DOJ Publishes ADA Technical Assistance Documents Concerning Persons with HIV and AIDS

The Department of Justice has released Technical Assistance Guidelines addressing Americans with Disabilities Act Requirements for Persons with HIV and AIDS.  This Document, entitled Questions and Answers: The Americans with Disabilities Act and Persons with HIV/AIDS, provides compliance information concerning both the ADA’s employment and “public accommodations” provisions.

Federal Court Holds ADA Applies to Netflix’s Internet-Streamed Movies

On June 19, 2012, the federal District Court of Massachusetts became the first federal court to hold that the Americans with Disabilities Act’s (ADA) accessibility requirements apply to website-only businesses.  The National Association of the Deaf filed this lawsuit claiming that Netflix violated the ADA by failing to offer closed captioning for all of its Internet streamed movies.  The company filed a motion seeking judgment on this claim, arguing that the ADA’s requirements for “public accommodations” apply only to physical structures.  Rejecting this argument and allowing the claim to move forward, the Court held that limiting the ADA’s reach to only tangible places and physical structures would frustrate the purpose of the ADA.  This decision, which will almost certainly be appealed, demonstrates the challenges for businesses as courts seek to apply the ADA’s requirements to Internet-based companies.  The Web is now the next battlefield in ADA litigation.  Businesses should be prepared to see similar claims in other courts.  The case is National Association of the Deaf v. Netflix, Case No. 3:11cv-30169 (D. Mass. June 19, 2012).

When the $%#! Did We Become a Public Accommodation!?

I’ll spend a lot of time writing in this blog about things that public accommodations (i.e. businesses that offer goods and services to the public) should know. For some entities such as private clubs, swimming pools, and community associations, however, the first question that should be addressed is “Am I a public accommodation?” Clubs and associations can all too easily cross the line from non-public entity to public accommodation. Although sometimes the business rewards may be worth it, it is important to know the risks and implications of such decisions.

Under the Americans with Disabilities Act (ADA) a place of public accommodation is a “facility, operated by a private entity, whose operations affect commerce.” This definition includes most “places of lodging” as well as recreational facilities, restaurants, and retail businesses. Public accommodations must satisfy a myriad of construction and accessibility requirements ranging from the number of accessible disabled parking spaces to the height of mirrors in restrooms. Private clubs and associations generally do not fall within the definition of a public accommodation and do not have to satisfy these accessibility requirements (although sometimes city or housing requirements may apply).

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ADA Lawsuits Against Businesses Are On The Rise

The Americans with Disabilities Act, or “ADA” is best known for its prohibitions against disability discriminations in employment and the requirement that employers provide reasonable accommodations to disabled employees. Title III of this federal statute, however, requires businesses that serve the public to ensure that their facilities are accessible to the disabled. This, in turn, requires compliance with the “ADA Accessibility Guidelines for Business and Facilities” or ADAAG. The ADAAG provides detailed compliance requirements for facilities that range from the proper height of restroom mirrors to the maximum slope for parking lots and sidewalks. My experience has been that plaintiffs (particularly ones who file multiple lawsuits to “test” ADA compliance) often look for the most trivial violations because it is that much harder for a business to argue that the requested change would be too costly to make compliance practical.

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And The (Miniature) Horse You Rode In On…?

For years restaurants, retailers, hotels, and other businesses have understood that disabled patrons may bring “service animals” in their stores. For most people, this means service dogs such as “seeing eye dogs” or dogs used to assist people with various mobility constraints. It’s a safe bet that most business owners and managers would be surprised to see a miniature horse showing up in their stores or restaurants. Well, surprise! Recent amendments to the Americans with Disabilities Act, or “ADA,” now list miniature horses as service animals, along with dogs, that must generally be permitted into stores, restaurants, and other businesses that offer goods and services to the public.

The current ADA regulations actually serve to narrow the list of service animals (originally the term was not clearly defined). Although initial drafts of the new regulations referred only to service dogs, the Department of Justice later expanded the definition to include “service horses” (defined as miniature horses) as approved companion animals. The ADA’s guidelines state that the DOJ was persuaded to make this change in order to provide an option for disabled individuals who are allergic to dogs, or for people who have religious objections to using dogs as service animals. The regulations also cite to the longer life span for horses as opposed to dogs, as well as their greater physical strength as reasons for their inclusion.

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Deadline Extended To Comply with Pool Lift Requirements

The Department of Justice has announced that the deadline for existing public pools (including hotel and motel pools) to install pool lifts has been extended from May 21, 2012 until January 31, 2013.  Notably, this extension applies only to existing pools.  New pools will need to provide a pool lift that satisfies ADA requirements immediately.  The DOJ has recently published an overview of these requirements to assist pool owners entitled “ADA 2010 Revised Requirements – Means of Entry and Exit.”

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