ADA TITLE III OUTLINE - American Bar Associationapps.americanbar.org/labor/lel-aba-annual/papers/2004/east.pdf · 1 © 2004 American Bar Association ADA TITLE III OUTLINE 1. Elements

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© 2004 American Bar Association http://www.bna.com/bnabooks/ababna/annual/2004/east.doc

ADA TITLE III OUTLINE 1. Elements

1. The elements of plaintiff's prima facie case are often described as:

1. plaintiff is an individual with a disability (as defined in II below);

2. defendant owned, leased, or operated a place of public accommodation; and

3. defendant discriminated against plaintiff on the basis of his/her disability.

2. Sample cases: Powell v. National Bd. of Medical Examiners, 364 F.3d 79, 85 (2d Cir. 2004); Louie v. National Football League, 185 F.Supp.2d 1306, 1308 (S.D.Fla. 2002); Sharrow v. Bailey, 910 F.Supp. 187, 191 (M.D.Pa.1995); U.S. v. Morvant, 898 F.Supp. 1157, 1161 (E.D.La. 1995); Mayberry v. Von Valtier, 843 F.Supp. 1160, 1166 (E.D.Mich. 1994). See also Howe v. Hull, 873 F.Supp. 72, 78 (N.D.Ohio 1994); Thomas v. Davidson Academy, 846 F.Supp. 611, 617 (M.D.Tenn. 1994). For the elements of a claim of failing to modify policies to accommodate a person with a disability, see III.D.2.c below.

3. It is unclear whether proving plaintiff is otherwise “qualified” is an element of

plaintiff's case.

1. Several cases reference such an element in dicta, often relying on precedent decided under Title I or Title II of the ADA. E.g. Louie v. National Football League, 185 F.Supp.2d 1306, 1308 (S.D.Fla. 2002).

2. But in contrast to Titles I and II, the statutory language in Title III does not

include the term. Compare 42 U.S.C. §12112(a) (Title I) and 42 U.S.C. §12132 (Title II), with 42 U.S.C. §12182(a) (Title III). See also Motzkin v. Trustees of Boston University, 938 F.Supp. 983, 996 (D.Mass. 1996) (holding that in part because of this difference in the statutory language, Title III does not apply to employment relationships).

3. It probably makes more sense to say that a Title III plaintiff need not show

he or she is “otherwise qualified.” Matter of Baby K, 832 F.Supp. 1022, 1028 (E.D.Va. 1993) (holding it is not a requirement), aff'd on other grounds, 16 F.3d 590 (4th Cir.), cert. denied sub nom Baby K v. Ms. H, 513 U.S. 825 (1994). See also Menkowitz v. Pottstown Memorial Medical Center, 154 F.3d 113, 121 (3rd Cir. 1998) (finding that Title III protects all “individuals”).

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4. Note, however, that a plaintiff will have to prove sufficient standing, see IX.E below, and similar issues may arise in the context of whether a requested policy modification is reasonable, or if the defendant asserts a fundamental alterations defense. Bercovitch v. Baldwin Sch., Inc., 133 F.3d 141, 154 (1st Cir.1998); Menkowitz, supra; Bowers v. National Collegiate Athletic Ass’n, 118 F.Supp.2d 494, 517 n.18 (D.N.J. 2000).

4. There is no “intent” requirement. Lentini v. California Center for the Arts,

Escondido, 370 F.3d 837, 846-847 (9th Cir. 2004); Association for Disabled Americans, Inc. v. Concorde Gaming Corp., 158 F.Supp.2d 1353 (S.D.Fla. 2001) (Title III applies not just to intentional exclusions, but “also extends to some forms of de facto discrimination”); Independent Living Resources v. Oregon Arena Corp., 1 F.Supp.2d 1159, 1169 (D.Or. 1998); Dunlap v. Association of Bay Area Governments, 996 F.Supp. 962, 965-966 (N.D.Cal. 1998) (“plaintiff need not show that the defendant was motivated by a desire to discriminate against disabled persons ... Rather, the plaintiff need only show that she is an individual with a disability and that because of her disability she was denied participation in or the benefit of a service provided by the theater.”); U.S. v. Morvant, 898 F.Supp. 1157, 1163 n.7 (E.D.La. 1995); Emery v Caravan of Dreams, 879 F. Supp. 640, 643 (N.D. Tex. 1995), aff’d without opinion sub nom Emery v. Dreams Spirits, Inc., 85 F.3d 622 (5th Cir. 1996) (unnecessary for a Title III plaintiff to prove discriminatory intent to establish a violation of the ADA). See also Down in Front: Entertainment Facilities and Disabled Access Under the Americans with Disabilities Act, 20 Hastings Comm. & Ent. L.J. 897, 903 (1998) (“Intent to discriminate is not a necessary element of a prima facie case under the ADA.”); Crowder v. Kitagawa, 81 F.3d 1480, 1483-1484 (9th Cir. 1996) (holding that ADA Title II claims do not require a showing of intentional discrimination); Mayberry v. Von Valtier, 843 F.Supp. 1160, 1166 (E.D.Mich. 1994) (concluding that the parallel Rehabilitation Act “does not require a plaintiff to prove discriminatory intent in order to make out a prima facie case of handicap discrimination,” based in part the Congressional findings in the ADA at 42 U.S.C. §12101(a)(5)).

1. “Benign” reasons are no defense, because Congress expressly recognized

that persons with disabilities suffer not just intentional discrimination, but “the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities.” 42 U.S.C. §12101(a)(5). See also Parr v. L & L Drive-Inn Restaurant, 96 F.Supp.2d 1065, 1084 (D.Hawaii 2000) (ADA covers not only intentional

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discrimination, but also the discriminatory effects of ‘benign neglect, apathy, and indifference.’”); U.S. v. Morvant, 898 F.Supp. 1157, 1166 (E.D.La. 1995); Mayberry v. Von Valtier, 843 F.Supp. 1160, 1166 (E.D.Mich. 1994) (Congressional findings at 42 U.S.C. §12101(a)(5) reflect a Congressional intent “to address the discriminatory effects of benign actions or inaction, as well as intentional discrimination.”).

2. Discriminatory impact is sufficient. 42 U.S.C. §12182(b)(1)(D)(I);

Association for Disabled Americans, Inc. v. Concorde Gaming Corp., 158 F.Supp.2d 1353, 1361 (S.D.Fla. 2001) (and cases cited); Independent Living Resources v. Oregon Arena Corp., 1 F.Supp.2d 1159, 1169 (D.Or. 1998) (“Title III of the ADA outlaws not just intentional discrimination but also certain practices that have a disparate impact upon persons with disabilities even in the absence of any conscious intent to discriminate.”); Emery v. Caravan of Dreams, Inc., 1995 WL 65503, at *3 (N.D.Tex. Feb. 1, 1995). See also PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001) (facially neutral “no golf carts” policy had to modified to accommodate golfer with a disability); Morvant, supra, 898 F.Supp. at 1166, citing Mayberry v. Von Valtier, 843 F.Supp. 1160, 1166 (E.D.Mich.1994).

2. Who is Protected

1. Persons with disabilities.

1. Definitions: 42 U.S.C. §12102(2); 28 C.F.R. §36.104.

2. Includes persons

1. with an impairment that substantially limits one or more major life activities. 42 U.S.C. §12102(2)(A); 28 C.F.R. §36.104.

2. with a record of such an impairment. 42 U.S.C. §12102(2)(B); 28

C.F.R. §36.104.

3. who are regarded as having such an impairment. 42 U.S.C. §12102(2)(C); 28 C.F.R. §36.104.

2. ADA protections may extend to some people without any disability.

1. ADA prohibits discrimination because of an association with a person with

a disability (see III.C.3 below).

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2. ADA prohibits retaliation (see III.E below).

3. Title III does not cover employment discrimination (which is instead covered by

Title I of the ADA), but it does protect individuals who are not “employees” from work-related discrimination. See, e.g., Menkowitz v. Pottstown Memorial Medical Center, 154 F.3d 113 (3rd Cir. 1998) (independent contractor doctor could sue hospital for discriminatory denial of staff privileges); Levinger v. Mercy Medical Center, 75 P.3d 1202, 1208 (Idaho 2003).

3. Discrimination Prohibited

1. General rule - No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. §12182(a); 28 C.F.R. §36.201(a).

2. General prohibitions.

1. This general rule is construed to prohibit covered entities — either directly,

or through licensing, contractual, or other arrangements — from:

1. denying the participation in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity, 42 U.S.C. §12182(b)(1)(A)(i); 28 C.F.R. §36.202(a);

2. providing an unequal benefit, 42 U.S.C. §12182(b)(1)(A)(ii); 28

C.F.R. §36.202(b); or

3. providing a separate benefit (unless necessary to provide a good, service, facility, privilege, advantage, or accommodation, or other opportunity that is as effective as that provided to others), 42 U.S.C. §12182(b)(1)(A)(iii); 28 C.F.R. §36.202(c).

2. Violation of a general prohibition alone is sufficient to state a prima facie

case, without proving a violation of one of the four specified types of discrimination listed in III.D below. Morvant, 898 F.Supp. 1157, 1161 (E.D.La. 1995).

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3. But the specific provisions (set out in D below) control over general provisions where both apply, 28 C.F.R. §36.213; U.S. v. National Amusements, Inc., 180 F.Supp.2d 251, 258-259 (D.Mass. 2001), and the specific defenses such as “necessity” and “safety” apply. 28 C.F.R. Part 36 App. B, §36.202.

3. General requirements:

1. Most integrated setting - Goods, services, facilities, privileges, advantages,

and accommodations shall be afforded to an individual with a disability in the most integrated setting appropriate to the needs of the individual. 42 U.S.C. §12182(b)(1)(B); 28 C.F.R. §36.203. For examples, see Pinnock v. International House of Pancakes Franchisee, 844 F.Supp. 574, 583 (S.D.Cal. 1993) (upholding integration provision).

2. Administrative methods - An individual or entity shall not, directly or

through contractual or other arrangements, utilize standards or criteria or methods of administration (I) that have the effect of discriminating on the basis of disability; or (ii) that perpetuate the discrimination of others who are subject to common administrative control. 42 U.S.C. §12182(b)(1)(D); 28 C.F.R. §36.204.

3. Association - A public accommodation shall not exclude or otherwise deny

equal goods, services, facilities, privileges, advantages, accommodations, or other opportunities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association. 42 U.S.C. §12182(b)(1)(E); 28 C.F.R. §36.205. See also Freilich v. Board of Directors of Upper Chesapeake Health, Inc., 142 F.Supp.2d 679, 700 (D.Md. 2001) (recognizing claim, but holding that it does not cover advocacy for a class of medical patients); Bravin v. Mount Sinai Medical Center, 186 F.R.D. 293, 307 (S.D.N.Y. 1999) (recognizing a claim based on the refusal of a childbirth class to provide a sign language interpreter for the deaf husband of a class member), vacated in part on other grounds, 58 F.Supp.2d 269 (S.D.N.Y. 1999).

4. Four kinds of discrimination specified.

1. Eligibility criteria. 42 U.S.C. §12182(b)(2)(A)(I); 28 C.F.R. §36.301(a).

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1. A public accommodation shall not impose or apply eligibility criteria that screen out, or tend to screen out, an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations.

2. This provision prohibits unnecessary inquiries regarding disabilities.

ADA Technical Assistance Manual III-4.1300; 28 C.F.R. Part 36 App. B, §36.301.

3. This provision prohibits surcharges. 28 C.F.R. §36.301(c); ADA

Technical Assistance Manual III-4.1400.

4. This provision prohibits discrimination based on “customer preference.” 28 C.F.R. Part 36 App. B, §36.301.

5. Defenses - such criteria may be permitted if they are:

(1) necessary for the provision of the goods, services, facilities,

privileges, advantages, accommodations being offered. 28 C.F.R. §36.301(a); and

(2) legitimate safety requirements necessary for safe operation,

based on actual (not speculative) risk. 28 C.F.R. §36.301(b); Leiken v. Squaw Valley Ski Corp., 3 AD Cases (BNA) 945, 953 (E.D.Cal. 1994). Note that it is unclear if this is substantively different from the direct threat defense (described in VII.B below). Leiken, supra, 3 AD Cases at 953, n.19.

2. Failure to Make Reasonable Modifications.

1. A public accommodation shall make reasonable modifications in

policies, practices, or procedures, when the modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities. 42 U.S.C. §12182(b)(2)(A)(ii); 28 C.F.R. §36.302(a).

2. Specific examples:

(1) accommodating service animals. 28 C.F.R. §36.302(c); and

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(2) providing accessible checkout aisles or alternatives. 28

C.F.R. §36.302(d).

3. Elements - Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1082 (9th Cir. 2004):

(1) plaintiff has a disability;

(2) the defendant is a private entity that owns, leases, or

operates a place of public accommodation;

(3) the defendant employed a discriminatory policy or practice; and

(4) the defendant discriminated against the plaintiff based upon

the plaintiff’s disability by (a) failing to make a requested reasonable modification that was (b) necessary to accommodate the plaintiff's disability.

4. Burden of proof - the plaintiff has the burden of proving that a

modification was requested, and that it was reasonable in general sense, i.e., in the run of cases (without focusing on specifics of plaintiff’s or defendant’s circumstances). Johnson v. Gambrinus Company/Spoetzl Brewery, 116 F.3d 1052, 1059-1060 (5th Cir. 1997).

5. Determination of what is “reasonable”

(1) Is fact-specific, and done on a case-by-case basis. Fortyune

v. American Multi-Cinema, Inc., 364 F.3d 1075, 1083 (9th Cir. 2004); Staron v. McDonald’s Corp., 51 F.3d 353, 356 (2d Cir. 1995).

(2) Factors include effectiveness of the modification, nature of

the particular disability, and cost. Staron v. McDonald’s Corp., 51 F.3d 353, 356 (2d Cir. 1995).

(3) Must not impose undue administrative or financial burden.

Staron v. McDonald’s Corp., 51 F.3d 353, 356 (2d Cir. 1995) (citing Rehabilitation Act precedent).

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6. Defenses - such modifications are not necessary if:

(1) they would fundamentally alter the nature of the goods,

services, facilities, privileges, advantages, or accommodations. 28 C.F.R. §36.302(a); and

(1) The fundamental alteration defense is a narrow one,

Johnson v. Gambrinus Company/Spoetzl Brewery, 116 F.3d 1052, 1059 (5th Cir. 1997), intended to justify the exclusion of service animals only in “rare circumstances.” Id. at 1061 nn.6-7; 28 C.F.R. Part 36 App. B, §36.302.

(2) The burden of proving the defense is on the

defendant. 42 U.S.C. §12182(b)(2)(A)(ii); 28 C.F.R. §36.302(a); Dudley v. Hannaford Bros. Co., 333 F.3d 299, 307-308 (1st Cir.2003); Johnson v. Gambrinus Company/Spoetzl Brewery, 116 F.3d 1052, 1059 (5th Cir. 1997).

(2) the services sought are outside the defendant’s area of

specialization and the defendant would normally refer such a person to another. 28 C.F.R. §36.302(b); U.S. v. Morvant, 898 F.Supp. 1157, 1162-1163 (E.D.La. 1995) (recognizing the defense, but finding a dentist’s assertion that he needed to refer a patient with HIV to a specialist for teeth-cleaning to be a pretext for discrimination); Howe v. Hull, 873 F.Supp. 72, 78-79 (N.D.Ohio 1994) (similar).

3. Auxiliary aids: 42 U.S.C. §12182(b)(2)(A)(iii); 28 C.F.R. §36.303.

1. A public accommodation shall take those steps that may be

necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services. 28 C.F.R. §36.303(a).

2. Examples:

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(1) Failure to ensure effective communications. 28 C.F.R. §36.303(c); ADA Technical Assistance Manual III-4.3200; Aikins v. St. Helena Hosp., 843 F.Supp. 1329 (N.D.Cal. 1994).

(2) Failure to provide “qualified interpreter,” as defined in 28

C.F.R. §36.104.

(3) Failure to make TDD available to disabled clients if other clients are allowed to use the phone on more than incidental basis. 28 C.F.R. §36.303(d).

(4) Failure of place of lodging to provide close captioned

decoders. 28 C.F.R. §36.303(e).

(5) Failure of McDonald’s restaurant to allow customers who are deaf to order at the drive-through window via pen and paper, and instead requiring all drive-through orders be given via loudspeaker. Bunjer v. Edwards, 985 F.Supp. 165 (D.D.C. 1997).

3. Defenses - need not provide auxiliary aids and services if doing so

would be result in a:

(1) Fundamental alteration.

(1) Not specifically defined.

(2) Cf. Southeastern Community College v. Davis, 442 U.S. 397 (1979) (§504 case originating this defense, holding that requiring a nursing program to do away with its clinical portion would fundamentally alter it).

(3) Note, however, that even if a particular auxiliary aid

or service would be a fundamental alteration or undue burden, defendant must still provide an alternative that ensures to the maximum possible extent that disabled receive the goods, services, etc. 28 C.F.R. §36.303(f).

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(2) Undue burden.

(1) Undue burden means significant difficulty or expense. 28 C.F.R. §36.303(a).

(2) According to 28 C.F.R. §36.104, in determining

whether an action would result in an undue burden, factors to be considered include:

1) The nature and cost of the action;

2) The overall financial resources of the site or

sites involved in the action; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements that are necessary for safe operation, including crime prevention measures; or the impact otherwise of the action upon the operation of the site;

3) The geographic separateness, and the

administrative or fiscal relationship of the site or sites in question to any parent corporation or entity;

4) If applicable, the overall financial resources

of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and

5) If applicable, the type of operation or

operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity.

(3) Applicable tax incentives may also be relevant, i.e.,

http://www.usdoj.gov/crt/ada/taxpack.htm.

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4. The person with a disability should be consulted as to the auxiliary aid preferred, but his or her choice is not binding. 28 C.F.R. Part 36 App. B, §36.303.

4. Failure to remove barriers in existing facilities. 42 U.S.C.

§12182(b)(2)(A)(iv)-(v). This is described in more detail in IV.A below.

5. Retaliation and coercion of person opposing discriminatory practice is unlawful. 42 U.S.C. §12203; 28 C.F.R. §36.206.

1. The plaintiff need not have a disability to state an actionable retaliation or

interference claim. Rhoads v. F.D.I.C., 257 F.3d 373, 391 (4th Cir. 2001); Selenke v. Medical Imaging of Colorado, 248 F.3d 1249, 1264 (10th Cir. 2001) (plaintiff need not prove an actual disability; a reasonable, good faith belief that the statute has been violated suffices); Mondzelewski v. Pathmark Stores, Inc., 162 F.3d 778, 786 (3d Cir. 1998); Taylor v. Lenox Hill Hospital, 2003 WL 1787118, at *6 (S.D.N.Y. April 3, 2003) (plaintiff’s good faith belief that he had disability was sufficient); EEOC Compliance Manual, §8: Retaliation §8-II(B) at n 7 (May 20, 1998), online at http://www.eeoc.gov/docs/retal.txt.

2. At least one court has held that individuals can be liable for retaliation.

Shotz v. City of Plantation, Fla., 344 F.3d 1161 (11th Cir. 2003).

3. The courts are divided over whether damages are available for ADA retaliation claims. See Kramer v. Banc of America Securities, LLC, 355 F.3d 961 (7th Cir. 2004) (collecting cases and rejecting damage recovery), cert. denied, ___ U.S. ___, 2004 WL 874937 (June 21, 2004).

6. Insurance Provisions. 28 C.F.R. §36.212

4. Architectural Accessibility

1. Removal of Barriers in Existing Facilities (see III.D.4 above)

1. Sources: 42 U.S.C. §12182(b)(2)(A)(iv)-(v); 28 C.F.R. §36.304; Long v. Coast Resorts, Inc., 267 F.3d 918, 923 (9th Cir. 2001).

2. Defendant must remove in existing facilities:

1. architectural barriers;

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2. communication barriers that are structural in nature; and

3. transportation barriers

(1) in existing vehicles and rail passenger cars

(2) used for transporting individuals

(3) not including barriers that can only be removed by installing

lift.

3. Unless such removal is not readily achievable.

1. “Readily achievable” means easily accomplished, and not requiring much difficulty or expense. 42 U.S.C. §12181(9); 28 C.F.R. §36.104.

2. Factors to be considered, per 42 U.S.C. §12181(9)(A) - (D), and 28

C.F.R. §36.104, include:

(1) the nature and cost of the action needed;

(2) 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;

(3) 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

(4) 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.

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3. Not readily achievable is a lower standard than “undue burden,” but the same factors apply. 28 C.F.R. Part 36 App. B, §36.104.

4. The resources of the parent corporation may need to be considered.

Guzman v. Denny’s Inc., 40 F.Supp.2d 930, 936 (S.D.Ohio 1999)

5. The tax incentives for barrier removal may also be relevant. See http://www.usdoj.gov/crt/ada/taxpack.htm.

6. Burden of proof - Colorado Cross Disability Coalition v.

Hermanson Family Ltd. Partnership I, 264 F.3d 999, 1005-1006 (10th Cir. 2001) (“Plaintiff bears the initial burden of production to present evidence that a suggested method of barrier removal is readily achievable, i.e., can be accomplished easily and without much difficulty or expense. If Plaintiff satisfies this burden, Defendant then has the opportunity to rebut that showing. Defendant bears the ultimate burden of persuasion regarding its affirmative defense that a suggested method of barrier removal is not readily achievable.”).

7. Barrier removal should comply with ADAAG to the extent readily achievable. 28 C.F.R. §36.304(d)(1); ADA Technical Assistance Manual III-4.4300: Pickern v. Best Western Timber Cove Lodge Marina Resort, 2002 WL 202442, at *2 (E.D.Cal. Jan. 18, 2002). See also D'Lil v. Stardust Vacation Club, 2001 WL 1825832, at *4-5 (E.D.Cal. Dec. 21, 2001) (finding ADAAG “valuable guidance” even with respect to existing facilities, but noting that at trial plaintiff must prove lack of access to existing facilities, not just ADAAG violation).

8. Examples of barrier removal likely (but not necessarily) to be

readily achievable are at 28 C.F.R. §36.304(b); ADA Technical Assistance Manual III-4.4200. See also Colorado Cross Disability Coalition v. Hermanson Family Ltd. Partnership I, 264 F.3d 999, 1008 (10th Cir. 2001).

9. Barrier removal required in pre-existing buildings shall not exceed

the standards for alterations (referred to in IV.C. below), 28 C.F.R. §36.304(g)(1), or if no relevant standards for alterations, shall not

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exceed the new construction standards (referred to in IV.B. below), 28 C.F.R. §36.304(g)(2).

10. Analysis should be case-by-case. 28 C.F.R. Part 36 App. B,

§36.104. Because the analysis is fact-intensive, it will infrequently lend itself to summary judgment. Access Now, Inc. v. South Florida Stadium Corp., 161 F.Supp.2d 1357, 1371 (S.D.Fla. 2001). See also Pickern v. Best Western Timber Cove Lodge Marina Resort, 2002 WL 202442, at *3 (E.D.Cal. Jan. 18, 2002); Guzman v. Denny’s Inc., 40 F.Supp.2d 930, 936 (S.D.Ohio 1999).

11. The defendant’s “good faith” efforts are not a defense. Access

Now, Inc. v. South Florida Stadium Corp., 161 F.Supp.2d 1357, 1369 (S.D.Fla. 2001).

4. If defendant can show a particular barrier removal is not readily achievable,

defendant must still make available its goods, services, facilities, privileges, advantages, and accommodations through alternative methods that do not fully comply with specified requirements:

1. if readily achievable, and

2. if will not pose a significant risk to health or safety.

3. Source: 42 U.S.C. §12182(a)(2)(A)(v); 28 C.F.R. §§ 36.305(a)

and 36.304(d)(2).

4. Examples: curb service, home delivery, retrieving merchandise from inaccessible shelves, relocating activities to accessible locations. 28 C.F.R. §36.305(b).

5. Note that carrying someone in a wheelchair should be used only in

manifestly exceptional cases, consistent with the ADA Title II guidance. See 28 C.F.R. Part 35 App. B, §35.150; DOJ Opinion Letter, 4 NDLR ¶ 234 (Sept. 7, 1994); ADA Technical Assistance Manual II-5.2000.

5. Special provisions.

1. Defendant must provide seating in assembly areas, if readily

achievable, that meets certain requirements. 28 C.F.R. §36.308(a)

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2. Exams and courses (see V.C below).

3. Transportation by public accommodations.

2. New Construction - 42 U.S.C. §12183(a)(1); 28 C.F.R. §36.401

1. Facilities designed or constructed for first occupancy after 1/26/93 must be

accessible. 28 C.F.R. §36.401(a)(2)

2. Accessibility means the facility must comply with ADAAG new construction standards (which are set out in Appendix A to 28 C.F.R. Part 36). 28 C.F.R. §36.406(a); Long v. Coast Resorts, Inc., 267 F.3d 918, 923 (9th Cir. 2001).

1. There is no discretion to deny relief based on factors like substantial

compliance or financial expense, Long, supra, 267 F.3d at 923. See also ADAAG §4.1.1(1).

2. It is not a defense that there are other accessible facilities available.

Small v. Dellis, 1997 WL 853515, at *5-6 (D.Md. Dec. 18, 1997).

3. At least some courts have held that plaintiffs can sue for lack of accessibility over elements for which there are not yet ADAAG specifications. Access Now, Inc. v. Holland America Line-Westours, Inc., 147 F.Supp.2d 1311, 1312-1313 (S.D. Fla. 2001) (lack of ADAAG guidelines is not a bar to suit).

3. Defenses:

1. Need not comply with ADAAG if it is structurally impracticable to

do so. 42 U.S.C. §12183(a)(1); 28 C.F.R. §36.401(c); ADAAG §4.1.1(5)(a).

(1) This is a narrow and particularized defense that must be

established on a case-by-case basis, and it applies only “in those rare circumstances when the unique characteristics of terrain prevent the incorporation of accessibility features.”

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28 C.F.R. §36.401(c)(1); Long v. Coast Resorts, Inc., 267 F.3d 918, 923 (9th Cir. 2001); Caruso v. Blockbuster-Sony Music Entertainment Centre at Waterfront, 193 F.3d 730, 737-738 (3d Cir. 1999).

(2) It is the Defendant’s burden to show this. 42 U.S.C.

§12183(a)(1); 28 C.F.R. §36.401(c)(1); ADAAG §4.1.1(5)(a).

(3) Even if a particular element were structurally impracticable,

all other elements would still have to comply with ADAAG. 28 C.F.R. § 36.401(c)(2).

2. Elevator exemption. 42 U.S.C. §12183(b); 28 C.F.R. §36.401(d).

3. ADAAG itself provides that its specifications need not be followed

if an alternative design provides “substantially equivalent or greater access to and usability of the facility.” ADAAG §2.2.

4. ADAAG also states that “[a]ll dimensions are subject to

conventional building industry tolerances for field conditions.” ADAAG §3.2. This is an affirmative defense, however, requiring proof that defendant could not have complied with the dimensional requirements by exercising due care in the design and construction, and also requiring proof of what the particular conventional tolerances are for the construction in question. Independent Living Resources v. Oregon Arena Corp., 1 F.Supp.2d 1124, 1135 and 1138 (D.Or. 1998). Courts should be “especially reluctant to accept the ‘dimensional tolerances’ excuse in a situation where the regulations specify a minimum clearance that is necessary for that element to be usable by persons with disabilities.” Id.

3. Alterations of Existing Facilities

1. Sources: 42 U.S.C. §12183(a)(2); 28 C.F.R. §§ 36.402 and 36.403;

ADAAG guidelines (Appendix A to 28 C.F.R. Part 36). See, e.g., Disabled in Action of Metropolitan New York v. Trump Intern. Hotel & Tower, 2003 WL 1751785, at *5 (S.D.N.Y. Apr. 2, 2003).

2. Applies to alterations begun after 1/26/92. 28 C.F.R. §36.402(a)(1).

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3. Each altered area must:

1. be readily accessible to, and usable by, individuals with disabilities to the maximum extent feasible. 28 C.F.R. §36.402(a). “Maximum extent feasible” means except for the occasional case where the nature of the facility makes it virtually impossible to comply fully 28 C.F.R. §36.402(c); and

2. comply with the ADAAG requirements for alterations. 28 C.F.R.

§§ 36.402(b)(2) and 36.406(a).

4. Alterations include:

1. Changes that affect or could affect the usability of a building or facility, or any part thereof, 42 U.S.C. §12183(a)(2), 28 C.F.R. §36.402(b), and include “employee-only” areas. 28 C.F.R. Part 36 App. B, §36.403.

2. Remodeling, renovation, rehabilitation, reconstruction, moving

walls. 28 C.F.R. §36.402(b)(1). If changes are considered an alteration, then each element in the altered area must comply with ADAAG. 28 C.F.R. §36.402(b)(2).

3. Measures taken to remove barriers under 28 C.F.R. §36.304 must

meet the ADAAG requirements for alterations (except for the path of travel obligation described in 28 C.F.R. §36.403). 28 C.F.R. §36.304(d).

5. Alterations do not include maintenance, re-roofing, painting or

wallpapering, asbestos removal, changes to mechanical or electrical systems, unless they affect the usability of the building or facility. 28 C.F.R. §36.402(b)(1).

6. No alteration shall be undertaken which decreases or has the effect of

decreasing accessibility or usability of a building or facility below the requirements for new construction at the time of alteration. ADAAG §4.1.6(1)(a).

7. Exceptions to alterations requirements.

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1. Elevator exemption - The alterations provisions do not require the installation of an elevator in an altered facility that is less than three stories or has less than 3,000 square feet per story, except with respect to any facility that houses a shopping center, a shopping mall, the professional office of a health care provider, a terminal, depot, or other station used for specified public transportation, or an airport passenger terminal. 28 C.F.R. §36.404(a).

2. Historic preservation - Alterations to designated historic facilities

must comply with the special accessibility guidelines in ADAAG §4.1.7, unless doing so will threaten or destroy the historic significance of the building or facility, in which case alternative methods of access shall be provided pursuant to the requirements of 28 C.F.R. §36.305.

3. ADAAG requirements provide exception to compliance if:

(1) an alternative design provides “substantially equivalent or

greater access to and usability of the facility.” ADAAG §2.2;

(2) the Defendant can demonstrate that a particular requirement

is “structurally impracticable.” ADAAG §4.1.1(5)(a); and

(3) deviations are consistent with “conventional building industry tolerances for field conditions.” ADAAG §3.2. This is an affirmative defense, however, requiring proof that defendant could not have complied with the dimensional requirements by exercising due care in the design and construction, and also requiring proof of what the particular conventional tolerances are for the construction in question. Independent Living Resources v. Oregon Arena Corp., 1 F.Supp.2d 1124, 1135 (D.Or. 1998). Courts should be “especially reluctant to accept the ‘dimensional tolerances’ excuse in a situation where the regulations specify a minimum clearance that is necessary for that element to be usable by persons with disabilities.” Id.

8. Alteration affecting an area of primary function - Alterations that affect or

could affect the usability of, or access to, an area of a facility that contains a primary function shall be made so as to ensure that, to the maximum extent

19


feasible, the path of travel to the altered area and the restrooms, telephones, and drinking fountains serving the altered area, are readily accessible to and usable by individuals with disabilities. 28 C.F.R. §36.403(a).

1. A primary function is a major activity for which the facility is

intended. 28 C.F.R. §36.403(b). See also the examples at 28 C.F.R. §36.403(c).

2. A path of travel includes:

(1) a continuous, unobstructed way of pedestrian passage by

means of which the altered area may be approached, entered, and exited, and which connects the altered area with an exterior approach (including sidewalks, streets, and parking areas), an entrance to the facility, and other parts of the facility. 28 C.F.R. §36.403(e)(1);

(2) walks and sidewalks, curb ramps and other interior or

exterior pedestrian ramps; clear floor paths through lobbies, corridors, rooms, and other improved areas; parking access aisles; elevators and lifts; or a combination of these elements. 28 C.F.R. §36.403(e)(2); and

(3) the restrooms, telephones, and drinking fountains serving

the altered area. 28 C.F.R. §36.403(e)(3).

3. Defense -

(1) Such alterations need not be made if the cost of altering the path of travel disproportionate, i.e., exceeds 20% of the cost of altering the primary function area. 28 C.F.R. §36.403(a); 28 C.F.R. §36.403(f).

(2) But even if the cost would exceed 20%, the path of travel

must still be made accessible to the extent the cost does not exceed 20%. 28 C.F.R. §36.403(g).

4. Maintenance and upkeep of accessible features is required, except in isolated

instances. 28 C.F.R. §36.211. Compare Cupolo v. Bay Area Rapid Transit, 5 F.Supp.2d 1078 (N.D.Cal. 1997) (construing similar ADA regulation under Title II of the Act).

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5. Who can be sued

1. Public Accommodations

1. Defined: 42 U.S.C. §12181(7); 28 C.F.R. §36.104.

2. There is no size requirement for acts or omissions after 1/26/93. See Sec. 310(b) of the ADA, set out in a Note to 42 U.S.C. §12181.

3. Includes entities that own, lease, lease to, or operate a public

accommodation. 28 C.F.R. §36.104 (“public accommodation”).

1. Both the landlord and the tenant may be public accommodations subject to ADA regulations. 28 C.F.R. §36.201(b); Botosan v. Paul McNally Realty, 216 F.3d 827, 832-834 (9th Cir. 2000) (landlord liable for non-compliance, even though lease stated that tenant was solely responsible); ADA Technical Assistance Manual III-1.2000 (“any allocation made in a lease or other contract is only effective as between the parties, and both landlord and tenant remain fully liable for compliance with all provisions of the ADA relating to that place of public accommodation.”). See also Simpson v. City of Charleston, 22 F.Supp.2d 550, 555 (S.D.W.Va. 1998) (supermarket leasing property was liable for barriers on surrounding sidewalks, despite city ordinance making landowners responsible for sidewalks); Independent Living Resources v. Oregon Arena Corp., 1 F.Supp.2d 1124, 1148 (D.Or. 1998) (facility’s contract with the City absolving it of responsibility for improvements cannot control the operation of federal law).

2. The lessee may be covered even if lessor is exempt, Fiedler v. American Multi-Cinema, Inc., 871 F.Supp. 35, 37-38 (D.D.C. 1994), although the lessee may only be covered if it has paid consideration (i.e., is not using donated space). 28 C.F.R. Part 36 App. B, §36.201.

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3. Franchisors may be held liable, but only if they exercise the requisite amount of control. Pona v. Cecil Whittaker’s, Inc., 155 F.3d 1034, 1036 (8th Cir. 1998) (franchisor had insufficient control to be held liable), cert. denied, 526 U.S. 1131 (1999); U.S. v. Days Inns of America, Inc., 151 F.3d 822 (8th Cir. 1998) (similar), cert. denied, 526 U.S. 1016 (1999); Neff v. American Dairy Queen Corp., 58 F.3d 1063 (5th Cir. 1995) (similar), cert. denied, 516 U.S. 1045 (1996).

4. Regarding architect and designer liability, the courts are divided.

See, e.g., Lonberg v. Sanborn Theaters Inc., 259 F.3d 1029 (9th Cir. 2001) (collecting authorities, and holding no such liability).

4. The term “public accommodation” is liberally construed. PGA Tour, Inc.

v. Martin, 532 U.S. 661, 676-677 (2001).

5. The courts are divided on whether public accommodations are limited to physical structures.

1. Holding Title III is not so limited: Rendon v. Valleycrest

Productions, Ltd., 294 F.3d 1279 (11th Cir. 2002) (public accommodations not limited to physical structures, but also includes intangible barriers. at least when there is a nexus between the intangible barrier and the premises of the public accommodation); Morgan v. Joint Admin. Bd., 268 F.3d 456, 459 (7th Cir. 2001) (“An insurance company can no more refuse to sell a policy to a disabled person over the Internet than a furniture store can refuse to sell furniture to a disabled person who enters the store.”); Carparts Distribution Center, Inc. v. Automotive Wholesaler’s Ass’n of New England, Inc., 37 F.3d 12, 18-20 (1st Cir. 1994) (public accommodations not limited to physical structures; group health insurance plan may be a public accommodation); Matthews v. NCAA, 179 F.Supp.2d 1209, 1219 et seq. (E.D.Wash. 2001) (interpreting cases in the 6th and 9th circuits as holding that in order for Title III to apply, some “nexus” must exist between the physical place of public accommodation and the services or privileges denied in a discriminatory manner).

2. Contra: Stoutenborough v. National Football League, Inc., 59 F.3d

580, 582-583 (6th Cir. 1995), cert. denied, 516 U.S. 1028 (1995).

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3. Additional cases have held that Title III does not apply to insurance policies, e.g., Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1115 (9th Cir. 2000); Ford v. Schering-Plough Corp., 145 F.3d 601, 614 (3rd Cir. 1998), but their applicability to other Title III contexts is unclear. Matthews v. NCAA, 179 F.Supp.2d 1209, 1219 et seq. (E.D.Wash. 2001).

2. Commercial Facilities - may be sued, whether or not they are a public

accommodation, U.S. v. Days Inns of America, Inc., 151 F.3d 822, 825 (8th Cir. 1998), cert. denied, 526 U.S. 1016 (1999), but only as to new construction and alterations. 42 U.S.C. §12183(a); 28 C.F.R. §§ 36.102(c) and 36.104 (definition); ADA Technical Assistance Manual III-1.1000.

3. Examinations or Course - 28 C.F.R. §§ 36.102(d) and 36.309.

4. Any person or entity may be sued for retaliation or coercion. 28 C.F.R. §36.206;

28 C.F.R. Part 36 App. B, §§ 36.102 and 36.206.

5. Not applicable to

1. Private clubs. 42 U.S.C. §12187, 28 C.F.R. §§ 36.102(e) and 36.104.

1. The cases interpreting the similar restriction in Title II of the Civil Rights Act of 1964 are relevant in determining whether a defendant is a private club. 42 U.S.C. §12187; 28 C.F.R. Part 36 App. B, §36.104 (collecting cases, and listing as factors the degree of member control of club operations, the selectivity of the membership selection process, whether substantial membership fees are charged, whether the entity is operated on a nonprofit basis, the extent to which the facilities are open to the public, the degree of public funding, and whether the club was created specifically to avoid compliance with civil rights laws).

2. Facilities operated by a private club may be public accommodations

if open to the public, but they are exempt if they are only available to club members or patrons. 28 C.F.R. Part 36 App. B, §36.201.

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2. Religious organizations. 42 U.S.C. §12187, 28 C.F.R. §§ 36.102(e) and 36.104.

1. Note that it is not the purpose that determines whether the facility is

exempt, but the nature of the entity that owns or operates it.

2. Thus, a religious purpose does not necessarily mean the entity can claim the religious exemption. DOJ Opinion Letter (March 4, 1996), http://www.usdoj.gov/crt/foia/cltr182.txt (finding Providence-St. Mel Catholic School was not a religious entity, even though it was organized for religious purposes, because it was “not in any manner owned, operated or controlled by a particular religious organization.”).

3. Nor does a secular purpose necessarily mean it cannot. 28 C.F.R.

Part 36 App. B, §36.104 (“Even when a religious organization carries out activities that would otherwise make it a public accommodation, the religious organization is exempt from ADA coverage. Thus, if a church itself operates a day care center, a nursing home, a private school, or a diocesan school system, the operations of the center, home, school, or schools would not be subject to the requirements of the ADA or this part. The religious entity would not lose its exemption merely because the services provided were open to the general public.”); White v. Denver Seminary, 157 F.Supp.2d 1171 (D.Colo. 2001); ADA Title III Technical Assistance Manual III-1.5200.

4. Funding sources and composition of the board are two relevant

factors in determining whether it is entitled to the religious exemption, DOJ Opinion Letter (Oct. 28, 1992), http://www.usdoj.gov/crt/foia/tal214.txt, but the board composition is not determinative. White v. Denver Seminary, 157 F.Supp.2d 1171 (D.Colo. 2001); ADA Title III Technical Assistance Manual III-1.5100.

5. Note, too, that a private business renting space from a religious

organization is covered by Title III, even if its landlord is not. ADA Technical Assistance Manual III-1.5200; DOJ Opinion Letter, 7 NDLR ¶28 (Dec. 8, 1994) (Title III applies to private day care renting space from religious facility). See also V.A.3.b above.

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3. Public (i.e., governmental) entity. 28 C.F.R. §§ 36.102(e) and 36.104; Bloom v. Bexar County, Tex., 130 F.3d 722, 726-727 (5th Cir. 1997). Note, however, that lessees of government buildings may be covered. Fiedler v. American Multi-Cinema, Inc., 871 F.Supp. 35, 37-38 (D.D.C. 1994), citing ADA Technical Assistance Manual at III-1.2000.B.

4. Homes, condos, apartments, etc., are normally exempt, Radivojevic v.

Granville Terrace Mut. Ownership Trust, 2001 WL 123796, at *3 (N.D.Ill. Jan. 31, 2001) (and cases cited); Independent Housing Services of San Francisco v. Fillmore Center Associates, 840 F.Supp. 1328, 1344 n.14 (N.D.Cal. 1993), but there are exceptions. For example:

1. Common areas may be covered if they are open to general use, and

not restricted to use by residents and their guests. DOJ Opinion Letter, 4 NDLR ¶ 451 (July 29, 1992).

2. Public accommodation portions located in a private residence are

covered. 28 C.F.R. §36.207 (the portion of a private residence used both for the place of public accommodation and for residential purposes is covered, and the covered portion extends to those elements used to enter the place of public accommodation, including the front sidewalk, the door or entryway, and hallways; and those portions of the residence, interior or exterior, available to or used by customers or clients, including restrooms); No Barriers, Inc. v. BRH Texas GP, LLC, 2001 WL 896924, at *3 (N.D.Tex. Aug. 2, 2001) (apartment leasing office was a public accommodation). See also Sapp v. MHI Partnership, Ltd., 199 F.Supp.2d 578 (N.D.Tex. 2002) (developer’s model home was a place of public accommodation).

3. Certain group homes are covered. 42 U.S.C. §12181(7)(A);

Lindgren v. Camphill Village Minnesota, Inc., 2002 WL 1332796, at *6 (D.Minn. June 13, 2002).

4. Note, too, that private residences may be covered under the Fair

Housing Amendments Act of 1988, 42 U.S.C. §3604.

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6. One circuit has held that Indian tribes cannot be sued under Title III, even though tribal facilities may be covered. Florida Paraplegic Ass’n, Inc. v. Miccosukee Tribe of Indians of Florida, 166 F.3d 1126, 1129-1130 (11th Cir. 1999).

7. There is a circuit split on whether Title III applies to foreign-flag vessels. Holding

it does: Stevens v. Premier Cruises, Inc., 215 F.3d 1237 (11th Cir. 2000). Contra: Spector v. Norwegian Cruise Line Ltd., 356 F.3d 641 (5th Cir. 2004).

8. Individual liability

1. Individuals may be liable if they are the owner, lessor/lessee or operator of

public accommodation. 42 U.S.C. §12182(a); 28 C.F.R. §36.104 (defining “private entity”); 28 C.F.R. Part 36 App. B, §36.104; Howard v. Cherry Hills Cutters, Inc., 979 F.Supp. 1307, 1309 (D.Colo. 1997); Sharrow v. Bailey, 910 F.Supp. 187, 192 (M.D.Pa.1995) (doctor who discriminated against plaintiff could be liable as the owner of the medical practice, despite the fact that he was not the owner of the hospital where the discrimination occurred). Courts typically require evidence that such individual had supervisory power or control. See, e.g., Lentini v. California Center for the Arts, Escondido, 370 F.3d 837, 849-850 (9th Cir. 2004); Howe v. Hull, 873 F.Supp. 72, 77 (N.D.Ohio 1994); Aikins v. St. Helena Hosp., 843 F.Supp. 1329, 1335 (N.D.Cal. 1994); U.S. v. Morvant, 843 F.Supp. 1092, 1094-1095 (E.D.La.1994).

2. The only circuit court to address the issue has held that individuals are not

otherwise liable under Title III. Emerson v. Thiel College, 296 F.3d 184, 188-189 (3d Cir. 2002). See also Howard v. Cherry Hills Cutters, Inc., 979 F.Supp. 1307, 1309 (D.Colo. 1997) (although an individual who owns, leases, or operates a public accommodation may be liable, an individual employee without the power of control is not liable).

6. Remedies

1. Authorities: 42 U.S.C. §12188(a)(a) adopts remedies and procedures of §204(a) of the 1964 Civil Rights Act (42 U.S.C. §2000a-3(a)) (injunctive relief and attorneys’ fees).

2. Injunctive relief - 28 C.F.R. §36.501(a) and (b).

3. Money damages.

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1. Recoverable in an action brought by the Attorney General. 42 U.S.C. §12188(b)(2)(B); U.S. v. Morvant, 843 F.Supp. 1092, 1095-1096 (E.D.La.1994).

2. Not recoverable otherwise: Powell v. National Bd. of Medical Examiners, 364 F.3d 79, 86 (2d Cir. 2004); Wander v. Kaus, 304 F.3d 856, 858 (9th Cir.2002); Hobleman v. Kentucky Fried Chicken, 260 F.Supp.2d 801, 805 (D.Neb. 2003); Dorsey v. City of Detroit, 157 F.Supp.2d 729, 733 (E.D.Mich. 2001) (damages available against public golf course, but not private one); ADA Technical Assistance Manual III-8.2000. See also Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968) (no damages under 42 U.S.C. §2000a-3(a)).

3. Note that such damages may be available under state law. See, e.g.,

Lentini v. California Center for the Arts, Escondido, 370 F.3d 837 (9th Cir. 2004) (upholding award of damages to California theater patron who was excluded from a performance because she used a service animal); Johnson v. Gambrinus Company/Spoetzl Brewery, 116 F.3d 1052, 1065 (5th Cir. 1997) (Texas state law provides a damage remedy); Smith v. Wal-Mart Stores, Inc., 167 F.3d 286 (6th Cir. 1999) (plaintiff had claim under Georgia statute creating cause of action for damages based on a breach of statutory duty, and Title III imposed such a duty).

4. Attorneys’ fees and costs

1. They are recoverable. 42 U.S.C. §12205; 28 C.F.R. §36.505.

2. The statute also provides for the recovery of “litigation expenses” which

may include expert witness fees. Lovell v. Chandler, 303 F.3d 1039, 1058-1059 (9th Cir. 2002), cert. denied, 537 U.S. 1105 (2003) (Title II case).

3. Lodestar and enhancements follows the law under 42 U.S.C. §1988. See,

e.g., U.S. v. Venture Stores, Inc., 1994 WL 86068 (N.D.Ill. March 15, 1994).

4. The Supreme Court has held that plaintiffs are not entitled to recover

attorneys fees (in cases involving certain pre-trial settlements) under a “catalyst theory.” Buckhannon Bd. and Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598 (2001).

27


7. Defenses

1. Specified defenses (set out in III.D. above)

2. Direct threat defense - Nothing in Title III requires an entity to permit an individual to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations if such individual poses a direct threat to the health or safety of others. 42 U.S.C. §12182(b)(3); 28 C.F.R. §36.208.

1. The term “direct threat” means a significant risk to the health or safety of

others that cannot be eliminated by a modification of policies, practices, or procedures or by the provision of auxiliary aids or services. 42 U.S.C. §12182(b)(3); 28 C.F.R. §36.208(b).

2. In determining if there is a direct threat, defendant must make an individual

assessment, including several listed factors. 28 C.F.R. §36.208(c); ADA Technical Assistance Manual III-3.8000; Bragdon v. Abbott, 524 U.S. 624, 648-651 (1998); Abbott v. Bragdon, 163 F.3d 87 (1st Cir. 1998) (opinion on remand); Anderson v. Little League Baseball, Inc., 794 F.Supp. 342, 345 (D.Ariz.1992). See also Echazabal v. Chevron USA, Inc., 336 F.3d 1023 (9th Cir. 2003) (opinion on remand) (decided under Title I, and holding that defendant must establish a direct threat based on reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence).

3. Note that a defendant’s mistaken “belief that a significant risk existed, even

if maintained in good faith, would not relieve him from liability.” Bragdon v. Abbott, 524 U.S. 624, 649 (1998) (dentist refused to treat a customer with HIV disease based on the dentist’s mistaken belief that doing so would constitute a direct threat to health).

4. The Title III regulations do not include a “threat to self” defense, in

contrast to the Title I regulations. Compare 28 C.F.R. §36.208 (Title III) with 29 C.F.R. §1630.2(v) (Title I).

8. Rules of Interpretation

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1. Broad interpretation - Although parts of the definition of disability are interpreted narrowly, Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 197 (2002), the ADA as a whole is generally interpreted broadly in order to accomplish its remedial purposes set out in 42 U.S.C. §12101(b). See, e.g., Steger v. Franco, Inc., 228 F.3d 889, 894 (8th Cir. 2000) (“[T]he ADA is a remedial statute ... and should be broadly construed to effectuate its purpose.”); Menkowitz v. Pottstown Memorial Medical Center, 154 F.3d 113, 118 (3rd Cir. 1998); Matthews v. NCAA, 179 F.Supp.2d 1209, 1218 (E.D.Wash. 2001); Howe v. Hull, 873 F.Supp. 72, 77 (N.D.Ohio 1994); Webster Bank v. Oakley, 830 A.2d 139, 160 (Conn. 2003). See also PGA Tour, Inc. v. Martin, 532 U.S. 661, 674-676 (2001).

2. ADA not interpreted to apply lesser standard than §504, 42 U.S.C. §12201; 28

C.F.R. §36.103(c); Grubbs v. Medical Facilities of America, Inc., 1994 WL 791708, at *3 (W.D.Va. Sep. 23, 1994), and §504 standards apply unless otherwise specified. 28 C.F.R. Part 36 App. B, §36.103.

9. Procedural Matters

1. Jurisdiction

1. In federal court - there is jurisdiction under 28 U.S.C. §1331 (federal question). Howe v. Hull, 873 F.Supp. 72, 77 (N.D.Ohio 1994).

2. In state court - there is concurrent jurisdiction. See, e.g., Hapgood v. City

of Warren, 127 F.3d 490, 494 (6th Cir.1997); Vail v. Harleysville Group, Inc., 2002 WL 32172799, at *2 n.7 (E.D.Pa. Sep. 30, 2003); Johnson v. Dunhill Temporary Systems of Chicago, Inc., 1997 WL 781892, at *1 (N.D.Ill. Dec. 11, 1997); Krouse v. American Sterilizer Co., 872 F.Supp. 203, 205-206 (W.D.Pa. 1994); Jones v. Illinois Cent. R. Co., 859 F.Supp. 1144, 1145 (N.D.Ill. 1994); In re Doe, 60 P.3d 285, 291 n.9 (Hawai’i 2002); Jackson v. Sweet Ideas, Ltd. Partnership, 753 N.E.2d 302, 306 (Ill.App. 2001).

2. Limitations

1. There is no express statute of limitations for ADA claims (except under

Title I).

2. Most courts apply the state’s personal injury statute if the case involves a single discriminatory act. Gaona v. Town & Country Credit, 324 F.3d

29


1050, 1054-1056 (8th Cir. 2003) (finding this to be the rule in all circuits but the Fourth).

3. Accessibility cases involving architectural barriers may present a continuing

violation. Parr v. L & L Drive-Inn Restaurant, 96 F.Supp.2d 1065, 1088 n.27 (D.Hawai’i 2000); Lieber v. Macy’s West, Inc., 80 F.Supp.2d 1065, 1074 (N.D.Cal.1999). Compare Deck v. City of Toledo, 56 F.Supp.2d 886 (N.D.Ohio 1999) (Title II case). But cf. Speciner v. NationsBank, N.A., 215 F.Supp.2d 622, 634-635 (D.Md. 2002).

3. Exhaustion of administrative remedies is not required. Botosan v. Paul McNally Realty, 216 F.3d 827 (9th Cir. 2000); Hill v. Park, 2004 WL 180044, at *1-3 (E.D.Pa. Jan. 27, 2004) (collecting cases); Burriola v. Greater Toledo YMCA, 133 F.Supp.2d 1034, 1037 (N.D.Ohio 2001); Guzman v. Denny’s Inc., 40 F.Supp.2d 930, 933-934 (S.D.Ohio 1999); Grubbs v. Medical Facilities of America, Inc., 1994 WL 791708 (W.D.Va. Sept. 23, 1994).

4. Notice requirements

1. The courts are divided on whether pre-suit notice is required, Disabled in

Action of Metropolitan New York v. Trump Intern. Hotel & Tower, 2003 WL 1751785, at *10 (S.D.N.Y. Apr. 2, 2003) (collecting cases and holding no such notice is required), but the only circuit to address the issue has held that no such notice is required, based on the plain language of the statute. Botosan v. Paul McNally Realty, 216 F.3d 827, 831-832 (9th Cir. 2000).

2. Practical considerations may warrant giving pre-suit notice.

5. Standing is required.

1. This means a real and immediate threat of future harm; it must be likely

that plaintiff will be discriminated against by defendant in the future. Dudley v. Hannaford Bros. Co., 333 F.3d 299 (1st Cir. 2003); Steger v. Franco, Inc., 228 F.3d 889 (8th Cir. 2000); Disabled in Action of Metropolitan New York v. Trump Intern. Hotel & Tower, 2003 WL 1751785, at *7-9 (S.D.N.Y. Apr. 2, 2003); Parr v. L & L Drive-Inn Restaurant, 96 F.Supp.2d 1065, 1078-1081 (D.Hawaii 2000); Access Now, Inc. v. South Florida Stadium Corp., 161 F.Supp.2d 1357, 1363-1366 (S.D.Fla. 2001).

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2. Associational or representational standing. See, e.g., Wein v. American

Huts, Inc., 313 F.Supp.2d 1356 (S.D.Fla. 2004); Gregory v. Melrose Group, LLC, 2003 WL 22928805 (E.D.La. Dec. 8, 2003); Matta v. Lam, 2003 WL 21448942 (N.D.Tex. June 18, 2003); Disabled in Action of Metropolitan New York v. Trump Intern. Hotel & Tower, 2003 WL 1751785, at *10 (S.D.N.Y. Apr. 2, 2003).

3. Note that a state attorney general may sue in parens patrie. People v. Mid

Hudson Medical Group, P.C., 877 F.Supp. 143, 146-149 (S.D.N.Y. 1995).

10. Other Federal Accessibility Laws

1. The Architectural Barriers Act, 42 U.S.C. §§ 4151-4157.

2. The Rehabilitation Act of 1973, 29 U.S.C. §794, as amended.

3. The Fair Housing Act, at 42 U.S.C. §3604. Resources

The statute, Title III regulations (28 C.F.R. Part 36), Appendix B to those regulations (the DOJ interpretive guidance), the ADAAG (Appendix A to 28 C.F.R. Part 36), the Technical Assistance Manuals, and other resources are all available online, including at <http://www.jan.wvu.edu/links/adalinks.htm>. © Brian East

Documents

ADA TITLE III OUTLINE - American Bar Associationapps.americanbar.org/labor/lel-aba-annual/papers/2004/east.pdf · 1 © 2004 American Bar Association ADA TITLE III OUTLINE 1. Elements