ADA Title III News & Insights

Businesses Nationwide Hit By Wave of Lawsuits Alleging Inaccessible Websites

Posted in Department of Justice, Lawsuits, Investigations & Settlements, Website

By Minh N. Vu and Kristina M. Launey

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.

California District Court Holds that Redbox Does Not Have to Offer Captioned Videos at its Rental Kiosks or on its Streaming Video Website

Posted in Lawsuits, Investigations & Settlements, Website

By Erin McPhail Wetty

Last month, a California district court reaffirmed that Title III of the Americans with Disabilities Act (“Title III”) does not require a public accommodation to offer accessible goods (i.e. videos with captioning) as part of its inventory.  In Jancik v. Redbox Automated Retail, LLC, No. SACV 13-1387-DOC, 2014 WL 1920751 (C.D. Cal. May 14, 2014), a deaf individual claimed that Redbox violated Title III by not making more closed-captioned videos available at its DVD rental kiosks, despite his requests.  The plaintiff also argued that Redbox Digital failed to closed-caption all of its online videos that were available for streaming, in violation of Title III.  The defendants filed a motion to dismiss both claims.

The Court held that Title III does not regulate the content or characteristic of goods that places of public accommodation provide—“the goods in a retailer’s industry”—such as the DVDs Redbox offered at its rental kiosks.  In so holding, the Court relied on regulations, which explicitly state that a public accommodation is not required to “alter its inventory to include accessible or special goods that are designed for, or facilitate use by, individuals with disabilities.”  The plaintiff argued that DVDs should not be considered special goods because of recent technological advances that make captioning DVDs easier.  In rejecting this argument, the Court reasoned that the ease of captioning does not affect whether or not captioned DVDs should be viewed as accessible goods.  Rather, the Court concluded that the plaintiff’s request was essentially a request for Redbox to change its DVD inventory at its kiosks, which Title III does not require.  This ruling is not a positive development for advocates of the deaf and hard of hearing who are pushing for more captioning of video content.  It is also significant in driving home the point that Title III regulates the entity’s provision of a good, not the content or creation of that good.

The Court also found that Redbox Digital did not have to caption its library of web-based videos for deaf or hard-of-hearing consumers because a website is not a place of public accommodation under Title III.  This outcome is not surprising because courts in the Ninth Circuit have taken the position that only websites that have a nexus to a brick and mortar public accommodations location are covered by Title III of the ADA.  The outcome on this point would likely have been different had the case been brought in the First Circuit—where the Massachusetts District Court held that Netflix’s online video-streaming website was covered by Title III, even though Netflix had no brick and mortar place of business, as we previously reported.

This case is significant as one of the few, yet increasing, cases addressing the applicability of Title III to emerging technologies, such as the internet and captioning, that were not contemplated in 1992 when the ADA was enacted.  Even more so, because in the absence of regulations setting requirements for web accessibility, some may point to this case as evidence websites are not subject to Title III, while others point to the Massachusetts Netflix case to argue the contrary.  In view of the recent wave of lawsuits and enforcement actions surrounding accessibility of business’ websites, this area of law is evolving very quickly.

Edited by Minh Vu and Kristina Launey

Ebay Announces Web Accessibility Partnership with the National Federation of the Blind

Posted in Department of Justice, Website

By Kristina Launey

Ebay has announced that it has teamed with The National Federation of the Blind in a “Web 2 Sustainable Accessibility Partnership Agreement”, aimed to “enhance the accessibility of eBay’s website and mobile applications” Ebay’s announcement states that, through the partnership, “blind buyers and sellers on eBay who use technologies such as text-to-speech screen readers and Braille displays will have even greater access to eBay’s website and its applications for smartphones and tablets.”

As we have previously reported, though the expected DOJ regulations setting requirements and technical standards for public accommodations websites have been pushed back repeatedly, most recently to March 2015, many businesses are taking a proactive approach to this issue.

Defendants May Have Another Chance at Recovering Attorneys’ Fees for Frivolous ADA Claims

Posted in Lawsuits, Investigations & Settlements

By Jon D. Meer

When defendants win in a Title III ADA accessibility case, they are entitled to seek their reasonable attorneys’ fees.  To recover, defendants have to show that the claims were “frivolous, unreasonable or without foundation.”  While most claims that are dismissed on summary judgment would seem to meet this standard, district courts often deny fees to prevailing defendants.

The Ninth Circuit has now endorsed a second chance to seek fees against plaintiffs who pursue appeals of their claims.  In the very recent decision in Martinez v. Columbia Sportswear USA Corp and Eddie Bauer LLC, Case No. 12-16331 (9th Cir. June 9, 2014), the Ninth Circuit awarded the defendants all of their fees on appeal, because “it was clear at the time that the district court entered final judgment that the claims had no basis in law or fact.”  Thus, even though the district court had denied the defendants’ request for fees at the time of final judgment, the Ninth Circuit held that a case that did not seem frivolous at the time of summary judgment may later be found frivolous if the plaintiff pursues an appeal.

Even better, the Ninth Circuit—which is often perceived as too friendly to the pursuit of ADA accessibility lawsuits—ordered that both the plaintiff and his counsel were both responsible for paying the defendants’ fees.

So, if fees are denied by the district court, defendants may get a second chance to seek fees on appeal.  At the appellate level, a case may seem more frivolous and a fee award from an appellate court is likely to be very difficult to overturn.  To take advantage of this strategy, defendants should consider the following:

  • Inform plaintiff’s counsel that defendants will seek fees on appeal, even if fees were denied by the district court
  • Consider waiving fees on appeal in exchange for plaintiff’s dismissal of the appeal—given that fees on appeal are a realistic possibility
  • Seek fees on appeal against both the plaintiff and the plaintiff’s counsel
  • Seek fees based on a reasonable rate with precise documentation of the hours worked and the billing rates of the lawyers on the appeal—don’t give the court an excuse to cut the amount of fees requested

To be sure, a realistic threat of paying attorneys’ fees can help to deter entrepreneurial lawsuits.  While a threat of fees might have little impact at the inception of litigation, defendants now have more support for a subsequent chance at fees on appeal.  Plaintiffs beware.

Still Waiting For Web Regs: Justice Department Pushes Back Issuance Date For Accessible Website Proposed Regulations (Again)

Posted in Department of Justice, Website

By Minh N. Vu

The federal government recently released an Unified Agenda announcing that the Department of Justice (DOJ) has delayed to March 2015 the issuance of proposed regulations setting requirements and technical standards for public accommodations websites. 

According to the last Unified Agenda, these proposed regulations were to be issued this past April 2014.  This is not a positive development for businesses or individuals with disabilities as there is an urgent need for clarity in this area.  In the meantime, as we have reported, the lack of a legally binding website accessibility standard has not deterred DOJ from demanding in enforcement actions that public accommodations’ websites comply with a privately developed set of guidelines known as the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA.   DOJ also pushed back the date for issuing proposed regulations for state and local government websites to August 2014.  

Edited by Kristina M. Launey

LSAC Agrees To Pay Over $9 Million To Settle Lawsuit Over Testing Accommodations And Commits To Substantial Injunctive Relief

Posted in Uncategorized

By: Eden Anderson

In 2012, California’s Department of Fair Employment and Housing (“DFEH”) filed a lawsuit against the Law School Admissions Council (“LSAC”) alleging that LSAC was discriminating against, and routinely failing to grant appropriate accommodations for, test takers with disabilities on the Law School Admissions Test (“LSAT”).  DFEH alleged that LSAC was violating the ADA and the state’s Unruh Civil Rights Act in several ways, including by considering “mitigating measures” in determining a test taker’s disability status, by routinely denying testing accommodations, and by “flagging” test scores achieved when extended time was provided as a testing accommodation.  Three individuals intervened in the action, as did the Department of Justice (“DOJ”).

After two years of costly litigation, on May 20, 2014, the parties announced an agreement to resolve the matter and filed a proposed Consent Decree with the court.  The Consent Decree includes a permanent injunction specifying a number of affirmative steps that LSAC must take to ensure the LSAT is accessible to persons with disabilities.  In addition, LSAC may no longer “flag” test scores achieved when extended time is provided as an accommodation.

Pursuant to the settlement, LSAC must pay $55,000 in civil penalties to the DOJ, $7,675,000 in damages, and $1,000,000 in attorneys’ fees to the DFEH and the Legal Aid Society, which represented the individual plaintiffs.  The damages award included a large settlement fund to be distributed to persons affected by the alleged discrimination during the statutory period, and allocations of damages to the DFEH, DOJ, and to the three individual plaintiffs.

While it may be tempting to relegate this enforcement action to admissions testing, the case serves to remind businesses of their obligation to provide accommodations to individuals with disabilities so as to ensure equal access to goods, services, and facilities.  Where necessary to ensure equal access, a public accommodation must make reasonable modifications to its policies, practices, and procedures, and must also provide auxiliary aids and services to individuals with disabilities, subject to only to fairly limited defenses.

For perspective on the effect of this case and settlement on complex discrimination litigation, see our sister blog here.

Edited by Minh Vu and Kristina Launey

Justice Department Targets Websites, Mobile Apps, and POS Devices

Posted in Department of Justice, Lawsuits, Investigations & Settlements, Website

By Minh Vu

Only four months into 2014, the Department of Justice (DOJ) has already made clear that it is pursuing an aggressive enforcement agenda when it comes to the obligation of public accommodations to ensure effective communication with individuals with disabilities.  On March 3, the DOJ entered into a consent decree with H&R Block that requires the company’s website, tax preparation tool, and mobile applications to be accessible.  On April 10, the DOJ filed a Statement of Interest in a pending case to support the plaintiff’s position that retailers must provide a means for blind customers to independently input their personal identification numbers (PIN) at point of sale devices (POS) when making purchases using a debit card.  The clear message is that DOJ will get involved in private litigation when it does not like the positions or arguments made by defendants.   As these and other businesses know, a DOJ intervention can be a game changer in a pending case.  The DOJ brings its expertise and agency authority to the table which some judges may find persuasive even if they are not required to defer to the agency’s interpretation of its own regulations.

Website and Mobile Application Accessibility.  The H&R Block lawsuit was originally filed by the National Federation of the Blind of Massachusetts and two of its members . The plaintiffs alleged that H&R Block’s website is not accessible to the blind.  In December 2013, the DOJ filed a motion to intervene in the case with a broader complaint alleging that H&R Block had violated the ADA by having a website that was inaccessible to people with various disabilities, not just the blind..  The lawsuit was a bold move considering that DOJ had not issued (and still has not issued) proposed regulations defining the standard for what constitutes an “accessible” website.

In March, DOJ and H&R Block entered into a consent decree in which the latter agreed to make its website, mobile applications, and tax preparation tool comply with the Website Content Accessibility Guidelines (WCAG) 2.0 AA.  The WCAG 2.0 is a privately developed set of guidelines for website accessibility which can also be adapted for mobile applications.  H&R Block also agreed to pay damages to the named plaintiffs and the maximum civil penalty.  The decree contains stringent monitoring and testing obligations.

Point of Sale Device Accessibility.  This month, the DOJ filed a Statement of Interest in support of a private plaintiff who sued a retailer over an inaccessible POS device.  The plaintiff could not make a purchase using his debit card because he could not input his PIN into the POS device’s smooth touchscreen keypad.  The DOJ intervened to counter two arguments the retailer made:  (1) POS devices are not required to be accessible because the ADA Standards for Accessible Design do not specify standards for them; and (2) the plaintiff was not denied access because he could make his purchase using the alternative methods of cash, credit cards, and debit card payment that is processed as a credit card charge and requires no PIN.

In response to the first argument, the DOJ emphatically stated that the lack of specific technical standards for POS devices does not mean that they are not required to be accessible.  In the absence of such specific standards, DOJ argued, the more general obligation for public accommodations to provide auxiliary aids and services to ensure effective communication would still apply and it would be up to the public accommodation to come up with a way to meet the obligation.  The DOJ noted that while providing POS devices with tactile keypads would be one approach, there could be other technologies that could provide accessibility as well.

In response to the second argument that the blind plaintiff had other payment options besides a debit from his account which would require the input of a PIN,  the DOJ stated that the ADA prohibits differential treatment — not just complete exclusion.  The fact that blind individuals do not have the full range of payment options available to sighted individuals, in DOJ’s view, constitutes such differential treatment.

(After the DOJ’s filing, the district court dismissed the case without prejudice because the plaintiff had not alleged enough facts to establish that he had standing to bring the lawsuit, but since court granted the plaintiff permission to amend his complaint, the lawsuit is not likely to go away).

*     *     *

What do these recent DOJ actions mean for businesses that have websites, POS devices, or other self-service equipment? Continue Reading

Don’t Miss Our Upcoming Webinar Next Week – Service Animals and The ADA: What You Need to Know

Posted in Service Animals

If your business opens its doors to the public, it has an obligation under the Americans with Disabilities Act (ADA) and other laws to make its goods and services accessible to individuals with disabilities.  This includes allowing service animals access.  Places of public accommodation are experiencing increasing difficulty navigating the sometimes complex interactions with customers surrounding service animals, and the legislatures of at least two very large states are taking notice.

Please join Seyfarth Shaw’s ADA Title III team members Andrew McNaught and Kristen Verrastro on Tuesday April 29, 2014 at 12:00 p.m. Central, for an insightful discussion on the rules and issues surrounding service animal access, including:

  • What is a service animal?
  • What questions are you permitted to ask to ascertain if an animal is a service animal?
  • What are your obligations with regard to service animals’ access to your facility?
  • What restrictions can you place on service animals?
  • When may a service animal be excluded from the premises?
  • How should you respond to complaints about service animals from customers?

Register here. 

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