This week’s blog entry is a how to for what NOT to do if you are a business faced with an accommodation request. The case of the day is Patterson v. Six Flags Theme Parks, Inc., here, decided on November 15, 2024, in the United States District Court for the Eastern District of California. As usual, the blog entry is divided into categories and they are: what not to do if you are a business faced with an accommodation request (in this case from a Deaf individual); court’s reasoning that plaintiff has standing; court throws the book at Six Flags; court’s damage award, granting of injunctive relief and denial of declaratory relief; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories. Keep in mind, that this is a decision made after a bench trial. Also, by way of full disclosure, one of the plaintiff’s attorneys, Andrew Rozynski, is a person that I have co-presented with in the past and correspond with from time to time. It is not unusual for me to blog on his cases.

 

I

What Not to Do If You Are a Business Faced with an Accommodation Request

 

  1. Not always provide an ASL interpreter for a culturally deaf individual, hereafter Deaf.
  2. Not provide any kind of device to allow a Deaf customer to receive communications.
  3. Ignore and/or never return phone calls seeking reasonable accommodations/modifications.
  4. Deny accommodations without any interactive process.
  5. When a person complains, give them a case number with nothing else happening in the future.
  6. Fight a request for a refund filed by the customer with the customer’s credit card company.
  7. Refuse to empower customer service agents to deal with accommodation requests.
  8. Not allow customer service agents to talk to personnel capable of carrying out any accommodation requests.
  9. Draw out any response time to reasonable accommodation requests.
  10. Refuse to cancel a contract at the request of the customer when it is clear that things are not working.
  11. Put the customer on hold for an hour and then call gets disconnected.
  12. Provide a confusing array of responses to a history of reasonable accommodation requests.
  13. Offer a reasonable accommodation request that has nothing to do with the specific customer’s disability.
  14. Not follow its own policies.
  15. Ask the person with the disability to provide their own accommodation by bringing their own individual to interpret for them.
  16. Have your employees not know your company’s policies when it comes to reasonable accommodation requests and particular reasonable accommodation requests.
  17. Confuse an ASL interpreter with personal care attendants.
  18. Over the course of three months, ignore emails, direct the customer to three different policies, give the customer contradictory instruction, and never offer to provide an interpreter or other assistive device for upcoming visits to the business.
  19. Ignore consistent and clear requests for accommodations.
  20. Customer service individuals not figuring out a way to communicate to people that can make the accommodation request happen despite a policy prohibiting such communications.
  21. Not allowing customer service personnel to talk to others within the company that could make the accommodations happen.
  22. Give your staff minimal or no training regarding accommodation requests.
  23. Not requiring customer service individuals to read the company’s safety and accessibility guide and making it clear that that guide only gets referred to if related questions come up.
  24. Do not have any language in your accessibility guide talking about an interactive process or how the company should make a good-faith effort when handling reasonable accommodation requests.
  25. Prohibit call center employees from communicating with staff at individual parks so as to make it extremely difficult to effectuate reasonable accommodation requests.
  26. Requiring fixed amount of advanced notice for certain kinds of accommodations when individual situation may not require such a long period of time.

 

II

Court’s Reasoning That Plaintiff Has Standing

 

  1. On nine occasions, plaintiff requested accommodations and defendant denied any kind of accommodation.
  2. Plaintiff testified credibly that he and his family like theme parks as a form of entertainment and want to return back to Six Flags in the future. In fact, plaintiff has returned since his first visit there.
  3. Defendant still requires seven days advance notice before ASL interpreters can be provided.
  4. Defendant still does not allow workers at the national call center to contact the park directly.
  5. Problematic policies and practices still remain.

 

III

Court’s Reasoning Throwing the Book at Six Flags

 

  1. A violation of the ADA is a violation of the Unruh act.
  2. To prove a violation of Title III of the ADA, a plaintiff has to show: 1) they are a person with a disability; 2) the defendant is a private entity operating a place of public accommodation; and 3) defendant denied public accommodations on account of the plaintiff’s disability.
  3. Under the ADA per 42 U.S.C. §12182(b)(2)(A)(iii), discrimination includes the failure to take such steps as may be necessary in order to ensure that no individual with a disability is excluded, denied services, segregated, or otherwise treated differently because of the absence of auxiliary aids and services.
  4. Auxiliary services per 42 U.S.C. §12182(1)(A), includes qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments.
  5. Plaintiff proved that he was excluded from fully enjoying Six Flags Discovery Kingdom because defendants twice did not provide auxiliary services, whether it be an interpreter or a handheld auxiliary device. As a result, plaintiff could not enjoy the shows and did not feel openly included while he was at the park. He also could not hear any announcements made over the park’s loudspeaker system.
  6. Six Flags provided him incorrect information about how to obtain an interpreter for upcoming visits.
  7. Six Flags staff did not help arrange for accommodations for upcoming visits and wound up denying accommodations on nine different occasions.
  8. Six Flags had the burden of showing that ASL interpreters on shorter notice than seven days would constitute an undue burden.
  9. While ADA regulations permit a defendant to show requested accommodation would be financially too burdensome based on the cost of the accommodation or the defendant’s overall financial resources, Six Flags offered no such evidence at trial and abandoned the undue burden defense altogether.
  10. It is not the plaintiff’s burden to train defendant’s employees.
  11. Even if plaintiff did not always call the right phone number, plaintiff did contact at least eight Six Flags employees over the course of the summer of 2021.
  12. Six Flags did not empower knowledgeable employees to make accommodation requests happen.
  13. Six Flags insufficiently trained its employees.

 

IV

Court’s Damage Awards, Granting of Injunctive Relief, and Denial of Declaratory Relief

 

  1. The court winds up awarding $18,209.88 in actual damages. It also winds up awarding $36,000 in statutory damages. Plaintiff also gets attorney fees to be determined later. The court did wind up denying punitive damages.
  2. A plaintiff seeking a permanent injunction must show: 1) irreparable injury; 2) remedies available at law, such as monetary damages, are inadequate to compensate for that injury; 3) considering the balance of hardships between the plaintiff and the defendant, a remedy in equity is warranted; and 4) the public interest would be not be disturbed by a permanent injunction. It is a totality of the circumstances test.
  3. Six Flags policies caused the defendant irreparable harm.
  4. Six Flags deficient training programs are still in place and therefore, plaintiff is likely to continue to be deprived of the combinations he needs to fully enjoy the Six Flags theme parks as he is entitled to under the law.
  5. Monetary damages would not compensate plaintiff due to the nature of the injury with respect to future dealings with Six Flags. Only an injunction can accomplish that.
  6. The cost of revision to Six Flags training regimen and company policies is small in comparison to the value or preventing similar unlawful discrimination from occurring in the future.
  7. Public policy strongly favors an injunction as the purpose of the ADA is to ensure independent living, and economic self-sufficiency.
  8. Granting declaratory relief would serve no useful purpose considering the damages awarded and the ward of a permanent injunction.

 

V

Thoughts/Takeaways

 

  1. Training, training, training, and it shouldn’t be a one off either (training is a huge part of my practice).
  2. Interesting that plaintiff chose to go with a bench trial rather than a jury trial. It worked out well for the plaintiff.
  3. Don’t forget about the do’s and don’ts of the interactive process, which we discussed here.
  4. Unreasonable delay in granting accommodations will get you in trouble. See also this blog entry.
  5. Empower your personnel to act on customer requests and that includes breaking down bureaucratic structures when necessary.
  6. A pet peeve of mine is not being able to get transferred to an individual that speaks English with an accent that I can understand. Amazes me, how often I have to fight to be able to communicate effectively with call centers. It is not unusual for me to have to cite chapter and verse the ADA to get the transfer to an accent that I can understand. As a result of my deafness, certain foreign accents are very difficult for me.
  7. Don’t offer reasonable accommodations having nothing to do with a person’s disability.
  8. Make sure your policies, practices, and procedures are disability centric and are followed by staff. The ADA is just a floor for such policies, practices, and procedures.
  9. Don’t forget about DOJ’s effective communication rules, which we discussed here, for example.
  10. ASL interpreters and personal care attendants are not the same thing.
  11. Magic words are not required to request an accommodation.
  12. The Unruh Act sets itself up as automatically being violated if the ADA is violated. It also allows for actual and statutory damages and attorney fees. Title III of the ADA only allows for injunctive relief and attorney fees.
  13. Persons with disabilities are not responsible for providing their own accommodations.
  14. The hearing loss community generally frowns on “hearing impairment,” rather that community prefers Deaf, deaf, or hard of hearing. Of course, it is very much an individual call.
  15. Businesses need to give out correct information to their customers and how to request reasonable accommodations/modifications.
  16. It makes sense as to why a company would stay away from a financial undue burden defense as that defense would activate discovery into the financial resources of the company.
  17. Did I mention training?
William Goren

William D. Goren is one of the country’s foremost authorities on the American with Disabilities Act (ADA) and the Rehabilitation Act of 1973. For 28 years and continuing, he has been advising on ADA compliance as both an attorney and professor—of which during…

William D. Goren is one of the country’s foremost authorities on the American with Disabilities Act (ADA) and the Rehabilitation Act of 1973. For 28 years and continuing, he has been advising on ADA compliance as both an attorney and professor—of which during his time as a full-time academic at various institutions in Chicago, he won numerous teaching awards and achieved tenure.

Read more about William GorenEmail
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