Stupid Lawyer Tricks: alleging defamation as defense to inaccessibility

It should be obvious that whatever the ADA does or does not permit, it would not permit a business owner to DECREASE accessibility.

ADA 101:  You’re supposed to build new facilities to be accessible and make old ones accessible when it’s “readily achievable” — that is, when the cost and your resources make it reasonable.*  When you’re making alterations, you’re supposed to make them accessible “to the maximum extent feasible.”  But fer Pete’s sake — a phrase that really should appear verbatim in the regs — don’t take something that’s accessible and make it inaccessible.

This is what the regs actually say about it:  “No alteration shall be undertaken which decreases or has the effect of decreasing accessibility or usability of a building or facility below the requirements for new construction at the time of alteration.”  ADAAG § 4.1.6(1)(a).

When we moved into our office space in February, 2008, the space across the street was empty and essentially gutted.  Among other things:  flat.  The floor of the space was had no changes in level.  Did I mention it was flat?

Hoping for another good restaurant in our neighborhood, we were psyched to learn that someone was opening a mid-scale Mexican restaurant & bar across the street.  We looked forward to good food and after-work gatherings, especially with our friends & co-counsel at the Colorado Cross Disability Coalition, which is right up the street.

This is what the space looked like before:

Here’s what it looks like now:

We don’t have a panoramic shot of the restaurant, but this is the newly constructed raised area on the north side — the mirror image of the newly constructed raised area on the south side.  No ramps.  Over half of the total floor area is now inaccessible, and most of the rest is occupied by a bar, leaving a couple of tables — often inaccessible high tables — on the ground level.

To summarize:  The owners constructed two inaccessible raised areas in a previously flat, fully-accessible space.  They took a space that could have been completely integrated and created — at best — a wheelchair ghetto.

In brief:

Before: flat.
After:  inaccessible.

We tried hard to talk to them about this, with no success.  So we got together with the Colorado Cross-Disability Coalition and filed suit.

Pause for a brief introduction to CCDC, as if all five of my readers aren’t already intimately familiar with them.  On a shoestring budget, CCDC works with the legislature, conducts training, engages in outreach and advocacy and — when called for — files suit to ensure equality of opportunity for people with disabilities.  During the legislative session, their volunteers are at the capitol every day.  When people are having difficulty securing needed services or benefits, their volunteers are on the phone.  And their advocacy and litigation have increased Denver’s physical accessibility from the Pepsi Center to Red Rocks, and … done a lot of other amazing stuff.  I was going to give some more examples, but just click here and scan the list!

In response to the lawsuit, the restaurant retained Littler Mendelson, a nationwide employment discrimination defense firm.  And by “nationwide” I mean, of course, “expensive.”**  Instead of working with us to make the place more accessible — and saving everyone’s attorneys’ fees — it’s been scorched earth litigation.  But I think what has been most entertaining for us is the Littler lawyer’s decision to accuse CCDC of defamation.  Yup:  the fact that CCDC posts, on its website, the pleadings — public documents — containing the undisputed facts above — took a flat space; made most of it inaccessible — constitutes defamation.  Here is the Littler Mendelson attorney, verbatim, in a deposition of CCDC’s executive director:

5     ……My position is that
6   you and your clients have been defaming my clients by
7   raising false allegations of discrimination, repeatedly
8   accusing my client, both in this case, in judicial
9   filings, but also in Internet filings, which simply
10   reiterate the false allegations put into the court
11   record that my client discriminates against individuals
12   with disabilities.
13                You are trying to present a picture of my
14   client to the Court which is not true, and I’m entitled
15   to present a picture of your client which I believe
16   demonstrates its motives in pursuing this case.  You’re
17   trying to present a picture of your client to the Court
18   of a noble organization just trying to obtain
19   additional access for people with disabilities.
20                I’m allowed to present to the Court a
21   picture of your organization as one which shakes down
22   and scourges local businesses and forces them to incur
23   tens to hundreds of thousands dollars in attorney’s
24   fees and costs in order to promote the organization’s
25   revenue and business, and I think I’m allowed to make
1   the same types of — I’m allowed to rebut the glowing
2   picture of your organization that you’re trying to
3   present to the Court . . .

That’s right:  calling attention to the fact that the defendant took an accessible space and made it inaccessible is defamation.  I suppose we should be glad that being accused of inaccessibility is at least regarded as a bad thing!

Just after we started our firm in 1996, I was talking to my Dad about some of the baloney we were already starting to get from defense counsel.  He told this story. When he was the Executive Director of the Missouri Commission on Human Rights in the early 1960s, he decided to drive around rural Missouri testing the newly-enacted Civil Rights Act which prohibited discrimination on the basis of race in places of public accommodation, for example, restaurants.  On at least one occasion, the restaurant he had just tested called ahead to the next one down the road, and the folks at the second place were waiting at the door with shotguns when he arrived.

I suppose it represents a sort of progress that enforcing the civil rights laws in 2011 requires only a thick skin and a high tolerance for bullshit rather than a up-armored ’64 Dodge Falcon and firearms.

* OK, the definition is slightly more complex than that, but I sense your eyes glazing over already.

**  We haven’t seen their legal bills, but I’m fairly certain Littler Mendelson is not working for free.  Our assumptions did lead to this dryly hilarious exchange in the deposition of CCDC’s executive director:

18 Q. All right. Then in the
19 next line, the next paragraph, second sentence, says,
20 “[The restaurant’s] owner is spending money, lots of money, on
21 a 17th Street law firm to fight providing access.” Do
22 you see that?
23 A. Yes.
24 Q. What is the basis of your knowledge
25 concerning the amount of money, if any, that
1 [the restaurant’s] owner is spending on legal fees?
2 A. I — I guess I don’t know exactly. It’s
3 an assumption. Maybe I shouldn’t have made that
4 assumption. Maybe you’re working pro bono and I don’t
5 know that.

If you are not rolling around on the floor laughing so hard you can’t breathe, you probably aren’t a plaintiffs’ lawyer.

4 thoughts on “Stupid Lawyer Tricks: alleging defamation as defense to inaccessibility

  1. Pingback: Defame This! « Thought Snax

  2. Pingback: El Diablo closed. Donate to CCDC. QED. | Thought Snax

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