I’m not Maimonides, but I do think we need a Guide for the Perplexed concerning ADA website litigation because it seems that in many cases both courts and litigants have mistakenly treated websites as if they were buildings. Websites are not buildings, and recognition of that fact would do a great deal to eliminate or slow down abusive website lawsuits. If you are a defendant in such a suit or think you might be, this blog is for you and your lawyers. There is no silver bullet, but there are approaches to defense with real promise. More
website accessibility
Browsewrap could tame the ADA website litigation monster.
In the last two years the federal courts have had a number of opportunities to find that Title III claims under the ADA are not arbitrable and have declined the invitation. That doesn’t mean these cases are in fact going to arbitration. In every case I found the arbitration agreement was found to be unenforceable on state law grounds, leaving open the possibility of a public policy argument. Nonetheless, I think that a properly written and implemented arbitration clause can force a Title III case into arbitration and give defendants a chance to avoid much of the unnecessary cost of litigation. Here’s why.
The starting point in a discussion of arbitration for civil rights statutes has to be Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647 (1991). In Gilmer the Supreme Court found that claims under the Age Discrimination in Employment Act could be made subject to a valid arbitration agreement, rejecting claims that it was somehow inconsistent with public policy. A few months later Congress passed the Civil Rights Act of 1991, in which, among other things, it affirmed that More
Quick Hits – Dog Days of Summer Edition
The official worst heat-wave ever is now over in both the U.S. and France, but Sirius is still rising just before dawn and nothing has cooled off in the courts. Here are the latest cases on ADA and FHA issues.
HOAs and the FHA
Lau et al v. Honolulu Park Place, AOAO, 2019 WL 3208644 (D. Haw. July 16, 2019) is a kind of short treatise on how the FHA applies to accommodation claims made by parents or others associated with a disabled person. What is surprising is the degree of ignorance or obtuseness shown by the HOA’s counsel in defending the case. Here’s what the Court says:
“Defendants appear to misunderstand the FHA as well as the injury-in-fact requirements of Article III. . . . Only the most obtuse reading of the Complaint could fail to construe the allegations as an injury to the person. . . . But Defendants’ conclusion is only possible when accepting their misrepresented version of what Plaintiffs seek. In other words, it is a straw man of their own creation.
HOAs should remember that the firm handling their assessment collections or dealing with personal injury suits may not have the specialized knowledge necessary for FHA defense. More
Websites and Coke Machines – Texas Judge says neither is covered by the ADA
Like Coke machines, websites are not places of public accommodation subject to the ADA according to Judge Sim Lake’s January 24, 2019 decision in Zaid v. Smart Fin. Credit Union, 2019 WL 314732 (S.D. Tex. Jan. 24, 2019). It is a holding of first impression in the Fifth Circuit and it can be hoped it will influence the flood of cases sure to follow.* The Court’s reasoning was straightforward: The list of public accommodations in the ADA itself refers exclusively to physical places and the Fifth Circuit’s holding in Magee v. Coca-Cola Refreshments USA, Incorporated, 833 F.3d 530 (5th Cir. 2016) confirms that only physical places can be places of public accommodation.** More
Rethinking ADA standing – web access cases are pointing the way.
The Supreme Court has said that before a plaintiff can file suit in federal court he or she must have suffered a “concrete and particularized” injury. The requirement is constitutional and comes from the case and controversy clause in Article III. For statutory claims like those under the ADA this means an injury of the kind the statute was intended to prevent. The rise of ADA website lawsuits has caused some courts to take a look at just what injury the ADA was intended to prevent. Was the ADA intended to prevent those with disabilities from suffering some dignitary harm based on the mere knowledge that discriminatory conditions exist, or does it require real discrimination in access to goods and services? More