By Minh N. Vu and Kristina Launey
In an astonishing move, the Department of Justice (DOJ) announced that it will not issue any regulations for public accommodations websites until fiscal year 2018—eight years after it started the rulemaking process with an Advanced Notice of Proposed Rulemaking (ANPRM).
As we previously discussed, DOJ made a number of statements in the 2010 ANPRM that led businesses to reasonably conclude that they could and should wait for the regulation to issue before taking action. Among other things, the ANPRM acknowledged a need to adopt a legal technical standard for an “accessible” website and asked how much time businesses should be given to comply. However, since issuing that ANPRM, DOJ’s enforcement attorneys have investigated numerous public accommodations, pressuring them to make their websites accessible. DOJ even intervened in recent lawsuits (e.g., here, here, and here) taking the position that the obligation to have an accessible website has existed all this time in the absence of any new regulations.
DOJ claims that it is delaying the public accommodations website regulations so that it can learn from the development of state and local government website regulations, which it will supposedly issue in January 2016. Specifically, DOJ states in its Fall 2015 Statement of Regulatory Priorities that “[t]he Department believes that the title II web site accessibility rule will facilitate the creation of an important infrastructure for web accessibility that will be very important in the Department’s preparation of the title III web site accessibility NPRM.” Whatever the reason, DOJ’s delay in issuing public accommodations website regulations perpetuates the murky waters businesses must navigate, with no regulatory guidance about what the law requires of them. Right now there is no legally binding technical standard that defines an “accessible” website. There is no rule about whether a business is required to ensure that third party content or software on its site is “accessible.” There is no rule about whether the existence of an occasional unintended barrier on a website which can arise from routine updates is a violation of the ADA.
In the meantime, the DOJ and private plaintiffs continue to pressure businesses, through enforcement actions and lawsuits, to bring websites into conformance with a standard no law requires, citing the ADA’s general principle of “equal access”. This puts businesses in an untenable position, as they struggle to prioritize what can often be considerable spend and business disruption to bring a website into conformance with this standard, against the multitude of other, established, regulatory requirements with which the business must comply upon risk of violating established laws. This external pressure has only increased of late—we have seen plaintiff’s lawyers initiated a virtual tsunami of demand letters and lawsuits against all manner of businesses (e.g., retailers, hotels, banks) alleging that their websites are not accessible to claimants with disabilities. We have seen (and reported) time and again—hence the dearth of case law in this area—businesses settle (most recently, as we had predicted, Scribd joined that club), quite simply (to the outside world; not so simple to the business’s interior decision-making) because it is less expensive to settle than to litigate in an uncertain legal landscape. These enterprising litigants know this.
For more on this surge of litigation activity, and what your business can do to mitigate risk, please join us for our webinar on December 2, 2015: Is Your Business the Subject of a Title III Lawsuit Yet?”.
Oh, the irony. Our federal government is filing lawsuits against private businesses and universities for having allegedly inaccessible websites and mobile apps when its own agencies have inaccessible websites. In April 2014, we reported that the American Council of the Blind (ACB) and three blind federal contractors sued the General Services Administration , alleging GSA’s own website, SAM.gov, is inaccessible and denies certain blind and visually impaired government contractors the ability to register or timely renew their government contracts online.
On Tuesday, November 10, 2015, the plaintiffs announced that the parties had reached a settlement, which requires GSA to make significant changes to SAM.gov to make it more accessible. The announcement did not reference the Web Content Accessibility Guidelines (WCAG 2.0), even though the Department of Justice has been using this set of guidelines for all of its website settlements with private businesses.
The plaintiffs report that following GSA’s implementation of the agreed-to changes, the website will undergo review by another independent accessibility expert. In addition, the agreement creates a process by which members of the blind community will test and provide feedback on future changes to SAM.gov.
The attorneys for the plaintiffs stated in a press release: “The Internet is part of our daily lives, and being unable to access any website—much less a website that is essential to doing business with the federal government—puts members of the blind community at an economic disadvantage. It is unfortunate that it took the filing of a lawsuit to bring about meaningful change but we thank GSA for working collaboratively with us and our clients to make SAM.gov accessible.” And, “everyone, including the blind community, deserves access to the Internet, which has become a means for independence, information and commerce.
We are trying to get a copy of the actual agreement and will update this post when we do.
We’ve done the review and crunched the numbers: It appears that the surge of ADA Title III lawsuits we saw from 2013 to 2014 is holding strong, though possibly leveling off.
You may recall that there was a 60% increase in the number of ADA Title III lawsuits between 2013 and 2014 (2479 vs. 4436). In the first six months of 2015, 2114 Title III lawsuits were filed. While we think that the number of lawsuits filed in the second half of 2015 will be slightly greater than the first half, the total will not likely be much different from the 2014 total. This means that the 2014 surge was probably not an aberration but, more likely, the new normal. Although we did not analyze the types of ADA Title III lawsuits filed in 2015 (e.g. architectural barriers, operational issues, or digital accessibility), our practice has seen a surge of private litigant claims based on allegedly inaccessible websites.
Where are the lawsuit hotspots? The favorites remain the same: California, Florida, and New York. That said, a few states are seeing more action than before. For example, Idaho had four lawsuits in the first half of 2015 even though it had none for 2013 and 2014. Arizona had 19 lawsuits filed during this six month period even though it only had 8 in all of 2014. Minnesota had 42 lawsuits in the first six months of 2015 as compared to the 14 it had in all of 2014. Wyoming, Dakota, Montana, and Nebraska continue to be ADA Title III lawsuit-free.
We’ll keep tracking the filings and update our findings for all of 2015 in January 2016.
Marianne Wilson of Chain Store Age Media reported today that the “ADA Education and Reform Act of 2015”, H.R. 3765, introduced yesterday, October 20, 2015, by Representatives Ted Poe (R-TX), Doug Collins (R-GA) and David Jolly (R-FL), seeks to address ADA “drive-by” lawsuits. This is a topic about which we’ve reported about numerous times, such as here. Wilson reported Tom McGee, president and CEO of the International Council of Shopping Centers (ICSC), a group endorsing the proposed legislation believes the bill will “ensure resources are focused on improving access while protecting businesses from abusive lawsuits.” The article notes ICSC cited our blog’s data, which shows that from 2013 to 2014 the number of ADA Title III lawsuits surged by more than 63%.
What would the bill require?
The bill would require that DOJ’s Disability Rights Section, in consultation with property owners and representatives of the disability rights community, develop a program to educate State and local governments and property owners on effective and efficient strategies for promoting access to public accommodations for persons with a disability, such as training for Certified Access Specialist professionals.
The bill would also make it unlawful for any person to send a demand letter alleging a violation of the ADA unless the letter specifies details about the alleged denial of access circumstances, the address of the property, the specific sections of the ADA violated, and whether a request was made to remove an architectural barrier, and whether the barrier to access was permanent or temporary. Failure to comply with that provision subjects the demanding party to a fine. It also would amend the ADA to provide that a civil action based on failure to remove architectural barriers in existing public accommodations may not be brought unless the complaining party has first provided specific notice to the owner or operator of the public accommodation, after which the owner or operator would have 60 days to provide a written description of improvements to remove the barrier, and the owner or operator has not made those improvements within 120 days.
Finally, the bill directs the US Judicial Conference to, with property owners and representatives of the disability rights community, develop a model program to promote the use of alternative dispute resolution mechanisms, including a stay of discovery during mediation, to resolve claims of architectural barriers to access. The goal of the program would be promote access quickly and efficiently without costly litigation. As many are aware, such a program already exists in the U.S. District Court for the Northern District of California. Its General Order 56 requires a stay of discovery except for certain disclosures until after a joint inspection, meet and confer, and mediation with the Court’s ADR unit has occurred.
We will continue to follow this legislation as it moves through the process.
The Department of Justice (DOJ) announced today that it filed a lawsuit against the Gates-Chili Central School District in New York because it refused to have its teachers help a kindergarten student with epilepsy and other disabilities manage her service dog. According to the complaint, the young student was non-verbal and could not give the service dog required commands. The student also needed someone to tether the dog to her person at various times during the day. Because the school refused to allow its employees to perform these functions, the parents had to hire a personal aide to perform these functions. According to the DOJ, the District violated Title II of the ADA — the part of the law prohibits discrimination on the basis of disability by state and local governments.
DOJ’s position in this lawsuit is very concerning because the ADA Title II regulations plainly state that “[a] public entity is not responsible for the care or supervision of a service animal.” Giving commands to a service animal clearly constitutes the “supervision” of a service animal that is not required under DOJ’s own regulations, but DOJ has nonetheless filed this lawsuit. The question now is whether the DOJ will similarly interpret the ADA Title III regulations to require employees of public accommodations to supervise service animals as well. Those regulations also contain language stating that businesses do not have to care for or supervise service animals.
We suspect the school will be filing a motion to dismiss shortly and will keep you apprised.
Our ADA Title III Team lawsuit data has been cited in another publication, Shopping Centers Today. The article, published yesterday, “Landlords grapple with more ADA lawsuits“, also featured discussion by our ADA Title III Team leader, Minh Vu, of the possibility and need for legislative or regulatory reform to offer business relief from the increasing numbers of Title III lawsuits. This is an issue businesses in all industries – not just retail – that open their doors to the public face, and hope for relief through legal reform. We’ll highlight some state-specific reform efforts in an upcoming blog.
In late July, coinciding with the 25th Anniversary of the Americans with Disabilities Act (“ADA”), 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. The agreement, also addresses the accessibility of Carnival’s website, mobile application, and reservation system. The agreement is notable in at least two key respects:
First, this is the first time that DOJ has taken the position that a cruise line must provide a minimum number of accessible cabins, conduct a survey of its ships, and develop a plan to improve the accessibility of its ships. This news may come as a surprise to some in the industry because DOJ has never issued any regulations setting the design standards for accessible cruise ships. The U.S. Access Board is still in the process of issuing final guidelines for accessible cruise ship design, but those guidelines will not legally binding until DOJ adopts them through a proper rulemaking process which has yet to begin. No matter — DOJ is moving forward with enforcement anyway, borrowing accessibility principles from the ADA Standards for Accessible Design, that apply to facilities on land. (Sound familiar to those of you watching the website enforcement actions proceed faster than regulations? For those of you not familiar, read on…)
Second, the agreement shows DOJ’s continued pressure on businesses to make their websites and mobile applications conform to a privately developed accessibility standard that it has yet to adopt in any regulation — namely, the Web Content Accessibility Guidelines (WCAG) version 2.0, level AA. As part of the settlement, Carnival agreed to make its website and mobile application conform with this set of guidelines.
Carnival also agreed to pay a $55,000 civil penalty to the federal government and $350,000 in damages to eligible complainants.
DOJ began its investigation into Carnival Corp. after receiving complaints from individuals with disabilities and their traveling companions about the alleged lack of accessible seating for entertainment and dining, accommodation procedures, deficient procedures for reserving accessible cabins and communication during emergency drills, and their inability to participate in various programs and services because of a disability. Carnival expressly denied that it violated the law, but entered into the agreement to avoid potential litigation.
In addition to the website and mobile application remediation, and damages noted above, the agreement requires:
- 42 existing ships, and seven ships under construction, must be remediated to comply with certain aspects of ADA design standards that were written for accessible hotel rooms;
- Three percent of the cabins on 49 ships must be accessible according to three newly-created levels of accessibility (again, based on design standards for hotel rooms) depending on the age and class of ship;
- The cabins on the remaining 13 ships will be subject to remediation if still in service in four years;
- Implementation of corporate accessibility standards and policies relating to management of accessibility issues, complaint procedures, training, reservations and bookings for accessible cabins, airport transfers, embarkation and disembarkation, youth programs, dining and entertainment venues, service animals, and more; and
- Appointment of (i) an executive-level ADA compliance officer, (ii) two ADA responsibilities officers, and (iii) ADA shipboard officers for each ship who are responsible for issues that arise at sea.
For those in the cruise line industry, the settlement terms are certainly a shot across the bow that warrant immediate attention.
Edited by Kristina Launey
Our ADA Title III Team leader, Minh Vu, recently spoke to Bloomberg BNA about what businesses can do to make their websites accessible to people with disabilities, and the Justice Department’s recent shift in position on this issue. You can read the Q&A here.
By Kevin Fritz
This Sunday, July 26, marks the 25th anniversary of the Americans with Disabilities Act. In the spirit of anniversary of this important law, here are 25 simple ways to make your business more accessible to customers with disabilities, and provide a great experience for them and their friends and/or family members:
- If the main entrance of your business is not wheelchair accessible but there is an alternate accessible entrance, post clear signage by the main entrance giving directions. Also add the International Symbol of Accessibility at the accessible entrance and include key accessibility information about access, parking, or other services on your website (e.g., the rooftop bar is only accessible via stairs).
- Keep your lowered accessible counter clear at all times. Do not store or display items on this counter.
- Where there are corners, steps, and edges, mark these with high visibility contrasting colored material so that they can be easily seen.
- If your business provides table or bar seating, make sure you have accessible seating for wheelchair users. A table that provides space underneath the top that is 30” wide, 17” deep, and 27” high, with a top that is between 28” and 34” from the ground is accessible.
- Keep walkways and accessible parking access aisles clear and free from clutter or snow, and make sure your premises are well lit. Keep any bushes, trees, or flower arrangements near your business clipped so there are no low hanging hazards for persons who are blind or have low vision, or overgrown bushes obstructing the path of travel for those using wheelchairs or other mobility aides.
- Signage for permanent rooms, such as restrooms, must have braille and raised lettering. The background and foreground must contrast.
- Doors that are heavy and hard to open can be very difficult to use for the elderly or people who use wheelchairs or mobility aids. Adjust closers so that the doors require less force to open.
- In bathrooms, make sure wastebaskets or other moveable objects do not obstruct clear spaces next to the doors. Similarly, in accessible wheelchair stalls, keep the area around the toilet and under the sink clear. Doing so ensures that persons using wheelchairs can safely operate the door and navigate.
- If your place of business is not accessible for wheelchair users because there are steps at the entrance, consider how you can provide the goods and services to such customers in an alternative fashion (g., personal shopper, home delivery, or home visit service).
- Welcome service animals (specifically dogs and miniature horses under the ADA) into your establishment. Read tips on what you can ask to determine if it is a service animal and other tips on service animals here.
- When choosing signage, language matters. Instead of signs that use the word “handicapped” –which is considered offensive by many people with disabilities – opt for signs that use the word “accessible.”
- Consider how persons with disabilities will be evacuated from your facility in an emergency, and include that procedure in your emergency evacuation plan. Make sure your employees know the procedure.
- Use people first language when referring to someone with a disability. Refer to a person as an individual with a disability rather than a “disabled person,” or a “handicapped person.” In that vein, refer to a person as one who uses a wheelchair (rather than one “confined” to one) or one who is blind (rather than one who “suffers” from blindness).
- When speaking with a person with a disability who has a companion, direct your comments to the person with a disability to that person, not the companion – unless specifically instructed otherwise by the person with a disability.
- With all written information, structure content in a logical order using plain English and avoiding long sentences.
- People who are deaf make phone calls using a telecommunications relay service (TRS). Accept calls made through such services and treat them the same as other calls.
- Be prepared to read menus to customers who are blind or have low vision. Posting menus online provides such customers another way of reviewing the menu (using assistive technology such as screen readers) before they visit the restaurant.
- Make sure your employees are prepared to interact with customers who are blind or deaf. They should be ready to read written documents to customers who are blind or have low vision and to exchange notes with customers who are deaf, hard of hearing, or have difficulty speaking. Have a pad of paper handy for this purpose.
- People with hearing, speech, or sight disabilities may require extra time or a quiet area to talk with staff. Be patient with the extra attention that might be necessary to understand what is being said and how to assist.
- Make sure that your accessible register or checkout lane is always open when the store is open.
- Always ask first if a person with a disability needs assistance, never assume.
- If a customer who is blind needs to be led to a location in your business, offer the person your arm. Wait for them to accept the assistance.
- If a person with a disability requests that you modify a policy or provide additional assistance, consider the request meaningfully. There may be a legal requirement to do it. For example, if your business requires a driver’s license to rent an item, consider accepting another form of state-issued identification for an individual who is blind or physically unable to drive a vehicle.
- If you have a pool lift, make sure it is out and ready to be used (e., battery charged and lift uncovered) at all times when the pool is open.
- Customer feedback is a great opportunity to learn about your customers and their thoughts on how accessible your business actually is. Be open to receiving feedback and act on it. You may be preventing a lawsuit in the process.
These small steps can make a huge difference in the experience that customers with disabilities and their friends and family have at your business, and are sure to result in greater customer satisfaction.
Edited by Minh Vu and Kristina Launey
By Minh N. Vu
What a difference five years makes. In September 2010, the Justice Department (DOJ) announced in an Advanced Notice of Proposed Rulemaking (ANPRM) that it would issue new regulations under Title III of the ADA to address the accessibility of public accommodations websites. At that time, it made a number of statements that reasonably led public accommodations to conclude that their websites did not necessarily have to be accessible as long as the public accommodation offered an equivalent alternative way to access the goods and services that were provided on the website. The DOJ’s statements also led public accommodations to believe that once DOJ issues a final regulation, they would have time to make their websites comply with the technical accessibility standard DOJ adopts in that regulation.
DOJ has now shifted positions, presenting its revised viewpoint in Statements of Interest it filed in two lawsuits originally brought by the National Association of the Deaf (NAD) against two universities about the alleged inaccessibility of videos on their websites. See here and here.
What DOJ said in 2010.
In the 2010 ANPRM, DOJ stated that “covered entities with inaccessible websites may comply with the ADA’s requirement for access by providing an accessible alternative, such as a staffed telephone line, for individuals to access the information, goods, and services of their website. In order for an entity to meet its legal obligation under the ADA, an entity’s alternative must provide an equal degree of access in terms of hours of operations and range of information, options, and services available. For example, a department store that has an inaccessible website that allows customers to access their credit accounts 24 hours a day, 7 days a week in order to review their statements and make payments would need to provide access to the same information and provide the same payment options in its accessible alternative.”
DOJ also asked the public to comment on the following questions: (1) “Are the proposed effective dates for the regulations reasonable or should the Department adopt shorter or longer periods for compliance?” (2) “Should the Department adopt a safe harbor for such [web] content so long as it is not updated or modified?” (3) “Should the Department´s regulation initially apply to entities of a certain size (e.g., entities with 15 or more employees or earning a certain amount of revenue) or certain categories of entities (e.g., retail websites)?” Particularly relevant to the NAD lawsuits, DOJ specifically asked the public to comment on whether requiring videos on websites to have captioning would reduce the number of videos that public accommodations would make available, to the detriment of the public. (“[W]ould the costs of a requirement to provide captioning to videos cause covered entities to provide fewer videos on their websites?”).
What the DOJ is saying now. Continue Reading