ADA Defense Abuse: A Case Study

ADA Defense Lawyers Prolong Litigation and Postpone Access:  A Case Study of Litigation Abuse  Title III of the Americans with Disabilities Act (ADA) prohibits disability discrimination by private businesses.  Lawyers who defend noncompliant businesses argue that their opposing counsel — lawyers who represent people with disabilities seeking to enforce their rights — engage in litigation abuse.  They are lobbying for passage of H.R. 620, a bill that would add the requirement of a specifically-worded demand letter and four-month waiting period before a disabled person could enforce their rights. This case study of ADA defense litigation abuse suggests that ADA defense counsel are already guilty of prolonging litigation, postponing access, and ultimately enriching themselves at the expense of both the businesses they represent and the people with disabilities who continue to be denied access 28 years after the ADA was passed. H.R. 620’s requirement of a demand letter will remove any incentive for voluntary compliance and will add a new round of motions for ADA defense attorneys to file — challenging the wording, content, and specificity of the demand letter — on top of the already unconscionable litigation delay that is their standard practice. To demonstrate the opportunities for delay in which ADA defense counsel typically engage, we looked at a case that a group of retail trade associations held up as a typical Title III case.  In a recent amicus brief to the Third Circuit, lawyers for the National Association of Convenience Stores, the National Grocers Association, and the Food Marketing Institute singled out the case of Heinzl v. Cracker Barrel Old Country Store, Inc., No. 14-cv-1455 (W.D. Pa....

H.R. 620 = Amnesty for Access

Congress is considering a bill  — H.R. 620 — that would absolve all businesses currently in violation of the access requirements of Title III of the ADA — in place since 1990 — and permit them to wait to receive notice from a disabled person who encounters its discrimination, and then wait another six months to perhaps get some sort of solution underway.  DREDF has some excellent resources and talking points.  I thought this infographic might help explain how this bill rewards scofflaws and stops the progress of accessibility of the built environment.  [There’s a separate image description of the infographic...

Class Action Lawsuit Alleges Disability Discrimination at Red Rocks Amphitheatre

A coalition of local disability-rights organizations filed a class action suit in Colorado’s Federal District Court yesterday claiming that the City of Denver has acted to deny those who use wheelchairs the opportunity to meaningfully access to Red Rocks Amphitheatre.  CREEC and its co-counsel at the Colorado Cross-Disability Coalition (CCDC) and Disability Law Colorado (DLC) filed the suit against the City of Denver, claiming disability discrimination for failure to make reasonable accommodations to allow people who use wheelchairs to access and enjoy Red Rocks Amphitheatre. If you are a wheelchair-user and have had problems purchasing tickets to Red Rocks, specifically to the front row, please contact us at info@creeclaw.org. Red Rocks, owned and operated by the City of Denver, is a unique Colorado venue carved into a mountain. The only accessible seats at Red Rocks are in the front row or at the very top and back of the theater (Row 70). In fact, of the 9,525 seats at Red Rocks, only 78 seats are accessible to wheelchair users — 40 seats short of what is required by the regulations implementing the Americans with Disabilities Act (ADA). According to the suit, despite the limited numbers of accessible seats available, Red Rocks and its contractors routinely engage in practices that further decrease the number of seats available for wheelchair users. For example, Red Rocks does little to ensure that tickets for accessible seats are sold or given to people who actually need accessible seating. What’s more, when people who do not need accessible seating end up in the front row and those using wheelchairs ask to be seated in the accessible section,...

NAD Lawsuit Against Harvard and MIT Moves Forward, Obligation to ensure equal treatment applies in emerging technologies

November 4, 2016 — Judge Mark G. Mastroianni of the District Court of Massachusetts denied Massachusetts Institute for Technology’s (MIT) and Harvard University’s motions to dismiss the National Association of the Deaf’s (NAD) and other named plaintiffs’ complaint that the institution discriminates against deaf and hard of hearing people by failing to caption the vast and varied array of online content they make available to the general public, including massive open online courses (MOOCs). Today’s decision affirms that plaintiffs’ case will be going forward. MIT and Harvard suffered a huge blow to their positions that the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act do not require the institution to provide closed captions on its online videos that it makes open and available to the world. Plaintiffs are represented by Disability Rights Education & Defense Fund (DREDF), Civil Rights Education and Enforcement Center (CREEC), NAD, and Disability Law Center (DLC) in the lawsuit against MIT, and by CREEC, NAD, and DLC in the lawsuit against Harvard. Arlene Mayerson, DREDF Directing Attorney, said, “I am thrilled that we have made this important inroad into ensuring that 21st century online education is accessible to all.” Today’s decision rejected Harvard’s and MIT’s arguments that they were “entitled to statutory exemptions for accommodations that impose an unreasonable financial or administrative burden, or require a fundamental change in the good at issue.” Judge Mastroianni noted Defendants’ arguments were “inappropriate for resolution on a motion to dismiss. A motion to dismiss addresses the plausibility of a plaintiff’s claims, not the strength of a defendant’s affirmative defenses.” Tim Fox, CREEC Co-Executive Director,...

Court Grants Final Approval of Hotel Transportation Class Settlement

On May 3, 2016, Judge Yvonne Gonzalez Rogers of the U.S. District Court for the Northern District of California granted final approval of a class action settlement and certified a settlement class in CREEC et al. v. RLJ Lodging Trust. RLJ owns approximately 127 hotels throughout the country. The lawsuit, brought by CREEC and three individuals with mobility disabilities who use wheelchairs, alleges that many hotels owned by RLJ provide transportation services to guests, but fail to provide equivalent wheelchair-accessible transportation services as required by the ADA and California state law. As a result of the settlement, the hotels owned by RLJ that provide transportation services to their guests will provide equivalent accessible services to guests who use wheelchairs or scooters. The accessible services will be equivalent in timing, notice, routes or geographic scope, fares, hours, reservations, and restrictions. The settlement provides for three years of monitoring of the hotels to ensure compliance. As the Court noted in the final approval order, the settlement’s “extensive injunctive relief, combined with robust monitoring, is an excellent result for the class.” In an earlier order, the Court also held that the three individual plaintiffs had standing as testers to pursue injunctive relief under the ADA. CREEC, along with fabulous co-counsel CCDC and Campins Benham-Baker LLP, represents the plaintiffs and the settlement...

Court Grants Final Approval of Hotel Transportation Settlement — CREEC v. Ashford Hospitality Trust

On March 22, 2016, Magistrate Judge Donna M. Ryu of the U.S. District Court for the Northern District of California granted final approval to a class action settlement in CREEC et al. v. Ashford Hospitality Trust, Inc. Ashford owns approximately 125 hotels located in 20 states. The lawsuit, brought by CREEC and two individuals with mobility disabilities who use wheelchairs, alleges that many hotels owned by Ashford provide transportation services to guests, but fail to provide equivalent wheelchair-accessible transportation services as required by the ADA and California state law. As the Court noted in the final approval order, the settlement “provides a comprehensive scheme for injunctive relief, requiring all Ashford-owned and/or operated hotels to come into compliance with ADA regulations that require hotels that offer transportation services to provide transportation services to people who use wheelchairs or scooters.” The Court further noted that the agreement “sets forth what ‘compliance’ means, with specific attention to ensuring that any third party transportation providers utilized by Ashford hotels provide equivalent accessible transportation,” and that the agreement “explicitly requires that Ashford hotels provide accurate information to potential hotel guests so that no guests are erroneously deterred.” As a result of the settlement, all of the hotels owned by Ashford that provide transportation services to their guests will provide equivalent accessible services to guests who use wheelchairs or scooters. The accessible services will be equivalent in timing, notice, routes or geographic scope, fares, hours, reservations, and restrictions. The settlement provides for three years of monitoring of the hotels to ensure compliance. Plaintiffs and the Settlement Class are represented by CREEC, CCDC, and Campins Benham-Baker...
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