Accessibility Defense, Helping Business Avoid and Defend ADA and FHA Lawsuits

ADA and FHA Defense

  • ADA and FHA Enforcement News

    Letting someone else do your work for you is a very efficient way to write a blog, but I won’t use any form of AI because it seems to be a lot more A than I. Instead this time I’m pointing you to the work of others, with a few conclusions of my own.

    Let’s start with an important issue for any business – insurance to cover litigation expenses. Dave Gibson at Accessibility.works has investigated insurance to cover accessibility claims and blogs about it at Will Insurance Cover Web Accessibility ADA Lawsuits. I can’t vouch for all of his conclusions, but he is absolutely correct when he points out that business owners should not assume their general liability policy covers accessibility claims for either physical access or web access.

    My friend and colleague Bill Goren has blogged about a recent federal district court decision in Minnesota finding that internet only businesses are covered by Title III of the ADA. Websites covered by Title III. It is an interesting case because this is the first court in the Eighth Circuit to rule directly on this issue. You can read Bill’s blog (and others) for the details, but the most important thing for businesses to remember is that federal district court opinions are not binding on any other court, or even on the same court in a later case.  The judge next door may disagree, something that has happened more than once in the Southern District of New York. Those of us with an professional interest find these cases fascinating¹, but until there is a circuit court decision there is little comfort to be taken in the opinion of a single district judge.

    Next I’d like to point to two posts from Seyfarth Shaw’s ADA Title III blog. In the first, they discuss a recent decision from New York showing one judge’s extreme skepticism about the entire ADA litigation industry. See, Judicial Rebuke. In the other they point out that after a low in 2023 the number of federal ADA website lawsuits went up in 2024, driven in significant part by filings from a single law firm. See, ADA Lawsuits Rebound. Taken together with Bill Goren’s blog above these reflect what has been a very consistent pattern in ADA Title III litigation. Some individual judges take steps to rein in industrial ADA Title III litigation while others, by expanding the scope of the ADA to include internet only businesses and similar rulings, encourage this kind of litigation. The net effect is that while the number of lawsuits fluctuates from year to year there is no real long term decrease despite the good news and no long term increase despite the bad news. Case filings are not driven not by increasing or decreasing website accessibility, but rather by the choices of individual law firms and their pet plaintiffs. In short, private ADA Title III website litigation is not about accessibility and never has been; it is a means for plaintiffs’ attorneys to exploit the cost of litigation in federal court to make money by offering settlements that are just a bit cheaper than any cost of defense that might succeed. With federal judges limited to deciding one case at a time no individual judge can really take action that would either promote real accessibility or discourage industrial litigation. Any meaningful improvement in website accessibility will come only when the present legislative and administrative scheme is completely re-worked. Any meaningful decrease in the exploitation of the ADA as a way for lawyers to make money without in fact promoting accessibility will require the same. Congress has proven incapable of any kind of ADA Title III reform no matter which party has a majority and which party is in the White House, so I expect that we’ll continue to see the same kinds of reports in ADA blogs into the indefinite future.

    On the Fair Housing front the Trump Administration’s announcement that it will cut funding for private groups that enforce fair housing laws is a good reason to reflect on just how fair housing enforcement works. We have five kinds of fair housing plaintiffs. DOJ is the big dog with the largest budget and the most power. There seems little doubt that DOJ will choose not to enforce fair housing or other civil rights laws during this administration. HUD itself handles housing discrimination complaints and will no doubt continue to do so, but it seems likely the word will eventually trickle down to the investigators that HUD is not going to seriously prosecute fair housing complaints. So much for government action. Private non-profits who receive federal grants are the third kind of plaintiff and the just announced cuts in grants is no doubt intended to cripple their ability to operate. It is not clear cutting grants will have the desired effect. While rules concerning Article III standing complicate the picture, litigation settlements are a source of funding for these organizations and with no federal money coming in they may step up their litigation activities to make up the difference. The fourth group is made up of professional private plaintiffs, that is, individuals not working for a non-profit who file many lawsuits as “testers.”  Their activities will not be reduced at all, and they are among the most active plaintiffs. The last group is individuals who file suit without first filing a HUD or other administrative complaint. They are not numerous and the HUD changes will not affect them. I think that in any ecosystem when one predator steps aside others will rush in to fill the open space. By cutting grants to non-profit housing organizations HUD may simply encourage more and larger private tester lawsuits.

    Does this mean internet businesses and housing providers should be discouraged? Not really. The best protection against litigation is doing the right thing; that is, making websites accessible and complying with the requirements of the FHA. This is not as easy as it sounds, but it is possible to reduce litigation risk with the right procedures in place. Look to right hand side of this page for a good place to start on those procedures.

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    ¹ One of the first rules in defending ADA Title III lawsuits is to know your judge because so much depends on the track record of the individual judge. Knowing what individual judges will do is part of the essential knowledge of lawyers who, like me, defend these cases.


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  • Shooting the messenger in FHA cases revisited.

    Some time ago I blogged on a case in which a lease broker was sued for conveying to a prospective tenant the owner’s discriminatory refusal to rent.¹ Today I’m taking another look at the shooting the messenger problem, this time with a difference; the messenger was an insurance broker. Thanks to Bill Goren for call Chhang v West Coast USA Properties LLC to my attention and providing the detailed background that you should read to fully understand the case.²

    The gist of the case is simple. A tenant requested the waiver of the landlord’s breed restrictions as an accommodation for her emotional support animal. The landlord, acting with appropriate caution, asked their insurance broker to confirm the breed restriction before telling the tenant it could not grant her request. The broker confirmed that under the terms of the insurance policy permitting a prohibited breed could void the policy. The landlord then turned down the request because allowing the animal would void its insurance policy. So far the landlord, at least, seems to have done nothing wrong. HUD agrees that an accommodation is unreasonable if it requires the landlord to lose their insurance.³

    The tenant sued the landlord and the insurance broker. The broker moved to dismiss under Rule 12(b), though it apparently did not directly address the FHA specific issues with the claims against it, instead arguing it simply had no common law duty to obtain insurance that would allow restricted breeds. The Court nonetheless carefully analyzed existing precedent about insurance companies violating the FHA and concluded that where the denial of insurance made an apartment “effectively unavailable” to the tenant that denial could be a violation of 42 USC §3604(f)(1), the FHA provision that generally prohibits disability discrimination.

    It is worth noting that during its discussion of the FHA precedents the Court never distinguishes between the role played by an insurance broker, who in theory does no more than find insurance, and the insurance company itself. Insurance companies decide what their policies do and do not allow. In theory a broker is just the bearer of bad tidings when it tells the landlord what the policy allows or does not allow.  So why did the Court deny the broker’s motion to dismiss? The reason was not related to whether the insurance policy itself was discriminatory, but rather to the broker’s alleged misrepresentation of the policy. The plaintiff alleged that when the broker told the landlord the policy could be cancelled this was not true.

    “Plaintiff alleges, however, that the Mercury policy contained no limitation on dog breeds that could be owned by tenants residing on the property. (SAC ¶ 26.) Nor did the policy contain any cancellation provision or other penalty if West Coast allowed a tenant to keep one of the listed dog breeds. (Id.)”

    The broker was not merely bearing bad tidings; rather, it was misrepresenting the terms of the policy. Thus it was the broker, not the insurance company, that made the apartment effectively unavailable. This is different that the “shoot the messenger” cases I blogged on earlier because in those cases the real estate broker gave truthful information about the owner’s discrimination. However, in those earlier cases the broker was not merely the bearer of bad tidings, it was also the person who carried out the landlord’s discriminatory demands.

    The takeaways for insurance companies, insurance brokers and real estate brokers are:

    • An insurance company that includes breed restrictions in its policies should explicitly provide that those breed restrictions do not apply to assistance animals the landlord is required to allow, whether they are emotional support animals, service animals, or other assistance animals. This should avoid a claim that it is the insurance company that has effectively denied coverage.
    • An insurance broker who is asked about breed restrictions should be careful in what it says.  It is very common for businesses to rely on their broker rather than their insurance company to tell them what their policy does or does not allow. The broker in this case got in trouble because they were (allegedly) wrong about the policy terms; a little more care might have spared everyone a lawsuit. (it is reasonable to ask whether the apartment owner could sue the broker for giving it bad information that lead to a lawsuit).
    • Finally, being the bearer of bad tidings probably does not violate the FHA because carrying the message does not effectively deny access to housing. But real estate brokers who act as leasing agents and therefore both bring the bad news and implement the discriminatory policy may violate the FHA even if they are just carrying out their client’s orders.

    And a final note for lawyers representing a client sued under the FHA. You cannot, as the broker’s lawyers seem to have done in this case, simply rely on common law or insurance law defenses. If the suit is brought under the FHA you must directly address how the FHA applies to the claims against your client; treating common law rights as duties as relevant to the discrimination claims, but not as dispositive of those claims.

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    ¹ See, Shoot the messenger! I revisited the issue a few years later in What’s bugging HUD

    ² See Bill’s blog at http://www.understandingtheada.com/blog/2025/02/17/insurance-policies-landlords-containing-breed-restrictions-esa-service-animals-violate-the-fair-housing-act.

    ³ HUD Memorandum June 12, 2006 to FHEO Regional Directors.


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  • ADA claims in NY State Courts – is there a winning strategy that makes sense?

    Federal district courts in New York do not agree on whether the ADA covers internet only businesses and, to a lesser degree, on the extent to which website tester plaintiffs have standing. In response professional plaintiffs and their lawyers have been, for several years, filing suit in New York’s state courts.¹  On its face this does not change the basic economics of website accessibility lawsuits. Usually the plaintiff will agree to settle for a price that is just a little less than the cost of any reasonable defense, including a successful Motion to Dismiss. The agreement will usually require remediation as well, but remediation is a good idea in any case and is required if you are sued in a jurisdiction that says the ADA applies to website only lawsuits.

    It is becoming clear, however, that in a few cases the procedure in New York state courts may allow a defendant to postpone taking any expensive legal action for months or longer. This is because case activity is plaintiff driven and with plaintiffs attorneys filing hundreds of lawsuits annually they cannot take the action required to move the cases forward. File an Answer and wait seems to work, at least as a means of delaying significant defense costs.

    More important, a recent New York decision in Rodriquez v. Bitchin’ Inc., Index No. 152619/2023 (May 3, 2024) points to the real possibility of an effective defense to the claims under New York law that support these New York state court filings. The plaintiff is a typical “tester” plaintiff who has filed dozens of lawsuits, sometimes filing several a day. The complaint was filed without prior notice, which is also typical of these cases. The plaintiff’s lawyer will prefer a surprise lawsuit so the defendant does not have an opportunity to remediate and perhaps moot the substantive claims.²

    There were three substantive claims. The first were under NYSHRL Executive Law § 296 (2) (c) and NYCHRL § 8-107 (15). The first of these exactly parallels the ADA provisions in 42 U.S.C. §12182(b)(2) requiring that public accommodations make reasonable modifications to their policies, practices and procedures when necessary for a person with a disability to have equal access. The second New York City law has a similar requirement although it is differently worded. The plaintiff himself gave up this claim because having filed suit without notice he could scarcely claim he requested and was refused an accommodation.

    Instead of a modification or accommodation claim the plaintiff relied on disparate treatment and disparate impact claims. These are what you might call the classic kinds of discrimination. A disparate treatment claim says that the defendant treats disabled people differently that non-disabled people. A disparate impact claim says the defendant has some policy or way of doing business that doesn’t seem to single out those with disabilities but in fact has a much greater impact on them.

    The relevant provisions of New York State and New York City laws forbidding disparate treatment deserve to be quoted because the exact language was important to the court. The state law makes it unlawful for a public accommodation:

    because of the … disability … of any person, directly or indirectly, to refuse, withhold from or deny to [a disabled] person any of the accommodations, advantages, facilities or privileges.

    The city law has very similar language, making it unlawful for a public accommodation:

    because of any person’s actual or perceived.. .disability… (a) to refuse, withhold from or deny such person the full and the equal enjoyment, on equal terms and conditions, of any of the advantages, services, facilities, or privileges of its place of public accommodation.

    The court italicized “because of” because that language justified its holding that the plaintiff did not have a claim. Citing earlier precedent, the court found that the “because of” language meant the plaintiff had to prove the public accommodation had a “discriminatory motive.” In other words, accidental discrimination isn’t enough. Like most testers, the plaintiff never contacted the defendant so there was no way for the defendant to even know the plaintiff was disabled. You can’t intend to discriminate because of a disability if you don’t know the plaintiff is disabled, so it was impossible for the plaintiff to show a discriminatory motive.

    The theory of disparate impact was developed long before the ADA was passed to address discrimination that was disguised by apparently neutral rules. There is not a separate “disparate impact” provision in these laws; instead courts say that a neutral looking policy that has a disparate impact discriminates “because of” the plaintiff’s disability. This requires proof that some “facially neutral policy or practice” of the Defendant falls more harshly on blind people than others.

    The problem for the plaintiff was that he could not find a “policy or practice” that had the effect of discriminating. He had no evidence that the defendant had a policy or practice of keeping the website inaccessible and of course no business is likely to have such a policy. The plaintiff tried to get around this by claiming the website itself was a policy or practice that had a disparate impact on the blind because it was not accessible to the blind. Here he ran into a catch 22. For the website to be covered by the state and city laws it had to be a kind of place; that is, a “public accommodation.”³ The Court rejected this idea, holding that a place is not a policy and a policy is not a place.

    There are a few noteworthy points about this decision. First, some federal courts hold that a plaintiff is not required to prove intentional discrimination in order to prove a violation of the federal ADA prohibition on discrimination in 42 U.S.C. 12182(a). See, Erasmus v. Chien, 650 F. Supp. 3d 1050, 1057 (E.D. Cal. 2023). This and other cases from California rely on a 9th Circuit case whose holding was limited to claims under California state law, so its authority is shaky. A better view taken by federal courts is similar to New York state law. To prove intentional discrimination the plaintiff must “present evidence that animus against the protected group was a significant factor in the position taken’ by Defendant.”  Davis v. Wild Friends Foods, Inc., No. 22-CV-04244 (LJL), 2023 WL 4364465, at *8 (S.D.N.Y. July 5, 2023). Whether New York law is satisfied by the “significant factor” standard is for another blog. Even if “significant factor” meets the requirements of the New York statutes, plausibly pleading an intent to discriminate against those with disabilities will be difficult most cases. 

    In theory this plaintiff’s problem – no claim of a discriminatory policy – could easily be solved. Just claim there is such a policy and try to settle the lawsuit before the defendant proves it isn’t true. Even the most aggressive ADA serial filers are usually not willing to make this kind of claim because pleading something without a good reason to do so can get the plaintiff and their lawyer in trouble.

    What plaintiffs do instead is allege the defendant has a policy of not maintaining an accessible website because it either does not have a policy at all or has the wrong kind of policy. This kind of  policy or practice claims appears in almost all pleadings by serial plaintiffs that I have seen, including those filing in New York state courts. It seems unlikely the judge who decided Rodriquez v Bitchin’ Inc. would agree that no policy concerning website accessibility is the same thing as a policy that had a discriminatory effect or that a policy about website accessibility could be discriminatory just because it didn’t always work.

    As an interesting post-script, the Supreme Court decision in Rodriquez v Bitchin’ Inc. was appealed, but the appeal was dropped before the appellate court made any decision. I suspect the plaintiff decided they were better off with a bad decision (for the plaintiff) by one lower court judge than a bad decision from the appellate court. At the lowest court level every judge can make up their own mind and ignore what the judge down the hall thinks. When the appellate court speaks, every lower judge has to fall in line.

    Rodriquez v. Bitchin’ Inc. may be a one off decision that no other judge follows, but it does provide defendants and their lawyers with an argument that has worked and might work with other judges. At the very least it improves the bargaining position of all defendants because it increases the risk to a plaintiff that their state court lawsuit might be lost because the law just doesn’t apply.

     

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    ¹ See the Court’s discussion in Mejia v. High Brew Coffee, Inc., Case No. 1:22-CV-03667-LTS (SDNY Sept. 30, 2024).

    ² A claim is “moot” when there is nothing useful for the Court to do. In a lawsuit demanding that a website be made accessible making it accessible moots the case and, in federal cases under the ADA, requires that it be dismissed. Mooting a case is harder than it might appear, but no plaintiff wants to invest in a lawsuit that disappears before it gets going. See, Mootness is the Kraken of ADA Defenses

    ³ The same is true under the federal ADA. Whether a website is a “public accommodation” is a hot topic on which the federal courts do not agree.

     

     


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  • Supplemental jurisdiction of Unruh Act claims in California – what will 2025 bring?

    In 2022 the 9th Circuit made it clear that a federal district court could decline to exercise supplemental jurisdiction over an Unruh Act claim . Vo v. Choi, 49 F.4th 1167 (9th Cir. 2022). Vo v Choi has been cited 642 times, almost always in the context of a serial filer who has included an Unruh Act claim along with a federal ADA claim. The most recent reference was just last week in Cuevas v Martinez, 2025 WL 97684, at *1 (E.D. Cal. Jan. 15, 2025). Following Vo v Choi and the hundreds of other decisions that cite it the magistrate judge recommended that the district court refuse to exercise supplemental jurisdiction over the plaintiff’s Unruh Act claims.

    You might imagine that by this time plaintiffs who wanted to recover the $4,000 bonus provided in the Unruh Act would simply file in California state courts. They would face the enhanced filing fees and pleading requirements that apply to serial filers in Unruh Act lawsuits but would have a better bargaining position due to the penalty. State court lawsuits are being filed, but it is easy to understand why the $4,000 damages available under the Unruh Act is not keeping serial filers out of federal cout.

    First, of course, adding an Unruh Act claim to a federal court lawsuit costs nothing. If the district court declines to exercise supplemental jurisdiction the plaintiff can simply go forward with the ADA claim. It is true the plaintiff and their lawyers will lose the benefit of the $4,000 bonus, but the business model for serial filers is based on volume and a quick settlement that still yields a handsome profit on an hourly billing basis. Missing out on the extra money isn’t a tragedy and for many plaintiffs’ attorneys saving the additional filing fees for a state court action and avoiding pleading requirements that are hard to meet in cookie cutter lawsuits makes this loss worthwhile.

    In addition, with nothing to lose, plaintiffs and their lawyers can always hope for a different result. After all, “Because Plaintiff’s Unruh Act claim is closely related to his ADA claim, the Court has authority to exercise supplemental jurisdiction over the Unruh Act claim under 28 U.S.C. § 1367(a).” Villalobos v. W. Edge, Inc., 2025 WL 104096, at *1 (C.D. Cal. Jan. 14, 2025). Hope springs eternal, and somewhere out there there may be a district court judge who will exercise supplemental jurisdiction, or a case that for procedural reasons requires that the district court exercise supplemental jurisdiction. See,  Arroyo v. Rosas, 19 F.4th 1202 (9th Cir. 2021).

    The procedural status that requires that the District Court exercise supplemental jurisdiction is simply that there was already a ruling in the plaintiff’s favor on their ADA claim. Id. Typically, a default judgment on the ADA claim is not enough. See, Block v. Arsh & Jot LLC, 2024 WL 5195915, at *1 (E.D. Cal. Dec. 23, 2024). Under these circumstances allowing a default judgment may be the best defense. The defendant will only be ordered to fix things that had to be fixed anyway, the plaintiff’s attorneys’ fees will be limited because little or no work was done, and there will be no award of Unruh Act damages.

    Going into 2025 it appears that only rarely if at all will a district court exercise supplemental jurisdiction over Unruh Act claims. While a motion for default judgment will trigger consideration of supplemental jurisdiction, district courts are also showing a disinclination to exercise supplemental jurisdiction even before a default judgment has been sought. See, Ho v. RD Center, LLC, 2025 WL 242198, at *1 (C.D. Cal. Jan. 17, 2025). This has not, however, deterred the serial filers from seeking relief in federal court. There have been 33 decisions on supplemental jurisdiction since January 1, 2025. Since these decisions are made in almost every ADA/Unruh Act claim filed it appears that serial plaintiffs are still filing as many as 60 new lawsuits a month in federal court. Whether this is doing any good at all for those with disabilities is an open question for I could find no statistics on the rate at which businesses sued under the ADA actually engage in remediation efforts. The good news for defendants facing a Title III ADA lawsuit is that the cost of settlement or default is likely to be less than it was in years past. The bad news is that these lawsuits are not going away. And the final message is simply that making your business accessible by complying with the 2010 ADA Standards for Accessible design is the best way to avoid litigation related expenses in any amount as well as better serving your customers.

     


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  • Everything you need to know about ADA Title III litigation

    On Friday, January 17, 2025 William Goren and I will present a two hour CLE webinar, “Access Denied: Avoiding & Defending the Expanding Field of ADA Claims (2025 Edition).” Here’s the advertisement with a free access pass code that you can use to attend the webinar.

    banner with free access code "TheADACLE"

    This is kicking off a full year of webinars and seminars on the ADA and FHA, so look for more announcements in the near future.


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