Employment

The intricacies of the Americans with Disabilities Act (ADA) defenses become apparent when we dig into recent case law. A compelling example is a recent case where the Court dismissed the plaintiff's claims due to their failure to satisfy the standing requirement. This examination will explore the facets of Suris v. Crutchfield New Media, LLC, 2023 U.S. Dist. LEXIS 96603, including a discussion on the standards of standing and mootness in ADA cases, essential considerations for an effective ADA defense strategy.

Understanding the Standing Requirement in ADA Defense

To establish standing, a plaintiff must show that they suffered an actual, concrete, and particularized injury that is either imminent or has already occurred. They also need to demonstrate that the injury was likely caused by the defendant and would likely be redressed by judicial relief (TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203, 210 L. Ed. 2d 568 (2021)).

In the ADA context, a plaintiff seeking injunctive relief has suffered an injury in fact when they can allege past injury under the ADA, that the discriminatory treatment would likely continue, and they intended to return to the subject location (Calcano, 36 F.4th at 74).

In the case at hand, the plaintiff's claim failed on the third prong of the Calcano test: intent to return. Their failure to offer any "non-conclusory factual allegations" demonstrating a plausible intention to return to the defendant's website due to barriers of access was the determining factor.

The Importance of Concrete Facts in ADA Defense

The absence of concrete facts regarding the plaintiff's intention to return to the website was a significant element leading to the dismissal. A successful ADA defense strategy should carefully scrutinize the plaintiff's allegations for factual context, especially their intention to return to the site or location in question.

Cases where district courts found an intent to return adequately pled, plaintiffs typically alleged more concrete facts (Walters v. Fischer Skis U.S., LLC; Chalas v. Barlean's Organic Oils, LLC). By contrast, courts have dismissed cases for lack of standing where plaintiffs raised conclusory allegations, as seen in Velazquez v. Everlast Worldwide, Inc. and Tavarez v. Moo Organic Chocolates, LLC.

Mootness as a Key Element in ADA Defense

Beyond the standing requirement, mootness also emerged as a critical element in this case. The defendant successfully demonstrated that the plaintiff's claims were moot, arguing that they had corrected the error that led to the identified videos lacking closed captioning, making it unreasonable to expect the discriminatory treatment to recur.

This scenario highlights the importance of proactive measures in an ADA defense strategy. Demonstrating a commitment to remedying identified accessibility issues can effectively render ADA claims moot.

Conclusion

In ADA defense, understanding and applying standing and mootness concepts can mean the difference between dismissal and proceeding to trial. This case underscores the importance of these elements in an ADA defense strategy, emphasizing the need for concrete facts to back plaintiff's claims and proactive measures from defendants to address accessibility issues. For effective ADA defense, these factors are crucial.

In the realm of American jurisprudence, the case of Adams v. 336 Knickerbocker Realty, LLC stands as a significant juncture in upholding the Americans with Disabilities Act (ADA). This case, filled with nuanced legal implications, sheds light on the fundamental rights of disabled individuals and the vital role of ADA in safeguarding those rights. This blog post aims to dissect this landmark case in a reader-friendly manner, making the complexities of law accessible to all.

The Second Circuit's Stand on Default Judgments

The Second Circuit, within its judicial purview, has persistently cautioned against resorting to default judgments as a primary means of resolving disputes. The court has always emphasized that a default judgment, an extreme remedy, must be used sparingly and as a "weapon of last, rather than first, resort." This viewpoint upholds the importance of providing every litigant with a fair chance of being heard, and echoes the preferential treatment towards resolving disputes on the merits, rather than default.

Key Factors in Granting Default Judgments

The Court possesses considerable discretion when deciding whether to grant a default judgment. It takes into account several factors, including whether the grounds for default are well established, if the allegations were included in the original complaint, and the potential amount of money involved. Essentially, the larger the sum of money, the more scrutinized the justification for a default judgment.

Case Analysis: Adams v. 336 Knickerbocker Realty, LLC

In this specific case, the defendants were indisputably in default as they failed to respond to the complaint or appear in court. Despite receiving proper service, they did not file an answer, nor did they react to the plaintiff's motion for a default judgment or the Court's order regarding attorney's fees.

The plaintiff, a person with cerebral palsy and reliant on a wheelchair, alleged violation of his rights under the ADA by the defendants, the owners of a public accommodation facility. The plaintiff faced numerous ADA violations, including architectural barriers that impeded his access to the property.

Based on the defendants' alleged ADA violations, the Court recommended a default judgment in favor of the plaintiff. This case serves as a potent reminder of the critical importance of the ADA in ensuring accessibility and fair treatment for all individuals, irrespective of their physical abilities.

The SDNY in a recent decision entitled Gannon v. Hua Da, Inc., 2023 U.S. Dist. LEXIS 53172 (SDNY 2023), reinforced the importance of establishing standing under the ADA. To show standing, plaintiffs must demonstrate that they have suffered an injury under the ADA, that there is a real and immediate threat of future injury, and that they intend to return to the subject location. Failure to establish any of these elements can result in a case being dismissed, as it was in this case. It also highlights the need for courts to consider the broader context of cases to ensure that litigants are not abusing the ADA to pursue frivolous litigation. 

In this case, the plaintiff sued the defendant under Title III of the ADA, alleging that he was unable to access a deli/grocery due to barriers that violated the ADA. The defendant filed a motion to dismiss the case for lack of standing, arguing that the plaintiff failed to show that he had the intent to return to the subject location, which is an essential requirement for standing under the ADA. The court granted the motion to dismiss.

The court relied on the three-prong test laid out in Calcano v. Swarovski N. Am. Ltd. to determine whether the plaintiff had standing. The plaintiff must show (1) past injury under the ADA, (2) it is reasonable to infer that the discriminatory treatment would continue, and (3) it is reasonable to infer that the plaintiff intended to return to the subject location. The court concluded that the plaintiff failed to show the third prong, i.e., he lacked the intent to return.

The court found that the plaintiff's allegations were insufficient to establish that he intended to return to the subject location. The court noted that the plaintiff did not provide any evidence that he had visited the premises in the past, and he did not explain why he wanted to visit the specific deli/grocery urgently. Additionally, the plaintiff did not allege that he resided in close proximity to the property, which would have suggested that he would return to the location.

The court also considered the "broader context" of the case. It noted that the plaintiff had filed 26 identical ADA lawsuits within two months, which suggested that the plaintiff was not genuinely interested in accessing the deli/grocery but instead was using the ADA to pursue litigation.

The landscape of digital accessibility is complex and continually evolving, with a recent case — Toro v. Black Sheep Enter., Inc. — underscoring the importance of ADA (Americans with Disabilities Act) compliance for websites. U.S. District Judge Valerie Caproni dismissed the case without prejudice due to two key reasons: the plaintiff's failure to allege standing and the court's lack of subject matter jurisdiction.

Alleging Standing in ADA Cases

Standing is a legal term that refers to a plaintiff's right to bring a lawsuit because they have been directly affected by the issue at hand. In ADA cases, this typically involves demonstrating a concrete, actual or imminent, and particularized injury due to an inaccessible business or service.

In Toro v. Black Sheep Enter., Inc., the court found that the plaintiff failed to allege standing. Although the visually impaired plaintiff claimed that the defendant's website lacked accessibility, the court determined that the plaintiff's assertions didn't sufficiently establish a direct and particularized injury. This demonstrates the importance of concrete evidence of injury in ADA litigation.

Subject Matter Jurisdiction and Digital Accessibility

Subject matter jurisdiction refers to a court's ability to hear a particular kind of case. In the Toro v. Black Sheep Enter., Inc. case, the court concluded it lacked subject matter jurisdiction, which presents another layer of complexity in ADA website cases.

Interestingly, the court ordered the plaintiff to move for leave to amend the complaint due to the standing issue. However, this step was bypassed when the plaintiff filed a notice of settlement, seeking a stay of all deadlines. Consequently, the court opted for a dismissal without prejudice.

Navigating ADA, NYSHRL, and NYCHRL

This case was not solely about federal law - it also invoked the New York State Human Rights Law (NYSHRL) and the Garden City Human Rights Law (NYCHRL), illustrating the multi-layered nature of accessibility legislation. Ensuring compliance with these intersecting legal requirements can be a daunting task for businesses, particularly for those operating in the digital space.

Moving Forward

The dismissal of Toro v. Black Sheep Enter., Inc. serves as a reminder of the complexities inherent in ADA, NYSHRL, and NYCHRL compliance. Businesses must be proactive in ensuring their digital platforms are accessible to all, preventing potential legal disputes. This is not just a matter of compliance, but a testament to a company's commitment to inclusivity.

A class action lawsuit filed this past Wednesday against  Thomas M. Cooley Law School  and  New York Law School  by several of its former students asserts claims that both schools are guilty of overstating and amplifying their post-graduate employment and salary statistics. These students are alleging that their respective schools are misclassifying graduated, employed students. It would appear that a graduate from either school, unable to obtain legal hire and hit with often over a hundred thousand dollars in school debt, employed as a part-time cocktail waitress would be represented by their school  as “fully employed.”

Cooley has commenced two separate lawsuits, one against Plaintiffs’ counsel, Garden City-based Kurzon Strauss, LLP, and the other against a number of anonymous bloggers. Both lawsuits hinge on the premise that the school is being defamed on public web forums from postings about the school’s employment reporting methods.

Cooley seems to be pointing a little finger at the American Bar Association, noting that its job placement rating methods and employment statistics are in harmony with the other 200 or so ABA accredited law schools in the US.  The Wall Street Journal  reported that Cooley’s General Counsel Jim Thelen made statements alluding to the fact that Kurzon Strauss is looking for his justice in the wrong places and should take up their issue with the ABA or the Department of Education because law schools are doing nothing wrong.

These angry grads are hoping for their class action to land them a little under half a million dollars, seeking 200 million from NYLS and 250 million from Cooley. If they can’t find work, they might as well get that tuition money back, some extra in damages and a restructuring of post-graduate employment reporting to both alert and save the fresh new group of doe-eyed incoming students.

As a predicate for filing an employment lawsuit under the Americans with Disabilities Act ("ADA"), a plaintiff must first file a timely charge with the US Equal Employment Opportunity Commission ("EEOC"). To file a charge, a plaintiff can do so by hiring an attorney or going on the EEOC's website. A charge of discrimination is a signed statement that provides an organization engaged in some form of employment discrimination. The purpose is to require remedial action. A plaintiff seeking to obtain a right to sue letter must be cognizant of when the discrimination took place. This is because a plaintiff has a 180 calendar days to file a charge. In some circumstances this filing deadline can be extended to 300 calendar days if a state or local agency enforces a local law that prohibits discrimination on the same basis. Exhaustion of administrative remedies through the EEOC is 'an essential element' of the . . . statutory scheme[] and, as such, a precondition to bringing such claims in federal court. The purpose of this exhaustion requirement is to give the administrative agency the opportunity to investigate, mediate, and take remedial action." If you need assistance with filing an EEOC charge then contact our staff of attorneys, as we will be happy to assist you with your needs.

A group of 13 Chinese employees fired from their positions at fancy midtown restaurant Le Colonial are now suing their former employer alleging discrimination and retaliation.  The group of workers claim that they were forced to work in unacceptable and offensive conditions. The complaint alleges that as employees, they were exposed to excessive heat throughout their shifts, they were not allowed into air-conditioned areas during their breaks, they were restricted to use only one bathroom, if they wanted to eat more than once during their typical 10-hour shifts, they were forced to eat their meal in the bathroom stall. One employee was told that his food was “cooked for animals” and a 61-year old man with a back injury was forced to stand for excessive periods of time.

The group of workers ranging in ages thirty to sixty-one is alleging that after making numerous complaints about their harsh working conditions, they were fired. Their claim thus alleges that they were victims of discrimination based on their race and age and that after addressing their superior with complaints they were unjustly fired. Under New York law, it is illegal to mistreat one’s employees on account of their race, gender or religion. Furthermore, civil rights laws protect employees who complain about harassment and/or discrimination issues or deplorable conditions in the workplace from suffering from retaliation. Means of retaliation can include a demotion, poor performance evaluations, unwanted transfers, menial job assignments or as alleged in this circumstance, termination.

As reported on their website, Ken Kimerling, legal director of the Asian American Legal Defense and Education Fund, noted that workers are “treated in this way in part because the employer thinks that they won’t fight back because of language and maybe even [immigration] status issues.” But that doesn’t seem to be stopping this group. In addition to the complaint against New York State, these former Le Colonial employees are also considering filing a federal lawsuit for wage violations.

The New York State Senate recently strengthened the existing anti-retaliation law under the New York State Human Rights Law (NYSHRL). The law has been amended to explicitly prohibit employers from leaking or releasing an employee’s personnel file as retaliation against certain forms of an employee’s protected conduct. This protected conduct includes an employee opposing discriminatory practices, filing complaints, and testifying or otherwise assisting in a proceeding involving the workplace.

Employers may often leak personnel files, or certain harmful or embarrassing documents, with the intent to discredit or minimize a victim or witness’ testimony. The threat of such a leak can also discourage many victims and witnesses from coming forward, and have a chilling effect on the truth coming out. This law seeks to prevent such retaliatory conduct.

You may or may not know this, but whether you, as an unemployment compensation claimant, have good cause to leave your employment is a factual determination that is ultimately made by the Unemployment Insurance Appeal Board (especially when your previous employer challenges your claim that you left with good cause and are therefore entitled to unemployment benefits).  The line becomes more muddled when an employer cuts your rate of pay or commission and doesn’t necessarily fire you or demote you from your job position.

Recently, the  Supreme Court, Appellate Division, Third Department , upheld the determination by the Unemployment Insurance Appeal Board that a nearly two-thirds reduction in an employee’s rate of pay constituted a substantial change in the terms and conditions of his employment, and represented good cause for him to leave his employment.  He was employed as a finance manager for an automobile dealership, and his commission was reduced from 20% to 7.5%. Thereafter, he applied for and received unemployment insurance benefits. The employer challenged the employee’s entitlement to benefits on the ground that he left his employment without good cause.  The Court held that the factual determination of whether the reduction in commission constituted good cause was to be made by the Unemployment Insurance Appeal Board, and that the Unemployment Insurance Appeal Board’s  decision will not be disturbed when supported by substantial evidence.  If you have any questions regarding employment benefit claims, contact the attorneys at Bashian & Papantoniou at (516) 279-1555 or stop by for a visit at  500 Old Country Road, Suite 302 in Garden City, New York .

The Fair Labor Standards Act (“FLSA”) establishes federal rules regarding minors’ ability to work. The FLSA sets a general minimum working age of 16 for most jobs, with a minimum age of 18 for “hazardous occupations.” For younger children, they may work as early as 14 years old if the employer observes certain FLSA restrictions on hours and work conditions. Children younger than 14 may only be employed subject to certain exclusions in the FLSA (e.g., a parent or guardian is the child’s sole employer in a non-hazardous job). The FLSA prohibits any “oppressive child labor.”

The FLSA does not cover all jobs performed by minors. There is no FLSA protection for entrepreneurs under 18 or minors who volunteer their time for charitable organizations. Some jobs traditionally done by minors, such as newspaper delivery, are not covered by the FLSA. Other exceptions include some situations in which a child works for a parent or guardian, children who are actors or other types of paid performers, and certain minors employed in home-based work.

The Department of Labor (“DOL”) has created a list of certain jobs and activities that are not considered oppressive child labor for children 14 and 15 years old. These jobs include, but are not limited to:

• Office and clerical work;
• Sales, retail, and advertising work;
• Errand and delivery work;
• Cleaning buildings;
• Dispensing gasoline and oil;
• Cleaning cars by hand;
• Limited kitchen work, including prep work or cooking (subject to limitations such as no cooking over an open flame);
• Serving food;
• Maintenance of grounds (without using power-driven equipment).
• Lifeguarding (if the child is at least 15 and has received proper training and certification from an accredited organization, such as the Red Cross)

Perez v. Due Milla Realty Grp. LLC is a recent court case involving a Title III ADA claim. The defendant in this case was closing operations at the subject premises effective April 9, 2023. The court held that when a public accommodation closes, an ADA claim becomes moot, and a private individual may only obtain injunctive relief for violations of a right granted under Title III; he cannot recover damages.

In this case, the district court dismissed all federal claims for lack of subject-matter jurisdiction, and as a result, the district court is precluded from exercising supplemental jurisdiction over the related state-law claims. Therefore, the case was dismissed as moot, and supplemental state law claims were dismissed.

Conclusion: This case highlights the importance of understanding the rules and requirements for pursuing an ADA claim, especially when dealing with a public accommodation that is closing its operations. As this case demonstrates, a plaintiff cannot recover damages in such a situation, and injunctive relief may only be obtained if the plaintiff can establish standing and a real and immediate threat of future injury. Therefore, it is crucial to consult with an experienced attorney who can guide you through the legal process and help you protect your rights as a person with a disability.

The New York State Human Rights Law (NYSHRL) requires all employers in New York State, regardless of size or type of business, to provide a workplace free from sexual harassment. Even individuals not considered “employees,” such as independent contractors, subcontractors, vendors, consultants, or anyone providing services in the workplace are also protected from harassment at work locations. Examples of protected contractors include those providing equipment repair, cleaning services, or any other services provided under a contract with the employer.

New York Minimum Wage – Changes for 2023

In 2016, Governor Andrew Cuomo signed a law providing for annual increases to the state’s minimum wage. While this is certainly a win for New York’s lowest-paid workers, the increases take effect at different times and in different amounts depending on factors like where the business is located and the nature of the employee’s work. Here is what is new for 2023:

• The state-wide basic minimum wage for non-tipped workers is now $14.20 per hour (up from $13.20 last year). In Garden City and the downstate counties (Westchester, Nassau, and Suffolk), the minimum wage remains $15.00 for non-tipped employees.
• For tipped service employees outside of Garden City and the downstate counties, the minimum wage is now $11.85 per hour (up from $11.00 last year), and the maximum tip credit an employer may claim is $2.35 per hour. In Garden City and the downstate counties, the minimum wage for such employees remains $12.50 per hour with a maximum tip credit of $2.50 per hour.
• For tipped food service employees outside of Garden City and the downstate counties, the minimum wage is now $9.45 per hour (up from $8.80) and the maximum tip credit is $4.75 per hour. In Garden City and the downstate counties, the minimum wage for this class of employees remains $10.00 per hour with a maximum tip credit of $5.00 per hour.

At Bashian & Papantoniou, we stay up-to-date on all of the changes to the law that affect workers’ rights, so we can fight to make sure those right are not violated. If your employer has not kept up with the legally-required minimum wage increases, or you are experiencing any other issue in the workplace, call us today for a free consultation.