The Wall Street Journal last week published two stories about Title III of the ADA after obtaining insights from various sources, including our ADA Title III Team leader, Minh Vu. The story concerning the surge in ADA Title III lawsuits cited to Seyfarth’s labor intensive research which we reported earlier this year. The companion story about the anticipated rise in ADA Title III cases concerning the accessibility of websites to people with disabilities included thoughts from Ms. Vu about the impact of the DOJ’s recent enforcement action against H&R Block.
By Kevin Fritz and Kylie Byron
If you’ve visited a shopping mall in America, you’ve probably seen the characteristic design of the Hollister Co. clothing stores. About 249 of the stores have a roofed porch-like entrance, with steps leading up onto the porch from the mall area and steps leading down from the elevated porch into the store interior. Flanking the porch on both sides are wheelchair accessible entrances with no steps that lead directly into the store’s interior. Advocacy groups — with the Justice Department’s (DOJ) support as amicus — sued Hollister and parent company Abercrombie & Fitch Co. claiming that the porch structure violates Title III of the Americans with Disabilities Act.
The plaintiffs won in district court where they argued that: (1) even though the stores fully comply with the requirements of the 1991 and 2010 Standards for Accessible Design (ADA Standards) for entrances, the existence of an elevated porch violate the “overarching aims” of the Title III of the ADA because people who cannot use the stairs cannot enjoy it; (2) the porch itself is a “space” and all spaces must be accessible; and (3) the accessible entrance must be the one used by the “majority of people.”
The Tenth Circuit Court of Appeals rejected all of these arguments. The court found that meeting the ADA Standards is sufficient to satisfy Title III of the ADA when the issue is one of design, rather than discriminatory practice. The DOJ had argued — based on the ADA’s broad guarantee of a “full and equal” experience — that the porch has to be accessible because it is part of the “Hollister experience.” The Tenth Circuit disagreed. The court also held that the ADA Standards do not require every space in a facility to be accessible. Further, court ruled that the “majority of people” rule from the 1991 ADA Standards was abandoned in the 2010 ADA Standards so that it no longer applies to the case at hand.
This decision should be welcome news for public accommodations that are building and remodeling their facilities. Although it should be matter of common sense that compliance with the ADA Standards equals compliance with the ADA, this lawsuit called this proposition into question. Plaintiffs and DOJ often rely the “full and equal” language of the ADA to argue in support of additional obligations that are not stated in the regulations or ADA Standards. At least in matters of architectural design, one circuit is saying no to this line of argument.
By John W. Egan
As we have previously reported, the Department of Justice issued proposed regulations this summer that would require movie theaters to show movies with closed captioning and audio description. DOJ has requested public comment on a number of issues related to these proposed regulations.
The period for providing public comments on this Notice of Proposed Rulemaking began on August 1, 2014, and was to close on September 30, 2014. However, on September 2, 2014, the Attorney General granted a 60 day extension so that all comments are now due no later than December 1, 2014.
By Minh N. Vu
They are sprouting up everywhere: Kiosks that allow customers to buy tickets, rent DVDs, get boarding passes, check-in at a hotel, count change, and even rent cars without ever having to interact with a human being. These self-service kiosks can be a boon for customers and businesses, but they also create lawsuit exposure for businesses that fail to consider how they will be used by individuals who are blind or have limited mobility.
Redbox’s recent settlement of a class action lawsuit brought by advocates for the blind highlights this thorny issue and the uncertain legal landscape surrounding self-service equipment designed for customer use. Several blind individuals and an advocacy group sued Redbox because its DVD rental kiosks could not be independently used by non-sighted individuals. After two years of litigation and mediation, the parties entered into a class settlement under which Redbox agreed to take the following steps for all Redbox locations in California:
- incorporate audio guidance technology, a tactile keypad, and other accessibility features into its DVD rental kiosks so that blind customers can use them independently at one kiosk at every location within 18 months and at all California kiosks within 30 months;
- provide 24-hour telephone assistance at each kiosk;
- pay $1.2 M in damages to the class of aggrieved persons in California;
- pay Lighthouse for the Blind $85K to test kiosks;
- pay $10K to each named plaintiff in damages; and
- pay $800K in plaintiffs’ attorneys’ fees and costs.
Redbox also agreed to make certain accessibility improvements to its website but notably did not commit to meeting the Web Content Accessibility Guidelines. Continue Reading
USA Today recently reported that the number of passengers traveling on airplanes with service animals is increasing. The article explores possible reasons for this increase. Perhaps – innocently and legitimately – there are more individuals with disabilities flying the friendly skies with their service animals than ever before. Or, as USA Today suspects, not all are legitimate service animals. Ferreting out service animal fraud is an ongoing issue, which we have previously covered.
What could be motivating these air passengers’ fraud? Well, money is always an issue. According to the article, airlines charge as much as $549 for non-service animals, while there is no charge for service animals. Or, consistent with the increasing trend of animals in strollers, purses, and just about everywhere their owners go, pet lovers just cannot bear the idea of leaving Fido in the cargo hold of the plane.
What law governs this? The Air Carrier Access Act (ACA) governs the rights of passengers with disabilities traveling on planes. The protections the ACA provides for individuals who have service or emotional support animals are broader than the Americans with Disabilities Act (ADA). Under the ACA, virtually any type of animal can be a service animal. The ACA also protects emotional support animals for recognized psychiatric conditions with documentation from a licensed mental health professional. The ACA requires that airlines allow these animals on planes with their owners and prohibits airlines from charging a fee for the animals. In contrast, the ADA only provides protection for dogs and miniature horses that are actually trained to perform work or tasks for a person with a disability. Unlike airlines covered by the ACA, public accommodations covered by the ADA do not have to allow onto their premises emotional support animals that merely make their owners feel better by their presence–even if the owners have a recognized psychiatric condition.
Passengers traveling with service or emotional support animals should note, however, that some destinations such as Hawaii and the UK may have additional rules concerning animals entering those areas.
Regardless of whether the animals on planes are legitimate service or emotional support animals, expect to see more furry friends on your next flight.
Our own Minh Vu was interviewed for this article about the state of compliance with the new pool lift requirements at hotels and how serial plaintiffs have capitalized on the rules to file more lawsuits. Minh served as counsel to the American Hotel & Lodging Association in its successful effort to obtain a nine month extension of the pool lift compliance deadline after the Department of Justice decided to mandate — six weeks before the compliance deadline — that pool lifts must be fixed.
If you had a suspicion that the Title III plaintiffs have been far more active in recent years, you were right. Our review of the federal docket shows that there was a 9% increase in the number of lawsuits filed from 2012 to 2013. What’s more, the number of lawsuits filed in 2014 may increase by nearly 40% over 2013 if the current trend continues.
Nationwide, plaintiffs filed 2,719 ADA Title III lawsuits last year, as compared to 2,495 in 2012. That’s an increase of slightly more than 9% year-over-year.
Where were the most complaints filed in 2013? California (995 claims), Florida (816 claims) and New York (125 claims). The high percentage of cases filed in California is no surprise because California has a non-discrimination law that provides for statutory minimum damages of $4,000. Plaintiffs filing in California almost always include claims under California law because their remedies under the Title III of the ADA are limited to injunctive relief and attorneys’ fees. (If you’re in Pennsylvania, beware: June 2014 saw a slew of physical accessibility class complaints filed by the same plaintiff, Christopher Mielo, and law firm, Carlson Lynch, against numerous businesses.)
Want to avoid ADA Title III lawsuits? Open your business in Alaska, Idaho, Montana, Nebraska, North Dakota and Vermont where no ADA Title III cases were filed in 2013.
Our research also shows that ADA Title III case filings may reach more than 3800 cases in 2014 — a whopping increase of 40%. Already, we saw approximately 1939 ADA Title III cases filed in the first six months of the year. We say “approximately” because the federal docket system, PACER, lumps Title II and Title III cases together under the category of “Americans with Disabilities — Other.” We obtained the 1939 number by assuming that 86% of the ADA Title II and Title III cases reported were actually ADA Title III cases. The 86% is based on our research department’s manual review of the 2012 and 2013 case filings to separate out the Title II and Title III cases. That review showed that 85-87% of the total cases reported by PACER in 2012 and 2013 were Title III cases.
If you want to drill down on our methodology, here goes: We ran a PACER search in federal district courts for nature of suit code 446, which covers non-employment ADA cases. We then went through the resulting list of case names, eliminating those that were clearly filed against public entities that would fall under Title II. What we had left were the Title III complaints for 2012 and 2013. We did not undertake a manual review of the 2014 numbers but, as explained above, applied the findings from the 2012-2013 review to the 2014 numbers.
We do want to give a few of caveats about these numbers. First of all, not all plaintiffs code their claims correctly. For example, some of the cases we checked to determine if they were Title II or Title III claims turned out to be Title I claims that were given the wrong nature of suit code. Secondly, there are some plaintiffs whose complaints are, to put it mildly, opaque in their intent. We decided not to count these as Title III claims, but someone else might have reached a different conclusion.
While our approach may not be bullet proof, we can safely say that the number of ADA Title III lawsuits are on the rise, propelled by cases concerning the accessibility of new technologies and the internet.
By John W. Egan
On July 25, 2014, the Department of Justice (DOJ) issued proposed regulations that would require movie theaters with digital screens to show movies with closed captioning and audio description. We covered this development here.
DOJ has requested public comment on a number of issues related to these proposed regulations, including whether closed captioning and audio description requirements should also apply to theaters showing movies in analog (film) format within four years after the final rule is published, or instead be addressed in future a rulemaking.
The period for providing public comments on this Notice of Proposed Rulemaking starts today and will run until September 30, 2014.
Edited by Kristina Launey
By John W. Egan
On Friday of last week—the day before the ADA’s twenty-fourth anniversary—the Department of Justice (DOJ) announced a proposed rule that would require movie theaters with digital screens (and possibly those with only analog screens) to show movies with closed captioning and audio descriptions (if available), and to purchase equipment that would allow the transmission of such information to moviegoers with hearing or sight disabilities. The regulations would also require theaters to inform the public about the availability of such captioning and audio descriptions in its advertisements and other communications about the movies they show.
The regulations implementing Title III of the Americans with Disabilities Act (ADA) already require that public accommodations, including movie theaters, provide auxiliary aids and services to ensure effective communication with persons with visual and auditory impairments. The proposed rule would require that movie theaters provide specific equipment and accommodations to patrons who are blind or have low vision, as well as patrons with auditory impairments. DOJ estimates that complying with these proposed requirements would cost the industry between $138.1 and $275.7 million and that a substantial number of small businesses will experience “a significant economic impact.”
The major provisions are discussed below.
Although “drive-by” ADA Title III lawsuits alleging physically inaccessible public accommodations facilities will continue to be a mainstay for the plaintiff’s bar, a new type of lawsuit has recently emerged: The “surf-by” lawsuit. In the past month, we have seen an onslaught of case filings and demand letters threatening lawsuits from private plaintiffs alleging that retailers, colleges, and other businesses denied blind individuals access to the businesses’ goods and services by having inaccessible websites or mobile applications. These plaintiffs generally claim this denial of access violates Title III of the Americans with Disabilities Act (ADA) and California’s Unruh Act. They are threatening to take action and filing their suits in California because, while the ADA authorizes only injunctive relief and attorneys’ fees, California law imposes up to $4,000 statutory damages per violation of the law.
We had predicted this flurry of lawsuits would come. Plaintiffs are taking advantage of the uncertainty surrounding this issue created by the Department of Justice’s (DOJ) four-year delay in issuing regulations on this subject, and encouraged by the DOJ’s aggressive enforcement posture on this issue despite its failure to issue regulations adopting a clear standard for accessible websites and mobile applications. Below is some background on this quickly evolving area of the law and a look at why some businesses are choosing to make their websites and mobile applications accessible now.
What is an “accessible” website? At this time, there is no law or regulation that sets the technical requirements for an “accessible” website or mobile application for public accommodations. Conceptually, an accessible website is one that can be used by people with various sight, hearing, and mobility disabilities. For example, blind people use screen readers and other assistive technologies to convey to them what is on a webpage. People with low vision need to be able to resize text and need a certain level of contrast. People who are deaf need captioning to access the audio in videos shown on websites. People with limited dexterity need to be able to navigate through a webpage using a keyboard instead of a mouse.
For many years, the so-called Section 508 website accessibility standards applicable to federal government websites was used to define accessibility. In recent years, however, a new and more robust set of guidelines developed by a private industry group has emerged called the Web Content Accessibility Guidelines (WCAG) (see http://www.w3.org) 2.0. Last year, the Department of Transportation adopted WCAG 2.0 Level AA as the legal standard that governs the websites of airline carriers under the Air Carrier Access Act. The DOJ signaled in 2010 that it would likely adopt these guidelines as the standard for public accommodations’ websites, but has still not issued a proposed rule. As discussed below, the WCAG 2.0 AA is the accessibility standard cited in virtually all settlements involving website accessibility and most recently in DOJ’s consent decree with H&R Block.
Is My Business Required To Have An Accessible Website? If you want to avoid litigation, yes. But as a matter of established law, the answer is less clear and may also depend on whether the goods and services available on the website are available in some equivalent alternative manner. Title III of the ADA requires businesses provide equal access to their goods and services to individuals with disabilities. This obligation includes providing auxiliary aids and services necessary to effective communicate with individuals with hearing, vision, or cognitive disabilities. Accessible electronic information technology is considered an auxiliary aid or service. Based on these regulations, plaintiffs and DOJ are taking the position that making websites accessible is required under Title III of the ADA.
Because litigating these cases is expensive and complicated, most businesses confronted with a demand or lawsuit are likely make a commitment to make their websites comply with the WCAG 2.0 Level AA in some reasonable timeframe. In 2013 and 2014, a large grocery chain, a weight loss company, an healthcare insurance provider, and a national drug store agreed to make their websites accessible after being approached by advocates for the blind. Just this year, H&R Block also agreed to make its online tax preparation tool, website, and mobile application comply with the WCAG 2.0 Level AA after being sued by advocates and the DOJ. In short, despite the lack of website accessibility regulations, more businesses are realizing the importance of making their websites and mobile applications accessible now given the very active enforcement environment.