By Minh N. Vu

Seyfarth synopsis:  The Ninth Circuit holds that a restaurant’s practice of exclusively providing service at the drive-through and refusing to serve pedestrians at the drive-through line does not violate the ADA.

Many fast food restaurants nowadays take food orders and deliver food exclusively at the drive-through window during certain business hours.  Due to safety concerns, at many locations, restaurants do not allow pedestrians to order at the drive-through window.  Blind customers who do not drive have filed lawsuits against restaurants over this practice, alleging that this facially-neutral practice denies them access to the food offered by these establishments.

So far, the restaurants are winning.  Last week, the Ninth Circuit in Szwanek v. Jack in the Box held that the fast food restaurant’s practice of only providing service at the drive-through does not violate the ADA, even if the practice prevents blind people from being able to independently order food.  The court stated:

A facially neutral policy, like the one at issue here, violates the ADA only if it burdens a plaintiff “in a manner different and greater than it burdens others.”  The operative complaint does not plausibly allege that the Jack in the Box policy did so. The refusal to serve food to pedestrians at drive-through windows does not impact blind people differently or in a greater manner than the significant population of non-disabled people who lack access to motor vehicles. If these non-disabled individuals wish to purchase food at Jack in the Box restaurants when the dining rooms are closed, they face precisely the same burden as blind people—they must arrive at the drive-through window in a vehicle driven by someone else.

(citations omitted).  The court distinguished this case from another Ninth Circuit decision from 1996 (Crowder v. Kitagawa) in which the court concluded that Hawaii’s 120-day quarantine requirement for all dogs violated the non-discrimination requirements of Title II of the ADA (applicable to state governments) because the requirement “burdens visually-impaired persons in a manner different and greater than it burdens others.”  The court noted that visually-impaired people have a “unique dependence upon guide dogs” and the quarantine “effectively denied these persons… meaningful access to state services, programs, and activities while such services, programs, and activities remain open and easily accessible by others.”  The Ninth Circuit in Crowder had relied in part on the legislative history of the ADA which evidenced Congress’ intent to ensure that people with disabilities are not separated from their service animals.

Ninth Circuit Judge Watford dissented in Szwanek, stating his view that the “drive-thru only policy unduly burdens the blind because, as a result of their disability, they are unable to drive,” and “[t]he blind (and others whose disabilities preclude them from driving) are entitled to a reasonable modification of the drive-thru only policy because that is what’s necessary to afford them “full and equal enjoyment” of the goods Jack in the Box offers.”  While finding that the plaintiff did state a claim for violation of the ADA on the facts alleged in the Complaint, Judge Watford acknowledged that the restaurant might ultimately be able to show that the demanded modification of the policy was not reasonable or would fundamentally change the nature of the goods and services offered by the restaurant, but that those questions could not be decided on a motion to dismiss.

Szwanek comes on the heels of a district court decision from the Northern District of Illinois which also concluded that another fast food restaurant did not violate the ADA by limiting service to the drive-through and not allowing pedestrians to order at the drive-through window.  The trial court there concluded that the reason the plaintiff was denied service was because he was a pedestrian, not because he was disabled.  The court did not address the ADA’s obligation to make reasonable modifications to normal policies, practices and procedures that are necessary to ensure access, however, and the case is now on appeal to the Seventh Circuit.

Stay tuned for more updates on this evolving issue.

Edited by Kristina Launey

 

By Kristina M. Launey

Seyfarth Synopsis: On October 18, the DFEH issued Guidance which expressly approves denial of entry to individuals who cannot show a negative COVID test or proof of vaccination, refuse to have their temperature taken or respond to COVID-19 symptom screening questions, subject to providing reasonable accommodations to customers with disabilities.

In the latest COVID-related quandary, businesses have been bombarded with requests for exemptions to vaccination and testing requirements on the basis of disability or religion by employees and customers alike. While the EEOC had provided guidance on the employment front, there was scant guidance regarding what places of public accommodations (under Title III of the Americans with Disabilities Act [“ADA”]) and business establishments (under California’s Unruh Act) can and cannot require in the way of vaccinations and COVID-19 testing as prerequisites to entry to the business.  Until now.

On October 18, the DFEH issued a Press Release announcing the also-issued Guidance for California Businesses Regarding Covid-19 Safety Measures and Reasonable Accommodations. The Guidance authorizes businesses to require proof of vaccination, proof a recent negative COVID-19 test, and/or to wear a mask, and to deny entry or service to those to refuse.  The Guidance also specifically states that businesses may ask customers if they have COVID-19 symptoms, and/or take customers’ temperatures, and refuse service to people with COVID-19 symptoms such as loss of taste or smell, fever, or coughing.  The business may deny entry or service to someone who refuses to have their temperature taken or state whether they have COVID-19 symptoms.

The Guidance includes two caveats:

(1) These actions must be applied equally to all customers.  If they are imposed only on customers with particular characteristics, such as customers who appear to be from a foreign country, then the business violates the Unruh Act.

(2) A business must reasonably accommodate individuals with a disability that prevents them from complying with any of the above safety measures unless the accommodation or modification would create a direct threat to the health or safety of others, an undue burden to the business, or a fundamental alteration to the business’s practices.  The Guidance explicitly states that the business must take the customer’s representation that they have a disability preventing them from complying with the COVID-19 safety measure without question or digging for more detail.  The business can only engage in a type of “interactive process” with the customer to determine what reasonable alternative to allow the customer access may exist while still protecting employees and other customers.

The Guidance states that the type of reasonable alternative may need to be provided is determined on a case-by-case basis – taking the same approach we recommended earlier this year.  The Guidance identifies the following factors to consider:  The business’s layout, number of employees on duty, types of goods or services offered, customer’s needs, and whether other customers are present.  The Guidance provides examples such as a grocery store providing curb-side service to a customer, a small computer store providing service by phone, video, or text, or a bar providing outdoor service to a customer.  The Guidance recognizes there are times when there a reasonable accommodation might not be available because possible alternatives create a direct threat to the health or safety of others, an undue burden to the business, or a fundamental alteration of the business.  The Guidance provides some examples:  A salon or barbershop where customers and employees are in close contact would be justified in denying services to an unvaccinated customer; but if that customer only wanted to buy shampoo, the salon could bring the product to the customer at the curb.  As another example, a theater that denies entry to an unvaccinated patron might set up a screening outside unless it would be an undue burden or fundamental alteration of the theater’s business.

We have seen requests for exemptions to masking requirements, then vaccination mandates, based on disability since the inception of the pandemic.  What about religious exemptions of which we’ve seen more and more lately?  The Guidance states that the DFEH is not aware of any published court decision or other source of law clearly establishing that the Unruh Civil Rights Act requires businesses to reasonably accommodate the sincerely-held religious beliefs of customers. However, to facilitate the business transaction, the DFEH suggests in the final FAQ that in religious exemption situations, businesses follow the guidance provided for reasonable accommodations for disability.

Edited by Minh N. Vu

 

By Minh N. Vu

Seyfarth Synopsis: The Biden DOJ Civil Rights Division has been much more active than its predecessor in enforcing Title III of the ADA and supporting plaintiffs in pending litigation.

As we predicted in January, the Civil Rights Division at the Department of Justice (DOJ) under the Biden Administration has been very busy.  In the nine months since President Biden took office, the DOJ has issued a guidance on “long COVID,” filed Statements of Interest (SOI) in three ADA Title III (public accommodation) cases and three ADA Title II (state and local government) cases, and renewed its effort, dormant under the prior presidential administration, to pressure businesses to make their websites accessible to users with disabilities through threats of enforcement actions. It is even piloting a new www.ada.gov website.

Not surprisingly, all of the SOIs the DOJ has filed this year have been in support of plaintiffs with disabilities.  In the first SOI filed in the Western District of Pennsylvania, the DOJ took the position that – pursuant to the ADA obligation to make reasonable modifications to normal policies, practices, and procedures – places of lodging must provide lowered beds for people with disabilities who cannot transfer to high beds.  Regrettably, DOJ failed to state in the SOI (or anywhere else, for that matter) what constitutes a lowered bed, making it very difficult for lodging facilities to know what sort of beds they need to purchase in case they need to make such a “reasonable modification.”

In the second SOI — filed in a case in the Northern District of Illinois — the DOJ took the position that blood plasma donation centers are “public accommodations” under Title III of the ADA, even though donors are compensated for their plasma.  The DOJ stated that such centers are “service establishments” – one of the types of businesses listed under the definition of “public accommodation” under the Title III statute.  The Third and Tenth Circuit Courts of Appeals have reached the same conclusion, but the Fifth Circuit has found such centers to not be places of public accommodation.

The third SOI filed by the DOJ was in a case brought against a health care provider that used self-service check-in kiosks that are inaccessible to the blind.  The blind plaintiffs alleged that there were no employees to provide assistance so they had to seek the assistance of strangers.  The health care provider argued that the kiosks had a function to notify employees to provide assistance.  The DOJ did not find this solution satisfactory because “[r]elegating patients with disabilities who have scheduled appointments to the bottom of the walk-in waitlist because of a lack of auxiliary aids and services is treating those patients differently.”

Just last week, the DOJ filed an SOI in a case brought by the parents of school children with disabilities challenging Texas Governor Abbott’s Executive Order GA-38, which prohibits school districts from imposing mask requirements in school programs and facilities.  Although the case was brought under Title II of the ADA, which applies to the programs and activities of state and local governments, some of the arguments DOJ made could prove helpful to public accommodations defending their own mask requirements in lawsuits brought under Title III of the ADA.  For example, DOJ argued that the Executive Order denied the disabled plaintiffs who were at greater risk for COVID-19 complications access to school because the absence of masks created an unsafe environment for them.  The DOJ also argued that the Executive Order prevented school districts from complying with their obligation to make reasonable modifications to policies and procedures (i.e., require masks to be worn) to ensure that the disabled plaintiffs have access to school facilities and programs.  Under the right circumstances, a business might be able to make an analogous argument that to protect customers with disabilities who face a higher risk for COVID-19 complications and to ensure they can enjoy the business’ goods and services, the business must impose mask requirements for everyone seeking to enter its facility.

All four SOIs can be found at ADA.gov at https://www.ada.gov/enforce_activities.htm.

In stark contrast to the Trump’s Administration Civil Rights Division, which did not address any COVID-19 issues as they relate to Title III of the ADA, the Biden Civil Rights Division has also issued a joint statement with the Department of Health and Human Services stating that long COVID (i.e. new or ongoing symptoms caused by COVID-19 that can last for weeks or months after an infection) can be a disability, depending on whether the ongoing symptoms meet the definition a disability under the law.

On the investigation/enforcement front, we have seen greater activity by the DOJ in new and pending investigations.  This is no surprise and businesses should expect to see much more action from DOJ in the coming years.

Edited by Kristina Launey

By Minh Vu and John Egan

Seyfarth Synopsis: Three businesses prevail in website accessibility lawsuits in New York and California. 

Defending website accessibility lawsuits can be an expensive and difficult battle for public accommodations, but there have been a few bright spots for businesses this summer.

1.     On July 14, 2021, Judge Brian Cogan of the United States District Court for the Eastern District of New York dismissed  a website accessibility lawsuit against a print and online newspaper publisher. The Court determined that the plaintiff—a deaf individual who claimed that the media company’s website violated the ADA by not having closed captioning for its videos—failed to state a claim for violation of Title III of the ADA because the website did not fall within the definition of a “place of public accommodation” under Title III of the ADA.  The court found “[n]either a newspaper publisher nor a digital media content provider falls within any of the twelve enumerated places of public accommodation categories under the ADA” and “defendants are also not sufficiently analogous to any of the public accommodations listed in the statute to be deemed to be a public accommodation.”  This decision is of particular interest to businesses that do not clearly fit within the definition of place of public accommodation, but are nevertheless faced with website accessibility lawsuits as plaintiffs are pushing the boundaries of the law.

On the separate issue of whether a business that does fall within the twelve enumerated categories of public accommodations — but has no physical place where it offers goods and services — is covered by the ADA, the court noted that this was still an open question in the Second Circuit.

2.     On August 16, 2021, Judge Eric Komittee of the U.S. District Court for the Eastern District of New York in dismissed another lawsuit alleging that a newspaper publisher’s website violated the ADA because it contained videos without closed captioning. The court found that Title III of the ADA only covers the goods and services of a physical place of public accommodation, and the website is not a physical place.  The decision contained a very thorough discussion of the statute and relevant case law, and concluded (as did Judge Cogan in the above case) that the Second Circuit has yet to decide this issue.

Judge Komittee parted ways with Judge Weinstein of the Southern District of New York who decided in Blick Art.  Judge Weinstein relied on the Second Circuit’s decision in Allstate v. Pallozzi to conclude that websites of online-only businesses are covered by Title III of the ADAThis interpretation was a stretch because in Pallozzi, the Second Circuit held that Title III of the ADA applied to the terms of an insurance policy purchased at an actual insurance office.  Judge Komittee aptly pointed out that the goods and services offered by the insurance office in Pallozzi were clearly covered by Title III of the ADA because an “insurance office” is explicitly listed in the statute’s definition of a “public accommodation,” whereas websites are nowhere to be found in that definition.

These two recent decisions from the Eastern District of New York are welcome news for “internet-only” businesses facing steadily increasing numbers of ADA website and mobile app lawsuits in this particular district.  Businesses need to keep in mind, however, that just as many judges in the Southern District of New York have found that online-only businesses are covered by Title III of the ADA.  Furthermore, other judicial circuits such as the First Circuit do not limit the ADA’s coverage to businesses that have physical places where goods and services are offered, and district courts in that circuit have applied that precedent to find online-only businesses to be covered by Title III of the ADA.

3.     On the other side of the country, the California Court of Appeals for the Fourth Appellate District issued a decision on September 8, 2021 affirming a defense jury verdict reached in Thurston v. Omni Hotels Management Corporation. The blind plaintiff had filed this state court action under California’s Unruh Act claiming that the defendant had discriminated against her by having a website that she could not access with her screen reader.  At issue on appeal was the trial court’s instruction to the jury that, to state a claim, the plaintiff had to establish that she “attempted  to use [the hotel’s] website for the purpose of making a hotel reservation (or to ascertain the hotel’s prices and accommodations for the purpose of considering whether to make a reservation).” The jury found no such intent, resulting in a verdict for the hotel.

The Court of Appeals affirmed the judgment, finding that a plaintiff must demonstrate an intent to use a defendant’s services to have standing to bring a claim under the Unruh Act.  The Court explained that its decision was consistent with a 2019 California Supreme Court decision holding that “a person who visits a business’s website with intent to use its services and encounters terms and conditions that exclude the person from full and equal access to its services has standing under the Unruh Act, with no further requirements that the person enter into an agreement or transaction with the business.” The Court of Appeals in Thurston noted that the Supreme Court specifically stated that defendants can — on summary judgment or at trial — dispute that a plaintiff had the required requisite intent.

UPDATE:  On November 1, 2021, District Judge Cogan issued a decision holding that a website is not a place of public accommodation.

By Kristina Launey

Seyfarth Synopsis:  California enacts new law, effective January 1, 2022, to crack down on fraudulent emotional support dogs.

Yesterday, September 16, having just defeated a recall effort, California Governor Newsom signed into law a bill, AB 468, that will impose various requirements, effective January 1, 2022, designed to curb emotional support animal fraud.

To be clear, emotional support animals (ESAs) are NOT service animals.  Under the ADA, a service animal is a dog that has been individually trained to perform tasks for an individual with a disability.  ESAs are not service animals under the ADA, though that line can sometimes be a bit blurry when the dog is trained to perform tasks related to mental or psychological disabilities. As the committee analyses of the legislation note, “an ESA is a dog (or other animal) that is not trained to perform specific acts related to a person’s disability. Instead, the owner of an ESA derives a sense of wellbeing, fulfillment, companionship, or lessened anxiety with the presence of the animal. Of note, ESAs do not enjoy the same legal privileges as trained service dogs: for example, while federal and state law require that service dogs be allowed to accompany their human partner in public places, ESAs on the other hand do not have to be accommodated.”

The committee analyses further note that “[a]ccording to the bill’s author and sponsors, the emergence of ESAs has led to an increase in the fraudulent selling and subsequent misrepresenting of emotional support dogs as service dogs,” including “businesses[es] now sell[ing] various misleading ESA-related certificates and merchandise that inaccurately imply that ESAs have the same legal rights and privileges as service dogs. Items generally include vests, tags, patches, holographic identification cards, and certificate documents prominently featuring the words “Emotional Support Animal” and in some instances “ESA, Protected Under Federal Law” which can imply that ESAs wearing such accessories are granted the same rights as service dogs.”

California law currently contains a provision providing that a person who knowingly and fraudulently represents a dog is a guide, signal, or service dog, can be found guilty of a misdemeanor punishable by imprisonment in the county jail not exceeding 6 months, by a fine not exceeding $1,000, or by both that fine and imprisonment.  But there was no similar provision for ESAs – until now.

The new law, sponsored by Guide Dogs for the Blind and Canine Companions for Independence, will have three main components to attempt to crack down on ESA fraud:

First, a person or business that sells or provides a dog for use as an emotional support dog will have to provide a written notice – in at least 12-point bold type, on the receipt or a separate paper – to the buyer or recipient of the dog stating that (1) the dog does not have the special training required to qualify as a guide, signal, or service dog; (2) the dog is not entitled to the rights and privileges accorded by law to a guide, signal, or service dog; and (3) knowingly and fraudulently representing oneself to be the owner or trainer of any canine licensed as, to be qualified as, or identified as, a guide, signal, or service dog is a misdemeanor.

Second, a person or business that sells or provides a certificate, identification, tag, vest, leash, or harness for an emotional support animal will also be required to provide the same written notice to the buyer or recipient.

Violation of these written notice requirements or knowingly and fraudulently representing, selling, or offering for sale, or attempting to represent, sell, or offer for sale, an emotional support dog as being entitled to the rights and privileges accorded by law to a guide, signal, or service dog, is subject to a civil penalty of $500 for the first violation, $1,000 for the second, and $2,500 for third and subsequent violations.

Third, the new law will also prohibit health care practitioners from providing documentation relating to an individual’s need for an emotional support dog unless the health care practitioner (1) holds a valid, active, license to provide professional services within the scope of the license in the jurisdiction where the documentation is provided; (2) establishes a client-provider relationship with the individual for at least 30 days prior to providing the documentation, (3) completes a clinical evaluation of the individual regarding the need for an emotional support dog, and (4) provides notice to the individual that knowingly and fraudulently representing oneself to be the owner or trainer of any canine licensed as, to be qualified as, or identified as, a guide, signal, or service dog is a misdemeanor.  Violating these requirements subjects the health care practitioner to discipline from the licensing board.

Housing providers that must make reasonable accommodations for residents who need ESAs under the federal Fair Housing Act will appreciate the new health care practitioner requirements as they will help ensure that letters from such providers in support of ESA requests are legitimate.

By Minh Vu, Kristina Launey, Susan Ryan

Seyfarth Synopsis: ADA Title III lawsuit filings in federal courts on pace for a record year.

Regular readers will doubtless recall that 2020 was a down year (but just barely) for lawsuits filed in federal court alleging violations of Title III of the ADA.  Our mid-year total was 4,751, due to lockdowns in April and May.  That was the lowest mid-year number we’d seen since 2017.

But filings picked up in the second half of 2020, and they’ve continued to rise in 2021.  In March 2021, we saw 1,240 filings—the most ever in one month.  Our total for January 2021 through June 2021 is 6,304, which puts us on track to see 12,000 filings this year.  Now, if 2020 taught us anything, it’s that you shouldn’t count your chickens (or your ADA Title III filings) before they’re hatched (or filed).  There could be a big downturn ahead.  But that’s where we are right now.

Chart showing Total Number of ADA Title III Federal Lawsuits Filed Each Year January 1, 2013-June 30, 2021

[Total Number of ADA Title III Federal Lawsuits Filed Each Year January 1, 2013-June 30, 2021: 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: 10,982, 1% decrease from 2019; 2021: 6,304 as of 6/30/21]

These numbers include Title III lawsuits filed on all grounds — physical facilities, websites and mobile applications, service animals, sign language interpreters, mask-wearing requirementshotel reservations websites, and more.  These numbers do not include the significant number of disability access lawsuits filed in state courts which are more difficult to accurately track or demand letters that never result in a lawsuit.

In what will come as a surprise to no one, California led the pack with 3,340 filings, followed by New York (1,423) and Florida (609).  Again, no surprises there.  Coming in at #4 was Texas (179) and Nevada (122) rounds out the top 5 states.

Chart showing Top 10 States with Federal ADA Title III Lawsuits Filed January 1, 2021-June 30, 2021

[Top 10 States with Federal ADA Title III Lawsuits Filed January 1, 2021-June 30, 2021: California: 3,340; New York: 1,423; Florida: 609; Texas: 179; Nevada: 122; Georgia: 85; Pennsylvania: 81; Illinois: 61; Tennessee: 51; Washington: 49]

It’s probably not useful to compare 2021 to 2020, as that was such an aberrant year (in so many ways), so let’s have a look at 2021 as compared to 2019 for the top five states.

Chart showing Federal ADA Title III Lawsuits Filed Mid-Year in Top Five States 2019 Compared to 2021

[Federal ADA Title III Lawsuits Filed Mid-Year in Top Five States 2019 Compared to 2021: California: 2019 Mid-Year: 2,444, 2021 Mid-Year: 3,340; New York: 2019 Mid-Year: 1,212, 2021 Mid-Year: 1,423; Florida: 2019 Mid-Year: 1,074, 2021 Mid-Year: 609; Texas: 2019 Mid-Year: 128, 2021 Mid-Year: 179; Nevada: 2019 Mid-Year: 126, 2021 Mid-Year: 122]

Total filings were up 11.2% from 2019 to 2021.  California filings were up 26.8% from 2019 to 2021.  New York filings were up 14.8%.  Bucking the trend, Florida lawsuits were down significantly from 2019 to 2021—a 43.2% drop.

What kinds of cases are responsible for the dramatic change in these states?  While we have not analyzed the data, one law firm in southern California filed over five hundred lawsuits about hotel reservations websites allegedly not providing sufficient disclosures about accessibility features in hotels starting in the fall of 2020 and continuing into 2021.  While many of these started in state court, most were removed to federal court.  We also continue to see lawsuits about physical access barriers and website accessibility.

What will the final tally be for 2021?  We predict a new record will be set and the number of lawsuits will exceed 12,000.

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: John W. Egan

Seyfarth Synopsis: In navigating the contentious issue of COVID-19 passports, businesses need to be aware of their obligations to make reasonable modifications to their policies, practices and procedures applicable to patrons with disabilities.

New York City recently announced that it would require COVID-19 vaccination passports for many indoor activities. Conversely, some jurisdictions such as Florida and Texas have implemented anti-vaccine passport orders.  Like some states, the federal administration has taken a supportive position on vaccination mandates, announcing a vaccination requirement for federal employees. But the agency that enforces Title III of the ADA, the U.S. Department of Justice, has not issued explicit guidance for vaccination mandates by public accommodations.

Some businesses have announced vaccination requirements for patrons, and others are considering whether, in response to the NYC mandate or on a voluntary basis where permissible, to implement such a policy.  There are important disability access considerations for businesses to evaluate in imposing vaccination requirements for patrons.

The ADA prohibits public accommodations from applying eligibility criteria that screen out or tend to screen out a person with a disability, or any class of people with disabilities, unless they qualify as legitimate safety requirements necessary for the safe operation of the facility.  To meet this standard, the safety requirements must be based on actual risks, and not mere speculation, stereotypes or generalizations.

It is likely that a vaccination requirement would qualify as an ADA eligibility criteria.  The question then becomes whether such a requirement would be based upon legitimate safety considerations.  Businesses that rely on data addressing the effectiveness of vaccination to prevent severe disease and reduce transmissibility, and surging infection rates due to the Delta variant, would likely be on a strong footing to take this position.

That, however, is not the end of the analysis.  A business that has a policy requiring vaccinations for entry must make reasonable modifications to its policies, practices, and procedures to provide individuals with disabilities with access to their goods, services, and facilities, unless such modifications would present a direct threat to the health and safety of others, or fundamentally alter the business.

Most businesses considering implementing a vaccination-for-entry requirement will need to consider questions such as: whether and how to publicize a vaccination policy, the employees to be tasked with having a reasonable modification dialogue with patrons, the information to be requested of customers, any “script” or internal parameters for that communication, and what to do with customers who claim they cannot be vaccinated because of a disability.  The last question is obviously the most thorny since there is no “one size fits all” solution.  The modifications a public accommodation must make to a vaccination passport policy will vary (e.g., masking, social distancing, outdoor service, online alternatives, proof of negative COVID test) based upon the nature, operations, staffing, and clientele of the business, public health considerations and guidance, as well as state or local requirements.

While a private university, cruise line, movie theater, and neighborhood restaurant, for example, may all qualify as public accommodations with ADA obligations to individuals with disabilities, the considerations informing any vaccination mandate are not necessarily the same and need to be thoughtfully evaluated based on the organization, its industry, and the jurisdiction where it operates—as well as the specific circumstance of each patron requesting a reasonable modification of the vaccination policy.

Businesses should also keep a clear record of federal, state and local public health guidance, including their evolution over time, to support and document any vaccination passport policy that they implement.  And, the business should document requests for, and resolutions of, requests for reasonable modifications to the vaccination policy in case of litigation.

Stay tuned to the Blog for updates as this issue continues to develop.

Edited by Kristina Launey and Minh Vu

By Lotus Cannon and Minh vu

Seyfarth Synopsis:  After holding a consolidated evidentiary hearing, District Judge Brenda K. Sannes concluded that Plaintiff Deborah Laufer did not have standing to bring 17 lawsuits alleging that hotels failed to provide adequate accessibility information on their online reservations systems.

Last month, June 2021, Judge Sannes of the Northern District of New York dismissed 17 ADA cases brought by plaintiff Deborah Laufer for lack of standing. Laufer, a Florida resident with a disability, has been tormenting the hotel and lodging industry for years, bringing an impressive 614 lawsuits (including appeals) nationwide since 2018, including 63 in the Northern District of New York (NDNY). Her lawsuits are typically identical, alleging that the hotels violated the ADA and corollary state laws by failing to provide sufficient information about accessibility features and barriers at the hotels on their online reservation systems (ORS), as well as third-party reservations websites.

Laufer asserts these claims as a “tester,” someone who advocates for the rights of similarly situated disabled individuals by asserting civil rights claims against allegedly non-compliant businesses, even if they have no intention of ever being a customer.  Laufer’s initial complaints in the 17 cases did not allege that she has, or ever had, any plans to stay in any defendant’s hotel or visit the area near any defendant’s property.

On November 19, 2020, Judge Sannes issued an order in Laufer v. Laxmi & Sons, LLC dismissing all of Laufer’s then-active lawsuits in the NDNY for lack of standing, finding that visiting a non-compliant ORS solely as a tester was not sufficient for standing. The Court found that to allege the type of “concrete and particularized” past injury and likelihood of future injury that would give her standing in this context, Laufer would need to demonstrate that (1) she “had a purpose for using the [ORS] that the complained-of ADA violations frustrated” other than to just test the websites, and (2) “her intent to return to the [ORS] to book a room, or at least to obtain information that would allow her to decide whether to book a room, is plausible.” Judge Sannes then allowed Laufer to move to amend her complaints in each case. Laufer moved to amend her complaints in most of her cases, and included allegations that both her planned future visits to each defendant’s ORS and her visits to those ORSs prior to filing her complaints were motivated in part by her desire to travel to the area near each defendant’s hotel. While the Court found that most of the proposed amended complaints sufficiently alleged standing on their face, it questioned Laufer’s stated intention to travel to the area near each particular defendant’s hotel, and thus whether she had a genuine need to utilize the accessibility information on each defendant’s ORS.

Accordingly, following Second Circuit guidance in Harty v. Simon Prop. Grp., 428 F. App’x 69, 72 (2d Cir. 2011), the Court ordered an evidentiary hearing for all 17 cases to probe Laufer’s claim that she intended to visit the Defendant’s ORS because she was planning a trip across New York State.  Plaintiff testified that she has family in New York and travels frequently to visit them, and that she has considered relocating to New York.  Laufer also named specific sites and locations within the vicinity of the Defendant’s hotel that she would like to visit.

The Court was not convinced and dismissed all of the cases for lack of subject matter jurisdiction.  The Court stated as follows:

Plaintiff’s problem is simply one of credibility: she has sued owners of hotels located in virtually every part of New York State, and in hundreds more areas throughout many other states (including some that are very far-flung from New York, such as Colorado and Texas).  She originally asserted that she visited these hotels’ ORSs simply for the purpose of determining whether they complied with the requirements of 28 C.F.R. § 36.302(e), and it was only after the Court questioned Plaintiff’s standing that she sought to add allegations avowing an intention to travel throughout New York State, and stay in hotels in “every area” along the way.

It defies credibility that, for approximately a year and a half, Plaintiff has been planning a trip involving such a massive time and financial commitment, which she intends to begin a short time from now and complete before her granddaughter begins school in the fall, and yet she cannot answer the most basic questions regarding how much time she is setting aside for the trip, which specific locations she intends to travel to, how much the trip will cost, how she will fund it, how the inevitably lengthy trip comports with her daughter’s professional, educational and child-care obligations, or anything else about the trip aside from her vague desire to travel “all over” New York State and the rest of the country. Even for the most efficient and financially prudent of travelers, a trip covering even a selection of the places that Plaintiff has targeted with her lawsuits would inevitably take many months and cost thousands of dollars or more. Indeed, the many locations Plaintiff has asserted an intent to travel to in New York alone span the entire state and are separated by many hours by car.

Judge Sannes’ decision will likely put an end to Laufer’s website lawsuits in the Northern District of NY, but not necessarily elsewhere.  Laufer may also seek to appeal the decision which would force the defendants to spend even more money to continue defending these lawsuits.  Therein lies the quandary for defendants in the ADA Title III lawsuits: It is usually more expensive to fight these lawsuits (even when the prospect of winning is high) then it is to settle them early.

Edited by Kristina Launey

By Minh N. Vu

Seyfarth Synopsis: California federal trial court grants summary judgment for plaintiff, finding Domino’s violated the ADA by having a website that is inaccessible to the blind and orders Domino’s bring its website into compliance with the WCAG 2.0 guidelines.

Five years after the lawsuit was first filed, federal district court judge Jesus Bernal ruled on June 23 that Domino’s had violated Title III of the Americans with Disabilities Act (ADA) by having a website that was not fully accessible to plaintiff, who is blind.  This litigation saga has involved an appeal to the Ninth Circuit by plaintiff which reversed the district court’s dismissal of the case, a petition for certiorari filed by Domino’s which was denied, and numerous skirmishes in district court on remand which eventually culminated in the court’s June 23 order granting plaintiff’s motion for summary judgment on the ADA claim as it relates to Domino’s website, but allowing the case to continue regarding Domino’s mobile app.

Here are some highlights from the decision:

  • Under Ninth Circuit precedent, web-only businesses are not covered by the ADA. However, websites that have a nexus to a physical place of public accommodation are covered. Domino’s argued that the ADA does not cover its website and mobile app because it does not own the physical stores where the pizza would be picked up, and there is no “nexus” between the website/mobile app and the stores.  Judge Bernal rejected this argument, stating that the Ninth Circuit had already found that the alleged inaccessibility of the website and app “impedes access to the goods and services of its physical pizza franchises—which are places of public accommodation.”
  • The court noted that no expert found that the website was fully accessible, including Domino’s expert who said that he could not place a future order using a screen reader. Based on this fact, the court concluded that Domino’s had violated the ADA with regard to its website.  The court ordered Domino’s to “bring its website into compliance with the WCAG 2.0 guidelines.”  Interestingly, the court did not specify which level of WCAG compliance would be required:  A, AA, or AAA, nor did it specify a time table for compliance.
  • The court concluded that having a phone line where plaintiff could place an order did not provide equivalent access when he was placed on hold for over 45 minutes on the two occasions he tried to call.
  • The court found that the ADA claim was not moot because the website was still not fully accessible and the accessibility of the mobile app remained disputed.
  • Plaintiff sought $4,000 for each of the multiple visits he made to the Domino’s website, but Judge Bernal found that there was only “a single overarching violation: Defendant maintained a website that screen readers cannot read.  For this same reason, each of the Plaintiff’s individual visits to the website encountered the same barrier and therefore the same violation.”  We note that while the $4,000 damages award is not significant, plaintiff will be entitled to recover his attorneys’ fees as well.   The fee award should be substantially higher given the length and intensity of this litigation.

Disability rights advocates and the plaintiff’s bar are undoubtedly pleased about most aspects of this decision.  We will report on further developments as they unfold.

Edited by Kristina M. Launey

By Eden Anderson

Seyfarth Synopsis: A federal judge precluded the plaintiff from multiplying his statutory damages under the Unruh Act by his alleged number of visits to the defendant’s business.

California’s Unruh Civil Rights Act (“Unruh Act”) provides for the recovery of the greater of actual damages or $4,000 in statutory damages for “each particular occasion” of access denial.  (Civil Code § 55.56(f).)  Citing this statutory language, plaintiffs in disability access litigation frequently allege multiple visits to (or deterrence from visiting) a defendant’s property and cite the frequency of their visits as a basis for making unreasonable settlement demands.  For example, if a plaintiff claims to have visited a property on 15 occasions and encountered access barriers on each occasion, they will demand $60,000 plus attorneys’ fees to settle.

While some judges have awarded such relief, on June 16, 2021, Judge Beth Labson Freeman of the Northern District of California issued an order in Johnson v. Garlic Farm Truck Center, LLC capping the plaintiff’s statutory damages recovery to $4,000 in spite of allegations that the plaintiff visited the property and encountered access barriers on three occasions.

The defendant in Garlic Farm did not respond to the complaint and the court granted the plaintiff’s motion for default judgment.  In assessing the plaintiff’s request for $12,000 in statutory damages, the court questioned why the plaintiff would make three visits to a property he knew was in violation of disability access laws.  The court also found troubling the fact that the plaintiff’s counsel had filed over 5,000 Unruh Act cases in federal district courts in California, and that the Complaint inconsistently alleged that the access barriers “prevented [plaintiff] from returning to the business,” yet also that he had visited the property three times.  The court concluded the plaintiff’s “[b]ehavior,” the “incongruity” in his allegations, and the sheer volume of disability access cases his counsel was pursuing indicated that “Mr. Johnson is primarily interested in increasing statutory damages.”  The court thus limited statutory damages recovery to $4,000, noting that “[d]istrict courts in the Ninth Circuit have limited statutory damages under the Unruh Act when plaintiffs engage in this behavior.”

This decision is also notable because the Court’s concerns about the plaintiff’s tactics were raised sua sponte—by the Court on its own accord—and not by the defendant, who had not even appeared in the case.  The order also provides defendants a clear decision they can rely upon to counter unreasonable settlement demands.

Edited by Kristina Launey