ADA Title III News & Insights

Web Reg “Do Over?”: DOJ Withdraws Title II Notice of Proposed Rulemaking, Issues Supplemental Advanced Notice Seeking Further Comments

Posted in Department of Justice

Time concept: Hourglass on computer keyboard backgroundSeyfarth Synopsis: Public entities and private businesses have been waiting for years – since 2010 – for the Department of Justice to issue regulations setting a standard for website accessibility.  The DOJ has announced that it is stepping backward rather than moving forward in that process, withdrawing its Notice of Proposed Rulemaking on Title II regulations applicable to public entities, and issuing a Supplemental Notice of Proposed Rulemaking seeking further comments and input.

We’ve been anxiously awaiting the Department of Justice’s (“DOJ”) issuance of Title II public entity website accessibility regulations – as a precursor to Title III regulations that would apply to businesses.  Apparently the wait will continue.  On Friday the DOJ announced that on April 28, 2016, it withdrew its Notice of Proposed Rulemaking (“NPRM”) titled Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities (RIN 1190-AA65).  DOJ had submitted the NPRM to the Office of Management and Budget (“OMB”) for review pursuant to Executive Order 12866 on July 9, 2014.

DOJ also issued a Supplemental Advance Notice of Proposed Rulemaking (“SANPRM”) titled Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities.  Its stated intent with the SANPRM is to solicit additional public comment on various issues to help DOJ “shape and further its rulemaking efforts,” citing evolutions (availability, less expensive, more widely used) in the internet, accessibility tools and assistive technologies in the six years since DOJ issued its 2010 Advanced Notice of Proposed Rulemaking (“ANPRM”) as the reason for this redux.  DOJ stated its expectation that public comments on the SANPRM “will be more detailed and focused than those received in response to its original 2010 ANPRM.”  As one commentator in the web accessibility community characterized the action: “DOJ: Because the web’s changed in the SIX YEARS we’ve been delaying regulations, we’re going to TOTALLY START OVER!”

The DOJ offered examples of what it seeks in the SANPRM:

  • More specific information relating to the potential application of technical accessibility requirements to the web sites of public entities under title II of ADA.
  • Information on the appropriateness of setting alternative requirements for small public entities.
  • Precise information on the costs and benefits of web accessibility that will aid in its preparation of a regulatory impact analysis.
  • More information about specific benefits, including benefits to persons with particular types of disabilities, and input on how to measure the benefits of web accessibility.
  • More information about the current level of accessibility of public entities’ web sites, including the experiences of people with disabilities accessing public entities’ web sites.
  • Specific data on the costs of web accessibility and suggestions about how to measure those costs.

In addition to the SANPRM, the DOJ stated its intent to conduct research and studies to better understand the benefits and costs of a Web accessibility regulation – as if, after all this work, it may decide a regulation governing web accessibility may cost more than the benefit it would bring?

DOJ concludes its press release on this shocking development by noting that “web accessibility continues to remain a critical component of public entities’ obligation to provide equal access to their programs, services, and activities under the ADA.”

This will no doubt have an effect on the development of Title III regulations as well.

Netflix Agrees To Add Audio Description to Many of Its Shows and DVD Rentals

Posted in Lawsuits, Investigations & Settlements, Title III Access, Website

Seyfarth Synopsis:  In what has been deemed the first of its kind, Netflix has entered into an agreement with the American Council of the Blind, the Massachusetts-based Bay State Council of the Blind, and a blind individual, to add “audio descriptions” to many of the programs offered on its video streaming and DVD rental service.

“Audio description”  is narration added to the soundtrack of a video that describes important visual details that cannot be understood by viewers who are blind from the main soundtrack alone.  Under the agreement, by December 31, 2016, Netflix will provide audio description for many popular titles in its streaming and disc rental libraries, as well as “Netflix Original” shows such as Orange is the New Black and House of Cards.  If Netflix does not control the audio description rights to a title, it will “make commercially reasonable efforts to secure and offer audio description.”  Adding audio descriptions to soundtracks describing what is happening visually on the screen can be more challenging that adding closed captioning for the deaf.  Closed captioning translates the words and sounds on soundtrack into captions and requires little to no interpretation.  Audio descriptions, on the other hand, require a description of what is going on visually and can be a much more subjective exercise.

Netflix will also make its website and mobile application accessible to individuals who are blind and use screen-reading software to access its site and app.  Like most settlement agreements and consent decrees concerning website accessibility, this agreement  adopts the Web Content Accessibility Guidelines 2.0 Level AA (WCAG 2.0 AA) as the accessibility standard.  However, the agreement does not use WCAG 2.0 AA as the accessibility standard for mobile applications.  Instead, the agreement adopts the British Broadcasting Corporation’s Mobile Accessibility Standards and Guidelines version 1.0 (“BBC Standard”) as the accessible standard for the mobile application.  The use of the BBC Standard is unusual and departs from the Department of Justice’s practice of using the WCAG 2.0 AA as the accessibility standard for mobile applications.

Responding to the concerns of disability rights advocates is not new for Netflix.  As we reported previously, back in 2012 Netflix entered into a consent decree with the National Association of the Deaf which brought suit under Title III of the ADA because Netflix allegedly did not providing adequate closed captioning on its video streaming service.  As a result of that  decree, 100% of Netflix’s US-based On-demand Streaming Content is now captioned or subtitled.  It appears that when approached by disability rights advocates this time around, Netflix decided to work with them rather than litigate. The agreement is part of a continuing trend in which businesses are voluntarily taking action to make their websites and mobile applications more accessible.

Edited by Kristina Launey.

New York City Enacts Accessibility Standards for Government Websites

Posted in Department of Justice, Legislative/Regulatory Actions, Title III Access

Seyfarth Synopsis: NYC recently passed a law requiring that its government agency websites meet accessibility standards.  Other state and local governments may follow NYC’s lead and enact accessibility standards for government agencies, contractors and even public accommodations in the absence of regulations from DOJ.

On March 14, New York City became the first major municipality in the United States to adopt legislation mandating accessibility standards for all of its government agency websites.  Serving a population of over 8 million, the New York City government includes more than 120 agencies staffed by approximately 325,000 employees.  This legislation will have an impact on City agencies, and access for persons with disabilities to those institutions.  It may also have an impact on future website regulations impacting businesses across the country.

Recent NYC Legislation

The website legislation (Intro. 683-A) was among three disability access bills that Mayor Bill De Blasio signed into law on the same day.  In addition to mandating website protocols, the legislation requires that each City agency designate a “disability service facilitator,” and publicize, among other things, the availability of wheelchair access, communication access real-time translation, sign language interpretation, assistive listening systems (e.g. loop technology), and any other accommodations to be made available for all public events.  This sweeping legislative mandate also expressly requires that City government websites display New York State’s controversial “Accessible Icon” (rather than the International Symbol of Access), to designate venues for government meetings or other events that are accessible to wheelchair users.

NYC Must Adopt an Accessible Website Protocol within 6 Months 

The new City law underscores that the Web Content Accessibility Guidelines 2.0 Level AA (“WCAG 2.0 AA”) is increasingly becoming the de facto standard for website accessibility, despite the continued lack of any regulations from the U.S. Department of Justice (“DOJ”) setting a legally-required standard for state and local governments under Title II of the ADA, or for public accommodations (i.e. private businesses) under Title III.

Under the new law, the City must establish a website protocol within 6 months that incorporates: (1) Section 508 of the Rehabilitation Act (“Section 508”); (2) WCAG 2.0 AA; or (3) any “successor” standards.  The Section 508 standard applies to the federal government websites and  consists of a list of 16 requirements that are less rigorous than WCAG 2.0 AA.  But last year the Access Board proposed a rule that would, among other things, adopt WCAG 2.0 AA as the new website standard under Section 508.  Thus, if the City incorporates Section 508 in its website protocol, its agency websites may be subject to WCAG 2.0 Level AA once the final Section 508 regulations are issued.

There are several exceptions to the new accessibility mandate.  The City may adopt protocols that differ from Section 508, WCAG 2.0 AA, or any successor standard, but if it does, it must first consult with experts in website design, conduct a public hearing, and ensure that any differences will still provide effective communication for persons with disabilities.  In addition, the law does not require the “fundamental alteration” of any service, program, or activity, and shall not impose an “undue financial or administrative burden.”

Potential Impact on Businesses

The adoption of accessibility standards for government websites in the most populous city in the United States is significant.  Other municipalities may follow New York City’s lead and pass their own legislation or regulations for accessible features in government websites.  This may result in differing local standards across jurisdictions, which would undermine DOJ’s efforts to implement a comprehensive, national set of rules for website accessibility under Title II of the ADA.

State and local legislators may decide to extend the WCAG 2.0 AA’s reach to the websites of private businesses doing business with state or local governments, or the public, after they are done dealing with their agency websites.  This could follow the model of Ontario, Canada, where the provincial government enacted regulations requiring businesses with 50 or more employees in Ontario to ensure that their websites meet WCAG 2.0 Level A guidelines (and to meet WCAG 2.0 Level AA by 2021).  Based on the progressive legislative and regulatory agenda of the current mayoral administration, we would not be surprised if New York City passed a future law requiring that government contractors or businesses with a presence in the City provide accessible websites.

The bottom line is that if DOJ continues to delay in issuing proposed rules for website accessibility, states and local governments may step into that void and enact rules of their own for government entities, contractors, and even public accommodations.  This could subject businesses to potentially inconsistent rules across jurisdictions.  It is yet another reason why DOJ guidance on this topic is needed now more than ever.

Edited by Minh Vu and Kristina Launey.

DOJ Consent Decree Is A Reminder That Service Providers Are Public Accommodations

Posted in Department of Justice

By Kevin Fritz

Gavel on sounding blockWhen people think of the term “public accommodation,” images of restaurants, storefronts, and hotels come to mind.  The Department of Justice’s (DOJ) recent Consent Decree with a moving company provides an important reminder that service providers can also be considered a “place of public accommodation” covered by Title III of the ADA.  Title III of the ADA defines “public accommodation as twelve categories of places,” including “service establishments.”  In this case, the DOJ considered a moving company such an establishment, even though moving services are not provided at the company’s place of business.

The DOJ began investigating Kemper Moving d/b/a Two Men and a Truck after a woman filed a complaint alleging that Kemper Moving refused to complete her scheduled move upon discovering that she had Hepatitis-C.  The Kemper Moving manager advised the on-site movers to deliver the plaintiff’s pre-loaded items to her mother’s home and advised them to return to the office without completing the rest of the scheduled move.

The DOJ found that Kemper Moving had in fact discriminated against the complainant by cancelling the move because of the customer’s Hepatitis-C.  To resolve the matter, the moving company agreed to enter into a two-year consent decree filed in the U.S. District Court for the Northern District of Alabama under which it will adopt non-discrimination policies and implement a training programs consistent with Title III of the ADA.  The moving company must also pay $10,000 in compensation to the complainant and a $3,500 civil penalty to the federal government. The decree also requires the company to hire or designate an ADA compliance official responsible for reviewing all disability-related decisions.

What are the takeaways from this case?  First, a decision to deny anyone service because of a disability should be scrutinized carefully.  Second, such decisions must be based on real danger, not on unfounded fears or stereotypes.   Third, service providers can be covered by Title III of the ADA, even if they provide services at locations that they do not own, lease, or control.

A First: California Court Rules Retailer’s Inaccessible Website Violates ADA

Posted in Auxiliary Aids and Services, Lawsuits, Investigations & Settlements, Title III Access, Website

By Kristina Launey

disabled buttonLast week, a California State Court became the first in the nation to rule that a retailer violated the Americans with Disabilities Act due to a website that is not accessible to individuals with vision-related disabilities.  As we have previously reported, courts have ruled on whether the ADA applies to websites, but have always stopped short – because the cases had usually settled at early stages – of reaching the dispositive factual issue of whether a website actually violated the ADA.

This ruling came on a motion for summary judgment filed by plaintiff Edward Davis’s attorneys, Scott Ferrell of The Newport Trial Group, Victoria Knowles, and Roger Borg.  Judge Bryan Foster of the San Bernardino Superior Court ruled that the defendant luggage retailer violated the ADA and corollary California law – the Unruh Act – because plaintiff “presented sufficient evidence that he was denied full and equal enjoyment of the goods, services, privileges, and accommodations offered by defendant [via its website] because of his disability.”  The judge also found sufficient evidence that Title III of the ADA applied to the website because there was a sufficient nexus to defendant’s physical retail store and the website.

The judge ordered the retailer to pay $4,000 in statutory damages under the Unruh Act, finding it undisputed that plaintiff’s access to the website was prevented at the time it was designed.  The judge ordered injunctive relief in the form of defendant taking steps necessary to make the subject website “readily accessible to and useable by individuals with visual impairments or to terminate the website”; but provided no detail on whether a certain standard would need to be met to have complied with this injunctive relief order. The plaintiff will also be entitled to attorneys’ fees as the prevailing party, which could be substantial given the discovery and briefing involved in the motion for summary judgment.

This order ironically came during the same week virtually all scientists, practitioners (including me), educators, government officials, companies, advocates, and interested individuals with disabilities were attending digital accessibility’s major annual conference – California State University, Northridge’s 31st Annual International Technology and Persons with Disabilities Conference- just a few hundred miles away from the court.

Website Accessibility Lawsuits By the Numbers

Posted in Lawsuits, Investigations & Settlements, Title III Access, Website

Website accessibility is an evolving and complicated topic, about which we’ve written many times.  Thanks to delayed regulations and the Department of Justice’s changing positions on the issue, businesses have been caught off guard and plaintiffs’ attorneys are capitalizing on the uncertainty.  We have seen a surge of demand letters and lawsuits against public accommodations alleging inaccessible websites.  Like we do with Title III lawsuits generally, we are tracking web accessibility lawsuits to keep you up to date on the trends.

Since January 1, 2015, 61 lawsuits alleging that a defendant’s inaccessible website violates Title III of the ADA have been filed or removed to federal court. These cases have been filed in five states – Pennsylvania, California, New York, Massachusetts, and Washington – with a small handful of plaintiffs filing virtually all of the lawsuits. The most litigious plaintiffs include Dominick Martin (9 suits, CA), Christian Diaz (8 suits, NY, mostly class actions), Robert Jahoda (6 suits, PA), Edward Davis (5 suits, CA), Jose Del-Orden (3 suits, NY, mostly class actions) and Cheryl Thurston (3 suits, CA). In Pennsylvania, Michelle Sipe and Jill Gross, often filing jointly with Access Now, Inc., Scott Lacey, Jessica Hodges, and Debra Rozear, currently have a combined total of 19 cases.

We are often asked which industry is most targeted by web accessibility suits.  Retailers are the clear winner, as can be seen in the chart below.Chart graphic

 

Also of note are the lawsuits about which we’ve previously written filed against universities and online-only businesses.

Only three of these businesses sued have actively fought the lawsuits thus far. Both the universities and a bank filed motions to dismiss the lawsuits, but the judges rejected those motions and allowed the cases to proceed to discovery.

Most of these lawsuits have settled, though new cases continue to be filed.

Finally, it is interesting to note that one plaintiff filed six cases in California against various retailers alleging that he was unable to apply for a job through the defendants’ allegedly inaccessible online job application processes and that the defendants offered no acceptable alternative accommodations for his vision disability.  This employment-related website accessibility issue falls outside this blog’s ADA Title III focus (and thus is not included in our data), but is still an important cautionary tale for all businesses who use online application processes. In addition, while we do not include Title II lawsuits in our data, we note that one such Title II web accessibility suit was recently filed against the Ohio Secretary of State.

Our methodology: As with our national lawsuit data, the effort to come up with these numbers is a labor-intensive, manual process. Because Pacer does not keep track of the type of ADA Title III lawsuits filed, there is no way to capture this information short of reading every complaint filed. Our analysis revealed that there have been at least 61 Title III website cases filed in or removed to federal court since January 2015. In other words, there is always the possibility of some human error and we hope you’ll forgive us if the numbers are slightly off.

Regulatory Update: Movie Captioning and Audio Description Regulations in the Final Stages of Review

Posted in Department of Justice, Legislative/Regulatory Actions

As we reported in July of 2014, the DOJ is working on final regulations that would require movie theatres with digital screens to show movies with closed captioning and audio description.

At a cost to the industry that DOJ estimated will be between $138.1 and $275.7 million, the proposed regulations would require that all movie theatres with digital screens (other than drive-ins) provide a minimum number of devices for visually and hearing impaired moviegoers based on seating capacity, acquire movies with these features where available, ensure that there is at least one person on-site to locate and operate this equipment, and inform customers of the availability of these features in movie times shown in wide variety of advertising materials.

We just learned that a draft Final Rule has gone to the Office of Management and Budget (OMB) for review, which is the final stage of the rulemaking process.  The projected Final Rule publication date is May of this year.  That said, these projected dates have often been moved before (especially when it comes to website regulations), so we are not holding our breath.

Stay tuned to the blog for more updates.

Edited by Kristina Launey and Minh Vu.

Miami Local 10 News Reports On ADA Title III Drive-By Lawsuits

Posted in Lawsuits, Investigations & Settlements, Title III Access

Florida is one of the top states for ADA Title III filings.  As we previously reported, in 2015, California, Florida, New York, Texas, and Arizona had 3,847 ADA Title III lawsuits.  This accounts for 80% of the lawsuits filed nationwide.  Businesses are complaining, and the news media is paying attention.  Miami Local 10 News, an ABC affiliate, reported on the surge of ADA Title III lawsuits nationwide and three local small businesses that were sued by a serial plaintiff who filed more than a hundred and thirty lawsuits in 2015.  Seyfarth’s ADA Title III Team Leader, Minh Vu, provided legal commentary for the story in an interview with reporter Christina Vazquez.

Lack Of Website Accessibility Regulations Is No Bar To Suit, Another Judge Affirms

Posted in Department of Justice, Lawsuits, Investigations & Settlements, Legislative/Regulatory Actions, Title III Access, Website

There is more bad news for businesses that thought that they could wait for the Department of Justice (DOJ) to issue specific regulations before making their websites accessible to individuals with disabilities.  Federal Magistrate Judge Robertson in the District of Massachusetts recently denied motions by Harvard and MIT to dismiss or stay website accessibility class action lawsuits, and recommended that the lawsuits move forward to discovery.  The judge found that the existing law and regulations provide a basis for the deaf advocates’ claim that the universities violated Title III of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act by failing to provide closed captioning for thousands of videos on their websites. The judge rejected the universities’ arguments that the court dismiss or stay the case while DOJ works on its proposed rules for website accessibility, finding that the court did not need the agency’s expertise to adjudicate the cases.  The judge did, however, give weight to the DOJ’s interpretation of the ADA expressed in its Statement of Interest filed in the Harvard and MIT lawsuits.

The Magistrate Judge’s recommendation will not be a final order of the court until U.S. District Court Judge Mastroianni adopts it.  Even after adoption, the decision will not be a finding that the universities have violated the law or that they must caption all videos on their websites.  The ruling would simply allow the cases to move forward to discovery.  As Judge Robertson noted, the schools will have an opportunity to assert various defenses later in the case.  For example, Harvard and MIT might show that they provide access to their videos in some alternative, equivalent matter.  They might also seek to establish that providing closed captioning for some or all videos on their websites would constitute an undue burden or fundamentally alter the nature of the goods and services that they offer.

There are many takeaways from Judge Robertson’s 45-page opinion, but we see two very basic, practical points:

  • Judges, at least thus far, have not been receptive to the argument that there is no obligation to make websites accessible until DOJ issues regulations on the subject. In 2015, a federal judge in Pittsburgh also denied a defendant bank’s motion to dismiss or for a stay of a website accessibility case, without any discussion or explanation.
  • Courts seem reluctant to dismiss website accessibility lawsuits at the beginning of the case. This means that the cases will likely continue to discovery and cause defendants to incur potentially substantial costs of defense, even if the defendants ultimately prevails on the merits.

The Harvard and MIT decisions will undoubtedly fuel the continuing explosion of website accessibility cases.  We are working to determine how many such suits have been filed and will report it to you as soon as we have it.

Edited by Kristina M. Launey.

Seyfarth Insights Featured In Media Coverage Of Access Issues

Posted in Lawsuits, Investigations & Settlements, Service Animals, Title III Access

Over the past few weeks, our Title III Specialty Team contributed to the following pieces:

The site LXBN.com interviewed Seyfarth’s ADA Title III Team leader Minh Vu for an article about a pending lawsuit brought by an advocacy organization for the deaf against seven Hollywood movie studios for failing to provide closed captioning for lyrics of songs in motion pictures. The suit highlights the uncertain legal landscape on the digital frontier.

Lodging industry publication Hotel News Now featured Minh Vu’s practical advice on some thorny service animal questions that hotels often face. Service animal issues are not new, but businesses continue to grapple with them every day.

Last, but not least, a Cato Institute blog post recently referenced our post “Justice Department Delays Web Accessibility Regulations For At Least Three More Years, Leaving Businesses in Turmoil.”

We appreciate being your resource for ADA Title III disability access developments, and will continue to keep you updated.