Seyfarth Synopsis: Today’s first impression trial verdict finding retailer Winn-Dixie liable under Title III of the ADA for having an inaccessible website suggests that public accommodations should focus on their website accessibility efforts now.

As we reported yesterday, Florida federal District Court Judge Robert Scola last week presided over the first trial in the history of the ADA about an allegedly inaccessible website.  Today, Judge Scola issued a 13-page Verdict and Order finding that grocer Winn-Dixie violated Title III of the ADA by having a website that was not useable by plaintiff Juan Carlos Gil to download coupons, order prescriptions, and find store locations.  Mr. Gil is blind and uses screen reader software to access websites.  Judge Scola ordered injunctive relief, including a draft three-year injunction we have included below, and awarded Mr. Gil his attorneys’ fees and costs.

Although the decision is not binding on any other federal courts or judges – not even in the same judicial district – it is significant for a number of reasons.

First, it is the first decision to hold, after a full trial, that a public accommodation violated Title III of the ADA by having an inaccessible website.  To the extent that businesses are considering whether to settle or litigate these cases, this decision makes the possibility of an adverse verdict much more real.

Second, the draft injunction adopts the Web Content Accessibility Guidelines (WCAG) 2.0 as the accessibility standard that Winn-Dixie must meet in making its website accessible.  WCAG 2.0 AA is a set of guidelines developed by a private group of accessibility experts and has not been adopted as the legal standard for public accommodation websites, although it has been incorporated into many consent decrees, settlement agreements, and is the standard the Department of Justice referenced in the Title II rulemaking process.  The court’s adoption of this set of guidelines further points to WCAG 2.0 AA as the de facto standard for website accessibility.

Third, the court did not consider the $250,000 cost of making the website accessible to be an undue burden.  The court said this cost “pales in comparison to the $2 million Winn-Dixie spent in 2015 to open the website and the $7 million it spent in 2016 to remake the website for the Plenti program.”

Fourth, commenting on an issue causing many businesses concern, the court held Winn-Dixie responsible for the entire website’s lack of accessibility even though parts of the website are operated by third party vendors.  It stated: “[M]any, if not most, of the third party vendors may already be accessible to the disabled and, if not, Winn-Dixie has a legal obligation to require them to be accessible if they choose to operate within the Winn-Dixie website.”

The court issued the following draft injunction, and ordered the parties to confer about the deadlines to be inserted in the blanks.

***

Pursuant to the terms of this Order and Injunction, Winn-Dixie, Inc.:

  1. Shall not, no later than _____(date) _____, deny individuals with disabilities, including the Plaintiff, the opportunity to participate and benefit from the goods, services, facilities, privileges, advantages, and accommodations provided through its website www.winndixie.com. The website must be accessible by individuals with disabilities who use computers, laptops, tablets, and smart phones.
  2. Shall not, no later than _____(date) _____, provide individuals with disabilities, including the Plaintiff, an unequal opportunity to participate and benefit from the goods, services, facilities, privileges, advantages, and accommodations provided through its website www.winndixie.com. The website must be accessible by individuals with disabilities who use computers, laptops, tablets and smart phones.
  3. No later than _____(date) _____, shall adopt and implement a Web Accessibility Policy which ensures that its website conforms with the WCAG 2.0 criteria.
  4. No later than _____(date) _____, shall require any third party vendors who participate on its website to be fully accessible to the disabled by conforming with WCAG 2.0 criteria.
  5. No later than _____(date) _____, shall make publicly available and directly link from the www.winndixie.com homepage, a statement of WinnDixie’s Accessibility Policy to ensure the persons with disabilities have full and equal enjoyment of its website and shall accompany the public policy statement with an accessible means of submitting accessibility questions and problems.
  6. No later than _____(date) _____, and at least once yearly thereafter, shall provide mandatory web accessibility training to all employees who write or develop programs or code for, or who publish final content to, www.winndixie.com on how to conform all web content and services with WCAG 2.0 criteria.
  7. No later than _____(date) _____, and at least once every three months thereafter, shall conduct automated accessibility tests of its website to identify any instances where the website is no longer in conformance with WCAG 2.0.
  8. If the Plaintiff believes the Injunction has been violated, he shall give notice (including reasonable particulars) to the Defendant of such violation. The Defendant shall have 30 days from the notice to investigate and correct any alleged violations. If the Defendant fails to correct the violation, the Plaintiff may then seek relief from the Court.
  9. In light of what the Court has already found to be the Defendant’s sincere and serious intent to make its website accessible to all, this Injunction will expire in three years.

***

In the absence of any regulations setting forth the requirements for a website accessibility program, this injunction, once finalized, will provide a judicially-approved framework for such a program for those public accommodations that want to adopt one.

Edited by Kristina M. Launey.

Disabled sign pinned on cork noticeboard

Seyfarth Synopsis:  Recent guidance from the U.S. Access Board makes it more difficult for businesses to argue that the Accessible Icon constitutes “equivalent facilitation” under the ADA, even though jurisdictions such as New York and Connecticut require the use of this alternative disability access symbol.

As we previously reported, New York State and more recently, Connecticut, passed legislation requiring the use of the “Accessible Icon” in lieu of the traditional International Symbol of Access (“ISA”) in new construction and alterations whenever an accessibility sign is required by code.  But Title III of the ADA and the Architectural Barriers Act (“ABA”), which apply to public accommodations facilities and federally-funded facilities, respectively, still require the use of the ISA.  Specifically, the ADA and ABA require that the ISA be used to label and provide direction to certain accessible spaces and elements, such as restrooms, parking spaces, and check-out aisles.

This conflict has presented a quandary for businesses: Display the ISA as the ADA requires; display the Accessible Icon, as state or local codes require; or, display both symbols, which would multiply costs, negatively impact aesthetics, and potentially confuse patrons.

Last week, the U.S. Access Board, the federal agency that drafted the ADA Standards for Accessible Design (which the Department of Justice (“DOJ”) incorporated into its ADA Title III regulations) and also sets accessibility standards for federal agencies, issued a Guidance stating unequivocally that “the ISA must be used even where a state or local code or regulation specifies a different symbol.”  Although the DOJ, not the Access Board, enforces Title III of the ADA and the ADA Standards for Accessible Design, the Guidance could be considered by a court in a Title III enforcement action, given the Access Board’s relevant expertise.

Is the ISA Really Outmoded?

The Accessible Icon Project began as a “street art” campaign that was apparently intended to replace the “traditional,” static figure displayed in the ISA with a more active, dynamic and positive depiction of individuals with disabilities.

The ISA (left) and the Accessible Icon (right)

The effort to replace the ISA with the Accessible Icon has faced recent hurdles.  In May 2015, the Federal Highway Administration (“FHA”) issued an Interpretation Letter stating that the use of alternative symbols of accessibility are not acceptable for traffic control device applications because they are not “unmistakably similar” to the ISA.  The agency went one step further, commenting that the use of non-conforming symbols, including “by approval of local authority,” “compromises the enforceability of these devices.” (emphasis added)  The Interpretation Letter also noted that the Access Board has not adopted or endorsed any alternative designs.

Access Board: the ISA is Still the Recognized Symbol of Accessibility

The Access Board’s Guidance states that the ISA has become a “worldwide” symbol that “reflects considerable analysis by, and consensus of, an international collection of technical experts,” including the International Organization for Standardization, which is a non-governmental organization that represents over 160 national standard-setting agencies.  In addition to the ADA Standards for Accessible Design, the U.S. Department of Transportation’s ADA Standards, ABA, International Building Code (“IBC”), National Fire Protection Association Standards, and ICC A117.1 also require the ISA.

No Endorsement of the Accessible Icon as “Equivalent Facilitation”

Businesses in New York or Connecticut where they are required by new state laws to use the Accessible Icon in new construction and alterations could display the Accessible Icon and take the position that its use satisfies the “equivalent facilitation” provision in Section 103 of the 2010 ADA Standards for Accessible Design.  Under Section 103, businesses may use “designs. . . as alternatives to those prescribed [by the ADA], provided they result in substantially equivalent or greater accessibility and usability.”  However, no court or agency has ruled on this issue.  The Guidance does not comment on whether the Accessible Icon would constitute “equivalent facilitation” but instead defers to the courts, and encourages those advocating for a new symbol to contact the International Organization for Standardization.

The Guidance stresses the value of uniformity and recognition over what some believe is a negative (or at least limiting) depiction of individuals with disabilities.  The ISA “promotes legibility, especially for people with low vision or cognitive disabilities,” according to the Guidance.  This supports the Access Board’s conclusion that, irrespective of conflicting state or local requirements, businesses must display the ISA where required by federal standards.

Businesses Should Carefully Consider the Use of the Accessibility Icon in Future Projects

The situation is confusing, but one thing is clear:  Businesses that do not use the traditional ISA symbol where it is required by federal law face litigation exposure under Title III of the ADA, and the Access Board’s Guidance makes the “equivalent facilitation” argument more challenging.  Businesses in New York and Connecticut should seek guidance on whether local permitting authorities have the ability to waive the Accessible Icon requirement, the consequences of not using the Accessible Icon, and the implications of using both the Accessible Icon and the ISA.

Edited by Kristina Launey and Minh Vu.

Seyfarth Synopsis:  Two Florida federal district court judges require websites to have a “nexus” to a physical location for coverage under Title III of the ADA, but a third judge requires more.

Modern smart mobile phone with on line shopping store graphicThe Eleventh Circuit Court of Appeals (which includes Florida, Alabama, and Georgia) has yet to decide whether and to what extent Title III of the ADA applies to websites of public accommodations, but recent rulings from three different federal judges in Florida do provide insight on where the judges in that circuit may draw the lines.

Gil v. Winn DixieIn December 2016, we wrote about the Gil v. Winn Dixie Stores case where a blind plaintiff alleged that Winn Dixie’s website violated Title III of the ADA because it was not accessible to him.  Winn Dixie moved to dismiss the case, arguing that websites are not covered by Title III of the ADA because they are not physical places.  Though not a party to the lawsuit, the Department of Justice filed a Statement of Interest supporting the plaintiff and expressing its view that “Title III applies to discrimination in the goods and services ‘of’ a place of public accommodation, rather than being limited to those goods and services provided ‘at’ or ‘in’ a place of public accommodation.”  In response, Winn Dixie objected to the DOJ’s involvement and moved to strike the DOJ’s Statement of Interest.

District Court Judge Robert Scola recently denied Winn Dixie’s motion to dismiss the case and to strike the DOJ’s Statement of Interest.  The case is now on its way to a bench trial — the first trial concerning an ADA Title III claim about a website, to our knowledge.  In denying the motion to dismiss, Judge Scola agreed with the DOJ’s analysis that the law guarantees a plaintiff equal access to the services, privileges, and advantages “of” a public accommodation, not just those that are offered “at” a place of accommodation.  Judge Scola noted that “Winn-Dixie’s website is heavily integrated with, and in many ways operates as a gateway to, Winn-Dixie’s physical store locations.”  The court found that allegations concerning the website’s store locator feature and prescription ordering service for in-store pick up, if proven, could establish “nexus between Winn-Dixie’s website and its physical stores.”

Gomez v. J. Lindeberg USA, LLC.  In this case, the defendant defaulted and District Court Judge Kathleen Williams had to determine if, on the basis of the facts alleged in the complaint, serial plaintiff Andrew Gomez was entitled to have a judgment entered in his favor.  The complaint alleged that the plaintiff could not purchase clothing or search for store locations on the defendant retailer’s website because it was not accessible.  Judge Williams concluded that the plaintiff had alleged sufficient facts establish a “nexus between the challenged service and the place of public accommodation,” and entered an injunction requiring the defendant to “undertake immediate remedial measures to make its website readily accessible and usable to people with visual disabilities.” The judge also ordered the defendant to pay plaintiff’s attorneys’ fees and costs.

Gomez v. Bang & Olufsen.  District Court Judge Joan Lenard held in this case that the plaintiff had failed to state a claim under the ADA because he had not alleged that the website’s alleged inaccessibility impeded his full use and enjoyment of the brick-and-mortar store.  The plaintiff had alleged that he could not shop for items on the website to have them delivered to his home.  Judge Lenard held that the plaintiff failed to claim “an actual (not hypothetical) impediment to the use of Defendant’s retail location.”

***

To summarize, two of the three Florida federal judges to have decided whether Title III of the ADA covers websites of public accommodations require a “nexus” between the website and a physical place of business where customers go (in alignment with the Ninth Circuit and precluding suits against web-only businesses), and one requires that the website’s lack of accessibility actually impede a plaintiff’s access to a physical place of business.  All three judges agree that websites with no nexus to a physical place of public accommodation are not covered by the ADA.

Edited by Kristina M. Launey.

Seyfarth Synopsis: Two recent decisions by federal judges to dismiss website accessibility lawsuits may cause more public accommodations to fight instead of settle these suits, but businesses must continue to weigh many factors before making that decision.

The litigation tide might be turning for public accommodations choosing to fight lawsuits brought by blind individuals claiming that the businesses’ websites violate Title III of the Americans with Disabilities Act (ADA) by not being accessible to them.  As we have previously reported, about a dozen or so plaintiffs’ firms have filed hundreds of lawsuits and sent thousands of demand letters to businesses asserting this type of claim on behalf of blind clients in the past two years.  Most of these matters have settled quickly and confidentially, and the relatively few defendants who chose to litigate rarely had success in getting the cases dismissed.  However, two recent decisions from California and Florida federal judges do provide encouragement for businesses that are willing to spend the money to litigate.

On March 20, 2017, federal District Judge James Otero of the Central District of California dismissed a lawsuit by a blind plaintiff who claimed that he could not order pizza from the Domino’s website because it could not be accessed using his screen reader.  The plaintiff claimed that by having an inaccessible website, Domino’s had violated Title III of the ADA and various California laws that prohibit discrimination against individuals with disabilities by public accommodations.

Dominos made three arguments as to why the case should be dismissed.  First, websites are not covered by Title III of the ADA.  Second, in the absence of regulations requiring public accommodations to have accessible websites, such entities can choose how they provide access to individuals with disabilities.   Dominos submitted evidence that it provided access for blind individuals through a 24-hour toll-free phone number where live agents would provide assistance with using the website, as well as direct phone access to stores for placing orders.  Third, holding Dominos liable for not having an accessible website would violate due process principles because the Department of Justice (DOJ) has not issued any regulations specifying whether and to what extent websites must be accessible or the legal standard to be applied in determining accessibility.

Judge Otero rejected the argument that the ADA does not cover websites of public accommodations. However, he agreed that Dominos had met its obligations under the law by providing telephonic access, and that requiring Dominos to have an accessible website at this time would violate its constitutional right to due process.  Judge Otero pointed out that neither the law nor the regulations require websites to be accessible, and that the DOJ had failed to issue regulations on this topic after seven years.  As further evidence that covered entities have not been given fair notice of their obligations, he cited the DOJ’s official statements from the beginning of the website rulemaking process that (1) it was considering what legal standard of accessibility to adopt, and (2) telephonic access could be a lawful alternative to having an accessible website.  Based on these due process concerns, Judge Otero invoked the “primary jurisdiction” doctrine which “allows courts to stay proceedings or dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency.”  This is the first time a court has dismissed a website accessibility case based on “due process” grounds and a welcome rebuke of the DOJ’s regulatory and enforcement activities to date.

On February 2, 2017, Florida District Judge Joan Lenard dismissed serial plaintiff Andres Gomez’s ADA Title III website lawsuit claim with leave to amend because he had failed to allege that his ability to use the defendant retailer’s website prevented him from accessing its stores.  Judge Lenard held that “[a]ll the ADA requires is that, if a retailer chooses to have a website, the website cannot impede a disabled person’s full use and enjoyment of the brick-and-mortar store.  To survive a motion to dismiss, Plaintiff must claim an actual (not hypothetical) impediment to the use of Defendant’s retail location.”  Gomez had alleged that he could not purchase products online, but did not claim that the website’s inaccessibility impeded his ability to go to a store.  Judge Lenard explicitly rejected the argument that the ADA requires a website to provide the same online-shopping experience as non-disabled persons, stating that “the ADA does not require places of public accommodations to create full-service websites.”

Practical Takeaways.  Here are some takeaways from these recent decisions:

  • All businesses that do not have an accessible website should have a 24/7 toll-free telephone number serviced by live customer service agents who can provide access to all of the information and functions on the website. The phone number should be identified on the website and be accessible using a screen reader.
  • Just because the judges in these cases ruled for the defendants does not mean that all defendants in future website accessibility cases will get the same outcome. These district court decisions are not binding on any other judges who may reach different conclusions.

These decisions do not change the analysis that a defendant must conduct in considering whether to fight or settle a particular case.  Defendants must consider many factors, including (1) the facts (e.g., is access to the goods and services on the website provided through some alternative channel, such as the telephone?), (2) the law in the circuit where the case is pending, (3) the judge, (4) the plaintiff, (5) the plaintiff’s law firm, (6) the cost of settlement, and (7) the cost of litigation.  The fact is that many of these cases can be settled for considerably less than what it would cost to file a motion to dismiss, and it is very difficult for prevailing defendants to recover their fees.  Defendants can only recover fees when the lawsuit was frivolous.

Seyfarth Synopsis: Fewer online videos from UC Berkeley will be available to the public as a result of a DOJ demand that the videos have closed captioning.

Starting March 15, 2017, more than 20,000 videos of classroom lectures and podcasts on UC Berkeley’s YouTube and iTunes channels will no longer be available for public viewing, according to a recent statement by the university.  The statement explains that the decision will “partially address recent findings by the Department of Justice which suggests that the YouTube and iTunesU content meet higher accessibility standards as a condition of remaining publicly available,” and “better protect instructor intellectual property from “pirates” who have reused content for personal profit without consent.”  UC Berkeley stated that it would focus its resources on creating new accessible online content and continue to offer free courses in accessible formats to the public through massive online open course provider, edX.

On August 30, 2016, the Department of Justice (DOJ) issued the findings UC Berkeley referenced in its recent statement, after conducting an investigation into the university’s compliance with Title II of the ADA.  DOJ concluded in the findings that that a covered entity subject to Title II has a duty to ensure content that it makes available to the public free of charge is accessible.

Similar to Title III of the ADA which applies to public accommodations (i.e., twelve categories of privately-owned entities that do business with the public), Title II of the ADA requires public universities and other covered entities to take appropriate steps to ensure that communications with individuals with disabilities are as effective as communications with others to afford qualified individuals with disabilities an equal opportunity to participate in, and enjoy the benefits of their services programs, or activities.  It also requires covered entities to furnish appropriate auxiliary aids and services where necessary to achieve effective communication.  A covered entity is not, however, required to take any action that would result in a fundamental alteration in the nature of its service, program or activity or in undue financial and administrative burdens.

As set forth in its findings letter, the DOJ opened its investigation after receiving complaints from the National Association of the Deaf (NAD) on behalf of two of its members that some of UC Berkeley’s online videos did not have closed captioning.  Significantly, these complainants were members of the public seeking access to free information, not students, prospective students, or faculty.  The DOJ concluded that many of UC Berkeley’s online videos did not have proper closed captions, and has threatened to file an enforcement lawsuit against the school unless it agrees to enter into a consent decree, caption all of its online content, and pay damages to individuals with disabilities who had been injured by UC Berkeley’s failure to provide accessible online videos.  This DOJ matter is still pending as no resolution or enforcement suit has been announced.

The DOJ’s position in its findings letter to UC Berkeley — that a covered entity has a duty to ensure that content that it makes available to the public free of charge is accessible — certainly pushes the boundaries of the ADA and has not been tested in the courts.  If covered entities must in fact ensure that all of the information that they put out for the world to use for free (no matter how remotely related to their central mission) or face lawsuits and DOJ investigations, there may well be a significant reduction in the amount of information provided on the web for public consumption.

A court may at some point rule on this precise question in the pending lawsuits brought by members of the NAD against Harvard University and the Massachusetts Institute of Technology (MIT) in Massachusetts federal court.  The plaintiffs there are members of the public who are asking the court to order the universities to provide captioning for tens of thousands of videos on their websites.  As we reported, the court rebuffed the universities’ efforts to dismiss the case early and President Obama’s DOJ filed briefs supporting the NAD. As the case continues, the universities will likely focus their efforts on proving that providing captioning for tens of thousands of videos is an undue burden or would fundamentally alter the nature of the videos they are providing.  We would not be surprised if these lawsuits result in these universities deciding to follow UC Berkeley’s lead and limit the amount of public access to their online videos.

Edited by Kristina Launey.

Seyfarth Synopsis:  An executive order from President Trump will likely halt the Justice Department’s public accommodations website rulemaking.

President Obama’s Department of Justice (DOJ) had stated that proposed regulations for public accommodations websites would be issued in 2018—eight years after the agency began its rulemaking process.  The likelihood of such a proposed regulation being issued now is virtually non-existent.

Among the flurry of executive orders President Trump signed this week was one entitled “Reducing Regulation and Controlling Regulatory Costs”.  This EO virtually obliterates any chance that the DOJ will issue any website regulations for public accommodations websites during Trump’s Administration.

The EO directs all federal agencies to:

  • Identify at least two existing regulations to be repealed for each new regulation;
  • Ensure that the total incremental cost of all new regulations, including repealed regulations, to be finalized in 2017 be “no greater than zero;”
  • Offset any new incremental costs associated with new regulations by eliminating existing costs associated with at least two prior regulations.

The EO exempts regulations relating to: (1) military, national security, or foreign affairs functions of the United States; and (2) agency organization, management, or personnel.  It also vests the Director of the Office of Management and Budget with the authority to grant additional exemptions.  The stated purpose of this EO is to “manage the costs associated with the governmental imposition of private expenditures required to comply with Federal regulations”.  We therefore assume that the EO would not apply to regulations applicable to state and local governments that the DOJ has been working on and could issue under Title II of the ADA.  It is unclear what, if any, impact this EO may have on the Title II regulatory effort.

While our prediction may seem dire, we cannot fathom what two regulations the DOJ would repeal to make way for new public accommodations website regulations and offset their associated cost.  Though some may think that businesses are better off with no regulations on this subject, we disagree.  The current tsunami of lawsuits and demand letters about allegedly inaccessible websites is the result of uncertainly and absence of regulations that impose reasonable rules that provide adequate time for businesses to comply.  This is one issue upon which virtually all who practice in this space – on the legal, technological, or advocacy side – agree.

Edited by Kristina Launey.

Seyfarth synopsis:  A Florida Judge Holds that SeaWorld’s website is not a place of public accommodation covered by Title III of the ADA but the decision has its limits.

Defendants fighting website accessibility lawsuits in the past several years have not had a great deal of success, so the recent decision by Florida federal Magistrate Judge Carol Mirando holding that SeaWorld’s website is not a place of public accommodation was a small bright spot — albeit one with limitations.

The disabled pro se plaintiff in this case sued SeaWorld under Title III of the ADA because the business allegedly did not provide him with an electric wheelchair or allow his two service dogs entry.  The court held that the plaintiff did not have standing to bring these claims because there was no threat of imminent harm.  The plaintiff also alleged that SeaWorld’s website was not accessible to individuals with disabilities, although it is not clear how his disability impacted his use of the website.  The court rejected this claim, holding:

“Neither Busch Gardens’ nor SeaWorld’s online website is a physical or public accommodation under the ADA.  The Internet is a unique medium — known to its users as ‘cyberspace’ — located in no particular geographical location but available to anyone, anywhere in the world, with access to the internet.  Hence, Plaintiff is unable to demonstrate that either Busch Gardens’ or SeaWorld’s online website prevents his access to a specific, physical, concrete space such as a particular airline ticket counter or travel agency.  As a result, Plaintiff may not plead a claim based on accessibility of an online website under Title III of the ADA.”

In so holding, the court cited to Access Now, Inc. v. Southwest Airlines, Co., 227 F.Supp.2d 1312 (S.D.Fl. 2002), where another Florida district court had dismissed an ADA Title III claim against Southwest because the Southwest website was neither a public accommodation nor was a means of accessing a physical place of public accommodation.  The court in the Southwest Airlines case relied on the Eleventh Circuit holding in Rendon v. Valleycrest Prods., 294 F.3d 117 (11th Cir. 2002). There, the appellate court held that a plaintiff alleging that the telephone screening process for the Who Wants to be a Millionaire gameshow had stated a claim under Title III of the ADA — despite the fact that the telephone was not a physical place — because the screening process was a means of accessing the show which took place in a physical location.

The SeaWorld decision is not surprising in light of the Rendon decision and this pro se plaintiff’s failure to plead that the inaccessibility of the website prevented him from accessing a physical place of public accommodation.  The outcome could have been different if the case had been brought by a different plaintiff who was represented by competent counsel.

Moreover, as we have noted, other judicial circuits such as the First Circuit do not require that a business have a nexus to a physical location to be a place of public accommodation.  Thus, plaintiffs bringing lawsuits about websites that do not have a nexus to a physical place will likely choose those circuits for their lawsuits.  The Department of Justice (“DOJ”) has also made clear its position that a website need not have any connection to a physical place to be covered by the ADA.  Thus, businesses that choose to argue in defense of a lawsuit that their websites are not public accommodations may invite an intervention by the DOJ as we blogged about last month.

In short, many considerations should go into a business’ decision as to whether it should fight or resolve a website accessibility lawsuit.

Edited by Kristina Launey.

Seyfarth Synopsis: Fighting a web accessibility lawsuit could invite DOJ’s intervention, as did a Florida retailer’s recent Motion for Judgment on the Pleadings.

Fighting a website accessibility lawsuit is very tempting to many frustrated businesses, but can be a risky decision. One such risk – Department of Justice intervention in the lawsuit – came to fruition for one such business on Monday in Gil v. Winn Dixie, when the DOJ filed a Statement of Interest in the case pending in the Southern District of Florida.

In the lawsuit, Gil alleged that he attempted to access the goods and services available on the Winn-Dixie website, but was unable to do so using his screen reader technology or any other technology provided on the Winn-Dixie website. Accordingly, he claimed the website is inaccessible in violation of Title III of the Americans with Disabilities Act.

Triggering the DOJ’s somewhat unexpected involvement in this prolific plaintiff’s (by our count, as of October 20, 2016, Gil’s attorney had filed 43% of the 244 federal website accessibility cases filed this year) lawsuit was Winn-Dixie filing a Motion for Judgment on the Pleadings.  The DOJ states that Winn-Dixie admitted in the Motion that, through its website, patrons can order prescription refills to be picked up at the store pharmacy; search for nearby stores; and gather information on store hours, products, and services. Winn-Dixie argued that it has “no obligation under the ADA to ensure that Mr. Gil and other blind patrons can access these and other services and advantages offered through its website” because under the Eleventh Circuit law, only physical locations are subject to Title III of the ADA. The DOJ could not stand by and let this position go unchallenged:

“Because Winn-Dixie Stores’ argument cannot be squared with the plain language of the statute, the regulations, or with federal case law addressing this issue, the United States respectfully submits this Statement of Interest to clarify public accommodations’ longstanding obligation to ensure that individuals with disabilities are not excluded, denied services, or treated differently than other individuals because of the absence of auxiliary aids and services, such as accessible electronic technology. This obligation means that websites of places of public accommodation, such as grocery stores, must be accessible to people who are blind, unless the public accommodation can demonstrate that doing so would result in a fundamental alteration or undue burden.”

DOJ’s authority is the ADA’s requirement that public accommodations provide auxiliary aids and services – including accessible electronic information technology – at no extra charge to ensure effective communication with individuals with disabilities, unless it would result in a fundamental alteration or undue burden.

In response to Winn-Dixie’s position that Title III applies only to its physical location. DOJ cited the language of the ADA which says that “Title III applies to discrimination in the goods and services ‘of’ a place of public accommodation, rather than being limited to those goods and services provided ‘at’ or ‘in’ a place of public accommodation.”  DOJ also argued Title III’s application to the website at issue is consistent with every other court decision to have addressed the coverage of websites with a nexus to brick and mortar locations. DOJ went on to state its view that even websites with no nexus to a brick and mortar location are also covered under Title III of the ADA – a position that has been explicitly rejected by the Ninth Circuit.

Coming on the heels of the DOJ’s intervention in the MIT and Harvard cases, and one retailer’s loss on summary judgment when fighting a web accessibility lawsuit in Colorado Bags N’ Baggage, this case demonstrates that litigating a website accessibility case has broader implications than just winning or losing on the merits.  Few businesses want the DOJ inquiring into their ADA Title III compliance practices, of which websites are only a part.

Edited by Minh Vu.

Seyfarth Synopsis: DOJ published regulations today requiring that movie theaters throughout the United States provide closed captioning and audio description to patrons with disabilities for digital movies distributed with these features.

Today, the Department of Justice (DOJ) published its final rule requiring theaters throughout the United States to provide closed captioning and audio description (if available) for movies exhibited in digital format.  The new regulations will take effect on January 17, 2017.

As we covered here, DOJ issued a Notice of Proposed Rulemaking (NPRM) in August of 2014, which proposed rules requiring that theaters purchase and deploy specific equipment to provide closed captions for individuals who are deaf or hard of hearing, and audio description for patrons with visual impairments.  The proposed regulations also included requirements to advertise the availability of these technologies, and have a staff member on-site to locate, operate, and troubleshoot this equipment.

The final rule adopts many of these proposals, although several were scaled back, presumably in response to public comments submitted by theater representatives, advocates and owners.  DOJ estimates that complying with these regulations will nonetheless cost the industry between $88.5 and $113.4 million over the next 15 years.

We outline the key provisions below.

  1. Applies to All Digital (Not Analog) Movie Theaters

The new regulations apply to movies shown in digital format (i.e. images and sound captured on computer disk rather than film) and not analog format (i.e. 35 mm).  Although DOJ solicited comments on whether to extend the regulations to analog movies, it deferred that issue for future rulemaking.  The final rule cites statistics submitted by the National Association of Theater Owners (NATO) that 98 percent of indoor auditoriums in the U.S. have already been converted from analog to digital.

The final rule applies to theaters and other facilities that are used primarily to show movies for a fee.  Thus, museums, hotels, cruise ships and other public accommodations that show movies to patrons, but not as a primary means of their business, are excluded.

The new regulations apply to all covered theaters, regardless of seating capacity or the number of screens.  Thus, a small community theater with one or two screens will be subject to the same regulations as a megaplex with over 16 screens.  The final rule does not apply to drive-ins.

  1. Theaters Must Have a Minimum Number of Closed Captioning Devices Based on the Number of Screens

Closed captioning devices provide written text of movie dialogue and sounds (e.g. music, sound effects, identification of which character is speaking) to an individual patron at his or her seat.  Theaters must have a sufficient number of devices on hand based on the number of screens exhibiting digital movies, as opposed to total theater seating capacity as suggested in the NPRM.  The requirements are as follows:

Number of Theater Auditoriums Exhibiting Digital Movies Minimum Required Number of Captioning Devices
1 4
2-7 6
8-15 8
16+ 12

The DOJ commentary cites comments and research that the scoping proposed in the NPRM would have substantially exceeded actual demand for this equipment.

In addition, the final rule provides that theaters can utilize open captioning (where captioning can be viewed by everyone in the auditorium) as an alternative means of complying, but are not required to do so.  To satisfy the requirements with open captioning, the theater must either display open captions at all showings, or activate open captions whenever they are requested by an individual who is deaf or hard of hearing before the movie starts.

  1. Theaters Must Have One Audio Description Device for Every Two Screens

In addition to captioning, the final rule also requires that theaters are equipped with audio description devices that provide spoken narration of key visual elements of a movie, such as the actions, settings, facial expressions, costumes and scene changes.

Theaters must have at least one audio description device for every two screens, but theaters with only one screen must have at least two devices.  DOJ reduced the scoping requirement proposed in the NPRM of one audio description device per screen.

This requirement may be satisfied with existing assistive listening receivers (which amplify sound rather than narrate events that occur on-screen) that theaters are already required to provide, but only if these devices have a minimum of two channels available for sound transmission.

  1. Theaters Must Show Movies with Captioning and Audio Description if Available

If a theater exhibits a movie that is distributed with closed captioning and/or audio description features, then the theater must exhibit that version of the movie at all scheduled showtimes.  DOJ’s commentary provides that this requirement neither prohibits theaters from exhibiting a movie not distributed with captioning or audio description, nor requires that they independently add such features.

  1. Closed Captioning Devices Must Satisfy Performance Criteria

The final rule adopted the performance standards for closed captioning devices proposed in the NPRM, which many industry commenters criticized as vague and subjective.

The new regulations will require that closed captioning devices must:

  • Be properly maintained;
  • Be easily usable by patrons;
  • Be adjustable so that the captions can be viewed as if they are on or near the movie screen; and
  • Provide clear, sharp images in order to ensure the readability of captions.

It is not clear what constitutes an “easily usable” device, for example, or the font size or resolution that provides sufficiently “clear, sharp images” to satisfy these requirements.  These uncertainties may lead to future litigation.  In its commentary, DOJ did note that performance standards for captioning devices are subject to existing regulations that permit, with respect to the maintenance of accessible features, “isolated or temporary interruptions in service or access due to maintenance or repairs.”  28 C.F.R. §  36.211.

  1. Other Technologies May be an Acceptable Substitute for Closed Captioning

Theaters may use technologies other than closed captioning, as long as the technology used provides communication that is as effective as that provided to patrons without disabilities.

  1. Digital Theaters Must Comply with Captioning and Audio Description Requirements by June 2, 2018

Theaters showing digital movies on December 2, 2016 must comply with the final rule’s requirement to provide closed movie captioning and audio description in such auditoriums by June 2, 2018.  If a theater converts an auditorium from an analog projection system to a system that it allows it show digital movies after December 2, 2016, then it must comply with the final rule’s requirement to provide closed movie captioning and audio description in such auditoriums by December 2, 2018, or within 6 months of that auditorium’s complete installation of a digital projection system, whichever is later.  DOJ ultimately rejected the aggressive, 6 month timeframe for compliance proposed in the NPRM.

  1. Theaters Must Have Staff On-Site Who Can Locate, Operate, and Troubleshoot Existing Assistive Equipment by January 17, 2017

At least one person (presumably an employee) who can locate, operate, and address problems with all captioning and audio description equipment must be at the theater at all times.  This employee must also be able to communicate effectively with customers with disabilities regarding the uses of, and potential problems with, captioning and audio description devices.  The final rule also requires that theater staff “quickly activate the equipment and any other ancillary systems,” although neither the regulation nor the commentary address what “quickly” means in this context.

DOJ rejected the suggestion from some industry commenters that the regulations should expressly provide that theaters should not be required to hire sign language interpreters to communicate with deaf or hard of hearing patrons regarding this equipment.  The agency did, however, note in its commentary that effective communication concerning these devices would not require a sign language interpreter, but instead “can easily be provided through signage, instructional guides, or written notes.”

In adopting these personnel requirements, DOJ also apparently relied on comments from individuals with disabilities and advocacy groups who reported that theater staff are generally not properly trained in the use, operation and maintenance of existing assistive equipment.  DOJ declined to impose an explicit employee training requirement in the final rule.

Significantly, theaters that already exhibit digital movies must comply with these requirements by the effective date of January 17, 2017.

  1. Theaters Must Comply with New Advertising Requirements by January 17, 2017

As with the proposed rule in the NPRM, the final rule requires that a theater’s communications and advertisements intended inform potential patrons of movie showings and times must indicate whether each movie is available with captioning and/or audio description.  Although the proposed rule would have imposed this requirement on practically all forms of advertisements, the final rule applies to the box office and other ticketing locations, websites and mobile apps, newspapers and over the telephone.  It does not apply to third party ticket providers or websites if they are not part of, or subject to, the control of the public accommodation.

Theaters that already provide captioning and audio description services must comply with these advertising requirements by the effective date of the regulations.

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We are continuing to evaluate the final rule and its potential impact on public accommodations.  It is apparent, however, that the regulations, set to take effect three days before the President-elect’s inauguration, will enhance the accessibility of moviegoing in the United States, while also imposing additional costs on the industry in the form of new equipment, employee training, advertising and future litigation.

Stay tuned for further analysis and updates on these new regulations.

Edited by Minh Vu.

Seyfarth Synopsis:  DOJ announces that proposed rules for state and local government websites will issue July 2017.

The DOJ announced last week in the federal government’s Unified Agenda that it will be issuing a proposed rule for state and government websites in July 2017.  The Unified Agenda provided no date for the proposed rule for public accommodations websites, however.  As we reported previously in May the DOJ had issued a Supplemental Advanced Notice of Proposed Rulemaking (SANPRM) for the state and local website rulemaking  in which it stated that the results of that rulemaking would “facilitate the creation of an infrastructure for web accessibility that will be very important in the Department’s preparation of the Title III Notice of Proposed Rulemaking on Web site accessibility of public accommodations.”   The SANPRM posed more than 120 questions for public comment, the period for which closed on October 7.

Given the many delays in the state and local government website rulemaking which started in 2010, we have little confidence that a proposed rule will really issue in July 2017.  Furthermore, the projected July 2017 date was likely set before the election which injects additional uncertainly for the reasons we discussed in a prior post.

Edited by Kristina Launey.