ADA in the News June 24, 2020

Ninth Circuit Rejects Plaintiffs’ Claims in Trio of ADA Disability Access Cases

In a big win for Starbucks and all other restauranteurs, retailers, and places of public accommodation, the U.S. Court of Appeals for the Ninth Circuit held in three related cases (Johnson v. Starbuck Corp.Lindsay v. Starbucks Corp., and Kong v. Starbucks Corp.) that accessible sales and service counters are not required to provide a minimum of 36 inches of usable counter space for disabled patrons, provided that the counter is no more than 36 inches high. The ruling should thwart the increasingly popular claim of many lawsuits and demand letters that businesses violated the Americans with Disabilities Act (ADA) by failing to keep clear the lowered portions of sales and service counters.


The 2010 Standards for Accessible Design require that for sales and service counters, places of public accommodation must provide “[a] portion of the counter surface that is 36 inches (915 mm) long minimum and 36 inches (915 mm) high maximum above the finish floor.” However, the 2010 Standards contain an exception that provides that where the counter surface is less than 36 inches long, the entire counter surface must be 36 inches high maximum above the floor.

While Starbucks provided 36-inch long counters, plaintiffs alleged that merchandise, decorations, or other materials obstructed some of the counter space. Starbucks argued that the 2010 Standards do not require it to provide 36 inches of clear counter space. The Ninth Circuit agreed, finding that the 2010 Standards expressly contemplate counters that are built with less than 36 inches of clear counter space (implying that a minimum of 36 inches of counter space is not required). The court likewise rejected plaintiffs’ argument that the maintenance requirement in 28 C.F.R. § 36.211 applies to counters that already meet the 2010 Standards.


It is now clear that the ADA does not require public accommodations to provide or proactively maintain a 36-inch section of clear counter space. This is a significant win for retailers that often use portions of their sales counters to display merchandise for those last minute, impulse purchases.

Florida Bar Seeks Suspension of Miami Lawyer Who Admits to Targeting Businesses for Frivolous ADA Suits

The attorney has admitted breaking seven Florida Bar rules, which govern misconduct, competence, fees and fee sharing, meritorious claims and candor toward a tribunal.

Disability Law and the Case for Evidence-Based Triage in a Pandemic

ABSTRACT. This Essay explains why model policies proposed or adopted in response to the COVID-19 pandemic that allocate scarce medical resources by using medical evidence to pursue two core goals—saving more lives and saving more years of life—are compatible and consonant with disability law. Disability law, properly understood, permits considering medical evidence about patients’ probability of surviving treatment and the quantity of scarce treatments they will likely use. It also permits prioritizing health workers, and considering patients’ post-treatment life expectancy. These factors, when based on medical evidence and not inaccurate stereotypes, are legal to consider even if they disadvantage some patients with specific disabilities.

It then discusses the ethical advantages of triage policies that use medical evidence to save more lives and years of life, which I call “evidence-based triage,” focusing on the benefits of these policies for patients with disabilities. In doing so, I explain why recent critiques err by treating people with disabilities as a monolith, overlooking the political disadvantages of less-visible victims, and treating the social origins of scarcity as a justification for saving fewer lives. Evidence-based triage parallels other policy responses to the COVID-19 pandemic, like physical distancing and postponement of medical procedures, which may burden patients with specific disabilities or medical conditions but are nevertheless justified because they save more patients.

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