On Friday, August 30, the Ninth Circuit issued a memorandum opinion reversing what could have been a very harmful district court decision on the definition of “place of public accommodation” under Title III of the Americans with Disabilities Act. In the case of Guthrey v. Alta California Regional Center, the Court held that “[b]ecause the coordination of care services provided at Alta’s and [a vendor’s] offices are social services, those offices constitute ‘social service center establishment[s]’ and places of public accommodation.” No. 23-16056, 2024 WL 4002911, at *2 (9th Cir. Aug. 30, 2024).
The district court had refused to recognize Alta as a place of public accommodation because what it viewed as the services at issue — that subset that occurred in clients’ homes — did not occur in Alta’s building.This was clearly wrong under the Ninth Circuit principle that
[Title III] applies to the services of a place of public accommodation, not services in a place of public accommodation. To limit the ADA to discrimination in the provision of services occurring on the premises of a public accommodation would contradict the plain language of the statute.
Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 905 (9th Cir. 2019) (emphasis in original).
The Ninth Circuit’s Guthrey opinion also corrected the district court’s holding that a Title III claim was a prerequisite for a claim under section 504 of the Rehabilitation Act, reaffirming the obvious that “[u]nder Section 504, there is no requirement that the defendant own or operate a place of public accommodation, as is required under ADA Title III.” Id., 2024 WL 4002911, at *2.
F&R teamed up with Michelle Uzeta at Disability Rights Education and Defense Fund and Deborah Gettleman of McGuinness Law Group to draft an amicus brief. And Ms. Guthrey’s lawyer was generous enough to cede all of his oral argument time to us, which you can watch online.
This case reminded me – a linguistics major – of a retronym. Webster’s defines “retronym” as
a term (such as analog watch, film camera, or snail mail) that is newly created and adopted to distinguish the original or older version, form, or example of something (such as a product) from other, more recent versions, forms, or examples.
Title III of the ADA prohibits disability discrimination in place of public accommodation. 42 U.S.C. § 12182. When the ADA was passed in 1990, we didn’t have a commercial internet much less smart phone apps. For this reason, the definition of “public accommodation” looks a lot like a collection of physical places: restaurants; theaters; stores; laundromats; law offices; museums; schools; etc. 42 U.S.C. § 12181(7). As you can imagine, not long after 1990, people with disabilities began to challenge — and courts began to wrestle with — lack of access in less tangible spaces: websites; video games; cable services; apps. Ultimately, the circuits have reached different conclusions, with the First Circuit holding that a “public accommodation” does not require a physical space and — relevant to Guthrey — the Ninth Circuit holding that it does. That latter Circuit and several others require that less tangible services of public accommodations have a “nexus” to a physical space. For example, in Robles, the Ninth Circuit held that the Domino’s website was one way to access the goods and services of the physical pizza places and thus had a sufficient nexus to those physical places. 913 F.3d at 905.
Now for the retronym: Alta California Regional Center is a physical place. An office building, open to the public, where it holds meetings with the public and where its employees do important parts of the work of providing services to its clients: determining eligibility; assessing needs; coordinating care. Yet because other services — hands-on services — are provided in clients’ homes, Alta argued that there was insufficient nexus to a physical place. Retronym: a concept that was only necessary because of intangible businesses is now being applied to precisely the sort of brick and mortar buildings — social service establishments are right there in § 12181(7) — contemplated by the drafters of the statute in 1990.
The Ninth Circuit mostly got this in the Guthrey decision, holding that Alta’s office were open to the public and provided social services. Id. at *2. Oddly, the court added, “Because Plaintiffs physically visited Alta’s . . . offices to receive those services, Plaintiffs have adequately alleged the requisite nexus to a physical place of public accommodation.” Id. This is an unnecessary retronym: we know physical buildings are places of public accommodation; we don’t need a nexus.