by John Waldo, ALDA General Counsel
Three cases that have occurred since the last newsletter are worth mentioning. Two of them involve deaf or hard of hearing people, and the one that does not still has the potential to significantly affect us.
The first case (Cummings v. Premier Rehab Keller) involves a deaf woman who was referred to a rehabilitation office for physical therapy. The office refused to provide interpreters and said the woman must bring her own interpreter at her expense, a blatantly illegal claim. She sued, asking for damages to compensate her for the injury of being excluded from services open to everyone else.
The lawsuit was not brought under the Americans with Disabilities Act, because the ADA does not permit a private party to recover damages, only to get an order requiring the business to do it right “next time.” But sometimes, often in a medical situation, there may not be a “next time,” meaning there is no ADA case. So instead of ADA, this case was brought under a different federal law that requires businesses that accept federal funds to provide accessibility through things like interpreters, and that law does permit the recovery of damages.
The trial-court judge in Texas threw the case out and said that even though the federal law allows the recovery of some damages, it does not allow recovery of damages for “emotional distress,” where no dollars were lost. Surprisingly, the Fifth Circuit Court of Appeals agreed. That court acknowledged that many other courts have allowed “emotional distress” damages under the statute in question, but just said that it disagreed without giving an explanation.
“Emotional distress” damages don’t sound like a big deal, and usually the amounts are modest. So it may not be immediately apparent why this case is important. However, the problem is that people can’t go to court simply to talk about how deeply aggrieved they are – they have to ask for some form of relief that the court has the power to grant. If the court can’t actually help you, it just tells you to go away. And we’d hate to see more situations like this, where a business flagrantly violates its legal obligations but is free to tell the plaintiff “tough luck.”
When federal courts of appeal in different areas of the country interpret a law differently, the Supreme Court may (but may not) get involved to establish a nationwide rule. In this case, the Supreme Court agreed to do so. The parties are currently working on their briefs. A number of amicus curiae (friend-of-the-court) briefs are also in the works, one on behalf of the disability community. The ALDA board has given me permission to sign on to any amicus brief that looks good.
The prospects are favorable. The Supreme Court does not often take a case merely to give its blessing to the decision that the court of appeals made, and much more often than not, the Supreme Court declares that the previous decision was wrong. Also, the U.S. Department of Justice (DOJ) has weighed in on the side of the plaintiff, and the Supreme Court usually gives considerable weight to the views of the DOJ. Argument hasn’t been scheduled yet, but we can look for a decision sometime in the spring of 2022.
The second case (Gil v. Winn-Dixie) involved a blind individual who sued under the ADA, claiming that the website of a grocery chain failed to include the software required to make the web content compatible with the screen-reading tools that blind people rely on. The federal court in Florida agreed with the claimants and ordered the business to fix the issue.
The business appealed and argued that its website is not subject to the ADA. It argued that ADA access obligations apply only to “places” open to the public, and said that covered “places” are only physical structures.
This is a question that has deeply divided federal courts. Some have said that if a website provides the kind of services normally delivered by public businesses, the website itself is covered. Other courts say that if the website provides a portal to that physical place of business, like a pizza chain’s website that not only allows but incentivizes online ordering, then the website is covered.
The regrettable appeals court decision is not final yet. The claimants in that case have asked to have the matter reconsidered by all of the judges on the court, called en banc review. Petitions for such review are generally rejected out of hand without seeking a response from the other party. But here, the judges did ask for a response brief, indicating that there are at least some judges who want to take another look.
We’d like to see an outcome more or less harmonious with what we’ve seen from other courts rather than create a situation in which the Supreme Court is asked to break the tie. The argument for covering websites under the ADA is that the online commerce has become so important that if Congress were enacting the ADA today instead of in 1990, it would surely have included websites in order to fulfill its objective of ending exclusions based on disability. The contrary argument, though, is that Congress is fully aware of online commerce today, and if it wants to include websites, it can do so. If I were betting, I’d bet that latter argument would carry the day with the presently conservative Supreme Court.
I think the present uncertainty presents the disability community with a rare opportunity. Some of the proposed congressional “fixes” to ADA have been pretty awful, but one proposal now in the House of Representatives is quite promising. It gives us a lot by unequivocally requiring that “customer-facing” websites be made accessible, and specifies the standards for accessibility, which include captioning of videos. The trade-off is that the bill would require anyone complaining about websites to provide written notice of the problem and give the business an opportunity to fix it before filing suit. If the time to fix things isn’t too long, and if there aren’t any other preconditions, this looks like something we should embrace.
Finally, and briefly, there is another case out of Florida worth mentioning (Johnson v. 27th Ave. Caraf). A lawyer and a deaf client went into the business of suing gas stations, claiming that the videos shown on those little TV monitors we used to see on some gas pumps weren’t captioned. But instead of asking that the problem be fixed, they said the gas stations could comply with the law just by removing the TV monitors, then some money to go away, which the attorney and client split, a major no-no in cases where the law does not allow the client to recover damages.
The courts came down hard on them. Declaring the cases a scam, the trial court said the offending attorney had to pay the other side’s attorneys’ fees. His law license was suspended for a time. Because the client was broke, the court gave him the option, instead of paying
money damages, of doing volunteer work for one of the country’s finest ADA attorneys in Miami. That decision was upheld by the court of appeals.
The interesting aspect of this case is that the videos shown at the pumps were indeed not captioned, and were indeed inaccessible to a deaf patron. Despite that clear violation, the killer fact, in the view of both the trial court and the appellate court, was that there was no request to create accessibility. To the contrary, the “fix” was to withdraw the service, which, truth be told, has not been much missed, and pay them some money.
Sometimes, as in the Cummings case, money damages paid to the client are the only way to incentivize compliance with disability laws. But where an order to create accessibility is available, that is what legitimate ADA lawyers will seek, and that is what we always do in the
ADA cases I bring on behalf of ALDA.