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.

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.

As we reported in July of 2014, the DOJ is working on final regulations that would require movie theatres with digital screens to show movies with closed captioning and audio description.

At a cost to the industry that DOJ estimated will be between $138.1 and $275.7 million, the proposed regulations would require that all movie theatres with digital screens (other than drive-ins) provide a minimum number of devices for visually and hearing impaired moviegoers based on seating capacity, acquire movies with these features where available, ensure that there is at least one person on-site to locate and operate this equipment, and inform customers of the availability of these features in movie times shown in wide variety of advertising materials.

We just learned that a draft Final Rule has gone to the Office of Management and Budget (OMB) for review, which is the final stage of the rulemaking process.  The projected Final Rule publication date is May of this year.  That said, these projected dates have often been moved before (especially when it comes to website regulations), so we are not holding our breath.

Stay tuned to the blog for more updates.

Edited by Kristina Launey and Minh Vu.

There is more bad news for businesses that thought that they could wait for the Department of Justice (DOJ) to issue specific regulations before making their websites accessible to individuals with disabilities.  Federal Magistrate Judge Robertson in the District of Massachusetts recently denied motions by Harvard and MIT to dismiss or stay website accessibility class action lawsuits, and recommended that the lawsuits move forward to discovery.  The judge found that the existing law and regulations provide a basis for the deaf advocates’ claim that the universities violated Title III of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act by failing to provide closed captioning for thousands of videos on their websites. The judge rejected the universities’ arguments that the court dismiss or stay the case while DOJ works on its proposed rules for website accessibility, finding that the court did not need the agency’s expertise to adjudicate the cases.  The judge did, however, give weight to the DOJ’s interpretation of the ADA expressed in its Statement of Interest filed in the Harvard and MIT lawsuits.

The Magistrate Judge’s recommendation will not be a final order of the court until U.S. District Court Judge Mastroianni adopts it.  Even after adoption, the decision will not be a finding that the universities have violated the law or that they must caption all videos on their websites.  The ruling would simply allow the cases to move forward to discovery.  As Judge Robertson noted, the schools will have an opportunity to assert various defenses later in the case.  For example, Harvard and MIT might show that they provide access to their videos in some alternative, equivalent matter.  They might also seek to establish that providing closed captioning for some or all videos on their websites would constitute an undue burden or fundamentally alter the nature of the goods and services that they offer.

There are many takeaways from Judge Robertson’s 45-page opinion, but we see two very basic, practical points:

  • Judges, at least thus far, have not been receptive to the argument that there is no obligation to make websites accessible until DOJ issues regulations on the subject. In 2015, a federal judge in Pittsburgh also denied a defendant bank’s motion to dismiss or for a stay of a website accessibility case, without any discussion or explanation.
  • Courts seem reluctant to dismiss website accessibility lawsuits at the beginning of the case. This means that the cases will likely continue to discovery and cause defendants to incur potentially substantial costs of defense, even if the defendants ultimately prevails on the merits.

The Harvard and MIT decisions will undoubtedly fuel the continuing explosion of website accessibility cases.  We are working to determine how many such suits have been filed and will report it to you as soon as we have it.

Edited by Kristina M. Launey.

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

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

Domain names and internet conceptBy Minh N. Vu

For today’s Global Accessibility Awareness Day, we have yet another Department of 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 Another DOJ Action over Allegedly Inaccessible Websites and Other Technologies

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

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.

Question markBy Minh N. Vu and Kristina M. Launey

Seyfarth’s ADA Title III Team — along with many businesses and disability advocates — has closely monitored the status of the Justice Department’s (DOJ) proposed website regulations since the DOJ started its process in September 2010. We were surprised to hear NPR’s March 7 report by Todd Bookman that the DOJ is “scheduled to release regulations this month”. Bookman did not provide any further specificity as to which regulations are expected to issue, or reveal the source of this information, leaving all who have been closely following the regulations perplexed.

As we have reported, DOJ has been working on two sets of website regulations: One applicable to state and local governments and another for public accommodations (i.e., private entities that do business with the public). The proposed website regulations for state and local governments were slated to issue in December 2014, but did not. Those proposed regulations have been under review at the Office of Management and Budget (OMB) since July 2014. OMB is the last stop for all regulations before they are published. Thus, we have to assume that the NPR report is referring to these state and local government website proposed regulations, which could come out of OMB review for publication any day.

We seriously doubt that the NPR story was referring to proposed regulations for public accommodations websites for two reasons: First, DOJ’s last official projected date for these proposed regulations is June 2015. Second, DOJ has not yet even submitted any proposed regulations for public accommodations websites to OMB for its mandatory review and approval. Before publication, OMB must review the proposed rule to ensure it is consistent with applicable law, the President’s priorities, and the principles set forth in Executive Order 12866. The review also ensures that decisions made by one agency do not conflict with the policies or actions taken or planned by another agency. Executive Order 12866 also requires agencies to calculate the cost and benefit of the every proposed and final regulation. For example, if the proposed rule prohibits businesses from posting content on their websites that is not accessible to individuals with disabilities (e.g., videos that do not have captioning for the deaf or audio descriptions for the blind), OMB would have to consider whether such a rule would cause businesses to limit the amount of content that they decide to make available on the Internet.

Our take on the timing of the proposed regulation for public accommodations websites is consistent with what we heard last week at CSUN’s 30th Annual International Technology and Persons with Disabilities Conference. The Chief of the DOJ Disability Rights Section, Rebecca Bond, would not state when any website regulations would issue. Attorney Lainey Feingold, who was quoted in the NPR story, also said in her presentation that she did not know when any proposed regulations would come out. However, in both the NPR story and a previous story, Bookman made his March regulation-issuance prediction without naming a source for the information.

When issued, the proposed regulations for state and local government websites will likely provide some insight into the content of the proposed regulations for public accommodations websites that are due out in June. However, DOJ will have to address a host of issues in the latter set of regulations that will not be as relevant for state and local government websites.

As always, follow our blog for the latest on DOJ’s proposed website regulations.