By Myra Villamor, Minh Vu, and Kristina Launey

Seyfarth Synopsis: The Ninth Circuit Court of Appeals adopts a burden-shifting framework for analyzing claims involving the removal of pre-ADA barriers which requires the plaintiff to “plausibly show how the cost of removing the architectural barrier at issue does not exceed the benefits under the circumstances.”

Under the Americans with Disabilities Act (ADA), public accommodations must remove architectural barriers that pre-date the ADA and have not been altered if the removal is “readily achievable.”  The ADA and its regulations do not state which party bears the burden of showing that barrier removal is or is not readily achievable, so courts have had to devise their own approaches.

On September 9, 2020, in Lopez v. Catalina Channel Express, Inc., the Ninth Circuit ruled that to survive summary judgment, a plaintiff bears the initial burden to “plausibly show how the cost of removing the architectural barrier at issue does not exceed the benefits under the circumstances.”  And while a plaintiff  is not required – in meeting its initial burden – to address in detail each of the four factors for determining whether barrier removal is “readily achievable,” the Ninth Circuit noted that “it is in plaintiffs’ best interest to submit as much evidence as possible pertaining to each of the [four] factors in their initial barrier-removal proposal. Otherwise, plaintiffs risk meeting their initial burden but failing to ultimately prevail on summary judgment.” Those four factors are:

(A) “the nature and cost of the action needed”

(B) “the overall financial resources of the facility or facilities involved in the action; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such action upon the operation of the facility;”

(C) “the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and”

(D)  “the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity.”

42 U.S.C. § 12181(9)(A)–(D).

The Ninth Circuit then stated that “[if]f the plaintiff makes a plausible showing that the requested accommodation is readily achievable, the burden shifts to the defendant to counter the plaintiff’s initial showing, and at that point the district court is required under the statute to weigh each of the § 12181(9) factors to determine whether removal of the architectural barrier is readily achievable or not.”

Even though the district court had applied a more stringent standard in granting summary judgment to the defendant, the Ninth Circuit nonetheless affirmed the district court’s conclusion that the plaintiff failed to meet his initial, less onerous, burden under its newly-articulated burden shifting framework.  Specifically, the plaintiff alleged that the restroom door on defendant Catalina Channel Express’s Jet Cat Express passenger ship was too narrow for his wheelchair to enter, in violation of the ADA and California Unruh Civil Rights Act. On cross-motions for summary judgment, Lopez submitted a scanty two-page declaration from a “private investigator” stating the doorway to the restroom could be widened to 34-inches if the sliding door was not blocked by a metal pin on top of the door. The Ninth Circuit concluded that Lopez failed to meet his initial burden of establishing that a suggested method of barrier removal was readily achievable, and found that the private investigator’s declaration “only identifies the problem,” but “does not bear on the question of whether remediating the problem is readily achievable.” The Ninth Circuit found the plaintiff provided no evidence as to how much the requested barrier removal might cost, much less any evidence showing that the cost of widening the restroom doorway does not exceed the benefits (i.e., that widening the restroom doorway was readily achievable).

The Ninth Circuit’s decision on this point did not conclude the matter, however. The Ninth Circuit held that the plaintiff could still prevail if he could show that Catalina could have made the restroom available to Lopez through alternative methods without much difficulty or expense. Because the district court did not evaluate this issue, the Ninth Circuit remanded and directed the district court to determine this remaining question, as to whether there is sufficient evidence that “Catalina could have made the restroom available to Lopez through alternative methods without much difficulty or expense.”

There are two key takeaways for businesses from this decision:  In considering whether or not the removal of a pre-ADA barrier is readily achievable, a business must carefully analyze and document the four factors set forth in the regulation and weigh the cost and benefit of the barrier removal. Additionally, it must determine if there are alternative ways to make the goods and/or services in question accessible to the plaintiff without much difficulty or expense. If there are, those alternative methods should be implemented.

By Minh N. Vu, Kristina Launey, and Susan Ryan

Seyfarth synopsis:  Businesses enjoyed a brief reprieve in ADA Title III lawsuits while the country was shut down but the rest of the year will most likely be business as usual.  

In the first six months of 2020, 4,759 ADA Title III lawsuits were filed in federal court, as compared to 5,592 of such suits filed in the first six months of 2019, for a decrease of 15 percent during this period.  This downtick is largely due to the significantly fewer  filings in April and May of 2020, when most of the country was shut down.  Based on this data, we predict that 2020 will end with fewer lawsuits than in 2019, but expect numbers to pick back up with the country and courts slowly reopening, for a year-end decrease that will likely be much less than 15 percent.

[Total Number of ADA Title III Federal Lawsuits Filed Each Year, January 1, 2020 – June 30, 2020; 2013: 2,722; 2014: 4,436 – 63% increase over 2013; 2015: 4,789 – 8% increase over 2014; 2016: 6,601 – 38% increase over 2015; 2017: 7,663 – 16% increase over 2016; 2018: 10,163 – 33% increase over 2017; 2019: 11,053 – 9% increase over 2018; 2020: 4,759 as of 6/30/20]

The number of lawsuits filed per month dipped significantly in April and May – with 572 and 538 lawsuits, respectively – and then rebounded in June and July.  July saw 954 lawsuits filed — the second highest monthly number in 2020.  July’s sharp uptick suggests that federal courts will be very busy with ADA Title III lawsuit filings for the rest of 2020.

[Total Number of Federal ADA Title III Lawsuits Filed Per Month January 1, 2020 – July 31, 2020: January: 973; February: 930; March: 888; April: 572; May: 538; June: 858; July: 954]

California (2,702 lawsuits), New York (756 lawsuits), and Florida (574 lawsuits) continue to lead the country in the number of federal filings. The top ten states for federal ADA Title III filings has changed only slightly, with the addition of Massachusetts which has had 39 lawsuits this year.  Alabama fell out of the top ten with only 18 lawsuits.

[Top 10 States with Federal ADA Title III Lawsuits Filed January 1, 2020 – June 30, 2020: California: 2,702; New York: 756; Florida: 574; Texas: 136;  Georgia: 120; Illinois: 85; Pennsylvania: 72; Massachusetts: 39; Colorado: 37; New Jersey: 26]

What are these lawsuits about?  Based on the many cases we see in our practice, most cases concern allegedly inaccessible physical facilities or websites, or hotel reservations websites that do not have sufficient accessibility information about their accessible rooms and common areas.  Some plaintiffs have also filed suit about strict COVID-19 mask policies, though it seems most plaintiffs’ firms are waiting to see what happens in those cases before diving in.

Our Methodology:  Our overall ADA Title III lawsuit numbers come from the federal court’s docketing system, PACER.  However, because the area of law code that covers ADA Title III cases also includes ADA Title II cases, our research department reviews the complaints to remove those cases from the count.

By Minh N. Vu

Seyfarth Synopsis:  California state courts are becoming an even friendlier jurisdiction for plaintiffs filing lawsuits about allegedly inaccessible websites.

The U.S. Court Appeals for the Ninth Circuit has longstanding precedent that only businesses with a brick and mortar location that customers can physically visit are “public accommodations” covered by Title III of the Americans with Disabilities Act.  Following this precedent, in 2015, it held that Title III does not apply to online-only businesses such as eBay and Netflix.  The Ninth Circuit is not alone in its position—the Eleventh Circuit has reached the same conclusion.  However, other circuits, such as the First Circuit, have concluded that businesses do not need to have a physical place of business where customers go to qualify as public accommodations so long as they fall within the twelve categories of businesses identified by the ADA as “public accommodations.”  While the First Circuit did not reach this conclusion in a website accessibility case, district courts in the First Circuit have applied this precedent to hold that online-only businesses are covered by Title III of the ADA.

Because neither the U.S. Supreme Court or the California Supreme Court have considered the issue of whether an online-only business is covered by Title III of the ADA, California state court judges have latitude in deciding this issue.  Last week, California Superior Court Judge Gregory Kiosan decided  that Title III of the ADA does cover online-only businesses and refused to dismiss a lawsuit filed against an online-only video game retailer.  In December 2019, California Superior Court Judge Angel Bermudez also refused to dismiss a lawsuit against an online-only business on the same basis.

California Superior Court judges are opining on federal law because a plaintiff can establish a violation of California’s Unruh Act by demonstrating a substantive violation of Title III of the ADA. Thus, in deciding website accessibility cases under Unruh, California judges must determine whether online-only businesses are covered under the federal law.

Although the decisions of these two judges are not binding on any other California judges and may ultimately be overruled by a California appellate decision, they suggest that California state court may be a good choice for plaintiffs seeking to sue an online-only business for an allegedly inaccessible website, and provide a likely explanation for why the number of website accessibility lawsuits filed in federal courts in California is fewer than one might expect.

Edited by Kristina Launey

By John W. Egan

Seyfarth Synopsis: A new law in Florida takes aim at fraudulent requests for emotional support animals in housing by requiring that residents do more than provide online animal “registrations” or certificates, mandates that health care providers have personal knowledge of their patients’ disabilities and related needs before supporting these requests under threat of professional discipline, and even provides for criminal penalties.

Florida recently enacted a law intended to combat fraudulent requests for emotional support animals in housing.  Effective July 1, 2020, SB 1084 provides that animal registries, certifications, and similar online documents are insufficient to support these requests.  Significantly, the law also provides a basis for professional discipline for health care practitioners that issue supporting documentation without personal knowledge.  Further, it imposes criminal penalties for those who make or support fraudulent requests for these animals in housing.

What is an emotional support animal?  SB 1084 defines it as “an animal that does not require training to do work, perform tasks, provide assistance, or provide therapeutic emotional support by virtue of its presence which alleviates one or more identified symptoms or effects of a person’s disability.”  Contrast that with a service animal which, by definition, must be trained to perform work or tasks for a person with a disability.

The federal Fair Housing Act has always required housing providers to accommodate emotional support animals.  SB 1084 adopts that requirement under Florida law and provides guidance about the documentation that a housing provider can ask for when considering a request to accommodate an emotional support animal.

For example, a housing provider can only request medical support when the resident’s disability is not readily apparent, and it cannot require disclosure of the resident’s diagnosis or severity of a disability.  If the evidence that the resident provides is sufficient, then the provider cannot charge a fee or higher rent based on the animal (but it can assess charges for property damage caused by that animal).  Additionally, consistent with federal rules, the Florida law provides that a housing provider is under no obligation to accommodate an animal that poses a direct threat to the health or safety of others, where that threat cannot be reduced or eliminated by another reasonable accommodation.

The Florida law goes further than federal law, however, to address what type of supporting evidence is and is not legally sufficient for emotional support animal requests.  Also, unlike federal law, SB 1084 imposes penalties on those who make (and support) fraudulent requests.  Here are the key aspects:

Online Registries and Certifications Insufficient.  An emotional support animal registration of any kind, including an identification card, patch, certificate, or similar registration document obtained from the internet is not, by itself, sufficient to show a resident disability or need for the animal.  For health care or other practitioners to provide reliable information about resident disabilities and emotional support animals, they must have personal knowledge of the resident’s disability and be acting within the scope of their practice to provide the supporting information.

Out-of-State Support Limited.  The law places limitations on out-of-state health care and other practitioners (excluding licensed telehealth providers) that certify these requests.  To document that a resident has a disability, an out-of-state practitioner must have provided in-person care or services to the resident on at least one occasion.

Potential for Professional Discipline For Health Care Providers.  Offering information about either a person’s disability or disability-related need for an emotional support animal, without personal knowledge, is grounds for disciplinary action.

Criminal Penalties.  A person who falsifies information or documents, or knowingly provides fraudulent information or documents, to support an emotional support animal request, or who otherwise knowingly and willfully misrepresents their disability status or needs, commits a misdemeanor offense in the second degree.  A convicted offender must also perform 30 hours of community service for an organization that serves people with disabilities, or another organization designated by the court.

*                  *                  *

Reports of outlandish or exotic animals being passed off as emotional support animals on airplanes or in housing, while often entertaining, obscure the legitimate function of these animals for people with disabilities.  Emotional support animals are not pets, and often provide critical assistance for people with disabilities.  Also, “no pet” rules in housing serve the legitimate function of reducing animal hair and dander in living spaces for the benefit of residents with allergies and other respiratory disabilities and impairments.

The Florida law is a welcome development for housing providers that seek to abide by their “no pet” rules, and make exceptions only for non-fraudulent requests by residents with disabilities.  Other jurisdictions facing similar abusive practices may take note and consider whether to implement their own legislation in the future.

Edited by Minh N. Vu

Seyfarth Synopsis: The ADA Title III team launches the final installment of its 3-part video series containing 30 tips for businesses on how to better serve individuals with disabilities. This final segment addresses how to effectively and appropriately communicate with individuals with disabilities.

We are two days away from the 30th Anniversary of the ADA.  What better way to say “Happy Birthday” to our favorite law than to provide 10 tips on how to effectively and appropriately communicate with people with disabilities.  Check it out here.

Interacting with a person with a disability need not be intimidating or confusing.  Our final installment of ADA 30: 30 Tips for 30 Years provides guidance for a variety scenarios to ensure that individuals with disabilities have a great experience at your place of business.

We hope you find this final segment fun and educational.

If you haven’t seen them, be sure to check out Part 1 (facilities) and Part 2 (reasonable modifications of policies and procedures) of our series.

An audio description of Part 3 is available here.

Seyfarth Synopsis: The ADA Title III team launches the second installment of its 3-part video series containing 30 tips for businesses on how to better serve individuals with disabilities. This video covers reasonable modifications to normal policies, practices and procedures.

Take a look at Part 2 of our video series!

If you enjoyed Part 1 of ADA 30:  30 Tips for 30 Years video, you are in for a treat because our attorneys worked hard to make Part 2 even more entertaining – while still providing you useful tips.  This video addresses the obligation of businesses to make reasonable modifications to their policies, practices, and procedures to ensure access to their goods, services, and privileges by individuals with disabilities and contains tips about service animals, miniature horses, emergency evacuations, event ticketing, hotel reservations, food allergies, non-traditional mobility devices, and so much more.

An audio description of Part 2 is available here.

We hope you enjoy the video and maybe learn something new.

Seyfarth Synopsis: The ADA Title III team makes a 3-part video series containing 30 tips for businesses on how to better serve individuals with disabilities.

July 26, 2020, is the 30th anniversary of the Americans with Disabilities Act.  To mark this important occasion, attorneys from Seyfarth’s ADA Title III Team put on their best work-from-home shelter-in-place attire to create a video series of 30 compliance tips for businesses.  In each of the next three weeks, we will release a video containing 10 tips based on compliance issues that we most often see in our practices.  Today’s video, Part 1, covers accessible facilities.  Next week, Part 2 will cover reasonable modifications to policies, practices and procedures, and the following week, Part 3 will address effective communication with people with disabilities.

We hope you enjoy this video series as much as we enjoyed making it.  We are especially grateful for the video production and editing skills of our colleague Kevin Fritz who pulled this all together.

An audio description of Part 1 is available here.

Seyfarth Synopsis: A second California Court of Appeal rules that websites with a nexus to a physical place of business are covered by Title III of the Americans with Disabilities Act, while a California trial court insists that online-only websites are covered as well, contradicting the U.S. Court of Appeals for the Ninth Circuit.

On June 18, 2020, the California Court of Appeal for the Fourth Appellate District became the second California Court of Appeal to rule, in Martinez v. San Diego County Credit Union (SDCCU), that websites with a nexus to a physical place of business where customers go are covered by Title III of the Americans with Disabilities Act (ADA).  The first decision, in Thurston v. Midvale, was issued in September 2019 by the Second Appellate District Court of Appeal and affirmed the trial court’s ruling that Midvale violated the ADA and California Unruh Civil Rights Act by having a restaurant website that could not be used by a blind person with a screen reader. The SDCCU decision reversed a trial court’s decision that the website of a credit union with physical banking location was not a “public accommodation” under the ADA. These two California state court appellate decisions are consistent with the position of the federal U.S. Court of Appeals for the Ninth Circuit, which has also held that a website with a nexus to a physical place of business where customers go is covered by the ADA on the theory that the website is a service or benefit of a place of public accommodation.

The SDCCU decision is noteworthy because the Court of Appeal discussed at length what it means to have a “nexus” to a physical place of business. It noted that the courts have not yet articulated a single standard on this issue, but that most federal circuits and one California Court of Appeal (Midvale) have found that a nexus exists if the facts show the website “connect[s] customers to the goods and services of [the defendant’s] physical” place.  This standard is much less demanding standard than in, say, the 11th Circuit, which requires plaintiffs seeking to bring ADA claims about inaccessible websites must show that a barrier on the website prevented them from enjoying the goods and services of that physical place.

The SDCCU Court of Appeal expressly withheld its opinion on whether a website with no nexus to a physical place (i.e. an online-only business) is covered by the ADA since the defendant credit union had a physical location.

On that question, at least one California state trial court (in Riverside County) has (recently) decided that an online-only business is covered under Title III of the ADA.  In Martinez v. Kydia Inc., the trial court acknowledged the U.S. Court of Appeals for the Ninth Circuit had reached the opposite conclusion in several cases but chose not to follow these holdings. Instead, the Court of Appeal framed the issue as “whether equality applies to a non-physical marketplace within the meaning of Title III of the ADA.” The court noted that there is “no direct guidance in California through the district courts”, and that it was “not persuaded” by the Ninth Circuit’s Domino’s (and Target) decision because there was a nexus in those cases, before examining decisions in out-of-state district courts on the issue. The SDCCU Court of Appeal cited dicta in the Thurston v. Midvale Court of Appeal decision that “Congress intended the ADA to ‘keep pace with rapidly changing technology’ and “[e]xcluding websites just because they are not built of brick and mortar runs counter to the purpose of the statute.”

The takeaway from these cases is that in California state and federal courts, the websites of brick and mortar businesses falling into the definition of a “public accommodation” under Title III of the ADA are covered by the law. Whether online-only businesses are covered by Title III of the ADA remains an open question in California state court, with at least one trial court now saying the answer is yes.

Edited by Minh N. Vu

Seyfarth Synopsis:  The Ninth Circuit holds that the ADA does not require a 36 inch length of clear sales counter space when the entire counter provided for all customers is at an accessible height.

When a business provides only one sales counter for all customers to use and that entire counter is at an accessible height of 36 inches or less, does the ADA require that counter be at least 36 inches long and clear of all objects?

Earlier this week, deciding appeals in three separate cases handled by Seyfarth attorneys, the U.S. Court of Appeals for the Ninth Circuit said there is no such obligation.  The Court cited the Exception to Section 904.4.1 of the ADA Standards for Accessible Design (the “2010 Standards”) as clear regulatory support.  The U.S. Department of Justice had reached the same conclusion about this counter configuration in an amicus brief it filed in one of these three cases before the judge granted summary judgment for the defendant, but the plaintiff still sought appellate review.

All three cases involved the same retailer which had covered a portion of the transaction counter with merchandise displays, rendering the counter less than 36 inches long.  The Ninth Circuit concluded that the plain language of Exception to Section 904.4.1 of the 2010 Standards permits this: “Where the provided counter surface is less than 36 inches (915 mm) long, the entire counter surface shall be 36 inches (915 mm) high maximum above the finish floor.”  In a footnote, the court said it was not opining on whether the Section 904.4.1 Exception requires any particular clear length of accessible counter – only that 36 inches of clear length is not required as demanded by the plaintiffs.

The plaintiffs in these cases also argued that the ADA regulation at 28 C.F.R. § 36.211(a) imposed a requirement on the retailer to maintain a clear length of 36 inches of sales counter.  This regulation says:  “A public accommodation shall maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities by the Act or this part.”  The Ninth Circuit rejected this argument, stating that “the maintenance requirements cannot be more stringent than the building requirements” which do not require 36 inches of clear length.

Bottom line:  Businesses can provide less than 36 inches of clear counter space as long as everyone is using the same counter and that counter is entirely at an accessible height.

Edited by Kristina Launey

By Minh N. Vu

Several weeks ago, we blogged about mask objectors presenting businesses with documents bearing the U.S. Department of Justice seal stating that they are not required to wear masks because of their disability.  Last week, the DOJ issued a statement that “[t]he Department of Justice has been made aware of postings or flyers on the internet regarding the Americans with Disabilities Act (ADA) and the use of face masks due to the COVID-19 pandemic, many of which include the Department of Justice’s seal.  These postings were not issued by the Department and are not endorsed by the Department.” This statement makes clear that the DOJ has not taken a position on whether businesses can lawfully deny entry to people who refuse to wear masks because of a claimed disability, but provides no guidance to business presented with this thorny issue.

To further complicate matters, jurisdictions such as New York City, Virginia, and Pennsylvania that have issued executive orders mandating the wearing of masks in public all differ slightly on how businesses should respond to people who cannot wear masks because of a disability or medical condition.

The New York City guidance suggests that a business may be able to exclude people who refuse to wear masks because of a medical condition or disability as long as the business offers alternatives to access the business’ goods and services.  The NYC guidance states:

Where a customer declines to wear a face covering due to a medical condition or disability, you cannot require the individual to provide medical documentation verifying the health issue. In addition, you must discuss with the individual whether there is a way you can provide a reasonable accommodation that will not cause you an undue hardship. You should try to provide alternative arrangements that are workable for your store, your staff, and your other customers. These arrangements will vary considerably based on each store’s ability to make accommodations without creating a hardship on the business.

Depending on the staffing and layout of the retail store, some examples of accommodations that may be reasonable and not cause undue hardship to you are:

  1. Have an employee bring the individual the items they want to buy and allow the individual to pay for them at the front of the store.
  2. Have the individual leave a list of items with the store and then deliver the items to their home.
  3. Inform the individual that they may order by telephone or online and have items delivered to their home.
  4. Suggest that the individual have a friend or family member do their shopping.

The Pennsylvania guidance, on the other hand, says “individuals who cannot wear a mask due to a medical condition (including children under the age of 2 years per CDC guidance) may enter the premises and are not required to provide documentation of such medical condition.”

The Virginia guidance takes an approach similar to Pennsylvania, stating:

Nothing in this Order shall require the use of a face covering by any person for whom doing so would be contrary to his or her health or safety because of a medical condition.  Any person who declines to wear a face covering because of a medical condition shall not be required to produce or carry medical documentation verifying the stated condition nor shall the person be required to identify the precise underlying medical condition.

All of these orders prohibit a business from asking a customer about his or her medical condition or disability once the customer has informed the business of the existence of the condition or disability that prevents them from wearing a mask.  The orders differ as on whether a business can lawfully exclude such individuals from the premises.

The fact that a jurisdiction exempts individuals with disabilities and/or medical conditions from its mask mandate does not necessarily mean that private businesses cannot impose more stringent mask requirements to protect their employees and customers.  However, such requirements may be challenged as unlawful under Title III of the ADA.  In fact, just last week, nine such lawsuits were filed in federal court claiming a retailer’s mask policy violated the ADA.  A business defending such a challenge would have to show that requiring masks to be worn by all individuals inside a facility is a legitimate safety requirement, and that making an exception for people with claimed disabilities is not a reasonable modification of the policy.  While it is difficult to predict how courts will rule on this novel issue, businesses can better position themselves for such a challenge by documenting the reasons for the policy at the time the business enacts the policy (e.g., governmental mandate, CDC guidance, etc.), as well as the business’ inability to modify the policy (including all possibilities for modifications considered), put in place alternative measures for providing goods and services to businesses that do not require entry into a facility, and train employees on the existence and appropriate communication of those alternatives.

Of course, businesses could avoid this litigation risk by allowing people claiming a disability or medical condition to enter their premises without a mask, although this heightens the risk of COVID-19 exposure for employees and customers and other potential liability outside of Title III of the ADA.  A rock and a hard place indeed.