Tag Archives: americans with disabilities act

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.

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.

 

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.

Because the biggest f*****g problem with the ADA is too many f*****g drive-by plaintiffs

This evening we went back to the completely gutted and remodeled Izakaya Den restaurant and found that they installed a raised sushi bar with no ramp.  Here’s a photo from Westword with my added mark-up.

Photo of the inside of a restauarant.  To the lower left of the photo, a raised area is visible with seats at a lowered sushi bar.  The raised area is circled in red, with an arrow pointing to it from text that reads "Step up to sushi bar."

Sigh.

Just that, by itself, is deeply frustrating.  As we’ve discussed in connection with our lawsuit against the El Diablo restaurant, you can’t take an empty space and make part of it inaccessible.  While this should be obvious, it’s also illegal.

But what made this depressing, frustrating, infuriating and really sad was that we have been patronizing Izakaya Den and its sister restaurant, Sushi Den, for years.  They know us in both restaurants, well enough at Sushi Den that we had a table where we always sat, and most of the waitstaff had served us so often they automatically brought me a phone book to sit on.*  We had participated in a private sushi tasting with a chef visiting from Japan, and at that point (and others) met the owners.

It’s bad enough that Izakaya Den got seriously bad architectural advice.  It’s really depressing that no one ever stopped to think, this isn’t just a theoretical legal question; we have a regular customer who will want access to the sushi bar.   And what’s funny:  they have an elevator.  They added a second floor and an elevator.  Very fucking cool.  But damn!  Why on earth add an unnecessary, new, inaccessible raised area?

We proceeded from Izakaya Den to Kaos** pizza, which was also inaccessible,  then*** on to the Black Pearl which had this gorgeous ramp

Photo showing front of restaurant with a ramp to the front entrance adjacent to a patio area with tables and seats.

as well as truffle fries, an excellent cheese plate, and a nice refreshing bottle of 90 Shilling.

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*  Yes, I’m that short and have that little pride.  But it’s nice to be able to look my fellow diners in the eye.

** Sounds like Maxwell Smart should be nearby, talking on his shoe phone.

*** I’m leaving out the part where I crossed the street from Kaos to where Tim was waiting, swearing my ass off, while he made “maybe you don’t want to use those words just now” eyebrow motions.  Turns out he was chatting with a nice woman — hidden to me by a parked car — and her cute Lab puppy.   I was embarrassed, she was understanding (“that’s OK; let it all hang out!”), and the puppy was really really cute.

This is why I never read comments on news stories

On Friday, the judge in our case against Hollister stores and their inaccessible front entrances ordered that the violations be remedied within three years.

Red Alert Politics — “an online publication written by and for young conservatives” — gave the case a straightforward, factual write-up.  There are two comments.  The first is I guess a typical conservative response:  it’s their store; they can do what they want.  Not respectful; not even legal; but plain vanilla conservative.

The second comment was this, by someone designated with a little star as a “Top Commenter”:

yeah well obama is all about controlling and lying…he’ll cost anyone money he can, direct the DOJ to infringe on multiple constitutional rights and keep doing it…

think about this, any speech charge, using what you say in court against you – is against the first amendment, that is saying that you’re freedom is speech can be used against you – that’s a law to the contrary, or the second ammendment – you have the right to keep and bear arms….

article 6 is the supremacy clause and the oath that judicial branches, judges, senators, congressmen, even the president takes….

any charge for a speech or a gun is unconstitutional — ever wonder why when they charge people with murder charges, the gun NEVER EVER comes up? lawyers of that caliber would shit on it….just like america needs to shit on obama, and carry guns, and exercise their god given rights, that their ancestors fought to ensure were protected.

So in response to the fact that Hollister stores will be required to fix their raised front entrances to make them accessible to customers in wheelchairs, we are supposed to “shit on obama and carry guns.”  Ladies and Gentlemen, I present:  Conservative Logic and Spelling 101.

 

The ramps of Route 1

[Cross-posted at CREECblog.]

Every summer or so, we visit my brother and his family at their place in Maine.  To do this, we generally fly into Boston and then drive the four hours from Logan to mid-coast Maine.  The first three hours are on I-95; the last hour or so on Route 1 from Brunswick to Thomaston.  It has long struck me, as we meander up the barely two-lane road — often at 30 mph behind a giant RV or tractor — the amazing number of very small businesses that have ramps.

This past weekend I made the trip with no deadline and no one else in the car, so I had the time* to take some photos of these examples of readily-achievableness. (Ready achievability?)**

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.

The first couple were actually near Manchester, NH, where I had taken a detour to visit a college classmate.

Small free-standing store with parking lot.  Store has steps in front and a ramp up the side starting from the back of the store and rising to the middle of the right hand side.
These next two are churches, which aren’t even covered by the ADA (unless they have some sort of commercial business on the side):

Front view of white building with three steps at the front entrance (in the middle of the front of the building) and a ramp extending from the entrance along the front to the left side of the building.  Ramp has a sign that reads, "Christ Died for Our Sins."

 

Photo of beige church building with the words "Saint Peter" on the front and a ramp curving around to the right side of the building.

 

Onward to Rte 1:

One story building with front porch accessible by a short ramp in front of the building.

This actually might have been someone’s house.  Along Route 1, the distinction between house and business is often sort of vague.

Gabled grey house with wooden ramp extending from the front door and curling around to the right in the front yard.  The base of the ramp is white lattice work and flowers grow along the front of the base.

Just north of Wiscasset.

Small free-standing red building with a ramp extending from the middle of the front off to the right.

Jean Kigel Studio, Damariscotta.

One-story building viewed from the side where a ramp provides access up onto the porch.

Cheap cigarettes in Waldoboro.

One-store store with a sign in the front reading "Cheap Cigarettes."  The front door is served by a short apparently level ramp with a slighly sloped portion at the end.

Somewhere south of Thomaston.

House or business with approximately five steps to the front door and a ramp to a side door on the left.

The Hair Loft, Warren, Maine.

One-story building with a sign reading "Hair Loft."  The front entrance is on the left side of the photo, served by approximately six steps.  The door is also served by a ramp from the door leading to the right of the photo.

Unidentified business, Warren:

Front of a two-story house or business with a wide metal ramp leading to the front entrance.

The famous Moody’s Diner, Waldoboro:

White building with neon sign reading "Moody's Diner" on the roof.  A ramp is positioned along the left side of the building leading up to the entrance in the middle.

Ralph’s Homes, Waldoboro:

Freestanding white building with a long switch-back ramp serving the front entrance, which is up approximately six steps.

Random business south of Waldoboro:

Red building with approximately 3 steps to a porch serving the front entrance.  A ramp serves the porch as well.

The Nobleboro Antique Exchange:

Blue two-story building with a switch back ramp serving the porch and front entrance.  Sign in front of the building reads "Nobleboro Antique Exchange."

So next time you hear some fancy store or chain claim that it’s not readily achievable to ramp their business, here are some examples to, in legal terminology, call baloney.***

*****************

* My leisurely pace turned out to have been a good plan for another reason:  when I got to my brother’s house, he and his family were out and their house was guarded by their snarling goldendoodle.  Seriously.  This dog

Benign-looking light brown dog, sized somewhere between a poodle and a golden retriever, with a multicolored color, sitting on a lawn looking to the right of the photo.

exiled me to the hammock until my hosts returned to chaperone my canine interaction.

I was not suffering:

Legs and feet of photographer on hammock, sunny Maine seascape in the background.

 

** Under the ADA, buildings built after January 26, 1993 were required to be accessible.  42 U.S.C. § 12183(a).  Those built before that date and not altered since must remove barriers — by, for example, ramping entrances that are only accessible by steps — where it is “readily achievable” to do so.  42 U.S.C. § 12182(b)(2)(A)(iv).

*** I might have used a different word if not for the cross-posting, but I’m trying to keep it clean on CREECblog.