thursday, october 24, 2019 11:00 am - 12:15 pm seminar 12 ada …11.00-12.15pm… · district...

Thursday, October 24, 201911:00 AM - 12:15 PM

Seminar 12

ADA Title III Strategies and Updates all Landlords and Tenants Need to Know

Alisa N. CarrLeech TishmanPittsburgh, PA

Minh N. VuSeyfarth Shaw, LLPWashington, D.C.

Title III of the ADA

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• The ADA requires all public accommodations to maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by individuals with disabilities. 42 U.S.C. § 12182(b)(2)(A)(iv)

• A public accommodation is required to reasonably modify its policies, practices or procedures, if necessary, to avoid discrimination

• Discrimination under the ADA includes the failure to remove physical “architectural barriers” in existing facilities where such removal is “readily achievable”. 42 U.S.C. § 12182(b)(2)(A)(iv).

Readily Achievable - Defined

• The ADA defines “readily achievable” as “easily accomplishable and able to be carried out without much difficulty or expense.” 42 U.S.C. § 12181(9).

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Readily Achievable – Factors to Consider(1) nature and cost of the action; (2) overall financial resources of the facility or facilities involved; (3) number of persons employed at such facility; (4) effect on expenses and resources; (5) impact of such action upon the operation of the facility; (6) overall financial resources of the covered entity; (7) overall size of the business of a covered entity with respect to the number of its employees; (8) the number, type, and location of its facilities;(9) type of operation - composition, structure, and functions of the workforce of such entity; (10) geographic separateness, administrative/fiscal relationship of the facility to the covered

entity.

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Recent Caselaw - Not Readily Achievable• Wright v. RL Liquor, 887 F.3d 361 (8th Cir. 2018) – plaintiff failed to offer a plausible proposal

for barrier removal. The district court concluded that Wright did not present evidence for “a reasoned evaluation of the factors relevant to the ‘readily achievable’ determination,” or satisfy even a “light burden” of production.

• Disability Support All. v. Heartwood Enterprises, LLC, 885 F.3d 543 (8th Cir. 2018) – cost of remediation rendered work not readily achievable substantial, unrefuted evidence that removal of the barriers in question would not be “easily accomplishable and able to be carried out without much difficulty or expense.” 42 U.S.C. § 12181(9).

• Ford v. H Unit Five, Inc., No. 2:16-CV-780-TC, 2017 WL 4271433, at *7 (D. Utah Sept. 25, 2017) – plaintiff failed to offer sufficient evidence that removal of barriers she encountered on Good Earth's premises is readily achievable; summary judgment granted.

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Recent Caselaw - Not Readily Achievable • Kennedy v. Omegagas & Oil LLC, No. 9:17-CV-80103, 2018 WL 310051, at *8 (S.D. Fla.

Jan. 3, 2018). Ms. Kennedy failed to meet her burden of production with respect to whether remedying the limited maneuvering space in the bathroom was readily achievable.

• Disability Support Alliance v. Heartwood Enterprises, LLC, 885 F.3d 543 (8th Cir. 2018) -removal of allegedly discriminatory architectural barriers at small office building would not be readily achievable, where installation of wheelchair accessible ramp would cost between $11,987 and $22,621, estimated cost to provide exterior accessible route to main entrance ramp was $35,000 from back of building and over $100,000 from front sidewalk, entry space was too small for wheelchair access, there was no elevator to restroom on second floor, and it would cost more than $300,000 to make entire building accessible.

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Recent Caselaw - Intent to Return• Hurley v. Tozzer, Ltd., No. 15CIV2785GBDHBP, 2018 WL 1872194, at *6 (S.D.N.Y. Feb. 2,

2018), report and recommendation adopted, No. 15CIV2785GBDHBP, 2018 WL 1087946 (S.D.N.Y. Feb. 26, 2018) –

Plaintiff failed to produce sufficient evidence of intent to return. “Even drawing all factual inferences in favor of plaintiff, plaintiff's answer that “maybe” he'll visit Niagara again at some unspecified time in the future could not reasonably be found to establish an intent to return.”

• Smith v. East West Enterprises, LLC et al. Case No. 3:17-cv-00736 (M.D. TN; August 17, 2017) - Motion to Dismiss with prejudice granted for failure to plead sufficient facts in support of intent to return.

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Recent Caselaw - Class Actions• Mielo v. Steak ‘N Shake Operations, Inc., 2019 WL 1330836

28 C.F.R. § 36.211 does not contain a requirement that a covered entity adopt a policy of identifying potential ADA violations such as the slope of the access aisles in its parking lots. (March 25, 2018, Civil Action No. 15-cv-180 W.D. Pa.)

• Mielo v. Steak ‘N Shake Operations, Inc., 897 3d Cir. 467 (2018)

District Court’s class certification vacated – class certification requires a rigorous analysis in which determinations must be made by a preponderance of the evidence. Court cannot err in favor of allowing the case to proceed as a class. Commonality requirement not met.

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Recent Caselaw - Class Actions• Hernandez v. AutoZone, Inc., 323 F.R.D. 496 (E.D.N.Y. 2018).

Class certified under Rule 23(b)(2) of “all persons with qualified mobilitydisabilities, who have visited or will visit any AutoZone store where DefendantAutoZone, Inc. owns, controls and/or operates the parking facility.”

• Westchester Independent Living Center, Inc. v. SUNY, Purchase College, 331F.R.D. 279 (S.D. N.Y. June 12, 2019).

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J.D. by Doherty v. Colonial Williamsburg Foundation• Plaintiff is a child with celiac disease who maintains a strict gluten free diet. He attempted to bring a

homemade, gluten-free meal into a restaurant while on a school field trip to Colonial Williamsburg – the restaurant refused to let him and offered instead to prepare a gluten-free meal. The plaintiff declined and chose to eat his homemade meal outside the restaurant apart from the rest of his classmates.

• Plaintiff filed suit asserting claims that included Title III of the ADA, the District Court granted defendant’s Motion for Summary Judgment. The Circuit Court vacated the order for summary judgment and remanded.

• The Court held that “[w]e must “permit those who are disabled because of severe dietary restrictions to enjoy the protections of the ADA.” Fraser v. Goodale, 342 F.3d 1032, 1041 (9th Cir. 2003).” Plaintiff has raised a genuine dispute of material fact as to whether he is disabled within the meaning of the ADA and whether the requested modifications were reasonable or would fundamentally alter the nature of the goods and services. Doherty, 925 F.3d 663 (4th Cir. 2019)

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J.D. by Doherty v. Colonial Williamsburg Foundation

• Genuine issue of material fact existed whether:

• student's gluten sensitivity was a disability;

• eating out was beyond capacity of student with gluten sensitivity;

• permitting student eating homemade gluten-free meal in restaurant was necessary to have experience equal to that of his classmates;

• student eating homemade gluten-free meal in restaurant was reasonable; and

• request by student to eat his own homemade gluten-free meal in restaurant while on field trip fundamentally altered nature of restaurant's service.

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Service Animals

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• Service animals are defined as dogs that are individually trained to do work or perform tasks for people with disabilities.

• Trained dogs of any breed or size.

• A service animal must be harnessed, leashed or tethered and under the control of the customer. 42 U.S.C. § 12182

Service Animals - Miniature Horses

• The regulations set out four assessment factors to assist covered entities in determining whether miniature horses can be accommodated in their facility. The assessment factors are:

(1) whether the miniature horse is housebroken; (2) whether the miniature horse is under the owner’s control; (3) whether the facility can accommodate the miniature horse’s type, size, and

weight; and (4) whether the miniature horse’s presence will not compromise legitimate safety

requirements necessary for safe operation of the facility.

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Service Animals - Verification

• In situations where it is not obvious that the dog is a service animal, a covered entity may ask only two specific questions:

(1) is the dog a service animal required because of a disability?

(2) what work or task has the dog been trained to perform?

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Service Animals

• A covered entity is not allowed to request any documentation.

• A covered entity cannot require that the dog demonstrate its task.

• A covered entity cannot inquire about the nature of the person's disability.

• Professional training is not required.

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Recent Caselaw - Service Animals

• Benjamin Thomas v. University of South Florida, 2019 WL 2452825, at *3–4 (M.D. Fla., June 12, 2019). Motion to Dismiss granted when plaintiff failed to allege that his service animal was under his control in the covered entity.

Regulations related to service animals require such animals to be under a handler’s control. In the absence of the service animal being under the handler’s control, a “public entity may ask an individual with a disability to remove a service animal from the premises.” Id. § 35.136(b).

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Comfort Animals

• Unlike the ADA’s definition of service animal, the Fair Housing Act employs the broader term “assistance animal” which includes not only service animals but emotional support or comfort animals.

• The FHA does not regulate public accommodations such as restaurants and retail stores. If your business is a public accommodation; but is not covered by the FHA –absent a local or state law, you are not legally obligated to admit emotional support or comfort animals that accompany customers; only service animals.

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Direct Threat• The ADA does not require a covered entity to extend its public accommodations to

a disabled individual if doing so would pose a direct threat or significant risk of substantial harm to the health or safety of others. 42 U.S.C.A. § 12182(a); 29 C.F.R. § 36.208; 29 C.F.R. § 1630.2(r).

• A “direct threat” is defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures or by the provision of auxiliary aids or services”. 42 U.S.C. §12182(b)(3); 28 C.F.R. §36.208(b).

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Direct Threat

The individual assessment must be based on reasonable judgment that relies on current medical evidence, or on the best available objective evidence, to determine:

(1) The nature, duration, and severity of the risk;

(2) The probability that the potential injury will actually occur; and

(3) Whether reasonable modifications of policies, practices, or procedures will mitigate or eliminate the risk.

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Federal Website Accessibility Lawsuit Data

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Federal Website Accessibility Lawsuit Data

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ADA Title III Website Litigation Overview 2018-2019

• Over 50 decisions in website accessibility lawsuits in 2018• Some defendants are getting cases dismissed early primarily in

cases based on a lack of federal jurisdiction, personal jurisdiction, or poorly drafted complaints

• Substantive arguments (e.g. ADA does not cover websites) usually unsuccessful

• Due process and primary jurisdiction defenses rejected by all courts

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• 9th and 11th Cir. Court of Appeals have decided substantive issues in website accessibility lawsuits

• Fourth and Seventh Circuits have considered standing issues in website accessibility lawsuits

• Plaintiffs have won 2 of 2 federal judgments on the merits (Winn Dixie, GNC)

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• Plaintiffs won 2 of 4 CA judgments on the merits (BMI/BMD Travelware and Midvale Corporation)

• California Court of Appeals upholds pro-plaintiff judgment in Midvale Corporation

• Courts to address issue say telephonic access may be an appropriate alternative to an accessible website, but issue cannot be decided on motion to dismiss

• Dominos’ asking Supreme Court to review pro-plaintiff 9th

Circuit decision 24

Website Accessibility Lawsuit Case Highlights

• Zaid v. Smart Financial (SDTX 2018) - “a website is not a place of public accommodation,” citing 5th Cir. decision in McGee v. Coca Cola where a vending machine was held not to be a place of public accommodation.

• Carroll v. Northwest Federal Credit Union (EDVA 2018) – Website is not a public accommodation, citing to Fourth Circuit decision in Noah v. AOL Time Warner (chat rooms and other online services are not a place of public accommodation under Title II of the Civil Rights Act which has the same definition of “place of public accommodation” as the ADA)

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• Diaz v. Kroger, (SDNY 2019) – Lawsuit about inaccessible website is moot based on declaration submitted by defendant stating that all barriers raised in complaint have been fixed

• NAD v. Harvard U. (D. Mass. 2019) – Harvard not responsible for accessibility of content posted by third parties on its website (video captioning case).

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• Robles v. Domino’s (9th Cir. 2019): – ADA covers website and mobile apps that have nexus to physical

place– Rejects due process/primary jurisdiction arguments– Telephone service as an alternative could not be decided on motion

to dismiss.– Petition for cert filed with US Supreme Court

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• Haynes v. Hooters (11th Cir. 2018)– Case dismissed by district court based on prior settlement with

another plaintiff; reversed by 11th Circuit;– Hooters was only in process of making website accessible so case was

not moot;– Relief asked for by Plaintiff not covered by agreement, including

request for order directing hooters to “continually update and maintain” website in accessible manner;

– P was not a party to prior agreement and could not enforce it.28


• Haynes v. Dunkin Donuts (11th Cir. 2018)– Reverses district court dismissal of case;– Plaintiff sufficiently alleged that the barriers on the website

prevented him from accessing the services available in a physical store.

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• Carello v. Aurora Policemen Credit Union (7th Cir. 2019)– Plaintiff lacks standing to sue about credit union website because by

law, credit union cannot accept him as a member.– Inability to get information about services he can never obtain is not

an injury in fact for standing purposes.

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• Griffin v. Dept. of Labor Credit Union (Fourth Cir. 2018)– Plaintiff lacks standing to sue about credit union website because by

law, credit union cannot accept him as a member.– “[I]nability to obtain information is sufficiently concrete to constitute

injury in fact only when the information has some relevance to the litigant.” The fact that the plaintiff could never be a member of the credit union made the information on the website not relevant to him.

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• Gil v. Winn Dixie (SDFL 2017) (appeal pending)– Bench trial verdict for plaintiff– 3-year Injunction issued requiring:– Accessible website by 12/1/17(WCAG 2.0 AA)– Annual training for employees on website accessibility– Require third party content to be accessible– Adopt web accessibility policy by 12/1/17– Fees/costs totaling $105,271 awarded to plaintiff

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• Gomez v. GNC (SDFL 2018)– Summary judgment granted for plaintiff on merits after expert

reports submitted– Court finds inaccessible website violates ADA– No injunction issued as parties agree to stay case pending appeal in

Winn Dixie

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• Davis v. BMI/BND Travelware (CA State court 2016)– Summary judgment against retailer granted– Inaccessible website discriminates against blind customer under Unruh Act

• Thurston v. Midvale Corp d/b/a Whisper Lounge (CA State court 2018) (affirmed on appeal)– Summary judgment against restaurant granted– Inaccessible website discriminates against blind customer under Unruh Act– Court orders restaurant to make website comply with the Web Content

Accessibility Guidelines (WCAG) Level 2.0 AA– Restaurant to pay $4,000 statutory damages

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• Martinez v. San Diego County Credit Union (CA State court 2018) (on appeal)– Website accessibility case filed under the Unruh Act under which

plaintiffs can either show violation by establishing (1) ADA violation or (intentional discrimination

– On even of trial, court dismisses case because credit union’s website is not covered by the ADA even though the defendant has a physical place of business where customers go .

– Court also held that having an inaccessible website is not intentional discrimination under the Unruh Act. 35

Mobile App Accessibility Lawsuits & Demand Letters

• Mobile” is a generic term for a broad range of wireless devices and applications that are easy to carry and use in a wide variety of settings (E.g., Phones, tablets, “wearables,” other mobile devices)

• Built-In Screen Reader in Mobile Devices• “App-Only” Demand Letters• Per App Exposure• Lawsuits

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Kiosk Accessibility Lawsuits & Demand Letters

• Lawsuits filed virtually every year alleging self-service kiosks prevent visually-impaired individuals from independently using them

• Accessibility issues kiosks may pose:– Blind/Vision-Related Disabilities: Touch screens with no audio interface system or

tactile keyboard– Hearing Disabilities: Videos with no captions– Physical accessibility requirements (i.e., clear space, reach range)

• No Title III specific regulations addressing kiosks• Look to ATM regulations • Airline kiosks governed by Air Carrier Access Act; Section 508 identifies kiosks as

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thursday, october 24, 2019 11:00 am - 12:15 pm seminar 12 ada …11.00-12.15pm… · district...

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