9/12/2017 Mid-Atlantic ADA Center ADA DEVELOPMENTS IN ADA TITLE III - - PDF document

9/12/2017 1 DEVELOPMENTS IN ADA TITLE III LITIGATION, 2016-17

Mid-Atlantic ADA Center ADA Update September 15, 2017

• Prof. Robert D. Dinerstein

American University, Washington College of Law

OUTLINE OF THE PRESENTATION

Statistics Magee v. Coca-Cola Refreshments USA, Inc.—cert. petition pending DOJ Consent Decrees, Settlement Agreements, Voluntary Compliance Agreements, Statements of Interest, Complaints Recent Website Accessibility Cases Under Title III Suits Against Uber Technologies Under Title III ADA Education and Reform Act of 2017 Regulatory “inactivity”

STATISTICS

Number of Title III Cases Filed

9/12/2017 2 MAGEE V. COCA-COLA REFRESHMENTS USA, INC.

Opinion below, 833 F. 3d 530 (5th Cir. 2016)

• Cert. petition filed (by U VA Supreme Court litigation clinic), Nov. 11, 2016

SG brief opposing cert. filed, July 19, 2017 Distributed to conference, August 2, 2017 To be considered at conference, September 25, 2017 Issue: is Title III of the ADA limited to physical spaces? Possible implications for whether Title III extends to the internet and the web

DOJ ENFORCEMENT

Types of actions:

 Litigation (USAO, DOJ/CRD)  Letter of Findings  Statement of Interest/Amicus Curiae Participation  Consent Decrees  Settlement Agreements  Voluntary Compliance Agreements

DOJ SETTLEMENT AGREEMENTS, ETC.

New construction/accessibility Auxiliary services (esp. sign language interpreters) Denial of services/discrimination Failure to provide reasonable modifications for people with disabilities Websites

9/12/2017 3 DOJ NEW CONSTRUCTION/ACCESSIBILITY

US v 30 Hop Restaurant (CD)(accessible routes between floors; new construction) Care R Bieber (SA)(wheelchair accessibility for fleet of buses) Dolgencorp LLC (SA)(accessible parking space, aisles, store entrance) Fill Building Associates (SA)(removal of architectural barriers) Imperial Plaza Condominium (SA)(removal of architectural barriers) The Irish Democrat (SA)(removal of architectural barriers at a brew pub) Lone Star Steakhouse & Saloon (SA)(id.)

DOJ NEW CONSTRUCTION/ACCESSIBILITY

Moon Time Restaurant/Seasons of Coeur d’Alene, ID (Voluntary agreement)(removal

• f architectural barriers in restaurant)

Omaha Performing Arts Society (SA)(dispersed wheelchair/companion seating in theater) Peter Pan Bus Lines (SA)(training, regular maintenance, not requiring notice, proper securement for large motor coach company when dealing with passengers using wheelchairs) Vinarc, LLC (SA)(alterations, removal of architectural barriers) West Point Tours, Inc.(voluntary compliance agreement)(accessible transportation) YMCA of Reading and Berks County, PA (SA)(barrier removal at Y, including parking, swimming pool lift and toilet room)

DOJ AUXILIARY SERVICES (SIGN LANGUAGE INTERPRETERS, ETC.)

Arrowhead Regional Medical Center (SA) City of New York and Richmond University Medical Center (Statement of Interest)(sign language interpreter for mother of patient) Floyd Medical Center (SA)(failure to provide sign language interpreters to deaf pts. and companions) Highline Medical Center(SA)(sign language interpreters, auxiliary aids for deaf/hard of hearing persons) Mountain States Health Alliance (SA)(failure to provide sign language interpreters and other auxiliary aids to deaf parents of pt. who was terminally ill) Overlake Medical Center (SA)(auxiliary services, including SLI, for deaf pts and companions) Arlington County Sheriff (SA)(effective communication for persons who are deaf or hard of hearing)

9/12/2017 4 DOJ DENIAL OF SERVICES/DISCRIMINATION

Aurora Health Care (SA)(HIV) Fire Artisan Pizza (SA)(restuaurant) Norwich YMCA (SA)(denial of membership to person with DD because he lived in facility for people with I/DD YMCA of Metro Chicago (SA)(requiring Y personnel to administer glucagon to enrollees with diabetes) YMCA of Triangle (SA)(id.)

DOJ-REASONABLE MODIFICATION

Camp Tree Tops (SA)(child with diabetes/summer camp) Family YMCA of Greater Augusta (SA)(allow aide of member with ID to accompany w/o the aide being one) Lexington Chinese School (SA)(provision of information to students in English and Chinese of process for seeking reasonable modifications and auxiliary services) McLean Hospital (SA)(reasonable modifications for PWDs to gain access to therapeutic services) Nobel Learning Communities (complaint filed 1-18-17); US Opp to Def’s motion for stay and partial dismissal, 5-1-17)(failure to make reasonable modifications to permit child with DS to participate in day care program) Princeton University (SA)(reasonable modifications for students with mental health disabilities re RAs, withdrawals, leaves of absence)

DOJ-WEBSITES

Winn Dixie Stores, Inc.(Statement of Interest)(Title III coverage of website of grocery/pharmacy chain) Consistent interpretation of Title III in litigation

9/12/2017 5 WEBSITE ACCESSIBILITY UNDER TITLE III

Gil v. Winn-Dixie Stores, Inc., 2017 WL 2547242 (SD FL June 13, 2017) Gorecki v. Hobby Lobby Stores, Inc., No. CV 17-1131-JFW(SKx)(CD CA, June 15, 2017) Markett v. Five Guys Enterprises, LLC., No. 17-vc-788 (KBP) (SDNY, July 21, 2017) Andrews v. Blick Art Materials, LLC, No. 17-CV-767 (EDNY, August 1, 2017)

UBER LAWSUITS

Access Living of Metropolitan Chicago, et al. v. Uber Technologies, Inc. (N D IL., October 13, 2016) Equal Rights Center v. Uber technologies, Inc. (DDC, filed June 28, 2017) Brooklyn Center for Independence for the Disabled et al. v. Uber Technologies, Inc. (NY Sup Ct. NY County, filed July19, 2017)

ADA EDUCATION AND REFORM ACT OF 2017—HR 620

What it says The problem to which it is supposedly responding: “drive-by” lawsuits History

9/12/2017 6 REGULATORY INACTIVITY

Status of Title III regulations and new administration response

QUESTIONS

Thank you rdiners@wcl.American.edu