Overview of Disability Rights Laws

Overview of Disability Rights Laws

Brian EastDisability Rights Texas2222 W. Braker LaneAustin, TX 78758512.454.4816 p512.454.3999 [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 EEOC’s ADAAA regs, who said that?

• “New ADA Regulations Just Issued—EEOC 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).


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.


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).


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).


5. “Central importance to daily life” is NOT the standard for “major life activities.”

Cite: 29 C.F.R. § 1630.2(i)(2).


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).


7. A person with a “record of” disability is entitled to seek accommodations.

Cite: 29 C.F.R. § 1630.2(k)(3).


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).


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).


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).


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.”


•“For purposes of this motion, Defendant assumes that Plaintiff's decreased hearing constitutes a disability under the ADA…”


•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 …” •“Georgia–Pacific 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! There’s 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 …” • “… 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.html

▫EEOC Q&As and other guidance document

•Many cases begin analysis with review of EEOC regs (or guidance)

http://janweb.icdi.wvu.edu/links/ADAtam1.html

http://janweb.icdi.wvu.edu/links/ADAtam1.html

Essential Job Functions (cont’d)•Statute requires that courts give “consideration” to employer’s judgment. 42 U.S.C. § 12111(8)

•Somehow, courts have turned that word into “deference” to the employer’s 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‒Definition 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

•Barnett—difference between reasonableness and undue hardship

Reasonable Accommodation

•Be creative; JAN has good information

•Participate in flexible interactive process in good faith

•Don’t “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) (cont’d)▫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 Causation―New Cases•Brown v. City of Jacksonville, 711 F.3d

883 (8th Cir. 2013) (comments were too far back)

•Lenzen v. Workers Compensation Reinsurance Ass’n, 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 applicant’s 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


•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


•Policies▫Oral reminder to pay rent before it’s

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


•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


•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


•Home-Health Aides▫Waiving “guest fees” and parking fees

for a tenant’s home health care aide▫Permitting tenant to move from a one-bedroom unit to a two-bedroom unit to have room for her live-in care provider


•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 (cont’d)

•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 (cont’d)

•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 tenant’s 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 complaint—one year from discrimination to file with HUD

•FHA lawsuit—two years to file (and HUD process tolls)

•ADA or § 504 lawsuit—varies 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?fileticket=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 applicant―who lived with brother with autism and ID―to get doctor’s 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 DOJ’s 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. §§ 12181–12189.

•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 individual’s 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

▫Test 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” standard—i.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” state’s 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” state’s 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 EastDisability Rights Texas2222 West Braker Lane

Austin, Texas 78758512/454-4816

[email protected]

Documents

Overview of Disability Rights Laws