ADA Title III News & Insights

Practice What You Preach: Federal Agency Hit With Class Action Web Access Suit

Posted in Lawsuits, Investigations & Settlements, Website

By Kristina M. Launey and Minh N. Vu

If you follow our blog, you know that, even though the Department of Justice has issued no formal regulations yet setting a web accessibility standard, private plaintiffs, the DOJ, and advocacy groups have become increasingly active in pursuing legal action on the position that the ADA and Rehabilitation Act require accessible websites.  As an example, the DOJ recently filed an enforcement lawsuit against a large online tax preparation service alleging that the service’s website is inaccessible and then entered into a consent decree with the service that requires compliance with a set of stringent, privately developed website accessibility guidelines that no federal agency, including DOJ, has adopted for itself.  It would appear that disability rights groups are not going to tolerate this double standard.

Yesterday, the American Council of the Blind and three individuals filed suit in the US District Court for the District of Columbia against the United States General Services Administration, alleging GSA’s own website, SAM.gov, is inaccessible and does not comply with Section 504, leaving certain blind and visually impaired government contractors unable to register or timely renew their government contracts.  The Complaint even quotes the DOJ: “As the Department of Justice has recently noted, “an inaccessible website puts [persons with disabilities] at a great disadvantage and further perpetuates a feeling of dependence and reliance on others.”  The Complaint further notes that the GSA – which requires federal contractors provide blind and visually impaired users equal access to contractors’ websites in compliance with Section 504 of the Rehabilitation Act – should be required to abide by the same rule in ensuring access to SAM.gov.

The Complaint cites in detail some of the alleged barriers to access on SAM.gov, generally summarized as “a number of features on SAM.gov that are not “viewable” by a talking screen reader of the sort that millions of blind and visually impaired individuals rely on to navigate the Internet, ensuring that SAM.gov contains keyboard recognizable codes, and providing “helpdesk” assistance that is sensitive and responsive to the needs and concerns of blind and visually impaired contractors.”  As a result, blind and visually impaired federal contractors allegedly must divulge sensitive, personal information, such as their usernames, passwords, and social security numbers to third parties so that the third parties could enter the individuals’ information into SAM.gov. The Complaint further alleges that SAM.gov’s helpdesk and technical assistance staff are not equipped to effectively assist blind and visually impaired users.

We’ll follow this litigation as it unfolds.

Court Holds That Hospital Does Not Have To Provide Live Interpreter For Patient “In The Throes Of A Serious Heart Attack” Where Other Effective Means Provided

Posted in Effective Communication, Lawsuits, Investigations & Settlements, Maintenance of Accessible Features

By Eden Anderson

As we have previously noted, Title III of the ADA requires that public accommodations provide, at their expense, “auxiliary aids and services” to ensure “effective communication” with persons with hearing disabilities.  The “nature, length, complexity, and context of the communication” at issue and the individual’s “normal method of communication” must be considered before assessing whether a particular auxiliary aid or service must be provided to afford “effective communication.”  This can be a very difficult determination in the healthcare context, where communications can be complex and urgent, including in life or death situations.   

A federal district court in Florida recently applied this legal obligation in the context of a hospital providing medical services to deaf patients and concluded that the use of video relay interpretation, passed written notes, and gestures sufficed to meet the hospital’s obligation and rejected the plaintiffs’ claim that a live interpreter was necessary to afford effective communication.   

In Martin v. Halifax Healthcare Systems, Inc., three individuals who are “completely deaf” and whose primary mode of communication is American Sign Language filed a lawsuit claiming that the hospital violated the ADA by failing to provide live interpreters for communication.  Two of the plaintiffs had been patients at the hospital, one of whom was treated while “in the throes of a serious heart attack.”  The third plaintiff had accompanied her pregnant daughter to the hospital. 

Although two of the patients occasionally received live interpreter services, in most instances  the hospital instead communicated with the plaintiffs through video relay interpretation, passed notes, and gestures.  The court held that such efforts were sufficient to afford effective communication.  The court noted that there was no evidence that the use of other communication methods adversely affected the plaintiffs’ understanding of the medical issues or that the plaintiffs “would have reached a different decision about treatment options or reached a more beneficial result” had live interpreters been provided. 

While the decision is a positive development for health care providers and other places of public accommodation, hospitals and health care providers should not view it as license to not provide sign language interpreters for deaf patients.  On the one hand, the ruling comports with the ADA regulations stating that a public accommodation is not required to provide an individual’s requested auxiliary aid or service so long as the one that is provided results in effective communication that is timely and protects the privacy and independence of the individual with a disability.  On the other hand, the rule seems inconsistent with the Department of Justice’s view that hospitals and health care providers must provide interpreters for important health care related communications.  The DOJ’s position is memorialized in a number of its settlements with hospitals and health care providers and a hospital that does not subscribe to this position would be at greater risk of a DOJ inquiry.    

Edited by Minh N. Vu and Kristina M. Launey

Justice Department Increases ADA Title III Monetary Penalties

Posted in 2010 ADA Standards

By: Kevin A. Fritz

The Department of Justice recently issued a final rule increasing — due to inflation adjustment — the civil monetary penalties that a court can impose on a public accommodation in an enforcement action brought by the Attorney General under Title III of the ADA.  The amounts of adjustments are determined according to a formula set forth in the Federal Civil Penalties Inflation Adjustment Act, the statute which provides for the regular evaluation of civil monetary penalties to ensure that they maintain their deterrent effect. Applying the formula to Title III, the adjustment increases the maximum civil penalty for a first violation from $55,000 to $75,000, and for a subsequent violation the maximum rose from $110,000 to $150,000.  If you are wondering what constitutes a “violation” when, for example, there are multiple barriers at a particular facility, or multiple facilities are involved in a single enforcement action, Title III of the ADA states that “in determining whether a first or subsequent violation has occurred, a determination in a single action, by judgment or settlement, that the covered entity has engaged in more than one discriminatory act shall be counted as a single violation.”

The adjustments will start applying for violations that occur on or after April 28, 2014. With the monetary stakes now raised, businesses should be all the more vigilant to stay in compliance with all Title III requirements.

Edited by:  Minh N. Vu and Kristina Launey

Ninth Circuit: Unruh Act Claims (Not Based on the ADA) Require Affirmative, Intentional, Wilful, Discriminatory Action

Posted in Lawsuits, Investigations & Settlements, Website

By Kristina M. Launey

The Ninth Circuit Court of Appeals recently held that a plaintiff must show intentional, willful, affirmative discriminatory action by a public accommodation to prevail on a claim for violation of California’s Unruh Act (one of the state’s ADA Title III-corollary statutes). There are actually two avenues through which a plaintiff can establish an Unruh Act violation: (1) showing that the ADA has been violated (for which intentional discrimination is not required), or (2) showing intentional discrimination (which requires a heightened burden and factual showings).  In this case, Greater Los Angeles Agency on Deafness et al. v. Cable News Network, Inc., the plaintiffs did not plead that there was a violation of the ADA. Thus, the court considered the Unruh Act claim only on the intentional discrimination ground.

As such, this decision, while informative, has limited applicability, and businesses should proceed with caution. For California businesses that are not public accommodations covered under the ADA, this decision is good news: as long as the business has not engaged in an intentional act, it is not liable under the Unruh Act. What would be such a business?  The only one that comes to mind is an online business that has no nexus to a physical location.  Contrary to some other circuits, the Ninth Circuit has held that a business’ website must have a nexus to a physical place of business in order to be a public accommodation under the ADA.  (See our previous report on Cullen v. Netflix, which held, relying on earlier Ninth Circuit precedent, that a video streaming website is not covered by the ADA because it is not an actual physical place; and on subsequent cases from within the Ninth Circuit holding websites not connected to “physical spaces” are not covered by the ADA.)  This may well be why the plaintiffs in this case did not assert an ADA claim and proceeded instead under the intentional discrimination prong of the Unruh Act.

This decision arose from CNN’s motion to strike a lawsuit in which the Greater Los Angeles Agency on Deafness, Inc. (“GLAAD”) alleged that CNN violated the Unruh Act and the Disabled Persons Act (“DPA”) by intentionally excluding deaf and hard of hearing visitors from accessing videos on CNN.com through its failure to provide captioning for the videos. GLAAD requested damages, declaratory relief, fees and costs, and a preliminary and permanent injunction “requiring [CNN] to take steps necessary to ensure that the benefits and advantages offered by CNN.com are fully and equally enjoyable to persons who are deaf or have hearing loss in California.”  Prior to filing suit, GLAAD had asked Time Warner to caption all of the videos on its news web sites, including CNN.com.  CNN responded that it would comply with whatever requirements the Federal Communications Commission (“FCC”) would impose under the new 21st Century Communications and Video Programming Accessibility Act (“CVAA”) rules.

The district court denied CNN’s motion to strike the complaint in its entirety.  CNN appealed to the Ninth Circuit.

The Ninth Circuit found that GLAAD had failed to establish a probability of success on its Unruh Act claims, which require a showing of intent.  The Unruh Act entitles disabled persons “to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” But, as the court noted, the Unruh Act “does not extend to practices and policies that apply equally to all persons” and requires a showing of intentional, willful, affirmative discriminatory action by a public accommodation. A plaintiff must show more than disparate impact of a facially neutral policy.

The court found “[n]otably absent from the record is any evidence supporting an inference that CNN intentionally discriminated against hearing-impaired individuals on account of their disability.  That hearing impaired individuals bore the brunt of CNN’s neutral policy is insufficient to support an Unruh Act claim.”  In other words, a neutral policy that has an adverse impact on people with disabilities is not enough to show the intentional discrimination required by the Unruh Act.  There must be a difference in treatment.  The court found no such difference in treatment and noted that CNN’s active participation in the FCC’s rulemaking process and its stated intention to comply with the FCC’s 2012 captioning rules was evidence of lack of  discriminatory intent.

The Ninth Circuit did not rule on the DPA claim.  Noting that the question of whether the DPA applies to websites is an important question of California law and of significant public concern, the court deferred decision on GLAAD’s DPA claim pending further guidance from the California Supreme Court, and certified the issue to the California Supreme Court.  CNN argued that a “place of public accommodation” under the DPA does not include websites. GLAAD contended that, considering the importance of the Internet in contemporary life, CNN.com is a “place” within the meaning of the act.  As the court noted, “[n]umerous recent cases have discussed the DPA’s applicability to virtual spaces like websites, but there is no conclusive California authority on point… Since the Internet is increasingly ubiquitous in daily life, and this question is likely to recur, we respectfully request that the California Supreme Court resolve the issue.”  This too is an important issue, which we will follow.

Edited by Minh N. Vu

Accessible Websites and Mobile Apps: Hot Topics at CSUN’s International Technology and Persons with Disabilities Conference

Posted in Website

By Kristina M. Launey

Once again, CSUN’s International Technology and Persons with Disabilities Conference brought together thought leaders, programmers, corporate and governmental accessibility representatives, vendors of digital accessibility solutions, advocates, and others in the field of digital accessibility to share developments and ideas. The large, varied crowd, as well as the substantive sessions, remove any possible doubt that the area of web and mobile accessibility is rightfully garnering a lot of attention.

Although the Department of Justice is still working on proposed regulations that would presumably adopt a legal standard defining what is an accessible website or mobile app, its recent enforcement actions make clear that the absence of regulations poses no impediment to legal action against businesses for not having accessible websites or mobile apps. Private plaintiffs have been also been very active in filing lawsuits or asserting such claims against many companies.  In this climate, many companies that have either been the targets of these actions, or just paying close attention to these developments, have decided that it is better to commit to accessibility now than to engage in a protracted and expensive legal battle.  Moreover, as many companies at the conference have recognized, building accessibility into any refreshes, redesigns, or new rollouts of websites or mobile apps makes sense over increased expense of remediating those same sites later, especially if remediation is done in response to legal action.

The conference’s legal update session drove these points home.  Accessibility civil rights attorneys Lainey Feingold and Linda Dardarian emphasized their position that Title III of ADA does cover websites, and gave a year-in-review report of digital accessibility legal developments in the following industries: Continue Reading

Bank Branches Sued Again in a Second Round of Title III Class Suits

Posted in Lawsuits, Investigations & Settlements, Physical Accessibility

By Kevin A. Fritz

A law firm that filed more than 100 class actions from early 2012 through 2013 is scratching that ADA itch again with new Title III class suits.  Since January of this year, the firm filed seven new lawsuits on behalf of one plaintiff.  Each lawsuit alleges that the defendants’ bank branches, located throughout Pennsylvania, are inaccessible to individuals who use wheelchairs.

Most of the banks just sued are familiar with the firm, which brought suit against them on behalf of different plaintiffs for alleged ATM accessibility violations.  But these new suits focus on other branch elements such as inaccessible parking lots, obstructed accessible routes, handicap signs that are too low, inaccessible door hardware and entrances, etc.  The motivation behind these new suits is unclear.  The first lawsuits came about most likely because of the March 2012 deadline for ATMs to comply with new standards under the ADA.  Now this firm appears to be looking to make another withdrawal from the banks’ litigation funds by going after other accessibility violations.

Should the firm follow its prior ATM class action strategy, other banks should be prepared for many similar, if not identical, class suits to be filed across the country.  That said, the plaintiff may have more of an uphill battle to proceed on a class basis in these cases because every branch in a bank system is likely to be different with respect to its date of construction, alterations, and architectural barriers — thus undermining the commonality of the factual and legal issues required to pursue a class case.

Edited by Minh Vu and Kristina Launey

Justice Department Issues New Guidance on the Use of Other Power-Driven Mobility Devices by Individuals with Mobility Disabilities

Posted in Department of Justice, Physical Accessibility

By Paul Kehoe and Minh Vu

As noted in an October 2013 blog post (here), more than three years have passed since the Department of Justice (“DOJ”) revised its regulations requiring businesses and state and local governments (“covered entities”) to allow the use of other power-driven mobility devices (“OPDMDs”) in their facilities by individuals with mobility disabilities.  Unlike wheelchairs and scooters, OPDMDs are mobility devices that are not designed primarily for use by people with mobility disabilities (e.g., Segways™ and golf carts).  Last month, the DOJ issued its first full technical guidance document on this topic.  Our takeaway from this recent guidance is that DOJ does not want covered entities limiting the use of OPDMDs, especially Segways, unless there is a very good reason to do so.  DOJ also expects covered entities to develop written policies and rules for OPDMD use and train their employees on how to implement those policies.

The guidance restates the five assessment factors that covered entities should analyze when determining whether the use of a particular OPDMD type should be permitted in a particular facility by people with mobility disabilities.  They are: Continue Reading

Seyfarth Title III Team To Present Webinar on Segway Use

Posted in Commercial Facilities, Maintenance of Accessible Features, Physical Accessibility

As we’ve previously reported, new Department of Justice rules give individuals with mobility disabilities the right under the ADA to use a wide variety of non-traditional powered mobility devices in public accommodations facilities.  The lawsuits and complaints about this issue are on the rise so businesses should familiarize themselves with this issue to avoid expensive lawsuits.

On Thursday March 20, 2014, from 1:00-2:00 PM EST, our ADA Title III Team Specialists Minh Vu and Paul Kehoe will present a webinar that answers: Do I Have To Let People With Disabilities Ride Their Segways In My Place Of Business?  They will discuss the regulatory requirements, the most recent official guidance on the subject, and the questions that you can (and cannot) ask to determine if a person is using one of these devices for a legitimate protected reason.

Click here for more information and to register.

New EU Web Accessibility Rules In the Works

Posted in Legislative/Regulatory Actions, Website

By Kevin Fritz

Members of the European Parliament voted last week to strengthen a proposed European Directive on Accessibility of Public Sector Bodies’ Websites.  The beefed up version of the directive would require all UK public sector websites to be accessible to users with disabilities; not just those sites proposed by the European Commission, such as social security benefits and enrolment in higher education.  The proposed directive is intended to benefit individuals with disabilities across the EU, and increase the potential of the internal market for web accessibility products and services.  The amended version would also strengthen monitoring of EU bodies’ conformance with the law.  Until the EU institutes its own specific technical web accessibility standards, the level of accessibility required by the proposed directive would be level AA of the international technical standard WCAG 2.0.  And while the recommended amendments are likely to become adopted, it is unlikely that a final agreement will take place before early 2015.

For more on the new EU public sector web accessibility rules, check out: http://bit.ly/1orjE1a.

Edited by Kristina Launey and Minh Vu

NBC Investigative Team Reports California Outpaces Other States in ADA Lawsuits

Posted in 2010 ADA Standards, Physical Accessibility

By Kristina M. Launey

NBC Bay Area recently aired a report by Vicky Nguyen, Jeremy Carroll and Kevin Nious, analyzing federal lawsuits that alleged ADA violations, calling it “legalized extortion.”  NBC Bay Area’s Investigative Team found from the more than 10,0000 ADA lawsuits it reviewed that had been filed in the five states with the highest disabled populations (California, Texas, New York, Pennsylvania and Florida) since 2005, that California has more lawsuits (7,188) for access violations than the other four states combined.  Note that this does not include complaints filed in state courts alleging violations of the ADA or its state law equivalents.  The report notes that unlike the ADA, California disability access laws are enforced through private lawsuits – since California allows up to $4,000 statutory damages per violation – and asks the question whether the suits are motivated by access or money.  The report revealed that over 50% of California ADA lawsuits were filed by 30 plaintiffs.  The report also interviewed a Certified Access Specialist, who demonstrated the difficulty businesses face in achieving full compliance with the requirements for physical accessibility, such as the proper measurements for a disabled parking space. The report concluded that, while not a guaranteed shield, having a Certified Access Specialist assess and provide an “Access Inspected” certificate can help deter drive-by plaintiffs from targeting a business for a lawsuit.