Category Archives: Accessibility Fail

Saying/thinking

Dramatic re-enactment of an actual phone call with a business that will remain anonymous.

Image: Sketch of a woman on the phone with a speech bubble that reads, in small type, “I just wanted to let you know about what you would need to do to you know provide interpreters because well you know how we attorneys are I don’t want to sound confrontational or anything but just to let you know that as a technical matter your office is a place of public accommodation and for that reason is required by the ADA to provide effective communication and we’d be happy to provide a list of interpreter agencies and oh thank you so much for working with us on this we really really appreciate it . . . .”  while her thought bubble reads, in large, all-caps type, “OH FOR CRYING OUT LOUD THE ADA WAS PASSED 25 YEARS AGO AND YOU CAN’T FIGURE OUT THAT YOU NEED TO HIRE INTERPRETERS?!?!”

 

 

Client-Centered Practice

A few years back, when I started to co-counsel with the University of Denver Civil Rights Clinic, I started hearing about “client-centered lawyering.”  “Yeah yeah yeah” I thought, “I listen to my clients, too.”  But as I worked more closely with the professors and students at the clinic, I came to appreciate the extra layer of thought and respect that this brought to the representation.  Often I would find myself proposing a perfectly rational, highly effective, kick-ass course of action, only to hear a student or professor say, “I wonder how our client would feel about that.”  Or I would prepare to tell the client why our proposed course of action was right, just, logical, and effective, and a student or professor would suggest that perhaps we first talk with the client about his goals.

It has been a good learning process for an experienced lawyer, especially one who cut her teeth as the nth chair associate in a giant firm — representing large corporate clients, where the client’s moral, ethical, and personal goals for the litigation were as distant as the moon — and then moved into a plaintiffs’ class action practice, where the “client” is simultaneously the individual and the class.

Client-centered lawyering has been at the top of my head for a variety of reasons, and so it was this morning as I read this account of parents — a blind mother and sighted father — meeting with the education bureaucrats who were making decisions for their blind daughter.*  The question was, what sort of cane should the daughter be provided and taught to use?  First, for me, a lesson in the fact that there are multiple types of white canes:

The discussion surrounds the selection of which cane Marley is to use, we want the longer, lighter white cane, while she feels that a much shorter, 3x heavier with a que ball end cane is the “best choice”.

The writer/dad discusses the practical pros and cons of the two types of cane, along with this essential history:

Most importantly, the difference SYMBOLICALLY from the short, red ended heavy cane vs the long white cane. The standard cane originates in the UK circa 1921, by James Biggs, who found himself newly blind and painted his walking stick to become more visible. (White cane, Wikipedia.org). The long cane was developed in 1958 by the Iowa chapter of the National Federation of the Blind, designed to “enable us to walk faster without diminishing either safety or grace”(The Nature of Independence by Dr. Kenneth Jernigan, NFB.org) One was created from a “discomfort from the amount of traffic around his home”, and designed for the purpose of “being more visible”. Of its entire development from England in the 20’s, to France in the 30’s and the lions club in America in the 50’s, the main theme from its inception, to its development and adoption into law, is the concept of “visibility”, alerting others of a blind person. In contrast, the long white cane was created from a dissatisfaction for “the short, heavy… type, and we youngsters associated carrying a cane with begging, shuffling along, and being helpless”, and designed for the purpose of “advancing on the road to freedom and independence”(Jernigan). And THOSE are facts…
~In short, one symbolizes “look out, I am a handicapped person, and I can’t get around that good”, while the other symbolizes “look out, I’m a handicapable person, and I’m coming through!”

And here was the response of the “Orientation and Mobility Professional” in a meeting with the writer, his wife, and the daughter’s educational team:

Every time we speak about what the white cane means, or mention the philosophy of advocacy and higher expectations/ standards we live by and expect for ourselves, including Marley, a look of sheer disgust smears across this teachers face, followed by a heavy roll of the eyes and pulling of her brows as high as she can, finishing off with a sarcastic smile to the others (Marley’s principle, kindergarten teacher, low vision teacher and special services coordinator) CLEARLY saying without using words, “who the fuck do you think you are to make decisions for your daughter, & I can’t believe we’re wasting our time listening to his shit folks”.

The words she IS using is, “what training and credentials do you have in orientation & mobility (O&M)” (to have a say in the course of your daughters independence development). She says, “I have a masters in O&M, and YEARS of experience”, she says, “Marley’s white cane with metal tip is a danger to others”.

The writer sums it up succinctly in what seems to me to be the absolute 180-degree opposite of a client-centered approach:  “I look at these divine and almighty credentials of hers as a hindrance, she has had 6 years of formal training on how a sighted person tells a blind person what’s best for them.”  It made me stop and think:  when is my law degree a hindrance to helping people achieve their real goals.  True, when they have selected law to achieve those goals, I have 30 years (starting from first year law school) of experience in how to use the tools of the legal system to achieve those goals.  But I can’t tell them what their goals are or should be.  And it is incumbent on me to provide [legal, ethical] options, and not only the options that I think achieve the goals I think they ought to have.

But client-centeredness needs to escape legal clinics and law journal articles and inform medical, social service, education, and other practices were the folks with the fancy degrees and certificates think it’s a license to tell their clients what’s best for them.  In addition, while I’m sure it’s a problem everywhere people with training and degrees use those skills to help people who lack same, but are ass-deep in their own lives, I’d venture it’s a larger problem in the world of disability.  People with disabilities know their own bodies, skills, and strategies often far better than the credentialed doctors, teachers, and social workers tasked with evaluating their lives and doling out treatment and resources.  These practices need a giant dose of client-centeredness to avoid the absurd and appalling circumstances of a sighted professional telling a blind father what was best for his blind daughter to navigate the world.

Also this particular “O&M Professional” should please go fuck herself.

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* This FB post also appears in the blog Blind Mom in the Burbs.

This . . . for every unpleasant restaurant/access encounter we’ve ever had.

The whole thing is about 1:50, but the fun part starts at 1:21, if you’re really impatient.

From the USA Network series “Complications,” Ep. 6.   Here is a captioned version — in a link, not the original, because I’m not very good at screengrabs and the audio is messed up.

Access success and fail in Helena, with random Helena photos

I spent part of last week in Helena, Montana on a new/old case in which CREEC is joining the ACLU National Prison Project and the ACLU of Montana as co-counsel on the case of Langford v. Bullock.  The Langford case was brought and settled in the early 1990s, but the implementation period is ongoing with respect to a claim under Title II of the ADA.  CREEC is lending its expertise in this area.

Image:  four people standing arm in arm.  From left:  a middle aged white man with red-blond hair and a gray goatee wearing a tan suit jacket and open collar shirt, an younger middle-eastern man with short hair wearing a button down shirt, a young white woman in a gray t-shirt and blue scarf, and a middle aged white woman in a yellow shirt and multi-colored scarf.

Jon Ellingson of the Montana ACLU, Ajmel Quereshi of the ACLU NPP, and CREECsters Sarah Morris and me.

Sarah and I flew into Missoula, met with Jon and Ajmel, and then all drove over to Helena.  The meeting went well, and left me a few hours of Wednesday afternoon for a leisurely stroll around Helena.  As I’ve mentioned — among other places, in my Ramps of Route 1 post — I love to observe the small ways that small town small businesses find to provide access.*

First up:  Taco del Sol on Last Chance Gulch Street.**  I love not only their tile ramp

Photo:  Sidewalk sign showing a big, wooden sun with attached smaller signs reading "Tacos Burritos Nachos Fish Tacos and more" and another reading "Beer and Wine."  Next to the sign, a door into a restaurant with a sloped tile ramp leading in.

but that, even as a small restaurant, they made Braille menus available.

Photo:  wooden box containing menus; a sign on the side reads "Braille menus are available for in-store use."

Also the carne asada burrito was fantastic!

Last Chance Gulch was a sort of pedestrian mall that did a great job ensuring the one or two steps of rise at most stores was ramped.  The giant plush bear added an extra touch at the Lasso the Moon toy store.

Photo:  front of a toy store with a large stuffed bear, accessible with a sloped entryway.

And accessible ice cream!

OLYMPUS DIGITAL CAMERA

Helena had a couple of hilarious access fails, as well.  Flower pot access fail:

Photo of two-way ramp in front of the door to an office building with a giant flower pot at the top of the ramp.

Pink flamingo access fail:

Photo of store with level entry, which put a flower pot in the door, and in the flower pot, a large plastic pink flamingo which is pitching face first into the door width.

And major design brain fart fail:

Photo showing ramp down to lowered area of pedestrian mall; there is a single step up to the ramp, however.

The photos below were just randomness from my walk:

Photo of moorish style design in an arch at the Civic Center. Photo of detail from a painted outdoor wall showing an ashtry with a half-smoked cigarette. Photo of a brick wall and text painted on the adjacent wall reading, "Memory Wall:  The Historic Chinese Community of Helena." Photo of large red pickup truck with the license plate "BG JNSN."

And my photos could not capture the beauty of the mountains, but I tried:

OLYMPUS DIGITAL CAMERA

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*  As with the original post, I have to offer this disclaimer, because every now and again some defense-side attorney (hi, guys!) may read this:  I did not evaluate these ramps for compliance with the Standards.  I don’t know their dimensions or slope.  If you try to introduce this as evidence in one of my cases, I will file a Motion for Judicial Notice of Completely Missing the Point.

** Not kidding!

Photo:  traffic light and street sign reading "Last Chance Gulch."

Municipal Planning Morass = Disability Discrimination Travesty

A weird, complicated, simple, dramatic, Aspen-based soap opera of a legal case started trial yesterday.  The City of Aspen is suing two wealthy condo-owners and the developer/landlord of the rest of the building for privatizing the only accessible entrance.  It’s a smaller but more disturbing version of the “poor door” controversies in New York and other cities, where affordable housing tenants are forced to use a side entrance to mixed use buildings.

Image:  the front of a brick building with a restaurant patio and covered entryway.

Photo from aspenpublicradio.org. Original caption: The building at the center of the dispute, at 308 East Hopkins in downtown Aspen. The entrance in question is on the right side of the building. Credit Loopnet.com

Elise Thatcher of Aspen Public Radio interviewed me about it on Monday and posted the Court’s decision granting in part and denying in part the City’s motion for summary judgment.

In short, JW Ventures, a developer in Aspen, Colorado, constructed a building in downtown Aspen to include two “market value” apartments, three “affordable housing units,” and two restaurants.  It also had, as required, an accessible entrance from the sidewalk with an elevator serving all apartments and the two restaurants, as well as an alley entrance and service elevator.   Fast forward to today:  the owners of the two market value units — a couple who combined them into a single apartment (the “Fancy Apartment”) — have asserted that the street-side accessible entrance and elevator are theirs alone, and that tenants of the affordable units and patrons of the restaurants must use the alley entrance and service elevator.  The legal case, brought by the City of Aspen to enforce its own ordinance, centers around the city’s conflicting actions with respect to building and condo plans.  I’ll get to the untested ADA and Fair Housing angles in a second.

I want to start in the middle and slightly to the side of the poor-door, privatized-accessibility story, with an email reporting an appalling quote by one Charles Cunniffe, an architect and principal with JW Ventures.  At the point when the status of the accessible entrance was being debated, the Fancy Apartment owners’ broker called Cunniffe and reported this conversation in an email back to the owners:

So, I called Cunniffe who said, Denis Murray of the bldg. dept has a personal agenda with handicap usage because its his personal MO (he’s handicapped).

Let’s put this quote in the More Traditional Minority Insult Conversion Machine:

We may not be able to exclude Jews from our apartment building.  That code inspector has a personal agenda with anti-Semitism because it’s his personal MO (he’s Jewish).

See how that works? Not OK, right?  In fact, prima facie evidence of discriminatory animus IMHO. In case Cunniffe’s appalling disability discrimination weren’t enough, he goes on, per the email, to recommend illegal retaliation.

If [affordable housing] tenants don’t like that and want to make an issue, the building owners have the right to terminate their lease based on being noisey, pet issues, smoking, etc.

In other words, if they stick up for their rights under the Fair Housing Act, just find a pretext to kick them out. ZZzzzzzt! You lose! That violates 42 U.S.C. § 3617, which prohibits retaliation for asserting rights under the FHA.

Stepping even farther aside, this is an object lesson in privilege. The wheelchair-using code inspector is likely a well-educated, competent guy. Maybe he has a degree in architecture or engineering. Maybe a professional license or two. But when he takes the radical position that JW Ventures should comply with federal law and municipal ordinance, he is reduced to his wheelchair and his views dismissed because of it.  If the email is accurate, this guy Cunniffe was determined to discriminate and retaliate, so even if Murray were not disabled, Cunliffe might have disparaged him as a bureaucrat or a jerk, but his views would not have been brushed off as a mere product of his minority status.

Back to the legal case. Turns out the city required, in the ordinance permitting the redevelopment, that the building be accessible and approved plans showing access from the street to all units and both restaurants.  The city later signed off on a condo map showing the street-side entrance and elevator as within the exclusive control of the Fancy Apartment. It is the conflict created by these apparently contradictory actions that is being tried — under the City ordinance — in court this week.

Because this case was brought by the city to enforce its ordinance it does not address the ADA or FHA, but I will.

JW Ventures designed and constructed the building in around 2010.  The apartments are thus covered multifamily housing under the FHA and the restaurants are places of public accommodation under Title III of the ADA.  All were required to be accessible when built — and apparently were.*   Having done this, JW Ventures, as the landlord, has to maintain the features that were originally required to be accessible.  This would require it to keep the elevator in good repair; naturally, taking affirmative steps to prevent use of the elevator would be covered by this provision as well.  Both the FHA and ADA also require reasonable accommodations/modifications in policies and procedures, so the landlord would also have to modify a policy that barred people from the accessible entrance.  Bottom line:  should a resident or guest of one of the affordable units or a patron of one of the restaurants require wheelchair access, that person would have the right to use the entrance and elevator currently privatized based on the landlord’s policies.

This may be a one-off situation, based on the complex set of conflicting communications during the building and condominiumization** process.  But if more and more mixed-use buildings are going to have “poor doors,” they may find themselves in violation of the ADA and the accessibility provisions of the FHA, in addition possibly to FHA disparate impact provisions, and of course common decency.

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* Lawyerly disclaimer:  I have not seen the place, so I can’t vouch for its accessibility.  Everyone seems to agree that the street-side entrance and elevator would provide compliant access if not restricted.

**  Yes, this is a word.

[Cross-posted at CREECblog.]

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

Update:  While it’s true that Title III most definitely needs a public shaming remedy, this case may not be the vehicle for it.  Gawker reports that the whole thing was a hoax.  Not wishing to be equally credulous of the debunking as I was of the original bunking, I’ll leave the various links and let you decide.

Original post:

Family says girl scarred by pit bull attack asked to leave KFC restaurant.

Image:  Kentucky Fried Chicken logo.  Old white man with white goatee and red apron.

 

A 3-year-old girl who was attacked by pit bulls in April was asked to leave a restaurant in Mississippi because her scars scared customers, the girl’s grandmother told a television station there.

“They said, ‘We have to ask you to leave because her face is disrupting our customers.’ [The girl] understood exactly what they said.”

As you can imagine, this is pretty much an automatic violation of Title III of the ADA, which prohibits discrimination on the basis of disability in public accommodations, including restaurants.  But Title III has no damages remedy; the only thing the girl and her family would be entitled to would be an order permitting them to eat at the restaurant in question.

Second prize:  two meals!

Since there’s no damages remedy and the injunctive remedy is somewhere between less-than-useless and adding-insult-to-injury, I propose — in addition to the very-expensive-scotch remedy for hotel reservation violations — that Title III have a public shaming remedy.

Here, the remedy would include a requirement that (1) the waitstaffperson who made the request wear a sign saying “I acted like an asshole.  I’ve learned my lesson.  I will not act like an asshole — at least to people with disabilities in restaurants — in the future;” (2) the owner of the restaurant wear a sign saying, “I promise not to hire assholes and I promise to train my staff not to act like assholes,” and (3) the waitstaffperson and restaurant owner buy the entire family a meal at the best restaurant in town as well as a year’s supply of Popeye’s fried chicken, which everyone knows is the far superior take-out fried chicken.

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.

Image: Roll-in shower.

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.