Americans with Disabilities Act

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This year marked the 30^th anniversary of the passage of the Americans with Disabilities Act (ADA). AARP Foundation attorneys have been involved in many cases enforcing the ADA in areas of employment, housing, transportation, public accommodations, and access to government services.

One issue that may reach the Court is whether the United States Department of Justice (DOJ) has standing to enforce Title II of the ADA. The Eleventh Circuit recently ruled that Title II’s enforcement section refers to related statutes that grant the Attorney General standing to file suit to enforce the ADA’s provisions against states. United States v. Florida, 938 F.3d 1221, 1250 (11th Cir. 2019). The DOJ opposes Florida’s petition seeking rehearing en banc in United States v. Florida. No. 17-13595 (Oct. 29, 2019). DOJ has been effective in bringing lawsuits to enforce the rights of people with disabilities, particularly following the United States Supreme Court’s decision in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), which was a landmark decision construing the ADA’s integration mandate. DOJ’s Olmstead litigation and resulting settlements have produced meaningful change for people with disabilities across the United States. If the Eleventh Circuit affirms its ruling on DOJ’s standing, Florida might seek resolution of the matter at the Supreme Court in the coming year.

Whether ADA claims against long-term care providers, particularly assisted living facilities, are subject to arbitration is another issue being litigated in the federal appellate courts. See Stiner v. Brookdale Senior Living, Inc., 810 Fed. Appx. 531 (9th Cir. 2020). In Stiner, California residents of Brookdale-operated assisted living facilities litigated a putative class action alleging that Brookdale’s facilities are inaccessible and that its policies discriminated against people with disabilities. Id. at 533. Brookdale sought to compel arbitration of two of the eight named plaintiffs’ claims. Id. The Ninth Circuit held that the plaintiffs’ claims under the ADA “do not rest upon the residency agreement” and, therefore, the plaintiffs could not be compelled to arbitrate these claims under principles of equitable estoppel. Id. at 535. If Brookdale seeks review of this decision and the Court agrees to take the case, there could be broad implications for disability-based challenges to the operation of assisted living facilities throughout the country.

Accessible and available transportation is a vital issue for the 600,000 older adults who stop driving annually; this issue has been the subject of appellate litigation over the past year and may ripen for Supreme Court review in the near future. Whether ridesharing companies such as Uber and Lyft constitute public accommodations subject to Title III of the ADA is a significant issue. Title III of the ADA prohibits private entities that operate businesses open to the public from discriminating against members of the public based on disability. 42 U.S.C. § 12182. It is not clear, however, whether Title III applies to operators of app-based businesses without physical locations. See, e.g., O’Hanlon v. Uber Techs., Inc., No. 2:19-cv-00675, 2019 WL 5895425, at *6 (W.D. Pa. Nov. 12, 2019); Access Living of Metro. Chicago v. Uber Techs., Inc., 958 F.3d 604, 607 (7th Cir. 2020). A related issue is whether older adults who use ridesharing services but have not downloaded the app are bound by an arbitration agreement that would preclude litigation of ADA claims against rideshare operators. This issue is currently pending before the Third Circuit. O'Hanlon v. Uber Techs., Inc., No. 19-3891 (3d Cir. argued July 2, 2020). Also significant is the Ninth Circuit’s recent decision that a public community college’s termination of its on-campus shuttle service restricted students’ access to the college’s programs and, as such, violated Title II of the ADA. See Guerra v. West Los Angeles Coll., 812 Fed. Appx. 612, 615 (9th Cir. 2020). The Ninth Circuit held that Title II mandates that a public entity provide individuals with disabilities “meaningful access” to its programs and services, viewed in their entirety. Id. at 613-14. As these cases and others make their way through the courts, they will have a significant impact on older adults with mobility issues.

The ability of older adults who use wheelchairs to challenge barriers to accessing public accommodations may also come before the Supreme Court soon. The Sixth Circuit recently ruled that an Arizona resident traveling to Michigan, who alleged that two Michigan Kohl’s stores were inaccessible to wheelchair users, has standing to pursue injunctive relief under Title III of the ADA. See Mosley v. Kohl’s Dep’t Stores, Inc., 942 F.3d 752 (6th Cir. 2019). Any Supreme Court ruling clarifying the standard for a prospective injury requisite to standing would influence older adults’ ability to challenge barriers to their full engagement with their communities and their ability to travel freely.

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