Legal Notes

Supreme Court Punts in ADA Tester Case

Supreme Court “punts” in ADA “tester” case
by James J. Dean

If you are a place of public accommodation under the ADA – such as a hotel, restaurant, school, college, doctor’s office, accountant, realtor, store, car dealership or other business open to the public – you may be sued by an ADA “tester” for disability discrimination even though that person has no plans to visit your establishment or do business with you.

In Acheson Hotels, LLC v. Lauffer, the U.S. Supreme Court had an opportunity to change that. Unfortunately, on December 5, 2023, the Court “punted” the case because the “tester” who filed the lawsuit voluntarily dismissed her case during the appeal. That is unfortunate. Serial ADA “tester” litigation has become a cottage industry. As the United States Chamber of Commerce pointed out in its amicus brief in the case:

Litigation under Title III of the ADA (which prohibits discrimination on the basis of disability in places of public accommodation) has exploded over the past several years. Case filings have more than tripled since 2013 and now count more than 10,000 filings annually. These cases are unique not only in their explosive growth, but also in their geographic distribution. More than half of ADA Title III cases are filed in just three states: California, New York, and Florida.

In the Acheson Hotels case, the plaintiff, Deborah Laufer, used a wheelchair and lived in Florida. She sued Acheson Hotels after viewing its website and claiming that the website lacked information required by ADA regulations. Ms. Laufer sued Acheson Hotels even though she had no intention of going there. Ms. Laufer had sued hundreds of hotels that she had no intention of visiting (she sued over 600 hotels in the five years leading up to this case). She often offered to settle immediately for $10,000 in attorney’s fees and corrective action. Significantly, Ms. Laufer dropped her case against Acheson Hotels after one of her lawyers was sanctioned for lying about his attorney’s fees in court fee petitions and in settlement negotiations. The attorney was demanding $10,000 in attorney’s fees per case even though he was using “boilerplate” complaints.

When faced with an ADA accessibility lawsuit, many commercial establishments, especially smaller businesses, feel pressured to settle quickly to avoid the costs of litigation – even when they do not believe they violated the ADA. This is especially true in ADA “tester” litigation, which will continue to be filed in large numbers in Florida. However, there are defenses to ADA claims, and not all “testers” can satisfy the legal requirements to bring a lawsuit.

So, what should businesses do? First, check your websites and facilities to ensure compliance with the accessibility requirements of the ADA. Second, if an ADA claim is made against you, check your insurance policies to see if the claim is covered by insurance. And third, consider consulting legal counsel about your rights and defenses.

Don’t be too quick to discipline students for social media posts done off campus!

When may a school discipline a student for social media postings? Student speech is protected by the First Amendment. And when a student engages in “pure speech” on political or social issues, the student is entitled to extra protection. The law is clear that schools have authority to discipline students for things they say on social media while at school or at school-sponsored events, provided the speech disrupts classwork or invades the rights of others. But what about something a student posts on social media while the student is not at school or at a school-sponsored event?

The United States Supreme Court addressed this issue on June 23, 2021, in the case of Mahanoy Area School District v. B.L. In this case, BL had tried out for the varsity cheerleading squad at the end of her freshman year, but she wasn’t selected. Although B.L. was offered a spot on the JV squad, she wasn’t happy. During the weekend, while at a convenience store, she and a friend used B.L.’s smartphone to post some images on snapchat. According to the Supreme Court’s opinion, one of the images “showed B.L. and a friend with middle fingers raised” and included the caption, “Fuck school, fuck cheer, fuck everything.” The image was seen by the cheerleaders, other students and the cheerleading coaches.

What should the cheerleading coaches do in this situation? After talking it over with the school principal, the coaches decided to suspend B.L. from the JV cheerleading squad for the upcoming year based on her use of profanity and violation of team rules. The Supreme Court ruled against the School District, holding that the suspension violated B.L.’s First Amendment free speech rights (meaning B.L.’s suspension from the JV squad was expunged and she was also entitled to a judgment against the School District for her attorney’s fees).

The Court noted that although some members of the cheerleading team were upset, the school district had not shown that B.L.’s snapchat post had caused “substantial disruption” in the classroom or within the cheerleading program. The Court also explained that a school has less authority to discipline students for social media postings when the posting is not done while the student is at school or at a school-sponsored event.

The lesson here is that schools should not be too quick to discipline students for off-campus speech. Student discipline is more likely to be constitutional when it relates to: (a) perceived threats to school administrators, teachers, other staff or students; (b) speech that criticizes or derides school administrators, teachers or other staff and (c) clear instances of bullying and severe harassment of other students. Otherwise, schools should exercise great caution when considering discipline for off-campus speech.  

Case Information: Mahanoy Area School District v. B.L., 141 S.Ct. 2038 (June 23, 2021).

For more information, contact Bob L. Harris, Esq., at [email protected] or (850) 222-0720.

Employees Can’t be Fired for Being Homosexual or Transgender

It is now a violation of federal law for an employer to fire an employee because the employee is homosexual or transgender.

The United States Supreme Court, issued its ruling, in a 6 to 3 decision, on June 15, 2020, in the case of Bostock v. Clayton County, Georgia. Under the Court’s ruling, Title VII of the Civil Rights Act of 1964 now prohibits employment discrimination based on lesbian, gay, bisexual and transgender (LGBT) status.

The Court’s decision changes the law of Florida. The federal Eleventh Circuit Court of Appeals (which encompasses Florida, Georgia and Alabama) had previously held that sexual orientation was not protected under Title VII.

In the opinion for the majority, Justice Neil Gorsuch stated:

“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

Chief Justice John Roberts Jr. and Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor joined the majority. Justices Samuel Alito Jr., Brett Kavanaugh and Clarence Thomas dissented.

Significantly, the Court did not address the effect of today’s ruling on sex-segregated bathrooms, locker rooms, and dress codes. These other issues will continue to be hotly litigated.

For more information, contact:

James J. Dean, Esq.

[email protected]

850-222-0720

Selected Highlights of Families First Coronavirus Response Act (FFCRA) (March 19, 2020)

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (FFCRA) into law. Here are some highlights of the Act for employers:

FFCRA

  • takes effect: April 1, 2020
  • three major provisions for employers:
    • amends FMLA
    • establishes paid sick leave requirement
    • provides for tax credits for employers

Emergency Family and Medical Leave Expansion Act

  • Employers covered:
    • if have less than 500 employees
  • Employees covered:
    • if employed at least 30 days
  • Triggering Event for Benefit:
    • unable to work or telework due to need to care for employee’s child (under 18 years old) because child’s school or place of care is closed due to a public health emergency
  • Benefit:
    • 12 weeks of job-protected leave
    • 1st 10 days of leave may be unpaid
    • remainder of leave must be paid at two-thirds the employee’s regular rate
    • however, paid leave is capped at $200/day and $10,000 aggregate per employee
    • job restoration entitlement may not apply to small employers (less than 25 employees) under some circumstances

Emergency Paid Sick Leave Act

  • Employers covered:
    • if have less than 500 employees
  • Employees covered:
    • all full-time and part-time employees (regardless of length of employment)
  • Triggering events:
    1. Employee is subject to a federal, state or local quarantine or isolation order related to COVID-19;
    2. Employee has been advised by a health care provider to self-quarantine due to COVID-19 concerns;
    3. Employee is experiencing COVID-19 symptoms and seeking medical diagnosis;
    4. Employee is caring for an individual subject to a quarantine or isolation order or who was advised by a health care provider to self-quarantine due to COVID-19 concerns;
    5. Employee is caring for a son or daughter because the child’s school or place of care is closed or unavailable due to COVID-19; or
    6. Employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
  • Benefit:
    • Full time employees entitled to:
      • 80 hours of paid sick leave at employee’s regular rate – for reasons 1, 2 and 3
      • 80 hours of paid sick leave at two-thirds of the regular rate – for reasons 4, 5 and 6
    • Part-time employees entitled to:
      • Paid sick leave based on average number of hours worked during the prior 6 months
  • Caps on paid sick leave:
    • Capped at $511/day and $5,110 total per employee for reasons 1, 2 and 3
    • Capped at $200/day and $2,000 total per employee for reasons 4, 5 and 6
  • Other provisions:
    • Sick leave does not carry over to following year

Tax Credits for Paid Sick and Paid Family and Medical Leave

  • Employers entitled to payroll tax credits for payments made to employees

The foregoing is merely a summary of some of the primary provisions of the Act which apply to employers generally. There are many other detailed provisions that are not set forth here. If you have a particular question regarding how the FFCRA applies to you and your employees in particular, you should contact your legal counsel for advice.

For more information, contact:

James J. Dean, Esq.

[email protected]

850-222-0720

Are Opening Prayers at School Board Meetings Constitutional?

It is common in Florida for School Boards to open their meetings with a prayer or invocation. The practice lends a sense of solemnity to the meeting and can help to engender a positive atmosphere for discussion and decision-making. However, the practice of opening meetings with a prayer is being increasingly challenged in the courts as a violation of the Establishment Clause of the federal constitution.

On July 8, 2019, the federal Eleventh Circuit Court of Appeals (which covers Florida, Georgia and Alabama) issued a decision which will have important implications for School Boards and Superintendents in Florida. In Williamson v. Brevard County, a case filed by a group of Secular Humanists and atheists, the court held that Brevard County’s practice of opening its county commission meetings with prayer violated the Establishment Clause. The court made clear in its decision, however, that not all opening prayer practices are invalid. Much depends on the process used to select the persons who will offer the invocation.

In the Brevard County case, the individual commissioners took turns selecting the person to give the invocation. There were no clear guidelines to follow. Instead, each individual commissioner had broad discretion regarding who they would select. In practice, the commissioners selected representatives from only mainstream, monotheistic, faiths. They excluded other religious groups from consideration. For example, they categorically excluded deists, Wiccans, Rastafarians and polytheists, and they would likely exclude Hindus, Sikhs or followers of Native American religion. The court held that this violated the Establishment Clause because the commissioners were excluding certain religious groups based on the content of the groups’ religious beliefs.

Although the court held that Brevard County’s practice was a violation, the court also clarified that not all opening invocations are invalid. The court explained that just because an opening invocation is religious, or even sectarian, does not mean there is a violation – provided the selection process is neutral and does not discriminate against certain religious groups based on their beliefs.

School Boards and local governmental agencies that open their meetings with prayer should review their policies to ensure that their criteria and selection process is compliant with the principles set forth in the Williamson v. Brevard County decision.

Case Information: Williamson v. Brevard County, Case No. 17-15769, 2019 WL 2910807 (11th Cir. July 8, 2019).

For more information, contact:

James J. Dean, Esq.

[email protected]

850-222-0720

Employee Medical Leave Requests: Balancing the FMLA and ADA

When employees request a leave of absence due to medical issues, the Family and Medical Leave Act (FMLA) requires covered employers, those with 50 or more employees, to provide employees twelve weeks of unpaid leave for qualifying medical reasons. However, what if an employee needs more than twelve weeks of leave? Or, what if an employee has already used all of the employee’s FMLA leave for the year but needs more time off? Is the employer required to grant long periods of medical leave to employees in these circumstances? That question was recently addressed by two federal courts of appeal.Continue Reading Employee Medical Leave Requests: Balancing the FMLA and ADA

2017 In Review: Amendment 7 and the End of Peer Review Protection

Amendment 7 to the Florida Constitution provides patients “a right to have access to any records made or received in the course of business by a health care facility or provider relating any adverse medical incident.” Under Amendment 7, an adverse medical incident includes “any other act, neglect, or default of a health care facility or health care provider that caused or could have caused injury to or death of a patient . . . .” Continue Reading 2017 In Review: Amendment 7 and the End of Peer Review Protection

Credit Balances – It’s Not Yours to Keep

Most health care providers are familiar with the concept of a “credit balance”. A credit balance can occur when a health care provider is overpaid for a service that was provided. Sometimes the credit balance can occur when a patient or the patient’s third-party insurer pays too much for the service provided. Other times a credit balance may occur when there is more than one insurer and both insurers pay for the same service. For a variety of innocent reasons credit balances are not uncommon in a health care practice.Continue Reading Credit Balances – It’s Not Yours to Keep

Home Health Care Referral Sources Can be Legitimate Business Interests Under Florida’s Non-Compete Statute

It has long been established that non-compete agreements are enforceable only when justified by a “legitimate business interest.” A recent decision of the Florida Supreme Court held that home health care referral sources can be a protected legitimate business interest for purposes of this requirement of Florida law.Continue Reading Home Health Care Referral Sources Can be Legitimate Business Interests Under Florida’s Non-Compete Statute

Centers for Medicare and Medicaid Services Announces Transition to Targeted Probe and Educate Strategy

In August, 2017, the Centers for Medicare & Medicaid Services (“CMS”) announced a major change in how it will approach the selection of Medicare claims for improper payment review.Continue Reading Centers for Medicare and Medicaid Services Announces Transition to Targeted Probe and Educate Strategy