Overview of Disability Rights Laws Brian East Disability Rights Texas 2222 W. Braker Lane Austin, TX 78758 512.454.4816 p 512.454.3999 f [email protected]

What Are the Main Federal Laws? ADA (as amended in 2008) Rehabilitation Act of 1973 (esp. sections 501 504) Fair Housing Act

What Does the ADA Cover? Title I of the ADA covers employment discrimination Title II covers discrimination by state & local governments (public entities) Title III covers discrimination by private businesses (public accommodations) Also covers discrimination in transportation and communications

What Does the Rehab Act Cover? 501 covers federal employment 503 covers employment by government contractors (no private suits; only administrative complaints with DOL) 504 covers disability discrimination of all kinds by recipients of federal financial assistance (i.e., federal aid or funding), e.g., most government agencies, colleges, hospitals, some non-profits, and doctors accepting Medicare/Medicaid

What Does the FHA Cover? Housing discrimination

Who Is Protected? Most claims require proof of disability The disability definition is the same for all 3 laws Actual disability: Physical or mental impairment That substantially limits A major life activity. Record of such an impairment Regarded as disability Some claims do not require proof of disability

ADA Amendments Act of 2008 Pre-ADAAA, the disability definition was interpreted very narrowly ADAAA made big changes in how the definition is interpreted; it is now much broader ADAAA applies to discrimination on or after January 1, 2009 Explicitly applies to ADA and Rehab Act claims Unclear if it applies to the FHA, or to state laws that track the ADA EEOC has issued ADAAA regs; DOJ to follow?

What does the ADAAA say? Remember 5 Key Points: 1)Broad construction of disability 2)Mitigating measures no longer considered 3)Conditions that are episodic or in remission are assessed in their active state 4)New major life activities of bodily functions 5)Regarded as only requires an impairment Note: ADAAA is not retroactive (i.e., does not apply to conduct occurring pre-2009)

Re the EEOCs ADAAA regs, who said that? New ADA Regulations Just IssuedEEOC Rules Mean Virtually Everyone Is Disabled the ADAAA now renders everyone disabled Answer: Defense attorneys

What do the ADAAA regs actually say? My Top Ten List: 1.ADA must be broadly construed to achieve its remedial purpose. Cite: 29 C.F.R. Part 1630 App., 1630.1(c).

What do the ADAAA regs actually say? My Top Ten List: 2.There is no minimum duration; condition lasting less than six months can be substantially limiting. Cite: 29 C.F.R. 1630.2(j)(1)(ix); EEOC Q&A, Question 10.

What do the ADAAA regs actually say? My Top Ten List: 3.Condition, manner, or duration may be useful, but they are not required factors. Cite: 29 C.F.R. 1630.2(j)(4)(iv); 29 C.F.R. Part 1630 App., 1630.2(j)(4).

What do the ADAAA regs actually say? My Top Ten List: 4.One may be substantially limited in learning even with a history of academic success. Cite: 29 C.F.R. 1630.2(j)(4)(iii); 29 C.F.R. Part 1630 App., 1630.2(j).

What do the ADAAA regs actually say? My Top Ten List: 5.Central importance to daily life is NOT the standard for major life activities. Cite: 29 C.F.R. 1630.2(i)(2).

What do the ADAAA regs actually say? My Top Ten List: 6.Only one major life activity need be affected, so an individual is not excluded from coverage because of an ability to do many things. Cite: 29 C.F.R. 1630.2(j)(1)(viii); 29 C.F.R. 1630.2(j)(4)(iii).

What do the ADAAA regs actually say? My Top Ten List: 7.A person with a record of disability is entitled to seek accommodations. Cite: 29 C.F.R. 1630.2(k)(3).

What do the ADAAA regs actually say? My Top Ten List: 8.Except in failure-to-accommodate claims, regarded as is normally the first choice because it is the broadest; the terms substantial limitation and major life activity irrelevant to it. Cite: 29 C.F.R. 1630.2(g)(3); 29 C.F.R. 1630.2(j)(2); 29 C.F.R. Part 1630 App., 1630.2(1).

What do the ADAAA regs actually say? My Top Ten List: 9.Regarded as just means taking adverse action because of an actual or perceived impairment (whether or not there is a defense). Cite: 29 C.F.R. 1630.2(l)(2).

What do the ADAAA regs actually say? My Top Ten List: 10.In a regarded as claim, employer has the burden of proving impairment is both transitory and minor, measured objectively. Cite: 29 C.F.R. 1630.15(f).

What do the ADAAA regs actually say? My Top Ten List: 11.Actual disability still requires an individualized assessment of substantially limits, but some kinds of impairments will virtually always satisfy. Cite: 29 C.F.R. 1630.2(j)(3) (setting out list).

How are courts interpreting ADAAA? Actual quotes from recent cases is there a pattern? Simplex strongly disputes whether Terry has demonstrated that she suffers from a disability within the meaning of the ADA. Nonetheless, for purposes of its [summary judgment] motion, Simplex does not contest that Terry is a disabled person under the ADA.

Actual quotes from recent cases For purposes of this motion, Defendant assumes that Plaintiff's decreased hearing constitutes a disability under the ADA

Actual quotes from recent cases The City does not dispute that Plaintiff suffered an on-the-job injury that rendered him disabled as that term is defined under the ADA.

And these: Safeway will assume for purposes of this Motion that his speech impediment substantially limits a major life activity, and thus, is a disability under the ADA. Bausch & Lomb has assumed for the purposes of this motion that Parinello suffers from a disability (clinical depression) within the meaning of the statute. A prima facie showing also requires a plaintiff to be a qualifying individual with a disability, which defendant concedes plaintiff is.

Rare? There were also these: PMHCC makes no argument with respect to For purposes of summary judgment only, Parkwood admits GeorgiaPacific does not dispute Defendants do not dispute JetBlue does not contest Defendants do not contest

And a few others: Plaintiff and Defendant agree Defendant challenges only Defendant appears to concede Defendants do not dispute The Board concedes Defendant MotorCity does not contest St. Joseph does not dispute It appears that Defendants do not contest ... defendant stipulates the District does not dispute Defendant does not dispute

But wait! Theres more! Kaluza alleges, and PNC does not dispute Morgan Stanley does not dispute ... defendants have not raised any arguments Lehigh admits that Defendants do not seriously dispute Ann Taylor has not challenged the parties do not dispute Defendants do not dispute HealthEast has conceded The Defendant does not dispute Verizon Wireless does not dispute the USPS Defendants do not directly dispute Illinois Bell concedes The City concedes NBME does not dispute Defendant concedes defendant does not contend are not in dispute Defendants do not contest it appears undisputed Defendants do not dispute Defendant Ford does not dispute The defendants do not contest Boeing does not dispute The defendants do not dispute it did not contest District does not dispute There does not appear to be a dispute the Fed assumes Swish Kenco concedes NYUCD does not contest the disability there appears to be no dispute no party disputes undisputed

Observations From Recent ADAAA Cases On the Issue of Disability Defendants frequently do not contest disability Summary judgment is commonly denied on the issue of disability When summary judgment is granted on disability, it is usually because of: lack of pleading lack of evidence lack of briefing

More Observations From Recent ADAAA Cases Regarded as is the area of broadest coverage and biggest change But regarded as is also the most misunderstood part of the ADAAA, both by lawyers and by the courts

Regarded As Need not look at substantially limited or major life activities; it does not matter how severe perception was Reasonable accommodation does not apply It is a defense if impairment is both transitory and minor Just need evidence of impairment (or perceived impairment) plus causation

Regarded As Transitory 6 months or less Minor Common meaning E.g. not the cold or flu

Briefing errors: Failing to mention the ADAAA Mentioning the ADAAA but not explaining it Failing to marshal the facts and evidence Failing to apply the specifics of the ADAAA to the specific facts in the case

Drug or Alcohol Addiction Drug addiction: Current illegal drug use is not protected Current means recent. Shirley v. Precision Castparts Corp., 726 F.3d 675 (5th Cir. 2013) Past or rehabilitated addiction is likely protected (if not current) Current alcoholism may be protected

So, What Are the New Battlegrounds in ADA Employment Cases? Qualified Pretext or causation Safety defenses

Definition of Qualified (Employment) Having the requisite skill, experience, education and other job-related requirements, and Able to perform the essential functions of the job (EJFs) with or without a reasonable accommodation

Determining the Essential Functions EEOC Resources 29 C.F.R. 1630.2(n) 29 C.F.R. pt 1630 App. 1630.2(n) EEOC Technical Assistance Manual 2.3, http://janweb.icdi.wvu.edu/links/ADAtam1.h tml http://janweb.icdi.wvu.edu/links/ADAtam1.h tml EEOC Q&As and other guidance document Many cases begin analysis with review of EEOC regs (or guidance)

Essential Job Functions (contd) Statute requires that courts give consideration to employers judgment. 42 U.S.C. 12111(8) Somehow, courts have turned that word into deference to the employers judgment But deference is not absolute. See, e.g., Feldman v. Olin Corp., 692 F.3d 748 (7th Cir. 2012) (We generally defer [b]ut this does not mean that we completely abdicate independent review.)

Reasonable Accommodation D efinition in Employment Context Modifications or adjustments to application process Modifications or adjustments to environment, or to manner or circumstances a job is customarily performed, that enable individual to perform essential job functions Modifications or adjustments that enable person to enjoy equal benefits and privileges of employment. Feist v. Louisiana, 730 F.3d 450 (5th Cir. 2013) (close-in parking)

Reasonable Accommodation Request for accommodation normally required, but maybe not if, e.g.,: Need for accommodation is obvious Request for one would be futile Employer is removing prior accommodation Disability interferes with requesting one Barnettdifference between reasonableness and undue hardship

Reasonable Accommodation Be creative; JAN has good information Participate in flexible interactive process in good faith Dont just say no

Reasonable Accommodation Medical leave common; indefinite leave disfavored Fixed-leave (no fault leave) policies at risk 100% healed policies at risk General request to avoid stress disfavored Telework more and more likely Temporary accommodations vs. permanent ?

New Accommodation Cases McMillan v. City of New York, 711 F.3d 120 (2d Cir. 2013) (case manager with schizophrenia; condition and medication side-effects caused morning grogginess and tardiness) court defers to employer judgment on essential functions, but that is far from the only factor; analysis is fact specific courts cannot rely on an assumption that attendance is an essential function of virtually all jobs; they must rely on evidence, not intuition

New Accommodation Cases McMillan v. City of New York, 711 F.3d 120 (2d Cir. 2013) (contd) There was evidence of past flexibility, and of a somewhat flexible policy Sufficient evidence that plaintiff could work thru lunch and bank hours to offset late arrivals Court agreed that it would be undue hardship to force supervisor to work late in order to supervise plaintiff working make-up time, but there was evidence that it would not be required

New Accommodation Cases Keith v. County of Oakland, 703 F.3d 918 (6 th Cir. 2013) (fact issue whether deaf person was qualified to be lifeguard): Employer cannot simply rely on its doctor, especially when evaluation was cursory Ability to perform perfectly 100% of the time is an impossible standard Fact issue whether sign-language interpreters for occasional training sessions was reasonable Perhaps most compelling evidence was experience of other deaf lifeguards (experts)

New Accommodation Cases Mary Jo C. v. New York State and Local Retirement System, 707 F.3d 144 (2d Cir. 2013) Suggests that excusing untimely filing may be an accommodation or modification Court continues recent trend in holding that Title II does not apply to employment claims

New Accommodation Cases Wilson v. Dollar General Corp., 717 F.3d 337 (4th Cir. 2013) (plaintiff offered no evidence of other possible accommodation besides leave, and no evidence that would have worked) Basden v. Professional Transp., Inc., 714 F.3d 1034 (7th Cir. 2013) (insufficient evidence that plaintiff was able to come to work regularly, or that leave she sought would have helped) Olsen v. Capital Region Medical Center, 713 F.3d 1149 (8th Cir. 2013) (even with attempted accommodations, no evidence that tech could ensure patient safety because of seizures)

New Accommodation Cases Majors v. General Elec. Co., 714 F.3d 527 (7th Cir. 2013) (20-pound lifting restriction prevented essential part of job; having another do essential lifting was not reasonable) Cloe v. City of Indianapolis, 712 F.3d 1171 (7th Cir. 2013) (employee did not ask for help with written work, so city not liable for failing to offer proofreading; but sufficient evidence of retaliation for requesting accommodation) Smith v. Clark County School Dist., 727 F.3d 950 (9th Cir. 2013) (application for disability retirement not inconsistent with qualified)

Pretext or Causation ADA and 501 do not require proof of sole cause; 504 arguably does After Gross, does ADA require but for cause? Pretext analysis often applied if employer denies its action based on disability or effects Pretext analysis does not apply to accommodation claims. McMillan v. City of New York, 711 F.3d 120 (2d Cir. 2013) Disability-related misconduct has some special rules

Pretext or CausationNew Cases Brown v. City of Jacksonville, 711 F.3d 883 (8th Cir. 2013) (comments were too far back) Lenzen v. Workers Compensation Reinsurance Assn, 705 F.3d 816 (8th Cir. 2013) (no evidence that performance problems were pretext; history of successful accommodations) Kelley v. Correctional Medical Services, Inc., 707 F.3d 108 (1st Cir. 2013) (history of negative reactions to accommodation requests)

Medical inquiries Generally, it is illegal to ask job applicant about the existence, nature, or severity of a disability Once conditional offer is made, can ask anything as long as done uniformly Can ask current employees if job-related and consistent with business necessity. See Owusu-Ansah v. Coca-Cola Co., 715 F.3d 1306 (11th Cir. 2013) (fitness-for- duty justified by threats from employee)

Main laws against housing discrimination ADA Sec. 504 of the Rehabilitation Act Fair Housing Act

Other laws that may apply State laws Federal and state constitutional protections for public properties

Discrimination in Public Housing ADA, 504, and Fair Housing Acts (FHA) all apply

Discrimination in Private Housing FHA is the main law here ADA mostly limited to rental office 504 does not normally apply

Who is protected? Generally, A person with a disability as defined by these laws, which means: A physical or mental impairment that substantially limits a major life activity (actual disability); or A record of such an impairment; or Being regarded as having such an impairment

Drug Addiction These laws generally do not protect individuals who are currently engaging in illegal drug use. These laws generally do protect someone who has successfully gone through rehab and is no longer using These laws generally do protect someone who is mistakenly viewed as engaging in illegal drug use

Direct Threat These laws generally do not protect individuals who would pose a direct threat to the health or safety of others, or who would result in substantial damage to the property of others, Unless such a threat can be reduced by providing a reasonable accommodation

Kinds of discrimination public and private housing Treating worse (e.g., exclusion) Failing to accommodate (e.g., by refusing to make policy changes) Failing to remove architectural barriers

Kinds of discrimination treating worse Illegal not to sell or rent to a person with a disability Illegal not to sell or rent to a person because of the disability of their friend, family member, or associate Illegal not to sell or rent to a person because a person with a disability will be living there

Kinds of discrimination treating differently It is illegal to discriminate against any person in the terms, conditions, or privileges of a sale or rental (or in services or facilities connected to the dwelling) because of the disability of: The purchaser or renter; or an associate of that person; or a future resident of the property

Kinds of discrimination Medical inquiries Generally, it is illegal to ask about the existence, nature, or severity of a disability of an applicant for a dwelling, a future resident, or any person associated with them. There are some exceptions, though

Kinds of discrimination Medical inquiries (exceptions) It is OK to make the following inquiries, if they are made of all applicants: determining the applicants ability to meet the requirements of ownership or tenancy determining if applicant is qualified for a dwelling or a priority that is only available to persons with a disability (or a particular type of disability); asking if the applicant is a drug addict, is currently engaged in illegal drug use, or has been convicted of drug manufacture or distribution

Kinds of discrimination reasonable accommodations It is illegal to fail to make reasonable accommodations in rules, policies, practices, or services, if such accommodations are necessary to give a person with a disability an equal opportunity to use and enjoy a dwelling

Kinds of discrimination Examples of accommodations In the application process: Helping an applicant with a cognitive impairment fill out the application form Accepting reference of employer or social worker for tenant coming out of institution with no recent rent history Accepting alternative assurances of credit for a tenant has no credit history

Kinds of discrimination Examples of accommodations Parking Making an exception to first-come, first-served parking policy, by creating a reserved parking space for a tenant who has difficulty walking and needs to park close to the building. Pets Making an exception to a no pets rule for people with disabilities who use service or comfort animals

Kinds of discrimination Examples of accommodations Policies Oral reminder to pay rent before its due Alternative means of rent payment if the rental office is not physically accessible Agreement to accept rent by the fourth of the month (instead of the first) because of date tenant receives SSI check Moving tenant meeting to accessible building

Kinds of discrimination Examples of accommodations Conditions Permitting tenant with a mobility impairment to move to the first floor Allowing tenant to move to a different public-housing unit to get away from conditions (e.g. loud noise) that make her disability worse

Kinds of discrimination Examples of accommodations Conditions Notifying tenant with multiple chemical sensitivity in advance of painting and pest treatments Adopts a policy that recognizes that normal wear and tear has a different meaning for a tenant who uses a wheelchair

Kinds of discrimination Examples of accommodations Home-Health Aides Waiving guest fees and parking fees for a tenants home health care aide Permitting t enant to move from a one- bedroom unit to a two-bedroom unit to have room for her live-in care provider

Kinds of discrimination Examples of accommodations Early termination of lease Waiving re-leasing fees for tenant who has to leave because of a disability Evictions Allowing tenant whose mental disability causes her to do minor damage some time to change behavior

Kinds of discrimination Architectural Barriers As far as accessibility, the law varies, depending on the nature of the housing: public housing vs. private housing single-family houses vs. multi-family apartments The laws may also vary depending on the date the housing was constructed

Architectural Barriers in Public Housing The main laws are Sec. 504 and the ADA Five percent of the units in public housing built after June 1977 (or 1/26/91 for ADA) have to comply with accessibility guidelines Five percent of units that have been altered since then also have to following accessibility guidelines Older property has to meet program access standard

Architectural Barriers in Private Housing The main law for private housing is the Fair Housing Act The landlord has to remove certain barriers if the property is newer multi-family housing. Newer means designed or constructed for first occupancy after March 13, 1991. Multi-family housing means buildings consisting of 4 or more units if the building has an elevators, or if no elevator, the ground- floor units in buildings with 4 or more units

Architectural Barriers in Private Housing (contd) The requirements for newer multi-family private housing include: A building entrance on accessible route (generally) Accessible public and common-use areas Doors wide enough to allow wheelchair Accessible route into and through dwellings Light switches, thermostats, and electrical outlets in accessible locations Bathroom walls reinforced to allow later installation of grab bars around the toilet, tub, shower & seat Kitchens and bathrooms designed to allow individuals in wheelchairs to maneuver

Architectural Barriers in Private Housing (contd) For private housing that is not newer multi- family, the basic FHA rule is that the landlord has to allow the tenant to reasonably remove architectural barriers at the tenants expense, but the landlord may not have to pay for it Exceptions: The private landlord may have to remove barriers at (and to) the rental office The landlord may have to remove certain barriers related to designated parking

Other kinds of discrimination Retaliation Harassment because of a disability

What should I do if I think I have been discriminated against? If you cannot work it out, the next step is to file either: An administrative complaint A lawsuit

Where can I file a complaint? HUD (online, or regional offices) State and local Fair Housing Assistance Programs (FHAPs) [Google: HUD FHAP agencies]

Deadlines to file complaints Administrative complaintone year from discrimination to file with HUD FHA lawsuittwo years to file (and HUD process tolls) ADA or 504 lawsuitvaries by state; usually the personal-injury statute; clock does not stop ticking during HUD process

Where can I get more info? See the online handouts from Disability Rights Texas linked at: http://www.disabilityrightstx.org/resources /housing See the booklet on housing rights from the Bazelon Center for Mental Health Law at: http://www.bazelon.org/LinkClick.aspx?file ticket=bdk6FSfUBOQ%3d&tabid=104

New Cases Fair Housing Act Pacific Shores Properties, LLC v. City of Newport Beach, 730 F.3d 1142 (9th Cir. 2013) (sufficient facts to support challenge to ordinance having effect of stopping group homes from opening in most residential zones) Corey v. Secretary, U.S. Dept. of Housing & Urban Development ex rel. Walker, 719 F.3d 322 (4th Cir. 2013) (landlord discriminated by requiring applicantwho lived with brother with autism and IDto get doctors letter and liability policy, and assume responsibility for damages)

General Discrimination Under Title II of the ADA (and 504) 42 U.S.C. 12132 no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity Details are in DOJs enforcing regulations at 28 C.F.R. Part 35

Definition of Public Entity (T.II) Defined in 42 U.S.C. 12131(1) to include: Any State or local government; Any department, agency, special purpose district, or other instrumentality of a State or States or local government. Coverage is broad, and includes, e.g., courts, police, jails, public universities, city sidewalks, public hospitals Title II applies whether or not the public entity receives any federal funding

Title III of the ADA Prohibits discrimination against people with disabilities in the full and equal enjoyment of public accommodations and public transportation services Statute: 42 U.S.C. 1218112189. Regulations: 28 C.F.R. Part 36

Definition of Public Accommodation (T.III) Defined via list of 12 types of entities, including: places of temporary lodging, establishments serving food or drink, places of exhibition or entertainment, places of public gathering, sales or rental establishment, service establishment, certain public transportation stations, places of public display or collection, places of recreation, places of education, social service center establishments, and places of exercise or recreation

Discrimination Under Titles II & III Failure to modify policies Failure to provide effective communication Failure to remove architectural barriers Retaliation Discrimination because of association Failure to provide services in the most integrated setting

Failure to modify policies Equivalent of accommodation obligation Must be reasonable and necessary Must not be fundamental alteration or undue hardship Liability does not depend on intent

Failure to provide effective communication Includes requirement of furnishing auxiliary aids and services if necessary to afford equal opportunity and benefits In determining what type of auxiliary aid and service is necessary: A public entity shall give primary consideration to the kind requested A private business should consult as to individuals choice, but it is not binding

Failure to provide effective communication Auxiliary aids and services include, e.g., qualified interpreters, notetakers, transcription services, written materials, taped or Brailled materials, telephone amplifiers, assistive listening devices or systems, open and closed captioning, TDDs, videotext displays, etc.

New Case Effective Communication K.M. v. Tustin Unified School Dist., 725 F.3d 1088 (9th Cir. 2013) (deafness): Tracks primary consideration reg Requires public schools to communicate as effectively as with other students Requires auxiliary aids necessary to afford an equal opportunity to participate in, and enjoy the benefits of, the school program

New Communication Case Argenyi v. Creighton University, 703 F.3d 441 (8th Cir. 2013) (deafness) plaintiff is in best position to know what auxiliary aids and services are needed T est for effective communications is not whether plaintiff effectively excluded Test is meaningful access, meaning an equal opportunity to gain the same benefit as those without disabilities [Jury verdict for plaintiff on remand]

Failure to remove architectural barriers New construction must conform to ADAAG, UFAS, or 2010 Standards for new construction, if Begun after 1/26/92 for public entities Designed or constructed for first occupancy after 1/26/93 for private businesses Alterations must conform to alterations standards in above guidelines

Failure to remove architectural barriers Pre-ADA (existing) public facilities must meet program access standardi.e., each service, program, or activity must, viewed in its entirety, be readily accessible to and usable by persons with disabilities Pre-ADA (existing) private businesses must remove architectural barriers unless doing so is not readily achievable ( i.e., easily accomplished, and not requiring much difficulty or expense)

New Cases Title III Standing Houston v. Marod Supermarkets, Inc., 733 F.3d 1323 (11th Cir. 2013) (testers have standing; sufficient threat of harm despite 30-mile distance) Kreisler v. Second Ave. Diner Corp., 731 F.3d 184 (2d Cir. 2013) (deterrence by 8 step sufficient; standing to challenge all barriers related to his disability likely to be encountered) Scherr v. Marriott Intern., Inc., 703 F.3d 1069 (7th Cir. 2013) (sufficient history of travel, plus desire to stay in hotel; no nationwide standing)

Enforcing Titles II and III May file DOJ administrative complaint, but not required to May file suit; no need to exhaust Most courts find no pre-suit notice requirement Limitations: 180 days for DOJ complaint Varies by state for lawsuit (usually borrows states personal-injury statute) More info at: http://www.disabilityrightstx.org/ files/How-to-File-a-Complaint-Under-the- Americans-with-Disabilities-Act_aug2013.pdf

Enforcing 504 May file administrative complaint (with funding agency) but not required to May file suit with no need to exhaust. Williams v. Milwaukee Health Services, Inc., 732 F.3d 770 (7th Cir. 2013) Limitations vary by state for lawsuit (usually borrows states personal-injury statute)

New Case Title III Merits Kreisler v. Second Ave. Diner Corp., 731 F.3d 184 (2d Cir. 2013) Plaintiff must suggest barrier removal for which costs do not clearly exceed benefits Burden then shifts to defendant to prove proposal not readily achievable; not done here Strong v. Valdez Fine Foods, 724 F.3d 1042 (9th Cir. 2013) (affidavit of barriers sufficient; facts were not the type for which an expert was required)

Brian East Disability Rights Texas 2222 West Braker Lane Austin, Texas 78758 512/454-4816 [email protected]

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Overview of Disability Rights Laws Brian East Disability Rights Texas 2222 W. Braker Lane Austin, TX 78758 512.454.4816 p 512.454.3999 f [email protected]