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.
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.
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.
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.
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
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.
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