Discrimination law roundup

  • Another web accessibility settlement from the U.S. Department of Justice, this time Carnival cruise lines [Minh Vu and Paul H. Kehoe, Seyfarth Shaw, my warnings on legally prescribed web accessibility]
  • A topic I’ve often discussed: “Has The ADA Broken Its Economic Promises To People With Disabilities?” [Amelia Thomson-Deveaux, Five Thirty-Eight]
  • Nebraska meat-packer tried too hard to hire only legal workers, will now pay dearly for asking for too many documents [Department of Justice press release]
  • Owing to discrimination, a Colorado couple had to drive a few extra miles to get a cake, and fly 2000 extra miles to get a marriage license. So guess who’s now in legal trouble for inconveniencing them [Jacob Sullum, New York Post] Sen. Ted Cruz sounds as if he might be skeptical of religious discrimination laws as applied to public accommodation, and down that path might be found libertarian wisdom [Scott Shackford, Reason]
  • EEOC says University of Denver Law School must pay its female faculty more [Denver Post, TaxProf]
  • “Court Rejects The EEOC’s Novel Attempt To Impose Disparate Treatment Liability Without Any Injury” [Seyfarth Shaw; EEOC v. AutoZone, N.D. Ill.]
  • Because more coercion is always the answer: France considers ban on “discrimination” against poor [Frances Ryan, The Guardian]


  • I don’t understand how DOJ has jurisdiction. Aren’t all Carnival ships registered in another country – e.g., Panama or Liberia?

    • John,

      The mentioned DOJ action against Carnival is about accessibility of their web site and mobile app, not the ships themselves. So the only thing that matters for jurisdiction is where their corporate HQ is located.

      • MattS thank you. Sorry I was not clear in my question. Here is the remark that sparked my curiosity: “the Department of Justice (“DOJ”) entered into a landmark settlement agreement with Carnival Corp. to improve the physical accessibility of 62 cruise ships sailing under the Carnival Cruise Line, Holland America Line, and Princess Cruise brands.”

        • Who cares where the ship is registered? If the cruise begins and ends at an American port, the company is obviously doing business in America. It’s not like they wait until they’re in international waters to make the ship noncompliant.

          But, noncompliant with what? According to the article, the DOJ is enforcing rules that haven’t even been adopted yet, for both the physical cruise ship and the Internet site.

  • Re Mr. C: “According to the article, the DOJ is enforcing rules that haven’t even been adopted yet, for both the physical cruise ship and the Internet site.”

    I think some enterprising law professor could take the opportunity to teach an administrative law course based on the actions of the Obama administrations’: legislating by executive order, refusal to enforce immigration and other laws, and various end runs around the rulemaking process, etc.

    In fact, it might be the very first interesting administrative law course in law school history.

  • David C: “Who cares where the ship is registered?”

    Most American-based shipping lines register their vessels in other countries. Apparently they care.

    I thought I was asking a simple question: I don’t understand how DOJ has jurisdiction.

    Is there a simple legal reason?

    • “Is there a simple legal reason?”

      2 simple reasons:

      1 It’s a US corporation, so the DOJ has jurisdiction over the corporation regardless of what flag the ships fly.

      2 Even if a ship flies a foreign flag, the US government can prohibit it from docking in US ports if it is not in compliance with US laws.

  • MattS, thanks and your response poses another simple Q: why do shipping companies and cruise ship operators bother to register their vessels in other countries? What’s in it for them?

    • What’s in it for them?,

      1. It controls what law applies aboard ship when they are in international waters.

      2. I have heard that there is some concern in some quarters that flying a US flag makes a ship a bigger target for pirates / terrorists.

      3. Check this out: http://www.cybercruises.com/cm_mar14-a-look-at-cruise-ship-registry.htm According to this, the first US based cruise line to fly a flag of convenience did so to avoid prohibition (so they could serve alcohol aboard ship).

  • Actually Mr Fembup, I think your question is a good one.

    Several things to consider:

    Many cruise line companies deem that the regulations which follow registration under the U.S. flag are unattractive, therefore they lean towards a country which has regulations and laws which benefit the company and its operation. Some claim that the corporations which sail under a foreign flag do so simply to avoid the American safety and consumer protection regulations and laws. The Federal Maritime Commission also understands and acknowledges this fact by giving the following statement “it is important to know that the Commission has no authority over: passenger line vessel operations, safety issues, amenities onboard vessels or fare levels.”

    source: http://crew-center.com/why-cruise-ships-sail-under-foreign-flag%E2%80%99s

    I would say that means that at least one Federal agency (if not the whole Federal government) admits it does not have the authority to oversee design and construction of cruise ships. One would think that design would include ADA compliant rooms / vessels.

    There is another paper on the issue found here: http://www.cruiseresearch.org/Legal%20Issues%20Relevant%20to%20Cruise%20Ships.html

    In it, author Caitlin E. Burke writes of a case where an ADA claim was made against a cruise line and the agreed to forum in which the case was to be heard:

    Another instance where the forum-selection clause was not enforced is in the case of Walker v. Carnival Cruise Lines (2008). Walker purchased a cruise ticket from a travel agent who had assured him (along with the cruise line) that both his room and the cruise ship would be disabled accessible. After boarding, he found that neither his room nor the ship itself was in compliance with the ADA (American Disabilities Act, 1990). The court first dismissed the claim and moved the case from California to Florida, on account of the forum-selection clause. Later, the court decided not to enforce the forum-selection clause for two reasons. “First, the plaintiffs’ physical disabilities and economic constraints were so severe that, in combination, they would preclude plaintiffs from having their day in court. Second, was the fact that the plaintiffs were seeking to vindicate important civil rights”(Dickerson, 2004, p. 492).

    I read that to say that the court didn’t like the contract and decided to void the law.

    When judges void the law, it is no wonder why the DOJ feels the authority to do so as well.

    It would not surprise me that the DOJ threatened the Florida based Carnival Cruise lines with all sorts of investigations which would cost the company a great deal of money – far more than the fine and design changes the company agreed to make to their ships.

    (And given the tone of the DOJ press release, I believe that the threats are exactly what happened.)

    One a side note, there is an article in the September issue of “Yachts Internatio0nal” on the obstructions facing yacht owners who wish to flag their yachts under an American flag.

    The article cites the case of the M/Y Limitless, whose designer wrote and got through the US Congress a private bill allowing the yacht to be American flagged. Other yachts have taken the same path. (The author says as far as he knows, all but one yacht with an American flagging has taken that path.)

    The money quote from the article reads:

    Thus, American owners have four options for flagging a large yacht: an Act of Congress, equivalent compliance, tonnage reduction or foreign flag of convenience.

    “Overlawyered” indeed.

    • I wish to note that The Federal Maritime Commission also does not have authority over US ports, so that they have “no authority over: passenger line vessel operations, safety issues, amenities onboard vessels or fare levels.” does not preclude the possibility that other federal (or state or local) agencies do not have the authority to bar non-compliant ships from US ports.

  • So it may be a simple question – but apparently not a simple answer.

  • […] issue. It notes, as has our coverage, that even without getting around to issuing regs, DoJ is busy using ADA settlements to impose its views of accessibility on businesses it […]