Top ADA Cases of 2018

1. Top ADA Cases of 2018 Disability Consortium Meeting January 23, 2019 Presented by: Barry C. Taylor Rachel M. Weisberg

2. Outline of Today’s Presentation Important Cases and Settlements from 2018 • Definition of Disability • Title I: Employment • Common issues in Titles II and III • Title II: State and Local Government • Title III: Places of Public Accommodation • Questions

3. Definition of Disability

4. Fear of Future Disability: Regarded as and Association EEOC v. STME d/b/a/ Massage Envy-South Tampa 309 F.Supp.3d 1207 (M.D. Fla. 2018) • Employee given permission to take leave to visit sister in Ghana • Employee was then fired due to fear that she would get Ebola and infect employees and clients upon her return • Brought case under “regarded as” and “association” theories • Court: Found for employer (granted motion to dismiss) • Not regarded as having a current impairment • Cited EEOC guidance that impairment “does not include characteristic predisposition to illness or disease” • No association to someone with current impairment • Behavior is “deplorable” but not actionable • Note: EEOC filed notice of appeal, but did not pursue

5. Fear of Future Disability:Regarded as and Obesity Shell v. Burlington Northern Santa Fe Railway Co 2018 WL 1156249 (N.D. Ill. Mar. 5, 2018) (summary judgment) 2018 WL 6061473 (N.D. Ill. Nov. 20, 2018) (reconsideration denied, granted request for interlocutory appeal) • BNSF won’t hire anyone with BMI of 40+ for safety sensitive jobs • Stated reason: Individuals may develop sleep apnea, diabetes, heart disease which can manifest in “sudden incapacitation or serious impairment of alertness or cognitive ability” • Shell wasn’t hired because his BMI was 47.5; No other conditions • Court: Not regarded as due to obesity (not an impairment) • Court: But regarded as due to fear of developing conditions • “BNSF is acting based upon worst case scenario derived from precisely the sort of myth, fear, or stereotype which the ADA is meant to guard against”

6. Definition of Disability: Gender Dysphoria Doe v. Massachusetts Dept. of Corrections 2018 WL 2994403 (D. Mass. June 14, 2018) • Jane Doe is a transgender woman with Gender Dysphoria (GD) • She filed complaint about placement in men’s prison • MDOC: Argued GD is not a disability under the ADA • Court: Found for plaintiff (denied motion to dismiss) • GD is not categorically exempt: ADA excludes “gender identity disorders not resulting from physical impairments” - GD may result from physical causes—hormonal and genetic drivers • DSM definition requires attendant disabling physical symptoms • Status: Litigation remains ongoing But see Parker v. Strawser Constr., Inc., 307 F. Supp. 3d 744 (S.D. Ohio 2018)(finding plaintiff failed to plead that her GD was caused by a physical impairment or GD always resulted from a physical impairment).

7. Title I

8. Telework as a Reasonable Accommodation Mosby-Meachem v. Memphis Light, Gas & Water Division 883 F.3d 595 (6th Cir. 2018) • In-house attorney requested to telework for 10 weeks due to pregnancy-related complications • Attorney participated in a phone meeting where she was asked if she could perform each essential function of her job remotely, which she answered yes • Request was denied because company found physical presence to be an essential function of her position and because telework created concerns about confidentiality • Court: Denied employer’s motion for summary judgment • Jury: Returned verdict for employee - $92,000 in $ damages • 6th Circuit: Upheld jury verdict

9. Telework as a Reasonable Accommodation • Distinguished EEOC v. Ford Motor Co. (en banc), which held that that regular, in-person attendance is essential to most jobs • “[W]e expressly did not preclude teleworking in all cases.” • Evidence employee worked remotely successfully in the past • Request was for a limited period • Here, sufficient evidence to support jury verdict • Colleagues who said it wouldn’t be a problem • Employee’s past experience – never tried cases or took depositions • Despite evidence to the contrary • Job description; testimony of two former attorneys But see Yochim v. Carson, 2018 WL 5264247 (N.D. Ill. Oct. 23, 2018) (granting summary judgment to HUD when attorney wanted to telework full-time but was offered various other accommodations)

10. Leave as a Reasonable Accommodation • Recall Severson v. Heartland Woodcraft, 872 F.3d 476 (7th Cir. 2017) • “An employee who needs long-term medical leave cannot work and thus is not a ‘qualified individual’ under the ADA.” • Limiting leave to “a couple of days or even a couple of weeks” EEOC v. S&C Electric Co. 303 F.Supp.3d 687 (N.D. Ill. 2018) • Employee had 12-month disability leave per company policy • Provided authorization to return with no restrictions • Employer suggested he retire; employee declined and was fired • Court: Denied motion to dismiss; distinguished Severson • Employer’s argument that employee had no ADA protections b/c he had been on medical leave for 12 months = “nonsense” • Plaintiff was ready, willing and able to return when fired • Status: Parties in discovery

11. Failure to Accommodate D’Onofrio v. Costco 15-cv-62065 (S.D. Fla June 11, 2018) • Long-time Deaf employee brought case under state law • Alleges problems began after a new supervisor started • Costco bought VRI but didn’t properly use it • Otherwise struggled to communicate • Disciplined for “yelling” and being “loud and aggressive” • Eventually fired due to disability • 2017: Court denied Costco’s motion for summary judgment • 2018: Jury verdict for employee for failure to accommodate • $775,000 in damages (compensatory and punitive) www.miaminewtimes.com/news/costco-ordered-to-pay-775000-to-deaf-miami-employee-fired-for-being-too-loud-10482114

12. Accommodations and Adverse Actions Exby-Stolley v. Bd. of Cty. Commissioners 906 F.3d 900 (10th Cir. 2018) • Plaintiff broke her arm, requiring surgery and restrictions • Dispute about accommodations process; plaintiff was ultimately assigned to part-time duty (+ work comp) – she later resigned • Jury: Found for employer. Court instructed jury that accommodation claim requires “adverse employment action” • 10th Circuit: Affirmed. Adverse employment action is required for all discrimination claims, even failure to accommodate • Dismisses other circuit decisions as dicta • Suggests failure to accommodate may be its own an adverse action but not the case here • Dissent re: EEOC guidance, legal scholarship, other circuits • Status: 10th Circuit will rehear case en banc CompareEEOC v. AutoZone, 630 F.3d 635, n.10 (7th Cir. 2010)

13. Modification of Company Policy and Termination EEOC v. Dolgencorp (Dollar General) 899 F.3d 428 (6th Cir. 2018) • Employee w/ diabetes asked for permission to keep orange juice with her when she worked the store alone – told no, against policy • Had 2+ hypoglycemic episodes when working store alone so drank orange juice, then immediately paid for it and told manager - fired • Jury trial: Found for plaintiff ($277,000 award + fees) • 6th Circuit: Affirmed jury verdict • ER can’t now argue that EE didn’t need an accommodation b/c she could have carried glucose tablets – no interactive process • Disparate treatment case doesn’t require bias/animus - can’t unreasonably reject request for policy modification and then use policy as a “neutral basis” for termination • Plaintiffs’ fees were not duplicative of EEOC

14. Medical Exams: Follow up Testing EEOC v. BNSF Railway Co. 902 F.3d 916 (9th Cir. 2018) • EE disclosed back injury from 4 years ago – no current pain • ER required current MRI – employee’s MRI was two years old • Employee’s insurance wouldn’t pay cost of MRI because he was asyptomatic; he could not afford to pay cost; offer revoked • 9th Circuit: Found for employee (affirmed judgment on liability) • ADA authorizes testing that may disproportionately affect persons with disabilities; but does not authorize further burdening prospective employees with the cost of the testing • Cannot impose additional cost only on people with disabilities • “[E]ffectively preclude many applicants, which is at odds with the ADA’s aim to increase opportunities for persons with disabilities”

15. Retaliation: Broad Interpretation Lawton v. Weil Foot & Ankle Inst., LLC 2018 WL 5808462 (N.D. Ill. Nov. 6, 2018) • Dr. Lawton worked for Weil Foot and Swedish Covenant Hospital • In 2017, Dr. L filed lawsuit against Weil for disability discrimination • Dr. A is a member of Weil and co-director at Swedish • Dr. A yelled during a meeting that he was being sued by Dr. L • Dr. L’s relationship with Hospital became strained – then fired • Court: Found for employee (denied motion to dismiss) • Sufficient to plead retaliation: Engaged in protected activity; relationship changed after Hospital learned; Hospital fired him • ADA’s retaliation protects extend to Swedish even though Dr. L’s lawsuit was against Weil (“any employer”) • Status: Parties are in discovery

16. EEOC ADA Settlement Roundup • Cato Corporation – will pay $3.5 million after making employees with disabilities take unpaid leaves and/or firing them www.eeoc.gov/eeoc/newsroom/release/12-10-18.cfm • Greektown Casino – will pay $140,000 after refusing to grant extended leave and firing employee with stress-anxiety disorder www.eeoc.gov/eeoc/newsroom/release/1-24-18a.cfm • Macy’s – will pay $75,000 after terminating employee with asthma who missed one day of work due to a medical emergency www.eeoc.gov/eeoc/newsroom/release/4-18-18a.cfm • Kentucky Fried Chicken – will pay $30,000 after firing employee for taking bi-polar medication www.eeoc.gov/eeoc/newsroom/release/2-1-18.cfm • Cheesecake Factory – will pay $15,000 to deaf employee and provide captioning for training and orientation videos www.eeoc.gov/eeoc/newsroom/release/2-1-18b.cfm

17. Ministerial Exception Grussgott v. Milwaukee Jewish Day School 882 F.3d 655 (7th Cir. 2018) • Teacher with brain tumor fired after confrontation with parent • 7th Cir: Found for school (affirmed summary judgment) • 2012: Supreme Court adopted the “ministerial exception” • Here, school is a religious institution entitled to exception • Even though it does not follow Orthodox principles, not run by a rabbi and has nondiscrimination policies • Here, teacher was a minister • Expected to integrate religious teachings in lessons; religious functions: teaching about Jewish holidays, prayer and Torah • Belief that Judaism is a culture did not change analysis Biel v. St. James Sch., 911 F.3d 603 (9th Cir. 2018) (ministerial exception did not bar former teacher’s ADA case)

18. Title II/III

19. Website Accessibility:“Nexus” Legal Theory Haynes v. Dunkin’ Donuts 2018 WL 3634720 (11th Cir. July 31, 2018) • DD: Website is not a “place of public accommodation” • 11th Circuit: Website has a “nexus” to a physical store as website allows customers to locate physical store locations; purchase gift cards Gomez v. General Nutrition Corporation 323 F.Supp.3d 1368 (S.D. Fla. 2018) • Court: Granted summary judgment to plaintiff on liability • Website has a “nexus” to a physical store as it allows customers to purchase products, learn about sales and find stores • Ability to buy products remotely is a service of physical stores • No decision on remedy; cases applying WCAG 2.0 “highly persuasive” Note: Nexus test is not the law in IL and many websites are national

20. Website Access: WCAG & Due Process Robles v. Dominos Pizza LLC 2019 WL 190134 (9th Cir. Jan. 15, 2019) • Plaintiff challenged accessibility of website and mobile app • During litigation, Dominos added 24/7 telephone alternative • District court: Granted motion to dismiss without prejudice due to lack of DOJ regulations; called on Congress/DOJ to set standards • 9th Cir: Reversed/remanded – three holdings • #1: The ADA applies to Domino’s website and app because it requires places of public accommodation (like Dominos) to provide effective communication • It doesn’t matter that the services are provided via website/app because ADA applies to services of a place of public accommodation not just services in a public accommodation • Here, the website/app connected customers to the goods and services of Dominos physical restaurant (nexus)

21. Website Access: WCAG & Due Process • #2: No due process violation • The ADA is not impermissibly vague and DOJ has been clear on its position that the ADA applies to websites since 1996 • Plaintiff didn’t seek to impose liability for failing to comply with WCAG 2.0 but rather sought that as a possible remedy • Lack of regulations doesn’t eliminate a statutory obligation • #3: Primary jurisdiction would cause unnecessary delay • Given withdrawal of ANPRM, delay is inevitable • Courts are “perfectly capable” of determining whether plaintiff had effective communication Note: Amicus briefs filed by disability community, inc. NDRN See also Gil v. Winn-Dixie, 257 F.Supp.3d 1340 (S.D. Fla. 2017) (awaiting decision from 11th circuit; lower court granted judgment to plaintiff following bench trial and ordered compliance with WCAG 2.0)

22. DOJ Letter about Website Accessibility DOJ letter dated September 25, 2018 • The DOJ “first articulated its interpretation that the ADA applies to public accommodations’ websites over 20 years ago. This interpretation is consistent with the ADA’s title III requirement.” • The DOJ “has consistently taken the position that the absence of a specific regulation does not serve as a basis for noncompliance with a statute’s requirements.” • Public accommodations have flexibility without regulations • Noncompliance with a voluntary technical standard doesn’t necessarily show noncompliance with the ADA • Calls on Congress to “provide greater clarity through the legislative process” www.lflegal.com/2018/09/doj-cut/#Full-text-of-September-25-2018-Letter-From-the-US-Department-of-Justice

23. Effective Communication:ASL Interpreters Crane v. Lifemark Hospitals 898 F.3d 1130 (11th Cir. 2018) • Patient is deaf and has chronic depressive and anxiety disorders • Taken to hospital and evaluated under the “Baker Act” to see if he posed a direct threat to himself or others • Patient asked for interpreter – none provided for evaluation • Doctor used written notes and basic sign language skills • Interpreter provided two days later, after decision made • District court: Found for hospital • Medical records showed that the hospital met its duty to conduct an evaluation – thus, effective communication • 11th Cir.: Found for patient (reversed/remanded summ. judgment) • Focus is not whether medical personnel met the basic requirements of the Baker Act or made correct decision

24. Effective Communication:ASL Interpreters Two questions in ADA/Rehabilitation Act case seeking monetary relief: (1) Was communication effective; and (2) If not, was the defendant deliberately indifferent? • Effective communication: Focus is on patient’s equal opportunity to communicate medically relevant information • Here, jury could find patient could not communicate info • Patient said in affidavit he could not explain or detail feelings • Doctor notes acknowledged communication difficulties • Deliberate indifference: Hospital must know of harm to federally protected right and fail to act • Here, jury could find deliberate indifference • Medical notes acknowledged that the patient “was not able to understand the whole…process” and that “he had difficulty in expressing himself”

25. Administration ofMedication DOJ Agreement with Learning Care Group www.ada.gov/lcg_sa.html (2018) • The Learning Care Group (LCG) has 900+ child care centers • Policy: Will not administer insulin to children with T1 diabetes • Settlement Agreement: LCG will • evaluate reasonable modification requests on an individualized basis using objective evidence and current medical standards • train child care staff members to assist with routine diabetes care tasks, including the administration of insulin and emergency medication (glucagon) • pay $10,000 in compensatory damages to each of the eight aggrieved families See also DOJ Agreement with Kindercare www.ada.gov/kinder_care_sa.html (2018)

26. Service Animals Beradelli v. Allied Servs. Inst. of Rehab. Med. 900 F.3d 104 (3d Cir. 2018) • Elementary school student not permitted to bring her seizure alert animal to private school for kids with learning disabilities • Principal feared the animal would distract other students • Case brought under the ADA (Title III) and the Rehabilitation Act • District court: Under RA, must show request was “reasonable” • Issue on appeal: Do ADA’s rules on service animals apply to RA? Or a typical reasonable modification analysis? • 3rd Cir.: Service animals ≠ typical reasonable modification rules • ADA’s specific service animal rules apply under RA too But see Pettus v. Conway School District, 18-cv-872 (W.D. Ark. Jan. 2, 2019) (denying preliminary injunction after finding that plaintiff failed to show that service animal was “reasonable” in classroom)

27. Title II

28. Effective Communication: Accessible 911 Enos v. State of Arizona 2017 WL 553039 (D. Az. Feb. 10, 2017) • NAD and three individuals sued State and various local governments that play a role in providing 911 services • Current 911 services are inaccessible because plaintiffs can only call 911 with TTYs (now virtually obsolete) or via relay, which requires use of a high-speed internet connection • Plaintiffs asked for the ability to send texts to summon emergency help or report an emergency • Court: Allowed case to proceed (denied motion to dismiss) • Plaintiffs stated a claim under the ADA • They cannot use the 911 system outside their homes or areas with high-speed Internet access

29. Effective Communication: Accessible 911 Partial Settlement (filed with Court on 2/22/2018) • Parties to implement text-to-911 in Maricopa County • Replace outdated equipment necessary for program • Purchase and install ComTech Inc. software • Create and maintain policies for operation • Develop training program both on operation and interacting with callers who are deaf or hard of hearing • Awareness campaign using national slogan: “9-1-1: Call if You Can, Text if You Can’t” • Testing and monitoring for 18 months Settlement with the State (filed with Court on 7/2/2018) • Created a Text-to-911 Services Fund and made $1.3 million available for providers around state to implement services • Publish a Text-to-911 Implementation Plan Note: DOJ rulemaking on Text-to-911 withdrawn on 12/26/2017

30. Law Enforcement and Mental Health Vos v. City of Newport Beach 892 F.3d 1024 (9th Cir. 2018) • Man acting erratically and holding a pair of scissors at 7-Eleven • Screaming “kill me already, dog”; pretending to have a gun • Officer asked for backup and a “less-lethal projectile launcher” • Eight other officers arrived on scene; made a “v” formation • Officers had canine unit; “less-lethal” device; handgun; rifle • Man opened door and ran with object over his head • Officers yelled to drop weapon; he didn’t, kept running • Officer yelled “shoot him” – intended for less-lethal but two officers fired rifles. Shot four times and died from wounds • About 20 minutes between officers on scene and shooting • Officers testified that they believed the object to be scissors • Man had schizophrenia; amphetamine and methamphetamine

31. Law Enforcement and Mental Health • Parents filed suit for excessive force and ADA/Rehab Act • 9th Circuit: Found for parents (reversed/remanded MSJ) • Officers had time and opportunity to assess the situation and potentially use accommodations of de-escalation, communication, or specialized help • Not necessarily an immediate threat (which goes to excessive force)  this also informs the ADA reasonableness analysis • Police outnumbered him 8:1; did not have gun • Officers had less-lethal methods available including canine unit • Had 15+ minutes to create a perimeter, assemble less-lethal means, coordinate a plan for use of force • Man was “mentally unstable, acting out” and inviting officers to use deadly force on him – all indications of mental illness

32. Correctional Facilities:Physical Access Roberts v. Dart 2018 WL 1184735 (March 7, 2018) • Plaintiff with leg amputation required grab bars to safely use toilet • Housed in Cook County Jail’s Residential Treatment Unit • ADA-compliant room = 364 days. Non-compliant room = 243 days • In non-compliant room, forced to depend on correctional officer to take him to a common restroom with grab bars • Sometimes not permitted to go; fell twice in his cell • Court: Found for plaintiff (granted summary judgment) • Letting Roberts use dayroom bathroom is not sufficient—not always permitted to go and left him dependent on others • Violation constituted deliberate indifference. Acted despite knowledge of risk of harm • Status: Case settled

33. Correctional Facilities:Effective Communication McBride v. Michigan Dep’t of Corrections 294 F.Supp.3d 695 (E.D. Mich. 2018) • Class action of deaf and hard of hearing inmates • Asserted systemic failure to provide auxiliary aids/services • Court: Found for plaintiff (granted motion for summary judgment) • MDOC violated ADA by failing to provide video phones • MDOC asserted defense of “possible safety concerns” but failed to explain why traditional safety policies were insufficient • Must have communications that “are as effective” as communications with others – Defendants’ own witness compared TTY system to “sending someone a fax to their homes versus an email to communicate” • Ordered: Video phones for all deaf/hard of hearing prisoners

34. Correctional Facilities:Effective Communication • Violated ADA by failing to provide ASL interpreters • Before lawsuit – no interpreters during high-stakes interactions • After lawsuit – some advancements but still problems • Real risk ADA violations will continue without court order • MDOC must provide accommodations for religious services – even though they are “voluntary” and led by volunteers • Ordered: Provide necessary auxiliary aids to participate equally in programs, including ASL interpreters for all “high-stakes” interactions, including religious services • Ordered: Mandatory training on how to identify and appropriately interact with deaf and hard of hearing inmates • Status: Settlement reached; motion on preliminary approval of class settlement held 1/10/2019 See also Holmes v. Baldwin settlement (2018): www.equipforequality.org/wp-content/uploads/2018/09/Holmes-Settlement-Agreement-all-attachments.pdf

35. Zoning Discrimination Valencia v. City of Springfield 883 F.3d 959 (7th Cir. 2018) • City defines “family care residence” as home occupied by a group of no more than six unrelated persons with disabilities, plus paid professional support • Restricts “family care residence” from being located within 600 feet of another such facility • Provider (IAG) worked with clients to lease property from landlord for use as a CILA • Complaint was filed against IAG – another CILA within 600 feet • IAG tried various methods of approval and exception – all denied • Filed lawsuit under ADA, Fair Housing Act and Rehabilitation Act • District court: Found for plaintiffs (granted preliminary injunction) • Intentional discrimination + failure to accommodate

36. Zoning Discrimination 7th Cir: Found for plaintiff (affirmed decision) • Analyzed reasonable accommodation theory • Here, suitable group homes are in short supply so exceptions are necessary for equal opportunity • “In the context of a zoning waiver, equal opportunity means the opportunity to choose to live in a residential neighborhood.” • City argued: Not about equal opportunity – no provision for three unrelated non-disabled adults to live in the same home. • Court: Found theory “dubious” -- City had no record enforcing prohibition against three unrelated non-disabled adults • Benefits outweigh potential costs • No evidence of excess calls to police or emergency services; no issues; no intangible costs (traffic concerns)

37. Title III

38. What is a Place of Public Accommodation Silguero v. CSL Plasma, Inc. 907 F.3d 323 (5th Cir. 2018) • CSL Plasma is a plasma collection center • Pays anyone who passes screening test to donate plasma • 2 people excluded due to mobility disabilities and service animal • Issue: Is CSL Plasma a place of public accommodation? • 5th Cir: No. Affirmed MSJ – not a “service establishment” • “Service” implies benefit to customers and no benefit here • Differs from other service establishments in definition • Structure of ADA indicates that an establishment does not pay a customer for a service it provides – contrast Title I But see Levorsen v. Octapharma Plasma, Inc., 828 F.3d 1227 (10th Cir. 2016) (finding plasma center a “service establishment”)

39. Ride Share Companies Access Living v. Uber Technologies 2018 WL 6603633 (N.D. Ill. Dec. 17, 2018) • Plaintiffs = 3 AL employees/volunteers; AL as organization • Court: Found for plaintiffs (denied MTD/judgment on pleadings) • Standing – deterrence can be an “injury-in-fact” • Broadly interpreted obligation to provide “equivalent services” • Confirmed a “place of public accommodation” does not need to be a physical space - Uber may be a public accommodation • Uber may be private entities “primarily engaged in the business of transporting people” – Section 12184 • Not required to affirmatively ask for modification - on notice • Court: Dismissed AL as plaintiff; didn’t allege direct discrimination See also Crawford v. Uber Technologies, 2018 WL 1116725 (N.D. Cal. March 1, 2018) (denying motion for judgment on pleadings)

40. Effective Communication: Audio Descriptions American Council of the Blind et al v. Hulu LLC 17-cv-12285 (D. Mass. Oct. 17, 2018) • Hulu offers online streaming services to over 20 million subscribers; no content currently includes audio description • Settlement (highlights): • Begin obtaining audio description tracks for as much streaming content as possible (commercially reasonable efforts to obtain existing AD; request AD assets in all new contracts; provide AD as soon as possible for Hulu-controlled content) • Create option for users to enable and disable this feature, like closed captioning • Filter content based on availability of audio description • 1/1/2020: Mobile app to comply with BBC Mobile Accessibility Standards; Website to comply with WCAG 2.1, AA

41. Effective Communication: Live Theater Childress v. Fox Associates, LLC 2018 WL 1858157 (E.D. Mo. April 18, 2018) • Fox provides limited captioning—but only certain performances, dates, and line-of-sight captioning is limited to accessible seats • Court: Found for plaintiffs (granted MSJ; injunctive relief) • Hearing patrons have expansive selection of performances and are not limited to only one date - “not equal” • OK to limit line-of-sight captioning to accessible seating area • Relief: Open/closed captioning at all performances when requested; publicize availability; permit purchasing tickets by non-telephone mail; provide hands-free, line-of-sight captioning devices in areas designated as accessible and handheld captioning in other seating • Status: Appealed; parties submitted briefs

42. Architectural Access:Temporary Barriers Hillesheim v. Myron’s Cards and Gifts 897 F.3d 953 (8th Cir. 2018) • Plaintiff asserted that displays and excess merchandise in boxes obstructed aisles so they were not the required 36” wide • MTD: Temporary or removable obstructions do not violate ADA • Plaintiff sought to file amended complaint, stating that he visited the store 15+ times and aisles were always obstructed • Dist. Ct: Found for store (temp objects are not ADA violations) • 8th Cir: Found for plaintiff (reversed and remanded) • Obstruction is not isolated/temporary unless promptly removed • Lower court’s holding is too broad See also Thomas v. Kohl’s Corp., 2018 WL 704691 (N.D. Ill. Feb. 5, 2018) (spacing of moveable display racks are governed by the “readily achievable” standard and rejecting “customer service defense”)

43. QUESTIONS?