Seyfarth Synopsis: The Biden DOJ Civil Rights Division has been much more active than its predecessor in enforcing Title III of the ADA and supporting plaintiffs in pending litigation.
As we predicted in January, the Civil Rights Division at the Department of Justice (DOJ) under the Biden Administration has been very busy. In the nine months since President Biden took office, the DOJ has issued a guidance on "long COVID," filed Statements of Interest (SOI) in three ADA Title III (public accommodation) cases and three ADA Title II (state and local government) cases, and renewed its effort, dormant under the prior presidential administration, to pressure businesses to make their websites accessible to users with disabilities through threats of enforcement actions. It is even piloting a new www.ada.gov website.
Not surprisingly, all of the SOIs the DOJ has filed this year have been in support of plaintiffs with disabilities. In the first SOI filed in the Western District of Pennsylvania, the DOJ took the position that - pursuant to the ADA obligation to make reasonable modifications to normal policies, practices, and procedures - places of lodging must provide lowered beds for people with disabilities who cannot transfer to high beds. Regrettably, DOJ failed to state in the SOI (or anywhere else, for that matter) what constitutes a lowered bed, making it very difficult for lodging facilities to know what sort of beds they need to purchase in case they need to make such a "reasonable modification."
In the second SOI — filed in a case in the Northern District of Illinois — the DOJ took the position that blood plasma donation centers are "public accommodations" under Title III of the ADA, even though donors are compensated for their plasma. The DOJ stated that such centers are "service establishments" - one of the types of businesses listed under the definition of "public accommodation" under the Title III statute. The Third and Tenth Circuit Courts of Appeals have reached the same conclusion, but the Fifth Circuit has found such centers to not be places of public accommodation.
The third SOI filed by the DOJ was in a case brought against a health care provider that used self-service check-in kiosks that are inaccessible to the blind. The blind plaintiffs alleged that there were no employees to provide assistance so they had to seek the assistance of strangers. The health care provider argued that the kiosks had a function to notify employees to provide assistance. The DOJ did not find this solution satisfactory because "[r]elegating patients with disabilities who have scheduled appointments to the bottom of the walk-in waitlist because of a lack of auxiliary aids and services is treating those patients differently."
Just last week, the DOJ filed an SOI in a case brought by the parents of school children with disabilities challenging Texas Governor Abbott's Executive Order GA-38, which prohibits school districts from imposing mask requirements in school programs and facilities. Although the case was brought under Title II of the ADA, which applies to the programs and activities of state and local governments, some of the arguments DOJ made could prove helpful to public accommodations defending their own mask requirements in lawsuits brought under Title III of the ADA. For example, DOJ argued that the Executive Order denied the disabled plaintiffs who were at greater risk for COVID-19 complications access to school because the absence of masks created an unsafe environment for them. The DOJ also argued that the Executive Order prevented school districts from complying with their obligation to make reasonable modifications to policies and procedures (i.e., require masks to be worn) to ensure that the disabled plaintiffs have access to school facilities and programs. Under the right circumstances, a business might be able to make an analogous argument that to protect customers with disabilities who face a higher risk for COVID-19 complications and to ensure they can enjoy the business' goods and services, the business must impose mask requirements for everyone seeking to enter its facility.
All four SOIs can be found at ADA.gov at https://www.ada.gov/enforce_activities.htm.
In stark contrast to the Trump's Administration Civil Rights Division, which did not address any COVID-19 issues as they relate to Title III of the ADA, the Biden Civil Rights Division has also issued a joint statement with the Department of Health and Human Services stating that long COVID (i.e. new or ongoing symptoms caused by COVID-19 that can last for weeks or months after an infection) can be a disability, depending on whether the ongoing symptoms meet the definition a disability under the law.
On the investigation/enforcement front, we have seen greater activity by the DOJ in new and pending investigations. This is no surprise and businesses should expect to see much more action from DOJ in the coming years.
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