We aren’t quite to Halloween, but the candy is certainly crowding the shelves of local stores, whose owners might want to take a look at Ryan v. Kohls, Inc., discussed below. Beyond that we have the usual roundup of default judgment cases, website accessibility standing cases, and of course some ordinary “drive-by” cases involving physical accessibility mixed in with cases that deserve special attention because they could have a broad impact on ADA and FHA litigation. Here they are. More
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees, ADA Mootness, Animals, FHA Emotional Support Animals Tags: ADA defense, ADA Internet, ADA website, FHA Defense, FHA Guidelines, Glueck v National Conference of Bar Examiners, Hillesheim v Holiday Stationstores, mootness, service animals, Wetzel v Glen St. Andrew
Landlord liability for tenant discrimination
Wetzel v. Glen St. Andrew Living Community, LLC, 2018 WL 4057365 (7th Cir. Aug. 27, 2018) is a critically important decision for landlords because it holds a landlord may be liable for its failure to restrain discriminatory conduct by tenants. The plaintiff is a lesbian who found herself the subject of a “torrent” of abuse from fellow tenants based on her sexual orientation that included both verbal and physical assaults. The rules of the apartment complex were similar to those of most apartments and permitted the landlord to take action against any tenant whose conduct was a threat to the health and safety of others or interfered with the peaceful use and enjoyment of the apartments. The plaintiff reported the abuse to management, who did nothing about it. In fact, they engaged in various kinds of conduct that essentially punished the plaintiff for complaining. When the plaintiff finally sued under the Fair Housing Act the landlord’s defense was that it could not be held liable for discrimination by other tenants. More
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA - drive-by litigation, ADA - serial litigation, ADA Internet, ADA Internet Web, ADA Web Access, FHA, FHA Emotional Support Animals, FHA Reasonable Accommodation, Internet, Internet Accessibility, Reasonable accommodation, Rehabilitation Act Tags: ADA defense, ADA drive-by litigation, ADA Mootness, ADA website accessibility, FHA Defense, World Cup
Those of you who are not binge watching the World Cup matches will be interested in what has been going on in the world of disability rights during the last few weeks. Here is our roundup of recent ADA and FHA decisions, some of which are notable.
Indemnity and contribution for Fair Housing Act claims.
Shaw v. Cherokee Meadows, L.P. 2018 WL 2967708 (N.D.Okla. June 12, 2018) is another in a series of cases concerning indemnity for design/build defects under the FHA that gets it completely wrong and winds up with an absurd result. The decision has little in the way of discussion because it relies on the analysis from an earlier case, Equal Rights Center v. Niles Bolton Associates, 602 F.3d 597 (4th Cir. 2010). We’ve blogged on this issue before* but the arguments are worth repeating. Equal Rights Center based its analysis on earlier cases concerning race and similar kinds of intentional discrimination found that public policy precluded indemnity and contribution for FHA discrimination claims. In cases of intentional discrimination or respondeat superior it makes sense to forbid indemnity because you want to discourage bad intent and encourage proper supervision of employees. It doesn’t make any sense at all in design/build cases under Section 3104(f)(3)(C) because this is a “no fault” provision that can be violated without any intent to discriminate. Moreover, the owner of an apartment complex has no choice but to rely on 3rd party experts – architects and contractors – to properly design and build the apartments. When architects and contractors know that they are immune from liability for their failures they have no incentive to design and build according to FHA standards, and as a practical matter they are always immune because the first target in any lawsuit will be the owner. The Ninth Circuit has rejected Equal Rights Center for good reason, and if Shaw v. Cherokee Meadows is appealed the Tenth Circuit should reject it as well. More
By Richard Hunt in Accessibility Litigation Trends, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees, ADA Internet Web, ADA Mootness, FHA, First Fix Then Fight Tags: ADA defense, ADA drive-by litigation, ADA Mootness, ADA pleading, ADA serial litigation, FHA Defense
The last couple of weeks brought a variety of decisions, most falling in to one of the familiar patterns for ADA and FHA litigation, but one or two presenting novel defenses and interesting judicial reactions.
A very interesting question of standing.
Johnson v. Castro et al, 2:16-CV-00658-MCE-DB, 2018 WL 2329249, at *3 (E.D. Cal. May 23, 2018) makes a very interesting point about standing, one related to some of the standing questions raised by other recent cases dealing with the plaintiff’s ability to take advantage of the goods and services of a public accommodation.** In Johnson the plaintiff suffered from cerebral palsy and made various claims concerning entrances and access to the restrooms. In response to the plaintiff’s motion for summary judgment the defendants provided evidence that the restroom issues had been remediated and challenging the existence of a problem with the doors. They added that the plaintiff’s disability was so severe he could not eat or drink without assistance from the restaurant owner, who cut up his food and fed him at the table. The owners argued that the plaintiff was incapable of taking advantage of the restaurant without help they were not obligated to provide and therefore could not prove any accessibility had caused him harm. The Court found this at least raised an issue of fact:
“Consequently, Defendants raise a question of fact as to whether Plaintiff legitimately could have eaten at the Restaurant without assistance going well beyond any accessibility requirements mandated by either the ADA. . .”
Attorney General Sessions’ withdrawal of various ADA guidances is good news for business, but only in the mildest way. Yesterday we looked at the withdrawal of two old guidances regarding service animals. Both were slightly out of date and their withdrawal did not make any substantive change in the requirements for businesses. Today we look at withdrawn guidances concerning accessible facilities and reach the same conclusion. Tomorrow we’ll look at the last of the ADA materials withdrawn, a guidance from the closing days of the Obama administration whose withdrawal may indeed have real consequences for state and local government.
The withdrawn guidances that include accessible facilities are:
- Common ADA Problems at Newly Constructed Lodging Facilities (November 1999).
- Title III Highlights (last updated 2008).
- Common ADA Errors and Omissions in New Construction and Alterations (June 1997).
- Common Questions: Readily Achievable Barrier Removal and Design Details: Van Accessible Parking Spaces (August 1996).
- Americans with Disabilities Act Questions and Answers (May 2002).