Legal Update on Title III Case Law: Title III ADA Hot Topics

1. Legal Update on Title III Case Law: Title III ADA Hot Topics Sponsored by: ADA Minnesota and Minnesota Vocational Rehabilitation October 19-20, 2009 Presented by: Barry Taylor, Legal Advocacy Director and Alan Goldstein, Senior Attorney atEquip for Equality Materials Prepared Under a Grant from the DBTAC: Great Lakes ADA Center

2. Webinar Outline • Title III Overview • Pre-Litigation Notice • Standing to Sue • Readily Achievable Barrier Removal • Website Access • Auxiliary Aids / Communication Access • Emergency Preparedness • Service Animals • Enforcement • Resources for future reference

3. Title III Overview

4. Title III Statute and Regulations • No discrimination in “full and equal enjoyment” of goods, services, facilities, privileges…, or accommodations...” • Prohibits “eligibility criteria that screen out or tend to screen out...” • Reasonable modifications absent “fundamental alteration.” • Auxiliary aids & services required absent “fundamental alteration” or “undue burden” (significant difficulty or expense). • Prohibited Discrimination may include:Denial of participation, unequal benefits, or separate benefits. • Note: Title III regulations are being revised. 42 U.S.C. §§ 12182(a), (b); 28 C.F.R. § 36.303(a).

5. Other Title III Provisions • Discrimination is prohibited whether it is “done directly, or through contractual, licensing, or other arrangements…” 42 U.S.C. §§ 12182(b)(1)(A)(i-iv). • “Goods, services, … shall be afforded… in the most integrated setting appropriate to the needs of the individual.” 42 U.S.C. §§ 12182 (b)(1)(B). • Personal devices and services are not required. • “… such as wheelchairs; …prescription eyeglasses or hearing aids; or services of a personal nature including assistance in eating, toileting, or dressing.” 28 C.F.R. § 36.306 • Direct threat and safety issues apply (similar to Title I criteria). 28 C.F.R. § 36.208.

6. Pre-Litigation Notice

7. Standing: Pre-litigation Notice General Rule • Notice is not required prior to filing a Title III lawsuit. • Courts have rejected arguments that pre-litigation notice is required under Title III. See, e.g., Molski v. Evergreen Dynasty Corp., 2007 WL 2458547 (9th Cir. 2007). • No Title III requirement to exhaust administrative remedies. • Filing with DOJ or another agency does not toll S/L.

8. Standing: Pre-litigation Notice ADA Notification Act of 2009 (H.R. 2397) • Would require plaintiff to give a Title III entity written notice of an alleged violation before filing suit. • Would allow the entity 90 days to correct alleged violations before a Title III law suit could be filed. • Bill is a reaction to aggressive ADA Plaintiffs • Queries: • Are there other civil rights laws with similar provisions? • Is the fact that the ADA is 19 years-old relevant? • Are legal rules forbidding meritless claims underutilized?

9. Standing to Sue

10. Standing - Overview General Standing Requirements: • Plaintiff must suffer a personalized and concrete injury-in-fact of a legally cognizable interest • The injury must be traceable to the defendant’s conduct • It must be likely, rather than speculative, that the injury is redressable through a favorable court decision Title III Standing Requirements: • Plaintiff must show harm from lack of ADA compliance • Accessibility issues must relate the plaintiff’s disability • Must show a likelihood of future harm • Plaintiff must not be a “vexatious” or “frivolous” litigant

11. Standing – Allegation of future harm • Must show likely, rather than speculative plans to return. • Four factors: • Proximity of the business to the plaintiff’s home, • Plaintiff’s past patronage of the defendant’s business, • Definiteness of the plaintiff’s plans to return, and • Frequency of travel near the business. Ault v. Walt Disney World, 2008 WL 490581 (M.D. Fla. 2008). • No possibility of future harm for Plaintiff who asserted denial of services due to blindness where: • Plaintiff moved away from the clinic and • Doctor stopped providing insemination services. Chambers v. Melmed, 141 Fed. Appx. 718, 720 (10th Cir. 2005).

12. Standing – Allegation of future harm Access 4 All, Inc. v. OM Mgmt., LLC, 2007 WL 1455991 (S.D. Ohio 2007). • Plaintiff could challenge a hotel’s architectural barriers without alleging future intentions to return as holding otherwise would require an “exercise in futility.” Castaneda v. Burger King, 597 F.Supp.2d 1035, 1042 (N.D. Cal. 2009). • Plaintiff may challenge the wheelchair-accessibility of 90 different restaurants even though he only frequented two of them, as the restaurants shared common designs and discriminatory practices. Van Brocklen v. Gvnmt. Employees Ins. Co., WL 414053 (N.D.N.Y. 2009). • When an insurance company cancelled a person’s policy after a “panic attack,” the harm was ongoing as it affected his ability to get medical care.

13. Standing and the Inquiry of Vexatious Litigation • Some people have filed a lot of ADA lawsuits sometimes settling for money without accessibility improvements. • Some courts use extra diligence to avoid a “legal shakedown scheme. • These situations have been called, “Drive-by lawsuits.” • This term is disfavored by some. • Courts determine a plaintiff’s credibility by looking through a plaintiff’s litigation history and inquiring into: • The number of ADA lawsuits filed, • The frequency that the plaintiff settled the lawsuit, trading accessibility compliance for a cash settlement, • The merits of the claims brought, and • Whether the plaintiff did actually return to establishments.

14. Standing and the Inquiry of Vexatious Litigation - example Molski v. Evergreen Dynasty Corp., 2007 WL 2458547 (9th Cir. 2007). • Plaintiff was called a “vexatious litigant” filing over 400 ADA suits, the majority of which rested on complaints which were not credible. • Plaintiff’s real motivation was to extract money. • Court denied standing and required leave of court for new filings. Harris v. Stonecrest Auto Care Center, LLC, 472 F.Supp.2d 1208, 1217 (S.D. Cal. 2007). • Testers do not have standing – their claim cannot be redressed. Park v. Ralph’s Grocery Co., 254 F.R.D. 112, 119 (C.D. Cal. 2008). • Motive for returning is irrelevant – only look at an “intent to return.”

15. Readily Achievable Barrier Removal

16. Readily Achievable Standards • Discrimination includes a failure to remove architectural and communication barriers where “readily achievable.” • Alternative methods should be used where barrier removal is not readily achievable. 42 U.S.C § 12182(b)(2)(A)(iv-v). • “Readily achievable means easily accomplishable… without much difficulty or expense... Factors include: • Nature and cost of the action needed under this part; • The overall financial resources of the site…; the effect on expenses and resources; legitimate safety requirements…; or the impact …upon operation[s]…; • Financial resources of any parent corporation… and • The type of operation or operations of any parent corporation …” 42 USC § 121821 (9)(A-D); 28 C.F.R. § 36.104.

17. Readily Achievable –Norwegian Cruise Lines Case Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119 (2005). • People with disabilities & companions alleged physical barriers on ships denied access to: • Emergency evacuation equipment, public restrooms, restaurants, swimming pools, elevators and cabins with a balcony or a window. • Additional alleged violations: • Requiring only passengers with disabilities to sign medical liability waivers and to travel with companions; • Reserving the right to remove passengers with disabilities if they endangered other passengers' comfort; and • Failing to make reasonable modifications. • Cruise Line Defense: Requested modifications would violate international standards and treaties.

18. Supreme Court Ruling – Norwegian Cruise Lines • ADA’s limitations prevent requirements that conflict with international obligations or threaten safety. • Absent a statement in the text, a statute does not apply to the internal operations of foreign-flagged ships. • Use of the disjunctive term between “difficulty or expense” indicates considerations other than cost may apply. • Changes affecting internal operations could be a defense. • Most violations alleged here do not relate to a ship’s internal affairs. Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119 (2005).

19. Readily Achievable – Lease Issues • Restaurant rest room lacked grab bars & a wide doorway. • Lease: No alterations by Lessee “without… written consent.” • Patron sued the lessor and lessee. • Court: ADA covers “any person who owns, leases(or leases to),or operates a place of public accommodation.” 42 U.S.C. §§ 12182(a)(emphasis added). • Both the landlord & tenant are public accommodations. • Landlord & tenant may “allocate responsibility for compliance…,” but this does not affect [a tenants‘] obligations. • Length of a lease or the time remaining is relevant. Grove v. De La Cruz, 407 F.Supp.2d 1126 (S.D. Cal. 2005); Clark v. Simms, 2009 WL 890685 (W.D. Va. 2009).

20. Readily Achievable – Time for Wine In An Historic Building • Historic winery had steep exterior ramp & interior barriers. • Winery had built an accessible exterior gazebo for $23,994. • Other renovations included: accessible ramp and a “big bell.” • ADAAG: Compliance required “to the maximum extent feasible.” • Barrier removal is not readily achievable if it would “threaten or destroy the historic significance of a [designated historic] building or facility...” (citing DOJ TAM § III-4.4200); 28 C.F.R. § 36.405(a). • Court: Barrier removal inside was readily achievable, hence external gazebo not a reasonable accommodation. • Disadvantage for those who could access wine-tasting room. • Court looked at “maximum participation possible...” Molski v Foley Estate Vineyards..., 531F.3d 1043 (9th Cir. 2008).

21. Website Access

22. Overview of Inaccessible Websites and Title III Barriers: Many people with disabilities are unable to access information on websites because of a variety of barriers that exist. ADA Silent on Websites: The ADA does not specifically reference websites because the Act was passed in 1990 before the Internet became an integral element of our society.

23. Title III - Place of Public Accommodation • Issue: Is a physical space required for a “place” of public accommodation? • Physical Space Required: Some courts require a physical space in order to be covered by Title III, which would likely mean that websites are not covered. • Physical Space Not Required: Other courts do not require a physical space. In Doe v. Mutual of Omaha, the 7th Circuit did not require a physical space and listed websites among the entities that are covered by Title III. Doe v. Mutual of Omaha 179 F.3d 557, 559 (7th Cir. 1999).

24. Title III - Website Accessibility Case Examples Access Now v. Southwest Airlines, 227 F.Supp.2d 1312 (S.D. Fla. 2002). • Issue: group sued Southwest Airlines claiming its website was inaccessible violating Title III. • Case dismissed: website did not exist in a geographical location, so it was not a place of public accommodation. • On Appeal: plaintiffs changed their argument claiming that the website was part of a “travel service” and therefore, covered by Title III. Appeal dismissed because new argument was inappropriately first raised on appeal. • Query: Should have this been decided under the ACAA?

25. Title III - Website Accessibility Case Examples National Federation of the Blind v. Target Corp., 452 F.Supp.2d 946, 956 (N.D. Cal. 2006). • Claim: Target violates Title III and state law because its website is inaccessible. • Court Decision: Target’s Motion to Dismiss was denied. • Rationale: To the extent that the inaccessibility of Target’s website impeded full and equal enjoyment of goods and services offered in Target stores, the plaintiffs stated an ADA claim. Target’s website has a “nexus” to Target stores, which are places of public accommodation.

26. Title III - Target Settlement • Bring website into compliance. • Including enabling website to work with screen-reading software for information and transactions. • Pay $6M into a fund for individuals • Pay NFB to certify site & monitor compliance for 3 years. • Pay NFB to train Target’s web developers on accessibility. • Review and respond to quarterly reports of complaints on web access. • Install tactile point-of-sale devices in all stores • Target admits no fault or inaccessibility. • Payment of legal fees was not finalized.

27. Website Accessibility Achieved Via Structured Negotiations Some changes to website accessibility have been achieved via structured negotiations. Attorney Lainey Feingold is a leader in this area and lists settlements at www.lflegal.com. • April, 2008: RiteAid agreed to make website accessible. • If there is a visual “Captcha,” or scrambled word designed to enhance the security of the website, RiteAid will ensure that there is also an alternative security measure that is equally effective and accessible to blind users. • RiteAid will install tactile point-of-sale devices in all stores. • April, 2009: Staples agreed to make its website accessible and install tactile point-of-sale devices in all stores.

28. Conclusion Case Law: The case law is still developing as to whether there is a cause of action under the ADA for inaccessible websites. Best Practice: Employers, public entities and private businesses should make their websites accessible to achieve the underlying purpose of the ADA to promote the full participation of people with disabilities in our society. Note: There are different standards for web accessibility.

29. Auxiliary Aids and Services / Communication Access

30. Auxiliary Aids and Services – In General • (a) General. ..[E]nsure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless … taking those steps would • fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or • … result in an undue burden, i.e., significant difficulty or expense. • If there is a fundamental alteration or undue burden, an alternative auxiliary aid or service should be provided to ensure effective communication to “the maximum extent possible…” 28 C.F.R. § 36.303.

31. Communication Access – People Who Are Deaf or Hard of Hearing (b) … The term “auxiliary aids and services” includes -- • (1) Qualified interpreters, notetakers, computer-aided transcription services, … assistive listening systems, … open and closed captioning, [TTYs], videotext displays, or other effective methods of making aurally delivered materials available to individuals with hearing impairments (sic). • Qualified Interpreter: “… an interpreter who is able to interpret effectively, accurately and impartially both receptively and expressively, using any necessary specialized vocabulary.” 28 C.F.R. § 36.303(b)(1).

32. Communication Access – People With Visual Impairments (b) … The term “auxiliary aids and services” includes -- • (2) Qualified readers, … audio recordings, Brailled materials, large print materials, or other effective methods of making visually delivered materials available to individuals with visual impairments; • (3) Acquisition or modification of equipment or devices; • and (4) Other similar services and actions. (c) Effective communication. A public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.

33. Communication Access – Additional Info • The Analysis to this regulation makes it clear that Congress, as well as the Department of Justice, "expects that public accommodations will consult with the individual with a disability before providing a particular auxiliary aid or service." • The Department of Justice further stated: It is not difficult to imagine a wide range of communications involving areas such as health, legal matters, and finances that would be sufficiently lengthy or complex to require an interpreter for effective communication. 56 Fed.Reg. at 35567.

34. Communication Access – In General DOJ TAM § 4.3200 • It’s up to the public accommodation to ultimately decide what measures to take “to ensure effective communication…provided that method chosen results in effective communication.” • What constitutes effective communication will vary with each individual with a disability, and “the type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the length and complexity of the communication involved.”

35. Communication Access – Writing Notes Majocha v. Turner, 166 F.Supp.2d 316 (W.D. Pa. 2001). • Individual who is deaf requested an interpreter when speaking with an ENT specialist about his infant son but the Dr.’s office wanted to write notes instead. • Dr. sent a letter saying appointment was cancelled, “we feel we cannot meet your needs in caring for your child.” • Dr. cited that “note taking” is listed as an example of acceptable auxiliary aids. • Court: A genuine issue of fact existed as to whether note taking could be considered an effective form of communication in the health care setting.

36. Communication Access – An Accommodations Response • If no attempt is made to provide an auxiliary aid, and one would be effective, there will be liability for discrimination for failing to provide effective communication. SeeNaiman v. New York University, 1997 WL 249970 (S.D. NY 1997). • When a hospital tried unsuccessfully to secure an ASL interpreter, it did not violate the ADA although it may have been negligent for failing to follow up on that request. • Failure is not deliberate indifference to Plaintiffs' rights. • Therefore no damages under Rehab Act. • As Plaintiff did not plan to return, no injunctive relief. Constance v. State of New York Health Science Center at Syracuse, 166 F.Supp.2d 663, 668 (N.D. N.Y. 2001).

37. Communication Access – An Accommodations Response • A person who is legally blind but able to read large print asked a restaurant without LP to read the menus to her. • Employees made fun of her, stared at her, and forced her to wait until customers behind her in line were served. • District court dismissed the case for lack of standing as plaintiff was always permitted to eat at the restaurants thus suffered no cognizable harm under the ADA. • 2nd Circuit Court of Appeals reversed and remanded - plaintiff had sufficiently alleged that the restaurants did not ensure “effective communication” of their menu items. Camarillo v. Carrols Corp., 2008 WL 341554 (2nd Cir. Feb. 8, 2008).

38. DOJ Settlement • In one case, a hospital failed to provide a qualified sign language interpreter, a TTY, and a captioned television. • Patient who was deaf was unaware of why the hospital was performing various tests on him. • Hospital “improperly imposed” upon wife and others to interpret. • Through the settlement, the hospital agreed to provide: • Appropriate auxiliary aids by assessing patient/companion needs. • Notice to the community and hospital personnel regarding policy. • Train personnel to ensure effective implementation of the policy. • The agreement also contains information reciting the circumstances, methods, and timelines for providing interpreters.

39. Emergency Preparedness

40. Overview of Some Issues Regarding Emergency Preparedness • Are emergency egress points accessible • Auditory and visual components of alarms • Areas of rescue assistance • Signage • Providing info to first responders & privacy issues • Can a person with a disability pose a direct threat in an emergency due to their disability?

41. Emergency Preparedness Planning - Egress & Alarms • Emergency egress required by local codes must meet ADAAG. Access 4 All v. Atlantic Hotel Condominium Association, 2005 WL 5643878 (S.D.Fla. Nov. 23, 2005). • Egress not accessible if through a “staff only” door and kitchen. Access Now v. Ambulatory Surgery Center Group, LTD 2004 WL 3045404 (Md.Cir.Ct. Dec. 20, 2004). • When placing visual alarms, hospitals can consider: patient and guest safety, need for orderly evacuations, & activities of a room. • Hospital was required to place visual alarms in some rooms including waiting rooms and public restrooms but not operating rooms, recovering rooms, and special services rooms like ICU.

42. Evacuation Policies Under Title II Shirley v. Alexandria School Bd., 2000 WL 1198054 (4th Cir. 2000). • Bomb threat - school evacuated all ambulatory children. • Children with wheelchairs were inside w/ adult for 70 min. • School then developed a plan with a “safe room.” • Police & fire departments were aware (& room had a cell phone). • School ran drills to ensure that everyone understood the plan. • Fire drill - Responsible adult left with ambulatory children. • Court: 1st incident violated ADA – plan not reasonable. • 2nd incident – no violation: a plan was in place, fire and police were notified, people were trained and drilled. • Query: Could the school board have done more?

43. Evacuation Policies Under Title III Savage v. City Place Limited Partnership, 2004 WL 3045404 (Md.Cir.Ct. 2004). • Woman in a wheelchair was on the 2nd floor of Marshall’s. • When the fire alarm went off, the elevators deactivated. • She was unable to evacuate until the emergency ended. • Claimed ADA violations and false imprisonment. • Court: Evacuation procedures are a “policy” under ADA. • Plaintiff had the burden to prove the reasonableness of a modification to the evacuation policy. • Defendant has the burden to prove that the proposed modification would be a fundamental alteration.

44. Evacuation Policies Under Title III Savage v. City Place Limited Partnership • The Defendants decided to settle this case. Under the settlement agreement, Marshall’s agreed to: • Provide certified accessible emergency exit routes to evacuate the building or get to areas of rescue assistance. • Train all store managers to assist customers in procedures. • Train all employees on evacuation procedures. • Hire ADA consultants to develop and implement new policies and procedures. • Designate responsible corporate employees to oversee and coordinate implementation of the terms of the settlement. • Settlement applies to 700 stores (no standing problem in court). • May be a tort component – false imprisonment, duty to invitees,...

45. Service Animals

46. Overview of Some Issues Regarding Service Animals • “No pet” policies • Types of animals • What about “emotional support” animals? • What are the qualifications of a service animal? • Certification of the service animal’s status or the person’s disability be required – what can be asked? • Link between the animal and disability • Fundamental alteration & Direct Threat Defenses • DOJ is revising Title III regulations – public comment. • FHA, ACAA, and state or local laws may apply.

47. Service Animals – DOJ Regulations and Guidance • “Service animal means any guide dog, … or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability…” 42 U.S.C § 12181. • DOJ Guidance: Commonly Asked Questions About Service Animals and ADA Business Brief: Service Animals at www.ada.gov. • Congress intends to allow service animals the “broadest feasible access” to avoid separation. 28 C.F.R. pt. 36 App. B. • CDC generally sees no problems except for nonhuman primates and reptiles in health care facilities. www.cdc.gov. SeeSheely v. MRI Radiology Network, P.A. 505 F.3d 1173 (11th Cir. 2007). • DOJ is revising the Title III regulations.

48. Service Animal Cases: Animal Qualifications – Pruett Pruett v. Arizona, 606 F. Supp. 2d 1065 (D.Ariz. 2009). • Person with diabetes had a chimpanzee service animal. • Previously, she used to use a Tonkean ape trained to retrieve sugar and press her medical alert button. • After the ape died, no service animal for one year. • Claimed the chimpanzee was needed to monitor her blood sugar levels and retrieve sugar. • There was no evidence the animal was trained to do this. • Court: No proof she needed the chimpanzee to do individualized tasks for her that she could not do on her own – therefore it was not a service animal.

49. Service Animal Cases: Policies – CostCo • Private membership club had a written policy requiring: • Employees told to look for ID of service animal status. • If no ID, employee’s asked what task or function the animal performed that its owner could not. • Policy prohibited employees from asking about the disability. • Court upheld policy - referenced DOJ Brief & Guidance. Grill v. Costco Wholesale Corp., 312 F. Supp. 2d 1349 (W.D. Wash. 2004). • Patrons should answer appropriate questions. Thompson v. Dover Downs, Inc., 887 A.2d 458 (DE Super. Ct. 2005).

50. Service Animal Cases:Fundamental Alteration Lentini v. California Center of the Arts, Escondido, 370 F.3d 837 (9th Cir. 2004). • CA Center for the Arts refused access to a patron whose service dog previously yipped or barked at intermissions. • Dog did not disturb performances and barking was rare. • No patron ever complained & no significant disturbance. • Center argued fundamental alteration of services – i.e., the animal would deter other patrons from attending and artists from appearing.