Amicus Success in the Ninth Circuit

The Ninth Circuit decided yesterday that that you cannot moot a Title III case by keeping the challenged policy and making an exception only for the plaintiff. In Butler v. WinCo Foods, LLC, — Fed. App’x —, 2015 WL 3377837 (May 26, 2015), the plaintiff had challenged the defendant grocery store’s service animal policy. After the store offered the plaintiff an individual exception to the policy, the District Court dismissed the case as moot. In today’s decision, the Ninth Circuit reversed, holding that WinCo had not met its burden to show that it was “‘absolutely clear’ that it ‘could not reasonably be expected’ to revoke the exception or continue to enforce the allegedly improper policy against” the plaintiff. WinCo proffers the declaration of its manager, Steve Behn, who states that a memorandum is posted in the breakroom informing employees of the exception; that employees are being trained to grant Butler the exception; and that WinCo “has no intention of revoking the exception to the policy.” However, WinCo’s allegedly improper service animal policy remains in place, and WinCo maintains the position that the policy need not be changed. And, although WinCo employees are presently being trained to grant Butler an exception to the policy, it is not “absolutely clear” that such training cannot reasonably be expected to cease. Butler, slip op. at 3. Congratulations to Amy Vandeveld, the plaintiff’s attorney. CREEC wrote an amicus brief in support of Ms. Butler, which was joined by our friends at the American Association of People with Disabilities, The Disability Law & Advocacy Center of Tennessee, the Disability Rights Education And Defense Fund, Disability...

CREEC in Court: NAD Sues Harvard and MIT Over Discrimination

Earlier this morning, The National Association of the Deaf (NAD) and four deaf and hard of hearing individuals filed two federal class action lawsuits today against Harvard University and the Massachusetts Institute of Technology (MIT), charging that the schools discriminate by failing to caption the vast array of online content they make available to the general public, including massive open online courses (MOOCs). For more information about this case, including a video message from NAD’s CEO Howard Rosenblum, PDFs of the Harvard and MIT complaints, and examples of inaccurately captioned videos, please visit CREEC’s webpage dedicated to these cases. While you’re at it, check out the case’s write-ups in the New York Times, Boston Globe, Reuters, Ability Magazine, FastCompany, UPI, ABC News, Boston Herald, The Huffington Post, The Verge, and Harvard’s own student newspaper, The Harvard Crimson. If you want to show your support for this issue on social media, we’re using the hashtags #MOOC, #deaf, #captions, #highered, and #DeafJustice. Please follow @creeclaw, @DREDF, @NAD1880 and help spread the...

CREEC in Court: Deaf Dad Sues Pueblo’s Parkview Medical Center Over Failure to Provide Interpreter

George Baca filed a lawsuit today against Parkview Medical Center of Pueblo, CO in the U.S. District Court in Colorado. The lawsuit asserts that Parkview denied Mr. Baca, who is deaf and communicates using American Sign Language, a sign language interpreter for several days while his minor daughter was receiving emergency care after being struck by a car on July 6, 2013. Baca, who has been deaf since childhood, uses American Sign Language as his primary means of communication and does not read or write in English with fluency. After his daughter was taken to Parkview, Baca immediately asked for a sign language interpreter so he could stay informed of his daughter’s critical condition. Despite requesting an interpreter multiple times, Baca was not provided with an interpreter until several days into his daughter’s hospital stay. During that time, medical staff communicated with Baca about his daughter’s serious injuries solely via handwritten notes. “Taking care of my children is my priority, so it was incredibly stressful to be so powerless about my daughter’s treatment,” said Mr. Baca. “The entire experience – of not knowing what was happening to my daughter and not being able to communicate with her doctors – was very traumatic.” The Complaint asserts that Parkview failed to provide Baca with effective communication during this critical situation – an action that constitutes discrimination based on Baca’s disability under the Americans with Disabilities Act (“ADA”), the Rehabilitation Act, and the Colorado Anti-Discrimination Act. “In the middle of an already scary situation, Mr. Baca’s requests for an interpreter were repeatedly ignored, leaving him in the dark concerning his daughter’s condition....

Municipal Planning Morass = Disability Discrimination Travesty

A weird, complicated, simple, dramatic, Aspen-based soap opera of a legal case started trial yesterday.  The City of Aspen is suing two wealthy condo-owners and the developer/landlord of the rest of the building for privatizing the only accessible entrance.  It’s a smaller but more disturbing version of the “poor door” controversies in New York and other cities, where affordable housing tenants are forced to use a side entrance to mixed use buildings. Elise Thatcher of Aspen Public Radio interviewed me about it on Monday and posted the Court’s decision granting in part and denying in part the City’s motion for summary judgment. In short, JW Ventures, a developer in Aspen, Colorado, constructed a building in downtown Aspen to include two “market value” apartments, three “affordable housing units,” and two restaurants.  It also had, as required, an accessible entrance from the sidewalk with an elevator serving all apartments and the two restaurants, as well as an alley entrance and service elevator.   Fast forward to today:  the owners of the two market value units — a couple who combined them into a single apartment (the “Fancy Apartment”) — have asserted that the street-side accessible entrance and elevator are theirs alone, and that tenants of the affordable units and patrons of the restaurants must use the alley entrance and service elevator.  The legal case, brought by the City of Aspen to enforce its own ordinance, centers around the city’s conflicting actions with respect to building and condo plans.  I’ll get to the untested ADA and Fair Housing angles in a second. I want to start in the middle and slightly to...