Transcript Mark F. Jacobs Katskee, Henatsch & Suing    Americans with Disabilities Act of 1990 (ADA) 42 USC §§ 12102 et seq Five Titles: ◦ Title.

Mark F. Jacobs
Katskee, Henatsch & Suing



Americans with Disabilities Act of 1990 (ADA)
42 USC §§ 12102 et seq
Five Titles:
◦ Title I Employment
◦ Title II Public Entities (includes Courts)
◦ Title III Places of Public Accommodation
42 USC §§ 12181-89
◦ Title IV Telecommunication
◦ Title V Miscellaneous provisions

28 CFR Part 36
◦ Regulations issued by the Department of Justice
to implement Title III.
◦ Appendix - ADA Standards for Accessible Design
(1991 Standards).

Public Accommodation defined by 42 USC
§12181(7)(F) are private entities including:
“A laundromat, dry-cleaner, bank, barber shop,
beauty shop, travel service, shoe repair service,
funeral parlor, gas station, office of an accountant
or lawyer, pharmacy, insurance office,
professional office or healthcare provider,
hospital or other service establishment.”

What does being a place of public accommodation
mean?
◦ Prohibits discrimination
 “…on the basis of disability in the full and equal enjoyment
of the goods, services, facilities, privileges, advantages or
accommodations on any place of public accommodation by
any person who owns, leases (or leases to) or operates
places of public accommodation.” 42 USC§12182
◦ Duty




Remove physical barriers where readily achievable
Reasonable modification of rules and procedures
Provide effective means of communication
Must provide aids, unless undue burden or fundamentally
alters services offered
Sec. 12102. Definition of disability
As used in this chapter:
(1) Disability. The term "disability" means, with
respect to an individual
(A) a physical or mental impairment that
substantially limits one or more major life
activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an
impairment (as described in paragraph (3)).

Removing Physical Barriers
◦ Readily achievable without much difficulty or expense 42
USC §1281(9)
◦ Priority
1.
2.
3.
4.




Accessible approach and entrance
Access to goods or services
Access to public restrooms
Any other measures necessary
Tax Credit 26 IRC §44
Tax Deduction 26 IRC §190
ADA Accessibility Guidelines (ADAAG)
ADA Standards for Accessible Design

Make Auxiliary Aids and Services available upon
request:
◦ Hearing Loss:




ASL Interpreter
Video Relay System
TTYs/TDDs
Communication Access Real-Time Translation (CART)
◦ Vision Disability:
 Braille materials
 Large print materials
 Audio recordings


Tax Credits and Deductions
Service Animals

The term qualified interpreter is defined in
the regulation to mean: " . . . an interpreter
who is able to interpret effectively, accurately
and impartially both receptively and
expressively, using any necessary specialized
vocabulary. " 28 C.F.R. 36.104.

Repercussions for Violations
◦ Private Lawsuits CFR §36.501
 Injunctive relief
 Attorney’s fees and litigation expenses
◦ Suit by Attorney General CFR §36.503-36.504
 Equitable relief
 Monetary damages
 Civil Penalty
 $55,000 – first violation
 $110,000 – subsequent violation
 Attorney’s fees and litigation expenses

Examples
o Gregg Tirone, New York (2004)
•
•
•
•
•
Failed to provide client with sign language interpreter for deaf client.
Used client’s sister to interpret.
Post statement in legal paper and in office
Pay $2,200 to client and waive any fees owed
Agreement open for 3 years
o Law Office of Cohen and Jaffe, LLC New York (2006)
• Failed to provide sign language interpreter in advance of deaf client’s
deposition.
• Used client’s mother to interpret.
• Finally provided an interpreter, but charged the client for this service.
• Post statement in office.
• Pay client $7,000.
• Agreement open for 2 years

Examples cont’d
◦ Joseph Camacho, New Mexico (2007)
 “Never had to pay to converse with own client.” Withdrew
from case.
 Post and follow new policy.
 Pay client $1,000 in damages.
 Agreement open for 3 years
◦ Peroutka and Peroutka, Maryland (2013)
• Debt collection firm.
 Refused to accept Video Rely Service Calls from individuals
looking to resolve disputes on unpaid debts
 Revise policies
 $30,000 to complainants
 Agreement open for 3 years

Examples, cont’d
◦ Lehouillier & Associates, Colorado (2010)







Denied service dog of opposing party at deposition
Post “Service Animals Welcome”
Training to staff
$30,000 to complainant
$10,000 to complainant’s husband
$10,000 civil penalty
Agreement open 3 years
◦ Dr. Fogari, New Jersey (2008)
 Deaf patient, 20 visits in 20 months.
 Said couldn’t afford cost of $150-$200 for interpreter, told
client to go to another doctor
 Earned over $400,000 year
 $400,000 verdict

Websites
◦ 2006 ABA Resolution
RESOLVED, That the American Bar Association urges
that websites provided by lawyers, judges, law
students, and other individuals or entities
associated with the legal profession, including law
firms, the courts, other legal employers, law
schools, and legal publishers be created and
maintained in an accessible manner which is
compatible with reasonable technologies (known as
assistive technology) that permit individuals with
visual, hearing, manual, and other disabilities to
gain meaningful access to these web sites.

Best Practices
◦ Inform yourself and train your staff
◦ Don’t ask client to bring relative to interpret
◦ Never bill client for cost of accommodation or
auxiliary aid
◦ Communicate with client to determine their
preferences
◦ Use the ADA checklists and review your physical
office
◦ Consider changing location for
meetings/depositions/etc to accommodate
individual with disability

Contact for further information:
◦ ada.gov
◦ ADA Checklist for Readily Achievable Barrier Removal
ada.gov/racheck.pdf or adachecklist.org
◦ ADA Technical Assistance Manual ada.gov/taman3.html
◦ US Department of Education Regional Disability and
Business Technical Assistance Centers adata.org
◦ US Architectural and Transportation Barriers Compliance
Board access-board.gov
◦ US Department of Justice usdoj.gov
◦ disabilityrightsnebraska.org
◦ disabilityrightsiowa.org



Nebraska Commission for the Deaf and Hard
of Hearing Lincoln 402-471-3593 / Toll Free
1-800-545-6244
supremecourt.ne.gov/interpreters/registry
new.iowastaterid.org

http://www.youtube.com/watch?v=EkS6R0Yt
obQ

Nebraska and Iowa Case Law

Case Law
◦ Rainey v. Davenport, 353 B.R. 150, 180 (Bankr. S.D. Tex. 2006)
 “A cause of action for negligent referral of one professional by another is a
legitimate claim for a client to assert.”
◦ Norris v. Silver, 701 So.2d 1238 (Fla. 3d DCA 1997)
 Division of fees. Referring attorney responsible for malpractice of referred
attorney.
◦ Weisblatt v. Chicago Bar Association, 292 Ill.App.3d 48, 684 N.E.2d 984
(Ill.App.1 Dist:1997)
 CBA LRS not responsible for services of referred attorney.
◦ Bourke v. Kazaras, 746 A.2d 642 (Pa.Super.2000)
 Pennsylvania courts have not adopted a cause of action for negligent referral.
◦ Tormo v. Yormank, 398 F.Supp 1159, 1170 (DN.J. 1975)
 A jury could find that the duty arose from referring attorney’s express
representations as to referred attorney’s qualifications

o
Best Practices
Due Diligence
◦
◦
◦
◦
◦
◦
o
Attorney reputation, background
Bar discipline
Malpractice insurance
Disclose why referral is being made
Put in writing not express endorsement
Have list of attorneys prepared in advance
Lawyer Referral Service
◦ (402) 280-3603 (Douglas, Sarpy, Washington, Cass)

Don’t be a case of first impression!

Questions or comments:
◦ [email protected]