ADA Title III News & Insights

Latest California ADA Lawsuit Reform Attempt: “Watered Down Solution”

Posted in Barrier Removal, Lawsuits, Investigations & Settlements, Legislative/Regulatory Actions, Physical Accessibility

Seyfarth Synopsis: In yet another effort to limit predatory ADA lawsuits, California Governor Jerry Brown recently signed into law – effective immediately – legislation that will provide small business owners with some potential relief.

Another year, another attempt in California to reform disability access laws – which presently offer plaintiffs a $4,000 per violation bounty for suing businesses.  But this one might actually make a difference – for small businesses at least. The bill is significant as a demonstration of yet another effort at reform that will still likely have little effect on the big picture.  As the bill’s author has noted, it is a “watered down solution to this lawsuit abuse dilemma.”

On Tuesday, May 10th, Governor Jerry Brown signed into law Senate Bill 269.  The bill became effective immediately.

Most significantly, the legislation creates a third category of businesses exempt from full minimum statutory damages — businesses that have employed 50 or fewer employees on average over the past three years, with a facility that has been inspected by a CASp inspector before the filing of a lawsuit or receipt of a demand letter (and the business was not otherwise on notice of the alleged violations), and the business corrected, within 120 days of the CASp inspection, all construction-related violations noted by the CASp inspector that are the basis for the lawsuit or demand letter.  This third category is added to two other categories of businesses which are eligible for reduced statutory damages by virtue of 2012 reform legislation — the last earnest effort of reform that made it into law, which we wrote about here.

There are quite a few hoops for a small business to jump through to qualify for this new exemption, which is why we doubt it will make much of a difference.

SB 269 also allows an exemption from statutory damages for small businesses (25 or fewer employees and less than $3.5 million in gross receipts annually over the past three years), and only provides protection from enumerated technical violations (things like parking lot paint fading or signage) if the small business can manage to fix them within 15 days of notice of the alleged violations — a really short time.  Often it can take more than 15 days to get a contractor out to re-paint parking lot striping, and much longer than that to order and install proper, compliant signage.

A plaintiff can still recover damages if he shows that he did in fact experience difficulty, discomfort, or embarrassment on the particular occasion as a result of one or more of the technical violations.  This means that the plaintiff could just try to open the door and find a violation inside the facility, or find a violation that doesn’t fall into one of the “technical violations” specified in Civil Code section 55.56(e).

Last year’s reform effort, AB 1521, added Section 425.55 to the Code of Civil Procedure.  That section imposes procedural and substantive conditions (disclosure of number of previous lawsuits filed, the reason the plaintiff was in the geographic location of the alleged violation, and why he/she visited the site) before a “high-frequency litigant” can file a lawsuit in California state courts.  A “high frequency litigant” is a “plaintiff who has filed 10 or more complaints alleging a construction-related accessibility violation within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation or an attorney who has represented as attorney of record 10 or more high-frequency litigant plaintiffs in actions that were resolved within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation.”

AB 1521 also requires, in Government Code section 70616.5, a high-frequency litigant to pay at the time of filing a construction-related accessibility lawsuit in California state court, a $1,000 filing fee in addition to the court’s initial filing fee.  Finally, AB 1521 established state court procedures to evaluate cases that involve a high-frequency litigant as well as procedures for requesting a joint inspection of the premises as part of participating in an early evaluation conference.

We’re often asked what practical effect these California reform bills have on the big picture of ADA lawsuit abuse.  The response, unfortunately, is usually: very little because the statutory damages exceptions apply mostly to small businesses, and the procedural protections only apply to lawsuits filed in state courts, while many ADA cases are filed in federal courts.  On May 4, 2016, the United States District Court for the Eastern District of California issued an Order confirming that defendants sued in federal court are not entitled to a stay of proceedings and an early evaluation conference under California’s disability accessibility laws.

Despite efforts to reign in overzealous plaintiff’s attorneys and bring back the spirit of the ADA and California accessibility laws, the wheels of justice turn slowly.  These bills show the legislature’s attempts to chip away at this issue bit by bit.

Edited by Kristina M. Launey,  Minh N. Vu.

Attention Public Accommodations: DOJ’s Recent Rulemaking Action for State and Local Government Websites Reveals its Current Thinking on Web Accessibility

Posted in Department of Justice

Seyfarth Synopsis:  If you would rather not read the 30-page small print Federal Register notice, this summary will provide you with what you need to know about the Justice Department’s most recent official pronouncement on web accessibility.

As we reported, last week DOJ issued a lengthy Supplemental ANPRM (SANPRM) for state and local government websites, which some commentators have decried as a “do-over.”  This unusual move was a surprise, to be sure, but we do not view it as a complete setback.  The SANPRM appears to be DOJ’s attempt to preview its position on key issues and obtain public comment.  As such, the SANPRM has very serious implications that go far beyond the realm of state and local governments.  The rules that DOJ ultimately issues in the state and local government website rulemaking will likely provide the framework for the proposed rule for public accommodations websites — currently slated for 2018.   Accordingly, public accommodations and the organizations that represent them need to submit comments in response to the SANPRM before the comment period closes on August 8, 2016.

We normally don’t write long blog posts but the lengthy SANPRM — containing no fewer than 123 questions for public comment — warrants an exception.  Below is a high level summary of the key issues, with some of our preliminary commentary:

  • Scope of Regulation. DOJ is considering broadening the scope of the future rule from websites to “Web content.”  This expansion could potentially cover web content that a covered entity places on websites that it does not own or control (g. advertising), and could have far reaching implications.
  • Accessibility Standard. DOJ believes that WCAG 2.0 AA should be the standard for Web content, as we’ve predicted.
  • Compliance Period. DOJ is considering giving public entities “two years after the publication of a final rule to make their Web sites and Web content accessible in conformance with WCAG 2.0 Level AA, unless compliance with the requirements would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens.”  This begs the question of why DOJ’s enforcement attorneys have been demanding that businesses and state local governments make their websites comply with WCAG 2.0 AA right now.  The two-year proposal is a shift away from DOJ’s initial, 2010, ANPRM position where it contemplated different compliance dates for existing web pages versus new webpages or websites.  The SANPRM also notes DOJ is considering a longer three-year compliance period for captioning of live audio content.
  • Consultants. DOJ wants to know if there is a shortage of consultants who can bring Web content into conformance with the proposed WCAG 2.0 AA standard.  Rather than rely on anecdotal comments, we suggest that DOJ canvas the field of such consultants and interview them to see if they are actually qualified.  DOJ will likely learn that there are very few truly experienced digital accessibility consulting firms – certainly not enough to assist the thousands of state and local governments, let alone the millions of public accommodations that will most certainly need guidance.
  • Less Demanding Standard for Small Entities. DOJ is considering whether “small public entities” or “special district governments” should have a different compliance timetable or be subject to a less demanding standard such as WCAG 2.0 A, as opposed to AA.  This approach could set the precedent for small businesses in a future proposed rule applicable to public accommodations.
  • Possible Exemptions. DOJ is considering exempting the following Web content from compliance with the proposed WCAG 2.0 AA standard:
    • Archived Web Content. To be considered “archived Web content,” the content would have to be (1) maintained exclusively for reference, research, or recordkeeping; (2) not altered or updated after the date of archiving; and (3) organized and stored in a dedicated area or areas clearly identified as being archived.  Covered entities would still have to provide accessible versions of this content if someone asks for it.
    • Conventional Electronic Files (g. PDFs, Word documents, Excel spreadsheets, and PPT presentations) that existed on a Web site before the compliance date of any proposed rule.
    • Third-party Web Content Linked from the Public Entity’s Website. Note, however, there would be no exception for linked Web content if the public entity “uses the third-party Web site or Web content to allow members of the public to participate in or benefit from the public entity’s services, programs, or activities.”  For example, if the state parking enforcement authority contracts with a third party to process parking ticket payments on a third party site, that site would also need to conform to WCAG 2.0 AA.
    • Third Party Content. A public entity would not have to make content that is posted on its website by third parties conform with the proposed standard, unless the information is essential for engaging in civic participation or if the Web site owner has chosen to include the third party content on the Web site.  This proposal strikes us as highly ambiguous.  Would YouTube have to provide captioning for every video posted by third parties because it has chosen to invite such third parties to post the videos?  Would allowing people to post be considered an affirmative choice by the website owner triggering the compliance obligation?  What if a website owner needs to include key third party content on its site but the vendor but the vendor won’t agree to make it accessible?  Would the website owner be barred from including this third party content on its website, even if no vendor will provides it?
  • Social Media Platforms. DOJ considers social media platforms such as Facebook, YouTube, Twitter, and LinkedIn to be covered by Title III of the ADA and proposes to not address the use of these platforms by state and local governments (subject to Title II) in this rule.  However, DOJ says that any information provided by public entities on those social media platforms must also be available in some alternative way if the platforms are not accessible.
  • Web content of Educational Institutions. DOJ is considering requiring educational institutions to make all content available to the public (as opposed to exclusively for students) on their Web sites conform to WCAG 2.0 AA.   Universities should be gearing up to fight this proposition vigorously because their websites tend to be vast repositories of information (some of which may never be accessed or viewed), including thousands of videos, that would have to be made to conform to WCAG 2.0 AA.  DOJ said that content relevant to a particular student or parent must be made accessible on demand “in a timely manner.”
  • Conforming Alternate Versions of Web Pages and Web Content. DOJ may permit the use of conforming alternate versions of a Web page and/or Web content (1) when it is not possible to make Web content directly accessible due to technical or legal limitations; or (2) when used to provide access to conventional electronic documents.
  • Undue Burden and Fundamental Alteration Defenses. DOJ is considering the use of these defenses as grounds to not make Web content conform to WCAG 2.0 AA, but (1) the burden of proving defense would remain on the public entity; (2) the decision that compliance would result in such alteration or burdens must be made by the head of a public entity or his or her designee after considering all resources available for use in the funding and operation of the service, program, or activity; and (3) the decision must be documented with a written statement of the reasons for reaching that conclusion.  Moreover, the public entity still has to take any other action that would not result in such an alteration or such burdens.  Moreover, the public entity still has to provide access in some alternative fashion unless doing so would also result in a fundamental alteration in the nature of a service, program, or activity or undue financial and administrative burdens.
  • Does Compliance with WCAG 2.0 AA Satisfy a Public Entity’s ADA Obligations? Not entirely.  DOJ says that a public entity would not be required to go beyond this standard even if a person with a disability is unable to access the Web content.  However, the public entity would still have to utilize an alternative method of providing the individual with a disability equal access to the information, service, program, or activity on its Web site unless the public entity can demonstrate that alternative methods of access would result in a fundamental alteration in the nature of the service, program, or activity or undue financial and administrative burdens.
  • Measuring Compliance with WCAG 2.0 AA: DOJ is seeking public comment on how compliance with WCAG 2.0 Level AA should be assessed or measured, particularly for minor or temporary noncompliance.  Should the measurement be based on the percentage of Web content that is accessible, or some minimum threshold of compliance?  The DOJ also wants to know if there are circumstances where Web accessibility errors may not be significant barriers to accessing the information or functions of a Web site.  We strongly believe that the regulations must contain a clear statement that temporary noncompliance is not a violation of the ADA.  Websites change all the time and there are bound to be bugs and issues that come up.  And, guidance on how compliance with the standard will be measured given the dynamic nature of websites is essential.
  • Coverage of Mobile Apps.  DOJ asks whether its rule should cover mobile apps and which standard should be used. DOJ specifically called out WCAG 2.0, the User Agent Accessibility Guidelines 2.0, the Authoring Tools Accessibility Guidelines 2.0, or ANSI/Human Factors Engineering of Software Interfaces 200 as possible accessibility requirements for mobile apps.

As you can see, there are a many issues requiring public comment in the SANPRM.  State and local governments, persons with disabilities, digital accessibility experts, vendors of third-party content  and public accommodations all need to engage in this process and provide their input.  If you have questions about the SANPRM or how to get involved in making comments, feel free to contact us or your favorite Seyfarth attorney.

On Global Accessibility Awareness Day, DOJ Releases Agenda Indicating Progress in 2016; Omits Title III

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

This morning, on Global Accessibility Awareness Day, DOJ participated by issuing its Spring 2016 unified agenda, including upcoming regulatory actions on web accessibility and movie captioning.

Click on the links to the right in the bullets below for the lowdown on each rule, but here are a few highlights:

AA65: State and Local Government web accessibility regulations.  No need to follow this like a bloodhound; the DOJ just issued a Supplemental Advanced Notice of Proposed Rulemaking, which we reported here.  Watch this space for an imminent detailed blog on the SANPRM – so you don’t have to slog through the 30 pages of small print.  The comment period closes in August 2016, and the NPRM is due out in July 2017, with comment period on the NPRM to end in September 2017.

AA60: Regulation to reflect statutory amendments to the definition of disability applicable to section 504 of the Rehabilitation Act. NPRM due in July 2016, with final action expected by years’ end.

AA59:  Regulations to clarify terms within the definition of disability and to establish standards that must be applied to determine if a person has a covered disability under Title II and Title III, due to statutory changes made in the ADA Amendments Act of 2008. Final rule due May 2016 (like, now!)

AA63:  Movie Captioning and Audio Description regulations.  The final rule is due July 2016; read our take on these regs here.

  • DOJ/CRT – Prerule Stage – Nondiscrimination on the Basis of Disability: Accessibility of Web Information and Services of State and Local Governments: 1190-AA65
  • DOJ/CRT – Proposed Rule Stage – Implementation of the ADA Amendments Act of 2008 (Section 504 of the Rehabilitation Act of 1973): 1190-AA60
  • DOJ/CRT – Final Rule Stage – Implementation of the ADA Amendments Act of 2008 (Title II and Title III of the ADA): 1190-AA59
  • DOJ/CRT – Final Rule Stage – Nondiscrimination on the Basis of Disability; Movie Captioning and Audio Description: 1190-AA63

So it’s possible we could have several interesting things happen in 2016.  Do we believe that everything will come out when DOJ says it will?  No.  No, we do not, if history is any indication.  Will we (Susan Ryan) check these diligently every day like our old friend Sisyphus with his boulder?  Yes.  Yes, she will.

Oh, and in case you remember that old chestnut AA61, the Title III almost-proposed web regulations (which we’ve reported on ad nauseum), that apparently does not merit an entry in the Unified Agenda.  The focus is all Title II (AA65) now.  There’s a mention of the Title III almost-proposed regulations in the AA65 write-up, but no indication of any status.

Stay tuned… and if you’re not taking advantage of any of the great information provided by various entities as part of Global Accessibility Awareness Day – all about digital (web, software, mobile, etc.) accessibility and users with different disabilities, check it out: http://www.globalaccessibilityawarenessday.org/!

Only a Bona Fide Patron of A Business Can Bring an ADA Suit, Maryland Court Holds

Posted in Barrier Removal, Lawsuits, Investigations & Settlements, Physical Accessibility

Seyfarth Synopsis:  In a refreshing breath of fresh air, a federal judge holds that an intent to return as a “tester” does not give a plaintiff standing to sue under Title III of the ADA.

gavelAs we’ve reported before, the number of ADA Title III lawsuits has surged in the past few years, mostly in part due to a handful of plaintiffs who file hundreds of lawsuits each year.   Because a court can only consider an ADA Title III claim when there is a threat of an imminent future injury, these serial plaintiffs typically allege in their complaints that they have an intent to return to the business as a patron and that they are “testers” whose sole purpose is to see if the business is complying with the law.  Some courts have held that a plaintiff’s status as a tester does not necessarily bar the suit, emboldening plaintiffs to file even more suits in these jurisdictions.

U.S. District Judge Nickerson, in the District of Maryland, held in an Order issued on May 4 that an intent to return to the business as a tester does not give a plaintiff standing to sue.  “This court is not aware of any authority showing that Title III of the ADA was intended to create such broad rights against individual local businesses by private parties that are not bona fide patrons, and are not likely to be bona fide patrons in the future.”  The court was not convinced that the plaintiff would be visiting the defendant’s shopping center as a patron in the future because he had filed twelve other lawsuits against other businesses in the same vicinity along the I-95 corridor.  Those lawsuits undermined his claim that he would be visiting this particular shopping center –as opposed to all those other businesses — as he traveled on the interstate.   

Kudos to Judge Nickerson for a sensible ruling.

Edited by Kristina Launey.

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

Posted in Department of Justice

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Edited by Kristina Launey.

New York City Enacts Accessibility Standards for Government Websites

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

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

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

Recent NYC Legislation

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

NYC Must Adopt an Accessible Website Protocol within 6 Months 

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

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

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

Potential Impact on Businesses

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

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

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

Edited by Minh Vu and Kristina Launey.

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

Posted in Department of Justice

By Kevin Fritz

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

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

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

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

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

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

By Kristina Launey

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

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

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

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

Website Accessibility Lawsuits By the Numbers

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

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

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

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

 

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

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

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

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

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