Author Archives: Amy Farr Robertson

About Amy Farr Robertson

Civil Rights Lawyer. Dog Lover. Smartass.

Title III doesn’t [just] need damages; it needs a public shaming remedy. Update: I appear to have been punk’d.

New Rule: Remedial Scotch

New rule: when we arrive at a hotel at 2:00 in the morning — a hotel that has confirmed by phone and fax that it has reserved for us a room with a roll-in shower — to find, after unloading our voluminous luggage (shower chair; giant duffel; garment bag; suitcase; suitcase; computer wheelie; backpack), checking in, and tipping the helpful bellman who has transported this unGodly collection of luggage to the room, that the room has only a tub and that, in fact, no room with a roll-in shower is available that night (“night”), there will be a member of the ADA defense bar available on-call to secure alternative accommodations and to provide a nightcap of very very expensive Scotch.

These are the facts:

1. The hotel had at least one room with a roll-in shower.

2. The hotel confirmed — several times* — that it had reserved a room with a roll-in shower for us.

3. This was incorrect. When we arrived, there were no roll-in-shower rooms available.

4. The hotel had at least one non-roll-in-shower room available — the one with the tub that they sent us to with our mule-train of luggage in tow.

5. At least one of the rooms with a roll-in shower was occupied by someone who did not need it (this fact related to us by the night manager).

This is the law:

1. Title III of the ADA prohibits discrimination on the basis of disability in places of public accommodation, including hotels. 42 U.S.C. § 12182(a).

2. Hotels are required to provide rooms with roll-in showers in proportion to the total number of rooms. DOJ 2010 Standards for Accessible Design, Table 224.2. I’m guessing that this hotel was required to provide at least nine such rooms; every hotel is required to provide at least one.

3. Hotels are required to

[e]nsure that accessible guest rooms are held for use by individuals with disabilities until all other guest rooms of that type have been rented and the accessible room requested is the only remaining room of that type;

and

[r]eserve, upon request, accessible guest rooms or specific types of guest rooms and ensure that the guest rooms requested are blocked and removed from all reservations systems.

28 C.F.R. § 36.302(e)(1)(iii) and (iv).

So there’s pretty much no question that the hotel violated the law. And there’s no question that the violation had consequences: after flying across the country and arriving at 2:00 in the morning, Tim would not be able to shower when he woke up later that day.

The problem is, while there were consequences for Tim, there will be no consequences for the hotel. Title III of the ADA has no damages remedy. Truth is, we would be fairly unlikely to bring a lawsuit for damages. We didn’t want damages; we wanted a useable hotel room. We wanted to be able to do what every weary traveler wants at 2:00 a.m. — to check in and go to sleep; NOT to travel up and down the elevator with our piles of luggage, have a long — pleasant but unfruitful — conversation with the night manager, wait through long sessions between the night manager and his computer terminal, finally settle for the (inaccessible) room at 3:00, and (Tim) be unable to shower the next morning.

In other words, we just wanted the system to work.

But wait!, you say, Title III has an injunctive remedy! The court can order the system to work, right?

Well first of all, of course, only after a lawsuit, which can take anywhere from two to 12 years. By then, we’d be home and Tim would have showered, repeatedly, in our very own roll-in shower.

But more importantly, the hotel, in a case like this, would almost certainly argue** that Tim has no standing to sue unless he can specify the date on which he will return to this precise hotel. And while many people travel repeatedly to the same hotel, many don’t. That’s the point, right? When you’re planning travel to a new city, you want to be able to pick up the phone or go online, make a reservation, show up, and have a room you can use. The problem is, under the current system, there is very little incentive for this system to work for people with disabilities: no damages remedy; and no injunction unless you plan to come back to the very same hotel AND have the time and energy for a lawsuit. Given this, the hotel knows that it doesn’t really need to comply.

So — new rule: every ADA defense lawyer who makes these bone-headed standing arguments must register on an ADA Compliance Resolution List and provide a number where they can be reached 24 hours a day. When one of these damagesless, standingless events occurs, they must be ready to solve the problem, provide the room, and send a nightcap of very very expensive Scotch.

Anyone want to help me draft the bill?

[Cross-posted at CREECblog.]

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* When we make hotel reservations, we can’t just go online and request the room we want. We call, we have a long conversation about roll-in showers (“Are you sure? You’ve seen the bathroom in that room? Can you ask housekeeping to check? I heard you roll your eyes — just go check please.”), we often call back at least once, and we send a confirming fax, which we then have on hand when we arrive at the hotel. None of that matters if it’s 2:00 a.m. and there simply isn’t an accessible room available.

** Indeed, this hotel has made this precise argument with respect to violations known to exist in many of its hotels. The court held that the plaintiff “must assert an intent to return to the particular place (or places) where the violations are alleged to be occurring.” Scherr v. Marriott Int’l, Inc., 703 F.3d 1069, 1075 (7th Cir. 2013). So there is no standing to make them fix the problem in other hotels unless this plaintiff is planning to go to each of them? Which means, of course, that none of the other hotels in the chain will be fixed until other wheelchair-using hotel guests — in this case, 56 other guests at 56 different hotels — encounter the barriers and sue. Or unless one guest has the foresight to bring a class action, adding to the length and complexity of the suit and the elapsed time until a discrimination-free stay can be ensured.

Image from the webpage of Fine Design Contractors of Somewhere, MN.

Photos from Baltimore

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In Baltimore for the National Disability Rights Network conference and have been playing with a new lens.

Update: More Baltimore photos on my Flickr page.

This is just so wrong.

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In a Denver Post article entitled “Book lovers rejoice! How to coexist peacefully with your collection,” — by a woman who claims to be a “book lover” in search of “suggestions of how best to display [her] book collection” — we find the following appalling advice, passed along uncritically:

Amy Trager, a certified professional organizer based in Chicago, suggested flipping the books around so the pages are facing out, instead of the spine, to cut down on the visual clutter of the books’ different colors and sizes.

This caused in me a reaction of disgust and aversion not unlike my reaction to [the prospect of ever being exposed to] the brain-eating scene in a zombie movie. The article goes on to explain, helpfully:

That only works, of course, if you don’t need to quickly access specific books, but it’s a great way to add texture and a neutral, toned-down feeling to your space, Trager said.

Like using your oven to store your shoes only works if you don’t need to bake.* WTF?

Trager had another client who needed to keep her books in the living room but hated the way they looked. She created covers for each of her recessed shelves out of thin paperboard. When she wanted a particular book, she could pull the covers down, but when they were up, it looked like a solid colored wall, fading into the background.

The only answer here is to arrest this woman and force her to donate her books to the local public library.

I realize that, as a dog lover who bought a light-colored, linen-upholstered sofa and as the proud owner of a gray formica kitchen counter, I should not be giving design advice, but I feel very strongly that there is only one good way to display books: out and proud.

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*This, on the other hand, is not totally out of the question as a design solution in our house.

Anti-Gay Group Refuses To Accept Mail With Harvey Milk Stamp

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From the Huffington Post.

Fundamentalist Christian group American Family Association is urging members not to accept any mail postmarked with the U.S. Postal Service’s newly released Harvey Milk stamp, the first U.S. stamp to feature an openly gay elected official.

In related news, the American Family Association announced plans to put its fingers in its ears and say “LALALALALALALALALA” until the 21st Century goes away.

More photos from the Keys

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A bit of a photodump, as reality is calling me back to brief-writing and presentation-preparing.

This one is my favorite for some reason:

Separate sunset photodump coming after I make some progress IRL.

Memorial Day

Yes, this was a business trip.

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This post is a long-overdue recognition of the amazing work Kmart has done to make its stores more accessible. But perhaps I was just waiting for the opportunity to include the words — and a photo — “crocodile statue.”*

Once upon a time … yes I feel like the roots of this post are sufficiently deep in the past that it justifies that opening. Once upon a time, there was a chain of department stores, many of which were pretty inaccessible.

We sued them. A class was certified. The company declared bankruptcy. The company emerged from bankruptcy. No one, including the judge, could figure out the status of the litigation. Many motions with creative titles were exchanged. The company hired new lawyers, then more new lawyers. And then, finally, in 2006, the case settled.

In the settlement, Kmart undertook to survey all of its then-1,500 stores over eight years and bring them largely into compliance with the DOJ Standards. They also committed to make rack spacing more accessible and — this was crucial — to maintain the stores so that people who use wheelchairs could get around them.

Kmart and its team threw themselves into the project with skill and enthusiasm. It has been a privilege to work with Lori Miller, from the general counsel’s office, and Mark Conway, from the construction side. Although we spent days during the settlement negotiation laboring over a dispute resolution process, there has not be a single dispute that required access to that process.

OK, I’m rambling without getting to the crocodile part of the blog.

As part of the settlement process, several times each year, Mark and Tim and I travel to a city and survey three or four Kmart stores, both for the accuracy of the physical fixes and the maintenance of the fixes and the accessibility of the stores in general. We’ve traveled to such glamor spots as Riverside, CA, and Schaumberg, IL. This time we tossed out the idea of surveying stores in the Florida Keys and, well, here we are!

We surveyed three stores, all remodeled pretty early in the process, and found them to be very accessible. There were, as always, a couple of notes, but we were very impressed both by the number of fixes that were being maintained and the general accessibility of the stores. That latter feature has been a consistent source of delight when we do these surveys and when I simply enter a Kmart store: they have taken seriously the commitment to making the store more navigable in a wheelchair, one of the primary complaints motivating the litigation. When we started the litigation, there were many aisles in many stores that looked like the one at the top of this post. Now that scene is very rare.

But what made these surveys especially fun was the added Florida Keys flavoring.

I think I’m going to order the Crocodile Statue from kmart.com. Hope it’s still on sale!

Most Kmart stores have a Garden Center; the one in Marathon — uniquely — had a Fishing Center

What would be the entire garden center area of an ordinary Kmart was given over to fishing gear and — given our lead plaintiff’s love for fishing — Carrie should be happy to know it was very accessible.

But my favorite feature of this store was the giant ocean mural on the front.

This led to my unsolicited but genius design idea: paint the floor of the main drive loop aisle around the store like a lazy river pool full of tropical fish! Wouldn’t that make shopping more fun? I did originally suggest sharks — hey, I’m a lawyer, what did you expect? — but the store manager pointed out that that might scare the kids. Good point. But what kid wouldn’t love to go shopping when they could walk on a stream full of tropical fish? Imagine the fun this could be around the country: ski slopes in Colorado; beaches in California; forest scenes in New England. Maybe I have a future in store design!

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* Edited to correct typos. I originally had “crocodile statute.” Once a law nerd; always a law nerd! (Thanks, Terri!)