Iowa Appellate Court: ADAAA Covers Severe Allergies

See this story, which begins:

Iowa residents who suffer from occasional medical attacks such as those those from severe allergies and epilepsy are protected from discrimination by the federal Americans With Disabilities Act, the Iowa Court of Appeals ruled Wednesday. 

The case involved Shannon Knudsen, 30, a mother who in May 2011 sued Tiger Tots Community Child Care Center in Madrid, Iowa, after the facility declined to accept her child because of the child's tree nut allergy. 

A district court had ruled that the Iowa Civil Rights Act does not protect the child. The appeals court, however, said the lower court erred in not considering a 2008 amendment to the Americans With Disabilities Act that may protect the child from discrimination.

The opinion in Knudsen v. Tiger Tots Community Child Care Center Corporation can be found here.  What's interesting about the case is that the Iowa legislature did not amend its Civil Rights Act after Congress passed the ADA Amendments Act to explicitly incorporate the new federal definition of disability.  But the court held nonetheless "that federal law" -- including the ADAAA -- "establishes the framework for an analysis of 'disability' under state law."  Judge Gayle Nelson Vogel, dissenting, argued that the court was usurping the legislative function by reading the state statute as incorporating the ADAAA.

California Supreme Court: Two-Way Fee-Shifting Statute for Accessibility Cases Not Preempted by the ADA

Yesterday, the California Supreme Court issued an opinion in Jankey v. Lee.  Jankey, who uses a wheelchair, brought a case in state court and alleged that Lee's grocery store was inaccessible because it had a small step in front.  Jankey raised claims under both the public accommodations provisions of the ADA and state law, though the state law imposed the same substantive standards of liability as does the ADA.  The trial court granted summary judgment to Lee.  Although the grocery store did, in fact, have a small step at the front, the court concluded that removal of that step would not be readily achievable.  As a result, Lee did not violate the ADA or the parallel state laws.  Lee then moved for an award of attorneys' fees under Section 55 of California's Civil Code, which provides that the prevailing party -- plaintiff or defendant -- is entitled to fees in injunctive actions alleging inaccessible public accommodations.  Jankey argued that this provision was preempted by the ADA's attorneys' fees provision -- under which prevailing defendants are entitled to fees only if the plaintiff's case satisfies the Christiansburg Garment standard of being "frivolous, unreasonable, or without foundation."  The trial court nonetheless concluded that Section 55 mandated an award of fees to a prevailing defendant.  Although it did not find Jankey's claims to be frivolous, unreasonable, or without foundation, it granted the motion for attorneys' fees.  The appellate court affirmed, as did the Supreme Court in yesterday's decision.

The California Supreme Court concluded that, under the plain text of Section 55, attorneys' fees are not discretionary.  Rather, any prevailing party -- plaintiff or defendant -- in a Section 55 action is entitled to fees.

The court then rejected Jankey's preemption argument.  It first interpreted the ADA's savings clause for more disability-protective state laws as foreclosing any conflict or obstacle preemption challenge to Section 55.  The ADA's savings clause provides that "[n]othing in this chapter shall be construed to invalidate or limit the remedies, rights, and procedures of any * * * law of any State or political subdivision of any State or jurisdiction that provides greater or equal protection for the rights of individuals with disabilities than are afforded by this chapter."  The court read this clause as saving from preemption any state law that at least in part affords people with disabilities greater protection than does the ADA -- even if other aspects of the state law, or even the state law taken as a whole, provide less protection to people with disabilities.  Because Section 55 provides broader protection than the ADA's public accommodations title in one respect -- the state law empowers people with disabilities to sue when they are "potentially aggrieved" by a defendant's violations, while federal law requires an individual with a disability to show that she is "about to be subjected to" discrimination -- the court saw no "need to parse every aspect of [the] state law to determine whether, on balance, the state law is equally or more advantageous as a whole."

Notwithstanding this conclusion, the court then examined the questions of conflict and obstacle preemption directly.  The court concluded that -- even if the plaintiff's state-law and ADA claims so completely overlapped that the state-law claim required no additional work to defend -- the award of full attorneys' fees to the prevailing defendant was not preempted:  "Lee would have been entitled to the same fees whether or not Jankey pleaded an ADA claim; the pleading of an ADA claim was neither a necessary nor a sufficient cause of the fee award. The fee award here is not in any meaningful sense for or on account of having to defend against an ADA claim, but instead a consequence of Jankey‟s purely voluntary decision to seek additional state remedies."  Because "[p]laintiffs can always sue under the ADA alone, safe in the knowledge that even if they lose, defense fees will be available only in accordance with Christiansburg," the court concluded that awarding attorneys' fees to defendants more broadly in cases in which plaintiffs voluntarily choose to add a state-law claim neither conflicted with the ADA nor posed an obstacle to the accomplishment of its purposes.

Four years ago, the Ninth Circuit held that two-way fee-shifting under Section 55 was preempted by the ADA.  I doubt, therefore, that this is the last we'll hear of this issue.

Campins on the New California Anti-Serial-Litigation Law

Ace disability rights and employment lawyer Julia Campins has this post on her law firm's blog about SB1186, the new California law that is supposed to respond to serial litigation.  A taste:

Others have commented on the First Amendment concerns in the new demand letter requirements, and I will not address those. What I am concerned with here is how this legislation will work to the detriment of those who need to use courts to protect their civil rights, and will barely cause a ripple in the practices of the targets of this legislation.

Let’s return to the story of the problem litigants. How hard of a requirement is it for them to list the date or dates of their visits? Indeed, they planned the visit for the purpose of the litigation. How hard of a requirement is it for them to list the specific barriers? They went with an eye toward barriers and, like a paid expert, were looking for specific violations. 

Now, compare this problem litigant to a real person visiting a public accommodation because she likes the food or he needs to purchase some clothing. She may not make a calendar entry every time she goes to Burger King. Do you? He may not go clothing shopping on a regular basis. Both may use cash and not get receipts. She may remember that there was a problem getting into the restaurant, but not remember until she returns or is reminded that not only was the door impossible for her to open, but there wasn’t enough room for her to open it. Or, more importantly, if she was unable to get into the restaurant at all, how is she to know that there was no seating for people who use wheelchairs? The legislation makes her lawsuit difficult or impossible (assuming that it is interpreted to require specific dates of visits), but has done nothing to stop the intended targets.

Brown Signs Anti-Serial-Litigation Law

See this article.

California Serial Litigation Bill to Governor Brown

So I spent the last week of the summer getting ready to teach a new crop of students, but now I'm back, and there are a number of important cases and events that happened this week and that I'll report this weekend.  One happened just this morning.  The California legislature passed, and sent to Governor Brown, the latest iteration of its anti-serial-litigation bill.  You can read about it here.  I may have some analysis of the bill over the next few days.

D.N.J.: New Jersey Law Against Discrimination Requires Accommodation in Perceived-Disability Cases, Although ADA Doesn't

Last week, Judge Noel Lawrence Hillman of the United States District Court for the District of New Jersey issued an opinion holding that the New Jersey Law Against Discrimination requires employers to provide reasonable accommodation to employees who are perceived to be disabled, whether or not they have a present disability.  Under federal law after the ADA Amendments Act, of course, the rule is the opposite.  The case is Dennis v. County of Atlantic County, 2012 WL 1059420 (D. N.J., Mar. 28, 2012).

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."