Physical Accessibility

Seyfarth Synopsis: Google Maps now provides information on accessibility, but the information may not be particularly reliable or useful to gauge accessibility.

The Google Maps app now indicates if a location is “accessible” to wheelchair users.  Here’s how it works: users can now click on various storefronts and other public places within the mobile app, and it will say whether the locations have accessible entrances. The information is listed under the “Amenities” section for each business.

This is not the first time that someone has attempted to provide information about the accessibility of businesses, as we previously reported, but the fact that this is a project powered by Google means it will likely produce information on many more businesses. It raises quite a few questions:

Is the information reliable?  It is our understanding that the information comes from “Local Guides” – users who answer questions in exchange for early access to new Google features. After collecting data over this past year, Google recently added the accessibility information to its popular Google Maps App.  We have very serious concerns about people providing “accessibility” reviews when Google has not provided any objective criteria for such people to use.  Under Title III of the ADA, there are very specific standards used to define whether a business is “accessible.”  We suspect that most of the people providing input on the accessibility of a business do not know what these standards are.  What standards are they using to judge a business’ accessibility?  We don’t know.  The designation also does not necessarily indicate which part of the business is accessible.  Is it just the front entrance?  Restrooms?  Aisles?  Dining area?  The feature does not go that far.  We also find suspicious the fact that the accessibility designation is supposed to indicate that the business is accessible for people who use wheelchairs as well as strollers and canes.  Those three different types of users have very different needs but the designation is one size fits all.

What if a customer thinks that the accessibility designation is not accurate?  The only available feature is “suggest an edit” though it is unclear where these suggestions go.

Will this new feature will be used by serial plaintiffs who are looking for businesses to sue even if they have  no genuine desire to patronize them.  “Google lawsuits” already exist whereby individuals look at aerial screenshots via Google maps to determine whether a business contains certain amenities, like a pool lift for an outdoor pool.  The accessibility designation, or lack thereof, may provide an easier way for serial plaintiffs and their lawyers to conduct an initial screening of their potential targets from the comfort of their homes and offices.

One thing is for certain:  Technological advances have dramatically changed the ADA in many ways: improving the lives of many people with disabilities, creating new challenges for them and businesses, as well as facilitating lawsuits.

Edited by Kristina Launey and Minh Vu.

Seyfarth Synopsis:  Massachusetts recently enacted its first statewide ride-sharing law requiring companies like Uber to provide accessible transportation for individuals with disabilities.

On the heels of news that Uber and the National Federation of the Blind (“NFB”) settled their federal court lawsuit in California, which began with a fight over whether Uber is subject to Title III of the ADA as a place of “public accommodation” or a “specified public transportation service,” Massachusetts is taking ride-sharing accessibility matters into its own hands.

Massachusetts enacted its first ride-sharing law last month which – though not the first of its kind – continues the nationwide trend of states and cities implementing ride-share regulations.  What is novel is Massachusetts’s specific prohibition on these companies from discriminating against individuals with disabilities, a requirement that they provide wheelchair accessible vehicles, and a mandate that they provide accommodations to individuals traveling with service animals. Massachusetts’s new law is far broader than the recent California settlement, which was limited to only Uber and an agreement to provide accommodations to individuals with service animals.

The Massachusetts law also prohibits ride-sharing companies from charging higher fares or fees to individuals with disabilities and requires that they demonstrate that they have “an oversight process in place” to ensure their compliance with the new law and with all nondiscrimination laws in all “areas” (which is not defined) in which they operate.  The law also requires ride-sharing companies to have “established procedures governing the safe pickup, transfer, and delivery of individuals with visual impairments and individuals who use mobility devices, including … wheelchairs, … walkers, and scooters.”

The Massachusetts Department of Public Utilities (“DPU”) is responsible for drafting detailed regulations to support and enforce this new law and will likely provide guidance to companies as to the “oversight process” and ‘procedures’.”  DPU has announced that it looks forward to “implementing one of the most comprehensive ride-for-hire laws in the country to support innovation, public safety, and accessibility for those with special accommodation needs.”

The new law also calls for the formation of a task force, which will include a representative of the Disability Law Center, Inc., a Massachusetts non-profit disability advocacy organization, to consider the establishment of a Massachusetts Accessible Transportation Fund.  This Fund will be credited with annual surcharges from ride for hire companies that do not, as determined by the task force, provide sufficient wheelchair-accessible service.  The task force is required to file a report with the Massachusetts Legislature of its recommendations and proposed legislation by July 1, 2017.

Edited by Kristina Launey.

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.

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.

iStock_000000578266_LargeThe Department of Justice (DOJ) announced today that it filed a lawsuit against the Gates-Chili Central School District in New York because it refused to have its teachers help a kindergarten student with epilepsy and other disabilities manage her service dog. According to the complaint, the young student was non-verbal and could not give the service dog required commands. The student also needed someone to tether the dog to her person at various times during the day. Because the school refused to allow its employees to perform these functions, the parents had to hire a personal aide to perform these functions. According to the DOJ, the District violated Title II of the ADA — the part of the law prohibits discrimination on the basis of disability by state and local governments.

DOJ’s position in this lawsuit is very concerning because the ADA Title II regulations plainly state that “[a] public entity is not responsible for the care or supervision of a service animal.” Giving commands to a service animal clearly constitutes the “supervision” of a service animal that is not required under DOJ’s own regulations, but DOJ has nonetheless filed this lawsuit. The question now is whether the DOJ will similarly interpret the ADA Title III regulations to require employees of public accommodations to supervise service animals as well. Those regulations also contain language stating that businesses do not have to care for or supervise service animals.

We suspect the school will be filing a motion to dismiss shortly and will keep you apprised.

(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

Review of Disabled Persons Act Applicability to Websites Withdrawn; California Agency Issues Guidance on CASp Benefits; and Novel New Serial Lawsuits Filed Against Car Dealerships

By Kristina Launey

As we’ve discussed previously, California is a hotbed for disability access suits – both based upon alleged physical accessibility violations of California law and the ADA and based upon alleged inaccessible websites.  Three recent developments on this front merit mention:

First, the California Division of the State Architect recently posted useful information regarding its interpretation of why a business may want to hire a Certified Access Specialist to inspect and certify a property at: Why is it Beneficial to Hire a CASp? And Other Frequently Asked Questions.  The page explains the law in California which authorizes private plaintiffs to receive statutory damages of up to $4,000 per occurrence of violation as well as the legal benefits and protections a CASp consultant’s evaluation can provide a business when faced with such a lawsuit.

Second, we had expected some guidance from the California Supreme Court regarding whether the Disabled Persons Act applies to businesses’ websites after the Ninth Circuit in Greater Los Angeles Agency on Deafness et al. v. Cable News Network, Inc. certified the issue to that Court.  On October 10, the Ninth Circuit withdrew its request for review after GLAAD agreed to dismiss its action with prejudice in exchange for CNN’s promise not to seek attorneys’ fees and costs and CNN voluntarily dismissed its appeal in the Ninth Circuit.  Despite the lack of judicial and regulatory guidance, lawsuits, demand letters, and enforcement actions over alleged inaccessible websites continues.

Finally, in the category of what new serial lawsuit trend is hot in California right now, we’ve seen a wave of lawsuits filed against car dealerships by one firm in California alleging violations of law based upon the car dealerships’ failure to offer and refusal to install vehicle hand controls on vehicles for persons with disabilities to test drive the vehicles.

As always, we’ll continue to monitor disability access developments in California and nationwide to keep you up to date.

Edited by Minh Vu

By Kevin A. Fritz

A law firm that filed more than 100 class actions from early 2012 through 2013 is scratching that ADA itch again with new Title III class suits.  Since January of this year, the firm filed seven new lawsuits on behalf of one plaintiff.  Each lawsuit alleges that the defendants’ bank branches, located throughout Pennsylvania, are inaccessible to individuals who use wheelchairs.

Most of the banks just sued are familiar with the firm, which brought suit against them on behalf of different plaintiffs for alleged ATM accessibility violations.  But these new suits focus on other branch elements such as inaccessible parking lots, obstructed accessible routes, handicap signs that are too low, inaccessible door hardware and entrances, etc.  The motivation behind these new suits is unclear.  The first lawsuits came about most likely because of the March 2012 deadline for ATMs to comply with new standards under the ADA.  Now this firm appears to be looking to make another withdrawal from the banks’ litigation funds by going after other accessibility violations.

Should the firm follow its prior ATM class action strategy, other banks should be prepared for many similar, if not identical, class suits to be filed across the country.  That said, the plaintiff may have more of an uphill battle to proceed on a class basis in these cases because every branch in a bank system is likely to be different with respect to its date of construction, alterations, and architectural barriers — thus undermining the commonality of the factual and legal issues required to pursue a class case.

Edited by Minh Vu and Kristina Launey

By Paul Kehoe and Minh Vu

As noted in an October 2013 blog post (here), more than three years have passed since the Department of Justice (“DOJ”) revised its regulations requiring businesses and state and local governments (“covered entities”) to allow the use of other power-driven mobility devices (“OPDMDs”) in their facilities by individuals with mobility disabilities.  Unlike wheelchairs and scooters, OPDMDs are mobility devices that are not designed primarily for use by people with mobility disabilities (e.g., Segways™ and golf carts).  Last month, the DOJ issued its first full technical guidance document on this topic.  Our takeaway from this recent guidance is that DOJ does not want covered entities limiting the use of OPDMDs, especially Segways, unless there is a very good reason to do so.  DOJ also expects covered entities to develop written policies and rules for OPDMD use and train their employees on how to implement those policies.

The guidance restates the five assessment factors that covered entities should analyze when determining whether the use of a particular OPDMD type should be permitted in a particular facility by people with mobility disabilities.  They are: Continue Reading Justice Department Issues New Guidance on the Use of Other Power-Driven Mobility Devices by Individuals with Mobility Disabilities

As we’ve previously reported, new Department of Justice rules give individuals with mobility disabilities the right under the ADA to use a wide variety of non-traditional powered mobility devices in public accommodations facilities.  The lawsuits and complaints about this issue are on the rise so businesses should familiarize themselves with this issue to avoid expensive lawsuits.

On Thursday March 20, 2014, from 1:00-2:00 PM EST, our ADA Title III Team Specialists Minh Vu and Paul Kehoe will present a webinar that answers: Do I Have To Let People With Disabilities Ride Their Segways In My Place Of Business?  They will discuss the regulatory requirements, the most recent official guidance on the subject, and the questions that you can (and cannot) ask to determine if a person is using one of these devices for a legitimate protected reason.

Click here for more information and to register.