ADA Title III News & Insights

Justice Department Applies ADA Title III To Carnival’s Cruise Ships, Website, and Mobile App in a Landmark Settlement

Posted in Title III Access

Cruise Ship Anchored in The CaribbeanIn late July, coinciding with the 25th Anniversary of the Americans with Disabilities Act (“ADA”), the Department of Justice (“DOJ”) entered into a landmark settlement agreement with Carnival Corp. to improve the physical accessibility of 62 cruise ships sailing under the Carnival Cruise Line, Holland America Line, and Princess Cruise brands.  The agreement, also addresses the accessibility of Carnival’s website, mobile application, and reservation system.  The agreement is notable in at least two key respects:

First, this is the first time that DOJ has taken the position that a cruise line must provide a minimum number of accessible cabins, conduct a survey of its ships, and develop a plan to improve the accessibility of its ships.  This news may come as a surprise to some in the industry because DOJ has never issued any regulations setting the design standards for accessible cruise ships.  The U.S. Access Board is still in the process of issuing final guidelines for accessible cruise ship design, but those guidelines will not legally binding until DOJ adopts them through a proper rulemaking process which has yet to begin.  No matter — DOJ is moving forward with enforcement anyway, borrowing accessibility principles from the ADA Standards for Accessible Design, that apply to facilities on land.  (Sound familiar to those of you watching the website enforcement actions proceed faster than regulations?  For those of you not familiar, read on…)

Second, the agreement shows DOJ’s continued pressure on businesses to make their websites and mobile applications conform to a privately developed accessibility standard that it has yet to adopt in any regulation — namely, the Web Content Accessibility Guidelines (WCAG) version 2.0, level AA.  As part of the settlement, Carnival agreed to make its website and mobile application conform with this set of guidelines.

Carnival also agreed to pay a $55,000 civil penalty to the federal government and $350,000 in damages to eligible complainants.

DOJ began its investigation into Carnival Corp. after receiving complaints from individuals with disabilities and their traveling companions about the alleged lack of accessible seating for entertainment and dining, accommodation procedures, deficient procedures for reserving accessible cabins and communication during emergency drills, and their inability to participate in various programs and services because of a disability.  Carnival expressly denied that it violated the law, but entered into the agreement to avoid potential litigation.

In addition to the website and mobile application remediation, and damages noted above, the agreement requires:

  • 42 existing ships, and seven ships under construction, must be remediated to comply with certain aspects of ADA design standards that were written for accessible hotel rooms;
  • Three percent of the cabins on 49 ships must be accessible according to three newly-created levels of accessibility (again, based on design standards for hotel rooms) depending on the age and class of ship;
  • The cabins on the remaining 13 ships will be subject to remediation if still in service in four years;
  • Implementation of corporate accessibility standards and policies relating to management of accessibility issues, complaint procedures, training, reservations and bookings for accessible cabins, airport transfers, embarkation and disembarkation, youth programs, dining and entertainment venues, service animals, and more; and
  • Appointment of (i) an executive-level ADA compliance officer, (ii) two ADA responsibilities officers, and (iii) ADA shipboard officers for each ship who are responsible for issues that arise at sea.

For those in the cruise line industry, the settlement terms are certainly a shot across the bow that warrant immediate attention.

Edited by Kristina Launey

Bloomberg BNA Interviews Seyfarth’s ADA Title III Team Leader About Website Accessibility

Posted in Website

iStock_000016636778MediumOur ADA Title III Team leader, Minh Vu, recently spoke to Bloomberg BNA about what businesses can do to make their websites accessible to people with disabilities, and the Justice Department’s recent shift in position on this issue.  You can read the Q&A here.

On the 25th Anniversary of the ADA, 25 Easy Ways to Make Your Business More Accessible to Customers with Disabilities

Posted in Auxiliary Aids and Services, Physical Accessibility, Reasonable Modifications, Title III Access

(Photo) BushBy Kevin Fritz

This Sunday, July 26, marks the 25th anniversary of the Americans with Disabilities Act.  In the spirit of anniversary of this important law, here are 25 simple ways to make your business more accessible to customers with disabilities, and provide a great experience for them and their friends and/or family members:

  1. If the main entrance of your business is not wheelchair accessible but there is an alternate accessible entrance, post clear signage by the main entrance giving directions. Also add the International Symbol of Accessibility at the accessible entrance and include key accessibility information about access, parking, or other services on your website (e.g., the rooftop bar is only accessible via stairs).
  1. Keep your lowered accessible counter clear at all times. Do not store or display items on this counter.
  1. Where there are corners, steps, and edges, mark these with high visibility contrasting colored material so that they can be easily seen.
  1. If your business provides table or bar seating, make sure you have accessible seating for wheelchair users. A table that provides space underneath the top that is 30” wide, 17” deep, and 27” high, with a top that is between 28” and 34” from the ground is accessible.
  1. Keep walkways and accessible parking access aisles clear and free from clutter or snow, and make sure your premises are well lit. Keep any bushes, trees, or flower arrangements near your business clipped so there are no low hanging hazards for persons who are blind or have low vision, or overgrown bushes obstructing the path of travel for those using wheelchairs or other mobility aides.
  1. Signage for permanent rooms, such as restrooms, must have braille and raised lettering. The background and foreground must contrast.
  1. Doors that are heavy and hard to open can be very difficult to use for the elderly or people who use wheelchairs or mobility aids. Adjust closers so that the doors require less force to open.
  1. In bathrooms, make sure wastebaskets or other moveable objects do not obstruct clear spaces next to the doors. Similarly, in accessible wheelchair stalls, keep the area around the toilet and under the sink clear.  Doing so ensures that persons using wheelchairs can safely operate the door and navigate.
  1. If your place of business is not accessible for wheelchair users because there are steps at the entrance, consider how you can provide the goods and services to such customers in an alternative fashion (g., personal shopper, home delivery, or home visit service).
  1. Welcome service animals (specifically dogs and miniature horses under the ADA) into your establishment. Read tips on what you can ask to determine if it is a service animal and other tips on service animals here.
  1. When choosing signage, language matters. Instead of signs that use the word “handicapped” –which is considered offensive by many people with disabilities – opt for signs that use the word “accessible.”
  1. Consider how persons with disabilities will be evacuated from your facility in an emergency, and include that procedure in your emergency evacuation plan. Make sure your employees know the procedure.
  1. Use people first language when referring to someone with a disability. Refer to a person as an individual with a disability rather than a “disabled person,” or a “handicapped person.”  In that vein, refer to a person as one who uses a wheelchair (rather than one “confined” to one) or one who is blind (rather than one who “suffers” from blindness).
  1. When speaking with a person with a disability who has a companion, direct your comments to the person with a disability to that person, not the companion – unless specifically instructed otherwise by the person with a disability.
  1. With all written information, structure content in a logical order using plain English and avoiding long sentences.
  1. People who are deaf make phone calls using a telecommunications relay service (TRS). Accept calls made through such services and treat them the same as other calls.
  1. Be prepared to read menus to customers who are blind or have low vision. Posting menus online provides such customers another way of reviewing the menu (using assistive technology such as screen readers) before they visit the restaurant.
  1. Make sure your employees are prepared to interact with customers who are blind or deaf. They should be ready to read written documents to customers who are blind or have low vision and to exchange notes with customers who are deaf, hard of hearing, or have difficulty speaking.  Have a pad of paper handy for this purpose.
  1. People with hearing, speech, or sight disabilities may require extra time or a quiet area to talk with staff. Be patient with the extra attention that might be necessary to understand what is being said and how to assist.
  1. Make sure that your accessible register or checkout lane is always open when the store is open.
  1. Always ask first if a person with a disability needs assistance, never assume.
  1. If a customer who is blind needs to be led to a location in your business, offer the person your arm. Wait for them to accept the assistance.
  1. If a person with a disability requests that you modify a policy or provide additional assistance, consider the request meaningfully. There may be a legal requirement to do it.  For example, if your business requires a driver’s license to rent an item, consider accepting another form of state-issued identification for an individual who is blind or physically unable to drive a vehicle.
  1. If you have a pool lift, make sure it is out and ready to be used (e., battery charged and lift uncovered) at all times when the pool is open.
  1. Customer feedback is a great opportunity to learn about your customers and their thoughts on how accessible your business actually is. Be open to receiving feedback and act on it.  You may be preventing a lawsuit in the process.

These small steps can make a huge difference in the experience that customers with disabilities and their friends and family have at your business, and are sure to result in greater customer satisfaction. 

Edited by Minh Vu and Kristina Launey

DOJ Shifts Position on Web Access: Stating In Court Filings That Public Accommodations Have a “Pre-Existing” Obligation to Make Websites Accessible

Posted in Department of Justice, Title III Access, Website

(Photo) WebsiteBy Minh N. Vu

What a difference five years makes. In September 2010, the Justice Department (DOJ) announced in an Advanced Notice of Proposed Rulemaking (ANPRM) that it would issue new regulations under Title III of the ADA to address the accessibility of public accommodations websites. At that time, it made a number of statements that reasonably led public accommodations to conclude that their websites did not necessarily have to be accessible as long as the public accommodation offered an equivalent alternative way to access the goods and services that were provided on the website. The DOJ’s statements also led public accommodations to believe that once DOJ issues a final regulation, they would have time to make their websites comply with the technical accessibility standard DOJ adopts in that regulation.

DOJ has now shifted positions, presenting its revised viewpoint in Statements of Interest it filed in two lawsuits originally brought by the National Association of the Deaf (NAD) against two universities about the alleged inaccessibility of videos on their websites. See here and here.

What DOJ said in 2010.

In the 2010 ANPRM, DOJ stated that “covered entities with inaccessible websites may comply with the ADA’s requirement for access by providing an accessible alternative, such as a staffed telephone line, for individuals to access the information, goods, and services of their website. In order for an entity to meet its legal obligation under the ADA, an entity’s alternative must provide an equal degree of access in terms of hours of operations and range of information, options, and services available. For example, a department store that has an inaccessible website that allows customers to access their credit accounts 24 hours a day, 7 days a week in order to review their statements and make payments would need to provide access to the same information and provide the same payment options in its accessible alternative.”

DOJ also asked the public to comment on the following questions: (1) “Are the proposed effective dates for the regulations reasonable or should the Department adopt shorter or longer periods for compliance?” (2) “Should the Department adopt a safe harbor for such [web] content so long as it is not updated or modified?” (3) “Should the Department´s regulation initially apply to entities of a certain size (e.g., entities with 15 or more employees or earning a certain amount of revenue) or certain categories of entities (e.g., retail websites)?” Particularly relevant to the NAD lawsuits, DOJ specifically asked the public to comment on whether requiring videos on websites to have captioning would reduce the number of videos that public accommodations would make available, to the detriment of the public. (“[W]ould the costs of a requirement to provide captioning to videos cause covered entities to provide fewer videos on their websites?”).

What the DOJ is saying now. Continue Reading

Website Regulations Update: Public Accommodations Proposed Regs Further Delayed BUT State and Local Proposed Rules Due Out. . . Now?

Posted in Department of Justice

Time concept: Hourglass on computer keyboard backgroundBy Minh N. Vu

According to the Spring 2015 Unified Agenda of Federal Regulatory and Deregulatory Actions, the Department of Justice (DOJ) will issue no proposed regulations for public accommodations websites until least April 2016 — nearly a year from now. However, the proposed regulations for state and local government websites, originally slated for December 2014, should be out any minute. We know because the Unified Agenda has a May 2015 projected publication date for those proposed regs — which has already passed. This is frustrating news for all affected parties who have been clamoring for clarity while the DOJ has moved forward with enforcement activities against allegedly inaccessible websites in the absence of even a proposed rule. We suspect that the delay may be related to the Regulatory Impact Analysis (RIA) (i.e., cost benefit analysis) that the DOJ must conduct for the proposed rule.

Any proposed rule requiring public accommodations’ websites to be accessible will have an enormous cost impact. Millions of businesses with a website presence will need to hire consultants to figure out what must be done to make their websites accessible, modify their websites or pay others to do so, pay consultants to test and verify the compliance of their websites, and maintain the accessibility of their websites going forward. Quantifying the cost of these efforts, in addition to any cost to society resulting from businesses choosing to provide less content or functionality on their websites, is no small task.

But alas, we will not be reading the proposed rule or the RIA for at least another eleven months.

Edited by Kristina Launey

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