The ADA: Titles II and III

Extra charges for gluten-free menu items and the ADA

P.F. Chang's restaurant adds a $1 surcharge for items from its gluten-free menu.  It is being sued by a woman with celiac disease (as part of a class action) who claims that the surcharge is discriminatory and in violation of the Americans with Disabilities Act (ADA).

Without commenting further on the lawsuit, I could guess instantly at the problem.  Gluten-free food is what a person with celiac disease is limited to eating, it is not just a preference.  Celiac disease can be disabling; moreover, it can be life threatening.  So, why grab the attention of a diner with a medical condition by saying that they must pay extra for their food?  Even if this lawsuit fails, my point stands.  The same result could be expected of a parking lot that charges extra for the larger and closer disabled parking spot, or the museum that actually charged extra for patrons who used electric wheelchairs as a surcharge against any resulting damage to exhibits.  If you court attention by singling out anyone with a disability, in today's society you will court a lawsuit.  This is not simply because of a litigious society, but because people are more aware of the law, of disabilities, and of a disdain for being treated unfairly, whether it is justified or not.

The Department of Justice has determined that food allergies can be a disability under the ADA. Whether this is a slippery slope argument remains to be seen--will plus-sized clothing that typically costs more than the "regular sized" clothing be considered discriminatory?  I doubt it.  Plus-sized clothing costs more to make, and being overweight is not necessarily disabling.  Compare that to food preparation--if gluten-free food does not cost more to make, but costs more perhaps because it is not made as frequently, then charging more would be discriminatory.

Basic Advice 101 on avoiding an ADA lawsuit: do not single out disabled customers.  Or, per the advice of Dallas attorney Richard Hunt, an ADA expert, P.F. Chang's executives should have asked themselves how they would have treated their mothers.  "Mom, I know you have celiac disease, and you are required to choose gluten-free food.  Fortunately, we have a gluten-free menu; unfortunately, you must pay extra."

The general argument regarding discriminatory pricing is, if you offer for all (food), charge prices that do not single out a disabling condition.

Rooftop Dining popping up--will ADA lawsuits follow?

The recent trend in dining was outdoor patios.  Now, the trend is "rooftop dining."  Restaurants, particularly trendy establishments, are renovating their structures to accommodate diners on the roof, with typical targeted marketing.  Some restaurants have touted rooftop views of the city, while others offer "rooftop menus" made with fresh produce actually being grown on the roof.

The majority of these establshments do not have elevator access to the roof.  (Most existing elevators do not go up to the roof.)  Diners using wheelchairs or those who have more serious mobility limitations do not have access to the roof.  Will ADA lawsuits follow?  A restaurant owner considering a renovation to a new structure to permit rooftop dining asked whether he will face ADA lawsuits.  As with most attorney answers, I said "It depends."

If the rooftop dining's seating comprises 25% or less of accessible seating areas then the area is not required to have an elevator.  More specifically, an "accessible means of vertical access is not required."  (Note that the 1991 Standards "33% rule" changed in 2010 Standards to 25% rule.)  Additionally, the decor and services offered in the inaccessible area must be offered in the accessible area.  Therefore, a "rooftop menu" should be made available in accessible areas as well.

Obviously, a "rooftop view of the city" cannot be made available to non-rooftop guests.  I tend to avoid stating my personal opinion, but a safe means of egress in a fire or other emergency for someone with mobility limitations would be another hurdle. 

One example on point of this topic:  http://www.press-citizen.com/story/news/local/2014/08/02/hop-rooftop-dining-area-wheelchair-accessible/13503081/.

Misconception Series, #8: I can't be sued (under ADA) for money damages

A recent article posted on a legal self-help website stated that business owners should try to review their business for accessibility to capture the "disabled customer marketplace."  Whether or not this review was done, the article goes on to state that a business cannot be sued for money damages anyway, so accessibility is good for attracting disabled customers but there is no need to fear being penalized monetarily if a business does not comply with the ADA. 

This is an example of bad advice by "omission."  It is true that the Americans with Disabilities Act allows plaintiffs who sue privately to obtain an injunction, not money damages.  However, as several plaintiff's attorneys know, a plaintiff can recover attorney fees, and in some circumstances these fees have reached 5 and 6 figures.  The small business audience reading the article mentioned above would be paying--it would be paying money to attorneys for their legal fees. 

Additionally, if the Department of Justice decided to sue based on a person with a disability's complaint, then compensatory damages to the plaintiff could be recovered.

Finally, a disabled plaintiff who sues a business for being inaccessible can recover monetary damages in some states under state disability laws.  In California, damages in the amount of $2,000 could result for each violation.

Misconception Series, #5: What The ADA Requires...or Doesn't

There are a few things that are routinely mentioned as being required by the ADA that are actually not required. 

• Automatic/Electric doors.  While it is true that the force necessary to open a door has a set limit under the ADA's Standards, electric or automatic doors are not required.  They make good business sense for parents with strollers, delivery people, shoppers with their arms full of shopping bags, and people using walkers or crutches, in addition to people in wheelchairs.

• Elevators.  It is a common assumption that elevators are required in any building with more than one floor.  The ADA includes an elevator exemption that does not require the owner to install an elevator in a facility that is being altered if it is less than three (3) stories, or less than 3,000 square feet per story. Buildings not covered by this exemption are a shopping center or mall, the professional office of a health care provider, a terminal, depot or other station used for specified public transportation, or an airport passenger terminal.

• Braille is required on menus.  Braille is not required on menus if a waiter or waitress is made available to read the menu to a blind customer.

• Sign language interpreters are always required.  If an effective means of communication with a person who is deaf includes writing on a notepad, then that would suffice.  Sign language interpreters are not always required, particularly if the cost to arrange such a service creates an undue hardship or burden.

Although features such as automatic doors are not required, and elevators are not required in certain circumstances, their existence often makes good business sense because of the benefit it provides to people with disabilities as well as other groups such as parents and families, and the aging population. 

The ADA and Food Allergies

Two recent developments highlight the changing--and ever-expanding--landscape of ADA lawsuits.  Food allergies and the ADA could have a major impact on public accommodations regarding food service.

The ADA defines “disability” as an individual:

1. With a physical or mental impairment that substantially limits one or more major life activities;
2. Who has a record of such an impairment; or
3. Who is regarded as having such impairment.

The ADA never defined “major life activities,” leaving courts to determine what the term meant.  Regulations, publications and court filings from the Equal Employment Opportunity Commission (EEOC) provided some guidance by listing the following as "major life activities":  caring for oneself, performing manual tasks, walking and standing, seeing, hearing, eating, sleeping, learning, thinking and concentrating, lifting, speaking, breathing, and working.  The list was illustrative, not conclusive.  However, the United States Supreme Court refused to give deference to the EEOC’s list and narrowed the definition of disability and major life activities.  Because of these Supreme Court cases, Congress passed the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), which clearly defined “major life activities” to include eating.

Eating is now a “major life activity,” and if a food allergy substantially limits eating, then you likely meet the definition of disabled under the ADA.  To what extent does a public accommodation need to accommodate people with food allergies?  The “food allergy” waters are being tested, evidenced by two recent legal developments involving the ADA and food allergies.

The first case involves the Department of Justice (DOJ) reaching a settlement with Lesley University, a private, nonprofit university in Massachusetts that is covered under Title III of the ADA as a public accommodation.  Complaints were brought against the University for not providing food service that met the needs of students with food allergies.  The University reached a settlement agreement with the DOJ, agreeing to a long list of measures that includes providing allergen-free foods at all food halls; providing dedicated allergen-free space in food venues for students to store and prepare their food that includes a counter, sink, refrigerator, stove/oven and appliances such as a microwave and toaster; the option to pre-order meals and have them delivered by the school; the requirement that food service personnel receive training on food allergies; and paying $50,000 to students with celiac disease and/or food allergies.  This list is but a small list of measures the University agreed to take in its settlement with the DOJ.

In the Iowa case of Shannon Knudsen v. Tiger Tots Community Child Care Center Corp., Mrs. Knudsen sued Tiger Tots for refusing to admit her child with tree nut allergies.  The district court decided that the child’s tree nut allergy did not constitute a disability under the Iowa Civil Rights Act, however the Iowa Court of Appeals held that the federal (ADA) definition of disability “establishes the framework for an analysis of 'disability' under state law,” Iowa Court of Appeals Judge Anuradha Vaitheswaran wrote.  Tiger Tots is considering appealing to the Iowa Supreme Court. 

Will universities and restaurants, festivals and state fairs (and other public accommodations) be required to provide food that accommodates people with food allergies?  An argument that could be made by public accommodations is that, under the ADA’s Technical Assistance Manual, and recent regulations, a public accommodation does not have to “alter its inventory to include accessible or special goods that are designed for, or facilitate use by, individuals with disabilities,” including “special foods to meet dietary needs.”  However, the ADA’s definition is disability has expanded, and food allergy lawsuits will definitely increase.  To the extent possible, it is good compliance practice, and customer relations practice, to provide options for people with food allergies.

Beware "No Strollers" Ban

"No strollers" signs can be found in places and at venues where a stroller is perceived as a safety hazard, impediment to foot traffic, and a hazard that could damage merchandise.  Play areas for children at some shopping malls ban strollers so they do not create a safety hazard for children who are running and playing.  However, "No strollers" bans could create discrimination problems if the child in that stroller has a disability.

The new regulations under the Americans with Disabilities Act (ADA) brings strollers under the umbrella of the ADA if used as a mobility device for a person (child) with a disability.  If a stroller is used as such, then 28 CFR 36.302 requires the public accommodation make a reasonable modification assessment.   For parents who regularly transport a child with a disability in a stroller, and for public accommodations that ban strollers inside their premises, this is a section of the ADA to know.

Dinner with a Horse?

The Americans with Disabilities Act (ADA) allows service animals to accompany people with disabilities in most places, unless doing so would jeopardize the entity’s safe operation (e.g., operating room in a hospital).  The service animal must be trained to work, not just provide comfort or emotional support.  News reports of a person with a disability being denied access to a public place, particularly restaurants, are common.  It can be assumed that most people know about service animals, and have seen service dogs. 

After much testing of the boundaries, including people claiming pigs and snakes as service animals, new ADA regulations limit the species of a service animal to dogs…and miniature horses.  The new regulations state that a public entity or private business shall make reasonable modifications in policies, practices, or procedures to permit the use of a miniature horse as a service animal by an individual with a disability.  The miniature horse has to be individually trained to do work or perform tasks for the benefit of the individual with a disability, and reasonable modifications are subject to an assessment of the type, size, and weight of the miniature horse and whether the facility can accommodate these features. The same provisions that apply to service dogs also apply to miniature horses.  The only difference I see differentiating a service dog from a service miniature horse, regarding the law, is that the horse is allowed where service dogs are allowed if doing so is reasonable “subject to an assessment of the type, size, and weight of the miniature horse and whether the facility can accommodate these features.”  28 C.F.R. 36.302(c)(9).

Some ADA experts have assured people that miniature horses won’t be in restaurants, malls and hotels anytime soon under the law, because the law specifies “dogs” only as service animals.  They concede that miniature horses are permitted but under a stricter legal standard that is more restrictive.  It is true in the first part of the ADA’s service animal regulation that the law states "dogs", but later in the text lists miniature horses as service animals if “reasonable” for a public entity or private business to admit the horse, subject to its size, type and weight.  Dogs can not be excluded because of size-type-weight, and since most miniature horses are the size of large dogs, it seems unlikely that a business or entity could make a successful argument excluding a horse because of unreasonableness due to the horse’s size, or type, or weight. 

Will you be dining at the Cheesecake Factory next to a miniature horse?  Possibly.  At first blush this sounds ridiculous.  However, I admit to being ignorant of miniature horses, and my research has led me to conclude surprisingly that miniature horses as service animals might not be so ridiculous.

For fellow diners, horses do not get fleas, they shed only twice a year, and they can be housebroken the same as a dog, so dining next to one might be cleaner than dining next to a dog.  For the person with a disability, miniature horses as service animals are attractive because they can live 30-40 years compared to a dog, which is of use as a service animal for generally 7-10 years.  People of Muslim faith prefer miniature horses because of a belief that dogs are unclean.  Some people are afraid of dogs, making a miniature horse service animal less anxiety-provoking.  People with allergies are generally not allergic to horses.  There are other benefits also, according to the Guide Horse Foundation:

• Memory:  horses have great memory and will remember—and avoid—previous dangerous places and situations;
• Vision: horses have a wide range of vision because their eyes are on the sides of their head; each eye is capable of tracking something independent of the other eye; and horses can see in almost complete darkness;
• Focused demeanor: trained horses are not easily distracted.  They are not very desirous of being petted and getting human attention as much as dogs, they focus intently on working; and
• Safety: horses are naturally safety-conscious and instinctually guide humans away from danger and towards safety.

There are drawbacks to using a miniature horse as a service animal.  I have seen miniature horses that are much bigger than even a very big dog, so an establishment might be more successful making an argument that permitting the horse in its facility or business would be unreasonable.  Miniature horses also require more room and food than a dog.  Some homeowners associations or local ordinances might prohibit horse ownership and provide resistance to allowing someone to house a miniature horse.  And, until their use becomes more widespread, there will be more resistance in letting them into an establishment until awareness of the law widens.

The ADA specifically lists dogs as service animals, and also miniature horses, albeit with a few caveats.  The restrictions the law places on miniature horses are based on vague “reasonableness,” and to the business owner unsure of how to treat a customer with a miniature horse, it is good practice to allow miniature horses as service animals in the same fashion as dogs.