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Today’s blog entry goes back to the issue of whether an Internet only business website is subject to title III of the ADA. As we have discussed previously, such as here, there are several theoretical possibilities for handling such a claim, and they are: Internet is never a place of public accommodation; Internet is always a place of public accommodation; Internet site only has to be accessible if it is a gateway or has a nexus to a physical place; and Internet site has to be meaningfully accessible to persons with disabilities if it is of the type of
Continue Reading Southern District of New York Splits Within Itself: Internet Only Business Not a Place of Public Accommodations

As everyone knows, I keep a pipeline of cases to blog on. Sometimes, even with my pipeline of cases, I just get stuck. One of the things that my readers may not realize is that while my practice focuses on understanding the ADA so that the client understands how to comply with that law and related laws, “related laws,” really means something. For example, I have consulted on a case involving the interactive process with respect to the Fair Housing Act. I also have consulted on several cases involving the intersection of the Airline Deregulation Act, Title II of the
Continue Reading DOT Hammers American Airlines for its Treatment of Persons with Disabilities

I hope everyone that celebrated had a good new year season. Wishing all of those a happy new year. In other news, early election voting is underway in many states. My family voted yesterday. Be sure to vote for the candidate of your choice.
 
Today’s blog entry returns to a long-standing interest of mine. As readers know, I have long been interested in the intersection of sports and the ADA. You can find many Understanding the ADA blog entries that explore the intersectionality of the ADA and sports. Today’s blog entry is a bit different because it explores Title
Continue Reading Interactive Process, Retaliation, and Interference in Title III

Our blog entry of the day reminds me of the situation where a team wins the football game but loses a key player in the process. I thought of that when reading EEOC v. Walmart Stores East, L.P., here, decided by the Seventh Circuit on August 27, 2024. As usual, the blog entry is divided into categories, and they are: facts; Walmart’s knowledge of plaintiff’s disability and the interactive process; sufficiency of evidence for punitives and compensatory damages should not be reduced; need to revisit the district court’s injunctive relief order; and thought/takeaways. Of course, the reader is free
Continue Reading Won the Game But Lost the Right Tackle: EEOC v. Walmart Stores East, L.P.

Before proceeding with today’s blog entry, I want to wish everyone celebrating a happy new year. I realize that my blog entry is late this week, but I have a good reason for it. We got back from parents weekend last Sunday, then had to deal with Helene damage, which fortunately was not anything that couldn’t be handled, and then we had the Jewish new year.
 
The blog entry of the week continues our theme from last week, which is nondelegable duties of Title II entities and how they may face direct liability for that delegation or for ignoring
Continue Reading Direct Liability for a Title II Entity Delegating Their ADA Responsibilities Redux

On Friday of last week, I presented to the Minnesota CLE Health Law Institute in Minneapolis on working with disabled clients and disabled attorneys. One of the cases that came up is the one that we are going to be talking about this week, Battle v. state of Tennessee, here, decided by the Middle District of Tennessee on September 6, 2024. If the reasoning of this case proves persuasive in other courts, this decision could be a very big deal indeed for the reasons we will discuss. As usual, blog entry is divided into categories, and they are: facts;
Continue Reading Direct Liability for a Title II Entity Delegating Their ADA Responsibilities

Before getting started on the blog entry for the week, I did finish Over Ruled. What is clear from reading the book, is that Justice Gorsuch clearly believes that the administrative state had gotten too big and that sufficient guardrails for the administrative state do not exist. Also, from reading that book, it is pretty clear to me that he would think Loper Bright overruled Kisor v. Wilkie. So, administrative regulations he will uphold will have to have a very tight relationship to the particular statute and even more so with respect to any guidances. It will be interesting to
Continue Reading In a Batson Challenge, what Prosecutor Says is Everything or is It?

I hope everyone had a good weekend. I just got back from the Federal Bar Association national convention in Kansas City, which was fabulous. I was part of a fantastic panel speaking on policing and persons with disabilities. In particular, we talked about a lot of different things. My part focused on why Graham v. Connor should no longer be used as the basis for training (we discussed that issue in this blog entry), and the police responsibility for getting the laws regarding service animals, particularly with respect to title III of the ADA, correct. The panel was fabulous
Continue Reading Temporary Impairments, Minor Defined, and Whether Medical Testimony is Required in Order to Establish a Disability

I hope everyone had a great holiday weekend.
 
This week’s blog entry is a case out of the Second Appellate District of the Court of Appeal of the State of California. It is a case involving whether attorney fees can be imposed upon plaintiff’s counsel as a sanction when the lawsuit is frivolous. The case is Morgan v. Zarco Hotels Inc. decided on August 21, 2024 and can be found here. As usual, blog entry is divided into categories and they are: facts; court’s reasoning the award of attorney fees against plaintiff’s counsel as a sanction must be
Continue Reading Can a Court Sanction an Attorney By Imposing Attorney Fees on the Attorney in an ADA Matter?

Did you know that asthma might not be a disability? How is that even possible? After all, asthma is certainly a physical impairment that limits breathing and the immune system. Even so, the Sixth Circuit in Andrews v. Tri-Star Sports and Entertainment Group, Inc., here, on August 21, 2024, said that a plaintiff’s asthma was not a disability under the ADA. How did they get there? There was also a dissenting opinion worth discussing as well. As usual, the blog entry is divided into categories and they are: facts; majority opinion’s reasoning that Andrews forfeited certain arguments; majority opinion’s
Continue Reading Did You Know that Asthma Might Not be a Disability? I Didn’t Either Until Now

Before getting started on the blog entry of the day, I am currently reading Over Ruled by Justice Gorsuch and Janie Nitze. My passion for constitutional law and legal theory started in college when I took those two separate classes from Professor Rumble while majoring in political science at Vassar College. Now, I enjoy reading books like that to get a sense of what a jurist’s philosophy might be. Justice Gorsuch, regardless of whether you agree with him or not, is a fabulous writer and very enjoyable to read. One thing is clear from reading the book is that it
Continue Reading There Can Be a Fine Line Between Medical Malpractice and Disability Discrimination

When Cummings v. Premier Rehab Keller was decided, discussed here, it was inevitable that eventually courts would start addressing the issue of whether Title II of the ADA allows for emotional distress damages. During Cummings oral argument, a couple of the Justices anticipated that, and court decisions are beginning to come on this issue. The latest, which is the blog entry for this week, is a published decision from the 11th Circuit in A.W. by and through J.W v. Coweta County School District, here, decided on August 7, 2024. As usual, the blog entry is divided into categories and
Continue Reading It Was Inevitable: A Court of Appeals Holds Emotional Distress Damages Not Available Under Title II of the ADA

Before getting started on the blog entry of the day, I wanted to mention a decision decided by the California Supreme Court on July 29, 2024, here. In that case, Bailey v. San Francisco District Attorney’s Office, the California Supreme Court held that: hostile work environment must be viewed in the totality of circumstances; hostile work environment must be viewed from the perspective of the person with the protected characteristic; a single occurrence might possibly suffice to have a hostile work environment; and retaliation doesn’t have to involve anything other than an effect on terms and conditions of employment.
Continue Reading HUD Circular May Well Survive Kisor But What About Loper Bright

I am taking a break from watching the Olympics on Peacock and other channels. Hoping everyone has a good end to the summer. At least in my town, K-12 starts for the kids tomorrow.
 
Today’s blog entry deals with the question of what happens when you have a fitness for duty exam that doesn’t properly evaluate what it is supposed to evaluate. Further, what happens if the person that is being evaluated suggests a another way to be evaluated and the employer turns it down. The answer is the employer gets hit with a $1,023,424.34 verdict. This is exactly
Continue Reading Failure to Accommodate When Doing a Fitness for Duty Exam May Cost You Big Time

Today’s blog entry is going to be a short one. One of the issues we have discussed quite a bit in a variety of contexts is sovereign immunity. What happens when the claim is retaliation and sovereign immunity is involved? Does sovereign immunity get forcibly waived in that situation? A case answering this question is a published decision from the Sixth Circuit decided on June 24, 2024, is the case of Stanley v. Western Michigan University, a published decision out of the Sixth Circuit, here. As usual, blog entry is divided into categories and they are: facts; court’s reasoning
Continue Reading Retaliation, Sovereign Immunity, and Title I

The EEOC has been focused on AI discrimination in the workplace for some time. It has been a particular focus, though not exclusively with him, for outgoing EEOC Commissioner Keith Sonderling, who actually wrote a law review article on the topic (see ¶ 1 of thoughts/takeaways §). During the last academic year, I was part of a Ohio Northern University Law Review symposium on artificial intelligence and spoke on AI in employment and what that means for people with disabilities. That presentation will become a law review article coming out in the fall.
 
The case of the day, Mobley
Continue Reading AI (Artificial Intelligence) Provider Can be Held Liable as an Employer Under Antidiscrimination Statutes