Impacts of the Americans with Disabilities Act on Transit Agency Liability (2018)

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56 In Falls v. Board of Commissioners of the New Orleans Regional Transit Authority,851 although the plaintiffs did not obtain a judgment on the merits or a consent decree, the parties’ voluntary settlement agreement approved by the court created the requi- site kind of material alteration in the parties’ legal relationship that was required for an award of attor- ney’s fees.852 XI. TITLE III AND DISCRIMINATION IN PUBLIC ACCOMMODATIONS A. Prohibition of Discrimination by Places of Public Accommodation Title III prohibits discrimination against individ- uals with disabilities by places of public accommo- dation. The term public accommodation includes “a terminal, depot, or other station used for specified public transportation….”853 Private entities operat- ing a fixed route system,854 a demand responsive system,855 or over-the-road buses are subject to Title III.856 It may be noted that only three transit agencies responding to the survey reported that they had any claims or cases in the past five years that alleged that their agency had violated Title III of the ADA.857 B. What Constitutes Discriminatory Action Under Title III Section 12182(a) of the ADA mandates that [n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommoda- tions of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.858 Section 12182(b) sets forth general prohibitions, stating that is discriminatory (1) to subject an individual or class of individuals on the basis of a disability or disabilities of such individual or class, … to a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, behavior [is modified] in a way that directly benefits the plaintiff,’ [but] a ‘technical victory may be so insignificant … as to be insufficient to support prevailing party sta- tus’”) (citations omitted). 851 No. 16-2499, 2017 U.S. Dist. LEXIS 98071 (E.D. La. June 21, 2017). 852 Id. at *27-28. 853 42 U.S.C. § 12181(7)(G) (2018). 854 Id. § 12182(b)(2)(B)(i) and (ii). 855 Id. § 12182(b)(2)(C). 856 Id. § 12182(b)(2)(D). 857 See Appendix C, Transit Agencies’ Responses to Question 23. 858 42 U.S.C. § 12182(a) (2018). fees after the plaintiffs’ “advantageous settlement” of their claims brought under the ADA and the Rehabilitation Act against the Tidewater Transpor- tation District Commission (Tidewater).844 The plaintiffs had complained first to the Department for Rights of Virginians with Disabilities (DRVD) concerning Tidewater’s failure to provide plaintiffs with next-day paratransit services. The DRVD is part of Virginia’s state system “to protect the legal and human rights of individuals with disabilities” that made the state eligible for federal funding under the Rehabilitation Act.845 Tidewater, which did not dispute the reasonable- ness of the award for attorney’s fees, argued on appeal that Virginia and federal law prohibited the award of any fees in the case.846 The court rejected the argument, holding that Virginia law on which Tidewater relied did not impose limitations on cases brought under federal law, because such an inter- pretation would violate the Supremacy Clause of the Constitution.847 Furthermore, the court held that “entities providing pro bono representation may receive attorney’s fees where appropriate, even though they did not expect payment from the client and, in some cases, received public funding.”848 Although not a transit agency case, K.M. v. Tustin Unified School District849 included a Title II ADA claim relating to ineffective communications. The court held that [p]ursuant to 42 U.S.C. § 12205, a federal court may award reasonable attorneys’ fees to the prevailing party in an action under the ADA. A prevailing party under the ADA “should ordinarily recover an attorney’s fee unless special circum- stances would render such an award unjust.” … Under fed- eral law, a “prevailing party” is one that effects “a material alteration of the legal relationship between the parties [whereby] the plaintiff becomes entitled to enforce a judgment, consent decree, or settlement against the defendant.”850 844 Id. at 230. 845 29 U.S.C. § 794e(a)(1) (2018). “To receive federal funding, a state system must have the authority to pursue legal, administrative, and other appropriate remedies or approaches to ensure the protection of, and advocacy for, the rights of individuals [with disabilities] within the State.” Brinn, 242 F.3d at 230 (citation omitted). 846 Brinn, 242 F.3d at 231. 847 Id. at 232 and 233. 848 Id. at 234-35. 849 78 F. Supp. 3d 1289 (C.D. Cal. 2015). 850 Id. at 1297 (citations omitted). See also Dillery v. City of Sandusky, 398 F.3d 562, 569 (6th Cir. 2005) (stat- ing that a “plaintiff may be considered a prevailing party if the plaintiff ‘succeeds on any significant issue in litiga- tion which achieves some of the benefit the parties sought in bringing the suit.’ … ‘The touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties,’ … such that ‘the defendant’s

57 Title III and the regulations also impose re- quirements in respect to architectural and other barriers.864 A public accommodation subject to this section shall remove transportation barriers in existing vehicles and rail passen- ger cars used for transporting individuals (not including barriers that can only be removed through the retrofitting of vehicles or rail passenger cars by the installation of a hydraulic or other lift) where such removal is readily achievable.865 The regulations state that “[a] public accommo- dation subject to this section shall comply with the requirements pertaining to vehicles and transporta- tion systems in the regulations issued by the Secre- tary of Transportation pursuant to section 306 of the Act.”866 D. Title III and Taxis, Transportation Network Companies, and Microtransit The question has arisen whether taxis and other providers and/or facilitators of a transportation or “travel service,” such as a transportation network company (TNC) or microtransit, are subject to Title III. It appears that the ADA’s definition of a public accommodation may be broad enough to include these kinds of transportation services. First, in regard to taxis, the ADA provides that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoy- ment of specified public transportation services pro- vided by a private entity that is primarily engaged in the business of transporting people and whose operations affect commerce.”867 As confirmed by the regulations, “[p]roviders of taxi service are subject to the requirements of this part for private entities primarily engaged in the business of transporting people which provide demand responsive service.”868 Thus, taxi companies come within the coverage of the ADA.869 Second, in regard to TNCs, “[t]he ADA lists twelve categories of private establishments that are considered a ‘public accommodation’ if they 864 42 U.S.C. § 12182(b)(2)(A)(iv) (2018). The section does not include barriers that can only be removed through the retrofitting of vehicles or rail passenger cars by the installation of a hydraulic or other lift. Id. See also 28 C.F.R. § 36.310(b) (2018). 865 28 C.F.R. § 36.310(b) (2018). 866 Id. § 36.310(c). 867 42 U.S.C. § 12184(a) (2018). 868 49 C.F.R. § 37.29(a) (2018). 869 See Rachel Reed, Disability Rights in the Age of Uber: Applying the Americans with Disabilities Act of 1990 to Transportation Network Companies, 33 ga. st. u. L. Rev. 517, 519 (2017), [hereinafter Reed]. facilities, privileges, advantages, or accommodations of an entity. (ii) … to afford an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, … with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accom- modation that is not equal to that afforded to other individuals. (iii) … to provide an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, … with a good, service, facility, privilege, advantage, or accommodation that is different or separate from that provided to other individuals, unless such action is neces- sary to provide the individual or class of individuals with a good, service, facility, privilege, advantage, or accommoda- tion, or other opportunity that is as effective as that pro- vided to others.859 It is discriminatory regardless of whether any of the foregoing actions are accomplished directly or through contracts, licenses, or other arrange- ments.860 Likewise, it is unlawful to use administra- tive methods that discriminate against individuals with disabilities or “that perpetuate the discrimina- tion of others who are subject to common adminis- trative control.”861 C. Transportation Services Subject to Title III Under § 12184(a) of the ADA, “[n]o individual shall be discriminated against on the basis of dis- ability in the full and equal enjoyment of specified public transportation services provided by a private entity that is primarily engaged in the business of transporting people and whose operations affect commerce.” Part 36 of the regulations issued by the Attorney General state that [a] public accommodation that provides transportation ser- vices, but that is not primarily engaged in the business of transporting people, is subject to the general and specific provisions in subparts B, C, and D of this part for its trans- portation operations, except as provided in this section.862 The term transportation services includes, for example, shuttle services operated between transportation terminals and places of public accommodation, customer shuttle bus services operated by private companies and shopping cen- ters, student transportation systems, and transportation provided within recreational facilities such as stadiums, zoos, amusement parks, and ski resorts.863 859 Id. § 12182(b)(1)(A)(i)-(iii). 860 Id. § 12182(b)(1)(A)(i)-(iv). 861 Id. § 12182(b)(1)(D)(i) and (ii). 862 28 C.F.R. § 36.310(a)(1) (2018). 863 Id. § 36.310(a)(2).

58 Although Uber and Lyft have argued that they are technology companies, rather than transporta- tion companies, whose operations do not come within the meaning of Title III, the courts arguably could find that TNCs are subject to the ADA in the same manner as “their most direct competitors: taxi companies.”880 Third, regarding micotransit, the term refers to IT-enabled private multi-passenger transportation ser- vices, such as Bridj, Chariot, Split, and Via, that serve pas- sengers using dynamically generated routes, and may expect passengers to make their way to and from common pick-up or drop-off points. Vehicles can range from large SUVs to vans to shuttle buses. Because they provide tran- sit-like service but on a smaller, more flexible scale, these new services have been referred to as microtransit.881 An article on microtransit and urban mobility provides some examples of microtransit: “[c]ommuter buses like Leap Transit or Chariot in San Francisco or Bridj in Boston…. Dynamic van- pools like Via in New York. Carpool start-ups like Carma. True cab-share options like UberPool (now claiming millions of trips) or LyftLine (now with fixed-point pick-ups).”882 Although no cases were located for this digest that address whether microtransit is a travel ser- vice that Title III covers, once more, 42 U.S.C. §§ 12181(7) and 12184(a) arguably are broad enough to cover microtransit. which can provide a model for other businesses in the sharing economy. Additionally, plaintiffs faced a signifi- cant hurdle in overcoming the motion to dismiss[] and took on the risk associated with raising novel legal issues in complex areas of jurisdictional, employment, and dis- crimination law. Thus, the Court finds that here, a multi- plier of 1.5 is appropriate to fully award plaintiffs for the fair market value of their work in taking on this case.”) 880 Reed, supra note 869, at 551. See also Ray a. munDy, wHy tncs wiLL be ReguLateD LiKe taxis—HistoRicaLLy sPeaKing: finaL RePoRt, at 12 (U.S. Dep’t. of Transp. & Iowa State Univ., May 2018). (Although not an ADA- analysis, the author concludes that, ultimately, “TNCs will be included within the local regulatory framework,” the same as taxis.), http://www.intrans.iastate.edu/ research/documents/research-reports/why_TNCs_regu- lated_like_taxis_w_cvr.pdf (last accessed June 20, 2018). 881 DePaRtment of tRansPoRtation, feDeRaL tRansit aDministRation, sHaReD mobiLity Definitions, https://www. transit.dot.gov/regulations-and-guidance/shared- mobility-definitions (last accessed June 20, 2018). 882 Eric Jaffe, How the Microtransit Movement Is Changing Urban Mobility, cityLab (Apr. 27, 2015), https://www.citylab.com/transportation/2015/04/how- the- microtransit-movement-is-changing-urban- mobility/391565/ (last accessed June 20, 2018). affect interstate commerce.”870 When the opera- tions of a private entity that is a “travel service” affect commerce, the private entity is a public accommodation subject to Title III.871 The term TNC refers to “an organization that provides pre- arranged transportation services for compensation using an online-enabled platform to connect pas- sengers with drivers using the driver’s personal vehicle. TNC’s include companies such as Lyft, UberX, and Sidecar….”872 Although not a definitive ruling on the applicabil- ity of the ADA to TNCs, in National Federation of the Blind of California v. Uber Technologies, Inc.,873 the plaintiffs, the National Federation of the Blind of California and three blind individuals, alleged that Uber Technologies, Inc. (Uber) discriminated against them in violation of Title III of the ADA by allowing UberX drivers to deny access to blind indi- viduals and their guide dogs.874 Uber moved to dis- miss on the basis that it is not a public accommodation under Title III. The plaintiffs argued that Uber’s operations come within the “travel service” category of public accommodations.875 A federal district court in California stated that “‘Congress clearly contemplated that service estab- lishments include providers of services which do not require a person to physically enter an actual physi- cal structure.’”876 The defendants failed to cite to “any binding law that Uber’s service is precluded from regulation as a ‘travel service’ under § 12182(b).”877 The court ruled that the plaintiffs’ alle- gations “demonstrate a plausible claim for Uber’s ADA liability under § 12182” and denied Uber’s motion to dismiss.878 In a later proceeding, the court approved the parties’ settlement agreement and awarded attorney’s fees to the plaintiffs.879 870 103 F. Supp. 3d 1073, 1083 (N.D. Cal. 2015) (citing 42 U.S.C. § 12181(7)). 871 42 U.S.C. § 12181(7) (2018). 872 caLifoRnia DePaRtment of insuRance, notice to tRans- PoRtation netwoRK comPany DRiveRs, http://www.insurance. ca.gov/0250-insurers/0300-insurers/0200-bulletins/bulletin- notices-commiss-opinion/TransNetwkDrvrs.cfm (last accessed June 20, 2018). 873 103 F. Supp. 3d 1073. 874 Id. at 1077. 875 Id. (citing 42 U.S.C. § 12181(7)(F)). 876 Id. (quoting Carparts Distrib. Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, Inc., 37 F.3d 12, 13 (1st Cir. 1994) (some internal quotation marks omitted)). 877 Id. 878 Id. at 1083-84. 879 Nat’l Fed’n of the Blind of Cal. v. Uber Techs., Inc., No. 14-cv-04086 NC, 2016 U.S. Dist. LEXIS 192176, *6 (N.D. Cal. Dec. 6, 2016) (“[T]he Court finds that plaintiffs sought to enhance Uber’s policies to protect blind riders,

59 Under the ADA, a party does not have to exhaust his or her administrative remedies before bringing an action.890 However, Title III does not provide for a private right of action to recover compensatory damages.891 Rather, the Act authorizes individuals who are subjected to discrimination, or who have reasonable grounds to believe they are about to be subjected to discrimination, to use the remedies and procedures in 42 U.S.C. § 2000a-3. Section 2000a- 3(a) states: Whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice prohibited by [42 U.S.C. § 2000a-2], a civil action for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order, may be instituted by the person aggrieved…. G. Injunctive Relief Under Title III, individuals are only entitled to seek injunctive relief.892 When granting injunctive relief, “[i]n the case of violations of § 36.304, § 36.308, § 36.310(b), § 36.401, § 36.402, § 36.403, and § 36.405 of this part, injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabili- ties to the extent required by the Act or this part.”893 Furthermore, “[w]here appropriate, injunctive relief shall also include requiring the provision of an aux- iliary aid or service, modification of a policy, or pro- vision of alternative methods, to the extent required by the Act or this part.”894 H. Attorney’s Fees Attorney’s fees are recoverable under § 12205 of the ADA. In any action or administrative proceeding commenced pur- suant to this Act, the court or agency, in its discretion, may 890 Coal. of Montanans Concerned with Disabilities, Inc. v. Gallatin Airport Auth., 957 F. Supp. 1166 (D. Mont 1997) (requiring airport authority to install an elevator). See 42 U.S.C. § 12188 (2018) and 28 C.F.R. § 35.172(a) (2018) (the latter stating that “[t]he designated agency shall investigate complaints for which it is responsible under § 35.171”). 891 Sigros v. Walt Disney World, Co., 190 F. Supp. 2d 165, 169 (D. Mass. 2002) and Anonymous v. Goddard Riverside Cmty. Ctr., No. 96 Civ. 9190 (SAS), 1997 U.S. Dist. LEXIS 9724, at *4 (S.D.N.Y. July 8, 1997). 892 Deck v. Am. Haw. Cruises, 121 F. Supp. 2d 1292, 1297 n.5 (D. Haw. 2000). See also Corless v. Cole, No. 13-00700 ACK-BMK, 2014 U.S. Dist. LEXIS 86677, at *13 (D. Haw. June 25, 2014) (stating that “[t]he only remedy available under Title III of the ADA is injunctive relief”) (citing 42 U.S.C. § 12188; Wander v. Kaus, 304 F.3d 856, 858 (9th Cir. 2002); and Deck v. Am. Haw. Cruises, Inc. 121 F. Supp. 2d 1292, 1297 n.5)). 893 28 C.F.R. § 36.501(b) (2018). 894 Id. E. Investigations and Compliance Reviews by the Attorney General The ADA authorizes the Attorney General to investigate alleged violations of Title III.883 When an individual or a specific class of persons has been subjected to discrimination that is prohibited by Title III or part 36, the individual may request the Justice Department to institute an investigation.884 Whenever the Attorney General believes that there is a violation of part 36, the Attorney General may initiate a “compliance review.”885 After a compliance review or investigation under 28 C.F.R. § 36.502, or at any other time, the Attor- ney General may commence an action in a federal district court whenever the Attorney General has “reasonable cause” to believe that (a) [a]ny person or group of persons is engaged in a pattern or practice of discrimination in violation of the Act or this part; or (b) [a]ny person or group of persons has been discriminated against in violation of the Act or this part and the discrimi- nation raises an issue of general public importance.886 F. Private Actions Under Title III Title III also is enforceable through private actions. As stated in the regulations implementing Title III, [a]ny person who is being subjected to discrimination on the basis of disability in violation of the Act or this part or who has reasonable grounds for believing that such person is about to be subjected to discrimination in violation of sec- tion 303 of the Act or subpart D of this part may institute a civil action for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order.887 To make a prima facie case of discrimination under Title III, a plaintiff must demonstrate that he or she has a disability within the meaning of the ADA; that the defendant is a private entity that owns, leases, or operates a place of public accommo- dation; and that the defendant denied the plaintiff a public accommodation because of the plaintiff ’s dis- ability.888 If a plaintiff is alleging discrimination because of an architectural barrier, the plaintiff must show that the ADA prohibits the architectural barrier at the defendant’s place of business and that the barrier’s removal is “readily achievable.”889 883 28 C.F.R. § 36.502(a) (2018). 884 Id. § 36.502(b). 885 Id. § 36.502(c). 886 Id. § 36.503(a) and (b). 887 Id. C.F.R. § 36.501(a). 888 Johnson v. Dhami, No. 2:14-cv-1150 KJM AC, 2014 U.S. Dist. LEXIS 122862, at *4 (E.D. Cal. Sept. 2, 2014). 889 Id. at *3 and *4.