UW embroiled in discrimination lawsuit
The Branding Iron
After being slapped with a discrimination lawsuit, the University of Wyoming Foundation could held liable for civil right claims under the Americans with Disabilities Act, a federal judge ruled.
Mandy Davis, the fundraising Foundation’s former human resources manager, filed a lawsuit in March 2017 claiming her position was eliminated as a ploy of unlawful retaliation against her for submitting complaints against her superiors. Those complaints: her superiors had made disparaging comments about a recently hired employee with a physical disability.
Foundation’s attorneys argue the nonprofit is not subject to ADA rules concerning disability-related discrimination because does not have at least 15 employees, the threshold used to hold organizations responsible for ADA and Title VII Civil Rights Act protections.
Johnson found several factors indicating the Foundation is part of the much larger employer of the University and should be subject to the laws, like how CEO and Foundation President Ben Blalock has control over the hiring of Foundation senior staff and the two organizations.
Federal Judge Alan Johnson ruled Oct. 31 that a jury could decide if the UW Foundation is a “joint employer” of its staff, or if UW and the Foundation are a “single employer,” making the Foundation liable for specific civil rights claims.
“If either party demands a jury, the jury will decide ‘fact’ questions, while the judge decides ‘legal’ questions,” UW law professor Melissa Alexander said. “It is typical for a judge to allow a jury to decide a question if there is a genuine dispute as to any material fact that is relevant to the issue’s resolution.”
Got access for people with disabilities covered? Don't forget your website
The Guardian
More than 5,000 lawsuits were filed under the Americans with Disabilities Act in the first half of 2018, many relating to businesses’ online presence
County Settles Class Action Lawsuit Alleging Discrimination Against Inmates With Disabilities
SFGate
Santa Clara County on Tuesday settled a November 2016 class action lawsuit alleging discrimination against inmates with disabilities in three county jails.
Though the county denied violations of the Americans with Disabilities Act alleged in the lawsuit, it has agreed to make infrastructure improvements at Main Jail North, Elmwood Jail, and the New Jail project to be constructed at the old Main Jail South.
If a court approves the terms of the settlement, the county will also pay $1.1 million in attorney’s fees and $2.2 million for compliance monitoring to the nonprofit Disability Rights Advocates and the law firm Rosen Bien Galvan & Grunfeld LLP.
The plaintiffs in the lawsuit will not receive any damages.
"The monetary value doesn't really apply here," attorney Lisa Ells said. "It's not a case where we were suing for money, we were suing for change."
The county has already committed $100 million to modify architecture and infrastructure at the jails, such as cracked sidewalks that prevent inmates from commuting to classes while using wheelchairs, or providing access to bathrooms in different areas of the jail that are ADA-compatible.
Though the negotiations were difficult, Ells said the county worked diligently to address the problems outlined in the lawsuit. The law firm Rosen Bien Galvan & Grunfeld has brought similar lawsuits against Monterey and Yuba counties, as well as the state jail system.
"They're complicated problems and I credit [Santa Clara] County. From the start, they understood they were real problems that needed to be worked on and discussed," Ellis said.
Modifications will include ADA-accessible examination rooms, mirrors, telephones, showers, exercise equipment, beds and entry ramps to jail facilities.
"For years now, the Sheriff's Office has been partnering with other County departments to prioritize construction efforts leading to continued improved accessibility for inmates in our Jails," Sheriff Laurie Smith said in a statement.
A Call for Regulation: The DOJ Ignored Website Accessibility Regulation and Enterprising Chaos Ensued
Business usually prefers to avoid championing day-to-day government regulation. But a recent explosion of “surf by” lawsuits accusing consumer-facing websites of violating Title III of the Americans With Disabilities Act has businesses demanding regulations setting the minimum requirements to render commercial websites accessible to disabled visitors.
Business usually prefers to avoid championing day-to-day government regulation. But a recent explosion of “surf by” lawsuits accusing consumer-facing websites of violating Title III of the Americans With Disabilities Act (ADA) has businesses demanding regulations setting the minimum requirements to render commercial websites accessible to disabled visitors.
The Department of Justice (DOJ) has concluded that websites are places of public accommodation, requiring accessibility to all visitors. But the DOJ has failed to regulate the standards of accessibility, opening every commerce category to accessibility lawsuits—with over 1.000 filed in New York federal courts alone. Seeking a definitive safe harbor, business interest groups are calling on Congress to mandate that the DOJ issue regulations firmly establishing accessibility standards. The White House is championing a reduced business regulatory scheme, leaving courts as the arbiter of minimum standards. This has led to commercial chaos, replete with over-burdened court dockets and companies facing shake-down lawsuits often settled for amounts less than defense costs.
The DOJ previously signaled that a minimum standard is found in the guidelines created by the World Wide Web Consortium (W3C), an organization devoted to the development of WWW protocols and guidelines. Meeting this criterion is expensive, especially for small- to mid-market companies. It is remarkable that the business community is advocating codification of such costly requirements. It is even more striking that scores of conservative legislators, who are typically hostile to regulation, joined to urge the promulgation of uniform accessibility standards.
The collective urgency exhibited by such unlikely regulation advocates reflects the universal understanding that regulatory guidance is needed. Until the DOJ acts, the threat of surf-by lawsuits will continue to surge.
Background. The ADA requires places of “public accommodation” to meet certain standards of accessibility for disabled visitors. The issue of whether websites conducting online business must also be accessible is not addressed in the legislative text. But the DOJ has pursued enforcement actions against businesses with allegedly “inaccessible” websites and mobile applications, claiming that the websites were inaccessible to the visually impaired because, among other things, the businesses neglected to include screen reader technology.
Coding a commercial website for screen reader technology is expensive and time-consuming, triggering extra costs every time a new photo or link is introduced. Owners typically retain digital accessibility consultants to audit website content and code, with continuing compliance required every time a new page is added. Ensuring screen reader availability is fraught with technical challenges and high costs, leaving many businesses unable to launch new pages due to fear of being sued for noncompliance.
DOJ’s Plays Ostrich as ADA Website Lawsuits Explode. In 2010, the DOJ announced its consideration of regulations to establish website accessibility requirements for disabled individuals, and released a proposed rulemaking notice that pronounced the W3C’s Web Content Accessibility Guidelines 2.0 Level AA Success Criteria (WCAG 2.0 AA) as the “well-established industry guidelines” to render web content accessible. The notice kicked off a seven year-long rulemaking process that was ultimately abandoned. In 2016, the DOJ withdrew that notice and issued a supplemental notice seeking further input.
In 2017, the White House committed to “deconstruct” the regulatory state, leading to a reverse in website accessibility discussions, including halting enforcement actions against businesses with relaxed website accessibility. In July, the DOJ placed its pending website rulemaking notices on its “inactive list,” and in December, officially announced their withdrawal—stating it was “evaluating whether promulgating regulations about the accessibility of Web information and services is necessary and appropriate,” and whether “specific technical standards are necessary and appropriate to assist covered entities with complying with the ADA.”
The withdrawal effectively ended the government’s website accessibility regulatory scheme, unwelcome news to the business community. Plaintiff-oriented law firms pounced, suing thousands of website owners around the country for claimed ADA violations. By the mid-point of 2018, over 1,000 lawsuits had already been filed—more than all cases filed in 2017.
Most such lawsuits include boilerplate complaints with cut-and-paste claims, costing the plaintiff firm a minimum investment of time and resources, typically with a quick settlement because as of this writing, only one such case has been tried (with plaintiffs prevailing). Add-in that most of the lawsuits seek class action status, and the threat to U.S. commerce becomes substantial, with the defense costs being passed-on to consumers. The trend is reminiscent of the classic ADA “drive-by” lawsuits, whereby allegedly injured plaintiffs drive from business-to-business searching for minor ADA violations, and then sue.
ADA Website Cases Are Presently Difficult to Defend. Neither the U.S. Supreme Court nor any U.S. Court of Appeal has addressed what constitutes ADA minimum “accessibility,” nor has any court endorsed any standard other than acknowledging that WCAG 2.0 AA has emerged as a de facto standard. Businesses and defense firms have only a patchwork of divergent U.S. District Court decisions from which to glean any compliance standard, and even those decisions differ depending upon the jurisdiction. These decisions have been confusing—if not demonstrably confused—to say the least.
The reason for confusion is that, while the DOJ and several courts have said the ADA requires websites to be accessible to the visually impaired, and the DOJ has repeatedly endorsed WCAG 2.0 AA as the standard, the DOJ has failed to officially promulgate any regulations clearly defining what it takes for private sector websites to be accessible—be it WCAG 2.0 AA or some other minimum criteria. Nor has the DOJ explained how businesses can evidence their plan to remain compliant, so as to moot future lawsuits post-remediation. The DOJ’s approach has provided fodder to plaintiffs claiming that, as per the DOJ, websites are public accommodations needing to be ADA compliant, and websites failing to meet the WCAG 2.0 AA criteria fall short.
Consequently, defendants have had difficulty dismissing even the most boilerplate lawsuits. For example, a defense based on mootness may seem appropriate where the defendant has undertaken concrete steps to remediate. Since the ADA does not provide for monetary damages, plaintiffs seek injunctive relief requiring businesses to remediate websites to allow all persons access and prohibiting additional discriminatory activity.
A claim for injunctive relief is rendered moot where there is no reasonable expectation that the alleged violation will recur, or events have eradicated the effects of the alleged violation. In the brick-and-mortar context, a claim becomes moot where the defendant remedies the access barrier during the pendency of the litigation. In the website context, however, successful mootness claims have been difficult to achieve. Take Haynes v. Hooters of Am., 893 F.3d 781 (11th Cir. 2018), for example, where the Eleventh Circuit held that plaintiff’s claims were not mooted by the fact that Hooters agreed to a remediation plan as part of settling an identical suit months-earlier. In rejecting Hooters’ mootness argument, the court found that, even though Hooters claimed it was in the process of remediating, nothing in the record demonstrated that Hooters had “successfully done so.” Further, a live controversy remained because the court could direct Hooters to continually update and maintain its website to ensure it remained fully accessible, and if Hooters failed to remediate under the previous settlement, the current plaintiff would have no way of enforcing the remediation plan. Id. at 784. In Del-Orden v. Bonobos, No. 17 CIV. 2744 (PAE), 2017 WL 6547902 (S.D.N.Y. Dec. 20, 2017), the court similarly rejected Bonobos’s mootness argument for dismissal based on its having fixed the deficiencies, because the plaintiff alleged that the website was “still not reasonably accessible” post-remediation. Id. at *12.
Proper Regulation Will Reduce Frivolous ADA Website Lawsuits. A DOJ website accessibility regulatory scheme will reduce the rising volume of ADA lawsuits targeting websites and provide a clear path for compliance, assisting visually impaired website visitors. For instance, regulations could implicate the primary jurisdiction doctrine, which applies whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body. Under this prudential doctrine, the court may determine that the claim before it implicates technical and policy questions that should be addressed in the first instance by the agency with regulatory authority over the relevant industry. At least two courts, including Bonobos, have signaled that DOJ guidelines (based on technical expertise rendered by qualified professionals) would be influential when considering ADA website claims. The Bonobos court also recognized “that the [DOJ] may one day render, by regulation, as to the standards by which a commercial website may comply with the ADA. If and when such standards issue, they likely will be consequential as to the standard for judging liability.” Id. at *15. The court in Robles v. Domino’s Pizza, No. CV1606599SJOSPX, 2017 WL 1330216, (C.D. Cal. March 20, 2017) went even further, stating that “regulations and technical assistance [were] necessary for the Court to determine what obligations a regulated individual or institution must abide by in order to comply with [the ADA].” Recognizing that the issue of web accessibility obligations “require[d] both expertise and uniformity in administration, as demonstrated by the DOJ’s multi-year campaign to issue a final rule on this subject,” the court held that, until the DOJ or Congress sets formal accessibility standards, defendants’ due process precluded ADA claims. Id.
Regulations could also implicate Chevrondeference. The Bonobos court signaled that a DOJ regulatory interpretation that websites were not places of public accommodation for ADA purposes would be entitled to Chevron deference, stating that “[h]ad the [DOJ] issued regulations addressing the [issue of whether the ADA applies to commercial websites], courts addressing such claims, including this court, would surely have considered those views, including any argument that deference was due to an agency’s statutory construction …[t]he Justice Department, however, has not rendered any such interpretation and there is no charter for this Court to defer doing its duty while waiting for one.” 2017 WL 6547902 at *14.
The DOJ Should Resume the Rulemaking Process. If the onslaught of ADA website cases has proven anything, it is that DOJ regulation is needed. Even the most strident anti-regulatory legislators have acknowledged as much.
In May 2018, the House of Representatives’ House Appropriations Committee approved an appropriations bill, which included a provision directing the DOJ to adopt accessibility guidelines: “The Committee expects the Department to clarify standards for website accessibility requirements pursuant to the Americans with Disabilities Act in fiscal year 2019. The Committee recognizes the confusion caused by a lack of uniform website accessibility standards. The lack of clear requirements disadvantages small businesses that provide essential services for our communities.”
On June 20, 2018, a bipartisan collection of House 103 members—including at least 24 openly identifying as part of the House Freedom Caucus (the most reliable supporter of the White House’s anti-regulatory agenda)—delivered a letter to Attorney General Jeff Sessions expressing support for the DOJ “providing guidance and clarity with regard to website accessibility under the … ADA.”
On Sept. 4, 2018, six Senators, including Sens. Charles Grassley and John Cornyn, also sent a letter urging the DOJ to clarify the obligations of businesses, if any, to make their websites accessible. In direct response to the surge of ADA website lawsuits, the Senators argued that “the [current] lack of regulatory clarity benefits only the plaintiffs’ lawyers,” and that “[c]larity in the law will encourage private investment in technology and other measures that will improve conditions for the disabled.”
On Sept. 25, 2018, the DOJ responded that it was still evaluating whether issuing specific web accessibility standards was necessary and appropriate. However, the DOJ signaled that it may forgo specific technical requirements and promulgate a standard based on “flexibility,” stating that “[a]bsent the adoption of specific technical requirements for websites through rulemaking, public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication … noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.” This would be a mistake—unless the DOJ provides clear and measurable guidance as to when a website is compliant.
One particular line in the Senate letter best illustrates why legislators like Sens. Grassley and Cornyn (who each tout their career-long efforts to “lessen excessive regulatory burdens”) are pushing for regulations that would most-certainly compel businesses to spend on technology— “[b]usinesses would rather invest in making sure they can serve their disabled customers, instead of pay[ing] money to avoid a shakedown by trial lawyers who do not have the interests of the disabled at heart.”
Well put. The DOJ should resume the rulemaking process that it imprudently abandoned. The unprecedented surge of ADA website accessibility lawsuits has demonstrated that it is appropriate and necessary for the DOJ to promulgate regulations—including, in no uncertain terms, identifying specific technical standards for websites to be ADA compliant. Appropriate regulations will curb frivolous, ‘sue-and-settle’ lawsuits while providing much needed guidance to courts presently struggling to determine what obligations businesses must abide by to comply with the ADA.
Samuel D. Levy is a partner and Martin S. Krezalekis an associate in the corporate litigation group of Blank Rome. Both practice ADA website accessibility defense and have written on the subject.
Access Board Resolves 43 Architectural Barriers Act Cases Through Corrective Action in FY 2018
The Access Board was created in part to enforce the first federal law to address accessibility, theArchitectural Barriers Act (ABA) of 1968. This law requires access to buildings or facilities that were designed, built, or altered with federal dollars or leased by federal agencies. The Board also maintains the guidelines upon which the ABA Standards are based.
With passage of other laws, including the landmark Americans with Disabilities Act (ADA), the Board’s mission has expanded significantly. It is now responsible for developing and keeping up to date accessibility requirements for the wide array of facilities covered by the ADA, as well as for transportation vehicles and systems. It also issues standards for information and communication technology and for medical diagnostic equipment.
Despite these other duties, the Board continues the important work of enforcing the ABA. We do this through the investigation of complaints from the public. Filing a complaint with the Board is easy to do and can be done through anonline form. Complaints should include the name and address of the facility and a brief description of the access barriers or issues. Complaints can be filed anonymously.
The first step of an investigation is to determine whether the facility at issue is covered by the ABA. If so, the next step is to determine whether the facility meets the applicable accessibility standard. If the facility is not subject to the ABA or if it meets the appropriate accessibility standard, the Board will advise the complainant of its findings. Some facilities are not covered by the ABA but by other laws such as the ADA, which is enforced by other agencies and the courts.
If the facility does not meet the applicable standard, the Board will work with the responsible entities to develop a plan to bring the facility into compliance. Complaints are typically resolved amicably with the responsible agencies or departments. Cases remain open until all necessary corrective action is completed. In FY 2018, the Board resolved 43 cases through corrective action.
Florida's Serial ADA Lawsuits: Long Overdue or 'Legal Extortion'?
Florida has become a top spot for lawsuits under Title III of the Americans with Disabilities Act — a sore spot for lawyers on each side. While plaintiffs say they're "frustrated" at a widespread lack of compliance, defendants feel they're "sitting ducks," unfairly targeted by what some say is "legal extortion."
Title III of the Americans with Disabilities Act (ADA) was enacted more than two decades ago to curb discrimination against disabled people, but related lawsuits are still rife in Florida — and lawyers on either side are exasperated.
Plaintiffs attorneys can’t believe how many public places aren’t compliant, while defense lawyers are at their wits’ end with seemingly infinite “drive-by” complaints, suspicious of filers’ motives.
According to defense attorney Christian E. Rodriguez of the Trembly Law Firm in Miami, the ADA is “well-intentioned” but has become a “tool for abuse,” allowing some to “take advantage” of business owners.
But plaintiffs lawyers like David Ferleger in Pennsylvania disagree.
“If the plaintiff was objecting to someone refusing to rent to them because they’re African-American and they tried to sue different real estate agents, I think nobody would object to their filing lawsuits,” Ferleger said. “Somehow, this raises a flag that shouldn’t be raised for plaintiffs with disabilities.”
That flag, for some defense attorneys, flaps in the wind when a single ADA plaintiff morphs into a into serial suer, filing dozens of simultaneous complaints against multiple entities across the state.
“On [any] given day, you’ll see the same plaintiff has filed 10 or more of these lawsuits against different municipalities,” said ADA defense lawyer Anastasia Protopapadakis of GrayRobinson in Miami. “It’s not unusual to see copy-paste form complaints that, hopefully they’ve gone through and changed the name of the defendant, but sometimes they forget.”
Ferleger has represented Floridian plaintiffs whose names have become synonymous with ADA lawsuits. One of them, Juan Carlos Gil, a legally blind Miami resident with cerebral palsy, was the man behind a historic website-accessibility case against Winn-Dixie Stores Inc., which opened the floodgates to hundreds more like it.
Gil has also sued Burger King, Godiva, and expresso machine producer Nespresso over similar lack-of-access claims. According to electronic court records, Gil is a plaintiff in at least 69 federal cases.
“We can’t blame people who are denied access to public accommodations on account of a disability for being frustrated and even angry that, decades after the ADA was passed, they still can’t get in the store,” Ferleger said. “They still can’t get into the restaurant.”
One Florida plaintiff, Anna Marie DeFeo, has logged 154 lawsuits, according to electronic records. Her lawyer, Alberto R. Leal of the Leal Law Firm in Wellington, did not respond to requests for comment before deadline.
Title III doesn’t allow Florida plaintiffs to claim damages — only attorney fees and an injunction — which, according to Ferleger, is a “deterrent.” Occasionally, when he tells prospective clients about the “no damages” disclaimer, Ferleger says “they hang up the phone or they never call back.”
“They have a right to want damages,” Ferleger said, but with that off the table, the remaining plaintiffs are “generally sincere people who really want change.”
From Rodriguez’s perspective, it’s “hard to agree” that some cases are filed strictly for “public good.”
“For filing the complaint, they already ask you for $12,000 in fees, when it’s the same complaint that they’ve filed in all these other cases,” Rodriguez said. “The ADA is a well-intentioned law, but it’s being abused by these serial plaintiffs.”
Rodriguez claimed he gets suspicious when some plaintiffs “will not be willing to share” time sheets for attorney fees or invoice for hired experts.
According to Trembly Law Firm founder Brett Trembly, “unfair demands for excessive attorney fees” are akin to ”legal extortion.”
“We don’t believe that the plaintiffs are getting nothing out of this arrangement,” Trembly said. ”We can’t prove this, but it’s our opinion that there’s potential fee sharing between plaintiffs attorneys and plaintiffs, because it wouldn’t make sense otherwise.”
According to Trembly, plaintiffs law firms are “requesting thousands of dollars for not very much work,” so he wants to see more provisions in place to “protect” business owners.
“These plaintiffs firms will say, ‘We don’t have to drive around looking for buildings. We’ll just go on Google Maps, and if we see a pool and we don’t see a lift that would help somebody in a wheelchair in and out, we’re going to file suit,’” said Trembly.
According to plaintiffs lawyer Ferleger, “there is no reason not to” provide time records and expenses documentation.
“I do not know of and have not heard of cases in which lawyers shared fees with clients in ADA cases,” Ferleger said.
Many of the lawsuits are short-lived, settled confidentially. According to Scott R. Dinin, Gil’s Miami lawyer, that’s usually at the defendant’s request.
“We don’t seek confidentiality,” Dinin said. “No one’s trying to get anything from them.”
Dinin has also represented Andres Gomez,a legally blind man, who has sued the Miami Heat, cruise company Carnival Corp., Claire’s Stores Inc. the Kardashians’ Dash clothing boutique in Miami and countless others. According to electronic court files, Gomez is a plaintiff in at least 72 cases.
“Let’s not leave people behind,” said Dinin, who approaches ADA cases from “a civil rights perspective.”
Dinin sees serial plaintiffs like Gil and Gomez as “heroes” and admits he was once “ignorant” about ADA rights before he got to know people with disabilities.
“I had no idea,” Dinin said. “One little traffic accident or one genetic defect, you lose your vision. Then what do you do?”
Dinin also represented Denver resident Mark Lasser, who sued the producers of hit musical Hamilton over its lack of audio description services. He said his clients try to end disputes before coming to him, but in many cases a lawsuit is “the only way.”
“Imagine you’re in a wheelchair, you pull up to some ice cream store and there’s stairs. What do you do? Spend a day and a half trying to figure out who owns the place and send them some nasty letter? You know where that letter’s going. The trash can,” Dinin said.
According to Rodriguez, plaintiffs don’t have to give notice to potential defendants before filing an ADA suit in Florida, which he said is “fundamentally unfair.”
“When we have clients come in, sometimes it’s the first time they even realize that they have any exposure under the ADA,” Rodriguez said. “Just by filing the lawsuit, the plaintiffs have already created an exposure to a significant amount of fees.”
Defense lawyer Protopapadakis pointed out that, thanks to a recent ruling from the U.S. Court of Appeals for the Eleventh Circuit, her clients can sometimes be “sitting ducks,” hit with a second, third or fourth ADA lawsuit while the first is still pending.
“It does seem in that context to be abusive,” Protopapadakis said. “Because if the organization has made a commitment for accessibility, then they should be provided an opportunity to work through that, rather than continuing to dodge litigation.”
Protopapadakis said that all her clients “do a great job of being aware of the issue” and “constantly have it in the forefront of their mind,” but there’s a remediation process to follow, which “is not quick.”
It’s not cheap either, according to Protopapadakis, who said she’s seen small and midsized companies avoid having a website altogether out of fear they’ll violate the ADA.
“It becomes a cost-benefit analysis,” she said. “Are there enough sales being generated from the website that make it worth their while to keep a website in place and be open to liability, or should they just close the website down and just rely on good old-fashioned brick-and-mortar retail sales?”
Ferleger admitted, ”there are unethical individuals, both lawyers and plaintiffs, who are filing lawsuits that either have no merit or little merit, and they’re not doing it because of a sincere desire to improve the lives of people with disabilities.”
In those cases, Ferleger said, judges “can and have” forbid certain people from filing lawsuits.
An Arizona judge, for instance, suspended ADA attorney Peter Strojnik in July while investigators look into allegations he paid serial plaintiffs $350 per case. He filed 2,000 ADA lawsuits for controversial group Advocates for Individuals with Disabilities.
The way Ferleger sees it, introducing damages in Florida’s Title III cases might actually decrease the number of abuses.
“That may seem counterintuitive,” Ferleger said. “But it would provide an incentive for public accommodations to comply with the law without waiting to be sued.”
5th Circuit Rejects Disabled Plaintiffs' ADA Claims Over Plasma Donations
It's a ruling contrary to one reached on the same issue in a different federal appeals court two years ago, the decision noted.
The U.S. Court of Appeals for the Fifth Circuit has prevented a pair of disabled plaintiffs from asserting an Americans with Disabilities Act claim against a plasma collection center after the business declined to take their blood.
It’s a ruling contrary to one reached on the same issue in a different federal appeals court two years ago, the decision noted.
The case, Silguero v. CSL Plasma, was filed by Mark Silguero and Amy Wolfe, who allege they attempted to donate plasma but were deferred for reasons related to their disabilities: Silguero uses a cane and has a limp, and Wolfe has anxiety and requires the use of a service animal.
Silguero and Wolfe later sued CSL Plasma, alleging unlawful discrimination under Title III of the ADA and Chapter 121 of the Texas Human Resources Code, in a Southern District of Texas U.S. District Court.
CSL Plasma moved for summary judgment, arguing that its business was neither a “public accommodation” under the ADA nor a “public facility” under the THRC. It also argued that the plaintiffs could not identify a genuine fact issue or show that CSL Plasma had done anything other than impose a legitimate safety requirement.
The trial court agreed with CSL Plasma’s arguments and concluded that neither the ADA nor the THRC applied to the plaintiffs’ claims.
In its decision, the Fifth Circuit ruled that CSL Plasma was not a “public accommodation.” But the court noted that the U.S. Court of Appeals for the Tenth Circuit had tackled the same ADA question in 2016’s Levorsen v. Octapharma Plasma and reached a different conclusion, finding that the federal law applied to plasma centers because they were “service establishments.”
“We disagree with the Tenth Circuit, however, about whether plasma collection centers provide a ‘service’ to customers,” wrote Judge Catharina Haynes.
“Here, CSL Plasma pays donors who receive no detectable benefit from the act of donation. Its entire business model is structured this way,” Haynes wrote. “It thus does not offer plasma collection as a ‘service’ to the public and is therefore not a ‘service establishment.’ We affirm the district court’s order granting summary judgment to CSL Plasma on Silguero’s and Wolfe’s ADA claims.”
But the court declined to rule on whether CSL Plasma was a “public facility” under the THRC because Texas state courts had not definitively interpreted the term. Instead, the Fifth Circuit referred that issue to the Texas Supreme Court via certified question.
Sasha Samberg-Champion, a lawyer with the Washington, D.C., civil rights law firm Relman Dane & Colfax who represents the plaintiffs in the case, was disappointed in the ruling, noting that it “contradicts the Tenth Circuit’s decision on the same question and is contradictory to the Justice Department’s view under both the Obama and Trump administrations.’’
Samberg-Champion, who partnered with nonprofit Disability Rights Texas in the case, said that Congress’ intent in passing the Title III ADA was to guarantee that every commercial entity was open to people with disabilities. “We don’t think it was intended to create loopholes, such as the plasma center here, by arguing their business model takes them out of Title III,’’ he said.
Westchester Judge, in ADA Lawsuit, Says Court Officials Engaged in Obesity Discrimination
A suspended Westchester County judge who suffers from obesity and other ailments and who has limited mobility has filed suit against the state court system, alleging that court employees subjected her to discriminatory and humiliating treatment for her disabilities.
A suspended Westchester County judge who suffers from obesity and other ailments and who has limited mobility has filed suit against the state court system, alleging that court employees subjected her to discriminatory and humiliating treatment for her disabilities.
White Plains City Court Judge Elizabeth Shollenberger, who was sworn in to her post in January 2017, has been under suspension for a total of more than 16 months since her appointment and is drawing a $187,200 annual salary.
In a lawsuit filed on Tuesday in the U.S. District Court for the Southern District of New York, Shollenberger alleges that Lawrence Marks, the Office of Court Administration’s chief administrative judge, suspended her because he caved to the demands of employees at the White Plains courthouse who, driven by “irrational phobia” and discriminatory intent, wanted her removed.
In addition to obesity, Shollenberger is diagnosed with pulmonary hypertension, chronic obstructive pulmonary disease, and immune thrombocytopenia; as well as diagnoses of lymphedema and a fungal infection in one of her legs that resulted from a 1989 accident at Union Square Station in Manhattan in which she fell between the gap between a subway platform and a train.
Because of her diagnoses, Shollenberger uses a walker to move around and carries an oxygen tank. Her prescribed medications cause stress to her gastrointestinal system, requiring her to have quick access to restrooms, according to her suit.
Shollenberger alleges that courthouse employees dragged their feet in providing her with accommodations, such as installing handrails in courtrooms behind the bench to help her climb the stairs to the judge’s seat and providing her with a key to an easily accessible restroom.
Shollenberger is bringing claims against Marks, the court system and Chief Judge Janet DiFiore under the Americans with Disabilities Act, the New York State Human Rights Law and the Rehab Act.
Shollenberger spent 35 years as a practicing attorney before her appointment to the bench and has been involved with Democratic politics in New York City and in White Plains since the mid-1980s, according to her suit. Prior to her appointment, she was campaign treasurer for White Plains Mayor Thomas Roach.
Her appointment to the bench for a 10-year term was met with controversy, according to media reports: Critics, including a member of the judicial review committee in White Plains that is tasked with assessing candidates’ fitness for the bench, publicly blasted the appointment as politically motivated and expressed concerns about Shollenberger’s health.
From January 2017 to May 2017, Shollenberger worked 52 days and was out sick for 36 days, according to her complaint.
After getting sworn in, Shollenberger said she discussed installing railings for the stairs to the judge’s seat in two of the courtrooms in White Plains with the chief court clerk, but said the accommodations were not completed until more than two months after the conversation.
After that point, Shollenberger found that a second set of railings would need to be installed, but said that wasn’t completed until July.
Shollenberger alleges that courthouse employees refused to give her a key to the judges’ restroom.
In a May 2017 incident prior to her first suspension, the judge says she was unable to make it to a bathroom in time and had to relieve herself in a courtroom trashcan, which she says set off “hysterical reaction” among employees at the White Plains courthouse that included employees cordoning off the entrances to the courtroom with yellow police tape.
To add to the humiliation, the judge alleges, the clerk assisting Shollenberger the following day wore yellow rubber gloves. The judge also says she saw three people enter the subject courtroom wearing full hazmat suits.
Shollenberger alleges that she was suspended the second time after she complained that odor-free waste containers had not been placed in the judge’s chambers and in a bathroom and after court employees complained about odors from the judge and a leaking bandage on her leg.
OCA spokesman Lucian Chalfen said that Shollenberger was suspended for the “health and safety of the employees and litigants who use the court.”
But Shollenberger argues in court papers that the health and safety excuse is just a “pretext” to make her work environment intolerable, to tarnish her reputation and ultimately remove her from her position because of her disabilities.
Shollenberger says Marks and other court system employees did not speak with her and did not discuss the judge’s health issues with her prior to her suspension; she argues that court system officials have suspended her with the hope that they could outwait the judge until she either gives up in her efforts to get back to work or will “simply get sick and die.”
Cary Kane attorneys Anthony Consiglio, Tara Jensen and Larry Cary represent Shollenberger.
“The ADA and other disability discrimination laws are intended to foster dialogue and restraint, so that a disabled person is not shut out of a public accommodation or suspended from doing her job without a discussion and examination of whether she can do her job with a reasonable accommodation,” Consiglio said in a written statement. “That did not happen here.”
Chalfen said that the court system has made numerous accommodations for Shollenberger, including installing railings and ramps, but declined to comment on her suit further.
The judge also alleges that court employees used the taint of “obesity” when speaking with the media in an effort to “tarnish her reputation.”
In June 2017, the New York Post published an article quoting Mark Elliott, the member of the judicial review committee in White Plains who raised alarm about Shollenberger’s appointment to the bench; as well as anonymous sources within the court system who provided unflattering accounts of the judge’s digestive issues.
In her suit, Shollenberger called the article “inflammatory” and “stigmatizing,” and said the Post falsely reported that the judicial review committee rejected her application for a judgeship.
“The article included a host of wildly inaccurate, crass, and hateful allegations, quoting and attributing unnamed court employees,” her suit states.