When an accessibility barrier at a chain of businesses affects people with similar disabilities in the same way — narrow queue lines at a restaurant; steps at the entrance to a store; parking lots with excessive slope — the most efficient way to address these violations is through a class action under Title III of the Americans with Disabilities Act (ADA) against the common owner or operator. This was the conclusion reached by a federal district court in Pennsylvania in an order certifying a class of people with mobility disabilities challenging noncompliant parking lots at Steak ‘N Shake restaurants around the country.
Steak ‘N Shake challenged this decision in the Third Circuit, supported by two amicus briefs on behalf of various business associations including the National Retail Federation and the Chamber of Commerce.
CREEC — for itself and disability rights legends Corbett O’Toole, Julie Farrar, Carrie Ann Lucas, and Julie Reiskin — filed an amicus brief to the Third Circuit in support of the plaintiffs and the righteousness of Title III class actions. Eve Hill, of Brown, Goldstein & Levy, and Michelle Uzeta drafted an amicus brief on behalf of Disability Rights Pennsylvania and the National Disability Rights Network, also supporting the plaintiffs, and explaining the importance of not just achieving, but maintaining access for people with disabilities.
CREEC’s brief explained the many ways in which Title III cases — based on objective measurements and the DOJ’s design standards — are ideally suited for class treatment. CREEC also took the opportunity to respond to Steak ‘N Shake’s amici — the business associations — who filed briefs full of insults and random context-free statistics designed to demonize Title III plaintiffs and belittle the important task of making the commercial world more accessible.
For example, Defendant’s amici urged alarm that there were so many Title III lawsuits — 6,601 in 2016 and possibly 7,887 in 2017. We had some fun looking up the source of their numbers and showing how they compared with other categories of lawsuits. Turns out they were citing to a ADA defense law firm’s blog, which had warned that its analysis “may not be bullet proof.” We were able to respond with a chart — you know we’re numbers nerds here at CREEC — showing that the number of cases filed under Titles II and III of the ADA — coded “ADA – Other” — are very low in contrast to other types of cases. These numbers are drawn from statistics gathered by the Administrative Office of the U.S. Courts.
[There is an image description for the chart in alt text. You can also access the underlying Excel spreadsheet here.]
Defendant’s amici also rolled out the usual epithets — “drive-by,” “cottage industry,” “shakedown,” blah blah blah. The CREEC amicus brief called them out for this playground-level name-calling:
Litigation by insult is not uncommon in the Title III context and may, again, stem from the fact that liability is so easily established. Rather than surveying their facilities and bringing them into compliance — or raising legitimate, civilly-argued defenses — many businesses resort to the type of name-calling present in the Defendant’s amicus briefs here. The undersigned searched Westlaw’s “Trial Court Documents – Civil Trial Documents” database for pleadings filed in Title III cases since 2002 that used one or more of the following terms: “vexatious;” “shakedown;” “abusive;” “serial;” “bilk;” “cottage;” “extort!;” or “drive-by.” The search returned over 1,200 results. In many cases, identical sentences or even paragraphs appeared in pleadings in different cases involving different parties and different barriers — but filed by the same defense counsel with, apparently, the same language ready to copy and paste from one pleading to the next.
We also found it amusing that Steak ‘N Shake argued both that the case was so complex that it would require “mini-trials”* but so vague that it would be impossible to craft an injunction beyond “obey the law.”
It is contradictory for Defendant to complain simultaneously about its perceived need for “mini-trials” and its perception that the only possible injunction is an “obey the law” injunction. . . . Compliance, for Defendant, is either too complex or too general. Like Goldilocks,** however, the district court should not have difficulty formulating an injunction that is just right: one that requires Defendant, based on complete or symptomatic evidence, to remediate noncompliant parking spaces; and to promulgate a policy to include this in existing maintenance procedures.
Ultimately, the most important point to keep in mind is that plaintiffs who bring multiple ADA lawsuits are a feature, not a bug. As the Supreme Court held, with respect to the provision that was adopted as the ADA’s enforcement provision:
When the Civil Rights Act of 1964 was passed, it was evident that enforcement would prove difficult and that the Nation would have to rely in part upon private litigation as a means of securing broad compliance with the law. A Title II suit is thus private in form only. When a plaintiff brings an action under that Title, he cannot recover damages. If he obtains an injunction, he does so not for himself alone but also as a ‘private attorney general,’ vindicating a policy that Congress considered of the highest priority. . . . . Congress therefore enacted the provision for counsel fees—not simply to penalize litigants who deliberately advance arguments they know to be untenable but, more broadly, to encourage individuals injured by racial discrimination to seek judicial relief under Title II.
Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 401–02 (1968) (emphasis added).
It was a terrific experience writing for Corbett, Julie F., Julie R., and Carrie, and working with Michelle and Eve during the drafting process. Easily the coolest thing about being a lawyer is working on a great team. And we love writing amicus briefs here at CREEC, so if you need someone to call baloney on bogus statistics and clap back at silly name-calling, keep us in mind!
*Can you blame me for picturing Lego mini-figure lawyers and judges every time some defendant argues that a class action will require “mini-trials.”
** Credit for the “Goldilocks” metaphor to Erica Grossman, who deployed it skillfully when a defendant initially argued that her complaint was too short, and then — in a second motion — that it was too long. And you wonder why plaintiffs’ civil rights lawyers develop a sarcastic sense of humor!
Here is a quick overview of what CREEC has been up to this year. Thanks to everyone who supported us, worked alongside us, made us think, made us laugh, and made us hope. We work hard to be worthy of your support and hope you’ll consider us in your year-end giving.
Happy New Year and onward to a more just and joyous 2018!
I think I made the images accessible, but if not, you can also read it in a pdf version.
CREEC, CIVIC File Litigation Hold to Preserve Sexual Assault Records of People in Immigration Detention
For Immediate Release, November 7, 2017
LOS ANGELES, CA – Community Initiatives for Visiting Immigrants in Confinement (CIVIC) and the Civil Rights Education and Enforcement Center (CREEC) are putting the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) on notice over ICE’s plan to destroy the records of immigrants in detention, including deaths in custody, solitary confinement and sexual assault.
In late August, ICE petitioned the National Archives and Records Administration (NARA) for permission to start routinely destroying 11 kinds of records on several proposed timelines. CIVIC and CREEC sent ICE a litigation hold letter which, according to Tim Fox, an attorney and the Co-Executive Director of CREEC, “places ICE on notice that litigation may be commenced concerning the topics covered in the letter, and thus ICE has a duty to preserve related documents, and this is true even if NARA approves ICE’s petition.”
“These records are vital to anticipated litigation. They are essential to obtaining justice for those individuals who’ve needlessly suffered at the hands of government officials,” says Christina Fialho, an attorney and the Co-Founder/Executive Director of CIVIC.
Earlier this year, CIVIC filed a civil rights complaint after uncovering, through a Freedom of Information Act request, widespread sexual abuse, assault and harassment in U.S. immigration detention facilities. CIVIC uncovered that between January 2010 and July 2016, Homeland Security’s Office of the Inspector General received over 33,000 complaints of sexual assault or physical abuse against DHS’s component agencies. But the Inspector General investigated less than 1 percent of these cases.
For example, Rosanna Santos was sexually harassed by a male guard at the York County Jail in Pennsylvania while she was in immigration detention. She was one of the named complainants in CIVIC’s federal civil rights complaint earlier this year. Rosanna says: “I spoke out about the sexual harassment so that something would be done for all those other women I knew who were being silenced. Destroying the evidence is not going to erase our traumatic memories or help bring those who are responsible for sexual violence to justice.”
The federal government has shown no interest in a proper and full investigation. And now, it wants to destroy sexual abuse and assault records. That won’t happen on our watch.
“We won’t let ICE willfully destroy evidence of systematic wrongdoing,” said Fialho. “ICE is now on notice that if they try to destroy these records, they will be subject to legal consequences.”
CREEC joined nine other disability rights organizations in filing an amicus brief in the Supreme Court in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, in support of the gay couple turned away from a Colorado bakery based on the owner’s prejudice. The Colorado Court of Appeals held in favor of the couple, recognizing that the baker violated their rights under the Colorado Anti-Discrimination Act (“CADA”), and the Colorado Supreme Court declined to review. The case is currently before the United States Supreme Court on the baker’s argument that it violates his first amendment rights of free exercise and free expression to force him to make a cake that would be used in a gay wedding. The statute at issue — CADA — prohibits discrimination in public accommodations based on disability as well as sexual orientation and a number of other protected classes; Title III of the Americans with Disabilities Act also prohibits disability discrimination in public accommodations.
CREEC and other organizations filed their amicus brief to caution the Court that recognizing personal scruples exceptions — including free exercise or free expression — to the general requirement that public accommodations serve everyone without discrimination could significantly jeopardize enforcement of Title III and the protections it affords people with disabilities to fully participate in our nation’s economic and commercial life.
CREEC strongly urges the Supreme Court to affirm the Colorado Court of Appeals and reaffirm our commitment that American businesses are #OPENTOALL.
We would also like to thank the rockstars at Rosen, Bien, Galvan and Grunfeld who wrote the brief, and our fellow amici for the terrific discussions the brief engendered.
Bill Lann Lee, CREEC’s Senior Counsel, wrote an op-ed about some of the Medi-Cal system issues we are seeking to address in the lawsuit we filed with MALDEF (Mexican American Legal Defense and Educational Fund) and the law firm of Feinberg, Jackson, Worthman & Wasow LLP on behalf of individuals, as well as St. John’s Well Child & Family Center, SEIU-United Healthcare Workers West (SEIU-UHW), and National Day Laborer Organizing Network (NDLON) in the The Sacramento Bee today!
“Making sure that Medi-Cal provides the access to health care for those it covers is simple justice.”
The official press release for the Medi-Cal case filing is below:
For Immediate Release
LOS ANGELES, CA, July 12, 2017 – State officials are violating the civil rights of 13.5 million individuals enrolled in Medi-Cal, the health insurance program for low-income Californians, a majority of whom are Latino, according to a lawsuit filed Wednesday.
The suit, filed in Alameda County Superior Court, alleges that Medi-Cal patients face huge obstacles in obtaining timely access to care because the state pays providers so little for their services that many doctors decline to accept Medi-Cal patients. Those problems are further compounded by the state’s failure to adequately monitor and oversee the program, according to the lawsuit.
MALDEF (Mexican American Legal Defense and Educational Fund), CREEC and the law firm of Feinberg, Jackson, Worthman & Wasow LLP filed the suit on behalf of individuals, including a man who has cerebral palsy and is semi-paraplegic, as well as St. John’s Well Child & Family Center, SEIU-United Healthcare Workers West (SEIU-UHW), and National Day Laborer Organizing Network (NDLON).
“Medi-Cal is a critical program to so many of California’s children and adults; it is no exaggeration to say that our current and future workforce – our very prosperity as a state – depends on Medi-Cal providing access to vital physician care,” said Thomas A. Saenz, MALDEF president and general counsel. “We must ensure that Medi-Cal is administered in a fair and non-discriminatory manner that serves the healthcare needs of Latinos and all others enrolled in the program.”
At issue is Medi-Cal patients’ inability to access the care they need because of low reimbursement rates and unnecessary red tape.
Currently, California’s rates are so much lower than Medicare and employer-sponsored insurance rates that they discourage participation by healthcare providers and leave Medi-Cal recipients with few options, according to the lawsuit. With so few Medi-Cal providers, patients are frequently unable to find the primary and specialty care they need. When they do, they often wait weeks or months for appointments, or must often travel long distances – effectively denying them meaningful health care, according to the complaint.
“California is required by law to provide Medi-Cal health insurance participants access to healthcare equivalent to the access of people with other insurance coverage, including employer-sponsored insurance and Medicare,” said Bill Lann Lee, senior counsel of the Civil Rights Education and Enforcement Center (CREEC), and a former assistant attorney general for civil rights at the U.S. Department of Justice. “In the past, when Medi-Cal was a predominantly white program, access was better because the reimbursement rates were closer to other insurance reimbursement rates. That changed when the Medi-Cal program became increasingly Latino and then majority Latino. That is discrimination.”
The lawsuit alleges the Medi-Cal program is discriminatory because as the number of Latino enrollees has increased, reimbursement rates have decreased, in violation of state civil rights protections. Among those struggling to receive adequate healthcare access are Analilia Jimenez Perea and her son, Saul, who are two of the named plaintiffs in the civil rights suit. Saul is a Medi-Cal patient who has cerebral palsy and is semi-paraplegic. He suffers from severe seizures that have required frequent hospitalizations, but Analilia has had an extremely difficult time finding doctors who will see him. In one instance, they waited a year and a half for an appointment with a neurologist.
“It’s very sad when I try to get an appointment for him at a special clinic and they are happy to speak to me until they learn he has Medi-Cal, and then they either turn us away or tell us we’ll have to be put on a waiting list,” said Analilia.
Latinos in California have rapidly become the largest group of people receiving their health care through Medi-Cal. In 2000, 2.3 million Latinos were enrolled in Medi-Cal. By 2016, that number had risen to 7.2 million, a clear majority of the Medi-Cal population. In that same time frame – 2000 to 2016 – Medi-Cal payments to health providers fell 20 percent compared to what Medicare pays for the same services. Medi-Cal reimbursement rates to health providers are 48th in the nation. In many cases, the reimbursement rate is lower than a physician’s cost of providing care. Similar problems exist with managed care.
“These statistics show that California has created a separate and unequal system of health care, one for those with private insurance and Medicare, and an inferior one for those in the majority Latino Medi-Cal program,” said Catha Worthman, one of the lawyers and a partner at Feinberg, Jackson, Worthman and Wasow LLP.
“The physical effects of Medi-Cal’s inadequacy are brutal and the result of this unfair system, in a nutshell, is that everyone loses,” said Jim Mangia, president & CEO of St. John’s Well Child and Family Center. “It is time for California’s state government to stop undermining the fundamental human right to health. It is time for California to stand up and provide the comprehensive, affordable health care that every resident of this state deserves.”
“Healthcare is a fundamental human right, yet it remains inaccessible for many day laborers and low wage workers,” said Cal Soto, worker rights coordinator for NDLON. “When every penny earned is vital to keeping a household afloat, an untreated illness or injury could severely disrupt the well-being of the entire family. It is unacceptable that Medi-Cal sometimes reimburses at less than half the rate of other health insurers. California has the highest GDP of any state in the country, and we must continue to fight to ensure that our immigrant community is not provided with second-class healthcare coverage.”
The official press release from the Seattle curb ramps settlement is below. A copy of the Proposed Consent Decree is also available for review.
SEATTLE, WA, July 18, 2017– The City of Seattle has settled a landmark class action lawsuit by committing to installing over twenty thousand accessible curb ramps throughout Seattle over the next eighteen years. Curb ramps provide people with mobility disabilities a safe way to get on and off sidewalks as they travel through the pedestrian right of way.
People with disabilities are the largest minority group in the country; census figures estimate that 56.7 million, or 1 in 5, Americans has a disability. In Seattle alone, there are approximately 26,000 people with mobility disabilities who use wheelchairs, walkers, scooters, or other mobility devices to get around. Missing, broken, or poorly maintained curb ramps prevent people with mobility disabilities from safely using city sidewalks, crosswalks and other walkways to participate in daily activities like getting to work or going to school.
“As a lawyer with a disability practice in Seattle, I am beyond thrilled with this agreement,” said Conrad Reynoldson, one of the plaintiffs who brought the case. “This means that both my clients and I will have full, equal, and safe access to an inclusive community. It has been hard finishing up law school, setting up my practice, or even getting to court, when I have to figure out a way to get there that doesn’t involve me going blocks out of my way or traveling in the street due to a missing curb ramp.”
David Whedbee, another plaintiff, explains “beyond the thousands of new curb ramps, one of Seattle’s most promising commitments is improving how a citizen can request a new curb ramp or fix a broken curb ramp. They no longer have to figure out how to do this on their own. Instead, this agreement makes sure that there is one clear, easy system for installing or fixing curb ramps.”
“Federal and state disability access laws were enacted decades ago to provide persons with disabilities an equal opportunity to fully participate in civic life,” said Tim Fox, plaintiffs’ counsel and co-founder of the Civil Rights Education and Enforcement Center. “Today, we stand together with the City of Seattle to fulfill the promise of those laws by ensuring that people with disabilities can travel independently throughout their communities.”
“With inclusion as our guiding principle, today, we are making Seattle safer and more accessible for everyone by correcting a problem that has persisted for decades,” said Mayor Ed Murray. “By building thousands of curb ramps we are righting a wrong that prevented people with mobility disabilities from easily moving around the city. It has been a priority of my administration to ensure everyone has dependable, safe access to our entire transportation network. Our commitment to building curb ramps fits with our ambitious Pedestrian Master Plan, Vision Zero, and our transportation levies. Thank you to City Attorney Pete Holmes and his team for making today a reality.”
If you have a mobility disability and would like to comment on the proposed Consent Decree, please call our toll free number 888-461-9191 or email us at email@example.com.
We are very excited to announce that a team of lawyers and (then) law students from CREEC and the University of Denver Sturm College of Law’s Civil Rights Clinic (CRC) is one of four national finalists for the Trial Lawyer of the Year award presented by Public Justice. We have been nominated for our work on the Anderson and Decoteau cases. Public Justice — a nonprofit organization that pursues high-impact lawsuits to combat social and economic injustice, protect the Earth’s sustainability and challenge predatory corporate conduct and government abuses — presents its Trial Lawyer of the Year Award to the attorney(s) who made the greatest contribution to the public interest within the past year by trying or settling a precedent-setting, socially significant case.
CREEC also wants to congratulate the other three finalist teams, especially our good friends at Schneider, Wallace, Cotrell, Konecky, Wotkyns, LLP; Goldstein Borgen Dardarian & Ho; Legal Aid at Work; and the Disability Rights Legal Center for their great work on the Los Angeles sidewalk case, Willits v. Los Angeles. Possibly the coolest thing to come from this nomination will be the chance to hang out with these rockstars in Boston at the Public Justice gala!
CREEC and the CRC brought the Anderson and Decoteau cases on behalf of men incarcerated in the Colorado State Penitentiary (CSP) who had been denied outdoor exercise for years or even decades. These men, who were locked in 90 square foot cells for 23 hours a day, were only permitted to exercise in an empty cell similar to the ones they live in with a narrow slit of a window and a pull-up bar. The CRC and CREEC filed a lawsuit on behalf of Troy Anderson in 2010 claiming that the Department of Corrections’s (DOC’s) refusal to provide him outdoor exercise violated his constitutional right to be free from cruel and unusual punishment. Student attorneys under the supervision of Civil Rights Clinic faculty and CREEC attorney Amy Robertson, took the case to trial in 2012. In a written decision, U.S. District Judge R. Brooke Jackson held that the DOC’s refusal to provide outdoor exercise to the men at CSP was cruel and unusual punishment, finding that “coupled with the other conditions of administrative segregation at the CSP, this prolonged deprivation is a paradigm of inhumane treatment.”
Following the court’s decision, the DOC moved Mr. Anderson to a different prison, leaving the remaining 700 men at CSP without outdoor exercise. As a result, the Clinic and CREEC began investigating and interviewing scores of men at CSP concerning their experiences with outdoor exercise and in December 2013, filed the Decoteau v. Raemisch case, a class action asserting that the failure to provide outdoor exercise at CSP violated the rights of the men incarcerated there.
In late 2015, the case settled with an agreement by the Department of Corrections to construct outdoor exercise yards at CSP. The yards have now been completed, and some of the men at CSP are feeling the sun on their faces for the first time in decades.
CREEC was thrilled throughout these cases to work with the Civil Rights Clinic, an intensive, year-long litigation program where students represent clients in civil rights cases in federal court under the supervision of clinic faculty.
The announcement of the 2017 Trial Lawyer of the Year will be made at the Public Justice Gala on July 24 at the Fairmont Copley Plaza in Boston, Mass.
CREEC is very excited to welcome our new Fellow, Elizabeth (Liz) Jordan! Liz is CREEC’s first annual Fellow and we are thrilled that she will be utilizing her extensive human rights experience to advance CREEC’s mission.
After graduating from Yale with a BA in Political Science and Latin American Studies, Liz conducted human rights research in Madrid, Spain as a Fulbright Scholar. She graduated from New York University School of Law in 2013 as an Arthur Garfield Hays Civil Liberties Fellow. While in law school she participated in numerous internships and clerkships which focused on human and civil rights. As a Law Clerk for Orleans Public Defenders, she assisted public defenders in all aspects of their cases including trial preparations and investigations. As a Hays Fellow Law Intern, she drafted memoranda regarding imprisonment of indigent criminal defendants for non-payment of fines, as well as racial profiling in schools for the ACLU Racial Justice Program. She also conducted group orientation in English and Spanish for detained immigrants for the Legal Aid Society, Immigration Law Unit. After graduating from law school, Liz became a Fellow at the Capital Appeals Project in New Orleans, where she represented clients with first-degree and second-degree murder convictions. Before coming to CREEC, she was an Immigration Staff Attorney for The Door’s Legal Services Center, where she represented approximately 200 unaccompanied minors facing deportation. Outside the office, you can find Liz outdoors, hiking skiing, or riding horses (seems like she’ll fit right in in Colorado). Liz also loves spending time in museums and cooking, but her favorite activity is yoga! Welcome, Liz! We are excited to be working with you!
CREEC is civil rights non-profit that specializes in high impact litigation and advocacy fighting all forms of exclusion and discrimination in order to obtain effective and enduring systemic reforms that redeem the promise of fairness embodied in our nation’s civil rights laws. The CREEC Fellowship is an opportunity for a recent law school graduate, law clerk, or returning lawyer to contribute creatively to the work of our small civil rights non-profit staffed by lawyers with decades of experience in civil rights advocacy and litigation in a broad range of areas. The Fellow will also work with grassroots groups and co-counsel at partner public interest and private pro bono law firms, and gain experience in all phases of CREEC’s work, including advocacy, litigation, public education and outreach, investigations, brainstorming, and playing with the office dogs.
We will begin accepting applications for the second CREEC Fellowship later this summer.
Some days practicing law requires long hours in the office, but some days practicing law allows you to be outside on a crisp, Colorado spring day. Luckily for the legal team working on a case to improve accessibility at Red Rocks, Friday was a perfect day (despite the impending snow storm) to take measurements and photographs of the concert venue. Alison Daniels and Jennifer Purrington from Disability Law Colorado (DLC), Kevin Williams and Tram Ha from Colorado Cross-Disability Coalition (CCDC), and Amy Robertson and Caiti Hall from CREEC ventured to Red Rocks to document the current conditions and discuss improvements for disabled concertgoers.
Red Rocks is a beautiful open-air amphitheater built into a natural rock formation in Morrison, Colorado. The incredible venue draws some top-line performers and Colorado locals, as well as visitors from across the country, to Red Rocks to have a unique concert experience. Unfortunately, many disabled concertgoers have been denied meaningful access to Red Rocks and thus have been unable to take part in this quintessential Colorado experience. That is why, in December of this year, DLC, CCDC, and CREEC filed a lawsuit in Colorado Federal District Court challenging ticketing and seating policies that make it difficult for people with mobility disabilities; we are also investigating seating and ticketing problems for people who are deaf, hard of hearing, or visually impaired, that keep them from fully enjoying concerts at Red Rocks.
We are currently interested in talking with people who have encountered problems like this. If you have attended or have attempted to attend a concert at Red Rocks and use a wheelchair or have limited mobility, are Deaf or hard of hearing, or have vision impairments, please contact our office.
You can get in touch with us by calling our office (303) 757-7901 or by emailing firstname.lastname@example.org.
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