Understanding the ADA

The Blog of William D. Goren, J.D. LL.M.

reasonable modification

Just When is a Modification or Accommodation Necessary Under Title III?

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Today’s blog entry comes from the 11th Circuit. It involves severely autistic individuals suing Walt Disney Parks and Resorts over their system of accommodating individuals, particularly when it comes to the severely autistic. The case is A.L. v. Walt Disney Parks and Resorts US, Inc., which can be found here. The decision is published, and so its persuasive authority is high. As usual, the case is divided into categories, and they are: facts; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.

I

Facts

The facts of the case are actually quite involved, but this is one of those cases where the key facts can be shortened considerably. The plaintiffs are severely autistic individuals who love going to Walt Disney Parks and Resorts. The severely autistic individuals due to the nature of their disability simply do not function in a way that enables them to defer gratification as other people do. Also, the individuals have to utilize the rides in a very routine way. If either is not the case, then the plaintiffs will have a meltdown. Disney has always had a system for accommodating people with disabilities and they have tweaked it over time. On appeal, the plaintiff claimed that their complaints also contained an intentional or disparate impact discrimination claim that the District Court was wrong to grant summary judgment on.

The District Court granted summary judgment to Walt Disney on all claims, and the parents appealed.

42 U.S.C. §12182(b)(2)(A)(ii) provides:

[Discrimination includes] a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facility, privileges, advantages, or accommodations.

 

II

Court’s Reasoning Reversing Summary Judgment and Remanding for Further Proceedings

The 11th Circuit found that the plaintiff’s had standing, the District Court was correct in granting summary judgment on the intentional and disparate impact discrimination claims (the 11th Circuit said that the complaint simply did not contain a cause of action for intentional or disparate impact discrimination), but the District Court’s summary judgment on the necessary modification claims had to be reversed, vacated, and remanded. The blog entry is going to focus on the court’s reasoning with respect to when modifications are necessary.

  1. For persons with autism (the autism community I have been told may actually prefer autistic), the need for sameness and consistency often leads to high levels of anxiety even when there are minor changes in their routines.
  2. 42 U.S.C. §12182(b)(2)(A)(ii) provides: [Discrimination includes] a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facility, privileges, advantages, or accommodations.
  3. The plaintiff bears the burden of proof to show that he or she is disabled and that his or her requested modification is both reasonable and necessary.
  4. The place of public accommodation bears the burden of proof on the fundamental alteration inquiry.
  5. In PGA Tour, Inc. v. Martin, (the case better known for holding that the ADA applies to professional sports, which we mentioned here, U.S. Supreme Court set forth a three part inquiry for figuring out when modifications to a place of public accommodation procedures were required. Those inquiries are: 1) whether the requested modification is reasonable; 2) whether the requested modification is necessary for the individual with a disability; and 3) whether the requested modification would fundamentally alter the nature of the public accommodation.
  6. Citing to a decision from the Eighth Circuit, which we discussed here, and a decision from the Ninth Circuit, the 11th Circuit said that public accommodations must start by considering how their facilities are used by nondisabled guest and then take reasonable steps to provide guests with disabilities with a like experience. Public accommodations have to provide patrons with disabilities an experience comparable to that of able-bodied patrons.
  7. Again citing to the Eighth Circuit decision, the 11th Circuit holds that title III, like §504 of the Rehabilitation Act, requires a place of public accommodation to provide an individual with a disability with meaningful access or an equal opportunity to gain the same benefit as his nondisabled peers.
  8. Citing to an 11th Circuit decision that I have yet to blog on, but which is a must include on any presentation I make dealing with the effective communication rules, the court said that the ADA and the Rehabilitation Act both focused on equal opportunity to participate in or benefit from the defendant’s goods and services. Further, such a question is an inherently fact intensive inquiry.
  9. The District Court correctly considered how nondisabled guests use Disney’s facilities and whether its system for accommodating guests with disabilities, DAS Card, provided guests with disabilities with a like experience and equal enjoyment.
  10. Meaningful access mean giving plaintiff the opportunity to have something akin or similar to the experience other people enjoy at Disney Parks.
  11. The specific neurologically-based manifestations of an autistic individual is: 1) they have no concept of time, cannot defer gratification, and cannot wait for rides; and 2) they must adhere to routine, must the ride the same rides repeatedly, and visit rides in the same order as in prior park visits.
  12. The claimed disability is waiting at all. Disney’s program for accommodating persons with disabilities accommodates the need to avoid physical lines, but not the need to avoid waits.
  13. To determine what is necessary requires multiple fact-finding regarding the disputed behavioral characteristics of autistic individuals. Until the findings are made in a bench trial, it cannot be determined what is or is not necessary under the ADA.
  14. The question of whether the accommodation is reasonable and/or fundamentally alters the park experience are inquiries needing to be addressed by the District Court, and the 11th Circuit specifically leaves it up to the District Court to decide both how best to approach those issues on remand and whether further record development is needed. The District Court will need to determine whether any material issues of fact exist in that regards and the 11th Circuit if the District Court has free reign in that respect.
  15. In a footnote, the court also reversed the summary judgment grant with respect to the California antidiscrimination law (Unruh Act), claims for the plaintiffs from California since those claims are intricately connected to the ADA claims.

III

Takeaways

  1. The 11th Circuit of late is proving to be one of the most pro-disability Circuits in the country.
  2. The fundamental alteration defense is going to be very interesting as to how it plays out. Anybody visiting a Walt Disney Park knows that deferred gratification is a fundamental part of experiencing those parks. Also, if an individual analysis is required, how could Walt Disney Parks accomplish that without a fundamental alteration? That question may be the answer as to why Walt Disney Parks currently takes it on face value that an individual has a disability rather than perform an individual analysis. On the other hand, excluding a whole group of people with disabilities is not right either.
  3. What often gets overlooked in fundamental alteration cases is that the modifications have to be necessary. There are very few cases discussing how to go about figuring out whether the modifications are necessary. This case offers guidance in that respect.
  4. The quality of experts can matter a great deal in litigation of this type.
  5. About the burden of proof, really confusing. That is, the plaintiff bears the burden of proof with respect to whether the requested modification is both reasonable and necessary, but the place of public accommodation bears the burden of proof on the fundamental alteration inquiry. Here is the problem. If reasonable means whatever does not constitute an undue burden, which can either be financial or logistical i.e. resulting in a fundamental alteration, it is hard to figure out how a plaintiff can have the burden of proof to show something is reasonable when doing so means they are also showing no fundamental alteration is involved, which burden is on the defense. This remains to be worked out and has always driven me crazy.
  6. I expect the case to have a huge impact on the lodging industry. For example, applying my own experience to staying in high end hotels when I am attending a convention, consulting, or doing training, I can tell you that hotels have a major issue with respect to providing disabled guests with a like experience.
  7. It isn’t the first time we have seen Argenyi (the Eighth Circuit decision talked about by the 11th Circuit in the case we are discussing here). That case, discussed in this blog entry, serves as the basis for my ADA compliance auditing in higher education blog entry.
  8. Silva v. Baptist Health South Florida, Inc., is a game changer for the culturally deaf community. It is a decision that I have not blogged on before because until recently I was involved with co-counsel in representing culturally deaf individuals in an effective communication case against a doctor and a hospital and did not feel comfortable about blogging about the case before that case settled. That said, Silva is a must read for both lawyers with respect to the legal profession and with respect to anybody in the healthcare profession. It is also a must slide in any training that I do talking about effective communications.
  9. When it comes to reasonable accommodations or reasonable modifications, places of public accommodations are not required to make the preferred accommodation of a plaintiff choice.
  10. Whether an accommodation or modification is reasonable and whether a fundamental alteration exists is an inherently fact intensive inquiry as the court notes. Therefore, the ability of the defense to obtain summary judgment on whether a modification is reasonable or whether a fundamental alteration exist may become more difficult after this case.
  11. Interesting that it appears the plaintiff requested a bench trial and not a jury trial. That is unusual.
  12. Be advised that language when referring to persons with disabilities is in a considerable state of flux. For example, should you use “person with a disability,” or, “disabled?” This is a very individual call and depends upon the person involved as well as the type of disability a person has. I am told that the movement is very much heading towards, “disabled.” That said, be careful because using the term “disabled,” can be very offensive to many, including myself. I thought that it was only the older generation that might be offended, but I have raised this question with teenagers and have gotten their view that people first is preferred. So, be sure to ask and/or immediately correct. You can’t go wrong with people first language with respect to, “person with a disability.” People first language may also depend upon the particular disability. For example, I have been told that “people with autism,” is out and, “autistic” is in. It seems really weird to refer to a person with hard of hearing or deafness rather than a person as hard of hearing or deaf. On the other hand, many disabilities come off as offensive when referred to in identity language terms.

Litigation over commas: How far Does Title II Extend?

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My colleague, Jon Hyman, has previously written about what can happen when commas are not used when they should be. You can find that blog entry here. Today’s blog entry raises the question as to what happens when a comma is used when perhaps it shouldn’t have been. The case is Haberle v. Troxell, decided by the Third Circuit on March 20, 2018, and it deals with the question of accessibility upon arrests. The case had various issues, but we are only going to focus on the ADA issue. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning allowing amending of ADA portion of complaint; and takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

Timothy Nixon had a variety of mental health problems, including longtime depression. He lived off and on with his longtime partner and their two children. On May 20th, 2013, Nixon had a serious mental health episode involving severe depression and called his longtime partner saying that he was suicidal. He then broke into her friend’s home and took a handgun. He next went to his cousin’s apartment. Fearing for Nixon’s life, Nixon’s partner contacted the Borough of Nazareth Police Department where police officer Troxell obtained a warrant for Nixon’s arrest and then went with other officers to Nixon’s cousin apartment. Upon arriving at the apartment, some of the officers suggested setting up a perimeter and asking the Pennsylvania State police to send in crisis negotiators. Other officers suggested asking Nixon’s partner to help communicate with Nixon. Troxell turned away all those suggestions calling the other officers, “ a bunch of f—ing pussies.” He declared his intention to immediately go to the apartment because that is how they do things in Nazareth. He did exactly that, knocked on the door the apartment, and identified himself as a police officer. Nixon then promptly went into one of the bedrooms of the apartment, turned the stolen gun on himself, and killed himself. According to Nixon’s partner, Nixon was not a danger to anyone and was peacefully drinking beer with his cousin when the police knocked on the door. That said, no allegations were made that Troxell knew what was happening inside the apartment when he knocked. Nixon’s partner then sued alleging a myriad of causes of action, including violation of title II of the ADA.

 

II

Court’s Reasoning Allowing Amendment of ADA Portion of Complaint

  1. The ADA does generally apply when police officers make an arrest.
  2. In order to state a claim under title II of the ADA, a plaintiff has to demonstrate: 1) he or she is a qualified individual; 2) with a disability; 3) who was excluded from participation in or denied the benefits of the services, program, or activities of a public entity, or was subjected to discrimination by any such entity; 4) by reason of his or her disability.
  3. An ADA violation occurs if and when a disabled individual is excluded from participation in or denied the benefits of the services, program, or activities of the public entity, or is subjected to discrimination by any such entity. So, it is the denial giving rise to the claim.
  4. Nothing categorically excludes people who are arrested from the ADA’s broad coverage. So, people who are arrested can be qualified individuals under the ADA, though not always.
  5. Arrestees certainly may have a disability covered by the ADA.
  6. If the arrestee’s disability plays a role in the decision-making process and has a determinative effect on the outcome of that process, i.e., if the arrestee’s disability was a “but for,” cause in the deprivation or harm he suffered, then causation is satisfied.
  7. Police departments fall squarely within the statutory definition of a public entity.
  8. Persuasive precedents indicate that the ADA’s reference to the services, program, and activities of a public entity must be interpreted broadly to encompass virtually everything that a public entity does.
  9. 42 U.S.C. §12132 as phrased makes it unnecessary to figure out whether arrests are a service, program, or activity of a public entity since the very last clause is a catchall phrase prohibiting all discrimination by a public entity regardless of the context.
  10. Discrimination under the ADA includes not only adverse action motivated by prejudice against persons with disabilities, but also includes failing to make reasonable accommodations for plaintiff’s disabilities.
  11. The catchall phrase means that police officers may violate the ADA when making arrests by failing to provide reasonable accommodation for a qualified arrestee’s disability thereby subjecting him to discrimination.
  12. While there is some disagreement in the courts concerning the point during a law enforcement encounter at which the ADA applies to police conduct, no Court of Appeals has held that the ADA does not apply at all.
  13. While plaintiff cannot show deliberate indifference and so the complaint fails with respect to damages, allegations could have been made to show deliberate indifference. Those allegations could have included facts suggesting that existing policy caused the failure to adequately respond to a pattern of past occurrences of injuries like Nixon’s. It might have also included facts indicating that the risk of calculable harm was so great and so obvious that the risk and failure to respond alone supports a finding of deliberate indifference. Accordingly, Nixon’s partner should be given an opportunity to amend her complaint since it could not be definitively said that amendment would be futile.

III

Takeaways:

  1. 42 U.S.C. §12132 actually states: “Subject to the provisions of this subchapter, 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.”
  2. As an attorney who has done a lot of contracts work over the years, the biggest issue that a contracts attorney deals with when drafting contracts is the difference between parenthetical and restrictive. That is, if information is parenthetical, it is not something that has to be done but could be. On the other hand, if information is restrictive, then it is something that has to be done. Where a phrase is surrounded by commas, the information is parenthetical. If commas are missing, then the information is restrictive. With respect to the actual wording of 42 U.S.C. §12132 it isn’t clear to my mind whether the very last clause is parenthetical because it is surrounded by a comma and a period. It would be an easier call if it was surrounded by commas, then it would be clearly parenthetical. The phrasing of the statute makes it unclear. If no comma appeared after “public entity,” then clearly, “or be subjected to discrimination by any such entity” would be restrictive and an additional requirement. However, the comma is there, which creates in my mind, the argument that it might be parenthetical. On the other hand, if it is indeed the Oxford comma, which Jon discusses in the above-mentioned blog entry, then you get to the same place as it being an additional requirement. So, in this situation, if it is indeed an additional requirement, the drafters would have been better off leaving out the last comma in the series.
  3. Why am I making such a big deal over this comma? The answer is because until this case, I have not seen a title II case talk about accessibility in any other way besides programs, services, and activities. The issue doesn’t come up that often because as the court mentions, title II has been held to apply to virtually everything that a public entity does. Even so, this case says that there is more to it.
  4. Expect this case to be used by plaintiff’s attorneys to say that even if they cannot show that a program, service, or activity is involved, it doesn’t matter because public entities cannot discriminate against people with disabilities even where there is no program, service, or activity.
  5. If the last phrase is indeed a catchall provision going beyond program, services, and activities, then why is the phrase, “program, services, and activities” in there at all?
  6. We have previously discussed Sheehan here. In that decision, both parties told the Court that the ADA does apply to arrests and so the Court didn’t deal with that issue when it decided that certiorari had been improvidently granted.
  7. This case is going to be very interesting to follow because it takes the ADA to a place I have not seen before. One wonders whether the arrests issue will be appealed to the United States Supreme Court. In that eventuality, I don’t even want to hazard a guess at the how the Court will go.
  8. Preventive law would demand focusing on program, services, and activities first with respect to title II compliance. If somehow the situation does not seem to involve a program, service, or activity, then you do want to think about accommodating the person anyway under the so-called catchall phrase. Remember, title II case law is very clear that the ADA applies to just about everything a public entity does. Alternatively, you could elect as a public entity to stand your ground and claim that the last phrase is parenthetical as described above, but that might be expensive.
  9. It isn’t clear from this decision whether the court is looking at causation in terms of mixed motive or but for. They do use the term “but for,” but they also used the phrase, “disability plays a role in the decision-making process….” The reader may want to review this blog entry of mine discussing causation when it comes to the ADA.
  10. Moral of the story is that you can’t be cavalier about when you use commas. That is, there is the Oxford comma, but maybe sometimes it is better off not following that rule strictly and remembering that commas also deal with the issue of restrictive and parenthetical information.

Title III Notice Requirement? and Service Accessibility versus Product Accessibility

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This week’s blog entry is a twofer. First, is there a notice requirement to state entities where the state has an antidiscrimination law and a person wants to sue under title III of the ADA? Second, a case discussing that the line between product accessibility and service accessibility is not always so clear. That particular case involves a person with mobility impairments that wanted to test drive a car at a car dealership prior to buying it, but the car dealer would not install temporary hand controls so that the car could be driven. As usual, the blog entry is divided into categories: notice requirement under title III?; hand control case facts; hand control case majority reasoning; hand control case acquiescing dubitante opinion (say what ? You will have to keep reading:-); and takeaways. The reader is free to focus on any or all of the categories.

Also, I do want to thank all of my readers and also those who voted for me for the ABA 100. I do appreciate it!

I

Is There a Notice Requirement to a State Agency Responsible for a Disability Nondiscrimination Law When Suing an Entity for Violating Title III of the ADA?

We have previously discussed title III notice requirements here. That said, as everyone knows, serial lawsuits are a real problem. We have discussed how to fend off those lawsuits here, and we have also discussed pending federal legislation on that matter here as well. Recently, we have seen the Arizona Atty. Gen. intervene to get dismissed a bunch of serial lawsuits. The Nevada Atty. Gen. has now done the same thing. In their filing, which can be found here, the claim is made that a state entity has to be notified prior to filing a title III suit where that state has a disability antidiscrimination law enforced by that state agency. The reference is to 42 U.S.C. §2000a-3(c), which requires such notice when suing under the Civil Rights Act of 1964. However, title III of the ADA contains no such requirement in 42 U.S.C. 12181 et. seq. It is true that in 42 U.S.C. §12188(a), the ADA references 42 U.S.C. §2000a-3, but the reference is very specific to 42 U.S.C. §2000a-3(a). There is absolutely no mention of 42 U.S.C. §2000a-3(c). Since it is only 42 U.S.C. §2000a-3(c) that contains the notice requirement and that section is not  referenced by the ADA, an extremely strong argument exists that notice to a state agency responsible for implementing a disability antidiscrimination law is not required when filing a title III suit. Finally, keep in mind, that not all states have disability antidiscrimination laws. Georgia for all practical purposes, for example, does not.

II

Hand Control Case Facts

The case of the week is Karczewski v. DCH Mission Valley LLC, a published decision of the Ninth Circuit decided on July 10, 2017. The facts of the case are pretty straightforward. The plaintiff who is paralyzed from the waist down and uses hand controls when driving a vehicle sought to test drive one of the cars offered for sale by DCH Mission Valley LLC. Plaintiff requested that the defendant temporarily install hand controls so that he could test drive the car, but the defendant declined to do so. Plaintiff then sued alleging violation of title III of the ADA.

III

Majority Reasoning

In reversing and remanding the lower court decision and finding that the plaintiff stated a claim, the court reasoned as followed:

  1. Public accommodations must start by considering how their facilities are used by guests without disabilities and then take reasonable steps to provide guests with disabilities a like experience.
  2. To prevail on a claim involving 42 U.S.C. §12182(b)(2)(A)(ii) a plaintiff has to show: 1) plaintiff has a disability as defined by the ADA; 2) the defendant is a private entity owning, leasing, or operating a place of public accommodation; 3) the defendant employed a discriminatory policy or practice; and 4) the defendant discriminated against the plaintiff based upon the plaintiff’s disability by failing to make a requested reasonable modification that was necessary to accommodate the plaintiff’s disability.
  3. Plaintiff’s complaint alleged that hand controls are inexpensive, easy to obtain, work on all types of vehicles, do not disable any safety features, cause no damage, and can be installed by the defendant without much difficulty or expense and those allegations must be taken as true on a motion to dismiss.
  4. Temporary modification of a car for the purpose of a short test drive is relief fitting comfortably within the ordinary understanding of a modification to a policy.
  5. Proving a prima facie case for an unreasonable policy is for all practical purposes identical to proving a prima facie case involving a barrier being readily achievable.
  6. Proving a case for an unreasonable policy is likely to be harder than proving a case involving whether a barrier is readily achievable because a policy claim allows for a defendant to assert the affirmative defense of fundamental alteration and a readily achievable barrier claim does not allow for such a defense.
  7. The barrier encountered by plaintiff cannot reasonably be described as an architectural barrier in an existing facility. Rather, the barrier faced by the plaintiff was the lack of hand controls in defendant’s cars, which are clearly goods and not facilities. Since that is the case, the implementing regulations describing the temporary installation of vehicle hand controls as an example of removing an architectural barrier in an existing facility found in 28 C.F.R. §36.304(b)(21) is not applicable to plaintiff’s claim. That said, in a footnote, the court said that nothing in the opinion is intended to cast doubt on the application of the statutory section involved in the case and its corresponding regulation to other factual scenarios, such as the practice by rental car companies of installing vehicle hand controls in their rental cars.The court specifically declined to address factual situations and legal issues not before them.
  8. The court was not buying the argument that allowing the claim to go forward would violate the safe harbor that a business was not required to alter its inventory to include accessible or special goods designed for or that facilitate use by individuals with disabilities per 28 C.F.R. §36.307(a). The court said that regulation pertains to where a business has to order additional goods, but does not pertain to plaintiff’s requested accommodation, which was a short-term modification to an existing individual item already contained in the inventory.
  9. While places of public accommodation are generally not required to alter their inventory by manufacturing or ordering specialty goods, the ADA does require places of public accommodation to make reasonable, temporary adjustment to goods already in stock if doing so will help customers with disabilities access the same goods and services as non-disabled customers.
  10. The personal device exception found in 28 C.F.R. §36.303 does not help the defendant either. Applying the interpretive principle that a general rule applies unless a more specific rule provides otherwise, an exception is carved out to the general prohibition on personal devices whenever the regulations elsewhere require the provision of personal devices.
  11. The court did not believe that the Department of Justice would have added an explicit qualification of the regulation while at the same time leaving it up to the courts to read and implicit qualification into another regulation. Accordingly, 28 C.F.R. §36.306 and §36.303 can be read in harmony together so as to not create a conflict. That is, personal devices are independently useful objects that a person possesses to use for a general purpose, which is not the case for hand controls nor is it the case for assistive listening systems for that matter.
  12. It is far more practical to require dealerships that voluntarily offer the privilege or service of test drive to carry hand controls of a brand that the dealership knows how to install and use when a customer seeks a test drive (assuming, of course, that providing hand controls would be a reasonable modification and that the other statutory requirements are met).
  13. A narrow reading of “personal devices,” and §36.306 is more consistent with the overall structure of the regulations and with the purpose of the ADA.
  14. Installation of vehicle hand controls is likely reasonable at a large dealership that regularly installs hand controls, has spare universal hand controls on hand, and employs many mechanics with expertise in installing an controls, when advance notice is given by a customer with clear expertise in using hand controls.
  15. It is more consistent with the text of the ADA, its overall intent, and with the case law to inquire into the underlying facts rather than come up with a rule to never require the provision of vehicle hand controls no matter the situation.

IV

Hand Control Case Acquiescing Dubitante Opinion (Judge Bybee)

  1. 28 C.F.R. §36.304(b)(21) list as one of its examples for removing barriers being the installation of vehicle hand controls. However, this particular example is completely unlike any of the other examples listed in that regulation. That is, installing vehicle hand controls cannot be a reasonable application of the ADA’s command to remove architectural barriers in existing facilities because architectural barriers ought to have something to do with architecture. Accordingly, Judge Bybee would hold that §36.304 specific provision requiring vehicle hand controls is not a reasonable construction of the statute it purports to implement and therefore, is a dead letter, i.e. not subject to deference.
  2. Under the majority’s aggressive reading of the ADA, everything can be construed as a policy, practice, or procedure.
  3. A savvy plaintiff with an architectural barrier claim will now always bring a policy, practices, and procedures claim as well. Under the system imposed by the majority, once the plaintiff makes out a prima facie case, the defendant will have to demonstrate both that the removal of its architectural barrier is not readily achievable and that modifying of policy would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.
  4. The majority statement that readily achievable claims and policy claims are for all practical purposes identical isn’t reassuring because ordinarily when Congress adopts two different standards within the same legislation, it is assumed that the standards mean different things.
  5. DOJ and its regulations and manuals have taken a more modest approach to what is policy, practices, and procedures. If policy, practice, or procedure are going to be defined in the way the majority defines it, then DOJ’s regulations on policy, practices, and procedures become nearly meaningless.
  6. A court should hesitate supplying the rationale where the agency’s explanation has failed. Here, DOJ adopted an on point regulation, but did so under a different provision of the ADA rather than in a section of the regulations more specifically applying to the situation.

V

Takeaways

  1. Just what is an acquiescing dubitante opinion? In all my years of reading opinions and it is thousands and thousands by now, I have never seen an acquiescing dubitante opinion before. So, I had to look it up. It is very much as described by Judge Bybee. That is, it is a situation where a judge simply cannot bring himself to writing a concurring opinion nor can he bring himself to writing a dissent. Accordingly, this kind of opinion is an opinion that says, “I see it both ways, and I simply can’t come down one way or the other.”
  2. It wouldn’t surprise me in the least to see this appealed to the United States Supreme Court or for the dealership to petition the Ninth Circuit to hear it en banc. With respect to the Supreme Court, it is absolutely true that persons with disabilities have fared well when it comes to cases outside of the employment context, but this case gets into the issue of the line between product accessibility and service accessibility. It also gets into the issue of whether DOJ with respect to its hand control provisions in its final implementing regulation would be entitled to Chevron Both of these claims might be something that Justice Gorsuch would be very receptive to. Also, Justice Kennedy in the past has not been the swing vote on persons with disabilities. It would be very interesting to see how Chief Justice Roberts might deal with this. Finally, the court does not always wait for a Circuit Court before deciding to take up a case.
  3. I do find problematic the majority’s blurring of policy, practices, and procedure claims with architectural barrier claims.
  4. While it is true that fundamental alteration is a defense, it is also true that architectural barrier claims have a defense as well. That is, with respect to existing facilities, the defense that removing an architectural barrier would not be readily achievable does exist.
  5. The case assumes, as we have discussed before, that certain barrier removals are per se readily achievable.
  6. I am not so sure that the inventory defense can be dismissed so readily. Critical questions are: Just how easy it is to install temporary hand controls?; What is the expense to the car dealership of installing hand controls?; Whether the car dealership by installing the hand controls is engaged in providing a service or in modifying a product?; How do you deal with a hybrid situation involving product modification and the providing of services? Does the analysis change if rental cars are involved?
  7. Does the ADA really require places of public accommodation to make reasonable, temporary adjustment to goods already in stock if doing so will help customers with disabilities access the same goods and services as customers without disabilities. I’m not so sure…
  8. I can see how cases like this should survive a motion to dismiss because the law is so much up in the air and because it turns on very fact specific questions.
  9. I don’t think I follow how fundamental alteration with respect to policy, procedures, and practices matches up with the standards used in architectural barriers situations.
  10. As a user of personal devices since fourth grade, in my case hearing aids, the distinction the majority makes regarding personal devices as being something for general use makes a great deal of sense to me.
  11. A great preventive law step is for public accommodations to consider how their facilities are used by guests without disabilities and then take reasonable steps, keeping in mind the dictates of the ADA, to provide guests with disabilities a like experience.