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.
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
By Minh N. Vu
According to the Spring 2015 Unified Agenda of Federal Regulatory and Deregulatory Actions, the Department of Justice (DOJ) will issue no proposed regulations for public accommodations websites until least April 2016 — nearly a year from now. However, the proposed regulations for state and local government websites, originally slated for December 2014, should be out any minute. We know because the Unified Agenda has a May 2015 projected publication date for those proposed regs — which has already passed. This is frustrating news for all affected parties who have been clamoring for clarity while the DOJ has moved forward with enforcement activities against allegedly inaccessible websites in the absence of even a proposed rule. We suspect that the delay may be related to the Regulatory Impact Analysis (RIA) (i.e., cost benefit analysis) that the DOJ must conduct for the proposed rule.
Any proposed rule requiring public accommodations’ websites to be accessible will have an enormous cost impact. Millions of businesses with a website presence will need to hire consultants to figure out what must be done to make their websites accessible, modify their websites or pay others to do so, pay consultants to test and verify the compliance of their websites, and maintain the accessibility of their websites going forward. Quantifying the cost of these efforts, in addition to any cost to society resulting from businesses choosing to provide less content or functionality on their websites, is no small task.
But alas, we will not be reading the proposed rule or the RIA for at least another eleven months.
Edited by Kristina Launey
By Kevin Fritz
We recently came across a news story that inspired us to draft this post: A Wisconsin woman and a kangaroo enter a restaurant. (If that isn’t a great joke intro, we don’t know what is.) Another customer calls the police to report the animal, but the woman claims that her kangaroo is a service animal and produces a note from her doctor validating her assertion. The police ask her to leave, and she and baby Joey exit in anger. Even though in this scenario no action was taken, the issue remains far from moot. Because what qualifies as a service animal under the law – and how businesses can be best prepared in situations such as these – continues to be confusing and, thus, a popular area for discussion.
In 2010, the US Department of Justice published revised final regulations implementing Title III of the ADA (which applies to public accommodations and commercial facilities). Under this federal law, service animals are defined as dogs that are individually trained to do work or perform tasks for people with disabilities. Examples of such work or tasks include guiding people who are blind, alerting people who are deaf, pulling a wheelchair, alerting and protecting a person who is having a seizure, reminding a person with mental illness to take prescribed medications, calming a person with PTSD during an anxiety attack, or performing other duties. Service animals are working animals, not pets. The work or tasks a dog has been trained to provide must be directly related to the person’s disability. Dogs whose sole function is to provide comfort or emotional support do not qualify as service animals under the ADA.
In addition to the provisions about service dogs, the Department’s revised ADA regulations have a separate provision about miniature horses. Entities covered by the ADA must modify their policies to permit miniature horses where reasonable. Specifically, a public entity or private business must allow a person with a disability to bring a miniature horse on the premises as long as it has been individually trained to do work or perform tasks for the benefit of the individual with a disability, and as long as the facility can accommodate the miniature horse’s type, size, and weight. As a practical matter, miniature horses that perform work or tasks for a person with a disability get the same treatment as canine service animals.
That said, some state and local laws define “service animal” more broadly than the ADA. In Wisconsin, for example, “service animal” means a “guide dog, signal dog, or other animal that is individually trained or is being trained to do work or perform tasks for the benefit of a person with a disability, including the work or task of guiding a person with impaired vision, alerting a person with impaired hearing to intruders or sound, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items.” Wisc. Stat. §106.52(1)(fm).
So, while the only dogs and miniature horses must be accommodated as service animals under federal law, other types of animals may be service animals under state law if they are trained to perform work or tasks for an individual with a disability.
Back to our real life scenario: Is the baby Joey a service animal? According to the ADA, definitely not. But in Wisconsin, the answer is less obvious. If it could be proven that the kangaroo performs work or tasks for the woman, and that she has a disability, she may be able to successfully bring a claim for disability discrimination against the restaurant under state law.
To protect against lawsuits, businesses will do well to recognize the basic federal floor under the ADA, and review applicable state laws and local ordinances to make sure they don’t provide greater protections. In addition, state laws often protect service animals in training that are with their licensed trainers – who might not be persons with disabilities, serving as an important reminder that you cannot judge someone based on appearance.
To that end, when a person with a service animal enters a public facility or place of public accommodation, the person cannot be asked about the nature or extent of his disability. The ADA allows only two questions to be asked: Is the animal required because of a disability? AND What work or task has the animal been trained to perform?
These questions should not be asked, however, if the animal’s service tasks are obvious.
These questions elicit the key characteristics of a service animal: (1) It has been trained to assist a person with a disability; and (2) it performs work or tasks for a person with a disability. If the animal performs no work or tasks, it is not a service animal.
Kevin Fritz is an Associate in the Chicago office of Seyfarth Shaw LLP
By Minh N. Vu
For today’s Global Accessibility Awareness Day, we have yet another Department Justice enforcement action to report relating to the allegedly inaccessible websites and other technologies. This time, DOJ is trying to intervene in an existing lawsuit, Dudley v. Miami University, filed by a former Miami University student who is blind. Although the lawsuit is brought under Title II of the ADA which applies to state and local government entities and not public accommodations, the obligations under the Title II and III are very similar. Thus, the DOJ’s position in this lawsuit provides useful insight into how it would treat private universities and other public accommodations covered by Title III of the ADA.
On May 12, 2015, the DOJ sought permission from the court to intervene in the lawsuit as an additional plaintiff. If the request is granted, the lawsuit’s scope will widen. As an individual plaintiff, Ms. Dudley can only seek injunctive relief that relates to her own disability (blindness) and attorneys’ fees. The DOJ, on the other hand, can and is seeking injunctive relief that would benefit people with other types of disabilities such as those who are deaf or hard of hearing. In addition, the DOJ can seek compensatory damages for past and present students who have been harmed, and a civil penalty of up to $75,000.
The DOJ’s action stems from the University’s obligation ensure that its communications with individuals with disabilities is effective. One question we often get is whether a public accommodation is required to ensure that all of its communications with the public are effective, or just those that relate to the core goods and services that the public accommodation offers (e.g, communications by a university to students and prospective students about its courses and programs). Some advocacy groups have taken the position that all material posted on any university website must be accessible for the benefit of the public at large, even if the material is not directly related to any coursework or other programs offered by the school. Continue Reading
Recently, a Federal court in Northern California denied Uber Technologies, Inc.’s request to dismiss an access lawsuit. The plaintiffs, National Federation of the Blind of California (“NFBC”) and individual blind members with guide dogs, filed an ADA lawsuit alleging Uber-X drivers committed various forms of discrimination, including refusing to transport blind riders with their service animals.
For example, one blind member of NFBC alleged an Uber-X driver pulled up to the curb; yelled “no dogs;” and then cursed at him before taking off without the NFBC member in the driver’s vehicle. The complaint also alleges that Uber-X drivers have mishandled guide dogs, in one instance even forcing a guide dog into the closed trunk of a sedan before transporting the blind rider. When the blind rider realized where the Uber-X driver placed her dog, she pleaded with the driver, who refused to pull over so the rider could remove the dog from the trunk.
Below, we discuss the arguments considered by the Court regarding Uber’s motion to dismiss. The Court ultimately determined that: (1) the plaintiffs had standing under the ADA; and (2) Uber may be subject to the ADA, potentially as a place of “public accommodation.”
Plaintiffs’ Standing under the ADA
Uber argued that the plaintiffs did not have standing to bring the lawsuit because, among other state law arguments: (1) one plaintiff did not have standing under the ADA’s deterrent effect doctrine; and (2) another plaintiff did not have standing as to the likelihood of future harm under the ADA.
The Court rejected Uber’s arguments. In finding that plaintiffs have standing under the ADA, the Court noted that the plaintiffs shouldn’t have to engage in a “futile” attempt to access services when they: (1) have knowledge that Uber has refused service to passengers with service animals; and (2) believe there is a likelihood such refusals will continue. Specifically, the Court said that “the ADA directs this Court to relax its standard for injury in fact in order to discourage both piecemeal litigation and futile attempts at access” when plaintiffs have actual notice of the alleged discriminatory practice and are in fact deterred from attempting access.
The Court also granted NFBC associational standing to bring suit under the ADA on behalf of its members.
Uber May Be Subject to the ADA Continue Reading
By Minh N. Vu
We are pleased to report that The Economist took an interest in our research which showed a 63% surge in the number of ADA Title III lawsuits filed in 2014. The Economist published an article (to come out in the print edition on April 25) entitled “Hobbling businesses: A law designed to help people with disabilities enriches lawyers instead”, based on our findings and the background that we and others provided. Happy reading.
By John W. Egan
Despite the url (www.adatitleiii.com) and frequent federal focus of this blog, it is important to remember that many states and municipalities have their own disability access laws and regulations with which businesses must comply. Although many state and local requirements are similar to the ADA, this is not always the case.
Usually we’re reporting on a peculiarity of California law, but not today. Effective November 22, 2014, businesses in New York must use the Accessible Icon (depicted above) in new construction and alterations. New York is the first state in the country to adopt this icon, which is distinctly different than the International Symbol of Access (“ISA”) specified in federal ADA Title III regulations.
The New “Accessible Icon”
Created over forty years ago, the ISA is a widely-recognized depiction of an individual in a wheelchair that signifies access for persons with disabilities. ADA design standards, as well as many state and local laws, regulations and building codes expressly require that businesses use the ISA to designate accessible entrances, restrooms, and parking spaces, to name a few.
On July 25, 2014, New York Governor Andrew Cuomo signed legislation designed to phase out the ISA throughout the state. Under the new law and its implementing regulations, accessibility signage installed or replaced on or after November 22, 2014 must use the Accessible Icon. The new law also prohibits the use of the term “handicapped” on accessible signage.
The description of the Accessible Icon in state regulations is taken verbatim from the website of The Accessible Icon Project, an advocacy organization that developed the icon and is lobbying for its adoption in the United States and abroad. Rather than what the regulations describe as a “static” position of the ISA, the Accessible Icon depicts a “dynamic character leaning forward and with a sense of movement.” The forward position of the head, arms pointing backward, and appearance of a wheelchair in motion “broadcast an important message that the emphasis should be on the person rather than the disability.”
The regulations make clear that their purpose is to change the accessibility symbol in the state, but make no reference to the fact that federal regulations – with which businesses must also comply – still require the traditional ISA.
New NYS Requirements Conflict with the ADA
New state signage requirements are inconsistent with the 2010 ADA Standards for Accessible Design (and the preceding 1991 Standards), which require that public accommodations use the ISA to designate certain accessible architectural features.
As a result, New York businesses that install or replace accessible signage on or after November 22, 2014 are faced with a Catch-22. They must either display the Accessible Icon and risk violating the ADA, or display the ISA instead and fail to comply with state law.
One way out of this quandary would be for New York businesses to display the Accessible Icon and rely on the equivalent facilitation provision in Section 103 of the 2010 ADA Standards, which allows “the use of designs, products, or technologies as alternatives to those prescribed, provided that they result in substantially equivalent or greater accessibility and usability.” Businesses can take the position that the Accessible Icon constitutes equivalent facilitation under Section 103, and thus its use in lieu of the ISA is permitted. However, the agency responsible for enforcing Title III of the ADA – – the Department of Justice (“DOJ”) – – has not issued any formal guidance on this issue. Moreover, if a lawsuit is filed under the ADA against a business that chose to display the Accessible Icon, the burden of proving that the Accessible Icon provides equivalent facilitation would be on the business.
A Sign of Things to Come?
Will other states follow New York’s lead and replace the ISA with the Accessible Icon? According to The Accessibility Project’s website, the Icon is displayed in municipal buildings in New York City, Cambridge, Massachusetts, and El Paso, Texas, as well as by a number of museums, restaurants, colleges, and hospitals in the United States and internationally. Additional state jurisdictions may well follow suit.
The symbolism underlying the design of the Accessible Icon is unquestionably positive. Its recent adoption in New York, however, has created uncertainty for public accommodations that must comply with both federal and state law.
In August 2014, we reported that the number of ADA Title III lawsuits filed against public accommodations rose by nearly 9% in 2013 over 2012. At that time, we predicted that there could be a 40% increase in the number of lawsuits filed in 2014 based on 6 months of data. Now that we have all the data, the actual number is far higher: There was a 63% surge, resulting in a grand total of 4,436 ADA Title III lawsuits filed in 2014.
How Does This Compare to The Number of ADA Employment Lawsuits?
Just to put this into perspective, for comparison purposes we looked at the number of lawsuits filed under Title I of the ADA which prohibits discrimination on the basis of disability in employment. As the below chart shows, those numbers remained very steady in 2012-2014, and numbered well under half the total Title III cases filed in 2014.
Where Are Most of These Cases Filed?
California continues to lead the country with the highest number of ADA Title III lawsuits (1866), with Florida coming in a close second (1553). New York (212), Pennsylvania (135), and Alabama (117) hold the distant third, fourth, and fifth place slots. These five states also saw the largest percentage increase in the number of lawsuits.
In stark contrast, there was not a single ADA Title III lawsuit filed in 2014 in Idaho, Montana, Nebraska, North Dakota, South Dakota, and Wyoming.
What is driving these higher lawsuit numbers, 25 years after the passage of the ADA?
Although we have not studied every complaint to answer this question, we did notice some trends in 2014 in our own practice. In addition to the usual lawsuits alleging physical access barriers at hotels, retailers, and shopping centers, we handled a number of cases brought by plaintiffs alleging a failure to provide accessible pool lifts, mostly in Florida. Some of these cases were clearly frivolous because the hotels did have pool lifts. Plaintiffs represented by one law firm filed more than 60 class action lawsuits in the Western District of Pennsylvania. Many of these alleged that the parking lots of various retailers, restaurants, and banks do not have compliant accessible parking spaces. We also handled federal class actions alleging that some retailers’ point of sale devices are not accessible to the blind.
Who is filing these lawsuits?
We looked at our top five jurisdictions to see who some of the repeat filers were in 2014 under both ADA Title II (state and local government defendants) and Title III (public accommodations (private sector businesses)). In Florida, a plaintiff named Howard Cohan filed 529 such suits. In California, a plaintiff named Martin Vogel filed 124 suits. In Pennsylvania, a plaintiff named Christopher Mielo brought 21 lawsuits. In New York, a plaintiff named Zoltan Hirsch brought 24 lawsuits. In Alabama, a plaintiff named David Higginbotham filed 16 lawsuits.
A Note About Our Methodology
Our data comes from PACER, the federal court electronic docket system. When filing a new lawsuit, a plaintiff has two ADA codes to choose from: “Americans with Disabilities: Employment” or “Americans with Disabilities: Other.” The “other” category refers to ADA Titles II or III. Our diligent librarian, Susan Ryan, obtained the ADA Title III case numbers by reviewing each of the case names (and where necessary, the complaints) to eliminate all Title II cases. As far as we know, no one else has undertaken this task, so you are hearing it here first on this blog.
Edited by Kristina M. Launey