Arizona Businesses: Beware of Serial ADA Plaintiffs (Americans with Disabilities Act)
The National Law Review
A few ambitious lawyers in Arizona have been hitting commercial property owners and tenants with lawsuits for not complying with the Americans with Disabilities Act (ADA), specifically alleging that the properties have certain barriers that restrict access for disabled individuals. Something as seemingly inconspicuous as the height of a parking lot handicap accessibility sign could constitute a violation and form the basis of a lawsuit.
In the past few months alone, more than 500 Arizona businesses have been sued under the ADA for an assortment of accessibility violations, most commonly for lack of compliance with the ADA’s standards for parking lots and bathrooms.
One particular firm has been filing lawsuits against Arizona companies for parking lot violations. In most instances, the lawsuits focus on whether the business has sufficient handicapped designated parking spaces, and whether the location, dimension, and signage for those spaces are up to the ADA’s accessibility standards. In many of these lawsuits, the only violation alleged is that one or more of the parking lot signs is posted a few inches lower than what is set forth in the statute.
Two particular individuals are most often bringing lawsuits against Arizona restaurants and bars for bathroom accessibility and other violations. In most instances, the lawsuits focus on the height and placement of urinals, mirrors, soap and toilet paper dispensers, and grab bars. The plaintiffs also commonly object to the height of service counters and lack of seating for those with disabilities.
Arizona businesses with facilities not meeting ADA accessibility requirements, risk an ADA claim by affected patrons. While there is a “safe harbor” provision in the ADA for businesses complying with earlier ADA standards, it seldom applies.
Businesses in doubt about ADA accessibility compliance should consider hiring an ADA compliance specialist or attorney to inspect the premises and promptly make any necessary changes.
Disabled man accuses shopping center operator of violating ADA
The Louisiana Record
A disabled Jefferson Parish man is suing the operator of a Metairie shopping center, alleging failure to provide proper access for disabled customers.
Stephen Carrier filed a lawsuit June 9 in U.S. District Court for the Eastern District of Louisiana against Continental Plaza Partnership and Robert Resources LLC, alleging discrimination in failing to comply with the Americans with Disabilities Act.
According to the complaint, on May 6, Carrier, who needs a wheelchair to get about, visited Continental Plaza, 5000 W. Esplanade Ave., where he experienced serious difficulty accessing the goods and utilizing the services due to architectural barriers at the facility.
Carrier alleges the defendants failed to remove the barriers to access on the property, even though their removal is easily achievable and failed to provide Carrier with an equal opportunity to participate in, or benefit from, the goods, services and accommodations that are offered to the general public.
Carrier seeks a trial by jury, declaration that the defendants are in violation of the ADA, an order directing defendants to make the property accessible to and usable by individuals with mobility disabilities, attorney fees, legal costs and expenses, and such other relief as the court deems proper. He is represented by attorneys Andrew D. Bizer, Garret S. DeReus and Marc P. Florman of The Bizer Law Firm in New Orleans.
U.S. District Court for the Eastern District of Louisiana Case number 2:16-cv-09477
Disability rights groups sue MTA over inaccessible subway station
New York Daily News
The MTA is rolling over the rights of disabled people by failing to make newly renovated stations wheelchair accessible, a new class action lawsuit charges.
In papers filed in Manhattan Federal Court, two disability advocacy groups say the MTA ignored the legal requirements of the Americans with Disabilities Act when they performed a $21 million renovation of the Middletown Road station in the Bronx, but failed to include an elevator.
Conquest helping banking websites become ADA compliant
Litchfield County Times
“With more and more consumers banking online,” stated Goshen resident Lance Leifert, CEO and co-founder of Conquest in Avon, Connecticut, a statewide leader in providing digital accessibility guidance for the banking industry, “the U.S. Department of Justice (DOJ) has redefined how banks must comply with the Americans with Disabilities Act (ADA), and how their customers with visual and hearing disabilities must have access to their website.”
Supreme Court Agrees to Hear Special Education Case
JD Supra
On June 28, the Supreme Court of the United States issued an order accepting to hear an appeal out of Michigan in the case Fry v. Napoleon Community Schools, No. 15-497, order granting cert, (June 28, 2016), that presents the issue whether parents must exhaust the administrative due process procedures under the Individuals with Disabilities Education Act (IDEA) before filing a lawsuit for money damages for disability-based discrimination under Section 504 of the Rehabilitation Act and the Americans with Disabilities Act. In that case, a young student with spastic quadriplegic cerebral palsy requested to have a service dog attend her public school with her. Fry v. Napoleon Cmty. Schs, 788 F.3d 622 (6th Cir. 2015), cert granted, (U.S. June 28, 2016). Through an individualized education program (IEP) meeting, the school district refused to allow the service dog to accompany the student at school based on its position that the student’s IEP already provided for a one-on-one paraprofessional who could meet the student’s needs and provide the services the service dog could provide. After the Office for Civil Rights (OCR) found that the district’s refusal to allow the service dog violated the ADA, the district ultimately agreed to allow the dog, but the parents chose to enroll the student in another school. The parents then filed a lawsuit in federal court alleging disability-based discrimination in violation of Section 504 and the ADA.
Both the federal district court and the Court of Appeals for the Sixth Circuit held that the parents were required to have exhausted the administrative due process procedures under the IDEA before filing a lawsuit alleging violations of Section 504 and the ADA because the IDEA requires exhaustion of those procedures even when parents bring Section 504 or ADA claims seeking relief that is also available under the IDEA. The courts rejected the parents’ argument that the IDEA’s exhaustion requirement did not apply because their discrimination claims did not allege a denial of FAPE. Instead, the courts held that the service dog issue implicated the student’s education and, therefore, the exhaustion requirement applied.
The Supreme Court will hear argument in this case in its next term and a decision in the case is expected by the end of June of 2017.
Revisiting the direct threat defense under the ADA
JD Supra
One of the defenses available to an employer under the Americans with Disabilities Act (ADA) is the idea that an accommodation of a qualified individual with a disability cannot be made when the employee poses a “direct threat to the health or safety” of themselves or others. A “direct threat” involves a significant risk of substantial harm to the health or safety of the employee or others that cannot be eliminated or reduced by a reasonable accommodation. A recent case in Oklahoma involved an employee with epilepsy who worked in a plant that manufactured ceramic tile products.
How Apps Can Help People With Disabilities Navigate Cities
CityLab
Broken sidewalks and inaccessible buildings can make for daunting trips, but a slew of mobile applications could change that.
U.S. Supreme Court to Hear Special Education Case Involving Service Dog
Education Week (subscription) (blog)
The U.S. Supreme Court on Tuesday agreed to take up a special education case stemming from a dispute over whether a Michigan girl with cerebral palsy was permitted to bring her service dog to school.
Supreme Court to hear case of deaf Texans seeking interpreter in state-licensed driver's ed classes
ABA Journal
The U.S. Supreme Court has agreed to decide a case brought by would-be drivers seeking a sign-language interpreter for driver-education classes.
The U.S. Supreme Court on Tuesday agreed to decide whether a Texas agency had to ensure the classes accommodated the disability. A private company licensed by the state provided the classes. The Austin American-Statesman and Courthouse News Service have coverage.
Texas refuses to give driver’s licenses to people under the age of 25 unless they supply a driver education certificate. The would-be drivers sued the Texas Education Agency for alleged violations of two federal laws, the Americans with Disabilities Act and the Rehabilitation Act.
At issue is whether the Texas Education Agency and the private company had dual obligations to accommodate deaf students, according to the cert petition (PDF).
ADA: 7th Circuit douses disability lawsuit by fire department applicants
HR.BLR.com
A recent decision from the U.S. 7th Circuit Court of Appeals—which covers Illinois, Indiana, and Wisconsin—demonstrates some fine distinctions between discriminatory and legitimate business decisions under the Americans with Disabilities Act (ADA).
7th Circuit affirms judgment for employee on ADA claim
Indiana Lawyer
The 7th Circuit Court of Appeals affirmed judgment for an employee who claimed the city of Anderson did not accommodate his disability when it fired him for not having a commercial driver’s license he could no longer get because of his diabetes.
Jack Brown worked for the Anderson Transit System for 28 years in a number of positions. He was a street supervisor when he was fired in 2012 after new mayor Kevin Smith came into office because he did not have a commercial driver’s license in a position that required him to have one. The city under a previous mayor was aware of this when he was promoted to the position. Brown was unable to keep his CDL because of his insulin-dependent diabetes.
Brown filed suit against the city of Anderson alleging it failed to accommodate his diabetes-related disability in violation of the Americans with Disabilities Act, and that it retaliated against him in response to political support for the Smith’s opponent. The District Court denied the city’s motion for summary judgment, and a jury found against Brown on his political claim but for him on his ADA claim. The jury awarded him $25,000 in compensatory damages and $65,274.64 in lost wages, benefits and interest. The city appealed.
The city claimed that having a CDL was an essential function of Brown’s job, and that this was a question of law for the court, and not the jury, to decide. However, the 7th Circuit said the CDL issue was a question of fact.
Because the inquiry goes to the sufficiency of the evidence, the city waived its right to appeal because it did not file a post-verdict motion under Rule 50(b). However, even if city did not waive its appeal, Brown proved having a CDL was not an essential function of the job. Brown never had to drive a bus while in his position and if he did, replacement drivers could generally be secured within 10 minutes.
The 7th Circuit also ruled the District Court did not abuse its discretion when it gave a jury instruction that the jury could consider the amount of time spent on the job performing the function in question. Federal Regulation 29 C.F.R 1630.2 notes evidence of whether a function is essential includes time spent performing the function, Judge Ann Claire Williams wrote, and the city didn’t give any good reasons why this regulation should be ignored.
The case is Jack Brown v. Kevin Smith, Mayor of the City of Anderson, et al., 15-1114.
Granite School District reaches settlement on website accessibility violations
Deseret News
The Granite School District has reached a settlement with the U.S. Department of Education to improve its website's accessibility to people with disabilities, federal authorities announced Wednesday.
The school district's agreement promises a thorough look at current practices and preempts a more comprehensive federal investigation of the website if it meets certain accessibility requirements within the next 18 months.
The Department of Education's Office for Civil Rights said it received a complaint, leading to the examination of the school district's website. The website lacked text descriptions that detail important images to blind and low-vision users, the department's Office for Civil Rights said in a statement.
Nixon signs bill requiring schools to test students for dyslexia
The Daily Star-Journal
Gov. Jay Nixon signed a bill requiring all state public and charter schools to screen students for dyslexia, a neurological disorder that affects reading, writing and spelling.
The bill also requires schools to provide “for reasonable support” for dyslexic children, and requires related teacher training.
House Bill 2379 establishes the two-year Legislative Task Force on Dyslexia, consisting of 21 members. The task force will recommend a statewide system “for identification, interventions and delivery of support for students with dyslexia” to including developing resource materials, professional development activities and proposed legislation.
Obligations to deaf patients extend beyond direct delivery of care
AAP News
Last month’s column discussed what the law requires when assisting families with low English proficiency (http://www.aappublications.org/news/2016/05/18/Law051816). This month’s column answers pediatricians’ questions regarding the legal requirements when caring for a deaf patient or a patient whose parent is deaf.
Federal violations impact voter access
Dahlonega Nugget
The clock is ticking on ADA compliance. And Lumpkin County is not going to make it.
With a deadline of Nov. 8 imposed by the Department of Justice (DOJ) to bring all local polling locations into Americans with Disabilities Act compliance, the Board of Elections voted to consolidate all seven county precincts into one.
Parks & Rec will be the single polling place to cast a ballot in the 2016 General Election.
“Basically, there were three options, find new locations that were ADA compliant, make repairs, or consolidate the precincts into one building the county already owns,” said Dottie Krull, chair of the Elections Board.
“This is ADA driven, and there’s just not that many buildings that are ADA compliant in Lumpkin County,” Chief Registrar and Elections Manager Ashley Peck told the Board of Commissioners at last week’s regular meeting.
A few of the fire stations in the county may be ADA compliant, but most are not. In addition, Krull said, there are other problems at those facilities.
“I used to vote at the one in Mill Creek. It’s too small and there is not enough parking,” she said.
The estimated cost of modifying the current polling places runs from $55,000 to $65,000, and that is for exterior modifications alone.
Woman says panic attack incident led to wrongful termination
The Pennsylvania Record
A woman is suing OSA Global LLC, a former employer, citing alleged disability discrimination and wrongful termination.
Sheila Larkin filed a complaint on April 23 in the U.S. District Court for the Western District of Pennsylvania against OSA Global LLC, alleging that the former employer violated Americans with Disabilities Act regulations.
Making beaches accessible to disabled an uphill battle for authorities
Charleston Post Courier
Wind, sand and waves don’t make for the most wheelchair-friendly environment, but the Lowcountry has a reputation for being hospitable to all — and the Americans with Disabilities Act doesn’t disappear just because someone approaches the water’s edge.
Discrimination complaint raised
Kokomo Perspective
Kokomo Cab raises wheelchair rates more than 100 percent, raising civil rights concerns and calling policy into question