ADA Title III News & Insights

Is a Kangaroo a Service Animal? It Depends on Where you Are and What the Animal Does

Posted in 2010 ADA Standards, Service Animals

(Photo) KangarooBy Kevin Fritz

We recently came across a news story that inspired us to draft this post: A Wisconsin woman and a kangaroo enter a restaurant. (If that isn’t a great joke intro, we don’t know what is.) Another customer calls the police to report the animal, but the woman claims that her kangaroo is a service animal and produces a note from her doctor validating her assertion. The police ask her to leave, and she and baby Joey exit in anger. Even though in this scenario no action was taken, the issue remains far from moot. Because what qualifies as a service animal under the law – and how businesses can be best prepared in situations such as these – continues to be confusing and, thus, a popular area for discussion.

In 2010, the US Department of Justice published revised final regulations implementing Title III of the ADA (which applies to public accommodations and commercial facilities). Under this federal law, service animals are defined as dogs that are individually trained to do work or perform tasks for people with disabilities. Examples of such work or tasks include guiding people who are blind, alerting people who are deaf, pulling a wheelchair, alerting and protecting a person who is having a seizure, reminding a person with mental illness to take prescribed medications, calming a person with PTSD during an anxiety attack, or performing other duties. Service animals are working animals, not pets. The work or tasks a dog has been trained to provide must be directly related to the person’s disability. Dogs whose sole function is to provide comfort or emotional support do not qualify as service animals under the ADA.

In addition to the provisions about service dogs, the Department’s revised ADA regulations have a separate provision about miniature horses. Entities covered by the ADA must modify their policies to permit miniature horses where reasonable. Specifically, a public entity or private business must allow a person with a disability to bring a miniature horse on the premises as long as it has been individually trained to do work or perform tasks for the benefit of the individual with a disability, and as long as the facility can accommodate the miniature horse’s type, size, and weight.   As a practical matter, miniature horses that perform work or tasks for a person with a disability get the same treatment as canine service animals.

That said, some state and local laws define “service animal” more broadly than the ADA. In Wisconsin, for example, “service animal” means a “guide dog, signal dog, or other animal that is individually trained or is being trained to do work or perform tasks for the benefit of a person with a disability, including the work or task of guiding a person with impaired vision, alerting a person with impaired hearing to intruders or sound, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items.” Wisc. Stat. §106.52(1)(fm).

So, while the only dogs and miniature horses must be accommodated as service animals under federal law, other types of animals may be service animals under state law if they are trained to perform work or tasks for an individual with a disability.

Back to our real life scenario: Is the baby Joey a service animal? According to the ADA, definitely not. But in Wisconsin, the answer is less obvious. If it could be proven that the kangaroo performs work or tasks for the woman, and that she has a disability, she may be able to successfully bring a claim for disability discrimination against the restaurant under state law.

To protect against lawsuits, businesses will do well to recognize the basic federal floor under the ADA, and review applicable state laws and local ordinances to make sure they don’t provide greater protections. In addition, state laws often protect service animals in training that are with their licensed trainers – who might not be persons with disabilities, serving as an important reminder that you cannot judge someone based on appearance.

To that end, when a person with a service animal enters a public facility or place of public accommodation, the person cannot be asked about the nature or extent of his disability. The ADA allows only two questions to be asked: Is the animal required because of a disability? AND What work or task has the animal been trained to perform?

These questions should not be asked, however, if the animal’s service tasks are obvious.

These questions elicit the key characteristics of a service animal: (1) It has been trained to assist a person with a disability; and (2) it performs work or tasks for a person with a disability.   If the animal performs no work or tasks, it is not a service animal.

Kevin Fritz is an Associate in the Chicago office of Seyfarth Shaw LLP

Edited by Minh Vu and Kristina Launey

Another DOJ Action over Allegedly Inaccessible Websites and Other Technologies

Posted in Department of Justice, Website

Domain names and internet conceptBy Minh N. Vu

For today’s Global Accessibility Awareness Day, we have yet another Department Justice enforcement action to report relating to the allegedly inaccessible websites and other technologies.  This time, DOJ is trying to intervene in an existing lawsuit, Dudley v. Miami University, filed by a former Miami University student who is blind.  Although the lawsuit is brought under Title II of the ADA which applies to state and local government entities and not public accommodations, the obligations under the Title II and III are very similar. Thus, the DOJ’s position in this lawsuit provides useful insight into how it would treat private universities and other public accommodations covered by Title III of the ADA.

On May 12, 2015, the DOJ sought permission from the court to intervene in the lawsuit as an additional plaintiff.  If the request is granted, the lawsuit’s scope will widen.  As an individual plaintiff, Ms. Dudley can only seek injunctive relief that relates to her own disability (blindness) and attorneys’ fees.  The DOJ, on the other hand, can and is seeking injunctive relief that would benefit people with other types of disabilities such as those who are deaf or hard of hearing.  In addition, the DOJ can seek compensatory damages for past and present students who have been harmed, and a civil penalty of up to $75,000.

The DOJ’s action stems from the University’s obligation ensure that its communications with individuals with disabilities is effective.  One question we often get is whether a public accommodation is required to ensure that all of its communications with the public are effective, or just those that relate to the core goods and services that the public accommodation offers (e.g, communications by a university to students and prospective students about its courses and programs).  Some advocacy groups have taken the position that all material posted on any university website must be accessible for the benefit of the public at large, even if the material is not directly related to any coursework or other programs offered by the school. Continue Reading

Federal Lawsuit Challenging Uber X’s Exclusion of Service Animals Shifts into Discovery

Posted in Lawsuits, Investigations & Settlements, Service Animals

Blind woman and a guide dogBy Kristen Verrastro and Andrew McNaught

Recently, a Federal court in Northern California denied Uber Technologies, Inc.’s request to dismiss an access lawsuit. The plaintiffs, National Federation of the Blind of California (“NFBC”) and individual blind members with guide dogs, filed an ADA lawsuit alleging Uber-X drivers committed various forms of discrimination, including refusing to transport blind riders with their service animals.

For example, one blind member of NFBC alleged an Uber-X driver pulled up to the curb; yelled “no dogs;” and then cursed at him before taking off without the NFBC member in the driver’s vehicle. The complaint also alleges that Uber-X drivers have mishandled guide dogs, in one instance even forcing a guide dog into the closed trunk of a sedan before transporting the blind rider. When the blind rider realized where the Uber-X driver placed her dog, she pleaded with the driver, who refused to pull over so the rider could remove the dog from the trunk.

Below, we discuss the arguments considered by the Court regarding Uber’s motion to dismiss. The Court ultimately determined that: (1) the plaintiffs had standing under the ADA; and (2) Uber may be subject to the ADA, potentially as a place of “public accommodation.”

Plaintiffs’ Standing under the ADA

Uber argued that the plaintiffs did not have standing to bring the lawsuit because, among other state law arguments: (1) one plaintiff did not have standing under the ADA’s deterrent effect doctrine; and (2) another plaintiff did not have standing as to the likelihood of future harm under the ADA.

The Court rejected Uber’s arguments. In finding that plaintiffs have standing under the ADA, the Court noted that the plaintiffs shouldn’t have to engage in a “futile” attempt to access services when they: (1) have knowledge that Uber has refused service to passengers with service animals; and (2) believe there is a likelihood such refusals will continue. Specifically, the Court said that “the ADA directs this Court to relax its standard for injury in fact in order to discourage both piecemeal litigation and futile attempts at access” when plaintiffs have actual notice of the alleged discriminatory practice and are in fact deterred from attempting access.

The Court also granted NFBC associational standing to bring suit under the ADA on behalf of its members.

Uber May Be Subject to the ADA Continue Reading

The Economist Highlights Seyfarth’s ADA Title III Lawsuit Data

Posted in Lawsuits, Investigations & Settlements

By Minh N. Vu

We are pleased to report that The Economist took an interest in our research which showed a 63% surge in the number of ADA Title III lawsuits filed in 2014.  The Economist published an article (to come out in the print edition on April 25) entitled “Hobbling businesses: A law designed to help people with disabilities enriches lawyers instead”, based on our findings and the background that we and others provided.  Happy reading.

New York Law Creates Quandary for Businesses with New “Accessible Icon”

Posted in 2010 ADA Standards, Department of Justice, Maintenance of Accessible Features, Title III Access

CaptureBy John W. Egan

Despite the url (www.adatitleiii.com) and frequent federal focus of this blog, it is important to remember that many states and municipalities have their own disability access laws and regulations with which businesses must comply. Although many state and local requirements are similar to the ADA, this is not always the case.

Usually we’re reporting on a peculiarity of California law, but not today. Effective November 22, 2014, businesses in New York must use the Accessible Icon (depicted above) in new construction and alterations. New York is the first state in the country to adopt this icon, which is distinctly different than the International Symbol of Access (“ISA”) specified in federal ADA Title III regulations.

The New “Accessible Icon”

Created over forty years ago, the ISA is a widely-recognized depiction of an individual in a wheelchair that signifies access for persons with disabilities. ADA design standards, as well as many state and local laws, regulations and building codes expressly require that businesses use the ISA to designate accessible entrances, restrooms, and parking spaces, to name a few.

On July 25, 2014, New York Governor Andrew Cuomo signed legislation designed to phase out the ISA throughout the state. Under the new law and its implementing regulations, accessibility signage installed or replaced on or after November 22, 2014 must use the Accessible Icon. The new law also prohibits the use of the term “handicapped” on accessible signage.

The description of the Accessible Icon in state regulations is taken verbatim from the website of The Accessible Icon Project, an advocacy organization that developed the icon and is lobbying for its adoption in the United States and abroad. Rather than what the regulations describe as a “static” position of the ISA, the Accessible Icon depicts a “dynamic character leaning forward and with a sense of movement.” The forward position of the head, arms pointing backward, and appearance of a wheelchair in motion “broadcast[] an important message that the emphasis should be on the person rather than the disability.”

The regulations make clear that their purpose is to change the accessibility symbol in the state, but make no reference to the fact that federal regulations – with which businesses must also comply – still require the traditional ISA.

New NYS Requirements Conflict with the ADA

New state signage requirements are inconsistent with the 2010 ADA Standards for Accessible Design (and the preceding 1991 Standards), which require that public accommodations use the ISA to designate certain accessible architectural features.

As a result, New York businesses that install or replace accessible signage on or after November 22, 2014 are faced with a Catch-22. They must either display the Accessible Icon and risk violating the ADA, or display the ISA instead and fail to comply with state law.

One way out of this quandary would be for New York businesses to display the Accessible Icon and rely on the equivalent facilitation provision in Section 103 of the 2010 ADA Standards, which allows “the use of designs, products, or technologies as alternatives to those prescribed, provided that they result in substantially equivalent or greater accessibility and usability.” Businesses can take the position that the Accessible Icon constitutes equivalent facilitation under Section 103, and thus its use in lieu of the ISA is permitted. However, the agency responsible for enforcing Title III of the ADA – – the Department of Justice (“DOJ”) – – has not issued any formal guidance on this issue. Moreover, if a lawsuit is filed under the ADA against a business that chose to display the Accessible Icon, the burden of proving that the Accessible Icon provides equivalent facilitation would be on the business.

A Sign of Things to Come?

Will other states follow New York’s lead and replace the ISA with the Accessible Icon? According to The Accessibility Project’s website, the Icon is displayed in municipal buildings in New York City, Cambridge, Massachusetts, and El Paso, Texas, as well as by a number of museums, restaurants, colleges, and hospitals in the United States and internationally. Additional state jurisdictions may well follow suit.

The symbolism underlying the design of the Accessible Icon is unquestionably positive. Its recent adoption in New York, however, has created uncertainty for public accommodations that must comply with both federal and state law.

Edited by Kristina Launey and Minh Vu

ADA Title III Lawsuits Surge by More than 63%, to Over 4400, In 2014

Posted in Barrier Removal, Lawsuits, Investigations & Settlements, Pool Lifts, Title III Access

By Minh N. Vu and Susan Ryan

In August 2014, we reported that the number of ADA Title III lawsuits filed against public accommodations rose by nearly 9% in 2013 over 2012. At that time, we predicted that there could be a 40% increase in the number of lawsuits filed in 2014 based on 6 months of data. Now that we have all the data, the actual number is far higher: There was a 63% surge, resulting in a grand total of 4,436 ADA Title III lawsuits filed in 2014.

1

How Does This Compare to The Number of ADA Employment Lawsuits?

Just to put this into perspective, for comparison purposes we looked at the number of lawsuits filed under Title I of the ADA which prohibits discrimination on the basis of disability in employment. As the below chart shows, those numbers remained very steady in 2012-2014, and numbered well under half the total Title III cases filed in 2014.

2

Where Are Most of These Cases Filed?

California continues to lead the country with the highest number of ADA Title III lawsuits (1866), with Florida coming in a close second (1553). New York (212), Pennsylvania (135), and Alabama (117) hold the distant third, fourth, and fifth place slots. These five states also saw the largest percentage increase in the number of lawsuits.

In stark contrast, there was not a single ADA Title III lawsuit filed in 2014 in Idaho, Montana, Nebraska, North Dakota, South Dakota, and Wyoming.

3

4

What is driving these higher lawsuit numbers, 25 years after the passage of the ADA?

Although we have not studied every complaint to answer this question, we did notice some trends in 2014 in our own practice. In addition to the usual lawsuits alleging physical access barriers at hotels, retailers, and shopping centers, we handled a number of cases brought by plaintiffs alleging a failure to provide accessible pool lifts, mostly in Florida. Some of these cases were clearly frivolous because the hotels did have pool lifts. Plaintiffs represented by one law firm filed more than 60 class action lawsuits in the Western District of Pennsylvania. Many of these alleged that the parking lots of various retailers, restaurants, and banks do not have compliant accessible parking spaces.   We also handled federal class actions alleging that some retailers’ point of sale devices are not accessible to the blind.

Who is filing these lawsuits?

We looked at our top five jurisdictions to see who some of the repeat filers were in 2014 under both ADA Title II (state and local government defendants) and Title III (public accommodations (private sector businesses)). In Florida, a plaintiff named Howard Cohan filed 529 such suits. In California, a plaintiff named Martin Vogel filed 124 suits. In Pennsylvania, a plaintiff named Christopher Mielo brought 21 lawsuits. In New York, a plaintiff named Zoltan Hirsch brought 24 lawsuits. In Alabama, a plaintiff named David Higginbotham filed 16 lawsuits.

A Note About Our Methodology

Our data comes from PACER, the federal court electronic docket system. When filing a new lawsuit, a plaintiff has two ADA codes to choose from: “Americans with Disabilities: Employment” or “Americans with Disabilities: Other.” The “other” category refers to ADA Titles II or III. Our diligent librarian, Susan Ryan, obtained the ADA Title III case numbers by reviewing each of the case names (and where necessary, the complaints) to eliminate all Title II cases. As far as we know, no one else has undertaken this task, so you are hearing it here first on this blog.

Edited by Kristina M. Launey

Ninth Circuit Rules Website Must Have Nexus to a Physical Place of Business for ADA to Apply

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

wooden gavel on laptopFailure to Provide an Accessible Alternative Is Not Intentional Discrimination Sufficient to Establish an ADA-Independent Unruh Act Claim

By Kristina M. Launey and Minh N. Vu

On April 1, 2015, the Ninth Circuit became the first federal appellate court in the country to hold that web-only businesses are not places of public accommodation under the ADA.

As we previously reported, the Ninth Circuit two weeks ago heard oral argument in two cases on the question of whether a business that offers its goods and services only through a website is a “public accommodation” covered by Title III of the ADA. The Ninth Circuit had previously held, in Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000), that the statute only applies to businesses that have a connection to a physical place where they offer their goods and services, but this precedent did not specifically concern a website.

The Ninth Circuit followed this prior precedent in holding in Cullen v. Netflix and Earll v. Ebay that Netflix’s video streaming service and eBay’s web-based business are not subject to the ADA’s non-discrimination mandate because their services are not connected to any “actual, physical place.” The Court held that the phrase “place of public accommodation” requires “some connection between the good or service complained of and an actual physical place.”

This decision comes only a week after a district court in Vermont came down the opposite way after determining the authorities trial courts in the Ninth Circuit had relied upon, and which the Ninth Circuit relied upon in its April 1 orders, were not dispositive, as we reported here.

The Ninth Circuit decided additional California law-specific issues in Earll. It held that the DPA claim failed at a matter of law because Earll did not allege a violation of any separate applicable accessibility standard, such as the California Building Code. It also held that Earll’s Unruh Act claim failed because he had failed to allege intentional discrimination. Specifically, the Court found that the aural identification system used by eBay on its website applies to all eBay users, whether hearing impaired or not, and that eBay’s failure to provide a deaf-accessible alternative to that system does not amount to willful, affirmative misconduct sufficient to constitute intentional discrimination.

The opinions are only 3-4 pages long, not published, and expressly non-precedential. The plaintiffs may well appeal to the US Supreme Court to finally resolve this important issue of whether web-only businesses are places of public accommodation under the ADA.

Nation’s Only Non-Profit MOOC Platform Provider Leads the Industry With Accessibility Commitment

Posted in Department of Justice, Website

E-learning education or internet library. Conceptual imageBy Minh N. Vu and Paul Kehoe

The Department of Justice (DOJ) and edX today announced an agreement under which edX has voluntarily agreed to make its website, mobile applications, and open source learning platform conform to the Web Content Accessibility Guidelines 2.0, Level AA (WCAG 2.0). EdX contracts with some of the most prestigious universities and institutions in the world to deliver hundreds of free massive online open courses (MOOCs) to the public. While it will continue to be the responsibility of these institutions to provide course content that is accessible to individuals with disabilities, edX’s platform will enable the delivery of such accessible content and will provide these institutions with the tools to create accessible content.

This agreement is another example of the DOJ’s continued focus on ensuring that websites and mobile applications are accessible to individuals with disabilities, in even the absence of regulations specifically addressing these technologies.

Seyfarth represented edX in this matter.

Federal District Court in Vermont Finds Web-Only Businesses Are Places of Public Accommodation Under Title III of the ADA

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

(Photo) Tablet in LibraryBy Kristina M. Launey and Minh N. Vu

Although no federal appellate court has decided the issue, district courts are continuing to take sides in the debate over whether web-only businesses are subject to Title III of the Americans with Disabilities Act (ADA). For those of you keeping score, California leads the way, with multiple decisions from its district courts holding that they are not. One decision from a Massachusetts district court says that they are. Last week, the US District Court for the District of Vermont, which sits within the Second Circuit (which also includes New York and Connecticut district courts) joined the Massachusetts district court on the “Yes” team.

The issue was before the Vermont court on a motion to dismiss the complaint filed in National Federation of the Blind and Heidi Veins v. Scribd. Scribd is a California-based digital library that operates reading subscription (e-books, academic papers, legal filings, and other user-uploaded digital documents) services on its website and mobile phone and tablet apps. In this case, NFB and Veins allege that Scribd’s website and mobile applications are inaccessible to the blind, in violation of Title III, because they use an exclusively visual interface and are not programmed to be accessible through screen readers or other assistive technologies. As such, the plaintiffs claimed Scribd is denying blind persons equal access to all of the services, privileges, advantages, and accommodations that Scribd offers and is excluding them from accessing information critical to their education, employment, and community integration.

Scribd based its motion on the argument that Title III does not apply to a website-only business and that the phrase “place of public accommodation” in the statute requires that the business have a physical place where it offers its goods and services to the public. After an extensive review of all the pertinent decisions on this subject, the court concluded that “clearly there is more than one reasonable interpretation of the language at issue here.” It went on to side with plaintiffs, based on the following reasoning:

  • In other parts of the statute, the word “place” is not used to modify the phrase “public accommodation.” In fact, the word “establishment” is sometimes used in lieu of the word “place.” Moreover, the fact that a “travel service” is one of the types of businesses named in the list of places of public accommodation suggests that a business with no physical location open to the public would also be covered by the statute.
  • The legislative history of the ADA, according to the court, reveals a “liberal approach” designed to eliminate discrimination against people with disabilities. To construe the law in a manner that would allow some businesses to be exempt from its non-discrimination mandate would be inconsistent with the statute’s goal of “full participation and access to all aspects of society.”
  • The court concluded that the committee reports accompanying the statute suggest that the “important quality public accommodations share is that they offer goods or services to the public, not that they offer goods or services to the public at a physical location.” Those same reports, according to the court, show that Congress intended the statute to be responsive to technological changes.
  • The court also gave weight to the fact that the Department of Justice has informally interpreted the statute to apply to web-only businesses.

The court’s denial of Scribd’s motion to dismiss means that the litigation will proceed. We predict a settlement is likely in light of this decision.

As we reported last week, we are awaiting the Ninth Circuit’s ruling on this very issue in Cullen v. Netflix and Earll v. eBay, Inc.. Will the Ninth Circuit follow the analytical path this Vermont court carefully laid to cross to the “Yes” team?

Neither this issue, nor the attention it’s garnering, is going away. Even Forbes has taken an interest.

Ninth Circuit Hears Arguments: Are Web-Only Businesses “Places of Public Accommodation” Subject to Title III?

Posted in Title III Access, Website

(Photo) Online ShoppingBy Christina F. Jackson, Kristina M. Launey, Minh N. Vu Courts on both coasts have grappled with whether Title III of the Americans with Disabilities Act (ADA) applies to websites of businesses that have no physical place of business where customers go. One judge in the U.S. District Court for the District of Massachusetts answered this question in the affirmative, holding that Netflix’s video streaming website is a “place of public accommodation” covered by Title III of the ADA, even if the website has no connection to a brick and mortar business. In contrast, two judges from the U.S. District Court for the Northern District of California have held that Netflix and eBay’s websites are not covered by Title III of the ADA because they did not have a connection to an actual, physical place of business. These judges were all purporting to follow Court of Appeals precedents in their respective circuits, although those precedents did not specifically concern websites. Title III of the ADA and its regulations provide little guidance because they were drafted before the Internet became so ubiquitous.

Last Friday, on March 13, 2015, the Ninth Circuit Court of Appeals heard oral argument on the question of whether a web-only business is a place of public accommodation under the ADA and California state laws predicated upon the ADA in Cullen v. Netflix and Earll v. eBay, Inc.. (We’ll explore the California-specific issues more in-depth in a separate post.) Recordings of the oral arguments are available here and here.

Does Title III of the ADA apply to web-only businesses? Continue Reading