Before proceeding with the blog entry of the day, I want to say that my thoughts and prayers go out to everyone in Houston, Texas. I actually lived in Houston, Texas for a year and ½. It is just awful what is going on there and everyone there is in my thoughts.

The blog entry of the week is an update on two prior blog entries: King v. Marion Circuit Court, which is discussed here; and Karczewski v. DCH Mission Valley LLC, which is discussed here. As usual, the blog entry is divided into categories and they are: King v. Marion Circuit Court: Tennessee v. Lane does not mean what you think; King takeaways; Karczewski update; and thoughts on Karczewski rehearing petition. Of course, the reader is free to focus on any or all of the categories.

I

King v. Marion Circuit Court (Tennessee v. Lane May Not Mean What You Think It Does)

On August 18, 2017, the Seventh Circuit decided King v. Marion Circuit Court. The Seventh Circuit’s reasoning bears reviewing:

  1. While it is true that Lane held that the ADA forcibly waived sovereign immunity in cases implicating the fundamental right of access to the courts, that is not what is involved here. King did not make a showing that limits on the subsidy of court annexed mediation services denied him or anyone else access to judicial services.
  2. The Constitution does not guarantee a freestanding fundamental right of access to the courts. Accordingly, no constitutional problem exists with filing fees or requiring litigants to pay for their own lawyers in civil cases even though those expenses may make litigation impractical if not impossible for some people.
  3. Lane used the phrase fundamental right of access to the courts to denote a cluster of constitutional rights that are valid grounds on which Congress might forcefully abrogate States sovereign immunity. All of those rights affect the adjudicatory process itself. That is, they safeguard the people’s ability to get into court and receive a judicial decision. A limited subsidy, where the plan pays for a mediator but not an interpreter, does not affect any of the rights delineated in Lane.
  4. The rule requiring mediation preceding judicial resolution of all domestic relation cases only applies to child related litigation following a divorce and not to all domestic relation cases. Further, even if the case met the criteria for mandatory mediation, local rules required mediation only when the parties cannot show good cause to come directly to court. Neither of these situations is a general condition precedent to litigation.
  5. Critically, King admitted that the Circuit Court offered to adjudicate his claims and to provide a qualified sign language interpreter at no cost to him. Accordingly, the Circuit Court’s invitation to litigate instead of going through the mediation process afforded King full access to the courts as litigation is the gold standard of due process.
  6. King did not contend that the Circuit Court used its power to order mediation as part of a scheme to bar persons with disability from obtaining legal redress.
  7. King also did not allege that the courts routinely demand mediation as a prerequisite to adjudication knowing that a party’s disabilities will block mediation and block litigation too.
  8. King is free to pursue any claims under Indiana law. Since I am not licensed in Indiana, I can’t say what laws that might be. I can say that it is conceivable such laws exist, as Georgia, for example, has a law on point at O.C.G.A. §30-4-2(a).

II

King takeaways:

  1. I have been informed that the ACLU has gotten involved and that it is likely they will request a rehearing en banc before the Seventh Circuit and/or subsequently appeal it to the Supreme Court.
  2. Before this case, I assumed that the access to the courts for persons with disabilities was a wide-ranging right of access. This case says that may not be the situation.
  3. The critical piece to this case is that the court offered to modify its policies and procedures by allowing for litigation even without mediation occurring first so that it could accommodate the plaintiff with a qualified sign language interpreter. Without that piece, this decision could be very different. Such an approach worked here, but it would seem to be certainly cheaper to provide an interpreter at a mediation rather than insist on litigation.
  4. The case opens up a fertile ground for litigation for those representing court systems to argue over whether a particular reasonable accommodation request involves the safeguarding of a person with a disability’s right to get into court and receive a judicial decision.

III

Karczewski Update

On July 24, 2017, attorneys for DCH Mission Valley LLC filed a request for a panel rehearing and petition for an en banc rehearing,  and the highlights are below:

  1. The panel decision concluded that a fundamental alteration does not exist. However, that decision should only be made with analysis of the facts, which has not occurred yet.
  2. Vehicle hand controls are almost always individually prescribed because every disability is different. No one brand of vehicle hand controls is usable by every person requiring hand controls. That is, there is no universal vehicle hand control. Instead, there are many types and designs, and in most cases, they are individually prescribed to meet the personal needs of the consumer. Accordingly, it is certainly possible that a vehicle hand control is a personal device. Further, since portable hand controls come in various styles and are marketed directly to consumers, and motorists with disabilities can purchase them for purposes of travel or for switching between multiple vehicles, these facts fall under the panel’s definition of independently useful object a person possesses for a general purpose, i.e. a personal device a title III entity does not have to provide.
  3. The question of whether hand controls usable on any vehicle and whether they are personalized to the individual’s disability as opposed to universally usable, are extremely factual issues requiring further development. Accordingly, a categorical statement that vehicle hand controls are not personal devices is premature at the pleading stage and highly prejudicial on remand because it removes an affirmative defense from consideration.
  4. Plaintiff never raised the policy and practices section of the ADA on appeal as a basis for finding that he had a viable claim. In fact, the issue was not even briefed by the parties. The only discussion of the issue is a side note in an amicus brief filed by the Department of Justice. Accordingly, a rehearing with briefing need to occur for full development of the issue.
  5. The panel without authority located the vehicle hand control regulation in the policy and practices section rather than in the section of the regulations it currently appears in. Such an approach, violates a well-established principle that where an agency’s interpretation of a statute fails, a court is not supposed to supply a rationale to uphold it.
  6. The panel placing the provision in the policy or practice section cannot be reconciled with existing agency regulation that talks about policies, practices or procedures. That regulation, 28 C.F.R. §36.302, contains examples of policies or practices illustrating what such policies and practices might be. Those policies and practices are clearly a distinct animal from architectural barrier claims as they involve such matters as rules and operating policies concerning the way of doing things.
  7. The DOJ when interpreting its own regulation in an appendix says that the personal device exclusionary rule applies across all sections of the ADA. Accordingly, policies and procedures involve rules and operational policies and need not be modified to require the provision of personal devices or services.
  8. Vehicle hand controls were properly rejected by the panel as a form of architectural barrier removal despite where it is located within the regulations.

II

Thoughts on Karczewski Rehearing Petition

  1. For the most part, the petition for rehearing draws upon the opinion that neither concurred nor dissented from the panel decision.
  2. I do think that excellent points are made with respect to the panel’s conclusory statement that a fundamental alteration was not present. Fundamental alteration is inherently an intensely factual call.
  3. As mentioned in my main blog entry, I didn’t entirely follow how product accessibility became a policy and practice matter under the panel decision, a point the petition for rehearing makes.
  4. Whether the portable vehicle hand controls are a personal device may or may not be a question of fact. The problem is just what is the standard for a personal device. As this case makes clear, a personal device may not always be so obvious.
  5. It is also compelling to ask for full briefing on a point that drove the decision but did not receive full briefing.
  6. Whether any of this leads to a rehearing by the panel or an en banc rehearing I don’t know, but it is certainly worth appealing to the United States Supreme Court in case the Ninth Circuit decides that they are done with it.
  7. The principal that where an agency’s interpretation of a statute fails, a court will not supply a rationale to uphold it was recently seen in AARP v. United States Equal Employment Opportunity Commission, where the court there threw out the EEOC wellness regulations and remanded it back to the EEOC to establish an administrative record for their conclusions.
Where Marijuana Comes From

 

In my medical marijuana and the ADA blog entry, I discussed the Massachusetts Supreme Court opinion holding that medical marijuana use may be a reasonable accommodation for a person with disability. That blog entry leads to a corollary question:  is a legal medical marijuana dispensary/place of business (hereafter, dispensary), subject to title III of the ADA? After all, what they are selling at the dispensary is illegal under the Controlled Substances Act, which makes possession of marijuana a crime regardless of whether it is prescribed by a physician for medical use. On the other hand, 90% of States have medical marijuana laws, and there are States where marijuana is legal for everyone. So, let’s say you have a medical marijuana dispensary, do you have to worry about title III of the ADA at all?

Before proceeding further with that, if you think about it, anybody needing a prescription for medical marijuana is going to be a person with a disability. So, as a matter of good business sense, it makes sense for a marijuana dispensary to comply with title III of the ADA just for the sake of servicing its customers.

Of course, that doesn’t answer the question of whether a perfectly legal marijuana dispensary under State law has to comply with title III of the ADA. I would argue that a legal marijuana dispensary does indeed have to comply with title III of the ADA for the following reasons. First, a marijuana dispensary sells marijuana and therefore, is a sales or rental establishment under 42 U.S.C. §12181(7)(E). Second, the owner of the marijuana dispensary property obviously owns, operates, leases, or leases out the property per 42 U.S.C. §12182(a). Third, the marijuana dispensary is engaged in interstate commerce per 42 U.S.C. §12181(1) because it undoubtedly engages in interstate commerce by either conducting trade, traffic, commerce, transportation, or communication: (A) among the several States; (B) between any foreign country or any territory or possession and any State; or (C) between points in the same State but through another State or foreign country. Finally, nothing in title III of the ADA says that a place of public accommodation’s classification depends upon whether what it sells is legal under federal law.

Are there contrary arguments? Barbuto suggests one, though I don’t know if the argument would prevail in court. That argument is the owner, operator, lessor, or lessee of a marijuana dispensary is possessing marijuana and probably (I am not a criminal lawyer), aiding and abetting its possession as well by permitting customers in its store buy the marijuana. So, therefore, since the product is illegal. It would be against public policy to classify it as a place of public accommodation under title III of the ADA.

In short, as a matter of preventive law and quite probably as a matter of law as well, if your business is a marijuana dispensary, you would be wise to comply with title III of the ADA. It also makes good business sense.

 

 

This week’s blog entry is a twofer. First, is there a notice requirement to state entities where the state has an antidiscrimination law and a person wants to sue under title III of the ADA? Second, a case discussing that the line between product accessibility and service accessibility is not always so clear. That particular case involves a person with mobility impairments that wanted to test drive a car at a car dealership prior to buying it, but the car dealer would not install temporary hand controls so that the car could be driven. As usual, the blog entry is divided into categories: notice requirement under title III?; hand control case facts; hand control case majority reasoning; hand control case acquiescing dubitante opinion (say what ? You will have to keep reading:-); and takeaways. The reader is free to focus on any or all of the categories.

Also, I do want to thank all of my readers and also those who voted for me for the ABA 100. I do appreciate it!

I

Is There a Notice Requirement to a State Agency Responsible for a Disability Nondiscrimination Law When Suing an Entity for Violating Title III of the ADA?

We have previously discussed title III notice requirements here. That said, as everyone knows, serial lawsuits are a real problem. We have discussed how to fend off those lawsuits here, and we have also discussed pending federal legislation on that matter here as well. Recently, we have seen the Arizona Atty. Gen. intervene to get dismissed a bunch of serial lawsuits. The Nevada Atty. Gen. has now done the same thing. In their filing, which can be found here, the claim is made that a state entity has to be notified prior to filing a title III suit where that state has a disability antidiscrimination law enforced by that state agency. The reference is to 42 U.S.C. §2000a-3(c), which requires such notice when suing under the Civil Rights Act of 1964. However, title III of the ADA contains no such requirement in 42 U.S.C. 12181 et. seq. It is true that in 42 U.S.C. §12188(a), the ADA references 42 U.S.C. §2000a-3, but the reference is very specific to 42 U.S.C. §2000a-3(a). There is absolutely no mention of 42 U.S.C. §2000a-3(c). Since it is only 42 U.S.C. §2000a-3(c) that contains the notice requirement and that section is not  referenced by the ADA, an extremely strong argument exists that notice to a state agency responsible for implementing a disability antidiscrimination law is not required when filing a title III suit. Finally, keep in mind, that not all states have disability antidiscrimination laws. Georgia for all practical purposes, for example, does not.

II

Hand Control Case Facts

The case of the week is Karczewski v. DCH Mission Valley LLC, a published decision of the Ninth Circuit decided on July 10, 2017. The facts of the case are pretty straightforward. The plaintiff who is paralyzed from the waist down and uses hand controls when driving a vehicle sought to test drive one of the cars offered for sale by DCH Mission Valley LLC. Plaintiff requested that the defendant temporarily install hand controls so that he could test drive the car, but the defendant declined to do so. Plaintiff then sued alleging violation of title III of the ADA.

III

Majority Reasoning

In reversing and remanding the lower court decision and finding that the plaintiff stated a claim, the court reasoned as followed:

  1. Public accommodations must start by considering how their facilities are used by guests without disabilities and then take reasonable steps to provide guests with disabilities a like experience.
  2. To prevail on a claim involving 42 U.S.C. §12182(b)(2)(A)(ii) a plaintiff has to show: 1) plaintiff has a disability as defined by the ADA; 2) the defendant is a private entity owning, leasing, or operating a place of public accommodation; 3) the defendant employed a discriminatory policy or practice; and 4) the defendant discriminated against the plaintiff based upon the plaintiff’s disability by failing to make a requested reasonable modification that was necessary to accommodate the plaintiff’s disability.
  3. Plaintiff’s complaint alleged that hand controls are inexpensive, easy to obtain, work on all types of vehicles, do not disable any safety features, cause no damage, and can be installed by the defendant without much difficulty or expense and those allegations must be taken as true on a motion to dismiss.
  4. Temporary modification of a car for the purpose of a short test drive is relief fitting comfortably within the ordinary understanding of a modification to a policy.
  5. Proving a prima facie case for an unreasonable policy is for all practical purposes identical to proving a prima facie case involving a barrier being readily achievable.
  6. Proving a case for an unreasonable policy is likely to be harder than proving a case involving whether a barrier is readily achievable because a policy claim allows for a defendant to assert the affirmative defense of fundamental alteration and a readily achievable barrier claim does not allow for such a defense.
  7. The barrier encountered by plaintiff cannot reasonably be described as an architectural barrier in an existing facility. Rather, the barrier faced by the plaintiff was the lack of hand controls in defendant’s cars, which are clearly goods and not facilities. Since that is the case, the implementing regulations describing the temporary installation of vehicle hand controls as an example of removing an architectural barrier in an existing facility found in 28 C.F.R. §36.304(b)(21) is not applicable to plaintiff’s claim. That said, in a footnote, the court said that nothing in the opinion is intended to cast doubt on the application of the statutory section involved in the case and its corresponding regulation to other factual scenarios, such as the practice by rental car companies of installing vehicle hand controls in their rental cars.The court specifically declined to address factual situations and legal issues not before them.
  8. The court was not buying the argument that allowing the claim to go forward would violate the safe harbor that a business was not required to alter its inventory to include accessible or special goods designed for or that facilitate use by individuals with disabilities per 28 C.F.R. §36.307(a). The court said that regulation pertains to where a business has to order additional goods, but does not pertain to plaintiff’s requested accommodation, which was a short-term modification to an existing individual item already contained in the inventory.
  9. While places of public accommodation are generally not required to alter their inventory by manufacturing or ordering specialty goods, the ADA does require places of public accommodation to make reasonable, temporary adjustment to goods already in stock if doing so will help customers with disabilities access the same goods and services as non-disabled customers.
  10. The personal device exception found in 28 C.F.R. §36.303 does not help the defendant either. Applying the interpretive principle that a general rule applies unless a more specific rule provides otherwise, an exception is carved out to the general prohibition on personal devices whenever the regulations elsewhere require the provision of personal devices.
  11. The court did not believe that the Department of Justice would have added an explicit qualification of the regulation while at the same time leaving it up to the courts to read and implicit qualification into another regulation. Accordingly, 28 C.F.R. §36.306 and §36.303 can be read in harmony together so as to not create a conflict. That is, personal devices are independently useful objects that a person possesses to use for a general purpose, which is not the case for hand controls nor is it the case for assistive listening systems for that matter.
  12. It is far more practical to require dealerships that voluntarily offer the privilege or service of test drive to carry hand controls of a brand that the dealership knows how to install and use when a customer seeks a test drive (assuming, of course, that providing hand controls would be a reasonable modification and that the other statutory requirements are met).
  13. A narrow reading of “personal devices,” and §36.306 is more consistent with the overall structure of the regulations and with the purpose of the ADA.
  14. Installation of vehicle hand controls is likely reasonable at a large dealership that regularly installs hand controls, has spare universal hand controls on hand, and employs many mechanics with expertise in installing an controls, when advance notice is given by a customer with clear expertise in using hand controls.
  15. It is more consistent with the text of the ADA, its overall intent, and with the case law to inquire into the underlying facts rather than come up with a rule to never require the provision of vehicle hand controls no matter the situation.

IV

Hand Control Case Acquiescing Dubitante Opinion (Judge Bybee)

  1. 28 C.F.R. §36.304(b)(21) list as one of its examples for removing barriers being the installation of vehicle hand controls. However, this particular example is completely unlike any of the other examples listed in that regulation. That is, installing vehicle hand controls cannot be a reasonable application of the ADA’s command to remove architectural barriers in existing facilities because architectural barriers ought to have something to do with architecture. Accordingly, Judge Bybee would hold that §36.304 specific provision requiring vehicle hand controls is not a reasonable construction of the statute it purports to implement and therefore, is a dead letter, i.e. not subject to deference.
  2. Under the majority’s aggressive reading of the ADA, everything can be construed as a policy, practice, or procedure.
  3. A savvy plaintiff with an architectural barrier claim will now always bring a policy, practices, and procedures claim as well. Under the system imposed by the majority, once the plaintiff makes out a prima facie case, the defendant will have to demonstrate both that the removal of its architectural barrier is not readily achievable and that modifying of policy would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.
  4. The majority statement that readily achievable claims and policy claims are for all practical purposes identical isn’t reassuring because ordinarily when Congress adopts two different standards within the same legislation, it is assumed that the standards mean different things.
  5. DOJ and its regulations and manuals have taken a more modest approach to what is policy, practices, and procedures. If policy, practice, or procedure are going to be defined in the way the majority defines it, then DOJ’s regulations on policy, practices, and procedures become nearly meaningless.
  6. A court should hesitate supplying the rationale where the agency’s explanation has failed. Here, DOJ adopted an on point regulation, but did so under a different provision of the ADA rather than in a section of the regulations more specifically applying to the situation.

V

Takeaways

  1. Just what is an acquiescing dubitante opinion? In all my years of reading opinions and it is thousands and thousands by now, I have never seen an acquiescing dubitante opinion before. So, I had to look it up. It is very much as described by Judge Bybee. That is, it is a situation where a judge simply cannot bring himself to writing a concurring opinion nor can he bring himself to writing a dissent. Accordingly, this kind of opinion is an opinion that says, “I see it both ways, and I simply can’t come down one way or the other.”
  2. It wouldn’t surprise me in the least to see this appealed to the United States Supreme Court or for the dealership to petition the Ninth Circuit to hear it en banc. With respect to the Supreme Court, it is absolutely true that persons with disabilities have fared well when it comes to cases outside of the employment context, but this case gets into the issue of the line between product accessibility and service accessibility. It also gets into the issue of whether DOJ with respect to its hand control provisions in its final implementing regulation would be entitled to Chevron Both of these claims might be something that Justice Gorsuch would be very receptive to. Also, Justice Kennedy in the past has not been the swing vote on persons with disabilities. It would be very interesting to see how Chief Justice Roberts might deal with this. Finally, the court does not always wait for a Circuit Court before deciding to take up a case.
  3. I do find problematic the majority’s blurring of policy, practices, and procedure claims with architectural barrier claims.
  4. While it is true that fundamental alteration is a defense, it is also true that architectural barrier claims have a defense as well. That is, with respect to existing facilities, the defense that removing an architectural barrier would not be readily achievable does exist.
  5. The case assumes, as we have discussed before, that certain barrier removals are per se readily achievable.
  6. I am not so sure that the inventory defense can be dismissed so readily. Critical questions are: Just how easy it is to install temporary hand controls?; What is the expense to the car dealership of installing hand controls?; Whether the car dealership by installing the hand controls is engaged in providing a service or in modifying a product?; How do you deal with a hybrid situation involving product modification and the providing of services? Does the analysis change if rental cars are involved?
  7. Does the ADA really require places of public accommodation to make reasonable, temporary adjustment to goods already in stock if doing so will help customers with disabilities access the same goods and services as customers without disabilities. I’m not so sure…
  8. I can see how cases like this should survive a motion to dismiss because the law is so much up in the air and because it turns on very fact specific questions.
  9. I don’t think I follow how fundamental alteration with respect to policy, procedures, and practices matches up with the standards used in architectural barriers situations.
  10. As a user of personal devices since fourth grade, in my case hearing aids, the distinction the majority makes regarding personal devices as being something for general use makes a great deal of sense to me.
  11. A great preventive law step is for public accommodations to consider how their facilities are used by guests without disabilities and then take reasonable steps, keeping in mind the dictates of the ADA, to provide guests with disabilities a like experience.

I was giving serious consideration to blogging on Stragapede v. City of Evanston, Illinois. After all, it isn’t very far from where I grew up, and I have all kinds of family connections to Northwestern University. So, I spent a lot of time in Evanston, including attending many a Northwestern University athletic event. However, Robin Shea just published an excellent write up of the case, and so I will leave it for her to analyze. It is definitely worth a read and can be found here. That left me with having to blog about something else. Ultimately, I decided to blog about a HUD conciliation agreement under the Fair Housing Act between an individual, the Fair Housing Advocates of Northern California and Schultz Investment Company et. al. Basically, the Respondents ran into problems with respect to emotional support animals/service dogs. Instead of taking it to trial, Respondents entered into a conciliation agreement. I thought it might be worthwhile to go over the terms. The blog entry is divided into terms of the conciliation agreement and takeaways. Since the structure of the blog entry is such and the length is so short, I’m figuring everyone is going to read the whole thing.

I

Highlights of the Conciliation Agreement

  1. The agreement extends for three years.
  2. A total of $71,000 was paid out to two different plaintiffs.
  3. Within 90 days, the Respondents have to create and implement a reasonable accommodation and modification policy consistent with the Joint Statements of HUD and the Department of Justice on Reasonable Accommodations under the Fair Housing Act and Reasonable Modifications under the Fair Housing Act. That statement can be found here. What is curious is that the joint statement, from my read anyway, does not deal with emotional support animals and service dogs at all. Rather, it just deals with general obligations under the ADA and the Fair Housing Act. There is a document from the Housing and Urban Development Department talking about emotional support animal and service dogs that can be found here, and it is surprising that it doesn’t get a mention in the conciliation agreement.
  4. The policy the defendant comes up with has to explicitly acknowledge and advise employees, tenants, and prospective tenants that an emotional support or companion animal qualifies as a reasonable accommodation under the Fair Housing Act.
  5. Reasonable accommodation and reasonable modification requests must be consistently recorded and responded to in a timely manner.
  6. Documentation of requests for reasonable accommodations or modifications will show whether medical verification was necessary or whether the disability was obvious and apparent as well as indicate when the defendant provided a written response to each request.
  7. The policy also will say that reasonable accommodation and modification request can be made orally or in writing and that Respondents have to give appropriate consideration to requests even where the requester does not use the designated form.
  8. The policy will make clear that verification of disability may come from a doctor or other medical professional such as a therapist, physician’s assistant, or nurse, or from a counselor, social worker, peer support group, a non-medical service agency, or a reliable third-party (emphasis added), who is in a position to know about the individual’s disability.
  9. To request an accommodation or modification, the policy will make clear that an individual does not need to mention the Fair Housing Act or use the phrase “reasonable accommodation,” or “reasonable modification.” That is, MAGIC words are not required.
  10. Leases must be redone within 90 days to reflect ¶ ¶ 1-8 above.
  11. Within 90 calendar days, Respondents have to create and implement a form complying with the Fair Housing Act and make that form readily available to all applicants and current and future tenants. That form must be available at all leasing offices, included in application packets, and a copy provided to new tenants along with a copy of the executed lease.
  12. Requests for reasonable accommodations and reasonable modification can be made verbally and the form is not required. However, there needs to be a written record of every request for reasonable accommodations or reasonable modifications.
  13. Respondents agreed to track all requests for reasonable accommodations and/or reasonable modifications in an Excel spreadsheet and furnish that sheet to HUD on annual basis.
  14. Receptionists, all front office staff, property managers, maintenance personnel, staff participating in making decisions on reasonable accommodations and/or reasonable modifications, and all other staff members interacting with tenants and/or applicants have to attend training sessions on fair housing lasting at least three hours at yearly intervals for two years. The first training session to occur within 90 days and the second one to occur by September 30, 2018. If the training is done by someone other than HUD, HUD will have to approve that training.
  15. Respondents have to post HUD’s assistance animal poster at all leasing offices and at all trash/recycling areas. If the posters are removed or vandalized, Respondents have to promptly replace the posters with clean copies.
  16. Respondents have to display the HUD fair housing poster in all leasing offices.
  17. Within 30 days of the effective date of the agreement, Respondents have to inform all of their agents and employees responsible for compliance with the conciliation agreement the terms of the agreement and provide a person with a copy of the agreement.
  18. Respondents agreed to submit to monitoring by HUD.

II

Takeaways

  1. It is really curious why the HUD publication on service animals and assistance animal for people with disabilities in housing and HUD-funded programs does not get a mention. Even so, that is something you definitely want to look at.
  2. Magic words are not required!!!!!!!!!!!
  3. Reasonable accommodations and reasonable modifications under the Fair Housing Act encompass different meanings. Even so, for an attorney familiar with the ADA, that shouldn’t present a problem whatsoever since the term reasonable modifications under title III of the ADA, would encompass both Fair Housing Act terms.
  4. While the Fair Housing Act does allow you to get documentation to determine whether the tenant has a disability, §I8 of this conciliation agreement casts a pretty broad net, much further than the ADA, as to the type of provider that can document the disability.
  5. While Respondents did not admit liability, they did pay out $71,000 not to mention what they paid their attorneys in defending the case to this point.
  6. I find it curious that the conciliation agreement mandates an Excel spreadsheet as one would think that there would be all kinds of possibilities that could be used with respect to dealing with the data associated with reasonable accommodation requests. Regardless, documentation is critical.
  7. Interactive process!!
  8. Did I say MAGIC words not required?
  9. Training is always important.

About a year ago, I discussed on my blog the case of MaGee v. Coca-Cola Refreshments USA, Inc., a published decision from the Fifth Circuit, holding that a vending machine was not a place of public accommodation and therefore, Coca-Cola’s machines did not have to comply with the ADA. The case was appealed to the United States Supreme Court, and the United States Supreme Court asked the Department of Justice to weigh in on whether it should grant certiorari. The Department of Justice has now weighed in. That brief bears looking at because it also suggests how the Department of Justice might react to website accessibility lawsuits under title III of the ADA. The brief is divided into the categories of highlights and takeaways. The reader, of course, is free to focus on either or both of the categories.

I

Highlights

  1. Beverage vending machines are not generally perceived as discrete businesses and lack the hallmarks of the statutorily enumerated sales or rental establishments appearing in 42 U.S.C. 12181(7)(E).
  2. Just because a vending machine is not a place of public accommodation, that doesn’t mean the ADA doesn’t kick in for the place of public accommodation hosting the machine.
  3. Vending machines do not fall into the catchall category of other sales or rental establishments because otherwise why would the statute list various types of sales or rental establishments in the first place. That is, when a broad catchall phrase follows a list of specific examples, the Canon of construction, ejusdem generis, dictates that general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.
  4. The word “establishment,” suggests a substantial stand-alone place of business, and an ordinary English speaker purchasing a drink from a vending machine would not typically describe such an act as a quick visit to a sales establishment. Dictionary definitions are in accord with this line of thinking.
  5. The Canon of construction noscitur a sociis also dictates against finding a vending machine as a place of public accommodation because that Canon of construction says a word is given more precise content by the neighboring words with which it is associated. The five specific examples of a sales or rental establishment in 42 U.S.C. 12181(7)(E) include a bakery, grocery store, clothing store, hardware store, and shopping center. All of those businesses listed are businesses: selling goods to the public; having a discrete standalone location or identity; and being operated by an on-site proprietor or employees.
  6. Vending machines lack the features characteristically associated with the listed sales establishments in 42 U.S.C. 12181(7)(E). Such characteristics are two: 1) Vending machines do not have a standalone location or identity. That is, vending machines are generally thought of as a furnishing, amenity, or piece of equipment, rather than as a discrete business; and 2) vending machines operate without the assistance or oversight of a proprietor or employees. Vending machines are unstaffed pieces of equipment performing a basic, fully automated task by exchanging currency for a beverage.
  7. A standalone entity is not necessary for an entity to be considered a place of public accommodation. For example, a place of public accommodation may sometimes be located inside another without forfeiting its distinct identity. For example, a coffeeshop remains a place of public accommodation even when it is located within a hotel or a department store.
  8. Sales or rental establishments are also not categorically limited to businesses staffed by human proprietors or employees. Congress by including a catchall provision to facilitate the ADA’s application to new businesses utilizing technologies or methods of operation unknown when the statute was enacted in 1990 means that you could still have a place of public accommodation under title III where a business has developed sophisticated automation capable of performing complex transaction closely resembling or fully replacing traditional establishments listed in title III. In such a situation, a store would qualify as an ADA sales establishment even though automated devices are performing the function human employees would have otherwise performed at the time the ADA was enacted. In a footnote, the Department of Justice says that none of the categories listed in 42 U.S.C. 12181(7) are categorically limited to businesses staffed by human proprietors or employees.
  9. Vending machines were long in business prior to the ADA being enacted, but yet Congress did not see fit to include vending machines as a place of public accommodation. Had they intended to do so, they could have simply included vending machines in the definition of a place of public accommodation.
  10. It makes good practical sense for the operator of the public accommodation hosting the vending machine to be responsible for ensuring that the machines are accessible to persons with disabilities. After all, it is the operator of the place of public accommodation that is better suited to determine the most efficient means of complying with the ADA. For example, some operators prefer buying or leasing accessible vending machines. However, others might choose instead to install the machines at locations within their establishment where their employees are available to assist customers with disabilities.
  11. DOJ implementing regulations 28 C.F.R. §36.304(b)(4) treats vending machines as a type of furnishing appearing within a public accommodation. The 2010 ADA standards for Accessible Design go about it in the same way by mandating that at least one type of machine be made accessible rather than all individual machines.
  12. Plaintiff has historically obtained relief for title III violations involving traditional vending machine by suing the owner or operator of the place of public accommodation rather than the manufacturer of the vending machine. In this situation, both the hospital and the bus station that contain the machines are undoubtedly places of public accommodation.
  13. The debate in the courts about whether the ADA extends beyond physical locations simply does not apply because a vending machine is not a place of public accommodation.
  14. No court has suggested that it matters whether patrons must cross a threshold to enter businesses before suing under the ADA (but see takeaways section below).
  15. The case is not a suitable vehicle for addressing whether title III apply to nonphysical establishment since the petitioner encountered Coca-Cola’s machines in person and not by telephone or over the Internet.

II

Takeaways:

  1. DOJ is not correct when it says that no court has required a physical presence. We discussed here one of those cases, Gomez v. Bang and Olufsen America, Inc.
  2. DOJ’s statement that 42 U.S.C. §12181(7) is not limited to businesses staffed by human proprietors or employees is absolutely huge. That is, DOJ is specifically recognizing that technology has evolved and is evolving where businesses are now capable and are becoming capable of performing complex transactions resembling or fully replacing traditional establishments in title III. To my mind, that statement means that the DOJ is adopting the approach used by the Vermont District Court in ScribD, discussed here. If my read is correct, the DOJ view is a very pro-disability approach to take and goes far beyond the gateway theory that has been predominating in the courts. It also will have a yuge impact on the software as a service industry and on Internet-based businesses.
  3. Even if a vending machine is not a place of public accommodation, the place of public accommodation hosting the vending machine is not off the hook.

Finally, I realize it is a Sunday and the reader may not particularly be interested in filling out a form today to vote this blog as an ABA 100 for this year. But if you have the time and you don’t mind, the deadline is today. The form can be found here.

Last week the legal blog world lit up with the case of Barbuto v. Advantage Sales and Marketing, LLC, a decision of the Massachusetts Supreme Court on July 17, 2017. Both of my fellow panelists, Robin Shea and Jonathan Hyman, on our ADA and employment issues panel at the Federal Bar Association convention in September here in Atlanta have talked about this issue previously.  Jon has a blog entry on this case, which can be found here. I thought I would add my own thoughts. As is usual, the blog entry is divided into categories and they are: facts; Massachusetts specific things and federal law; court’s reasoning; and takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts

Plaintiff has Crohn’s disease and has a prescription for the medical use of marijuana she uses usually in the evening two or three times per week. The use of the drug allows her to maintain a healthy body weight. Plaintiff was offered an entry-level position with Advantage Sales and Marketing and accepted the offer. A representative of the defendant later left a message for the plaintiff saying she had to take a mandatory drug test. Plaintiff immediately told the employee who would be her supervisor she would test positive for marijuana explaining that she suffered from Crohn’s disease and had a written certification from her physician allowing the medical use of marijuana. She also mentioned that she was a qualifying medical marijuana patient under Massachusetts law and that she did not use it daily nor would she consume it before work or at work. The supervisor told the plaintiff that the medicinal use of marijuana should not be a problem but he would confirm this with others at Advantage Sales and Marketing. He later telephoned her and confirmed that her lawful medical use of marijuana would not be an issue with the company. However, once the human resources department received her urine test, they immediately terminated her for testing positive for marijuana saying that they did not care if she used marijuana to treat a medical condition because the company follows federal law and not state law. Plaintiff then filed a complaint in state court alleging handicap discrimination under Massachusetts law as well as alleging violations of other laws (we will just focus on the handicap discrimination piece). At the trial court level, the judge granted the defendant’s motion to dismiss and plaintiff appealed.

II

Massachusetts Specific Things and Federal Law

  1. Under the Massachusetts medical marijuana act a qualifying patient is a person who has been diagnosed by a licensed physician as having a debilitating medical condition, and Crohn’s disease is expressly included within the definition of a debilitating medical condition.
  2. The Massachusetts medical marijuana act also provides that any person meeting the requirements under this law cannot be penalized under Massachusetts law in any manner or denied any right or privilege for such actions.
  3. While Massachusetts uses the term handicapped instead of disability with respect to its anti-disability discrimination laws, the definition of handicapped under Massachusetts law matches up with the definition of disability under the ADA.
  4. Massachusetts law also matches up with the ADA with respect to what constitutes an unlawful practice. That is, the focus is on whether the handicapped person can perform the essential functions of the job with reasonable accommodations. If so, then in Massachusetts, the plaintiff wins unless the employer can demonstrate an undue hardship to the employer’s business.
  5. Similarly, the Massachusetts Commission against Discrimination has issued guidelines on what is a reasonable accommodation. Those guidelines state that a reasonable accommodation is any adjustment or modification to a job (or the way the job is done), employment practice, or work environment that makes it possible for a handicapped individual to perform the essential functions of the position and to enjoy equal terms, conditions and benefits of employment. This phrasing is, very similar, if not identical, to the ADA.
  6. Under federal law, marijuana is a scheduled I controlled substance under the controlled substances act. Possession of such a substance is a crime, regardless of whether it is prescribed by a physician for medical use. Therefore, a qualifying patient in Massachusetts who has been lawfully prescribed marijuana remains potentially subject to federal criminal prosecution for possessing the prescribed marijuana.

III

Court’s Reasoning

  1. Plaintiff is a handicapped person under Massachusetts law because as a result of Crohn’s disease combined with irritable bowel syndrome, the plaintiff had little or no appetite and had difficulty maintaining a healthy weight in the absence of the use of medical marijuana.
  2. While the plaintiff did not specify the major life activities that were substantially limited, working would be one based upon the allegations in the complaint. Another, would be eating.
  3. Where an employee is handicapped because she suffers from a medical condition that can be alleviated or managed with medication, one generally expects an employer not to interfere with the employee taking such medication nor to terminate the employee because she took the medication.
  4. Where the employer has a drug policy prohibiting the use of such medication even if it is lawfully prescribed by a physician, the employer has a duty to engage in the interactive process with the employee to determine whether there are equally effective medical alternatives to the prescribed medication whose use are not in violation of this policy.
  5. If no equally effective alternative exists, then under Massachusetts law, the employer bears the burden of proving that the employee’s use of the medication would cause an undue hardship to its business.
  6. Since the burden of proving undue hardship is on the employer, where the employee brings a handicap discrimination claim following her dismissal for the use of her prescribed medication, that complaint survives a motion to dismiss where it adequately alleges that the plaintiff is a qualified handicapped person because she could have competently performed her job with the medication.
  7. Under Massachusetts law, the use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication.
  8. It is a facially reasonable accommodation to make an exception to an employer’s drug policy where in the opinion of the employee’s physician, medical marijuana is the most effective medication for that medical condition and where any alternative medication permitted by the employer’s drug policy would be less effective.
  9. A qualified handicapped employee has a right under Massachusetts law not to be fired because of that handicap. That right includes the right to require an employer to make a reasonable accommodation for a handicap to enable her to perform the essential functions of her job.
  10. The medical marijuana act itself declares that a person cannot be denied any right or privilege on the basis of their medical marijuana use, and a handicapped employee has a statutory right or privilege to reasonable accommodation under Massachusetts law. To hold otherwise, would allow an employer to deny such a right or privilege solely because of the patient’s use of medical marijuana.
  11. The medical marijuana act implicitly recognizes that off-site medical use of marijuana as a permissible reasonable accommodation.
  12. It doesn’t matter that possession of marijuana is a violation of federal law because the only person at risk of federal criminal prosecution is the employee and not the employer. That is, an employer would not be the one in possession of medical marijuana nor the one aiding and abetting its possession simply by permitting an employee to continue his or her off-site use.
  13. Nearly 90% of States have enacted laws regarding medical marijuana. Such laws reflect the determination by the States that marijuana when lawfully prescribed by a physician has a currently accepted medical use in treatment.
  14. Declaring medical marijuana to be a per se unreasonable accommodation due to federal law would be disrespectful of Massachusetts voters (such sentiments regarding medical marijuana being shared by legislatures and the vast majority of States), who stated that marijuana has accepted medical use for some patients suffering from debilitating medical conditions.
  15. Even if you assume that medical marijuana is a facially unreasonable accommodation, which according to the Massachusetts Supreme Court it is not, the employer loses because it did not engage in the interactive process prior to terminating the employee.
  16. It is certainly possible that the defendant may yet prevail on summary judgment by showing that making an exception to the policy constitutes an undue hardship on their business. For example, perhaps the employer could show that the plaintiff’s performance of her work poses an unacceptably significant safety risk to the public, to the employee or to fellow employees. Or, perhaps the employer can show that the use of marijuana by an employee violates an employer’s contractual or statutory obligation thereby jeopardizing its ability to perform its business. For example, transportation employees are subject to regulations of the United States Department of Transportation prohibiting any safety sensitive employees subject to drug testing under their regulation from using marijuana.
  17. Whether an undue hardship exists, is much better resolved at the summary judgment or trial stage rather than through a motion to dismiss.

IV

Takeaways:

  1. When dealing with the ADA, you can’t forget about state law. In this situation, the ADA and Massachusetts law matchup with respect to the phrasing of their disability discrimination laws. It is an important point because on the employment side, the ADA only applies to employers with 15 or more employees. State laws may have a lower number.
  2. Massachusetts is using the term “handicap,” but the meaning is the same as disability under the ADA. I will add that “handicap,” is a term that is offensive to people in the disability community. Perhaps, a legislator in Massachusetts will come up with a bill replacing “handicap,” with, “disability.”
  3. While the court makes a mention that Massachusetts law prohibits penalizing a person qualifying on the medical marijuana act in terms of denying that person any right or privilege, for purposes of ADA discrimination matters, I am not sure that such a provision is dispositive. That is, it isn’t clear to my mind whether you would still get to the same place in any event.
  4. Very interesting that the plaintiff did not allege a major life activity that was substantially limited, but the court went ahead and made a logical guess as to what major life activity was substantially limited. If this were filed in a federal court, I would expect the defendant to file a motion to dismiss saying that under Iqbal and Twombly, the complaint fails because a substantial limitation on a major life activity was not alleged. So, if on the plaintiff’s side, be sure to specifically mention in a major life activity that is substantially limited because particularly at the federal level, you just can’t expect a court to come up with a major life activity on its own and do the plaintiff a solid so to speak as the Massachusetts Supreme Court did here.
  5. If your state has a medical marijuana statute, don’t go firing that person as a result of a marijuana positive drug test without first undertaking an interactive process to figure out what the alternatives might be.
  6. If your State has a medical marijuana statute, it may be a per se reasonable accommodation to make an exception to the drug use policy for a person using medical marijuana. Again, the key is the interactive process.
  7. It makes sense to me that any medical marijuana act implicitly recognizes off-site medical use of marijuana and therefore, such use is a reasonable accommodation.
  8. Very interesting about the federal law analysis. That is, since the employee bears the risk of prosecution, the employer cannot claim federal law prevents making an exception to his drug use policy for a person using medical marijuana. It will be very interesting to see if this analysis ultimately prevails.
  9. Very interesting to me how the people that the plaintiff was going to work for at Advantage Sales and Marketing greenlighted her going forward with her application and even confirmed as much, but then human resources decided otherwise. One wonders who the supervisor talked to before he gave the green light. Also, one wonders whether knowledgeable legal counsel was involved prior to the termination. True, marijuana can be a complicated issue (a lawyer might go either way), but that is less true with respect to failure to engage in the interactive process.
  10. This case also stands for the proposition that defending on undue hardship grounds, of which there can be many different things that might constitute such an undue hardship, may work for summary judgment or trial, but is not likely to prevail on a motion to dismiss.

Finally, voting for the ABA 100 is still ongoing until the end of the month. So, if you have not already and enjoy this blog, please fill out the form and vote here.

 

Happy 27th Anniversary to the ADA!

 

 

 

Obviously, I missed a blog entry last week. I have a good excuse. My daughter’s bat mitzvah was July 8. While the bat mitzvah and the reception and everything else went great (she did a great job!), the hangover was considerable. Once the hangover subsided, I had a client matter to attend to. However, I am back this week.

The case for this week is Punt v. Kelly Services, a 10th Circuit case decided July 6, 2017. As is usual, the blog entry is divided into categories and they are: facts and plaintiff’s problems with the case; failure to accommodate nuggets; and takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts and Plaintiff’s Problems with the Case

  1. The suit involved an allegation by a temporary employee whose assignment by a staffing agency, Kelly Services, to work as a receptionist for another business was terminated after she missed significant amount of work while being tested for breast cancer and after informing the agency that she needed to take a full week plus an additional unknown amount of time off for more tests, appointments, and radiation treatment due to her cancer. However, plaintiff’s case had numerous problems with it and those follow below.
  2. As is typical with temporary employees from staffing agencies, the business, which happened to be General Electric, could ask the temporary agency to remove any of its temporary employees from their assignment for any reason. The temporary agency also had the right to cancel any employee’s assignment on its own initiative.
  3. When the plaintiff initially applied for employment with the temporary services, she signed an employment application stating that the duration of any assignment she accepted depended upon the needs of the temporary agency’s customer and that an assignment could be canceled at any time by the temporary agency or the customer.
  4. The application also stated that upon completion of each assignment she would notify the temporary agency of her availability for work and failure to do so indicated that she either voluntarily quit or was not actively seeking work.
  5. In the six weeks plaintiff was assigned to work as a receptionist at General Electric, she never worked the full 40 hour work week. In fact, she was absent from work on six occasions, two corresponded with holidays and three corresponded with documented medical appointments. One absence was unexplained. She was also late to work on three different occasions and did not offer an explanation for being late on two of those dates. She also left work early on three occasions with one of those departures being unexplained.
  6. When plaintiff would be gone from work, another temporary employee had to take over her duties and responsibilities.
  7. Plaintiff did not respond to the temporary agency request for information once the plaintiff told the temporary agency that she was concerned about her cancer treatment.
  8. Plaintiff lied to the temporary agency about what actually happened with her MRI.
  9. Once the temporary agency terminated her, plaintiff never contacted the temporary agency to ask for another assignment even though she has been very aggressive with the temporary agency in the past with respect to seeking work.
  10. The temporary agency offered plaintiff a one day assignment at a different business, but the plaintiff turned the assignment down because she already had work through a different temporary staffing agency.
  11. After February 2012, plaintiff never contacted the temporary agency to tell them she was available for a job assignment and the temporary agency did not contact plaintiff with any additional job offers.

II

Failure to Accommodate Nuggets

  1. Failure to accommodate claims do not require evidence of discriminatory intent, whether such evidence be direct or circumstantial. That is, the only reason the accommodation is required is because of a disability, and therefore, the failure to provide a reasonable accommodation to a qualified employee with a disability is inherently on the basis of the disability regardless of the employer’s motivation.
  2. Assuming the employee has provided notice to the employer of a disability, any limitations resulting from that, and the accommodations she wishes to receive, then the employer’s failure to provide a reasonable accommodation for the disability establishes the required connection between the disability and the alleged discrimination without the need to inquire into the employer’s subjective motivations.
  3. Since intentional discrimination is not a part of failure to accommodate claims, then McDonnell Douglas doesn’t apply either.
  4. McDonnell Douglas’ purpose is determining whether reasonable fact finder can infer from circumstantial evidence that the employer’s motives were discriminatory, but that is not an issue in failure to accommodate cases. In fact, adopting McDonnell Douglas is likely to confuse the analysis of failure to accommodate claims. That is, the distinction between direct-evidence and circumstantial-evidence simply does not apply when there is no need to inquire into the issues of the employer’s subjective motivations. Accordingly, failure to accommodate cases should be classified as a separate category of cases requiring no evidence of discriminatory intent in any form.
  5. The question of what type of ADA claim is involved in a particular case is determined by the allegations in the plaintiff’s complaint and not on the type of evidence.
  6. A modified burden-shifting framework assessing failure to accommodate claims makes sense in order to provide a useful structure by which a District Court can determine whether the various parties have put forth sufficient evidence to meet their respective traditional burdens to prove or disprove the reasonableness of the accommodation offered or not offered. Without such a structure, a court would have difficulty figuring out who should prevail on summary judgment.
  7. The modified framework involves: 1) the employee must make an initial showing that she is an otherwise qualified person with a disability and that she requested a plausible reasonable accommodation; 2) once that is done, the burden of production shifts to the employer to present evidence that either conclusively rebuts one or more elements of plaintiff’s prima facie case or establishes an affirmative defense, such as undue hardship or another affirmative defense available to the employer; and 3) if the employer is able to meet its burden of production as described just above, then summary judgment will be appropriate for the employer unless the employee then presents evidence establishing a genuine dispute regarding the affirmative defenses and/or rehabilitates any challenged elements of her prima facie case so as to establish a genuine dispute of material fact as to the challenged elements.
  8. An employee’s request to be relieved from the essential function of her position is not as a matter of law a reasonable or even a plausible accommodation.
  9. Physical attendance in the workplace is an essential function of most jobs and an employee’s request to work from home is as a matter of law unreasonable where the employer has decided that physical presence at the workplace is an essential function of the position.
  10. Since the term “reasonable accommodation,” refers to those accommodations presently or in the near future that enable the employee to perform the essential functions of his job, an employee is required to inform his or her employer of the expected duration of the impairment, which the plaintiff did not do.
  11. Plaintiff did not cite to a single case where a court found that a leave of absence is a reasonable accommodation for a temporary employee assigned to fill a position at a business by a temporary-staffing agency. To hold otherwise, would impose considerable difficulties on General Electric.
  12. For temporary employees, the ability to report to work consistently is a necessary part of the job.
  13. Plaintiff’s past behavior and her vague request for more time off suggest that she would not be able to meet the job’s requirement of reporting to work consistently in the future.
  14. The most essential function of a temporary employee’s job is physical presence at the workplace and therefore, plaintiff’s request was unreasonable as a matter of law.
  15. The temporary agency did not have to contact the plaintiff about additional job positions after her assignment with General Electric was terminated because the plaintiff did not carry out her obligations to the temporary agency asking for additional assignments when she was terminated per the contract she signed.

III

Takeaways:

  1. Failure to accommodate claims do not require evidence of discriminatory intent says the 10th Circuit. Remember, an employer can escape damages if they can show they acted in good faith.
  2. Some reasonable accommodation requests may be unreasonable as a matter of law. See also this blog entry.
  3. McDonnell Douglas does not apply to failure to accommodate cases, though modifying it is helpful so that courts can smoothly decide summary judgment motions.
  4. The distinction between direct-evidence and circumstantial-evidence simply makes no sense in failure to accommodate claims. See also this blog entry, discussing the distinction between direct-evidence and circumstantial-evidence makes no sense at all in any situation, but arguably holding that McDonnell Douglas applies everywhere.
  5. The question of the type of ADA claim depends upon the plaintiff’s complaint and not on the type of evidence, which is a point made by the Seventh Circuit in the case referenced in the blog entry mentioned in ¶ III 4.
  6. An essential function of a temporary employee’s job is attendance. To my mind, always saying that goes too far. As a matter of preventive law, I would still prefer to go about it as discussed in this blog entry. That said, companies are retrenching in a big way from freely allowing remote working.
  7. While the court acknowledges that just because the employer has decided that something is an essential function of the job does not make it so, the court goes out of its way to say that the employer’s judgment as to what is an essential function of the job is given big time weight. Accordingly, employers want to make sure that their job descriptions are current and accurate as to what the essential functions are.
  8. Unlimited leave or leave without a specific duration is not a reasonable accommodation.
  9. Following the terms of a contract can make a big difference in terms of how it case plays out.
  10. Can you say interactive process?

Finally, voting for the ABA 100 is still ongoing until the end of the month. So, if you are inclined and enjoy this blog, please fill out the form and vote here.

I know I promised that I would not have a blog this week. However, with the bat mitzvah a week from today, I am going out of my mind. Believe it or not, blogging relaxes me. Also, my wife and daughter are out shopping for the bat mitzvah leaving me alone with my miniature poodle. So, why not. But before moving on to the blog entry, it is that time of the year again to request your vote for the ABA Top 100. I have been fortunate to be an ABA top 100 legal blawg for the last three years and would love to be part of it again. This year your vote is even more important because what the ABA has done is extend the top 100 to law firm sites, podcasts, etc. as well as blogs. That means there may be a lot less blogs in the top 100 than there used to be. So, if you are inclined and enjoy this blog, please fill out the form and vote here.

Today’s case, a link to that case can be found courtesy of Epstein Becker Green’s Lexology entry here, came to my attention from Seyfarth Shaw’s blog, one of the blogs in my blogroll, and represents a contrary view to the cases that I discussed in this blog entry. As is usual, the blog entry is divided into categories and they are: facts; court’s reasoning due process; court’s reasoning primary jurisdiction; and takeaways. The reader is free to focus on any or all of the categories.

I

Facts

The facts are pretty straightforward. A legally blind individual Jaws user could not fully access the Hobby lobby website. As a result; he could not use the find a store location feature, and the gift card page, in addition to being confusing, did not allow him to purchase products from the website as the checkout feature did not work properly. Hobby Lobby moved to dismiss on due process grounds and on the primary jurisdiction doctrine. The court did not buy Hobby Lobby’s arguments and reasoned as follows:

II

Court’s Reasoning Due Process

  1. Hobby Lobby’s physical stores are a place of public accommodation.
  2. The parties agreed that for purposes of the motion to dismiss that the website was a service, privilege, or advantage of the physical stores and therefore subject to the ADA.
  3. In a footnote, the court notes that Hobby Lobby at summary judgment intends to argue that the website operates independently from its stores and so therefore, is not subject to the ADA.
  4. The lack of specific regulation does not eliminate Hobby Lobby’s obligation to comply with the ADA. While regulations amplify and augment statutory requirements, they do not displace statutory mandates.
  5. DOJ has consistently over the years, including as far back as 1996, has affirmed that title III applies to websites meeting the definition of a public accommodation.
  6. DOJ has also filed numerous amicus briefs and statements of interest in many lawsuits reiterating its position that the ADA applies to websites meeting the definition of a public accommodation and has initiated enforcement action to force compliance.
  7. Back in 2010, DOJ issued an advanced notice of proposed rulemaking on website accessibility and noted in that document it was of the view the ADA’s broad and expansive nondiscrimination mandate extended to goods and services provided by covered entities on websites over the Internet.
  8. The notice of proposed rulemaking specifically mentioned web content accessibility guidelines.
  9. Title III’s prohibition on discrimination on the basis of disability and its requirement to provide appropriate auxiliary aids and services, including where necessary to ensure effective communication, imposes an affirmative obligation on places meeting the definition of a public accommodation to ensure individuals with disabilities have as full and equal enjoyment of their websites as individuals without disabilities.
  10. The prohibition against discrimination in the enjoyment of goods, services, facilities or privileges means that whatever goods or services a place of public accommodation provides, it cannot discriminate on the basis of disability in providing enjoyment of the goods and services.
  11. Due process argument doesn’t work because it has been clear for some time that a place of public accommodation must have its website accessible to persons with disabilities and persons with disabilities must have equal enjoyment of the website as individuals without disabilities.
  12. Hobby Lobby is free to decide how to comply with the ADA since the DOJ has not imposed any specific compliance means. Just because there is flexibility in figuring out how to comply with the statute, that is an entirely different question from whether compliance is mandated in the first place. Accordingly, for due process purposes, the notice is whether Hobby Lobby knew it had to comply with the ADA and not whether it knows how it must comply with the ADA.
  13. Hobby Lobby arguments in some ways are premature as they go to the crafting of a remedy. When it come to the remedies point in time, the court will consider carefully what level of accessibility applies to the website.

IIB

Primary Jurisdiction

  1. Plaintiff is not asking the court to fashion a remedy adopting a specific technical rule, but rather is asking the court to require Hobby Lobby to comply with DOJ’s directive that individuals with disabilities have equal enjoyment of its website as individuals without disabilities.
  2. Neither of the requirements for the primary jurisdiction doctrine are present in this case (the promotion of uniformity in determining administrative questions, and the need for highly specialized expertise).
  3. The potential for delay while the federal administrative rulemaking process proceeds is great. That is, since the DOJ issued the notice of proposed rulemaking in 2010, it hasn’t taken any further action towards promulgating specific accessibility requirements and no reason exists to believe DOJ will issue rules anytime in the near future.

IV

Takeaways:

  1. Within the same District of California, you have cases going both ways.
  2. On the plaintiff’s side, this case makes an important distinction that due process notice is not the how to comply but whether to comply at all. Clearly, there was plenty of notice that compliance was required.
  3. The case references Target and so presumably falls within the gateway theory of when a website must be accessible to persons with disabilities. Gorecki, the case that is the subject of this blog entry, doesn’t explicitly say how it goes about deciding whether the website is a place of public accommodation. The gateway theory does mean that even if the website is independent of its stores, it still may nevertheless be acting as a gateway to the stores. It will be interesting to see what the court does with this on summary judgment.
  4. The court was simply not willing to give a get out of jail free card to the defendant just because DOJ has not issued any regulations on the subject and is not likely to issue any regulations soon.
  5. 42 U.S.C. §12182(b)(1)(A)(ii) states, “It shall be discriminatory to afford an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals.” The effect of this clause is to bring into question the general requirements that title II and title III require meaningful access. Meaningful access might mean something less than being equal to what is afforded to individuals without disabilities. This court is essentially saying that this provision of the ADA and the proposed regulations implementing this statutory provision trumps meaningful access.
  6. On the defense side, if you get hit with a website accessibility lawsuit, your approach would be: 1) argue that the website is not a place of public accommodation; 2) argue due process; and 3) argue primary jurisdiction doctrine. On the plaintiff’s side you want to use this case to argue that due process and the primary jurisdiction doctrine are not applicable.
  7. With respect to whether the website is a place of public accommodation, that, as we have discussed in numerous blog entries, will depend upon the jurisdiction you are in. As mentioned in those entries, such as here, the trend is very much the gateway theory.
  8. If you are on the defense side, don’t go assuming that the Supreme Court is going to take a narrow reading and necessarily find in your favor. The Supreme Court frequently decides for persons with disabilities, especially outside of the employment context. In fact, in the last term, the Supreme Court came down with three decisions favoring the person with a disability, all of them we discussed in this blog.
  9. One of the things about people with disabilities, is that we silo. That is, for example, a deaf person is frequently most comfortable associating with other deaf/Deaf individuals and the same goes for other disabilities. As a result, a person of one kind of disability doesn’t always think about the other kinds of disabilities. So, when I read effective communication in this case, I was a bit startled because I don’t instinctively think of communication that way. That said, certainly a blind person using Jaws is trying to communicate with a place of business when doing so. Arguably, that is something that would fall within the effective communication rule, which we have discussed numerous times in this blog, such as here.
  10. Justice Gorsuch is very skeptical of the power of the administrative state and would be very unlikely to be receptive to the primary jurisdiction doctrine. He might be more receptive to due process claims, but the key there will be seeing whether he buys off on the distinction that notice pertains to compliance at all and not the how of compliance. I know he has been off to a very conservative start, but a reading of his jurisprudence over time suggests that he will not always be that way depending upon the nature of the case before him.

Have a great Fourth of July everyone and don’t forget to vote for this blog for the ABA 100.

Next week is the week before my daughter’s bat mitzvah. Accordingly, I think I’m going to take that week off. This week’s blog entry comes to me courtesy of my friend Stephen Meyer, a certified Texas accessibility specialist (a certified person in Texas that assesses facilities for compliance with accessibility guidelines and regulations). The case, Kirola v. City and County of San Francisco has many interesting legal issues that arise when dealing with architectural accessibility including: the need for experts and judges to know the law; just what is standing in title III cases; whether it is necessary for the named plaintiff in a class to have visited all facilities covered by the class description; what architectural accessibility rules apply in a given situation; the importance of understanding the categories inherent in the architectural guidelines; how do you measure ramp slope; and the importance of understanding the difference between facility accessibility and program accessibility. As is usual, the blog is divided into categories and they are: facts; issues presented; court’s reasoning on the individual various issues mentioned above; and takeaways. The reader, of course, is free to focus on any or all of the categories.

I

Facts

Here, what you have is a class action alleging that San Francisco’s public right-of-ways, pools, library, parks, and recreation facilities are not readily accessible to and usable by mobility-impaired individuals. The District Court had certified a class. At the trial level, you had a dueling battle of experts with the court finding that San Francisco wins because the plaintiffs experts were not credible, among other things. Plaintiffs appealed to the Ninth Circuit.

II

Issues Presented:

  1. Just what is standing in title III cases and is it necessary for the named plaintiff to have visited every facility that is the subject of the lawsuit in order to have standing;
  2. What architectural accessibility rules apply in a given situation;
  3. What is the importance of understanding the categories inherent in the architectural guidelines;
  4. How do you measure ramp slope;
  5. What is the difference between facility accessibility and program accessibility.

III

Court’s Reasoning Concerning Just What Is Standing in Title III Cases

  1. In order to show standing, a plaintiff has to show: 1) he or she has suffered an injury in fact that is: a) concrete and particularized and b) actual or intermittent, not conjectural or hypothetical; 2) the injury is fairly traceable to the challenged action of the defendant; and 3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
  2. Under the ADA, an injury in fact is established by evidence showing both that the plaintiff encountered an access barrier and either intent to return or is deterred from returning to the facility. Evidence at trial revealed that the plaintiff did encounter a variety of access barriers at San Francisco’s public facilities.
  3. Whether a person has standing to pursue an ADA claim is a completely different question with a different standard than whether the plaintiff will prevail on her title III ADA claim. That is, standing in no way depends upon the merits of the plaintiff’s contention that the particular conduct is illegal.
  4. Meaningful access to a program in its entirety is what you have to show to get relief on the merits, but that is not what you have to show to establish standing. To hold otherwise, means article III standing requirements are superfluous so the only thing that would matter then is whether you would succeed on the claim.
  5. In title III cases, determining injury in fact means figuring out whether the plaintiff has encountered at least one barrier interfering with his or her access to the particular facility and whether she intends to return or is deterred from returning to that facility.
  6. The barriers encountered by the plaintiff prevented her from benefiting from the same degree of access as a person without a mobility disability and deterred her from future attempts to access the facilities she visited.
  7. Her injuries are actual because they already happened, and she is likely to suffer harm in the future as a result of being currently deterred from visiting the various facilities as a result of their accessibility barriers.
  8. Causation is established because the barriers are traceable to the City since they are responsible for construction, alteration, and maintenance of the facilities that have those barriers.
  9. The redressability requirement is also satisfied since a properly framed injunction could ensure that the City alters or remove the access barriers.
  10. A plaintiff does not lose standing because her proposed injunction is thought to be too narrow by the court. The proper question is what is the federal court capable of granting.
  11. Once a named plaintiff demonstrates her individual standing to bring a claim, the standing inquiry ends, and the court proceeds to consider whether the prerequisites for class certification are met.
  12. Plaintiff demonstrated individual standing to bring her claims, and the class definition determined by the court is broad enough to encompass every facility discussed at trial, regardless of whether the name plaintiff visited that facility or not. The District Court simply got it wrong when it said it could only address facilities visited by the plaintiff since such a decision did not take into account the scope of the certified class.

IV

What Architectural Accessibility Rules Apply In A Given Situation?

  1. The Architectural and Transportation Barriers Compliance Board produces the Americans with Disabilities Act Architectural Guidelines Standards (ADAAG). So, how it works is that the Access Board establishes a baseline of nonbinding requirements and then the Department of Justice must adopt binding regulations consistent with but not necessarily identical to the Access Board’s guidelines.
  2. On July 26, 1991, the Access Board published its first version of ADAAG. That same day, DOJ adopted ADAAG in full as its own accessibility regulations.
  3. Through September 3, 2002, the Access Board published several supplements to ADAAG. However, those supplements were nonbinding because the DOJ did not re-adopt the ADAAG up to that point.
  4. In 2004, the Access Board published a wholesale revision of ADAAG. On September 15, 2010, DOJ updated that the accessibility regulation by incorporating the 2004 ADAAG standards with a few variations.
  5. DOJ’s 2010 standards set a timetable for complying with the 2004 ADAAG standards. In particular, for new constructions or alterations commencing before September 15, 2010, public entities could decide to comply either with the original 1991 ADAAG standards or with another set of federal standards, the Uniform Federal Accessibility Standards. For new construction or alterations commencing between September 15, 2010 and March 15, 2012, public entities could comply with either the 1991 ADAAG standards, the Uniform Federal Accessibility Standards, or with the newly adopted 2004 ADAAG standards. Finally, any new constructions or alteration commencing after March 15, 2012 had to comply with the 2004 ADAAG standards.
  6. The District Court found that the City had elected to follow ADAAG over the Uniform Federal Accessibility Standards with respect to meeting its accessibility obligations. The Ninth Circuit was confident that for new constructions and alterations the City elected to comply with the 1991 standard. Since the trial took place in April and May of 2011, the City could’ve only chosen to comply with the 2004 standards with respect to facilities constructed or altered during that year and a half time frame.

V

What Is the Importance of Understanding the Categories Inherent In the Architectural Guidelines?

  1. Since obedient to the spirit of the ADA does not include noncompliant with ADAAG’s requirements even where it is a matter of inches, it is important to know the different categories of requirements in the ADAAG standards.
  2. ADAAG contains two categories of requirements. §4 of the ADAAG, “Accessible Elements and Spaces: Scope and Technical Requirements,” sets out detailed design guidelines for particular features of facilities. The other category pertains to specific types of facilities rather than specific features, which the Ninth Circuit referred to as facility-specific requirements. Those requirements go across several different sections of the ADAAG and gives standards for particular types of facilities such as: restaurants and cafeterias; medical care facilities; and libraries. Each of the facility-specific sections begins with the recital that facilities covered by the facility-specific sections still have to comply with the feature-specific guidelines of §4.
  3. The District Court messed up by saying that the ADAAG did not apply to public rights-of-way, parks, and playground facilities.
  4. ADAAG standards do apply to public rights-of-way, parks, and playgrounds since §4 feature-specific requirements apply even though no facility-specific guidelines exist for public rights-of-way, parks, and playgrounds.
  5. Applying ADAAG’s feature-specific requirements to public rights-of-way, parks, and playgrounds follows the executive branch’s own interpretation of ADAAG as set forth in a technical assistance manual, and the Ninth Circuit has held that manual is entitled to deference.
  6. That technical assistance manual says that if there are not specific standards for a particular type of facility, the technical requirements of the chosen standard should be applied to the extent possible. That means applying ADAAG’s feature-specific standard to public rights-of-way, parks, and playgrounds. So, for example, while there is not a facility-specific section for parks, there is a feature-specific section for ramps that might be in the park.
  7. It is true that the technical assistance memorandum says that if no standard exist for particular features, those features need not comply with the particular design standard, but the key there is, “feature.” The sentence doesn’t speak to facilities. So, that is simply not the same thing as saying that if there are no facility-specific requirements for parks, then parks do not have to comply with the ADAAG at all.
  8. ADAAG §4 by its own terms applies to all areas of newly designed or newly constructed buildings and facilities and the altered portions of existing buildings and facilities. The key there is the phrase, “all areas.”
  9. It doesn’t work to say that the ADAAG has no application to facility types not having their own specific set of regulations because the facility-specific sections are collections of additions and exceptions. In fact, at the head of each facility-specific section language exists saying that the facility-specific requirements apply in addition to the feature-specific regulations of §4. In a real cool analogy, the Ninth Circuit says that the ADAAG is structured as a regulation applicable to all fruit but with additional rules and exceptions for apples, bananas, and oranges. So, ADAAG still applies to a pear (in this case public rights-of-way, parks, and playgrounds).
  10. Applying ADAAG’s feature-specific requirement to public rights-of-way, parks, and playgrounds makes sense because a contrary holding would mean that public entity would be free to ignore access concerns when altering buildings, new rights-of-way, parks, and playgrounds and that the standards for compliance would no longer come from the DOJ and the Access Board, but from the courts. Such a system would make no sense as courts do not have the institutional competence to put together a coherent body of regulations on this topic but federal administrative agencies do. Both the regulated entities and architects need a holistic collection of design rules and not the incremental products resulting from courts deciding cases one at a time.
  11. Avoiding minor variations is exactly what the ADAAG requires of new or altered facilities.
  12. Plaintiff’s experts were correct to avoid applying ADAAG’s proposed standard for recreation facilities because under the legal scheme, see paragraphs above, the ADAAG’s proposed standard for recreation facilities were not binding.

VI

How Do You Measure Ramp Slope?

  1. The District Court was mistaken in concluding that plaintiff’s expert should have considered the overall rise in the run, which is the average slope of the ramp, when determining whether the ramp slopes complied with the applicable standards. That conclusion doesn’t make sense because for a mobility impaired person with a disability, it is the steepest point and not the average steepness of the ramp that determines the accessibility of a particular ramp. In fact, in 2007, DOJ issued an ADA best practices toolkit recognizing that the average steepness of the ramp was not useful when assessing the accessibility of a ramp already constructed since such a figure assumed the slope over the length of the ramp is consistent, which is often not the case.
  2. So, it is the steepest point on the ramp that affects whether wheelchairs can navigate the ramp and therefore, the correct benchmark is the maximize localized variation, the steepest individual point along the slope of the ramp.

VII

Program Accessibility v. Facility Accessibility

  1. When it comes to title II of the ADA, it is program accessibility that matters. Facility accessibility is a matter of when the facility was constructed, but if you are dealing with facilities that have not been constructed or altered since the ADA went into effect, then program accessibility prevails. I add that any alterations to a facility made since the ADA went into effect have to be done consistent with the applicable standards and the path of travel to those alterations must also be done consistent with the applicable standards.
  2. Plaintiff simply did not prove that when viewed in its entirety the public right-of-way and recreation Park program were inaccessible.
  3. No class member testified there were locations in the City that a class member could not reach because of access barriers.
  4. Title II of the ADA allows for other methods to satisfy program access even where a particular method of benefiting from the program is not accessible. Here, the City of San Francisco provide both public transportation and paratransit services as part of the public right-of-way.
  5. Title II of the ADA does not require perfect accessibility.
  6. The city of San Francisco operates a website (hopefully, that website is accessible to persons with disabilities…), that gives information on the accessibility of its various parks. That information can help persons with disabilities plan on the parks that he or she wants to visit.
  7. While there may be something unique about every park, the final implementing regulations of title II of the ADA only require that the program as a whole is accessible and not that all access barriers, even those at the most iconic locations, be remedied.

VIII

Takeaways

  1. Standing to sue is not the same thing as winning on the merits and involves a lower standard than winning on the merits, which requires meaningful access. Standing requires the encountering of at least one barrier interfering with access and an intent to return or the person being deterred from returning as a result of that barrier.
  2. If a plaintiff proposes the terms of an injunction, those terms do not affect standing.
  3. If a class action is involved, standing is not lost if the plaintiff has not visited every facility covered by the class so long as the name plaintiff falls within the definition of the class.
  4. For ADAAG guidelines to be binding, DOJ adoption is required.
  5. This case is excellent for detailing what guidelines apply in a given situation. From my experience, even people who are in the business of assessing facilities for ADA architectural compliance can get thrown off balance on this score.
  6. Full and equal enjoyment of facilities by persons with disabilities, especially those with mobility impairments, can be a matter of inches.
  7. Just because no facility-specific category exists, that doesn’t mean the owner does not have to worry about the feature-specific obligation of §4 of the ADAAG.
  8. The Ninth Circuit cites to a technical assistance manual supplement. One has to wonder, especially with Justice Gorsuch now on the bench, how much deference such a memorandum will get in the future. For the deference to administrative interpretation issue, see this blog entry.
  9. The proper benchmark for measuring a slope of a ramp is the maximize localized variation, steepest point of the ramp.
  10. Program accessibility under title II of the ADA is measured against the entire program and not against a specific facility. Remember, architectural standards do apply for any new construction or alteration as do path of travel requirements. For discussion of what might be an alteration, see this blog entry.
  11. A variety of ways exist to get to program accessibility.

Many blog sites, such as this one which appears in my blogroll,  are reporting on a website accessibility case that went to verdict and found in favor of the plaintiff. The case is Gill v. Winn-Dixie Stores, Inc., 2017 U.S. Dist. LEXIS 90204 (S.D. Fla. June 13, 2017). As is usual, the case is divided into categories and they are: facts; court’s reasoning; terms of injunction; and takeaways. The reader is free of course to concentrate on any or all of the categories.

I

Facts:

Winn-Dixie is the owner and operator of a regional chain of grocery stores, some of which have pharmacies. In addition to its grocery stores, it has a website. That website was not accessible in a big way to individuals who use screen readers. As a result, the plaintiff could not for example: get coupons for shopping without having a friend read the coupon from a newspaper or by asking employees to find coupons for him; could not refill prescriptions online; and could not access subcategories on the website. Plaintiff travels with his laptop that contains screen reader software to several cities in Florida to participate in Paralympic events and wants to be able to find Winn-Dixie stores through their website because of its low prices. Both Publix and Walgreens have websites accessible to screen reader software. Winn-Dixie does not have an ADA policy for its website. For that matter, there is not an accessibility notice on its website. Winn-Dixie is taking steps to modify the website and will modify the website to make it accessible to persons with disabilities and is considering WCAG guidelines, among other things, in determining how to address the accessibility issue. Their present website has not been tested for use with universal screen readers. Executive management of Winn-Dixie is new with many of them coming from Australia where disability accessibility was mandated, and so that group decided to modify the website to make sure it is accessible to people with disabilities. There are six different third parties interfacing with the website and so those third parties may also have accessibility issues and Winn-Dixie is working with those parties. Winn-Dixie has set aside $250,000 to make its website accessible. Determining the appropriate standard for websites is not a simple matter because there are multiple screen readers and multiple browsers needing to be accommodated. The only way to have a digital coupon linking up to a customer’s reward card is through the website. When the website was created in September 2015, there was no discussion whatsoever about the website’s accessibility to persons with disabilities. Also, when the rewards program was rolled out in early of 2017, website modifications were made at a cost of $7 million, but there was no effort to make the website accessible to people with disabilities.

II

Court’s Reasoning

  1. Winn-Dixie has set aside $250,000 for the project. There was testimony from a person whose company makes websites accessible saying that making the website accessible might cost as little as $37,000.
  2. The federal government’s access board through §508 of the Rehabilitation Act, finalized January 2017, virtually adopted the WCAG guidelines.
  3. Google, Chrome, Internet Explorer, and Safari comply with WCAG guidelines. For that matter, I use Mozilla Firefox and I have not had a problem. While I use voice dictation technology and not screen readers, chances are, though I can’t say definitively, that screen readers would have similar success on Firefox as to what I do. In fact, over the years Google has caused considerable difficulty for me with respect to my voice dictation software, though I don’t know if those problems haven’t been rectified; I am too scared to take a chance….
  4. Regardless of whether the cost for making the website accessible was $37,000 or $250,000, that cost pales in comparison to the $2 million the company spent in 2015 to open the website and the $7 million it spent in 2016 to remake the website for its rewards program. A Winn-Dixie employee unequivocally testified that making the modifications was feasible and that Winn-Dixie was currently in the process of making those modifications.
  5. Winn-Dixie has a legal obligation to require third-party vendors operating certain parts of their website to be accessible to persons with disabilities if they want to operate within the Winn-Dixie website.
  6. Plaintiff made sufficient allegations to show that he intends to return to Winn-Dixie stores if the website is made accessible.
  7. The 11th Circuit has said in Rendon v. Valleycrest Productions, Inc. that the plain language of title III of the ADA covers both tangible, physical barrier preventing a person with a disability from accessing a public accommodation as well as intangible barriers restricting a person with a disability’s ability to enjoy the defendant entity’s goods, services and privileges.
  8. Where a website is heavily integrated with physical store locations and operates as a gateway to the physical store locations, then a website is a service of the public accommodation and covered by title III of the ADA. As such, it isn’t necessary to decide whether the website itself is a place of public accommodation because the facts clearly demonstrate that the website is heavily integrated with Winn-Dixie’s physical store locations and operates as a gateway to the physical store locations.
  9. The ADA does not merely require physical access to a place of public accommodation. Rather, the ADA requires persons with disabilities be provided full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.
  10. Online pharmacy management, the ability to access digital coupons linking automatically to a customer’s rewards card, and the ability to find store locations are quite clearly services, privileges, advantages, and accommodations offered by Winn-Dixie’s physical store locations. Such services, privileges, advantages, and accommodations are critically important for individuals with visual impairments since it is difficult, if not impossible, for such individuals: to use paper coupons found in newspapers or in the grocery stores; to locate the physical stores by other means; and to physically go to a pharmacy location in order to fill prescriptions.
  11. Winn-Dixie corporate representative unequivocally testified that modifying the website to make it accessible for persons with visual impairments was feasible.
  12. Remediation measures conforming to WCAG 2.0 guidelines will provide the plaintiff and other consumers with visual impairments the ability to access Winn-Dixie’s website and permit the full and equal enjoyment of the services, facilities, privileges, advantages, and accommodation provided through their website.
  13. Plaintiff is entitled to injunctive relief and to attorneys’ fees to be worked out later through the attorneys’ fees process.

III

Injunctive Relief Terms

  1. Shall not, no later than __(date)__________, deny individuals with

disabilities, including the Plaintiff, the opportunity to participate and benefit

from the goods, services, facilities, privileges, advantages, and accommodations

provided through its website www.winndixie.com. The website must be

accessible by individuals with disabilities who use computers, laptops, tablets,

and smart phones.

  1. Shall not, no later than __(date)__________, provide individuals with

disabilities, including the Plaintiff, an unequal opportunity to participate and

benefit from the goods, services, facilities, privileges, advantages, and

accommodations provided through its website www.winndixie.com. The website

must be accessible by individuals with disabilities who use computers, laptops,

tablets and smart phones.

  1. No later than ________(date)_______, shall adopt and implement a Web

Accessibility Policy which ensures that its website conforms with the WCAG 2.0

criteria.

  1. No later than __(date)__________, shall require any third party vendors

who participate on its website to be fully accessible to the disabled by

conforming with WCAG 2.0 criteria.

  1. No later than __(date)__________, shall make publicly available and

directly link from the www.winndixie.com homepage, a statement of Winn-

Dixie’s Accessibility Policy to ensure the persons with disabilities have full and

equal enjoyment of its website and shall accompany the public policy

statement with an accessible means of submitting accessibility questions and

problems.

  1. No later than __(date)__________, and at least once yearly thereafter, shall

provide mandatory web accessibility training to all employees who write or

develop programs or code for, or who publish final content to,

www.winndixie.com on how to conform all web content and services with

WCAG 2.0 criteria.

  1. No later than __(date)__________, and at least once every three months

thereafter, shall conduct automated accessibility tests of its website to identify

any instances where the website is no longer in conformance with WCAG 2.0.

  1. If the Plaintiff believes the Injunction has been violated, he shall give

notice (including reasonable particulars) to the Defendant of such violation.

The Defendant shall have 30 days from the notice to investigate and correct

any alleged violations. If the Defendant fails to correct the violation, the Plaintiff

may then seek relief from the Court.

  1. In light of what the Court has already found to be the Defendant’s

sincere and serious intent to make its website accessible to all, this Injunction

will expire in three years.

 

IV

Takeaways

  1. This is the first case that went to trial and verdict dealing with web accessibility.
  2. Testimony showed that it would be a minimum of $37,000 to fix the website and perhaps as high as $250,000 to fix the website.
  3. You are always better off getting out in front of this from the get go rather than having do it later when someone calls you on it. Be sure to beta test it with persons with disabilities.
  4. It is a bit mind-boggling to me that the redesign of the website and the rewards program did not incorporate persons with disabilities into it at all. Legal malpractice?
  5. It would be interesting to see the laws in Australia. Many years ago, back in the early 90s in fact, I ran into an attorney from Australia at a place in Maine where I was vacationing, and he mentioned to me that Australia had a very similar approach to disability rights as the United States did with the ADA. This case may be an example of that.
  6. The case adopts the gateway theory for when a website must be accessible to persons with disabilities. We discussed that theory here. The gateway theory is definitely the trend in terms of trying to figure out when a website must be accessible to persons with disabilities.
  7. As a matter of preventive law, companies are going to want to look at the WCAG 2.0 guidelines when it comes to their websites.
  8. Title III entities are prohibited from contracting with other entities that discriminate on the basis of disability. 42 U.S.C. §12182(b)(1)(iii). Accordingly, companies want to make sure their third-party vendors that are integrated into their website are also accessible to people with disabilities.
  9. Don’t forget that screen readers are not the only issue. There are people who use voice dictation technology but not screen readers, such as myself. The two technology don’t always act the same way.
  10. This case correctly takes the contrary position to the case we discussed here when it says that it is not critical for a person to have to show up in the stores to have a claim against the store for an inaccessible website. In other words, the ADA goes beyond requiring physical access to a place of public accommodation to requiring that persons with disabilities are provided full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.
  11. By its injunctive relief terms, the court is equating title III’s meaningful access requirement with compliance with WCAG 2.0; a revolutionary approach.
  12. I will be surprised considering the tenor of the decision if Winn-Dixie appeals it. The court also specifically notes that Winn-Dixie is serious about fixing the problems and so that is another reason why I don’t think this case will be appealed. I get that, but by not appealing, you now have a case gone to verdict equating meaningful access with WCAG 2.0 even though the federal government has not taken a definitive position on that by regulations. This also raises the issue of why the case did not settle in the first place. A settlement, of course, would not have the same impact as a case tried to verdict where the defendant lost and WCAG 2.0 was imposed at the standard for meaningful access.
  13. The settlement agreement requires accessibility by individuals with disabilities with respect to their computers, laptop, tablet, and smart phones. Personally, I can tell you that voice dictation technology may have a way to go on laptops, tablets, and smart phones. Again, this decision focuses on screen readers and not on voice dictation technology, but companies would want to be aware that persons with disability use both and perhaps, as in my case, one or the other.
  14. The first two classes of the injunctive relief terms are confusing and threw me at first. They say the same thing except one refers to not denying individuals with disabilities… While the other refers to providing individuals with disabilities….
  15. A statement of accessibility policy will need to be on their webpage.
  16. At least once a year, Winn-Dixie will have to provide mandatory web accessibility training to all employees writing or developing programs or code on how to conform all web content and services with WCAG 2.0.
  17. Winn-Dixie will have to continually monitor its compliance with WCAG 2.0.
  18. The injunction continues for three years.
  19. Interesting that the injunction terms does not mandate the appointment of a person who job is to make sure that Winn-Dixie’s website is complying with the ADA. The company might want to do that anyway.
  20. When doing website audits, make sure the accessibility of the website works for people with multiple disabilities, for example persons who are deaf and use voice dictation technology, deaf-blind, etc. I have seen websites that are perfectly acceptable but break down when a user has multiple disabilities and uses technology to mitigate against that.
  21. I would expect plaintiff’s attorneys’ fees to be substantial.
  22. Good idea to have a website accessibility policy, alternative ways for solving any website accessibility issues, and a person in charge of all of that.
  23. When dealing with third parties, make sure you have an indemnification agreement, as discussed here.