Good afternoon. It is the top of the hour and time to get started with our ADA Legal Webinar series. My name is Peter Berg and I am the Project Coordinator of Technical Assistance and Employer Outreach with the DBTAC-Great Lakes ADA center. The ADA Legal Webinar series is a project of the Great Lakes ADA Center, also known as a Disability Business Technical Assistance Center. The Great Lakes Center is funded by the U.S. Department of Education, National Institute on Disability and Rehabilitation Research. The ADA Legal Webinar series up until this time has always focused on employment issues but we felt that it was important to also look at other areas of the ADA and looking at case law. Today we will be looking at Title III case law, there are many, many interesting and intricate areas of Title III from physical accessibility issues to effective communication, policies, practices and procedures. So for businesses out there, the ADA not only applies to your employees but it also applies to your business practices, to the goods and services that you make available to the public, as well as the physical accessibility into your businesses. As always, we will be joined today by Barry Taylor, Barry is the Legal Advocacy Director for Equip for Equality, which is the state of Illinois''s Protections and Advocacy agency. Barry supervises the legal services, as well as the self-advocacy and training programs at Equip for Equality. Also joining us again this afternoon will be Alan Goldstein, he is a Senior Attorney with Equip for Equality and Alan is also the Manager of the Illinois ADA Project which is funded by the Great Lakes ADA Center. So at this point, I will turn it over to Barry to begin today''s presentation. Go ahead, Barry.
Thanks, Peter. It is great to be with everyone again. We are really excited to talk to you about Title III today and how it could impact the work that you are doing and we will be covering a lot of topics today, you will see there on the slide the outline we have got a number of things and I am going to cover the first five things that are listed here, Title III overview, pre-litigation notice, standing to sue, readily achievable barrier removal and web access. We will take a short break, see if there are any questions and then Alan will resume with the remaining issues here, communication access, movie theater access, emergency preparedness, service animals, postsecondary education and licensing accommodations, and enforcements, and refer to resources and open it up for questions again. Those of you participating in the past know that you can press the control key once we open it up for questions and speak to us or you can also type in the box if you have a question as you are going through and you want to - we will look at that and then either try to answer it contemporaneously or during the question and answer period. With respect to Title III there isn''t as much litigation as there is under Title I and I think one of the reasons might be that many of these cases settled. Or become mooted out once an entity is sued they provide the accommodation or modification or remove the barrier or do whatever is necessary to comply with Title III and then the case is over and then you don''t have many reported decisions. So we don''t have nearly as many as we do in the employment context because of that. But still, some significant cases have arisen that we want to talk about today. And as Peter indicated that a lot of Title I entities also have Title III responsibilities, businesses, private universities to comply, would fall within Title III. And also it is important to note there may be overlap, so some of the issues we talk about today may not only be issues under your Title III obligations but also potentially under Title I obligations. I think a good example of that is emergency preparedness. If you have a responsibility to your employees under Title I to ensure that you have an emergency evacuation plan for your employees with disabilities, that may be a plan that also is consistent with customers with disabilities who might be frequenting your business. So there could be some overlap in the issues that we are talking about today. And I also just wanted to mention that really today is not an in-depth discussion of one particular issue like we usually do on these webinars. But what we really wanted to do is highlight some of the areas where we are seeing litigation, some of the hot topics, so to speak, and give you a flavor of what the courts are saying here and what this may do is may introduce us to some topics that may have more interest in having an in-depth webinar in future sessions so maybe on post secondary education accommodations that may be something people are really interested in and we have a session dedicated to that in the future. But today we will be giving you an overview of what those issues mean. So what you have in front of you right now, this gives you basic understanding of the Title III statute and regulations. And one thing sometimes people misunderstand is, remember under Title I, you have to have 15 employees and sometimes people think that applies to Title III as well, that a business has to have 15 employees in order to have its responsibilities under Title III. And that is not the case. I think people are used to hearing, oh, mom-and-pop shops aren''t covered under the ADA and that is right under Title I, when they don''t have 15 employees, but very small businesses ever covered under Title III. There is no employee requirement, so important to keep in mind. And just, I know most of you know this, but for those of you really focus exclusively on Title I issues, like for HR issues, remember that public accommodations are meaning private businesses that are open to the public. And that is what we are really talking about today. As you see in front of you on the bullet points, discrimination talks about the full and equal enjoyment of goods, services, facilities, privileges, services or accommodations so it really covers all ranges of what a business would provide. It prohibits screening people out, having eligibility criteria so a common example there might be like a video rental place that requires you to get a membership card you have to show a driver''s license and while that is facially neutral ask doesn''t discriminate on its face, that might be deemed discriminatory against people with disabilities who aren''t as likely to have driver''s licenses because of disability issues. Title III also talks about how it is important for businesses to make reasonable modifications but that you don''t have to make those if it would result in an alteration, a fundamental alteration of the business. Also when communication issues are at issue, than there are requirements to provide auxiliary aids and services and Alan will be talking about that in detail. And then, also reminding that prohibitive discrimination really includes, again the whole range of things, not just denying people to participate, but maybe not providing the same benefits or separate benefits and not equal benefits to people. Another thing to note is the Title III regulations are being revised. They were put out for public comment in 2008 and a lot of us submitted responses to those, some people thought were very positive changes and other people thought there were things that needed to be clarified or changed. And then with the change in administration there was a decision to not issue those regulations and to take more time as we had the change from the Bush administration to the Obama administration. So we dont have these new regulations yet, and there has been some talk they will be coming out later this year but those will be particularly important because remember in Title III you have less litigation, less precedent, less case law and so the regulations may be deemed to be really much more important because there is such a lack of case law at least in certain areas. Next slide, please. Just a couple of other provisions under Title III, that discrimination is prohibited not only when it is done directly, but contractually, this usually goes to issues with respect to landlord and tenant and then both having responsibilities. Maybe there is an owner of the building who leases it to a business, certain office to a business or certain store to a business, under the ADA both are contractual or both are liable under the Title III even if they contract between themselves that one would be responsible. And we will talk about that in a little bit in a second. Also remembering that Title III talks about that all the goods and services should be provided in a integrated setting, so segregating people with disabilities even though you provide them access could be deemed a violation of Title III and personal services and devices aren''t required just like under Title I and also the direct threat and safety provisions of Title I also apply in Title III as well. So, if a person is a direct threat in the business then they are not necessarily required to be admitted to the business or the store but you have to take into account individualized assessments like in Title I and also take into account whether reasonable accommodation would reduce that threat or safety risk. But let''s move on to the next issues which is pre-litigation notice. Next slide, please. The general rule is that under Title III you don''t have to provide notice before filing suit and there has been challenges as to whether that is the case or not and you will see the Molski case cited here that says you don''t have to provide litigation notice before you file suit under Title III and unlike Title I of the ADA, Title III does not require you to file with an administrative agency before going to court. So you don''t have to file with, like in Title I you have to file with the EEOC. Title III doesnt have a similar requirement, you can go straight into court, no notice, no administrative remedy requirement. However, if you are able to file with the Department of Justice or the relevant federal agencies so if it is an education case, you can file with the Department of Education that type of thing and they will do an investigation but just want to remind people that even if you decide to file with one of those administrative agencies and you are not required but sometimes those investigations can be very effective, the time you have to file in Federal Court doesn''t -- isn''t tolled or doesn''t stop. It still keeps running so if you were discriminated against and you under the law you have two years for file in Federal Court and you decide first to file with the federal agency like the Department of Justice and let them take the investigation, that clock is still ticking. So even if their investigation takes over two years, and they ultimately decide they don''t find a violation and you want to sue in Federal Court you may lose your rights. So important to know the time to file in Federal Court doesn''t stop even if you file with an administrative agency. Nest slide please. Even though there isnt a requirement that you give notice to the public accommodation before filing suit there is an effort to change that and that is the ADA Notification Act of 2009. And this is a bill that is currently pending in Congress and it would change this notice requirement and it is very similar if this sound familiar these types of bills have been introduced in the past. This most recent one was in 2009 but there have been several incarnations of this bill introduced over the years. And basically it requires a plaintiff to give the public accommodation notice before filing suit. The notice would have to be in writing. And then once the notice is given, the public accommodation would have 90 days to correct any violations before a suit could be filed and the court actually has discretion under the statute to extend it an additional 30 days for good cause. So potentially up to 120 days an entity would have to fix the accessibility violation before the person could file in suit file in court. And the business community, not surprisingly a lot of folks within that community think this is a good idea. And they think that this gives them an opportunity to address access without going through the costs and time and hassle of litigation and it undercuts plaintiffs who are potentially abusing the ADA. There are a lot of -- there are some folks who have filed suits under the ADA with an effort to not necessarily change the accessibility or remedy accessibility problems but to obtain attorney''s fees that are available in Title III or get a quick settlement. They so they said this will eliminate those folks because we will know ahead of time if there is a problem and give us a chance to fix that. But there is an argument on the other side. People within the disability community feel that notice really shouldn''t be required. The ADA has been in place for nearly 20 years so why do businesses need an additional 90 days to fix something that has been on the books for almost two decades? They also point to the fact that no other civil rights group has to give notice when there are violations like these so if a place had a sign that said no African-Americans, you wouldnt have to give notice to change that and give them to change the policy or change the practice. Businesses sometimes say that is not a really a good comparison because often times we are talking about physical barriers and changes that are necessary under the ADA and those take time. But in any event people feel like why should disability be treated differently than other groups? Also, under Title III you may recall there are no monetary damages and so the disability community says well since there are no monetary damages already, if you have a notice requirement this would take away really any incentive that a business would have to comply with the ADA and instead they could just wait until they get the notice and then comply. But if there is not a notice requirement then businesses know they need to get moving on making their business accessible and compliant with Title III, otherwise, they might face attorneys'' fees once the person does file. And, it is unclear at this point whether or not the statute is likely to pass. It hasn''t passed in the past and we have a less conservative Congress these days so there arent I think a lot of support at this point within the current Congress at least not that I have seen but still it is a pending statute. The other thing that people have said is, well some people have thought this notice issue should have been part of the ADA Amendments Act that was passed last year that addressed the changes or the refinement of the definition of disability. But ultimately that wasn''t included and there is some thinking if they go and amend the ADA in the future this may be something that tries to get implemented along with maybe in exchange money damages are allowed. So that may be something as we see possible future amendments to the ADA that this is added through a negotiation with the business community and the disability community much like we saw last year in the ADA Amendments Act. The other thing I just wanted to mention is that courts are restricting vexatious plaintiffs from filing too many Title III suits, people who are abusing Title III and some point to the fact now courts are limiting certain plaintiffs from filing suits who have abused the ADA as a way to address the concern that some people arent using the ADA the way it was intended and that is a better way to address those problems as opposed to requiring notice by everyone who wants to file a suit under Title III. Okay next slide, please. So now we are going to move to another issue, now that we have gotten the notice issue out and that is whether the person has standing to sue. And if you are not familiar with the term "Standing," you can''t just go into court and sue if you think there is something wrong out there. You have to establish what is called standing or at least show you have a legal basis to file suit. And you will see here on the slide bullet points that talk about the general requirements in any kind of lawsuit that are needed in order to sue, to show you have a legal basis or standing. The first one being the plaintiff has to have an injury and it has to be personalized to themselves and be a concrete injury, of some sort of legal interest. So, it has to relate to some sort of legal basis, whether if be a statue or something from a common law. And that the injury you receive has to be traced to the defendant''s conduct, the person you are suing. So in law school they talk about proximate cause, you have to show some sort of link between conduct and the injury, the conduct of the defendant and the injury. And then the last thing generally is you have to show that it is likely, its not just speculation but likely that the injury could be resolved through some sort of favorable court decision. Under Title III the standing requirements specifically, a Title III plaintiff, a person with a disability has to show that they have suffered some harm by a lack of ADA compliance. So the injury we talk about has to go to ADA compliance and then they have to show those accessibility issues or compliance issues relate to the person''s disability, their specific disability. So let''s say there is a business that has a physical barriers to get in, well, a person who is deaf who doesnt have mobility impairments, while they are a person with disability they wouldn''t have standing to sue because there is no relationship between their disability and the accessibility barrier, it would have to be brought by someone who has that same disability that relates to the accessibility barrier. And this is an interesting issue that has arisen in some class action litigation under Title III that we will talk a little bit about in a second. But real quickly, sometimes people bring class action lawsuits against businesses across the country, so class action lawsuits against 7/Eleven have been brought in the past and against Goodyear Tire company and things like that and when those have been settled sometimes they are often brought by people with particular disabilities, like mobility impairments but when those class actions settle, they wave the ability to bring future suits and often times the only remedy that is provided is for people with that particular disability so maybe they address some issues regarding people with mobility impairments but they don''t address maybe other barriers that exist for people who are blind or people who are deaf. But when the settlement itself says that no person with a disability can sue no matter what, people are concerned about those kind of settlements because the injury that was brought in originally doesn''t relate to anyone else''s disability and you are waiving a lot of other people''s claims. And so that is why this whole relationship between the disability and accessibility issues is important, not only in individual cases but for class action cases as well. Then the third standing requirement is you have to show the likelihood of future harm, and we will talk about that in a second. That is a big component in the disability litigation under Title III. And then finally, I have referred to this a little bit before, we will talk a little bit more the plaintiff is not a vexatious or frivolous litigant, meaning that they are bringing litigation for financial gain as opposed to changes in accessibility. Next slide, please. Slide 12, Alan. Thanks. So one of the components I talked about that is where a lot of litigation arises is this allegations of future harm, to show that it is going to be a problem in the future. The reason this is important for Title III litigation is as I mentioned before Title III doesn''t require you to, doesnt allow you to recover damages, so all you get are what is called injunctive relief for changes like removal of barriers and if what you have to show is that you are likely to go back to the place in the future, that you are going to have future harm if this remedy isnt resolved and that you need them to remove that so when you go to that place in the future you won''t be harmed. And so this allegation of future harm becomes a real important component in Title III litigation. And the courts have divided this into four factors. One is they look well how likely is it that the person is going to have future harm? And they look and see if is the business is close to the person''s home. So a lot of times you have litigation brought by people who are traveling across the country and they maybe find an inaccessible hotel or an inaccessible gas station or something like that. And if it is unlikely for them to revisit that inaccessible place in the future, because it is far from their home that will be a factor the court considers as to whether they can bring suit to address that accessibility barrier. Also looking at past patronage have they gone to this place a lot in the past or was it just this one time that they were going to go there? How definite is it that the person is going to come back? Is it sort of this vague oh yes maybe some day I will go back to that hotel or is it very clear, I go to this hotel every month as part of my business travel. And then also the frequency of travel near the business. Is it likely to occur because the person is going to be near this place often? And there is a case cited there, the Ault case from Walt Disney World that addresses this issue. And this was a case involving Disney World in Florida prohibiting use of segways, and those are those vehicles you see often times that police using where you are standing up on the two wheels and you kind of move thru, they are mobility devices and it has turned out in addition to people like police using these, security officials, this can be a really great mobility device for some people with certain disabilities and so Disney was prohibiting use of segways in the park and some folks filed suit. And Disney said, well before we get to whether we discriminated we don''t think these folks have standing, we don''t think they can prove this future harm that they are going to have. And in fact, the initial court decision dismissed the case and said yeah these people don''t have standing. There were three different people who brought suit and one didn''t allege at all that they were going to go back to Disney World, another said that they were going to go back but weren''t specific when they would go back and then the third person said they were going to go back but the date they said they were going to back passed and they didn''t go back and so ultimately the court said sorry you guys didn''t show standing, you can''t bring your case. After it was dismissed though they then filed an amended complaint, the court allowed them to re-file and they included specific allegations of future harm and so the court ultimately let the case go forward. Interestingly the case then settled and there is this whole issue of whether this settlement is fair or not to the whole class because they filed it as a class action. They had agreed to a monetary settlement and then they also agreed Disney could instead of using segways, they could use these four-wheeled vehicles that you could rent. And, while plaintiffs named plaintiffs who brought the suit thought that was a good idea, that a lot of other people across the country who think that is not a good idea and that is really not fair settlement. So there was a hearing earlier this month on whether or not it was fair and my understanding is that is still pending as to whether or not that class action is going to get resolved. But that is another example of other people raising the fact that they are not included in benefitting from these class action settlements. Another case that I think is interesting that is on here is the Chambers case at the bottom of the slide. And this is a very common scenario where a person is claiming they were discriminated against in the healthcare setting. And Alan is going to talk about this with respect to communication but there can be a variety of ways people with disabilities are discriminated against in healthcare. And what happens in these cases is that the person brings suit but they have a hard time proving the future harm. Often times people when they are discriminating against in the healthcare setting will then find another doctor to address the problem and then they don''t need that first doctor who is discriminated against them. They don''t need that doctor service again because they have resolved the medical problem or perhaps they do need some service in the future medical services that doctor could provide but they don''t really dont want to go back to that doctor because that doctor had discriminated against them and you want to have a collegiate relationship with your doctor ask if you have had this adversarial relationship its unlikely that necessarily that you would want to go back to that doctor. So a lot of times these health care cases become really hard for plaintiffs to prove for standing purposes because they have a hard time showing that they are going to have future harm because they have decided to go elsewhere. And in this Chambers case even more factors got involved. The plaintiff had actually moved away from the clinic, so it was even less likely they would go back and on top of that the doctor stopped providing the services that the plaintiff was looking for, in this case insemination services so it became -- they ultimately found the plaintiff did not have standing because they could not prove this future harm. But then if you look on the next slide, there is some cases that interpret things differently. For instance the Access 4 All case at the top of this slide talks about the issue of engaging in a futile gesture and courts say you know if it would be a futile gesture for you to allege future harm that you are going to go back to this place, you don''t have to do that. So for this one, it involved a hotel that where there were barriers for a people with mobility impairment and they said, you know, they are not going to go back to the hotel because they are not going to be able to get in again because there is all these architectural barriers, and so for them to say in their lawsuit that they are going to go back to the place isnt really required because it would be a futile gesture to go back. Instead what they said is rather than showing that, like some of these suits have said you have to show you are making reservations and travel plans they said instead of doing that really what you need to allege you have a desire to return. That is what you want to say, if they addressed the accessibility problems I will return at that date as opposed to saying I am planning to go back to that hotel in three months and not really going back to that hotel because the accessibility barriers will still exist. So if you can show it would be an exercise in futility that could be enough to get past the standing problem. The Castaneda case is another interesting case involving class actions. This was a gentleman who used a wheelchair and found accessibility problems in Burger Kings and apparently these were accessibility problems that were part of Burger King''s design in over 90 stores and Burger King said well wait a second you have only been to two of these stores and you haven''t alleged in your complaint that you are going to go to all 90 of these stores. You don''t have standing to sue. And the court said well that may be the case when you are talking about an individual but in a class action, the individual named plaintiff doesn''t have to show that they are going to go to all 90. Instead they would have to show they are going to a reasonable amount like the two he alleged and that was sufficient. The Van Brocklen is showing how this can arise in a different context in the insurance industry. This is one where the insurance industry had, the insurance company had canceled the person''s policy after they learned of the person''s mental illness. And what they said was the future harm was not that they would go back and not be able to get another insurance policy, instead it was more the ability for them to get medical care because they don''t have insurance. And that was the future harm they would have. So they didn''t have to show that they would go back to the insurance company and try again to get a policy but instead could say without insurance they are going to have a hard time getting medical care and that was enough for the future harm issue that needed to be shown there. Okay, lets go to the next slide. I mentioned another component of the standing concern is the inquiry about vexatious litigation and as we talked about before some people have filed numerous ADA suits not to address accessibility but to get the attorney''s fees that can arise from such a thing and or some kind of quick financial settlement. And this really gives the ADA a bad name and bad reputation and resulted in a lot of backlash against people with disabilities and resulted in the ADA Notification Act and that type of thing. And some people even referred to these situations as drive-by lawsuits and I know Alan and I arent really fond of that term because you know it really is equating, you know, murder with people who are filing lawsuits to address accessibility and even though some people again are abusing the ADA and filing for the wrong reasons, I think this overall umbrella of drive-by lawsuits by people who file Title III litigation is really sort of an extreme term that really is offensive to a lot of folks within the disability community. But in determining whether somebody has been vexatious and should be limited in their filing of litigation the court shall look at things like how many lawsuits they filed in the past, how frequently they have settled the suit by trading accessibility compliance for cash, the merits of the claim, was it sort of non-meritorious case but the person, the business settled quickly so they wouldnt have to incur a lot of legal fees and did the plaintiff actually really want to return to the establishment, to the business? That is another factor for the courts look at. And then if you look at the next slide, courts have addressed this. Alan, thanks. The Molski is somebody who had filed over 400 lawsuits and was found to really have been bringing a lot of sort of contrived lawsuits to get financial gain through quick settlements and not through accessibility changes and the court found that was the person''s motivation and so they said, you know what, we are going to deny you standing to not only in this particular case where we feel that you are vexatious but we are going to deny you the ability to file future lawsuits unless you get permission from the court and it was not only permission of this particular plaintiff but it was also that person''s attorney who apparently had been the attorney in a number of these lawsuits. And so the court said that is how we are going to address the problem of a vexatiousness, is you are going to have to get permission to file suit from us before so and we will look at the case and make sure it really is meritorious. This is a pretty extreme difference in how you would handle a case but I think the alleged conduct here of Mr. Molski led the court to do a pretty extraordinary thing and address these sort of extreme ways of doing this. There is a case in your brief that you will be getting but I didnt mention it at the outset I dont think, but in addition to the power point, you will be getting a brief that has a lot of details in it about the cases and a lot more citations but there is a case that is in the brief that also denied a person attorney''s fees once they filed suit because they had this history of bringing suits against hotels and then not returning once the changes had made even though she said she would return. And so some people will, Courts will allow you to bring the case but then not necessarily allow you to get the recovery you are entitled to even if you are successful because of sort of the vexatiousness that has been found. You will also see the Harris case which addresses the issues of people who are doing testing so instead of addressing maybe than their own individual issues they are going out and filing suit after looking for problems in accessibility. This case involved a person who filed 20 previous suits, this was a case involving an inaccessible gas station and they said this person didn''t really have any personal stake they weren''t going to go back to this gas station, they didn''t live anywhere near there and so they found they didnt have standing. But then you have the Park versus Ralph''s Grocery Store, at the bottom there, who said really the motive for returning is irrelevant, and if they filed a lot of suits in the past that is not necessarily, you would really look at the intent to return. Are they planning to return or not but don''t look at the motivation and really delve deeply but if they allege they have an intent to return that should be enough to move forward. Lets move to the next issue which is readily achievable barrier removal, which is something I have referred to already. This is the standard for existing buildings and removing barriers that exist and existing facilities. And as you see here on this slide, there are regulations that lay out what exactly that is. And basically readily achievable means that it is accomplished easily without difficulty or expense. And there is some factors listed here that, that such as the cost of removing the barrier, the overall financial resources of the particular business or any parent corporation, what type of business it is, how that would affect the business to remove the barrier, that type of thing. So let''s move to a case on the next page. What is interesting is I think a lot of people thought that when the ADA was passed this readily achievable barrier removal would be something we would see a ton of litigation on because it is such a key component because there is so many existing facilities that are inaccessible in our country and we thought well there will be a lot of litigation and they are be a lot trying litigation in trying to figure out what the heck readily achievable barrier removal means. We have seen a lot of litigation on what disability means under the ADA and what other terms mean but we just have not seen that as much for this particular term and again I think part of the reason is because of a lot of settlements that have occurred once people do remove the barriers. So we don''t have courts interpreting it, but interestingly one of the only Title III cases the Supreme Court has ever taken is looks at readily achievable barriers. And it is kind of a wacky case in that it involving foreign-flagged cruise lines, the Spector case, and there were a variety of barriers and problems that people were facing on this particular cruise line, that people with disabilities were facing and some involved readily achievable barrier removal. And what happened in this case was they said, the defendant here, Norwegian Cruise Line, said we really can''t remove these barriers because it would result in structural changes to our ship and it would result in a couple things, one is, it would result in our ship being a different structure and therefore violating certain international rules and laws, and also it could really impact the safety of other passengers and passengers with disabilities themselves if we removed certain things like certain raised things and doorways that are apparently helpful on ships but present accessibility problems. And so what came up before the court was how does readily achievable barrier removal play in this context. And the court said, you know, if it -- the ADAs not going to apply when you are talking about the internal operations of these foreign-flagged ships and when they were looking at readily achievable barrier removal I think probably the most important thing that comes out of this case that we can apply to non-cruise line cases is they said when looking at the definition, the regulations talk about difficulty or expense, shouldn''t be a significant difficulty or expense. And the court said you know there is not a lot of expense here compared to the costs but there is extreme difficulty in that it would really affect the ability of the ship to comply with their international obligations as well as safety concerns and so I think what we learned from this case more than anything is that when we are talking about readily achievable barrier removal, you look at not only potential costs, the expense, but also the difficulty that it might place on the particular business. And that those two things potentially can be analyzed separately, so something to remember there. The other thing I just want to mention is that there were other violations there that really didn''t go to readily achievable barrier removal that were deemed violations of the ADA so this court said that when it -- the limits they were placing really went to the barrier removal issues. Lets move to the next slide Allen. Great thanks. Ive mentioned this before so Ill go quickly and that is the -- both the tenant and the landlord or owner of the building have responsibilities under the ADA and a lot of times there are leases and contracts that say one has responsibility for to address accessibility issues but as far as liability under the ADA both would be liable. Now, there could be an indemnification provision within the lease or contract that says if I am found liable you will indemnify me because youve agreed to remove the barriers but as far as whether youre the defendant or not, the lease or the contract really is irrelevant for that purpose. That''s only relevant when it comes to repayment or indemnification and you''ll see a couple of cases at the bottom that help eliminate that. Theyre outlined further in the brief. But let''s keep moving. The next issue, next slide Alan. This is to know that historic buildings often times will come up within readily achievable barrier removal issues and basically the ADA states that you are required for historical facilities and buildings to make them compliant to the ADA, to the maximum extent feasible but you are not required - it is not a readily achievable barrier to be removed if it would threaten or destroy the historic significance of the building and the technical assistance, just guidelines for the ADA talk about what that means exactly. So if that issue comes up, you can refer to that. But there is a case here, the Molski case, where they found that it really wasn''t going to destroy the significance of the building by making it accessible. They said okay this wine facility you can just people with disabilities just go to this gazebo as opposed to inside the building and they had said this was a historic building and the court ultimately said it wasn''t and that wasn''t an excuse not to remove the barrier of the invalid ramp that was currently there. So, the general rule is that barrier removal will be not readily achievable if it would destroy historical significance but you want to try to provide that accessibility to the maximum extent feasible. And that is what they found in the Molski case. Okay and then the last topic we will look at before we take a quick break is website access. And as people know, with respect to website, we really didn''t see or really know much about websites in 1990 when the ADA was passed. The internet wasnt really an integral element of society like it is now. But many people with disabilities aren''t able to access certain information on websites because of the barriers that exist and mostly we are talking about people who are blind and visual impairments have difficulty with certain websites but it can come up with other context too, say a website has video but its not captioned that would be deemed inaccessible to people who are deaf. The main issue that comes up with in websites, on the next slide please, is issue of whether or not it is a place of public accommodation. Remember we talked about Title III covers public accommodation and some courts have said that we need a physical place because the ADA talks about, it doesn''t just say public accommodation it says place of public accommodation so some courts have said that an actual physical space is required and that a website, you know, that is not a physical space and therefore it is not covered under Title III whereas other courts have said it is not required. This originally came up in the context of insurance policy discrimination and some people saying well insurance policies aren''t a physical place of public accommodation you don''t necessarily go into an insurance office to get your insurance policy and then they are making the same argument with respect to website access. And you look on the next slide you have got an example of a court saying you do have to have a physical space. Next slide, please, Alan. Thanks. So the Southwest Airlines case they claimed that Southwest Airlines had an inaccessible website and the court said you know a website isnt a place of public accommodation, therefore, Title III isnt covered. But if you look at the next slide, the Target case, you had a different argument there. Next slide, Alan thanks. And that was a case that was brought by the National Federation of The Blind saying Target''s website was inaccessible. This was tricky as a case because 9th Circuit, which is where this case was brought in California, there was already law on the books or precedence on the books, previous case decisions, that said you had to have this actual physical place and so Target said you know what our websites not a place of public accommodation so many were concerned that case might get dismissed. But what the judge said was as long as there is a nexus between what is sold in the actual physical bricks and mortar of the buildings, as long as there is a nexus between what is sold there and what is sold on the website that has to comply with the ADA Title III. If there are things on the website that arent also in the stores themselves, that part of the website doesnt have to be accessible. So if there is information about things that are on the website that just don''t happen to be in the stores themselves those parts of the website wouldnt have to be accessible but to the extent that there is clothes and games or whatever you sell at Target, are the same thing you are selling in the physical store then the website would have to be accessible. And so the case was not dismissed despite the argument that Target made here. Subsequently though next slide, you will see that this case did settle. And so it was certified as a class action, they survived that motion to dismiss and the case did settle. And the settlement provides that websites, Targets website has to be brought into compliance under Title III and you will see the other provisions for that, for that settlement. I am going to keep moving because we are running a little short on time. Next slide. Just wanted to mention they are also a lot of settlements with are respect to website accessibility that arent necessarily reported decisions but they have been negotiated through a process called structured negotiations. There is a attorney Lainey Feingold and she works with another attorney Linda Dardarian, who basically go to a business and say you are out of compliance with the ADA but rather than suing you, I would like to enter into negotiations where we work together to fix this accessibility and you will see a couple of references to agreements that she has reached. One with Rite Aid and one with Staples and a lot of the agreements she has reached have addressed the accessibility of websites so even though there is not a lot of case law out there about websites and you have some of this concern about place of public accommodation, undercutting some of these suits there have been a lot of successful efforts to change the website accessibility through these structured negotiations. And then just the last slide here before we take our break, is that we are seeing case law developing as to whether there is a cause of action under the ADA for inaccessible websites but we think that, despite the fact case law is mixed here, it really does make good business sense for Title III entities to make their websites accessible because not only does it promote the full participation of people with disabilities in our country, it also is good business because so many people buy things over the internet these days and a lot of people with disabilities may have challenges in going to an actual physical site and so they may be using websites even more than the general public and to have it accessible would really ensure positive results on the business side. One thing to remember, too, is these Title III regulations potentially could address this. The initial regulations that we commented on didn''t talk about websites accessibility or place of public accommodation but my understanding is the Department of Justice in briefs that they have filed have said that websites are covered under Title III so hopefully the final version of those regulations will indicate that websites are part of Title III so provide clarification for people and we won''t have this split in the courts we currently have. So with that let''s take a quick break and see if there is any questions and then if not we will turn it over to Alan for talking about other hot topics. Just a reminder that if you do have questions, you just press the control key, hold it and then you can talk, or if you don''t have a microphone you can just type something in and we will answer it that way. Well Alan it looks like there arent any questions so, I will turn it over to you.
Okay, thank you Barry. And also before I get started I just wanted to, Barry and I would like to give a quick thank you. We have had many interns at EFE this summer from various law schools and many of them helped us in compiling the information for this presentation, and particularly Gwen Kaiser an intern from Kent and we just want to thank them, as this was a lot of information to pull together as you see. And we appreciated their help with this. Has a question, can you explain how people can get money from Title III? We will, we are going to cover that a little bit at the end under enforcement. Part of it is Title III entities that are also covered by the Rehabilitation Act, you can get money damages in those situations because the Rehabilitation Act allows for money damages for intentional discrimination and in settlements you can often get things you can''t get in court. Part of that leads to frivolous lawsuit problems but when settling a Title III case, an entity and can pay damages to the plaintiff. So I am going to talk through communication access and move quickly through some of the material so we can make sure we get through everything. The Department of Justice Technical Assistance Manual, which is what those initials mean at the top, leaves it up to the public accommodation to make the final decision in terms of what will ensure effective communication as long as that is the result. Although there are, the Department of Justice does recommend that the person with disability be consulted, the final decision rests with the entity providing the service as long as the communication is effective. We are going to look at doctor''s offices. And we have the Majocha case there, which was an individual who is deaf requesting an interpreter when speaking with an ear, nose and throat specialist about his infant son, the doctor''s office wanted to write notes instead of providing an interpreter. And the parent who is deaf said that is not enough I really want to be part of my child''s care, I need to interact, American Sign Language is my first language, and that is one thing that is very important to remember for people who are Deaf, American Sign Language is not English, it is a different language, different grammar, different syntax, different sentence structure, so for someone whose primary language is ASL, English written notes in English might not be very helpful. And the father and his wife who was not deaf both filed suit and she had standing because of her association for a person with a disability. When the doctor wrote a letter to the person canceling the child''s appointment saying it is obvious that we were not equipped to serve you and sent them somewhere else to care for your child we cannot meet your needs in caring for your child. And the doctor, the person sued in court and the doctor claims well the ADA regulations list note-taking as an auxiliary aid and the person with the disability said but they also list sign language interpreters. And the court said there is well there is a genuine issue of material of fact whether a note-taking could be considered an effective form of communication or whether a sign language interpreter is needed. And they look at the Department of Justice guidance which says that for situations such as major surgery, or other important health, legal, or financial situations, note-taking would not be an effective communication. The doctor said well this isnt major surgery, but I think the court made a right decision that the guidance is not saying it only has to be major surgery, that was just an example. And the guidance talks about any non-routine type of situation may need, give rise to the need for an interpreter. And just a note to for advocates out there, the doctors office in this case when they filed their brief in the case totally did not mention the fact they wrote the letter canceling the appointment and in fact claimed we never denied services and as an advocate you need to paint the facts that represent your side but you cannot ignore facts against you and the court noted that the doctor''s office, the note that canceled the appointment was conspicuously absent from the statement of facts in the brief. So in this case the court held that a sign language interpreter may well be required. We have a couple of other cases there with the New York University case. If no attempt is made to provide an auxiliary aid, that entity is going be liable for discrimination and here there were many attempts. The Constance case just below that, a hospital tried to secure an interpreter but did not, didn''t really follow up too well, so the court said there was no damages under the Rehab Act because it was more negligence than intentional. In deference to plaintiff''s rights and because the plaintiff did not really plan to return to the hospital, the standing issue Barry talked about, there was no injunctive relief in that case. One thing, too, courts have noted, for example, back to the Majocha case, the courts noted part of the problems with note-taking is that it would be frustrating, time-consuming and could result in dire circumstances but the person still said they wanted to see the doctor again because they had a history with them and that is why they did have standing in that case. In the healthcare situation we still see a lot of issues with people getting interpreters in the healthcare standing as well as other professional settings, law offices, accountants, et cetera and it seems pretty clear in most cases where you are talking about serious needs, whether its health, or financial, legal, a sign language interpreter is really the way to provide the effective communication. Notes can be okay for say in fast food settings but often when you are discussing medical care, an interpreter is the only way to provide effective communication. And you have seen the one settlement case we cite here the doctor didn''t provide an interpreter, they tried to get family members to do it and a supervisor and at certain points you get into confidentiality issues, and the person in the settlement was unaware why they were performing tests on him due to the lack of effective communication. The hospital agreed to change their policies, provide aids, provide notice and provide training in this DOJ settlement. And there is a query at the bottom with all the talk about medical liability and medical malpractice and issues of informed consent, a question we pose isn''t it really in the physician''s best interest to provide the most effective means of communication possible? Don''t you want people understanding what you are discussing with them and what medical care is going be given? One, so they get the best medical care and two, just to protect the doctor in a liability type of situation. This way they can say we informed him of the risks of the surgery, he understood, we had an interpreter there, it was all made clear. I think with note-taking a doctor would be harder to talk about informed consent in that kind of setting. And then we are going to move on to fast food restaurants, as Barry alluded to, this is a snapshot of various issues, we are not trying to combine doctor''s settings and fast food restaurants, this isn''t a "Supersize" me type of analogy, there is really no link there other than we thought there were interesting cases on both of these issues. And we are turning to the Bunjer case which involves a McDonalds and I am going to go through some facts, this is very interesting case, it is a little old but its the type of thing we still see these same fact situations all the time. An individual who was deaf was at the McDonalds drive-thru, could not use the intercom obviously and drove around through to the drive-thru window and handed a note with his order. The person at the window said I am sorry I can''t take your note here, you have to order through drive-thru or come through the restaurant and the individual refused to move his car or get out of the drive-thru line and had backed up and eventually they agreed to take his note and serve him. However, when McDonalds served him, they snickered, they did not get his order right, they did not give him the correct change, and instead of a Sprite they gave him and I quote "warm water" with a white substance. The person was upset, got out of their car, came into the restaurant to complain, a security guard there noticed the disturbance, tried to figure out what was happening and told McDonalds to refund the individuals money. The person said they didn''t want their money back, they wanted to be treated properly and they wanted McDonalds to handle the situation rightly and refused the money back and refused to leave when asked to by the security guard and was later arrested. When he came back to his restaurant after spending some time at the police department, he went to get his car and saw that the employees had also taken his car keys so he had to call a lock smith. In this case, the court looked at the part of the ADA that talks about a person shall not be otherwise treated differently which I think in this case is kind of akin to harassment situation, and found that the drive-thru restaurant did not provide effective communication, they should have taken the note and ordered that the company implement a policy and train staff on it. And there is the current Camarillo case just below that which it is someone with a visual impairment and here, too, the conduct of the people, and this one was a Burger King, the conduct of the store employees is a little surprising. She asked them read her the menu, this person was legally blind but could read large print, the restaurant didn''t have large print. But the staff would either refuse to read her the menu, would only read her parts of it, would make her wait till other people were in line and she was a frequent customer there so I think they started to get tired of assisting her and would do things like send her to the men''s room instead of the women''s room and other things like that. This case you will notice is an appellate case in the 2nd Circuit, the district court actually came down with an amazing ruling saying well the woman could eat there, so kind of no harm-no foul, she wasn''t harmed, she doesn''t have standing, she got food, She would go to Burger King, she got her whopper. But then on appeal the court said no she did not have effective communication, she was treated differently, et cetera. And both of these cases reference Department of Justice guidelines regarding this which talked about Braille, large-print menus or reading menus to people. Let me go on to the movie theater access. And some of the issues here are full integration of seating, unobstructed viewpoints, sight lines, policies for companion seating, audio description and captioning. In addition to the Title III requirements that Barry mentioned, movie theater are required to provide physical accessibility, lines of sight comparable to those for members of the general public, priority for companions of persons who use wheelchairs and other ADA compliant policies. The DOJ regulations include open and closed captioning as a possible auxiliary aid, although the guidance says that open captioning is not required. And open captioning is like a foreign film that is sub-titled where the captions are on the film and everyone in the theater can see it. With closed captioning, there is a rear view type of system and what happens is with a lot of first-run movies the production company makes a CD that has captioning and also has something called audio description which is a description of what people are doing on the screen for individuals who are blind or visually-impaired, for example, they are picking up a glass, they are throwing it at someone. And those are the two main issues for communication access in the movie theaters. So with closed captioning it is on a rear view projection. The person so on the rear of the theater is actually projected the movie with the subject titles but no one sees that, the regular screen stays the same and the person who is deaf has a little mirror they can put kind of in the cup holder I believe it reflects from the back screen so they are able to see captioning and none of the other patrons are bothered by the captioning. So the first case we are going to look at is the Fortyune versus AMC, this case is the most unbelievable fact situation, Chicken Run was sold out. The person in the wheelchair came 20 minutes early and still couldn''t get a seat. There were only four wheelchair spaces, they asked one of the people using one of the companion seats if they would move and the person refused. So they got the supervisor and supervisor said our policy is, if it is a sold-out show we don''t ask people to move for people in wheelchairs, everyone bears the same risk of not getting a seat in the sold-out show. The person claimed this violated Title III and that is what the court found, that his policy or his request to modify their policy even if it is a sold-out show to make sure he sits with his companion is reasonable, in this case the court pointed out that the person who had quadriplegia really needed his companion there as a personal assistant. It wasn''t really clear if it was a companion who did not provide any services to the person with the disabilities. The court would go the same way but I think they would. They really didnt key on that so much but they did indicate that he needed to have his companion with him. The next we will talk about site line requirements. The courts are all over the place as you can see, some do not require unobstructed views some say only some wheelchair seats should have unobstructed views and actually there in that case the second one there, the PVA versus DC Arena, the court said you also need unobstructed views because people stand up in arenas and you need to make the unobstructed view includes situations when people are standing. The Lara case says unobstructed views for all wheelchair seats but not necessarily comparable viewing angles and then there is a couple cases on there that say you get unobstructed views and comparable viewing angles. And then the next case is US versus AMC entertainment and the court held that AMC was not required to retrofit facilities built before the company was on constructive notice of sight line regulations and the court actually did something somewhat unusual, they said AMC was on constructive notice of the regulations when the Department of Justice filed a brief in the Lara case from the previous slide and they said that was the first time Department of Justice really articulated consistent sight line regulations and so from that brief that was the notice and that was the cutoff point so anything after that, that notice, AMC was required to build accessible facilities. They were required to make modifications to the movie theaters built after they had notice but not required to modify movie theaters built before that notice and they were also required to make sure they provided accessible theaters into the future for the next five years. And then the next case has created quite a fire storm. This is the Arizona versus Harkins case which was decided by a district court and is now on appeal before the 9th Circuit. And it is drawing a lot of attention, I think everyone and his brother has written an amicus friend of the court brief on that case. This case involved open or closed captioning or audio descriptions and the district court said it would be a fundamental alteration and the court made some interesting statements. They said for example that equal access does not mean equal enjoyment. They said a person can still come into the theater and sit and see a movie because the only service that the theater provided is screening the film in the form they receive it. To do otherwise would be a fundamental alteration. And it is interesting because you can also look at this as an undue burden type of situation, as we mentioned before all a theater has to do is call up the film company, say send me the CD with the captioning and description, you need to buy the equipment so they can to do the rear view captioning system, and then people who are deaf can see the captioning, people who are blind can hear the description. But the court said, looked at it more as akin to making a bookstore sell Braille books which I think is different, that is more of a product. The court seemed to have difficulty ordering the theaters to change the service they provided. The court says and I quote "There would seem to be no statutory boundary if the ADA regulated the content of services" and that statement doesn''t quite make sense to me. I think in the restaurant cases if you are asking a waiter to read you a menu you are changing the content of services but it is perfectly legitimate under the ADA. I think here requiring a movie theater, you can require places that have speeches to have a sign language interpreter, that changing the content of the service, ADA requires a lot of services to be given in different ways and in this case the judge just seemed unwilling to require it regarding the movies. So the cases is on appeal, I know the disability community feels strongly this case is not well reasoned and I think I have to ascribe to that belief after rereading it a couple more times. I really think it is a little bit out of touch but we will see what happens on appeal. Now on to the next case. We are going to talk about, next section we are going to talk about emergency preparedness. And some of the issues here are, are the egress points accessible, are the alarms able to be -- do they have auditory and visual components so that everyone can know if there is an alarm in the emergency, areas of rescue assistance for people with mobility impairments or other types of impairments are required. There needs to be signage which is accessible and indicates where the rescue assistance areas are. There is privacy issues providing information of first responders. And also sometimes you see that - you see businesses say that we can''t have someone here who uses a wheelchair because they wouldn''t be able to exit in an emergency, or they would be unsafe in an emergency. So very briefly going through these emergency egress required by local codes must meet ADAAG. So if it is through a staff-only door in the kitchen and there is no way for a patron to know that emergency egress, than that is not accessible. That is the access now case, and in a hospital setting, hospitals can consider patient safety, the need for orderly evacuations and room activities, and so in the access now case the hospital is required to place visual alarms in some areas, waiting rooms and restrooms but not in operating rooms, recovery rooms, or intensive care units. And then we have a Title II case just to show you because it is really the same type of analysis, in this case there was a bomb threat and the school evacuated the ambulatory children but left children with wheelchairs with a responsible adult for over an hour. When there were complaints the school developed a plan with a safe room. They made the police and fire departments aware of this and gave a cell phone to the room. Ran drills, educated everyone about the plan, great, they ran a second, a fire drill to make sure it worked and the responsible adult ran out with the ambulatory children, leaving the children with wheelchairs inside. Sounds a little bit like a Seinfeld episode. The case went to court and the court said the first incident violated the ADA, there was no reasonable plan in place, and the second incident there was a plan, people were notified, they were trained, they were drilled, the school really couldn''t have done anything more and I have a query there can the school board have done more? And looking at it, I don''t know what more they could do. There is always I guess the human factor in these situations. They may get a better responsible adult. Next slide is coming up slowly. Here it is. This case involved, this is a recent case involving a woman and Marshalls and there was a fire alarm which deactivated the elevators so everyone with mobility impairment was gathered together on the second floor until the emergency ended, which I think was almost two hours later. She claimed ADA violations and false imprisonment. The court held evacuation procedures are a policy. The store argued that there was no specific regulations in place and court said it doesn''t matter, there is enough there to put you on notice you should have an emergency evacuation plan that is accessible and provide for people with disabilities. The plaintiff had to show that the reasonableness of the modification and then defendant needed to show if they didn''t think it would work it would be a fundamental alteration. When they lost on a motion to dismiss the defendants agreed to settle this case which included in the settlement providing emergency exit routes, training store and managers to assist customers, training employees, hiring ADA consultants, designating employees to oversee the terms of the settlement, the settlement applied is as I mentioned before, you can have a widespread type of solution. This applied to almost 700 stores, and with issues like false imprisonment, maybe a tort related to a poor evacuation plan and stores also have under tort law duties to invitees on their premises. We are going to go quickly through service animals. That is one of the cutest service animals I could find. One of our cases talking about a Tonkean ape but I went with a cute little dog instead. Some issues here are the no-pet policies, what emotional support animals are those service animals and generally under the ADA they are not. What are the qualifications of a service animal? What can be asked of a person with one? Fundamental alteration, direct threat issues, as Barry mentioned the Title III regs are being rewritten and then the Fair Housing Act and the Air Carriers Access Act have actually different standards than the ADA. So if those laws are applicable those need to be looked at as well. Under the ADA the definition is service animal means any animal individually trained to do work or perform tasks for the benefit of an individual with a disability. And that is really the key thing to remember through all this is DOJ guidance on this and we have the cite and these have been cited repeatedly throughout the cases, they really give a lot of deference to DOJ guidance on this and Congress intends service animals have the broadest feasible access to avoid separation. The Center for Disease Controls sees no problems in emergency rooms or healthcare facilities except maybe nonhuman primates and reptiles and again regulations are being revised in this area as well. I have the Pruett case here, this was interesting, this woman used a Tonkean ape, she has diabetes and was, used the trained ape to retrieve sugar for her, the ape was trained to press a medical alert button, under Arizona law apes were allowed to be owned by private citizens but they couldnt be taken out except to vets or without permissions and they kind of let her take the ape out in public but then the ape died and she was without a service animal for a year and wanted to have a chimpanzee. And there was a wildlife law against owning a chimpanzee, whereas people could own apes if the kept them in their home but there was a law forbidding owning chimpanzees, so she contacted the wildlife department and actually it is interesting the man did a lot of research into this issue, they eventually denied her the use of the ability to own a chimpanzee but the person talked to the Department of Justice, talked to experts in the area, talked to other wildlife experts, researched the chimpanzees in question, etcetera, but the case really came down to the fact the chimpanzee was not really trained to monitor her blood sugar levels or retrieve sugar, the animal could do a few tasks for her and get her a few things but what she really had a condition called hypoglycemic unawareness where she could have an onset of hypoglycemic without really knowing but the ape or chimpanzee was not really able to help her with that situation. And because there was no individualized training it was not deemed to be a service animal. In the Costco case, the employees actually followed the DOJ guidance exactly. I think. The policy was first the employees was told to look for an ID, so if the service animal had the little thing around it that said service animal, there was no further inquiry, nothing was even ever said. But if an employee saw that a person had a pet and it did not have that that type of ID and again these IDs cannot be required but if they are there the store used that and that was enough, if there was no ID, then the store would not exclude the person the animal, the store would then ask what task or function the animal performed that its owner could not and that is almost precisely what DOJ says is appropriate to ask. The policy prohibited employees from asking about the disability. The person complained about this and court said no this policy complies with the DOJ information and guidance in this area. In the Thompson case below that, the person was asked those questions and refused to answer, saying it is a violation of their civil rights. And there was no marking on the dog, it was just a dog with a nylon rope around its neck and because the person refused to answer he was denied admittance and the court upheld that. People need to answer appropriate questions that are put to them. The Lentini case also talks about this, in this case a person attended many performances at the Center for the Arts with their service animal, on two occasions out of dozens, the dog barked during intermissions when it thought someone was invading their owner''s personal space, never disturbed anyone during a performance, no patron ever complained, the center never even talked to her about it, just she came back to a performance after the second barking episode and they wouldn''t let her in. They told her to put the dog in the car, she said it is too cold, I don''t know how cold it gets in Escondido but she thought it was too cold, and the center argued to allow an animal in that barked was a fundamental alteration, the animal would deter other patrons from attending which may be true and the center also said it would deter artists from appearing at the center, which may be a bit of a stretch but if it disturbed performances I could understand that. And the court said that the center was wrong, it violated the ADA and they needed to make a reasonable modification of their policy not to and I quote "Exclude a service animal who has made a noise on a previous occasion even if such behavior is disruptive if the noise was intended to serve as a means of communication or was for the benefit of the disabled owner or if the behavior would otherwise be acceptable if engaged in by humans." I like this for several reasons, one the court actually is looking into the intent of the animal in barking which is interesting and the court said well you can gather that from circumstantial evidence. And the court also said we know humans don''t bark we just mean a similar noise level. And again, it is an intensively fact-based inquiry and the fact that there were only two minor disturbances during intermissions out of dozens of performances shows that the potential for future disturbances was minimal. There is DOJ settlements here, one where they separated people, a car rental companies put animals in a kennel for shuttle service to and from the airport that was a violation. Wal-Mart had changed their policies, I had an interesting discussion with owners of a restaurant and the owners were Muslim and there is Muslim dietary laws people should not eat when -- after coming in contact with animals. And they were very concerned about letting service animals in and how this would conflict with religious laws and I told them I think there was a fundamental alteration consideration there but if there was a way to do separation so that the people would not come in contact with animals, I think that would be a solution. I want to go quickly through post accommodation -- post secondary education accommodations this could be a whole hour and a half or two in itself. Some of the issues who get them, the common ones, accommodation for extra time for tests, alternative sites, whether there is environmental concerns or mental impairments, alternative methods, we once argued to have someone have a signing language interpreter for written tests for this reason I mentioned earlier, ASL, American Sign Language is not English, fundamental alteration regarding eligibility requirements in fairness and licensing issues. Just one question for substantial limitation one issue that comes up, do you compare students with disabilities to an average person? In determining the essential limitation of the average student and the Love case cited there they looked at an average person and said this person did great in school, most people could not even do that well in school so they didn''t compare her to other students, they compared her to average people in society and found her not disabled but the ADA Amendments Act I think that type of analysis might have to be different now. Title III interestingly has no qualified standard, Title I has it, Title II has it, the Rehabilitation Act have it there as you see on the slides. But generally what has happened is those qualification have been put into Title III so generally educational institutions don''t have to lower academic standards if a student cannot meet eligibility standards even with accommodations, they are not qualified and if someone seeks either to be admitted into a program they are not qualified for or seeks that qualifications be eliminated that are legitimate and necessary, that would be a fundamental alteration of the program. And that is the Mershon case there. We just want to talk about this issue broadly because it comes up a lot in other settings it comes up. The Supreme Court heard a case on this issue PGA tour versus Martin, should a golfer use a golf cart on the PGA tour and there is a qualified an accommodation or fundamental alteration issue and the courts said in that case he would, they looked at the rules of golf. A couple hundred about hitting the ball, none about walking, people can use carts in other settings and the courts said he should be able to use a cart on the PGA tour even though Arnie Palmer and Jack Nicholas testified against Casey Martin, Casey Martin who also roomed with Tiger Woods at Stanford. Unfortunately, Casey was allowed to use a cart on the tour but just couldn''t get his game together and I believe is teaching golf in college. At Equip for Equality, we see this qualification issue a lot in camp settings as a child able to, do we have to give more care than we give to other people? If so they may not be qualified is the argument made and we often resist that because children all need different types of care. And there is a settlement on the DOJ site for a camp for someone with diabetes to ensure the child, staff had to help to monitor the child''s diabetes to make sure the child was integrated and some DOJ settings and other setting too, the Spy Museum, the International Spy Museum, the case for the Colorado Police Board. So the qualification issue comes up in other settings. Regarding examinations and licensing, again, it requires that accommodations, auxiliary aids be provided absent undue burden or fundamental alterations. In the Mershon case even though his case was denied, the court did acknowledge that asking to register early because he needed to do that in order to get his benefits check to pay tuition, that could be an accommodation. In the Powell case versus the National Board of Medical Examiners, a medical student failed a test twice after two years of tutoring, and accommodation, according to school policy you cannot move on to the third year. And the court held that it would be a fundamental alteration to change that policy. He was not able to pass the test, he was given accommodations and there for he was not qualified and they also looked at doubling the time for the medical exam, the USMLE given by the board. And the court said in this case it would be a fundamental alteration, as scores would not accurately reflect each examinee''s abilities. The Di Lella case, in this case the school was providing some accommodations, the big issue here was they were providing a note taker at first, later changed that to a transcriptionist but the transcriptions were not timely, were not always given and the court said even though the school can pick what they give it has to be an effective accommodation and transcriptions that aren''t printed on time are not effective. And one issue with note takers I wanted to mention often schools do it, they will just have a classmate give their notes or something like that, I am not always sure that is right because the person should get good quality notes and I think depending what student you pick to share notes it could be different quality, I think using teacher''s notes prepared for the lecture might be a better type of accommodation than looking at other students'' notes. Then real briefly on enforcement to get to the question asked earlier, first of all, regarding filing, as Barry mentioned you don''t have to exhaust administrative remedies before filing in federal court. You can try to resolve these situations informally with either grievances or negotiation. If you want to go the formal route you can file in Federal Court. The Statute of limitations varies from state to state, usually following personal injury law. Or you can file a complaint with the Department of Justice or the Department of Education. And as Barry mentioned that does not toll the statute of limitations, the time is still running and people can also file with their local state or local human rights commission. Money damages are not available in Federal Court, all you can get under the ADA Title III are injunctive relief and attorney''s fees, if the U.S. Attorney General brings a case they can get money damages, if an entity receives federal funding and is covered by the Rehabilitation Act money damages may be available and state or local law may have money damages as well. And we have a cite there from a case that came down just a little over a week ago in California in which under the California law I guess Unruh Act, I am not sure how to pronounce it that allows money for ADA Title III violations. As Barry alluded to, disability advocates say you want what a notification requirement, there is already no money damages, what is the incentive for businesses to comply with the ADA? And many advocates feel if money damages were a component of lawsuits, if the cost of non-accessibility goes up then more businesses will become accessible. We have the list of resources there. The Great Lakes ADA Center DBTAC the host of this, Equip for Equality, Department of Justice, Department of Education, the ADA Accessibility Guidelines are important for any type of access types of considerations and constructions. And I know I raced through a lot of stuff but I am going to throw it open for questions. Do you people prefer Frank Gorshin as The Riddler or Jim Carey? That is always the first question. I see the one question there about animals in hospital settings. For that I refer you to the Center for Disease Control Statement that I alluded to earlier. They actually wrote several things about that and they see no problems in most settings except for the reptiles and nonhuman primates. And we have one vote for Jim Carey so I am going to put my vote for Frank Gorshin.
And I think just to follow up on the health care setting I think it often times will depend on where you are like in ICU versus a regular examination or something like that.
This is Peter. One other important thing under the Title III regulations is the responsibility of the person with the disability for the care of the service animal so if the individual is the patient, you know, it is not the hospital''s responsibility to walk the dog or feed the animal.
Thanks, Peter. That would fall under the personal services I think component maybe or animal services at least.
In response to your question about structured negotiations it is a little different then that. Certainly anybody can have negotiations with anybody but it is a more formal process where you enter into a written agreement that says we are going to work together and negotiate this and sometimes those negotiations can involve some sort of payment of attorney''s fees, and guidelines as far as how the negotiations will go and that sort of thing and I think if you go to Lainey''s website which is in the power point and I think its also in the brief, I think she actually has some examples of the structured negotiations she has reached that would give you a sense of how they work out. But it really lays out sort of a formal plan on how you are going to negotiate and work together to reach a desired goal. And then you see here with the slide that our next webinar is going to be in September, September 22nd and we are going to talk about an issue "Pretext," which is something we alluded to in previous webinars but we are going to spend the whole session just talking about that issue because there is a fair number of cases looking at it and for those of you who arent familiar with the term pretext, it is the whole issue of whether or not it is when a potentially business or employer gives a reason other than discrimination as to why they took the action they did. So the typical scenario is the person will say I was fired because of my disability. The employer will say I didn''t fire you because of your disability, I fired you because of bad attendance or something like that. And then the court has to grapple with the issue of was the reason they gave a pretext for discrimination or was it a legitimate reason for taking the adverse action? And so we will examine how courts have looked at these issues, where the burden lies on proving these kinds of things and those types of issues. So sound business decision or discriminatory action will be the subject for the next webinar.
Thank you, Barry, very, very much, and Alan, thank you both very much and thank you, everyone, for joining us today and we look forward to having you join us in September. Thank you and have a good afternoon.
Just to answer the question up there, people are signing off. I don''t think they can ask about vaccinations, I know that is an issue and it might be different in the healthcare setting but really I think the Department of Justice guidelines should inform peoples action you can ask, is the animal trained to perform a task the person with the disability is not able to perform and I think that is the extent of it.
Yeah, I think if there were issues of again if it goes to safety issues, if it is something that gives you reason to believe, wow, that animal has a problem, that should have been cured by vaccination or something like that, I am just kind of thinking out loud, and if there is some sort of reason to think there would be a direct threat or problem, then that might give rise to open it up for more questions but I think Alan''s initial take on it generally is correct.
And I think it is discussed also in the Centers for Disease Control publications. And please see Robins note and please fill out the evaluations and let us know your thoughts and ideas for improving these in the future.
Thanks, everyone. See you in September.