Disney wins First DAS ADA Discrimination Lawsuit

jcb

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I've seen mixed information about the effectiveness of face shields in preventing droplet or aerosol spread of the virus. Disney's position is that DOJ rules prohibit it from requiring medical documentation in most situations. These rules were drafted in 1991 obviously not with the pandemic in mind. They are also very general. DOJ rejected the position that an entity can never make a medical inquiry in a direct threat situation but said that if the entity asks for medical information, it must apply the criteria to all customers and limit the questions to what is necessary to apply the standard. Reasonable minds can differ on how comments to a rule issued in 1991 apply to a 2020 COVID-19 pandemic situation in Florida. I can't fault Disney for trying to be protective even if it means disappointing folks who won't or can't wear a mask.

ETA: it's also a question of avoiding abuse. Some nut-jobs (can I say that on the DIS?) have developed cards proclaiming (stupidly) that they have ADA protection for refusing to wear a mask. It isn't far-fetched to think that folks might provide fake "medical documentation." Look at the abuses with the Guest Assistance Card.
 
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SteveMouse

DIS Veteran
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Oct 6, 2002
An interesting possibility: Disney could describe their current mask requirements as part of the current Disney experience. Could allowing individuals to not wear a mask be considered a fundamental alteration?
 

SueM in MN

combining the teacups with a roller coaster
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I empathize with the family who indicated their child can’t wear a mask, but I can’t believe they didn’t understand Disney’s policy. You can’t go anywhere on the Disney website or MDE without a notice about masks showing up.

The ADA did publish a Disability Issue Brief that covers people who say they can’t wear a mask.
These are examples of reasonable modifications to a face mask policy from the brief:
  • Allow a person to wear a scarf, loose face covering, or full face shield instead of a face mask;
  • Allow customers to order online with curbside pick-up or no contact delivery in a timely manner;
  • Allow customers to order by phone with curb-side pick-up or no contact delivery in a timely manner;
  • Allow a person to wait in a car for an appointment and enter the building when called or texted; or
  • Offer appointments by telephone or video calls.
The brief also indicates 3 situations where a reasonable accommodation may not be required.
1) Fundamental alteration (I‘m not a lawyer, but would think doesn’t apply)
2) Undue burden (I would think doesn’t apply)
3) Direct Threat (I think this would apply)
The brief also indicates that there are some situations where proof of disability may be required.

 

jcb

always emerging from hibernation
Joined
Apr 28, 2007
Today's Washington Post mentioned pending federal legislation involving COVID-19 and while that is a bit off-topic for this thread, the thread has discussed COVID-19 restrictions. In any event, Senate Bill 4317 (available https://www.congress.gov/116/bills/s4317/BILLS-116s4317is.pdf) would, if passed, address guests who refuse to wear masks or other mitigating measure mandated by the public accommodation. The bill would amend ADA Title III (and Title II of the Civil Rights Act) to say:

(A) IN GENERAL.—Notwithstanding any other provision of law or regulation, during any public health emergency period, no person who owns, leases (or leases to), or operates a place of public accommodation shall be liable under, or found in violation of, any covered public accommodation law for any action or measure taken regarding coronavirus and that place of public accommodation, if such person—​
(i) has determined that the significant risk of substantial harm to public health or the health of employees cannot be reduced or eliminated by reasonably modifying policies, practices, or procedures, or the provision of an auxiliary aid or service; or​
(ii) has offered such a reasonable modification or auxiliary aid or service but such offer has been rejected by the individual protected by the covered law.​
(B) REQUIRED WAIVER PROHIBITED.—For purposes of this subsection, no person who owns, leases (or leases to), or operates a place of public accommodation shall be required to waive any measure, requirement, or recommendation that has been adopted in accordance with a requirement or recommendation issued by the Federal Government or any State or local government with regard to coronavirus, in order to offer such a reasonable modification or auxiliary aids and services.​
This bill has not been passed. I have my doubts about whether it will pass. I should also stress that just someone introduces a bill in Congress, that doesn't mean the law doesn't already address the covered issue. I've already said I think the ADA direct threat rules very likely permit Disney to insist on masks. This bill would change the analysis but do about the same thing. We saw a good example of that this summer with the Supreme Court's decision holding Title VII prohibited employment discrimination against homosexuals.
 

jcb

always emerging from hibernation
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Apr 28, 2007
Once in Florida, the plaintiffs tried to add 30 more families prompting Judge Conway to rule that trying 44 lawsuits with multiple claims at one time was unmanageable so she "severed" the families' claims into 44 separate lawsuits. Some of these were later voluntarily dismissed. Judge Conway refused to try any California claims in Florida and dismissed those (they were refiled in California).
To return to the DAS lawsuits, in a prior post I alluded to some families (27 as it turns out) refiling their Disneyland claims in California federal court. I'll be honest, I tax my little gray cells by keeping track of my own litigation so trying to sort out litigation bouncing back and forth between Florida and California hasn't been a high priority. Fortunately, for those folks who care, the California court entered an order earlier this week explaining the status. I'll attach the order.

To summarize, unlike the Florida DAS litigation, it appears the California judges decided it would be more efficient to keep all the families' claims in one action. I don't know why. This doesn't mean the California proceeding is a "class action", however, it just means the claims have been "joined." When this happens, courts will often have the parties pick one or more claims to try as a "bellwether" ("one that takes the lead or initiative;" the term that has a rather odd origin if you believe https://www.merriam-webster.com/dictionary/bellwether). The order explains that, to date, Disneyland has won (on summary judgment) all three bellwether cases. In short, what started as 27 families suing Disneyland over DAS policies has been whittled down to "less than ten" families having active claims.

The claims these families asserts are generally the same as the one asserted in Florida. Unlike Florida, California's "Unruh Civil Rights Act" permits broader remedies for disability discrimination but does not (at least for present purposes) impose more stringent obligations than does the ADA. The families also assert "common law" claims - a term that confused me all through law school, but it essentially means claims not created by statute and, for states other than Louisiana, stems back to before the days when we decided the price of King George III's love was not a price we were willing to pay. Prior decisions ruled these common law claims turned on violations of the ADA so they failed when the ADA claims failed.

This week's order explains that the bellwether families tried to appeal the prior losses to the court of appeals but that court refused to hear the appeal (the court of appeals did not give a reason but it was probably because all the families' claims had not been finally decided by the district court). The district court had stayed (put on hold) the remaining claims pending a decision on the appeal but when the court of appeals declined to hear the appeal, that (and Judge Conway's order in the Florida case) prompted Disneyland to ask the district court to go ahead and rule on the claims of the remaining families. The district court agreed, so the attached order lets Disneyland move for summary judgment by October 9, 2020. I assume, but can't tell for sure, that this will let Disneyland seek dismissal of all the remaining claims. If so, and the court dismisses the remaining claims, that will permit the plaintiffs to appeal.
 

Attachments

  • OKW Lover

    Retired and living 2 miles from The Castle.
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    Apr 29, 2004
    Appreciate the update Jack. I'll exercise my little grey cells reading the order after I finish my glass of wine.
     

    jcb

    always emerging from hibernation
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    Apr 28, 2007
    There's been another interesting development, this time in the Florida lawsuit.

    Today, the court of appeals dismissed the appeal filed by the family of "A.L." This was the case tried to the Judge in February (see first post). The court of appeals dismissed the appeal for "want of prosecution" after the attorneys for the family failed to file a "Civil Appeal Statement." You can see the court's form for this statement here: https://www.ca11.uscourts.gov/sites/default/files/courtdocs/clk/FormCivilAppealStatement.pdf It isn't a complex form but it is required. The court's rules make this clear and require the clerk to give counsel for the appealing party notice that the appeal will be dismissed if the form isn't filed.

    when appellant fails to file a brief or other required papers within the time permitted, or otherwise fails to comply with the applicable rules, the clerk shall issue a notice to counsel, or to pro se appellant, that upon expiration of 14 days from the date thereof the appeal will be dismissed for want of prosecution if the default has not been remedied by filing the brief or other required papers and a motion to file documents out of time. Within that 14-day notice period a party in default must seek leave of the court, by appropriate motion, to file documents out of time or otherwise remedy the default. Failure to timely file such motion will result in dismissal for want of prosecution.​
    In short, I suspect the family and their counsel decided the chances of prevailing in the appeal were slim (as I previously discussed) and decided not to file the form knowing that would result in dismissal of the appeal.

    In related news, Disney continues to move the Florida court to act on the remaining families' claims. I mentioned a similar filing earlier (https://www.disboards.com/threads/disney-wins-first-das-ada-discrimination-lawsuit.3805252/post-62177291). The latest motion asked the court to send a notice to the remaining families that they had to present evidence about the fundamental alteration issue and then, if appropriate, dismiss the claims as a matter of law. Disney filed this motion a day before the court dismissed the appeal.
     

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    jcb

    always emerging from hibernation
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    Apr 28, 2007
    Thereofore is the A.L case over
    LIke anything in the law business, the answer is an indefinite "probably." If they came up with a real good excuse, the court might ressurrect the appeal. I do think this was done on purpose, however.
     
  • avagaston

    Earning My Ears
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    Mar 29, 2020
    Im a Disney lover and have a psychical disability, I don t see why Disney cant both have GAC and DAS but have a steictire policy on who receives what
     

    jcb

    always emerging from hibernation
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    Apr 28, 2007
    I expect you'll find the answer to your question if you read Judge Conway's decision. IT's an attachment to the second post in this thread. The short answer is that GAC was abused and the ADA prohibits Disney from having a strict policy limiting who receives accommodations because Disney can't ask guests for details about a guest's impairments.
     

    avagaston

    Earning My Ears
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    Mar 29, 2020
    Hello
    I have read your blog which is very well written and the order so I know whats the judge's saying , but let's assume we could ask for proof for this sake of argument, then what:?


    If the appea is dismissed what are the next steps for this families?
     

    jcb

    always emerging from hibernation
    Joined
    Apr 28, 2007
    Hello
    I have read your blog which is very well written and the order so I know whats the judge's saying , but let's assume we could ask for proof for this sake of argument, then what:?


    If the appea is dismissed what are the next steps for this families?
    Well, I think it pointless to speculate about this. I'll admit I'm rather skeptical about whether title III of the ADA (which governs this issue) actually prohibits asking for proof. The Department of Justice seems to say it does and Disney hasn't challenged it.

    But let's think about this. The ADA permits employers (under stringent conditions) to demand "proof" when an employee requests an accommodation or may pose a direct threat. This isn't simply a doctor's note. Those are generally worthless. Employer's can send employees to be evaluated and in many courts, it is settled that an employer does not violate the ADA by following a reasonable medical evaluation even if it doesn't say what the wants. The clearest example of this was a Northwestern University case where it told a basketball play his heart condition made him in eligible for competitive play. He sued and presented evidence that he could have safely played even with his heart condition. The court of appeals, however, (https://caselaw.findlaw.com/us-7th-circuit/1379984.html) held this missed the point:

    We disagree with the district court's legal determination that such decisions are to be made by the courts and believe instead that medical determinations of this sort are best left to team doctors and universities as long as they are made with reason and rationality and with full regard to possible and reasonable accommodations.   In cases such as ours, where Northwestern has examined both Knapp and his medical records, has considered his medical history and the relation between his prior sudden cardiac death and the possibility of future occurrences, has considered the severity of the potential injury, and has rationally and reasonably reviewed consensus medical opinions or recommendations in the pertinent field-regardless whether conflicting medical opinions exist-the university has the right to determine that an individual is not otherwise medically qualified to play without violating the Rehabilitation Act.   The place of the court in such cases is to make sure that the decision-maker has reasonably considered and relied upon sufficient evidence specific to the individual and the potential injury, not to determine on its own which evidence it believes is more persuasive.​

    Newspapers in Chicago still keep track of the guy's progress: https://www.chicagotribune.com/news/ct-xpm-2010-01-24-1001240011-story.html and medical journals count him as a statistic: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7237076/

    The point being, the "proof" you are asking about is very complicated. Guests Services CMs are very well trained, no doubt, but if Northwestern University had to get the court of appeals to resolve a "proof" issue, I expect it will give CM's fits.

    Disney has every reason not to want CM's to be making those decisions. Even with training, it is in Disney's interest to be as uniform as possible in making modifications. Let's suppose Disney gave CM's blanket authority to ask for proof and authority to issue the equivalent of a GAC. What would then happen is that the Internet would then tell anyone who wants immediate attraction access to go to guest services and ask for that same CM, or say that the CM gave them immediate access last week and the guest wants that again. That means you and I have to wait in the FP+ line longer and guests in standby lines must wait even longer.

    As for the families next steps, I hope they given DAS an honest try when time and the pandemic permits. I think they made up their minds it wouldn't work too soon but I'm not expert and I wasn't there. It's just that from a legal standpoint, refusing to even try what is offered is, like refusing food at your in-laws' dinner table, rather bad manners.
     

    avagaston

    Earning My Ears
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    Mar 29, 2020
    so, if Im reading it correcty, one of the reasons why the parties failed was due to the lack of counterargument of fundamental alerteration
     

    jcb

    always emerging from hibernation
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    Apr 28, 2007
    That’s not how I would put it but it is accurate. I would say the family failed to present evidence contradicting Disney’s evidence showing the family’s requested modification (near immediate access to attractions) would cause a fundamental alteration in the guest experience.
     

    CampbellzSoup

    Son. Husband. Father.
    Joined
    Oct 4, 2014
    Im a Disney lover and have a psychical disability, I don t see why Disney cant both have GAC and DAS but have a steictire policy on who receives what
    the problem is we can’t have nice things because people abuse them.

    I don’t make up or legislate the law but if your asking for a service from a company and they have a set standards you don’t have to participate in the service unless you submit something. It’s just a slippery slope.
     

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