Disability Studies Quarterly Call for Papers: Special Issue on the 25th Anniversary of the ADA

Yup, it's getting to that time.  Here's the first in what I expect will be many calls for papers for ADA 25th Anniversary symposia.  Watch this space for more such calls.

CALL FOR PAPERS 

2015 Special Issue of Disability Studies Quarterly on the Americans with Disabilities Act 

In 2015, Disability Studies Quarterly will publish a Special Issue to mark the 25th anniversary of the Americans with Disabilities Act. The ADA has been a watershed in American disability policy, with far-reaching effects on the status of Americans with disabilities, but has fallen far short of the expectations for social transformation with which it was enacted in 1990. The Special Issue will commemorate the ADA’s 25th anniversary with both a look back at how the ADA has affected the disability community and the larger society, and an assessment of future prospects for attaining the ADA’s goals of inclusion and empowerment. 

Papers that are related (broadly) to the ADA are invited from scholars from any academic or professional discipline, disability policy professionals and advocates, and from disability activists. The issue will strive to incorporate a diverse variety of perspectives within disability studies. Priority for selection will be given to manuscripts that are broadly framed and advance our understanding of the direct and indirect consequences of the ADA for people with disabilities, rather than those which focus on narrow legal, policy, or technical aspects of the Act. 

Some examples of potential paper topics include, but would not be limited to: The History of the Americans with Disabilities Act; The ADA and Disability Law; The ADA and the Workplace/Workforce; The ADA and Public Accommodation; The ADA and Community Living; The ADA and Disability in the Arts and Popular Culture; The ADA and Health Care; Disability Culture and Pride Since the Passage of the ADA; Disability Politics Since the Passage of the ADA; The Global Impact of the ADA and the U.N. Convention; Technology, Disability, and the ADA 

All submitted papers will be subject to peer review, and revisions may be requested for inclusion in the Special Issue. The deadline for submission of proposals is June 1, 2014. We anticipate that peer review and editing would be completed, and the complete issue will be submitted to DSQ before the end of 2014. 

Proposals or questions about the Special Issue may be directed to Richard Scotch, Special Issue Editor, at .

Latest DOJ Settlement over HIV Discrimination by Health-Care Providers

See this press release, which begins:

The Justice Department announced today that, as part of its Barrier-Free Health Care Initiative, it has reached a settlement with Glenbeigh Hospital of Rock Creek, Ohio, under the Americans with Disabilities Act (ADA). The settlement resolves allegations that Glenbeigh violated the ADA by denying admission to someone because of HIV. This is the fourth settlement that the Justice Department has reached in six weeks addressing HIV discrimination by a medical provider.

The Justice Department found that Glenbeigh unlawfully refused to admit someone with HIV into its alcohol treatment program because of the side effects of his HIV medication. Glenbeigh’s alcohol treatment program consists of helping patients through the physical aspects of recovery, as well as providing counseling and incorporating spiritual healing. The department determined that Glenbeigh cannot show that treating the complainant would have posed a direct threat to the health or safety of others.

“Ensuring access to medical care for people with HIV requires that those in the medical field make medical decisions that are not based on fears or stereotypes,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division. “The ADA does not tolerate HIV discrimination and neither will the Justice Department.”

Student Note on the Nexus Requirement in Reasonable Accommodation Law

Just out: Note, Three Formulations of the Nexus Requirement in Reasonable Accommodations Law, 126 Harv. L. Rev. 1392 (2013).  From the introduction:

The concept of reasonable accommodation is fundamental to the American disability law regime, yet it has proved as slippery as the concept of disability itself.  Underlying much of the difficulty is disagreement over the appropriate relationship between an accommodation and the disability-related obstacles it is aimed at removing. Just as it is not illegal to discriminate against a member of a protected class for reasons unrelated to her protected status, the Americans with Disabilities Act  (ADA) does not require accommodations that are not related to a person's disability. But this seemingly simple concept has produced a muddled, often self-contradictory body of case law. Disability statutes provide little guidance to the judges who must decide whether a dog is properly understood as a needed therapy animal or a household pet, whether an alternative examination method is an innovative accommodation for dyslexia or a clever way of gaming the test, and whether a request to transfer to a different work setting is genuinely related to the disabling aspects of posttraumatic stress disorder.  This Note seeks to classify the various approaches that courts have brought to the so-called “nexus requirement,” to examine the beliefs about disability that are implicit in these approaches, and to offer some ways in which courts might reconcile those beliefs with the realities of disability. 

A reasonable accommodation is an alteration to some element of the status quo that is intended to enable a person with a disability to participate in work, higher education, residential living, or public life to the same extent as the nondisabled. The range of possible accommodations is in theory limited only by the human imagination: it can include changes to physical environments and time schedules, adjustment of requirements and policies, and provision of assistive devices, just to cite a few examples.  The Supreme Court has held that exceptions to workforce seniority rules are not necessarily off limits, and courts have recently entertained the idea of including commuting-related accommodations as well.  Given this seemingly untethered flexibility, perhaps it was inevitable that courts interpreting disability-rights statutes would search for some principle to limit the costs incurred by businesses, landlords, and governments in complying with disability law.

* * * 

Thus, the lower federal courts have been left largely to their own devices, and many commentators have been unhappy with the results. These scholars have typically treated the nexus requirement as a straightforward binary issue, generally assuming that courts either scrutinize the nexus or do not.  But the existing variety of judicial treatments calls for a more comprehensive, nuanced framework. This Note introduces a tripartite scheme for classifying the ways in which courts have attempted to reconcile statutory nexus requirements with the factual uncertainties inherent in disability. The first, discussed in Part I, requires the requested accommodation to bear a direct causal relationship with the substantial limitation of a major life activity that the plaintiff alleges. The second, discussed in Part II, asks whether the requested accommodation is more logically integrated with the disability or with some other aspect of the plaintiff's circumstances. The third, discussed in Part III, conceptualizes disability broadly and defers to the judgments of individuals on issues related to their own intimate life experiences. Each formulation has merit, yet none can resolve every case in a way that satisfies the diverse interests at stake in the American disability law regime. These categories are interrelated and far from mutually exclusive; courts have applied very different reasoning to different areas of disability law, and some have even shifted their analyses within a single opinion. Nonetheless, the framework may serve to illuminate the complexities of the nexus inquiry, and Part IV discusses the ways in which judges might employ its insights to compensate for the shortcomings of their own understandings of disability.

An interesting discussion of an important issue.  I don't think the first theory -- direct causal relationship with the substantial limitation of the major life activity -- can make any sense after the ADAAA, where for a lot of people the substantial limitation will be something entirely internal to the body (because the relevant major life activity will be a "major bodily function").  Of course, I didn't think the first theory made a lot of sense before!

Travis on Impairment Discrimination

Up on SSRN: Michelle A. Travis, The Part and Parcel of Impairment Discrimination, __ Emp. Rts. & Emp. Pol'y J. ___ (forthcoming).  The abstract:

The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) has been heralded for restoring the protected class of individuals with disabilities to the broad scope that Congress intended when it enacted the original Americans with Disabilities Act over two decades ago. But the ADAAA accomplished something even more profound. By restricting the accommodation mandate only to individuals whose impairments are or have been substantially limiting, and by expanding basic antidiscrimination protection to cover individuals with nearly all forms of physical or mental impairment, the ADAAA extricated disability from the broader concept of impairment and implicitly bestowed upon impairment the status of an independent protected class under federal antidiscrimination law. The ADAAA's effective elevation of impairment to protected class status demands a deeper understanding of the ways in which impairment discrimination - as distinct from disability discrimination - manifests itself in the workplace. This Article explores one aspect of that larger inquiry by analyzing whether impairment discrimination encompasses employment decisionmaking based on the symptoms of an impairment or on the mitigating measures that one uses for an impairment. This Article demonstrates that understanding symptom-based and mitigation-based decisionmaking as a form of impairment discrimination is not only consistent with the statutory language and legislative intent, but also accurately reflects the social, medical, and practical reality of what it means to be "impaired."

Second Circuit Holds Timely Arrival at Work Not Necessarily an Essential Job Function

Earlier this week, the United States Court of Appeals for the Second Circuit issued an opinion in McMillan v. City of New York, --- F.3d ----, 2013 WL 779742 (2d Cir., Mar. 4, 2013).  Early in the opinion, Judge Walker summarizes the major take-away from the case:

It is undisputed that Rodney McMillan's severe disability requires treatment that prevents him from arriving to work at a consistent time each day. In many, if not most, employment contexts, a timely arrival is an essential function of the position, and a plaintiff's inability to arrive on time would result in his failure to establish a fundamental element of aprima facie case of employment discrimination. But if we draw all reasonable inferences in McMillan's favor—as we must at summary judgment—it is not evident that a timely arrival at work is an essential function of McMillan's job, provided that he is able to offset the time missed due to tardiness with additional hours worked to complete the actual essential functions of his job.

McMillan, who works for the city, has schizophrenia, which he manages with medication.  But the medication unfortunately can make him extremely drowsy in the mornings.  "As a result, he often arrives late to work, sometimes after 11:00 a.m. The City makes no allegations that McMillan malingers; instead, it is undisputed that his inability to arrive at work by a specific time is the result of the treatment for his disability."  For at least ten years, the city explicitly or implicitly approved McMillan's late arrivals, provided he made up his hours at the end of the day.  But in 2008, the city shifted course and stopped approving them.  At that point, McMillan made a number of requests for the city to approve his late arrivals once more, but his supervisors refused.  

McMillan sued under, among other statutes, the ADA.  Judge Rakoff of the United States District Court for the Southern District of New York granted summary judgment to the city.  Judge Rakoff deferred to the city's determination that arrival at work within a one-hour time frame was an essential function of McMillan's job.  He thus concluded that McMillan's requested accommodation (to arrive as late as 11, while making up the hours later) was unreasonable.

The Second Circuit reversed.  Here is the nub of its analysis:

The district court appears to have relied heavily on its assumption that physical presence is “an essential requirement of virtually all employment” and on the City's representation that arriving at a consistent time was an essential function of McMillan's position. While the district court's conclusion would be unremarkable in most situations, we find that several relevant factors here present a somewhat different picture: one suggesting that arriving on or before 10:15 a.m.—or at any consistent time—may not have been an essential requirement of McMillan's particular job. For many years prior to 2008, McMillan's late arrivals were explicitly or implicitly approved. Similarly, the fact that the City's flex-time policy permits all employees to arrive and leave within one-hour windows implies that punctuality and presence at precise times may not be essential. Interpreting these facts in McMillan's favor, along with his long work history, whether McMillan's late and varied arrival times substantially interfered with his ability to fulfill his responsibilities is a subject of reasonable dispute. 

This case highlights the importance of a penetrating factual analysis. Physical presence at or by a specific time is not, as a matter of law, an essential function of all employment. While a timely arrival is normally an essential function, a court must still conduct a fact-specific inquiry, drawing all inferences in favor of the non-moving party. Such an inquiry was not conducted here.

Paul Mollica has commentary on the case here.

Fourth Circuit Upholds PI in Personal Care Cut Case

Yesterday, the United States Court of Appeals for the Fourth Circuit issued an opinion in Pashby v. Delia, --- F.3d ----, 2013 WL 791829 (4th Cir., Mar. 5, 2013).  In this case, North Carolina had tightened the eligibility requirements for in-home personal care services (PCS) under Medicaid.  A number of PCS recipients filed suit under the Medicaid Act, the ADA, and Section 504 of the Rehabilitation Act.  The district court granted a preliminary injunction to halt the cuts and certified a plaintiff class.  The state appealed.  Yesterday's decision addressed the state's appeal from the preliminary injunction.

Upholding the district court's conclusion that the plaintiffs were likely to succeed on the merits of their ADA/Section 504 claims, the Fourth Circuit held that the district court had not abused its discretion in concluding that the new eligibility standards placed them at a significant risk of institutionalization.  After the new eligibility standards were put in place, the plaintiffs argued, it would be easier to obtain personal care services in a congregate "adult care home" than in one's own home.  The state argued that the ADA does not prohibit placing people with disabilities at risk of institutionalization.  The Fourth Circuit, deferring to the views of the Department of Justice, disagreed:

Because Congress instructed the DOJ to issue regulations regarding Title II, we are especially swayed by the DOJ's determination that “the ADA and the Olmstead decision extend to persons at serious risk of institutionalization or segregation and are not limited to individuals currently in institutional or other segregated settings.” U.S. Dept. of Justice,Statement of the Department of Justice on the Integration Mandate of Title II of the ADA and Olmstead v. L.C.,http://www.ada.gov/olmstead/q & a_ olmstead .htm (last updated June 22, 2011); see also Olmstead, 527 U.S. at 597–98 (“Because the Department is the agency directed by Congress to issue regulations implementing Title II, its views warrant respect.” (citation omitted)). Moreover, the Tenth Circuit has held that “there is nothing in the plain language of the regulations that limits protection to persons who are currently institutionalized.” Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1181 (10th Cir.2003). In sum, individuals who must enter institutions to obtain Medicaid services for which they qualify may be able to raise successful Title II and Rehabilitation Act claims because they face a risk of institutionalization.

The state also argued that adult care homes are not institutions.  But the Fourth Circuit, again deferring to the views of the Department of Justice, disagreed.  And the state argued that "continuing to offer in-home PCS to the class members and named Appellees constitutes a fundamental alteration due to the administrative and financial burdens it entails."  The Fourth Circuit rejected that argument, too.  The court "join[ed] the Third, Ninth, and Tenth Circuits in holding that, although budgetary concerns are relevant to the fundamental alteration calculus, financial constraints alone cannot sustain a fundamental alteration defense."

The Fourth Circuit also concluded that the plaintiffs satisfied the other three requirements for a preliminary injunction (irreparable harm, balance of hardships, and the public interest), so it agreed that a PI was warranted.  The court remanded, however, because it concluded that the preliminary injunction issued by the district court failed to satisfy Rule 65's specificity requirement.  It thus directed the district court to describe the enjoined conduct in greater detail.

Judge Agee dissented.  He concluded that the plaintiffs had not shown a sufficient risk of institutionalization to establish a likelihood of success on the merits.  He also concluded that the state had presented a sufficient fundamental alteration defense to make the plaintiffs unlikely to succeed.

Basas on Reasonable Accommodation and Resistance

Up on SSRN: Carrie Griffin Basas, Back Rooms, Board Rooms -- Reasonable Accommodation and Resistance Under the ADA, 29 Berkeley J. Emp. & Lab. L. 59 (2008). The abstract:

Reasonable accommodations under the Americans with Disabilities Act (ADA) are at the center of the integration of people with disabilities into mainstream work environments. Responses on the part of employers, however, have couched many feasible accommodations as excessive, burdensome, and costly. Employers resist hiring people with disabilities and accommodating existing disabled employees. This position is affirmed by societal and legal messages about the inferiority of disabled workers. Courts have tended to take a pro-employer point of view, deciding that some accommodations are unreasonable without specifically unpacking that concept in relation to the language and spirit of the ADA. Meanwhile, one of the most important parts of the ADA remains largely undefined and employers and courts can take cover behind a vague notion of reasonableness whenever any request seems like too much. While scholars have debated whether or not the ADA goes too far in requiring employers to adapt to the needs of disabled individuals, the latter are cast aside in the reasonable accommodation process by employers, courts, and scholars themselves. As a result of this exclusion, people with disabilities struggle to get even the most basic and achievable accommodations granted, such as those related to transportation and assistance with arriving at work. This Article advocates for the involvement of people with disabilities in the accommodation process, not only from a place of cooperation but also in the form of resistance to subjugation. This participation must happen at all levels for any meaningful change to happen in the American workforce. The realization of it depends not on the generosity of employers, jurists, or scholars, but on people with disabilities' active confrontation of unjust and irrational interpretations of the ADA. Relying on disability studies approaches and a social model of disability, the author places prospective and current workers with disabilities at the center of the reasonable accommodation process. She suggests that those models can go even farther - and be replaced by a resistance model - to recognize and respond to the biases and prejudices about people with disabilities that lead to their marginalization at work and in communities.

NFB and Target Settle Web Accessibility Case

Dan Goldstein passes along this press release:

Baltimore, Maryland (August 27, 2008): The National Federation of the Blind (NFB) and Target (NYSE: TGT) announced today that they have settled a class action lawsuit regarding access to the Target.com Web site by blind people.

Dr. Marc Maurer, President of the National Federation of the Blind, said: “Access to Web sites is critical to the full and equal participation of blind people in all aspects of modern life. The National Federation of the Blind is pleased to have reached a settlement with Target that is good for all blind consumers, and we recognize that Target has already taken action to make certain that its Web site is accessible to everyone. We look forward to working with Target in the coming months to help make additional improvements that will enhance the experience of blind visitors to Target.com. It is our sincere hope that other businesses providing goods and services over the Internet will follow Target’s example and take affirmative steps to provide full access to their Web sites by blind consumers.”

Bruce Sexton, Jr., a named plaintiff in the case from the beginning, added: "This settlement marks a new chapter in making Web sites accessible to the blind. I commend Target for committing to being a leader in online accessibility." Steve Eastman, president of Target.com, said: “First and foremost, Target is committed to
serving all our guests. As our online business has evolved, we have made significant enhancements in order to provide an accessible shopping experience. We are pleased to have reached an agreement with the National Federation of the Blind regarding the accessibility of Target.com for individuals who use assistive technologies and will work with the NFB on further refinements to our Web site.”

As part of the settlement, Target will establish a $6 million fund from which members of the California settlement class can make claims. In addition, the National Federation of the Blind will certify the Target Web site through its Nonvisual Accessibility Web Certification program once agreed upon improvements are completed in early 2009. Target and NFB have agreed to a three-year relationship during which NFB will perform accessibility testing of the Target Web site. For more
information about the terms of the settlement, please visit http://www.nfbtargetlawsuit.com/.

Congrats!

Good Third Circuit Statute of Limitations Decision

Back in version 1.0 of this blog, I posted on the district court's decision in Disabled in Action v. Southeastern Pa. Transportation Authority, which had held (erroneously in my view) that the statute of limitations for challenging inaccessible transit station renovations under the ADA begins when the plaintiffs know that the renovations are going to be inaccessible, rather than on the (later) date when renovations are completed. Well, the Third Circuit yesterday issued its ruling on the plaintiffs' appeal from that decision, and it reversed the district court. Yay!

Harris & Stein on Workplace Disabilities

New on SSRN: Seth D. Harris & Michael Stein, Workplace Disabilities, in Labor and Employment Law and Economics (Kenneth Dau-Schmidt et al., eds, 2008). The abstract:

The key United States law regulating employment discrimination against employees with disabilities is the Americans with Disabilities Act (ADA). Title I of the ADA prohibits employment discrimination against any 'qualified individual with a disability'. This proscription includes traditional prohibitions of 'disparate treatment' and 'disparate impact'. Another form of employment discrimination prohibited by the ADA is the failure to provide a 'reasonable' workplace 'accommodation' to a qualified individual with a disability. The statute defines those individuals as workers who are capable of performing the essential job functions of the respective positions sought, either with or without provision of reasonable accommodations. Because reasonable accommodations are the focus of scholarly and political debate over the ADA, while also being the main innovation in disability employment discrimination worldwide, this chapter focuses on accommodations.

Although the ADA is a United States statute, it has had considerable influence on disability-related employment laws internationally. This is true for systemic national laws such as the United Kingdom's Disability Discrimination Act that are closely modeled on the ADA as well as for international acts that borrow specific concepts from the ADA (Stein and Stein 2007). Notably, the ADA's reasonable accommodation mandate has been adopted by the United Nations

Yep. That's how it ends.

Two Good ADA Title III Cases from the Ninth Circuit

Yesterday, the Ninth Circuit issued opinions in two cases that were brought under the ADA's public accommodations title. One, D'Lil v. Best Western Encina Lodge & Suites, involved a question of standing. The plaintiff, Hollynn D'Lil, was visiting Santa Barbara on business and tried to stay at, among other hotels, the Best Western. She found lots of barriers to access and sued under the ADA and state law. The parties entered into a consent decree, in which the hotel agreed to remove the barriers. The decree left open the question of attorneys' fees, however. When D'Lil filed a motion for attorneys' fees, the district court, sua sponte, raised the question whether D'Lil had standing to sue in the first place. The court ultimately concluded that, because she had no concrete plans to return to the specific Best Western she sued again -- and because her pattern of filing lots of ADA accessibility suits cast doubt on the credibility of her assertion taht she did plan to return -- she had no standing to bring the suit.

The Ninth Circuit, in an opinion by one of the best judges in America, Judge Reinhardt, reversed. The court explained:

D'Lil's intent to return to the Santa Barbara area is evidenced by the regularity with which she visited the city before, during, and after her stay at the Best Western Encina. By her declaration, and her testimony at the evidentiary hearing, D'Lil demonstrated that she has been visiting the Santa Barbara area since the early 1980s for both business and pleasure. From 1993 to 2000, she visited approximately 1-3 times per year in connection with her work for the state Department of Rehabilitation. In 2001, the year that D'Lil stayed at the Best Western Encina, she took three trips to Santa Barbara to visit her friends the Marshes, to vacation with her children, and to perform work for attorney Singleton. In the three years between her visit to the Best Western Encina and the filing of her declaration in the case, D'Lil returned to Santa Barbara four times to conduct business inspections and to visit the Marshes. At the evidentiary hearing, D'Lil testified to three upcoming trips that she was planning to the Santa Barbara area, including a vacation to visit the Marshes,
an evidentiary hearing for another trial, and a prospective work trip to Carpinteria.

D'Lil's desire to stay at the Best Western Encina on future trips to Santa Barbara if it were made accessible is also well supported by the evidence that she submitted at each successive stage of the litigation. In her complaint, D'Lil stated that she “would like to return and use the subject Best Western Encina on a spontaneous, but full and equal basis” but that she “is prevented from doing so by defendants' failure and refusal to provide disabled persons ... with ‘full and equal access' [to its] facilities.” In opposing defendants' motion for summary judgment, D'Lil submitted a declaration again reiterating that she “definitely plan[s] on staying at the [Best Western Encina] when it is made accessible.” In that declaration, she explained that her preference
for staying at the Best Western Encina during future trips to Santa Barbara was based on the hotel's proximity to downtown, its accessibility from the freeway, and its amenities, including lush gardening and fresh country linen quilts. At the close of her declaration, she summarized her preference for the Best Western Encina as follows: “It is a nice facility and fits with my needs with regards to taste, style, price and location.... If made accessible, I would definitely choose it again during my visits to Santa Barbara.” At the evidentiary hearing, D'Lil, consistent with her declaration, testified that she had a desire to stay at the Best Western Encina because “it's the kind of hotel that I would like to stay at. It's simple, and you park close to your room, and it has a place to eat so I don't have to get in the car and drive somewhere else to go eat. .... It meets the configuration of the kind of hotel I like to stay at. It's also less
expensive than some of the other hotels.”

And the court rejected the suggestion that D'Lil's filing of many other accessibility suits against other hotels made her allegations of intent to return incredible. Citing, among other things, a great article someone wrote, the court stated that "we must be particularly cautious about affirming credibility determinations that rely on a plaintiff's past ADA litigation." And the court concluded that her past suits did not undermine her credibility:

Here, the district court relied on D'Lil's prior ADA suits to question the sincerity of her intent to return to the Best Western Encina. The court noted that D'Lil had not returned to six hotels that she sued during a 2002 trip to Redding, California and found it implausible that a plaintiff with approximately sixty prior ADA suits sincerely “intends to return to nearly every place she sues.” The record contains no evidence of whether those places had been made accessible, such that D'Lil could have safely returned if she so wished. Moreover, whether or not D'Lil visited the hotels in Redding says little about her intent to visit the Best Western Encina, considering that D'Lil identified specific reasons-including the presence of the Marshes and expected future work in Solvang-for returning to Santa Barbara. The district court's speculation about the plausibility of D'Lil's intent to return to each place of public accommodation that she sued is further undermined by evidence of D'Lil's extensive and frequent travel throughout the state, buttressing her claim that
she would again have occasion to patronize the establishments she sued if they were made accessible.

Judge Rymer dissented.

In the other case, Jankey v. Poop Deck, the court addressed an attorneys' fees question. The plaintiff, Les Jankey, challenged various barriers to access at the defendant restaurant, the parties entered into a settlement in which the defendant agreed to remove some barriers, and Jankey moved for attorneys' fees. The district court recognized that the plaintiff was the prevailing party, but it refused to award attorneys' fees. The court explained that an award of attorneys' fees would be "unjust" because:

Here plaintiff has failed to provide prelitigation notice and has unreasonably protracted litigation by waiting nearly five months to reply to defendants' proposal remedy of the A.D.A. violation. Mr. Frankovich and his firm's abusive litigation tactics have been well documented. The purpose of the A.D.A. is to ensure accessibility to public accommodations for disabled individuals, not to enrich attorneys.

The Ninth Circuit reversed. In an opinion by Judge Graber, the court held that a district court may not refuse to award attorneys' fees in an ADA public accommodations case based on the plaintiff's failure to give presuit notice to the defendant:

Denying attorney fees altogether as “unjust” because of a lack of prelitigation notice would constitute, in essence, a sanction for failing to provide notice. But as we held in Skaff, the ADA does not require prelitigation notice. Litigants and their lawyers should not be penalized for failing to meet a purported technical requirement that does not exist. And failing to provide prelitigation notice cannot, by itself, be considered harrassing or improper because the ADA permits the conduct. Nor does it matter whether the district court considers the lack of notice in conjunction with other adverse considerations. If the other conduct is sufficient to render a fee award unjust, then the lack of prelitigation notice need not be considered; if the other conduct is not sufficient, then the lack of prelitigation notice would be, in the end, what justifies denying fees, in contravention of Skaff.

We therefore hold that a district court may not use a lack of prelitigation notice as a factor in determining whether to deny as unjust a request for attorney fees under the ADA. Here, the district court erred when it used Plaintiff's failure to provide prelitigation notice as a factor to deny him attorney fees as a prevailing plaintiff.

The court of appeals also explained that while unduly prolonging the litigation may be a basis for reducing the attorneys' fees awarded to a prevailing plaintiff, they are not a basis for denying fees altogether. And the court concluded that Jankey's lack of prelitigation notice did not prolong the litigation: "Defendant did not initiate settlement discussions until seven months after the lawsuit was filed, and there is no reason to believe Defendant would have responded any more quickly once the complaint was filed had there been notice first." But the court concluded that some of the conduct of Jankey's counsel after the filing of the litigation -- dithering on a settlement proposal by the defendant -- might have unduly prolonged the litigation. It remanded to the district court for a determination of whether the fee award should be reduced for that conduct.

All in all, two very good opinions.

New ADA Amendments Act Text

Is here. The bill flips the Sutton mitigating measures holding, expands the "regarded as" protection, defines "major life activities" to include "major bodily functions," and states that "substantially limits" should be interpreted in accordance with a set of findings that reject the restrictive interpretations of that term adopted by the EEOC and the Supreme Court. This isn't close to everything the disability community wanted, but it's a good compromise that will make a real difference to ADA litigation.

Harkin, Hatch Introduce New Version of the ADAAA

The press release is here. The bill has a seemingly filibuster-proof 63 cosponsors. I'll post a link to the bill text when I get a postable or linkable version.

Cal. Ct. App. on Barrier Removal in Public Accommodations

Yesterday, the California Court of Appeal, First District, issued an opinion in Californians for Disdability Rights v. Mervyn's. The case involved a challenge, under state law, to inaccessibility in Mervyn's stores (stores that had been built before the ADA's effective date). In particular, the plaintiffs contended (and the defendants conceded) that displays were placed so close together that people who used wheelchairs and other mobility aids were effectively prevented from accessing large swaths of the stores. The court of appeal found that plaintiffs had established a vioplation of the ADA, and thus declined to decide whether state law provided more protection than the ADA (a question on which a number of amicus briefs had been filed).

The court concluded that the displays constituted architectural barriers that Mervyn's was required to remove if "readily achievable," and that the plaintiffs had made out a prima facie case that barrier removal in Mervyn's stores was, in fact, readily achievable. But, based on evidence that "Mervyn's would suffer annual lost sales of $70 million, and up to $30 million in lost profits" if it placed its displays sufficiently far apart to permit access, the court of appeal concluded that the company had adequately rebutted that prima facie case. Nonetheless, the court found an ADA violation, because Mervyn's had not adopted alternative methods to provide full and equal access to its goods and services. Mervyn's contended, rather ridiculously in the opinion of your humble correspondent, that it provided adequate alternative methods because its new and newly renovated stores were all accessible (as required by the ADA's new-construction provisions). But the court of appeal, sensibly, rejected that argument: "Mervyn's does not satisfy its obligation to make its merchandise accessible to a disabled shopper at its Cupertino store by constructing a new store 150 miles away in Folsom."

Cert. Papers in Ruiz-Rivera v. Pfizer Pharmaceuticals

Today, I filed this reply brief in support of certiorari in Ruiz-Rivera v. Pfizer Pharmaceuticals, a case involving the ADA's protection of individuals "regarded as having" disabilities. The petition for certiorari, which we filed last month, is here.

Obama, McCain Statements on Disability Issues

In honor of the ADA's anniversary, Barack Obama and John McCain issued statements supportive of disability rights this weekend. Both express support for the ADA Amendments Act, and Obama's expresses support for the Community Choice Act, while McCain's more vaguely expresses support for "legislation that would build on the principles of the Money Follows the Person Initiative, while also keeping my commitment to a responsible budget." For some doubts about McCain's support for disability rights, see this post on GoBecky. And it's certainy true that Obama has the best, most well thought-out position statement on disability rights of any candidate I can recall.

Happy 18th Birthday ADA!

Here's hoping that this year brings us the ADA Amendments Act.

Off to the Extremity Games! More posts tomorrow.

NLJ on ADAAA

See this good article on the ADA Amendments Act in the National Law Journal.

Human Resource Executive Online on ADAAA Hearing

See this article, with some choice (anodyne?) quotes by yours truly.

Ireland & Bales on Employment Discrimination Under Title II of the ADA

New on SSRN: Employment Discrimination Under Title II of the Americans with Disabilities Act (forthcoming in Admin. & Reg. L. News, 2008). The abstract:

Title I of the Americans with Disabilities Act prohibits employment discrimination on the basis of discrimination. Title II prohibits discrimination by providers of public services. Title I contains several exclusions (federal employees, employees of small state agencies) and procedural requirements (filing a charge of discrimination before filing suit) that are not in Title II. If an employer is covered by Title II but not by Title I, may that employer be sued for disability discrimination in employment?

The circuits are split on the issue. The Ninth Circuit has held that because Title I explicitly covers employment, and because Title II covers public services but does not specifically mention employment, Congress must have intended for Title II not to cover employment. This article, however, agrees with the circuits that have held that Title II covers employment discrimination claims, for three reasons. First, the plain textual language of Title II broadly prohibits all discrimination by public entities. Second, the ADA's legislative history indicates that Congress intended Title II to apply to employment discrimination. Third, the Department of Justice's regulations interpreting Title II are on point and entitled to deference.

This is an updated and significantly condensed version of an article that will be published imminently at 28 N. Ill. U. L. Rev. (2008).