By Minh Vu and Kylie Byron
The Department of Justice (DOJ) is continuing to pressure businesses to make their websites accessible even while it is drafting proposed regulations for websites that are supposedly coming out this June. The latest business targeted by DOJ is the National Museum of Crime and Punishment, which entered into a settlement agreement that was announced on Tuesday, January 13, 2015.
The settlement agreement requires the Museum to redesign its website to conform to the World Wide Web Consortium (W3C)’s Web Content Accessibility Guidelines 2.0 (WCAG), Level AA. The DOJ has yet to adopt WCAG Level AA (or any other set of guidelines) as the legal standard for website accessibility in any of its regulations, but they are becoming the de facto standard. As we have previously reported, the DOJ has specified WCAG Level AA as the access standard in all of its recent website accessibility agreements, including those with tax return preparation company H&R Block and online grocer Peapod.
WCAG Level AA requires, among many other things, that websites provide text alternatives for all non-text content; captioning and audio descriptions for all pre-recorded and live video and audio media; and an adaptable layout with a minimum contrast and resizable text. Further, the website must provide multiple ways to access any individual page, and all pages must be organized and easily navigable by a screen reader. The settlement does not specify whether the Museum’s mobile site, if it exists, would also have to conform to the guidelines.
The settlement agreement gives the Museum only 120 days to make its website conform to WCAG Level AA. This is a very short timeframe considering that the process always requires an initial audit, remediation, and retesting to ensure compliance. On a more positive note, the Museum did not have to pay any civil penalties.
In addition to website remediation, the Museum will also have to provide audio descriptions of tours and exhibits as well as resources in braille and large print for individuals who are blind or who have low vision. It must also make modifications to the museum itself to remove physical access barriers.
Edited by Kristina Launey
On January 22, Seyfarth Shaw’s class action experts are presenting a webinar to discuss highlights from Seyfarth’s 11th Annual Workplace Class Action Litigation Report. While the Report primarily covers class actions in the employment context, many of the rules, strategies, and tactics are equally applicable and employed in ADA Title III class litigation, as demonstrated by the Report’s inclusion of some ADA Title III cases.
The Report and webinar should prove educational to anyone faced with class or complex litigation. To find out more about the webinar and to register, click here.
As we start 2015, the recent activity and interest surrounding the issue of service animals under Title III of the ADA show no signs of abating. Customers and patrons of retailers and other public accommodations continue to test the boundaries of the federal statute and the applicable regulations, as well as those of state statutes, by bringing service animals (some legitimate and some decidedly not) into places of public accommodation. There appears to be a great deal of ongoing misinformation and misunderstanding about the these issues, which continue to present legal and practical headaches and minefields for places of public accommodation, as well as for employers under Title I of the ADA and analogous state statutes. Generally, the service animals topic continues to resonate within not only the legal community, but also in popular culture.
In December, the Society for Human Resources Management, the leading national Human Resources professional organization, published an article about service animals under Titles III and Title I of the ADA after obtaining insights from various sources, including one of our own ADA Title III team partners in California, Andrew M. McNaught. That article also cited to a widely-read, and very amusing and informative piece on the topic published by the New Yorker Magazine in October 2014.
In this space, we have previously reported on the myriad of issues surrounding service animals in places of public accommodation under Title III of the ADA. You can be sure we will continue to keep our readers updated on relevant developments in this area as we move forward in 2015.
Edited by Minh N. Vu and Kristina M. Launey
By Minh Vu and Kristina Launey
Although we attorneys who specialize in ADA Title III matters have been dealing with and writing about website accessibility issues for years, most people, including lawyers, know very little about this topic. That status quo is about to change. Last week, the Wall Street Journal published its second piece on the this topic in two months. The first article to address the subject appeared in October and included commentary from our Team leader, Minh Vu. This second piece appeared in the WSJ’s Risk & Compliance Journal. Greater coverage of this topic is a positive trend considering its importance and significance for both businesses and individuals with disabilities.
By Eden Anderson
Last month, the U.S. Department of Justice (DOJ) and U.S. Department of Education (DOE) issued a joint guidance Under Title II of ADA (the “Guidance”) explaining the obligation of public schools to provide “auxiliary aids and services” to ensure effective communication with students with hearing, vision, or speech disabilities. Although this Guidance applies to state and local government entities under Title II of the ADA, private schools have very similar obligations under Title III of the ADA. Thus, the Guidance is useful for all educators and administrators of both public and private schools. Below are some highlights from the Guidance.
- Effective communication must be provided to any member of the public who seeks out the school’s services, programs, or activities (e.g., for parent-teacher conferences, open houses, performances). In addition, the effective communication obligation is not limited to the classroom, but extends to all of a student’s school related communications, including school sponsored extracurricular activities.
- A case-by-case analysis must be made in determining an appropriate auxiliary aid or service. Schools must consider “the communication used by the student, the nature, length, and complexity of the communication, and the context in which the communication is taking place.”
- Any interpreter must be “qualified,” meaning able to interpret both receptively and expressively. Schools cannot rely on staff who are not “qualified” interpreters, nor on students to provide their own interpreter (unless the student makes such a request or in specified emergency situations).
- Schools must give “primary consideration” to the student’s requested auxiliary aid or service, and are “strongly advised” to make clear in discussions with the student/parent that the school will bear the complete cost. “Primary consideration” means that the school must honor the student’s request, unless the school can “prove that an alternative auxiliary aid provides communication as effective as that provided to students without disabilities.” This is one instance where the rules for public vs. private schools are different. Under the ADA Title III regulations that apply to private schools, the school is only required to consult with the individual requesting the service about his or her preferred method of communication but “the ultimate decision as to what measures to take rests with the public accommodation.”
- To the extent a school believes that the provision of a particular auxiliary aid or service would “fundamentally alter the nature of the service, program, or activity” or result in “undue financial and administrative burden,” it is the school’s burden to establish such defenses. The school must explain its reasoning in writing to the student and must still provide an alternative auxiliary aid or service that ensures effective communication to the maximum extent possible. The Guidance expressly cautions that “[c]ompliance . . . would, in most cases, not result in undue financial and administrative burdens.”
- Auxiliary aids and services must be provided in “accessible formats, in a timely manner (“as soon as possible”), and in such a way to protect the privacy and independence of the student.” Schools are “strongly advise[d]” to keep students/parents informed of the status of any request or delay in compliance.
Edited by Minh N. Vu and Kristina Launey
By Minh Vu and Kristina Launey
The Justice Department (DOJ) just officially announced in the federal government’s Unified Regulatory Agenda that it is again pushing back the target date for publishing its proposed website regulations for state/local governments and public accommodations to December 2014 and June 2015, respectively. The delay is no surprise because DOJ did not meet the August 2014 target date that it had previously announced for the state/local government website proposed rule. In the meantime, DOJ continues to press its agenda of requiring businesses to make their websites accessible in the absence of any such regulations or a legally binding technical standard for website accessibility.
By Minh N. Vu and Paul H. Kehoe
The Department of Justice (DOJ) yesterday announced a settlement [here and here] with Peapod, the country’s leading internet grocery retailer and delivery service, concerning its website and mobile application. The agreement exemplifies the DOJ’s continued focus on requiring public accommodations to ensure that their websites are accessible to individuals with disabilities, even while it is still working on proposed regulations to specifically address accessible websites. Under the agreement, Peapod will ensure that its website and mobile application will conform with the Website Content Accessibility Guidelines (WCAG) 2.0, Levels A and AA. Peapod’s commitment continues Peapod’s longstanding tradition of ensuring that its goods and services and accessible to individuals with disabilities. Since 1993, Peapod has offered a screen-readable version of its website for blind users as well as free telephonic grocery ordering services to individuals with disabilities who have difficulty using its website. Peapod will not pay any damages or civil penalties in connection with this agreement.
Seyfarth represented Peapod in this matter.
By Craig B. Simonsen and Kristina M. Launey
This blog, as the “ADA Title III” name indicates, is primarily about a business’s obligation to individuals with disabilities who may access its goods, services, benefits, and accommodations, rather than employees with disabilities. However, we also frequently receive questions from entities that are subject to Title III about their obligations to provide accessible technology to their employees, so we thought this news would be of interest to our readers.
The U.S. Department of Labor’s Office of Disability Employment Policy recently announced the launch of a Web portal, spearheaded by ODEP’s Partnership on Employment & Accessible Technology (PEAT). PEAT is an initiative to promote the employment, retention, and career advancement of people with disabilities through the development, adoption, and promotion of accessible technology. The portal is intended to provide everything “from educational articles to interactive tools.” The content “aims to help employers and the technology industry adopt accessible technology as part of everyday business practice so that all workers can benefit.”
Available on the portal Resources & Tools is the “Accessible Technology Action Steps: A Guide for Employers.” The Guide aims to provide a “roadmap to ensure that the technology in your workplace is accessible to all employees and job applicants.”
This issue is not just on the government’s radar. At least one plaintiff’s firm in California is forcing businesses to deal with the issue of website accessibility in the employment context, recently filing a lawsuit against multiple retailer defendants alleging that the plaintiff was discriminated against in violation of the California Fair Employment and Housing Act (FEHA) (state equivalent of Title I of the ADA) and California’s Unruh Act (state equivalent of Title III of the ADA) because the businesses’ online applications were inaccessible and the companies refused to allow him any other method (i.e., paper) to apply.
These developments serve to remind businesses to review policies, procedures, training materials, and assistive technologies they use to interface with customers or employees to ensure those with disabilities are afforded equal access to the goods and services the business provides and to the benefits of employment, with or without reasonable accommodation.
Edited by Minh N. Vu.
Review of Disabled Persons Act Applicability to Websites Withdrawn; California Agency Issues Guidance on CASp Benefits; and Novel New Serial Lawsuits Filed Against Car Dealerships
By Kristina Launey
As we’ve discussed previously, California is a hotbed for disability access suits – both based upon alleged physical accessibility violations of California law and the ADA and based upon alleged inaccessible websites. Three recent developments on this front merit mention:
First, the California Division of the State Architect recently posted useful information regarding its interpretation of why a business may want to hire a Certified Access Specialist to inspect and certify a property at: Why is it Beneficial to Hire a CASp? And Other Frequently Asked Questions. The page explains the law in California which authorizes private plaintiffs to receive statutory damages of up to $4,000 per occurrence of violation as well as the legal benefits and protections a CASp consultant’s evaluation can provide a business when faced with such a lawsuit.
Second, we had expected some guidance from the California Supreme Court regarding whether the Disabled Persons Act applies to businesses’ websites after the Ninth Circuit in Greater Los Angeles Agency on Deafness et al. v. Cable News Network, Inc. certified the issue to that Court. On October 10, the Ninth Circuit withdrew its request for review after GLAAD agreed to dismiss its action with prejudice in exchange for CNN’s promise not to seek attorneys’ fees and costs and CNN voluntarily dismissed its appeal in the Ninth Circuit. Despite the lack of judicial and regulatory guidance, as well as lawsuits, demand letters, and enforcement actions over alleged inaccessible websites continues.
Finally, in the category of what new serial lawsuit trend is hot in California right now, we’ve seen a wave of lawsuits filed against car dealerships by one firm in California alleging violations of law based upon the car dealerships’ failure to offer and refusal to install vehicle hand controls on vehicles for persons with disabilities to test drive the vehicles.
As always, we’ll continue to monitor disability access developments in California and nationwide to keep you up to date.
Edited by Minh Vu
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.