SDNY: online retailers are not covered under the Americans with Disabilities Act

An issue is brewing in the lower federal courts that will have to be resolved in the Second Circuit and then, eventually, in the Supreme Court. It has to do with the scope of the Americans with Disabilities Act and whether online retailers are covered under the statute, enacted in 1990 to prohibit discrimination in public accommodations.

The case is Mejia v. High Brew Coffee, Inc., 2024 WL 4350912, a Southern District ruling issued by Judge Swain on September 30. Plaintiff tried to buy coffee from defendant's website, but due to plaintiff's visual disability, she was unable to complete the transaction because the website's screen-reader was not working. Is this an ADA violation? 

The ADA does not define "place of public accommodation." But, as Judge Swain notes, "It provides that private entities are to be considered public accommodations if their operations affect commerce, and they fall within one of twelve enumerated categories, expressed in the statute as non-exclusive lists of different types of enterprises," including inns, hotels, restaurants, bars, movie theaters, bakeries, etc. But nothing about online retailers, which did not exist when the ADA was enacted 34 years ago. The court notes further that other Circuit Courts, including the Third, Sixth, Seventh, Ninth and Eleventh Circuits, have held that the ADA only covers brick-and-mortar stores and establishments, not virtual establishments. 

The Second Circuit has not yet resolved this issue, but some district courts in the Second Circuit have interpreted the statute to include standalone online retailers, consistent with cases from the First and Seventh Circuits. Judge Swain does not adopt the reasoning in these courts. Under Judge Swain's statutory analysis, the ADA does not cover a case like this. The analysis is complex. For now the plaintiff loses, but this case will be appealed, and due to the Circuit split, there is no doubt the Supreme Court will have to resolve this issue.

JOSE MEJIA, Plaintiff, v. HIGH BREW COFFEE INC., Defendant., No. 1:22-CV-03667-LTS, 2024 WL 4350912, at *2 (S.D.N.Y. Sept. 30, 2024)

it provides that private entities are to be considered public accommodations if their operations affect commerce, and they fall within one of twelve enumerated categories, expressed in the statute as non-exclusive lists of different types of enterprises.

JOSE MEJIA, Plaintiff, v. HIGH BREW COFFEE INC., Defendant., No. 1:22-CV-03667-LTS, 2024 WL 4350912, at *2 (S.D.N.Y. Sept. 30, 2024)

2d Circuit expands the scope of Title VI of the Civil Rights Act

In this case, the Second Circuit takes a close look at Title VI of the Civil Rights Act of 1964 and clarifies its scope and, in particular, when an employee can sue for retaliation under this statute, which prohibits racial discrimination by public schools.

The case is Bloomberg v. New York City Dept. of Educ., issued on Oct. 3. Plaintiff was a school principal in the New York City school system and complained about racially-segregated sports teams at her school. Shortly thereafter, the DOE investigated plaintiff for alleged misconduct: someone had accused her of trying to recruit students for a communist organization. The charges could not substantiated and were ultimately dropped. Plaintiff alleges the investigation was retaliatory.

Here are the issues:

1. Does Title VI allow for a private right of action? You would think this issue would have been squared away years ago, as Title VI discrimination lawsuits are commonplace. But the Second Circuit notes it has never conclusively held as such and that it has only assumed you can sue for discrimination under Title VI. The Court finally holds that Title VI authorizes such lawsuits. Other Circuit Courts have held the same. This means plaintiff can proceed with her lawsuit provided she survives the second issue.

2. Issue number two: can you sue under Title VI for retaliation? The statute prohibits discrimination but does not say you can sue for retaliation. But the Supreme Court and Second Circuit have held that retaliation is in fact discrimination, and that statutes that prohibit discrimination without referencing retaliation allow for such claims. The Fourth Circuit agrees with this analysis, though other Circuits have agreed in non-precedential summary rulings. 

3. The third issue is whether plaintiff's complaint about discrimination on the sports teams is actionable under Title VI. This statute, which conditions federal educational money on nondiscrimination in public education, says you cannot sue over racially-discriminatory employment practices unless "a primary objective of the federal financial assistance is to provide employment." No one in this case argues that a primary objective of the DOE's federal funds is to provide employment. The Court of Appeals holds that "a Title VI retaliation claim is an action 'with respect to an employment practice' only if the underlying protected activity concerns opposing unlawful employment discrimination." 

Plaintiff prevails on appeal with respect to the third issue. While the district court held that Bloomberg’s retaliation claim challenged an “employment practice” under Title VI because it arose from her employer’s investigation of her as an employee, the Second Circuit sees it differently:

We disagree that Bloomberg’s retaliation claim is an action “with respect to any employment practice” under Section 604. Bloomberg alleges retaliation for opposing race discrimination in the allocation of sports teams, not for opposing any employment practice. We therefore conclude that Bloomberg’s Title VI retaliation claim is not barred by Section 604.

Civil rights claim alleging discrimination against Asian-American high school students may proceed

 The Court of Appeals has reinstated a racial discrimination lawsuit filed by an Asian-American organization that challenges the admission policies of the specialized high schools in New York City. The plaintiff claims the policies discriminate against Asian-Americans. The Court of Appeals holds the plaintiff asserts enough allegations to allow this case to proceed to discovery.

The case is Chinese American Citizens Alliance of Greater New York v. Adams, issued on September 24. The specialized high schools in New York City are well-known, and admission to them can be the start of a productive academic and professional career. Plaintiff argues the admission policy for the Discovery Program at these high schools violates equal protection because they are intended to discriminate against Asian-Americans. As the Court of Appeals summarizes the case:

In June 2018, the New York City Department of Education (“DOE”) revised the admission policy at eight of its highly selective Specialized High Schools (“SHSs”), with the stated goal of creating a wider and more diverse pool of applicants for the SHSs.  In particular, the new policy made changes to the “Discovery Program”—a pre-existing path for admission to SHSs for high- performing, economically disadvantaged students who would not otherwise be admitted based solely on their scores on the standardized test for admission. The changes included:  (1) expanding of the number of SHS seats reserved for the Discovery Program from less than 5 percent to 20 percent of the overall SHS seats; and (2) adding a new admissions criterion for the Discovery Program, known as the “Economic Need Index” or “ENI,” that focused on the economic status of the student applicant’s community as a whole, rather than on an individual basis.

The Court of Appeals (Cabranes, Bianco and Reiss [D.J.]) states that there is no dispute that economically disadvantaged Asian-American students from certain middle schools would have been eligible for admission to the specialized high schools under the prior admissions program, but that they were ineligible under the new policy because their "Economic Needs Index" scores were too low. While the new policy is facially neutral, the parties dispute whether the City intended to discriminate against Asian-American student-candidates.While the district court held the disparate impact claim fails because plaintiffs have not alleged that the new policy negatively affects Asian-American students in the aggregate, that analysis was incorrect because the law actually holds that:

if the government enacts a law or policy with a proven discriminatory motive against a certain race (as we must assume here for purposes of this appeal given the bifurcation of discovery), a valid equal protection claim can be based on a showing that any individual has been negatively affected or harmed by that discriminatory law or policy based on race, even if there is no disparate impact to members of that racial class in the aggregate.

The Court of Appeals holds that the plaintiff-organization needs discovery to prove its claims. The case returns to the district court for that purpose.

Tight handcuff case will proceed to discovery

The first thing a civil defense lawyer does when their client is served with a lawsuit is to find a way to have the case dismissed prior to discovery. We call that a Rule 12 motion to dismiss. If that motion fails, since the federal system disallows appeals prior to final judgment, the parties proceed to depositions, document review, interrogatories, electronically-stored information, etc. Except that in Section 1983 cases, an unsuccessful motion to dismiss on qualified immunity grounds may be appealed immediately.

The case is Pal v. Canepari, a summary order issued on September 30. This is a police misconduct case in which plaintiff alleges the officer applied the handcuffs too tightly, causing physical pain. Such a tactic can constitute excessive force under the Fourth Amendment. The officer sought qualified immunity on the basis that he did not violate any clearly-established rights, as determined by prior Second Circuit or Supreme Court case law.

Defendant claims the law was not clearly-established in 2018, when the incident happened, and that the district court in denying qualified immunity relied on a Second Circuit case from 2019, Cugini v. City of New York, 941 F.3d 604 (2d Cir. 2019). Nice try, says the Court of Appeals  (Parker, Robinson and Oliver [D.J.]), but this argument will not cut it because Cugini recognized that, prior to 2019, it violated the Fourth Amendment to apply the cuffs too tightly when the plaintiff makes an explicit verbal complaint about the tightness. 

In Cugini, the events took place in 2014. The Second Circuit said in that case that "the consensus . . . among our sister circuits that unduly tight handcuffing can constitute excessive force in violation of the Fourth Amendment.” While Cugini said it was not clearly established in 2014 whether this general rule applies when the arrestee "exhibited only non-verbal aural and physical manifestations of her discomfort," the Court "expressly distinguished that scenario from the then-established caselaw that recognized an excessive force claim based on overly tight handcuffs in circumstances in which the individual made “an explicit verbal complaint.” In other words, Cugini clearly established for future cases that when the cuffs are too tight and the arrestee verbally complains about the pain, the officer has violated the Constitution. This is how the Court of Appeals wraps things up:

Accordingly, the law was clearly established at the time of the events at issue in this case that failing to loosen excessively tight handcuffs when an individual complains of pain can give rise to a Fourth Amendment excessive force claim. And for purposes of this appeal, in which we are required to accept the plaintiff’s version of the facts as true, we accept Pal’s assertions that the handcuffs were too tight and do not credit Officer Harris’s claim that he double-locked the handcuffs such that they could not tighten.

The case will now proceed to discovery and, unless the case settles or is dismissed on a later motion for summary judgment, the case will go to trial.

Disability discrimination case will proceed to trial

Employment discrimination cases are always winding through the state courts under the New York City Human Rights Law, which is more expansive than the federal anti-discrimination statute. The Appellate Division finds that Plaintiff has a case against her employer, Bloomberg, L.P., and that it will go to trial.

The case is Friedman v. Bloomberg, L.P., issued by the First Department on September 26. While plaintiff told management that her dyslexia made writing social media copy difficult for her and that she needed an accommodation for her disability, the jury may find that defendant considered such an accommodation, i.e., proving her with a proofreader or some other accommodation. A proofreader would not have caused an undue hardship for Bloomberg, L.P.

Plaintiff was also fired, and he brings a claim for wrongful discharge. That claim will also go to trial. She was fired only two days after requesting the accommodation. While defendant said plaintiff was fired for missing deadlines, being unresponsive, and using an inappropriate tone with colleagues, the issue of defendant's motive is for the jury. And, "Although there is evidence that defendant had already made the decision to terminate plaintiff when she submitted her written request, plaintiff's supervisor wrote that the decision was based in part on plaintiff's 'mandate around [her] responsibilities,' which a reasonable jury could interpret as referring to plaintiff's requests for an accommodation."

I am sure the defendant claimed the "mandate" statement had nothing to do with plaintiff's accommodation request. But it sounds close enough to an admission of unlawful motive that the First Department wants the jury to sort out its real meaning. This would constitute direct evidence of discriminatory intent, despite its possible vagueness. 

Civil rights appeal arising from 15-year criminal process is dismissed on technical grounds

This is a wild case. The police investigated a woman's disappearance and her husband was a key suspect, but for the longest time, they could not really find evidence linking to her disappearance and possible murder, so the investigation lasted several years before the husband was convicted of murder in part based on blood-spatter evidence. The husband was granted a second trial when evidence surfaced implicated someone else in the murder, but the husband was again found guilty. That conviction was later thrown out, and a third trial yielded a hung jury. At the fourth trial, the husband was acquitted. This whole process took 15 years.

The case is Harris v. Tioga County, a summary order issued on September 13. Harris is the husband. After a sequence of events like this one (four trials and an acquittal), you know there is going to be a lawsuit. 

This case generated much publicity, and there is a Wikipedia page about the wife's disappearance, which happened on September 11, 2001. Harris sued county officials for malicious prosecution and other constitutional violations. Following motion practice, a whole bunch of defendants were forced to stand trial in federal court on these charges. Those defendants take up this appeal, claiming entitlement to qualified and absolute immunity.

Public officials can invoke these immunities under judge-made doctrines intended to allow them to make decisions without fear of being sued by everyone unless they violate well-settled legal standards. If the trial judge denies the immunity motion, the defendant can take an early appeal to the Second Circuit, but only if they the appeal turns on an issue of law and not disputed facts.The Second Circuit adheres to this strict rule, which is why so many qualified immunity appeals are dismissed without any determination on the merits.

The appeal is dismissed because the Court of Appeals (Chin, Carney and Sullivan) is not ready to take up these immunity issues. There are too many factual disputes on the issues raised on appeal, which means the jury has to sort them out before the court can decide if, on the facts found by the jury, the defendants are still immune from liability.

Remember to object to a bad jury charge on the record before taking up an appeal

This claim went to trial in the Northern District of New York. The plaintiff-inmate claimed that a correction officer applied excessive force in violation of the Constitution, among other claims. The jury ruled for the CO, and the plaintiff appeals. The Court of Appeals (Walker, Newman and Lohier) declines to change the verdict, and the case is over.

The case is Ash v. Johnston, a summary order issued on September 16. It is quite difficult to appeal from an adverse jury verdict. The Court of Appeals will defer to the jury's credibility assessment, and let's face it, these cases usually turn on credibility disputes. The trial judge also has discretion in making evidentiary rulings that can make or break a case. But nobody likes to lose, and and some appeals are successful. Just not this one.

One way to appeal from a bad verdict is to challenge the jury charge. The trial judge has no discretion to mislead the jury about the legal standards. A three-week trial can be set aside on the basis of a faulty jury charge. 

Here is the issue: did the trial court properly charge the jury on the excessive force claim under the Eighth Amendment? The court told the jury that plaintiff had to prove the CO applied force "maliciously and sadistically for the very purpose of causing harm." That language is not found in the Eighth Amendment (which prohibits cruel and inhumane punishment) but the courts have come up with that language to help enforce the Eighth Amendment. Plaintiff says that was a bad instruction and therefore seeks a new trial. Plaintiff instead says the court had to only tell the jury that the CO acted in bad faith. That language could have yielded a victory for plaintiff at trial. But we have a problem: plaintiff did not object to the jury charge at trial. 

You have to object during the charge conference with the court or the Court of Appeals will deem the argument waived. The Second Circuit may still take up the waived issue if the jury charge was manifestly erroneous such that the trial was fundamentally altered and no timely objection is required. But that legal standard is very difficult to satisfy.

Moral of the story: make your objections at trial in a timely manner and put something on the record making it clear that you are giving the judge a chance to change her mind. If you do that, the Court of Appeals will entertain a post-verdict challenge to a bad jury charge.