ADA in the News February 25, 2021

ADA Defense Lawyer: Whitaker v. Tesla Motors - the end of cookie-cutter ADA complaints?

For many years, businesses classed as public accommodations under the ADA have been the subject of "cookie-cutter" complaints that allege discriminatory conditions without providing any specific examples. Thousands of nearly identical complaints have been filed in federal courts nationwide, and their lack of detail makes it difficult for courts to provide a remedy that will prevent future harm. Martin Orlick, Chair of JMBM's ADA Compliance & Defense Group, summarizes the recent decision in Whitaker v. Tesla Motors which may put an end to these fill-in-the-blank cases.

In a unanimous published opinion, the United States Court of Appeals for the Ninth Circuit (Ninth Circuit) affirmed the District Court's dismissal of Whitaker v. Tesla Motors, for failure to state a claim of an action under Title III of the Americans with Disabilities Act (ADA). This case may have broad application for ADA defense lawyers because very similar "form" complaints are used widely in Southern California. According to the Ninth Circuit, these complaints are defective. There are literally hundreds, if not thousands, of virtually identical Complaints on Federal Court dockets in California and across the country.

About Whitaker v. Tesla Motors

Brian Whitaker, whose complaint states he uses a wheelchair for mobility, is a "tester" who visits businesses to ascertain whether their facilities comply with the ADA. Whitaker files lawsuits against those he determines are non-compliant, using complaints that are little more than a "fill-in-the-blanks" form.

In this case, Whitaker visited a Tesla dealership and alleged its service counters denied him full and equal access and "created difficulty and discomfort". He further alleged that Tesla's failure to provide accessible service counters prevented him from returning to the dealership.

Tesla argued that Whitaker failed to plead facts in the standards set forth in Ashcroft v. Iqbal and Bell Atlantic Corp. v Trombly. Specifically, he did not allege how the service counter(s) prevented him from access, and which counter(s) were non-compliant.


Companies Consider Transparent Face Masks as an ADA Accommodation During Pandemic

Lawsuits from the deaf and hard-of-hearing community may require companies to consider new reasonable accommodations during the COVID-19 pandemic, such as transparent face masks for employees and clean writing tools for customers, in order to comply with state and federal disability discrimination laws.

On September 22, 2020, the shoe company, Nike, Inc., was sued by a San Diego customer who is deaf after the customer was unable to communicate with an employee in a Nike retail store who was wearing an opaque face mask in compliance with Nike’s face mask requirements. According to court filings, the customer alleged that Nike violated state and federal law, including 42 U.S.C. section 12182(1)(A)(1), by denying “goods, services, facilities, privileges, advantages, or accommodations” to a person with a disability. The customer also alleged that Nike failed to provide auxiliary aids and services to ensure effective communication for customers, as required by 28 C.F.R. section 36.303(a).

Nike reached a settlement in the action, pending court approval, in which Nike has agreed to (1) pay $85,000 in attorneys’ fees and costs; (2) provide guidance to California store employees on how to accommodate customers who have difficulty communicating due to employees’ opaque face covering; (3) post notices in all California store entrances noting that accommodations are available for customers with hearing loss; (4) ensure that transparent face masks and clean writing tools are available upon request; and (5) pay the class plaintiff up to $5,000. Nike may still face additional monetary claims from class members as the proposed settlement will only resolve claims for injunctive relief, not compensatory or other damages.

Retail companies can proactively ensure that their employees are trained on how to respond to requests for accommodations from deaf and hard-of-hearing customers during the COVID-19 pandemic. If transparent face masks are not immediately available, employees can provide clean pens and paper to communicate with customers in order to minimize any liability under the Americans with Disabilities Act (ADA).

In addition, employers can also take steps to avoid employment-related disability claims by ensuring that transparent face masks and/or other auxiliary aids are available for employees who are deaf or hard-of-hearing.

Finally, companies should consider other areas in which new pandemic-related policies may adversely affect employees or customers with disabilities, such as specific social distancing requirements, virtual communications, and remote working policies.


Teamsters’ ‘Seniority Trumps Disability’ Firing Violates ADA, Lawsuit Claims

A former truck driver is suing the Teamsters for allegedly violating the Americans with Disabilities Act, claiming he was told “seniority trumps disability.”

In a complaint filed in a Pennsylvania federal court, Michael Matlosz claims that Liberty Coca-Cola Beverages unlawfully terminated his employment by not accommodating to his disability. Matlosz is also suing the Teamsters for allegedly refusing to represent him. He claims the union’s refusal was motivated by discrimination toward his disability. However, the Teamsters contend that Matlosz’s termination had nothing to do with his disability and everything to do with the union’s established system of seniority.

Matlosz began working for Liberty in August 1999 as a service technician and delivery driver. Upon being hired, he entered into a collective bargaining agreement with Teamsters Local Union No. 830.

While working for Liberty, Matlosz became afflicted with a disability that affected his vision. Consequently, he lost his CDL. However, Liberty reassigned him to a job in the vending warehouse. In April 2019, Matlosz lost that job to a more senior employee.

According to court documents, vending warehouse jobs are up for bid every six months. A more senior employee had bid for Matlosz’s job, causing him to lose the position. Liberty then reassigned Matlosz to another job that required him to work on trucks again. Due to his vision impairment, he was reassigned again to a job installing soda fountains. Despite being able to perform tasks associated with that job, Matlosz claims he was terminated in May 2019 because he could not drive trucks.

After being fired, Matlosz went to the Teamster’s vice president seeking assistance in securing a position that would allow him to continue to work with his impaired vision and no CDL.

Upon consulting with a union attorney, the lawsuit states, the vice president told Matlosz that the Teamsters could not help him because “seniority trumps disability.”

More than a year later, Matlosz filed his lawsuit alleging discrimination.

Feedback Form