Seyfarth Synopsis:  Our thoughts on the impact of the election on the ADA Title III landscape.

We now know that January 20, 2017 will bring a definitive regime change. How will this change impact Title III of the ADA, the current litigation environment, and pending Department of Justice (DOJ) regulations and enforcement activities?  Here are our thoughts.

The ADA was created through bipartisan effort, signed into law by President George Bush in 1990.  Since that time, the law has only been amended once – in 2008 – to expand the definition of what constitutes a covered “disability.”  In our experience, politicians are reluctant to take any action that would be viewed as being harmful to people with disabilities.  Thus, earlier efforts to amend the law to curb lawsuit abuse were unsuccessful.  More recently, in response to the surge in the number of ADA Title III lawsuits, business groups have again pushed for reform legislation to address so called “drive-by” lawsuits.  These lawsuits are brought by serial plaintiffs who have filed hundreds of cases and are not likely to be real customers seeking to access the goods and services of a targeted business.  Bills introduced in the House and Senate to address this situation may gain more traction with a Republican President and Republican-controlled Congress.  That said, the Trump administration will have many higher priority items to push through Congress, so we doubt that the law will change any time soon.  Because changes to the law are unlikely, we do not foresee a decrease in the number of ADA Title III lawsuits filed in the coming years.

The impact of a Trump administration will most likely be felt at the DOJ, which is responsible for issuing ADA Title III regulations and enforcing the law.  The Trump administration will appoint a new Assistant Attorney General for Civil Rights, as well as the deputies and counselors who will oversee the Civil Rights Division.  The Disability Rights Section (DRS) – which has responsibility for the ADA – is within this Division.

The new Assistant Attorney General for Civil Rights and his or her political appointees will set the regulatory and enforcement agenda for DRS.  On the regulatory front, DOJ is currently working on proposed rules for websites, equipment and furniture, and movie captioning and audio description.  The new leadership will need to review and provide policy direction on those proposed rules, which could result in further delays.  The review will likely affect the content of those rules as well.  One significant question that the DOJ has posed for public comment concerning the proposed website rule is whether there should be less demanding standards for small businesses.  Although DOJ has, in the past, refused to create less stringent rules for small businesses, a Trump administration may be more sympathetic to the plight of small business owners in these upcoming regulations.

It is also possible that a Trump administration would simply abandon all rulemakings currently under development, given the President-elect’s stated aversion to regulations generally.  Such an action would actually be harmful to businesses which need certainty about their obligations, especially when it comes to their websites.  The absence of regulations has created a vacuum that plaintiffs’ attorneys are filling with a tsunami of demand letters and lawsuits that are catching businesses by surprise.  The issuance of clear and sensible rules would put an end to this chaos, and the Trump administration should instead work quickly to issue them.

With respect to enforcement, a Trump administration may be less inclined than the current one to pursue actions that would expand the existing boundaries of the law.  For example, one DOJ enforcement stance that we have found troubling is its aggressive effort to pressure businesses to immediately make their websites and mobile apps accessible in conformance with a privately developed set of accessibility guidelines, even though DOJ has not issued even proposed regulations that would adopt a technical standard for what constitutes an accessible website and set a date for compliance with that standard.  It is possible that a Trump administration would discontinue these enforcement actions until a final rule is issued, although we would be surprised if this actually took place.

For now, all we know is that there likely be some change, and we will be here to report it to you when it happens.

By Minh Vu and Paul Kehoe

Since we reported that the Department of Justice (“DOJ”) issued its proposed regulations last month concerning the definition of a “disability” under Titles II (applicable to state and local governments) and III (applicable to public accommodations) of the Americans with Disabilities Act (ADA), we have received a number of inquiries about the regulations’ impact and whether clients need to take any action.  We share here our initial thoughts.

Background and Key Provisions.  The proposed regulations implement the ADA Amendments Act of 2008 (ADAAA) which amended the Americans with Disabilities Act of 1990 (ADA).  Congress passed the ADAAA in response to several court decisions, including from the Supreme Court, that narrowly interpreted the definition of “disability.”   The point of the ADAAA, according to the DOJ, was to “mak[e] it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the statute.”

In March 2011, the Equal Employment Opportunity Commission (“EEOC”) issued its final regulations to implement the ADAAA’s requirements for Title I of the ADA, which prohibits disability discrimination by employers.  These DOJ proposed regulations will implement ADAAA requirements for Titles II and III of the ADA, which prohibit discrimination in state and local programs and by public accommodations, respectively.  DOJ’s proposed regulations closely track the statutory requirements of the ADAAA and the EEOC’s final regulations.

The ADAAA did not change the ADA’s definition of disability, which continues to be: Continue Reading More People Will Be Individuals With a "Disability" Under Proposed Justice Department Regulations

By Minh. N. Vu

The Department of Justice (DOJ) yesterday published a proposed rule to expand the definition of the term “disability” under Titles II and III of the Americans with Disabilities Act (ADA).  (Title II applies to state and local governments and Title III applies to public accommodations.) The revision purports to make the Title II and III regulatory definition of the term “disability” consistent with the definition of that term contained in the ADA Amendments Act of 2008.   The Notice of Proposed Rulemaking states that the public accommodations to be impacted are post-secondary educational institutions and entities that provide test administration services due to the increased number of people who will have qualifying disabilities entitling them to test-taking accommodations.  The DOJ estimates the financial impact of the rule on public accommodations to be $382 million over the next eleven years (in net present value terms, applying a 7% discount rate).

Our impression after a first read is that the expanded definition of what constitutes a protected disability under the ADA will have a far broader impact on public accommodations than advertised.  We are reviewing the proposed rule and will be back with further analysis in the coming weeks.

The public comment period for this proposed rule is 60 days from the regulation’s publication date of January 30, 2014.

Edited by Kristina M. Launey

The ADA regulations currently contain no technical specifications for accessible hotel guest room beds.   According to The U.S. Department of Justice (DOJ), travelers with mobility disabilities often complain that beds in many lodging facilities are too high for a transfer to and from a wheelchair.  Other travelers with mobility disabilities have complained that the use of platform beds prevents them from using portable lifts because such lifts require space under the bed. 

In response to these complaints, DOJ stated in 2010 its intention to issue a proposed rule that would regulate beds in mobility-accessible guest rooms in lodging facilities.  The DOJ recently pushed back the date for this proposed rule until July 2014. 

This delay is a bit of a reprieve for the lodging industry, which expressed its concerns about the forthcoming bed regulation in comments it filed in response to the 2010 Advanced Notice of Proposed Rulemaking.  If the DOJ adopts the same height standard for beds as it has for benches and toilet seats (17”-19” above the floor), beds in accessible rooms will be much lower than they are now and travelers without disabilities assigned to these rooms will be even more dissatisfied.  Hotels already receive many complaints from non-disabled guests about being assigned accessible rooms with grab bars and roll-in showers when there are no non-accessible guest room options left.  There is a real economic impact to this possibility:  Hotels must sometimes offer complimentary amenities to non-disabled guests who are unhappy with their accessible room assignments.    

Lowering bed heights will create another problem if the DOJ also tries to provide under-bed clearance for portable lifts.  California law requires 7” of clear height under beds in accessible guestrooms for this purpose but does not limit the height of the bed.  If the DOJ imposes a 7” under bed clearance requirement and a 19” bed height requirement, the combined height of the mattress and box spring could not be more than 12”.    This leaves little room for a premium mattress and box spring.

It will be interesting to see how DOJ deals with these issues if and when it does issue a proposed rule.  In the meantime, lodging facilities should consider these issues when purchasing new bed foundations, mattresses, and box springs.  Beds on frames instead of platforms are much easier to lower (i.e., the frame can be removed) if a guest with a mobility disability asks for the bed to be lowered to a transferable height.  (Frames instead of platforms are also advisable in states, such as CA, which require space under the bed for a lift.)  It may be possible to purchase high quality mattresses with detachable pillow tops that can be removed to make the bed lower.  A hotel that is proactive about this issue will have happier guests with disabilities and potentially less to change when the regulations do come out.