Tag Archives: discrimination

Alabama WTF?

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First Alabama passed a law requiring a driver’s license or similar state-issued ID to vote.  Then they closed all but four DMVs in the state, and all of the DMVs in majority African-American counties.  Sounds bad.  It’s worse than that.

The whole process disproportionately disenfranchises African-Americans, rural voters of all races (who are generally more distant from DMVs), poor people of all races (who may not have the means to take time off work and travel across the state), and people with disabilities (who also may not have the ability to travel long distances, in public or borrowed transportation, to get a license).  It’s racist and it ultimately limits the franchise to middle-class urban and suburban non-disabled folks of any race.

But wait! There’s more!

[T]he agency says by next March there may only be four driver’s license offices open in the state.

“Well unfortunately what citizens you know could expect is longer lines, or often times scheduling way in advance to get an opportunity, and probably the worst is some have to travel a significant distance to be able to get that driver’s license serviced,” Spencer Collier, Alabama Law Enforcement Agency Secretary said.

The focus has naturally been on the effect this has on voting, without stopping to think about the effect this has on DRIVING.  That’s right, that privilege the state grants you to get behind the wheel of a vehicle and do things like drive to your job, drive the equipment you might need to be able to drive to DO your job, drive to hospitals and doctors’ offices, drive to the grocery store, and of course drive down the highway with the radio up and the windows down trying to forget that YOU LIVE IN THE MOST BACKWARD STATE IN THE NATION.

The economic impact of the inability to drive is huge, and will now fall disproportionately on African-Americans, and people of any race who are disabled and/or poor and/or live in rural areas.

Not just Mississippi Goddam, but Alabama WTF?

Source: Alabama DMV closings draw call for federal voting rights probe | MSNBC

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

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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.

New Rule: Remedial Scotch

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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.]

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

*  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.

This is why I never read comments on news stories

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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.

 

No, I’m not “with the wheelchair.”

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I’m “with the passenger in a wheelchair” or perhaps “with the passenger who uses a wheelchair,” or most accurately, “with the hot guy using a wheelchair.”

But I guess this makes the distinction clear:

IMG_1004

 

If you are a “wheel chair” or a stroller, you are not a “passenger.”  You are your equipment.

And airline people, you don’t have “two wheelchairs on the plane.”  As a matter of empirical fact, you have zero wheelchairs on the plane.  You have two people who use wheelchairs who are waiting patiently on your plane for the doofuses (doofi?) in your ramp crew to figure out how to get their wheelchairs to the jetway.

I realize there are other circumstances in which an object associated with a person comes to stand for the person.  “Suits” comes to mind, to mean the dweebs in the organization who are imposing rules on the real people who want to create/get things done/think outside the box.  It’s not a compliment.  “Brass” for officers, perhaps.  “Uniforms” to distinguish beat cops from higher ranking detectives.  I would put “wheelchair” as a substitute for the person in a very different category, though, largely because I only hear it from people in a position to treat the people themselves as objects.

I don’t take a position on the people-first language discussion, that is, whether it is better to say “disabled person” or “person with a disability.”  Both seem better than “the disabled,” but as my disabled friend/friend with a disability Laura Hershey would say, English puts its adjectives before its nouns, so “disabled person” puts the focus on the person, it just does so grammatically.

But once you’ve taken the person out of the equation completely and substituted the thing, you’ve left the realm of grammar and made a decision to depersonalize.

The funny thing is, I always respond — when I hear this — “no I’m not with the wheelchair, I’m with the guy in the wheelchair”  or to the airline peeps, “actually, you don’t have two wheelchairs on board, you have two people who use wheelchairs.”  But no one even gets the difference.

Sigh.

Prior litigation: admissible; evidence of life with a disability: inadmissible.

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[Cross posted at FoxRobBlog, which is involved in some sort of DNS attack.  Whatever that is.]

In Yates v. Sweet Potato Enterprises, Inc., 2013 WL 3662645 (N.D. Cal. July 12, 2013), the plaintiff — a guy who uses a wheelchair — alleges that he encountered barriers at a Popeyes restaurant.  In the order, the judge addresses questions from both the plaintiff and the defendant about what evidence can be used at trial.  In so doing, she does two things that are stunning individually, but that — taken together — turn the plaintiff into the defendant, defending his right to equal access to the businesses that non-disabled people patronize everyday without a second thought.

First, the court grants the defendant’s motion to exclude “sympathy-inducing evidence regarding Plaintiff’s disability” that is not directly relevant to his experience at Popeyes, including “testimony regarding his day-to-day hardships.” The court just doesn’t see how that’s relevant.

Second, the court denies the plaintiff’s motion to exclude evidence that he has filed a large number of other access lawsuits.

Pause.

If people who use wheelchairs filed a lawsuit challenging every illegal barrier they encountered each day, most would file — I’m guessing — five to ten lawsuits each day.  Instead, most people go about their days, swearing at the illegal and thoughtless barriers, but without the time or resources to file those tens and eventually hundreds of lawsuits.  A brave and energetic few take the time to bring the lawsuits that remain necessary — twenty years after the effective date of the ADA’s architectural provisions and thirty years after California’s — to achieve a modicum of compliance.  For their trouble, these people are dubbed — in the press and in court — “serial litigators.”

The Ninth Circuit — the court with appellate authority over the Yates court — has recognized the role of these brave and energetic people in enforcing the law:

Courts must tread carefully before construing a Disability Act plaintiff’s history of litigation against him. As we have noted more than once, “[f]or the [Disabilities Act] to yield its promise of equal access for the disabled, it may indeed be necessary and desirable for committed individuals to bring serial litigation advancing the time when public accommodations will be compliant with the [Disabilities Act].” We must therefore be “particularly cautious” regarding “credibility determinations that rely on a plaintiff’s past [Disabilities Act] litigation.”

Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1165, 1175 (9th Cir. 2010) (internal cites omitted; emphasis — though not nearly enough — added).   One of the cites I pulled out to make that quote more readable was Sam Bagenstos’s excellent article The Perversity of Limited Civil Rights Remedies: The Case of “Abusive” ADA Litigation, 54 UCLA L.Rev. 1 (2006).

So despite the fact that the Ninth Circuit has instructed courts to be particularly cautious about credibility determinations relying on past litigation, the Yates judge — without citing Antoninetti — holds that

Plaintiff’s  filing  of  well  over  a  hundred  disability  lawsuits  in  which  he  alleges  identical injuries bears directly upon his credibility.  . . . Plaintiff’s  alleged  scheme  to  generate  income  through  the  serial  filing  of  lawsuits  in  an  effort  to  extract  settlements  from businesses, may, in fact, be probative of his credibility.

More than simply disregarding controlling precedent, this decision has the very immediate and apparently intended effect of converting Mr. Yates from a real, live person who navigates his day to day world  in a wheelchair to a greedy serial litigant, judged on the fact that he has filed other complaints, the legitimacy of which he will likely not be able to prove before the jury.  (This question is not addressed in the decision, but my strong guess is that the defendant will be allowed to show the fact of hundreds of lawsuits, while the plaintiff will not be permitted to show that, in each one, the facility in question was indeed out of compliance.  That would, in essence, require hundreds of mini-trials within this single trial.)

On another level — about which I’ll write more later, as I have to get back to the other outrages on my desk — this is part of the broader scheme on the part of the business world to spin the fact that — 20-30 years after the federal and state standards took effect — there is still massive noncompliance.  When you’re really really wrong, accuse the other guy of “serial litigation” to correct your many many failures.

More coverage of our Hollister case

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Hey, you guys!  Check it out!  We made Jezebel!  OMG OMG!

Surprise, Surprise: Hollister Discriminates Against the Disabled

A federal judge has ruled that Hollister is in violation of the Americans with Disabilities Act. Hollister’s stores are supposed to resemble Southern California surf shacks. Most Hollister stores in the U.S. feature entrances that are built to look like front porches. Front porches with stairs. And that’s where the problem lies.

And UK’s Daily Mail, in a section with the unfortunate name “Femail,” as well as Salon, and The Gloss:

Hollister Spent Four Years Refusing To Accommodate People With Disabilities Because Of Course They Did

If you’ve ever been near a Hollister store, you know that it reeks of mildewy cologne spilt in a hot bathroom. But you also may know that its storefront is inaccessible to those with disabilities, as they are made to look like porches to “surf shacks,” stairs included (as you can see above). After a four-year class-action lawsuit against the company for discrimination, a judge has ruled that Hollister’s stores violate the Americans With Disabilities Act.

Here is a link to the original story in the Colorado Independent.  Thanks to Susan Greene for the excellent coverage!
Updated to add Qusair Mohamedbhai’s blog post, providing some excellent context for the case.
Update 2:  It’s been picked up by something called Madame Noire.  (h/t Sam Bagenstos (@sbagen)).
[Cross-posted at FoxRobBlog.]

Lactation: I don’t think that word means what you think it means.

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Though what this judge thought it meant is beyond me.  The awesome Barry Roseman posts a quote of the day for a bunch of us civil rights lawyer types.  Here was today’s:

The commission says that the company fired [Donnica Venters] because she wanted to pump breast-milk.  Discrimination because of pregnancy, childbirth, or a related medical discrimination is unlawful.  Related conditions can include cramping, dizziness, and nausea while pregnant.

Even if the company’s claim that she was fired for abandonment is meant to hide the real reason — she was wanted to pump breast-milk — lactation is not pregnancy, childbirth, or a related medical condition.   She gave birth on December 11, 2009.  After that day, she was no longer pregnant and her pregnancy-related conditions ended.

Firing someone because of lactation or breast-pumping is not sex discrimination.*

Hold on.  You may have missed the last line, so I’ll re-WordPress-special-quote-function it:

Firing someone because of lactation or breast-pumping is not sex discrimination.

Makes total sense:  none of the men were permitted to lactate or pump breast milk at work either.  QED!

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

* EEOC v. Housing Funding II, Ltd., 11-cv-02442 (S.D. Tex. Feb. 2, 2012), slip op. at 2.

File under “o” for occasionally we make some progress

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One of the (many many) things I love about legal research is that you can get swept up in the interesting stories that cases tell, many of them totally irrelevant to the point you’re researching.   This is also a happy by-product of ADD.   I think of it as the legal research scenic route, and have no fear, I don’t bill for it.

Today’s scenic route was not so scenic, but was instead a startling history lesson.  I’ll let it speak for itself:

The Court notes that until 1950, the National Association of Real Estate Boards (NAREB) counseled its members to maintain segregated neighborhoods in the interest of maintaining property values. The Code of Ethics of the NAREB provided until then that:  ‘A REALTOR SHOULD NEVER BE INSTRUMENTAL IN INTRODUCING INTO A NEIGHBORHOOD A CHARACTER OF PROPERTY OR OCCUPANCY, MEMBERS OF ANY RACE OR NATIONALITY, OR ANY INDIVIDUALS WHOSE PRESENCE WILL CLEARLY BE DETRIMENTAL TO PROPERTY VALUES IN THAT NEIGHBORHOOD.’

Zuch v. Hussey, 394 F. Supp. 1028, 1054 n.12 (E.D. Mich. 1975).

So, yeah, we’ve made some progress.

Gratuitous political comment:  and this is what Ron Paul would take us back to.