Disability Rights Amicus Brief filed with Supreme Court in Masterpiece Cakeshop Case

Earlier this week, a number of disability rights organizations submitted an amicus curiae briefto the U.S. Supreme Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission, an important civil rights case out of Colorado. Proud to say that I have a special connection to two of the appearing amici: I sit on the Board of Directors of the Disability Rights Bar Association, and also serve on the Litigation Committee of the Civil Rights Education and Enforcement Center. The fantastic firm of Rosen Bien Galvan and Grunfeld authored the brief.

The Masterpiece Cakeshop case poses the following question: Does the First Amendment provide businesses that open their doors to the public a constitutional right to discriminate? Obviously, my colleagues and I believe the answer to be a resounding NO.

Background

Two gay men, David Mullins and Charlie Craig, visited the Masterpiece Cakeshop in July 2012 to order a cake for their upcoming wedding reception. Masterpiece owner Jack Phillips informed the men that because of his religious beliefs the store’s policy was to deny service to customers who wished to order baked goods to celebrate a same-sex couple’s wedding. Mullins and Craig filed complaints with the Colorado Civil Rights Division (“CCRD”) contending that Masterpiece had violated the state’s Anti-Discrimination Act by refusing them service. That Act provides:

It is discriminatory practice and unlawful for a [place of public accommodation] . . . to publish, circulate, issue, display, post, or mail any written, electronic, or printed communication, notice, or advertisement that indicates that the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation will be refused, withheld from, or denied an individual or that an individual’s patronage or presence at a place of public accommodation is unwelcome, objectionable, unacceptable, or undesirable because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.

CO Rev Stat § 24-34-601 (2016)

The CCRD ruled in the couple’s favor, and Masterpiece appealed. In a May 30, 2014 decision, the Colorado Civil Rights Commission affirmed the CCRD’s finding that Masterpiece Cakeshop had engaged in discrimination, and ordered the business to: (1) modify its company policies; (2) provide comprehensive staff training regarding public accommodations discrimination; and (3) provide quarterly reports for two years regarding steps it has taken to come into compliance with Colorado’s Anti-Discrimination Act and whether it has turned away any prospective customers. The Colorado Court of Appeals affirmed the decision of the Commission on August 13, 2015, and Masterpiece appealed to the Colorado Supreme Court. When that court declined to hear the case, Masterpiece asked the Supreme Court of the United States to hear the case. The High Court announced its intent to review the appeals court decision on June 26, 2017; the case is scheduled to be heard on December 5, 2017.

How Does the Case of the Bigoted Baker Impact Disability Rights?

If legally acknowledged by the U.S. Supreme Court, the bigoted baker’s argument that religious freedom and freedom of expression provide valid defenses to a business’ non-compliance with anti-discrimination laws will weaken the rights of people with disabilities under the Americans with Disabilities Act (“ADA”). This, in turn, will jeopardize the ADA’s express goals of “equality of opportunity, full participation, independent living, and economic self-sufficiency” for disabled individuals. This is not just an alarmist prediction; businesses have used religious freedom and freedom of expression defenses in the disability rights context previously.

For example, in Colorado Cross-Disability Coal. v. Abercrombie & Fitch Co., disability advocates sued Abercrombie & Fitch Co. (“A&F”) over their use of inaccessible raised porch platforms at their Hollister clothing stores. 835 F. Supp. 2d 1077, 1078 (D. Colo. 2011). The store’s inaccessible entrances, as built, clearly violated the ADA’s accessibility requirements, with the effect of pushing people using wheelchairs to enter the store separately from shuttered side entrances. A&F argued that their non-compliance with accessibility standards, and segregated/unequal treatment of people with disabilities, was no big deal, and that the inaccessible porches were a “visual experience” and an integral part of their surf-lifestyle branding. In other words, A&F argued that its right to creatively express and brand itself, allowed it to disregard long-standing disability rights laws.  Hogwash.

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Photo of the staired entrance to a Hollister clothing store.

After six years of litigation, including mixed results from the Tenth Circuit Court of Appeals — affirming plaintiffs’ standing and the validity of class certification, but denying that the porches violated the ADA’s 1991 regulations — the Hollister lawsuit settled with an agreement by A&F to take steps to make the stores more accessible.

*Notably, I had the pleasure of drafting an amicus briefin the Hollister case on behalf of the following national disability rights organizations:   Legal Center for People with Disabilities And Older People, American Association of People with Disabilities, Center for Rights of Parents with Disabilities, Disability Rights Advocates, Disability Rights Education and Defense Fund, Disability Rights Legal Center, Legal Aid Society – Employment Law Center, National Disability Rights Network, and National Federation of the Blind.

Important Interests at Stake

Should the Supreme Court agree that businesses with an expressive or creative element can refuse service to some people as a valid exercise of religious freedom or freedom of expression, any business owner that provides custom services or products could claim a right to discriminate – and it won’t be limited to discrimination based on sexual orientation. A hotel could refuse to rent space to an interracial couple for their wedding; a childcare provider could deny services to a divorced parent; a tailor could refuse to alter a suit for a bat mitzvah; restaurants could disregard access requirements claiming the inaccessible features of their facilities to be part and parcel of their “branding”; a funeral home could deny services to the family of someone with mental illness who died from suicide.

In sum, it would allow the Constitution to be used to protect discrimination.

Unsurprisingly, the Trump administration, in a continuation of its attack on LGBTQI persons and civil rights, filed a brief in support of Masterpiece last month. In it, the Department of Justice agreed that the cakes of Masterpiece owner Jack Phillips are a form of expression and that he cannot be compelled to use his talents for something he does not believe in. It is absolutely disgusting that our current government would support such a position.  Crossing my fingers the Supreme Court gets this one right.

Success! Olympia Medical Center to Enhance Accessibility for Deaf and Hard of Hearing.

Along with my colleague Trevor Finneman of Almazan | Finneman, I recently reached an agreement with Olympia Medical Center (“Olympia”) to enhance access to the hospital’s medical programs and services for deaf and hard of hearing individuals. The parties worked collaboratively on this project for months.

Olympia has agreed to modify its existing effective communication policies and procedures to comport with legal standards and currently accepted best practices. The specific steps Olympia will take include:

  1. Providing notice of the availability of auxiliary aids and services to patients and companions;
  2. Adopting procedures for assessing the effective communication needs of patients and companions and actively consulting with patients and companions regarding the same;
  3. Adopting procedures for documenting the communication needs of patients and companions;
  4. Adopting procedures for the use of video remote interpreting (“VRI”) and qualified sign language interpreters;
  5. Adopting procedures for the provision of effective communication in emergency situations;
  6. Comprehensive training on the communication rights of individuals who are deaf and hard of hearing, and use of related technology;
  7. Identification of a coordinator(s) to be available 24 hours a day, 7 days a week to assist with effective communication issues; and
  8. Modification of effective communication grievance procedures.

Greater Los Angeles County has a deaf and hard of hearing community of over 600,000 persons. The improvements negotiated with Olympia will ensure communication access in the medical setting for that community.

Lawsuit against Manhattan Beach Nursery School Results in Major Changes

My lawsuit on behalf of minor J.R. against the Manhattan Beach Nursery School (“MBNS”) has concluded, resulting in a judgment requiring MBNS to remediate its facilities, adopt non-discrimination policies and train its staff. Monetary relief was also provided.

J.R. is a happy and vibrant six year-old with cerebral palsy who uses a wheelchair for mobility. J.R. sued MBNS after being denied admission to their nursery school program due to his disability. The lawsuit alleged violation of Title III of the American’s with Disabilities Act, 42 U.S.C. §12182 et seq.; California’s Unruh Civil Rights Act, Cal. Civ. Code § 51; and California’s Disabled Persons Act, Cal. Civ. Code § 54.1.

J.R. and his parents approached MBNS regarding enrollment in September 2014. After three months of interviews, observations and play dates, MBNS administrators advised J.R.’s parents that they had come to the decision that they were not ready, and therefore not able, to enroll J.R. at MBNS.

Comments reportedly made to J.R.’s parents during the application process by MBNS administrators made it clear that the reason J.R. was being denied admission was disability related. J.R. was described as “very different” than the other children in the program. The unique manner in which J.R. moved his body was a noted area of concern; staff appeared unwilling to physically interact with him as they did other children. It was suggested that J.R. be enrolled in a program that specialized in serving children with disabilities rather than enroll in MBNS. Additionally, despite having an ongoing legal obligation to remove architectural barriers to its facilities since at least 1993, MBNS was not physically accessible to children who use wheelchairs. MBNS administrators noted to J.R.’s father that although MBNS wanted to be a school that could meet all children’s needs, it would be years before that could happen.

Unfortunately, stories like J.R.’s are not unique. Children with disabilities are frequently discriminated against in child care facilities and nursery school programs. Here are links to Q & As from the Child Care Law Center (CA) and the Department of Justice on the topic.

With the school year approaching – know your rights!

Right to Reside with Assistance Dog Enforced

I recently obtained a successful settlement on behalf of S.G., an individual with mental health disabilities who was denied housing on the basis of her use of an assistance animal. The case raised some interesting issues, discussed below.

S.G. and her family had applied to rent a house in Poway, California. After being accepted as a tenant by the housing provider, S.G. requested permission to reside with an assistance animal. Immediately upon receiving the request, the housing provider sent S.G. a text message, withdrawing the offer to rent. I filed suit on S.G.’s behalf in the Southern District of California, alleging intentional discrimination in violation of the Fair Housing Amendments Act (“FHAA”), 24 U.S.C. § 3601 et seq., California’s Fair Employment and Housing Act, Cal. Gov’t Code § 12955 et seq., and California’s Disabled Persons Act, Cal. Civ. Code 54.1(b). These laws prohibit discrimination against an individual with disabilities due to his or her use of an assistance animal.

The defendant housing provider asserted two primary defenses in the case: (1) alleged material misrepresentations made by S.G., and (2) defendant’s alleged chronic obstructive pulmonary disease (“COPD”). The defendant also argued that the Court should ignore the defendant’s failure to engage in an “interactive process” with S.G. regarding her accommodation needs, as doing so would “elevate form over substance.”

Material Misrepresentations

With regard to the defendant’s first argument, the alleged “material misrepresentations” made by S.G. were never revealed prior to settlement. However, I have seen this argument previously. Housing providers will often argue that a potential tenant’s failure to reveal the need for an assistance animal during the application process is a material misrepresentation and/or constitutes fraud, voiding the housing contract. This is simply not true. The FHAA “does not require that a request [for accommodation] be made in a particular manner or at a particular time.” Book v. Hunter, No. 1:12-CV-00404-CL, 2013 WL 1193865, at *4 (D. Or. Mar. 21, 2013), appeal dismissed (Nov. 26, 2013)(citing Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Reasonable Accommodations Under the Fair Housing Act (May 17, 2004), hereinafter “Joint Statement”, at Question 12).  In fact, the FHAA actually prohibits housing providers from requiring prospective tenants to disclose their disabilities or accommodation needs pre-offer or as part of the application process. Joint Statement at Question 16. Although housing providers may prefer that prospective tenants disclose their disabilities and need for accommodation in the rental application process, there is no legal duty to make such disclosures. It follows, therefore, that the failure to make such disclosures is not a valid reason to deny an individual tenancy or grant his or her accommodation request. Book v. Hunter, at *4 (finding that while a housing provider “may have preferred” that the plaintiff make her request for a companion animal on her rental application, the FHA does not allow housing providers to deny requests for that reason).

Additionally, and I’ll mince no words here, the material misrepresentation / fraud argument is simply stupid. A housing provider is essentially saying that had they known about the prospective tenant’s disability or accommodation need, they would not have offered to rent to the individual in the first place. Defending discrimination with discrimination? Classic.

Alleged Dander Sensitivities

The defendant’s second defense was that she was severely susceptible to dog dander dude to COPD and therefore her withdrawal of the offer to rent to S.G. was justified. This argument also had significant problems. Among them:

  1. The rental property was not a shared rental; the defendant was not going to be living on site and encountering S.G.’s assistance dog.
  2. The defendant was 76 years old. The likelihood of her being on-site for significant periods of time to conduct or oversee repairs was slim; she was assumed to use contractors for such things.
  3. The defendant works as a real estate agent. It was anticipated that through discovery I would be able to establish that the defendant has visited clients and pieces of real estate where animals are present, without any significant adverse impact.
  4. There is no scientific evidence showing that people with COPD should avoid dogs. In fact, many individuals with COPD utilize assistance animals themselves for help with mobility and carrying items.
  5. My review of the defendant’s Facebook page revealed that she had a dog of her own, casting serious doubt on the veracity of her alleged health concerns. (Yes, defendants, be warned: if I’m suing you, I will also google-stalk you.)

Failure to Engage in the Interactive Process

Additionally, and most importantly, if the presence of an assistance animal was truly going to create medical concerns for the defendant, she had a legal obligation to: (1) engage in an interactive process with S.G. regarding her accommodation needs; (2) conduct an individualized assessment regarding any perceived threat presented by S.G.’s assistance dog; (3) determine whether there were accommodations that could reduce or eliminate any actual risk of harm; and (4) explore how S.G.’s need for an assistance dog could have been accommodated prior to denying her family housing. See, Joint Statement at Question 7. See also Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs, FHEO Notice: FHEO-2013-01 (April 25, 2013). The defendant failed and refused to engage in such a process. The defendant did not disclose her alleged health concerns; sought no information about S.G.’s dog to assess the actual nature or severity of any alleged risk; and failed to explore the availability of mitigating measures or alternative accommodations. Rather, the offer to rent was simply, and abruptly, withdrawn.

The defendant claimed that there was “no accommodation” that could avoid her exposure to the dander of S.G.’s assistance dog short of compelling her to hire a property manager or property management company. On this basis, the defendant suggested that requiring compliance with the interactive process obligation would elevate “form over substance.” In response, I pointed out that the purpose of the interactive process is to share information and ideas to determine whether a tenant’s needs can be reasonably accommodated. The defendant – who again, had a dog of her own – could not unilaterally conclude that there was no way S.G.’s need for an assistance dog could be accommodated in her rental. Had the defendant bothered to comply with the interactive process requirement, she would have learned that Plaintiff’s assistance animal was a breed characterized by low dander and deemed a good fit for individuals with dander allergies or sensitivities. Moreover, there were ways that anticipated contact with dog dander during periodic inspections or other on-site visits by the defendant could have been mitigated or avoided, from increased house cleaning and/or dog grooming, to use of an allergy mask.

Happily, this federal action was settled at an Early Neutral Evaluation, resulting in a change in the defendant’s rental policies, fair housing training and a monetary payment.  S.G. now lives in alternative housing with a non-discriminating landlord and her assistance dog.

California Advocates Weigh in on Draft Jury Instructions Regarding Disability Discrimination in Housing

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Image: words related to fair housing in black and white, shaped like a house. The phrase “fair housing” runs across the middle of the house in red lettering.

On March 3, 2017, my office, along with the National Housing Law Project, the Legal Aid Foundation of Los Angeles, Disability Rights California and Western Center on Law and Poverty submitted comments to the Judicial Council of California regarding draft jury instructions on disability discrimination in housing under the Fair Employment and Housing Act (Cal. Gov. Code § 12900 et seq.).

Draft jury instructions 2548 and 2549 address the refusal to make reasonable accommodations in housing and the refusal to make or allow reasonable modifications in housing. The concepts of reasonable accommodations and reasonable modifications are prevalent throughout both state and federal fair housing law. In fact, on the federal level, the Department of Justice and the Department of Housing and Urban Development have published consumer-friendly joint statements on both topics: Joint Statement on Reasonable Accommodation; Joint Statement on Reasonable Modification.

Our comments on the draft jury instructions addressed the need to define certain legal terms, such as “reasonable” and “necessary.” We also advocated for amendment of the jury instructions to include and explain: (1) the obligation of housing providers to engage in an “interactive process” with individuals with disabilities prior to denying an accommodation or modification request; (2) the burden of proof in accommodation cases; and (3) the obligation of housing providers to pay for modifications when the housing involved is also subject to Section 504 of the Rehabilitation Act of 1973 or Title II of the Americans with Disabilities Act. Read our complete comments here.

It is our hope that our comments will be incorporated in full, so that juries in fair housing cases will better understand the protections provided by the Fair Employment and Housing Act, and be better equipped to apply the law when the rights of people with disabilities are violated.

Advocates Oppose H.R. 985, the Fairness in Class Action Litigation Act of 2017

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Today I joined 87 legal firms and 120 civil rights non-profit organizations in voicing strong opposition to H.R. 985, the Fairness in Class Action Litigation Act of 2017 (“Act”). We believe this sweeping and poorly drafted piece of legislation will undermine the enforcement of this nation’s civil rights laws and upend decades of settled class action law.

In a letter addressed to Chairman Bob Goodlatte and Ranking Member John Conyers of the Committee on the Judiciary U.S. House of Representatives, signatories expressed concern that the Act will create needless chaos in the courts without actually solving any demonstrated problems. See here and here for the opposition letter and list of signatories.

As advocates for the marginalized and often invisible members of our society, signatories also reminded the Committee that class actions are critical for the enforcement of laws prohibiting discrimination in employment, housing, education, and access to public areas and services. As the Supreme Court has recognized, class actions provide “vindication of the rights of groups of people who individually would be without effective strength to bring their opponents into court at all.” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 617 (1997).

The letter called for public hearings, and highlighted some of the most concerning aspects of the Act, including:

  • It would add years of additional delay, expense, and disruption;
  • It would impose a new and impossible hurdle for class certification;
  • It would impose a heightened standard for identifying class members, an approach that has been rejected by the majority of circuits
  • It would enact arbitrary and unworkable standards for attorneys’ fees that would have the effect of undermining civil rights enforcement

Much thanks for Jocelyn D. Larkin, Executive Director of the Impact Fund for spearheading this effort.

Honored to be Named a 2017 Southern California Super Lawyer

I am honored to have again received the honor of being named a Southern California Super Lawyer for my work in the area of civil rights. At a time when civil rights are under seemingly constant attack, it’s nice to be recognized for doing something good, and doing it well.

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have achieved a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations.