbox or a thermostat might not be accessible to a person in a wheelchair they could still be accessible to him.


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    • Kiosks and the ADA – evaluating the risk after Davis v Lab Corp

      Circuit court decisions on ADA cases are sparse when compared to the number of suits filed, and cases involving self-service kiosks are rare, so it isn’t surprising the Ninth Circuit’s decision in Davis et al v. Laboratory Corp. of America Holdings, Case No. 22-55873 (Ninth Circuit, February 8, 2024) has gotten a good deal of attention. Others have looked at the holding itself, but I thought it would be a good opportunity to look at the issue of accessible kiosks generally to see how this case fits with earlier decisions and ask whether it marks a significant change in the law.¹

      The earliest ADA lawsuit alleging that self-service kiosks were not accessible by individuals who are blind seems to be Lighthouse for Blind and Visually Impaired v. Redbox Automated Retail, LLC, No. C 12-0195 PJH, 2012 WL 12964819, at *3 (N.D. Cal. May 18, 2012). In Lighthouse the plaintiff challenged touch screen kiosks used to rent movies. The reported decision does no more than find the case could not be dismissed at the outset; it was later settled as a class action including a requirement that Redbox modify its kiosks to provide tactile keypads and text to voice software that would allow a blind person to hear and make selections. It is notable that in 2012 this solution was seen as technically feasible, which is not surprising since DOJ’s regulations concerning ATM machines and DOT requirements for airport kiosks already included the same requirement.²

      A few years later a number of cases found that self-service kiosks were not required to be accessible if there was staff help available for navigating the machine. In West v. Moe’s Franchisor, LLC, No. 15CV2846, 2015 WL 8484567, at *1 (S.D.N.Y. Dec. 9, 2015) the court found that soft drink dispensing machines that could not be used by the blind did not violate the ADA because “effective assistance from Moe’s employees acting as “qualified readers” was sufficient. The court reached the same conclusion in West v. Five Guys Enterprises, LLC, No. 15-CV-2845 (JPO), 2016 WL 482981, at *1 (S.D.N.Y. Feb. 5, 2016). By 2020 the use of staff as readers for self-service kiosks the restaurant business seemed well established. In Williams v. McDonald’s Corp., No. 220CV1214TLNDBPS, 2020 WL 6561305, at *1 (E.D. Cal. Nov. 9, 2020), for example, the case was dismissed for failure to state a claim because, as the magistrate judge wrote,

      defendant’s restaurants provide the option of “obtaining [sighted] assistance to operate the kiosk[.]” . . . “ADA regulations make clear that restaurants are permitted to use qualified readers to assist visually-impaired patrons with menu selections.”

      The court took a slightly different approach in Natl. Fedn. of the Blind, Inc. v. Wal-Mart Associates, Inc., 566 F. Supp. 3d 383, 398 (D. Md. 2021), finding both that providing assistance was acceptable and, moreover, that no ADA standard applied to self service kiosks:

      Whatever the merit of these experts’ testimony, Plaintiffs’ argument is unavailing, as the latest edition of the Design Standards expressly excludes self-checkout kiosks of this nature. The Advisory to Section 707 of the 2010 Design Standards, which governs ATMs and fare machines, provides that “[i]nteractive transaction machines (ITMs), other than ATMs, are not covered by Section 707.” . . . Here, as in Kohler, the absence of an applicable Design Standard demonstrates that Defendant is in full compliance with 42 U.S.C. § 12183, and forecloses an accessible design claim under this provision.10 A contrary ruling would require this Court to rewrite the Design Standards to fill a void that Congress and the Department of Justice left empty, and “render compliance with these regulations meaningless.

      These cases all relied on DOJ’s determination that restaurants did not have to provide braille menus if a member of the staff could read the menu to a person with a vision impairment. If reading a menu was o.k., why shouldn’t the same apply to a touchscreen kiosk? They are also consistent with Redbox, for the Redbox rental kiosks are never staffed.

      It is notable that none of these decisions considered the fact that creating accessible interfaces for the blind was technologically feasible. In Natl. Fedn. of the Blind v. Container Store Group, Inc., No. CV 15-12984-NMG, 2020 WL 13878557, at *6 (D. Mass. June 24, 2020), for example, the defendant was able to prevail on mootness grounds because, during the pendency of the lawsuit, it added tactile keypads and other accessibility features to its check-out kiosks. As noted above, these features had been required on ATMs and airport kiosks for years. These decisions permitted staff assistance without regard to a technological alternative.

      This brings us to self-service kiosks in medical facilities. In Vargas v. Quest Diagnostics Clinical Laboratories, Inc., 2021 WL 5989961, at *6 (C.D. Cal. Oct. 15, 2021) the district court denied a defense motion for summary judgment claiming that inaccessible check-in kiosks were acceptable because human assistance was available. The ruling was consistent with the cases above because the problem was that human assistance was often not available, leaving a fact issue about whether it was an adequate substitute. By the time of the summary judgment, however, Quest had modified its kiosks to include audible instructions on how to use the kiosk to summon help and to check in without the need to include customer information that could only be done through the kiosk. There was at least a strong argument that assistance was now adequate. To avoid that argument the plaintiffs sought to certify a class of individuals who suffered discrimination because the kiosks were not “independently accessible.” In other words, they argued that having someone help with the kiosk was not enough. The Court certified a class based on that claim and, the following year, ruled in favor the plaintiffs after a four day trial. Vargas v. Quest Diagnostics Clinical Laboratories, Inc., 2023 WL 6447226, (C.D. Cal. Sept. 29, 2023).  The decision rested heavily on the particular facts of the case, including the court’s finding that Quest employees were not always available to help customers who were blind or otherwise unable to use the kiosk. Quest filed an appeal in November of 2023 that is still pending.

      While Vargas was moving through one court, Davis v. Laboratory Corp. of Am. Holdings, 604 F. Supp. 3d 913, 919 (C.D. Cal. 2022), aff’d, No. 22-55873, 2024 WL 489288 (9th Cir. Feb. 8, 2024) was moving on a parallel track based on claims that kiosks at Laboratory Corp facilities violated the ADA. Davis made it to the Ninth Circuit before Vargas because the defendants appealed the class certification order before there was a trial or even a motion for summary judgment.

      So far this doesn’t seem very exciting. The appeal concerned class certification, not the underlying substantive claim. To certify a class action the District Court must find, among other things, that the members of the proposed class share common legal or factual issues. In the District Court whether the kiosks violated the ADA was just one of the “issues” that justified finding the commonality requirement was met. However, identifying a common issue – whether the kiosks violated the ADA –  is not the same thing as making a finding of fact that the kiosks violate the ADA. At this point it looks like Vargas, with an actual finding that the ADA was violated, is the most important case.

      The excitement about Davis stems in part from the sloppy way the opinion was written. In another recent 9th Circuit case³ the Court of Appeals held that proof of the facts necessary for certification of a class should be by a preponderance of the evidence. In Olean Wholesale³ the Ninth Circuit found, in agreement with many other courts, that class action plaintiff must prove that the prerequisites for certification are met by a preponderance of the evidence. None of the certification requirements include a finding that the plaintiff will win. The focus is on the issues in the case, not the ultimate outcome. In Davis the district judge cited this rule as part of his background discussion of his ruling. Notably, he did not make any finding about the ultimate issue; that is, whether the self-service kiosks violate the ADA. In fact, the judge quoted an earlier Ninth Circuit decision holding that the purpose of class certification was not “to determine whether class members could actually prevail on the merits of their claims.”

      On appeal, however, the Ninth Circuit wrote as if liability had been established. It begins its opinion by announcing that it will consider whether the plaintiff has standing to sue, a question it seems to have raised sua sponte. Then, after citing to the “preponderance of the evidence” standard the Court reviews the plaintiff’s claims and concludes that the plaintiff “was denied effective communication” and has standing to sue. It appears the  Court of Appeals is finding as a matter of law that self-service kiosks must be independently accessible and that the plaintiff was in fact a victim of an ADA violation. That kind of finding coming from the Court of Appeals is far more dramatic than the trial level decision in Vargas.

      I don’t believe though that this is more than sloppy writing by the Court of Appeals, which may have taken a casual attitude toward the decision because it was in an unpublished opinion. A finding of standing for purposes of class certification may involve some analysis of the merits, but that analysis is not intended to be a final determination of the merits.(4)  Deciding whether a customer has in fact been denied effective communication because a self-service kiosk cannot be independently accessed is, as the district court found in Vargas, the kind of factual determination that requires a trial.

      Does Davis represent any change in the law? I don’t believe it does. Like Vargas it confirms that just because DOJ guidance allows waitstaff to read a menu to a blind customer and cases extend this to self-service kiosks it does not follow that every self-service kiosk is acceptable under the ADA. When, as in Vargas and Davis, the point of the kiosk is to separate staff members from customers, presumably to cut labor costs, it isn’t likely a staff member will be waiting around to help a blind customer use the self-service kiosk. Equally important, there is a difference between the personal and private information required to check in to a medical facility and a consumers choice to buy Coke instead of Fanta. One of the issues in the Container Store case was that a blind customer would have to provide their ATM PIN to the cashier. Like many other technologies, self-service kiosks are neither always unacceptable nor always acceptable. Meeting the “effective communication” requirement depends on what is being communicated under what circumstances. That has always been the law.

      As a final note, this body of case law may soon be superseded by regulation. In June of this year DOJ expects to publish an NPRM for regulations that would impose on all self-service kiosks the same kind of requirements now imposed on ATM machines. For the time being Davis and Vargas illustrate a litigation threat that may be raised by plaintiffs’ firms with the ability and willingness to engage in the complexities of class action litigation. Once regulations are in effect we can expect to see a rash of serial filings by professional plaintiffs, just as happened in 2012 when the ATM regulations went into effect and again in 2015 when early court decisions found that websites had to be accessible. Restaurants and other stores relying on decisions permitting self-service kiosks should be considering how to upgrade their kiosks now, not only to better serve disabled customers, but also to avoid future litigation. Medical service providers using self-service kiosks to gather personal information cannot take any comfort from the fact driven nature of the decision in Vargas or the limited in holding in Davis because in a year or two the outcome of those cases won’t matter. Like many other technologies, touch screens were introduced as convenience for customers and businesses without much thought being given to accessibility. Now is the time for businesses to correct that oversight.

      ++++++++++++++++++++++++++++++++++++++++++++

      ¹ You should also look at Bill Goren’s analysis at and the brief summary at Seyfarth Shaw’s adatitleiii.com blog.

      ² See, 78 FR 67882 (DOT) and 2010 Standards for Accessible Design Sections 220 and 707.

      ³ Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 651, 664 (9th Cir. 2022), cert. denied sub nom. StarKist Co. v. Olean Wholesale Grocery Coop., Inc., On Behalf of Itself and All Others Similarly Situated, 143 S. Ct. 424 (2022)

      (4) The distinction between a finding on the merits and the finding necessary to certify a class is described in various ways, but it is clear that as a rule certification of a class is not a determination of the merits. Koss v. Norwood, 305 F. Supp. 3d 897, 915 (N.D. Ill. 2018) includes a good discussion of the various considerations. Without getting too far into the weeds of class certification, it is notable that the Ninth Circuit did not tie the standing issue to any of the four elements required for class certification, and it is those elements that require a preponderance of the evidence. The Ninth Circuit affirmed a class certification order, not a determination that in this particular case the self-service kiosks violated the ADA because there was no such determination in the trial court, which described the kiosks as “allegedly inaccessible”

       


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    Richard Hunt, author