Advocates for Individuals with Disabilities Foundation and Peter Strojnik Have Filed Another Wave of Disability Lawsuits in Arizona

Just as I finished writing about the wave of new Title III Americans with Disabilities Act (ADA) lawsuits in Arizona, ABC15 published an expose on one of the organizations leading the pack in filing thousands of lawsuits– Advocates for Individuals with Disabilities Foundation.  

Shortly after this expose, Advocates for Individuals with Disabilities Foundation and their outside counsel Peter Strojnik filed another wave of lawsuits (almost 150!!) last week in Maricopa County Superior Court against Arizona businesses. 

There are a lot of areas that the ADA Accessibility Guidelines cover, but these lawsuits typically focus on the parking lots. Readers of my blog know how much I love infographics, and ABC15 has a great graphic discussing how to achieve ADA compliance for the parking lot signage and parking space issues that arise in these lawsuits: 

 

 

Many local companies that have not yet been sued have been exploring whether their businesses are already in compliance (and patting themselves on the back when they realize they already are in compliance). Once the lawsuit is filed and served, however, companies are learning that achieving ADA compliance is not always the end of the lawsuit. While a company may very well argue that the claims have been mooted, the plaintiff may disagree that the claims can/should be dismissed and the issue is forced to go to the court (where the companies can also assert many other defenses) or the parties will agree to a settlement.

 

Posted in ADA, Arizona, Other Things... | Tagged , , | Leave a comment

Serial Plaintiffs Are Filing Waves of Disability Cases

Hotels, restaurants and retail establishments have team of paper peoplebeen flooded with new lawsuits filed by serial plaintiffs that allege that a property (a place of public accommodation) is in violation of Title III of the Americans with Disabilities Act (ADA) or the equivalent state law, such as the Arizonans with Disabilities Act (AzDA).

Nearly identical allegations are filed against businesses throughout the state, and they usually allege that an individual with a disability either visited a business or attempted to visit a business, but was unable to do so due to a barrier on the property. In other words, the plaintiff is alleging that the company/defendant failed to comply with some aspect of the ADA Accessibility Guidelines (ADAAG). Examples of common barriers that are raised in these lawsuits are: (1) that a parking lot does not have a sufficient number of disabled or van accessible spaces or parking signs (or the signs are not high enough); (2) some part of the exterior of the property or the front door is inaccessible or improperly sloped; or (3) the restroom is not accessible—perhaps a stall is not wide enough or there is no disabled restroom at all. Typically, the plaintiff requests that the court provide it with injunctive relief (i.e., the defendant has to fix the property), compensatory damages (not available under federal law but, in limited circumstances, damages may be available under state law), and attorneys’ fees and costs.

The premise of these lawsuits is simple enough, but the complexity becomes apparent as businesses realize there is no one-size-fits-all response.

Why are serial plaintiffs even bringing these lawsuits?

There are a couple of answers here. The law provides a private cause of action to plaintiffs because there are simply too many buildings and places of public accommodation for the government to be able to efficiently monitor each and every one. Individual plaintiffs are able to bring multiple cases under the ADA to ensure that they and others are not harmed by businesses that fail to comply with the law. Even the idea of serial litigation is contemplated under the law. The Ninth Circuit explained that “[f]or the ADA to yield its promise of equal access for the disabled, it may indeed be necessary and desirable for committed individuals to bring serial litigation advancing the time when public accommodations will be compliant with the ADA.”[1] However, the Ninth Circuit includes this caution: “But as important as this goal is to disabled individuals and to the public, serial litigation can become vexatious when . . . a large number of nearly-identical complaints contain factual allegations that are contrived, exaggerated, and defy common sense.”[2]

Some people feel that these lawsuits are an attempt by plaintiffs’ attorneys to cash in on the attorneys’ fees provision under the ADA. Finding one area of noncompliance on a property can arguably permit a plaintiff to bring his or her expert and conduct a full-site inspection to uncover more issues. Unless the lawsuit is groundless or frivolous, plaintiffs know they likely will not be responsible for the defendants’ fees and, in fact, they may have an opportunity to recover fees from defendants in certain circumstances. Because of this, these cases are often settled prior to trial and attorneys’ fees may be a significant portion of that settlement.

Do businesses have defenses when these lawsuits are filed against them?

Absolutely. There are many issues to consider when a lawsuit is filed. The threshold issue is whether the company can make the necessary changes to bring the subject property into compliance so that individuals with disabilities do not encounter any barriers to access. In addition, there are many other issues to consider. When was the subject property built? When, if ever, was it altered? Is it a historic property? Does the plaintiff have standing? Are there non-parties at fault? Are plaintiff’s requests structurally impracticable? Are there equivalent services offered? While there are instances when companies must be in strict compliance with the ADA, there are also exceptions when strict compliance is not feasible or necessary. All these factors, and more, can help build a company’s defense—that it is properly complying with the ADA.

How do businesses know if they are going to be sued?

Sometimes plaintiffs’ attorneys will send out notices in advance—stating that a property is not in compliance. Other times, no notice will be sent. Since plaintiffs often have their experts visit a property and prepare a pre-litigation report before a lawsuit is even filed, it is possible a company representative may notice someone on the property measuring areas or evaluating compliance generally.

Aren’t these issues sorted out in the contract with the landlord—do tenants need to worry?

Both landlords and tenants are responsible for complying with the ADA.[3] Sometimes, landlords or tenants contractually agree that one party is responsible for actually making the changes and has to indemnify the other party if there are any lawsuits brought. However, the plaintiff can still sue both parties. It is then up to the landlord or tenant to collect on the indemnification. However, there are some states, such as Nevada, where indemnification is preempted and prohibited under the ADA because permitting an owner to circumvent responsibility would lessen the owner’s incentive to ensure compliance with the ADA.[4]

If a company is sued, will this claim be covered by insurance?

It depends on the policy. There are some policies that will cover these types of lawsuits and others that will not. Some companies choose not to submit these claims to their carriers out of the concern that the carrier will take over the defense. A company might lose their choice of counsel or perhaps some of the control over the direction of the litigation and potential settlement. However, if there is any possibility of coverage and the company wants to have the insurance company cover the claim, then the company may choose to tender defense to the carrier.

What if a company is sued by an association working on behalf of individuals with disabilities—do these organizations have standing?

An “associational” claim may be brought by an organization when (1) its members would otherwise have standing to sue in their own right; (2) the interests it seeks to protect are germane to the organization’s purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.[5] Although, just because an organization can bring a claim on behalf of a disabled individual, does not mean that they have properly pled the claim.

Does Title III cover anything other than construction issues?

Yes. Title III of the ADA also governs how businesses should treat service animals and other accommodations that should be made for guests.

Is it worth even fighting the lawsuit or should a company just “fix” everything?

Some companies are served with a complaint and the first response is—that’s easy, we can fix that. Perhaps they did not know the company was out of compliance and they have the means to quickly and efficiently resolve the allegations in the complaint. There are certainly instances when plaintiffs have been able to resolve and moot a complaint.[6] This issue, unfortunately, is not as clear cut as one would hope in some jurisdictions. Since certain courts treat the issue of mootness differently than others, plaintiffs may dispute that mooting a claim results in the dismissal of the lawsuit.

Each company should evaluate the pros and cons of litigation. A company may have a perfectly valid defense to a claim and be able to demonstrate it is in compliance with the ADA. On the other hand, a company may find that it is prohibitively expensive to implement all the changes that the plaintiff is identifying in the lawsuit. Companies should consider developing a litigation strategy early on so they can maximize their resources, efficiently address these cases, and ensure compliance with the ADA.

_____________
Notes:

[1] Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1061-62 (9th Cir. 2007).

[2] Id.

[3] 28 C.F.R. §36.201(b).

[4] Rolf Jensen & Associates v. District Court, 282 P.3d 743, 748 (Nev. 2012).

[5] See, e.g., Concerned Parents to Save Dreher Park Ctr. v. City of W. Palm Beach, 884 F. Supp. 487, 488-89 (S.D. Fla. 1994).

[6] See, e.g., Oliver v. Ralphs Grocery Co., 654 F.3d 903, 905 (9th Cir. 2011); Brooke v. Elite Hosp., LLC, No. 4:15-CV-0425-HRH, 2016 WL 3213223, at *4 (D. Ariz. June 10, 2016).

Posted in ADA, Arizona | Tagged , , , , , , | 1 Comment

Blogcation?

The last time Employment and the Law went on a blogcation, the blog was just over a year old. Now, over four years later, I think it’s about time to give my blog another blogcation (and it just so happens this will occur while I am out of the office and about to welcome a new baby).

beach image

No… I am not at the beach. But it’s a nice thought anyway, don’t you think?

Thanks to all my loyal readers and—for those who notice the posts are few and far between for the short term—know that the blog will be back soon!

Posted in Other Things... | Leave a comment

What Will Be Required By the New EEO-1 Pay Data Collection and Reporting Provisions?

cashBy now, we have all read about the Executive Action and related regulations proposed by the EEOC that will require companies with 100 or more employees (not just federal contractors) to report to the government how much they pay their employees and corresponding information regarding each employee’s race, gender, and ethnicity.

“[T]oday, the median wage of a woman working full-time year-round in the United States is about $39,600—only 79% of a man’s median earnings of $50.400.”

Under the proposed regulations, which are currently in the notice and comment phase, employers will be required to first submit pay data as of the September 30, 2017 EEO-1 filing deadline.

The top question that comes to mind is: What might companies do now to prepare?  

First of all, understand that the regulations are not final and, technically, anything could change.  Even still, now is the optimal time to get an understanding of what likely will be required since these proposed regulations are sweeping rules that will impact over 60,000 companies and over 63 million employees throughout the United States.

The EEOC is currently proposing that, rather than providing specific information about the employees and their pay (e.g., names and compensation), companies will be required to report information across 10 job categories and using 12 pay bands.  Therefore, the specific salary or compensation of an individual employee will not be required and, arguably, their confidentiality should not be affected.

The job categories are: (1) executive/senior level officials and managers; (2) first/mid-level officials and managers; (3) professionals; (4) technicians; (5) sales workers; (6) administrative support workers; (7) craft workers; (8) operatives; (9) laborers and helpers; and (10) service workers.

The pay bands are as follows:

Pay Bands

Here is a sample of what the EEOC is proposing to collect in the new EEO-1 report.

As you can see, the new forms break down each job category by pay band – and then require the specific identification of race/ethnicity, broken down by gender when reporting the salary.  The next section requires the breakdown of “total number of hours worked in last year.”  The EEOC is seeking input as to how to report hours worked for salaried employees.  One approach considered is assuming the estimate of 40 hours per week for full-time salaried employers—which obviously does not account for the fact that many employees work well above that.  The EEOC has stated it is not proposing that employers must begin collecting additional data on actual hours worked for salaried workers, to the extent that the employer does not currently maintain such information.  Companies will need to determine how, if at all, they already collect this data that must be submitted as part of these new forms.

For the 2016 reporting cycle, EEO-1 filers will only submit the Component 1 data.  Beginning with the 2017 reporting cycle, the EEOC proposes filers with 100 or more employees to submit the new Component 2 data, discussed above, by September 30, 2017.  All filers should be able to submit the report electronically.

These reporting obligations will be mandatory and the data will be used in connection with the enforcement of Equal Pay objectives. However, it remains to be seen how this information will be used as the data itself may not account for the many reasons that one employee may make more than another—such as more job experience, the employee’s educational background, different job responsibilities, and so on.

Posted in EEOC, Other Things... | Tagged , | Leave a comment

Ways to Boost Employee Morale

srpOften times the day-to-day issues that human resource professionals encounter with employees are not necessarily the legal “can we or can’t we” types of issues but, rather, are related to employees’ interactions with one another and overall employee morale. It shouldn’t come as a surprise that investing in the creation (or maintenance) of a positive and supportive company culture will yield benefits far beyond what can be measured and reported in any annual survey.

I am always encouraged when I work with companies that truly dedicate their resources to improving the community—through not only their services/products but also by working to improve the well-being of their employees and those around them.

I had the opportunity on Tuesday to speak with my fellow ATHENAs, Melissa Sanderson and Leah Fregulia, at the SRP Women in Network Luncheon at the SRP Pera Club. Melissa, Leah and I were invited to network with a packed room of superstar SRP women and were also invited to share some of our advice and experiences about the challenges and successes we have encountered in our professional lives, while mentoring others (and being mentees ourselves), and as active members of our communities.

WIN Welcomes Athena

The luncheon reminded me that such a simple thing—bringing a group together—in this case, the women of SRP, can be a great morale booster for employees and an opportunity to challenge employees to think outside the box about their own roles in the organization and what they hope to achieve. As I shared during our panel discussion, I think it is important that employees feel empowered to speak up and share what it is that they want from their careers and also to be accountable to doing the work to get there.

srp2There are many ways companies can work to build morale, create a stronger workforce, and increase employee retention—from initiating wellness programs to holding annual retreats to sponsoring community events. I think every company would benefit from taking a step back and evaluating what the company does and what more can be done. SO, while you do that, I will share my “Top 10 Words of Wisdom” that I shared at the luncheon today. When I was deciding what words of wisdom I wanted to share at the closing of the luncheon, I realized that some great words of advice that I have in the back of my mind originally came from songs. After living in Nashville for three years and experiencing the best music one could find, it only makes sense that the words stuck in my head are backed by a guitar and drums.  Here they are:

TOP 10 WORDS OF WISDOM (Nashville-style)

1. “Be a best friend, tell the truth.  And overuse ‘I love you.’  Go to work, do your best.  Don’t outsmart your common sense.”

“Love Like Crazy,” by Lee Brice

2. “Don’t sit upon the shoreline and say you’re satisfied.  Choose to chance the rapids and dare to dance the tide.”

“The River,” by Garth Brooks

3. “My next thirty years will be the best years of my life.  Raise a little family and hang out with my wife/husband.  Spend precious moments with the ones that I hold dear.  Make up for lost time here, in my next thirty years”

“My Next Thirty Years,” by Tim McGraw

4. “If you want to make the world a better place, take a look at yourself, and then make a change.”

“Man In the Mirror,” by Michael Jackson

5. “Sometimes I’m hard on me, when dreams don’t come easy.  I wanna look back and say, I did all that I could.  At the end of the day, Lord I pray, I have a life that’s good.”

“A Life That’s Good,” by Lennon & Maisy (Nashville cast)

6. “May good fortune be with you.  May your guiding light be strong.”

“Forever Young,” by Rod Stewart

7. “I hope you still feel small when you stand beside the ocean.  Whenever one door closes I hope one more opens.”  

“I Hope You Dance,” by Lee Ann Womack

8. “If you’re faced with a choice, and you have to choose.  I hope you choose the one that means the most to you.”

“My Wish,” by Rascal Flatts

9. “Maybe you’ll marry, maybe you won’t.  Maybe you’ll have children, maybe you won’t.  Maybe you’ll divorce at 40, maybe you’ll dance the ‘Funky Chicken’ on your 75th wedding anniversary.  Whatever you do, don’t congratulate yourself too much or berate yourself either.  Your choices are half chance, so are everybody else’s”

Baz Luhrmann – Everybody’s Free (to Wear Sunscreen) 

10. “What it all comes down to is that no one’s really got it all figured out just yet.”

“Hand In My Pocket,” by Alanis Morissette

Posted in Other Things... | Tagged , , | 1 Comment