Here’s a toast to the end of a bad year. I don’t know anyone who won’t be happy to see 2020 behind us, but it’s worth looking back at how the law of accessibility developed in the last year.
Fair Housing Act developments were bracketed by two events, one of which was scarcely noticed but could be important. In February, to considerable fanfare, HUD rolled out its new Guidance on requests for accommodation concerning animals.¹ Its many disclaimers about not being a regulation and not having any binding effect were not enough for the U.S. Government Accountability Office, which opined on December 17, 2020² that the Guidance violated the Congressional Review Act because it was not submitted to Congress for approval before it took effect. It is not surprising that HUD ignored the law, but HUD often ignores both science and the law, so to the extent the Guidance reflects what HUD’s investigators will do it provides some useful information on staying out of trouble in a HUD investigation even if it isn’t helpful as a guide to complying with the FHA.
A couple of months before the GAO Opinion HUD’s Assistant Secretary for Fair Housing and Equal Opportunity told us exactly what HUD thinks the FHA is supposed to provide for those with disabilities. In a press release announcing an enforcement action she said “Assistance animals aren’t pets; they make it easier for persons with disabilities to perform life’s daily functions.”³ “Easier to perform life’s daily functions” is a far cry from the FHA’s requirement that accommodations be “necessary” for a person with a disability to use and enjoy a dwelling. The necessity requirement was chosen by Congress as a compromise between the special treatment required so that those with disabilities can equally use and enjoy a dwelling and the rights of landlords to control the use of their property. Making life easier was not the standard Congress chose. 2021 will bring a new administration and a new HUD secretary, but it seems unlikely HUD’s FHEO office will change its stance to comply with the law.
Covid 19 had its effect on those subject to the FHA, but primarily as a reason to think carefully about what it means to have a disability (or “handicap” in the language of the statute) under the statute. Diseases, even serious ones, are ordinarily not considered disabilities for FHA purposes. However, Covid 19’s long term effects on physical and mental health for some survivors means it can certainly lead to a patient having a disability. The significantly higher risk of severe symptoms and death for those with disabilities could also implicate the FHA as individuals who are already disabled seek accommodations to reduce their risk of infection. The pandemic has not lead to any new law, but it should be a reminder that “handicap” and “disability” are terms with careful statutory and regulatory definitions that don’t evaporate in the face of an emergency.
The most important animal development in 2020 was the issuance of DOT’s new regulations on animals in flight.(4) The regulatory review that lead to these changes was mandated by Section 437 of the FAA Reauthorization Act of 2018, part of a larger Congressional demand that the DOT address the needs of those with disabilities. It was almost certainly a congressional response to many reports of damage and injuries caused by pets being passed of as emotional support animals as well as pressure from the various interest groups. By requiring airlines to accept only service animals as defined in the ADA and limiting even those to dogs the Department of Transportation implicitly recognized that individuals with mental health disabilities do not need the constant presence of emotional support animals in order to equally participate in air travel. Of course the larger issue is whether such animals are ever “necessary,” a notion that has no scientific support and has been rejected by organizations like the Veteran’s Administration.
In 2020 interest in the ADA remained focused on the ever increasing number of website accessibility claims.(5) Despite reports that the rate of filings had slowed in 2020 Usablenet’s analysis showed a 23% increase in claims when claims filed in California state court were included. California’s Pacific Trial Attorneys leads the pack in most ADA website lawsuits filed in 2020, and their cases alone account for almost half the increase in the number of cases filed. Claims under California’s Unruh Act have always been attractive to plaintiff’s lawyers because the act includes a mandatory penalty of $4000, which substantially increases the settlement value of these cases. Filing under the Unruh Act in state court became more attractive when some federal courts began dismissing pendant Unruh Act claims and the Fourth California Court of Appeals applied a liberal standard to personal jurisdiction over claims against out of state website operators.(6) In addition, the issue of whether the Unruh Act applies to businesses without a nexus to a physical place of business is unresolved under California state law, making claims against pure internet businesses possible under the Unruh Act.(7) State court lawsuits usually limit the claimed damages and fees to less than $75,000, eliminating the chance of removal to federal court by non-California defendants and thus forcing out-of-state businesses to either litigate in an expensive and unfavorable venue or settle. In a tepid response to abuse of the Unruh Act with respect of claims based on a lack of physical access the California legislature has imposed limits on such suits that do help smaller businesses. Whether such relief will be available for small business websites is an unknown.
The big news for claims under the ADA was the introduction of the bi-partisan Online Accessibility Act of 2020.(8) The Act isn’t perfect, but its requirement that DOJ finally issue regulations and its protections for small businesses would be a huge help in limiting lawsuits filed by the ADA serial litigation industry. The Biden administration seems likely to revive the regulatory effort torpedoed in 2017 by the Trump administration in any case, but the Act still includes provisions that are helpful. It lacks the one thing necessary to help businesses avoid abusive litigation in states like California; a preemption of state law based on the inherently national and international nature of internet businesses.
I’m sure I’ve omitted a few important developments in 2020, but if you are interested in more you can look back to my earlier blogs and those of my fellow bloggers in this space. 2021 is likely to bring important new developments as the Biden administration rethinks the regulatory and enforcement priorities of HUD and DOJ and as more appellate courts consider the basic issues that rarely get litigated because settlement is a better option. Stay tuned.
¹ See my blog, “HUD’s new Guidance on assistance animals will encourage emotional support animal fraud.”
² See, https://www.gao.gov/assets/720/711347.pdf
³ See, https://www.hud.gov/press/press_releases_media_advisories/HUD_No_20_169
(4) See my blog, “DOT issues new in-flight animal restrictions”
(5) I am indebted to Jason Taylor of Usablenet for this information. Usablenet’s full report on website accessibility litigation is well worth reading and can be found at https://info.usablenet.com/2020-report-on-digital-accessibility-lawsuits
(6) See my discussion in Quick Hits and other blogs, and the decision in Thurston v. Fairfield Collectibles of Georgia, LLC, 268 Cal. Rptr. 3d 365, 372 (Cal. App. 4th Dist. 2020), review denied (Dec. 9, 2020).
(7) Federal ADA cases in California are limited by the Ninth Circuit’s holding that the ADA applies only to websites with a nexus to a physical place of business. In a lengthy review of the law applying the ADA to websites the California 2nd Court of Appeals declined to decide the issue under state law, finding that because the website in question did have a nexus to a physical place of business “we need not consider here the wholly hypothetical question whether Title III of the ADA governs a website unconnected to a physical place of public accommodation offering only purely Internet-based services or products.” Thurston v. Midvale Corp., 252 Cal. Rptr. 3d 292, 302 (Cal. App. 2d Dist. 2019). It does not appear any higher California court has considered the issue since the Midvale opinion was published.
(8) See my blog at Online Accessibility Act of 2020 for a complete analysis.