Tag Archives: ADA

Confiscating a Dynavox in the name of Christ.

Religious hospitals get a lot of press for denying healthcare to LBGTQ folks and the like, but a lesser known problem is that Title III of the Americans with Disabilities Act includes this language:

The provisions of [Title III] shall not apply to … religious organizations or entities controlled by religious organizations, including places of worship.  42 U.S.C. § 12187

So, yknow, churches can be as inaccessible as they want and can’t be challenged under Title III of the ADA.  Fine.  Well, not fine, but we’re stuck with it.  But religious-themed hospitals are big business, and dominate the healthcare landscape.  Then they do this — to a psychiatric patient who used a Dynavox to communicate  — and claim immunity as a religious organization:

[The patient, Linda Reed] claims that she was denied the use of her Dynavox; that hospital staff attempted to give her medication she was allergic to; that she was denied timely access to her medical records; that she was denied the use of a telephone to call her case manager (about whom the record reveals little); that she was denied access to a chaplain; and that she was physically escorted off the premises by two security guards. Notably, the hospital’s corporate representative and nursing supervisor, William Fry, testified in his deposition that the Dynavox was locked up outside Reed’s room at night and that she had access to it during the day only “as long as her behavior was appropriate.”

Reed v. Columbia St. Mary’s Hospital, No. 17-1469, 2019 WL 494073, at *1 (7th Cir. Feb. 8, 2019) (emphasis added).*  Read that again:  she was only ALLOWED TO COMMUNICATE if her “behavior was appropriate,” apparently as assessed by Nurse Ratched.

 

Image: Dynavox speech generating device; similar appearance to a tablet; bottom half containing a QWERTY keyboard; top half a field showing the text being typed.

Dynavox

 

The hospital in question was Columbia St. Mary’s Hospital, now named “Ascension.”  It claimed, in seeking immunity, that it “will not perform medical procedures inconsistent with Catholic ethical directives.”  Id. at *6.  So I guess denying communication access — including communication with a chaplain — is fully consistent with Ascension’s Catholic ethical directives.

The Seventh Circuit denied the claim of religious immunity, but only because the hospital forgot to plead it.  The court “express[ed] no opinion on whether … the hospital might fit within the exemption for entities controlled by religious organizations.”  Id.  That is, if its lawyers hadn’t been so sloppy, the hospital might have been able to confiscate and control the patient’s only way to communicate, and gotten away with it . . . in the name of Christ.

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*I wanted to write “emphasis added, motherfucker” but didn’t find that in the Blue Book.

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?!?!”

 

 

In which I get interviewed for the 25th Anniversary of the ADA

An interested and interesting reporter, Maeve Conran, from Boulder’s KGNU, interviewed me for their series on the 25th anniversary of the ADA.  It was delightful to talk to her and I appreciate, as you’ll hear, that she just sort of let me talk, rather than chopping it up into sound bites.

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.

ADA Defense Counsel Bingo

A hilarious Graduation Bingo card has been making the rounds of Facebook, with squares like “ethnic name is awkwardly pronounced” and “someone in your line of sight is wearing Canucks gear.”  Evidently, the graduation was in Vancouver.

This inspired me to compose ADA Defense Counsel Bingo.  (MS Word version here.)MS Word Version at https://thoughtsnax.files.wordpress.com/2015/06/opposing-counsel-bingo.docx  Some of these are more common than others; all of these are real.

 

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.