Seyfarth Synopsis: Two New York federal judges recently said that the ADA covers websites (even those not connected to a physical place) and one held that working on improving the accessibility of one’s website does not make the ADA claim moot.

The number of district court judges siding with plaintiffs in website accessibility cases is increasing. On June 13, a Florida federal judge issued the first web accessibility trial verdict against grocer Winn Dixie for having a website that could not be used by the blind plaintiff.  Two days later, a California federal judge held that a blind plaintiff’s website accessibility lawsuit against retailer Hobby Lobby could proceed to discovery.  Now two federal judges in New York have weighed in, denying restaurant Five Guys’ and retailer Blick’s motions to dismiss lawsuits alleging that the defendants’ inaccessible websites violate the ADA and New York State and City civil rights laws. Both judges found that: (1) websites are subject to the ADA, regardless of whether the goods and services are offered online and in physical locations; and (2) courts don’t need agency regulations setting a standard for website accessibility to decide whether a website violates the ADA. The court in Five Guys additionally held that being in the process of improving a website’s accessibility is very different from having successfully completed that process to meet the mootness standard of being “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” It summarily rejected the restaurant’s mootness argument on that basis.

In the Blick putative class action, Eastern District Court Judge Weinstein issued a lengthy 38-page order on August 1 that addressed the issue of whether a nexus to a physical place of business is required to subject a website to the ADA. The opinion expressed sympathy for blind individuals who are unable to use some websites with their screen reader software and marshalled every possible argument in favor of finding that all websites that fall within the twelve types of businesses classified as “places of public accommodation” are covered by the ADA.  Judge Weinstein first surveyed relevant decisions from federal courts in other circuits.  Although the Ninth Circuit is the only appellate court that has actually addressed the coverage of a website under Title III of the ADA (all other Court of Appeals decisions have concerned other matters, mostly insurance products), he found that the Third, Sixth, and Eleventh Circuits have held that only businesses with a “nexus” to a physical location are subject to the ADA.  He characterized this interpretation of the law as “narrow” because it would mean that “a business that operates solely through the Internet and has no customer-facing physical location is under no obligation to make [its] website accessible.” The court then considered First and Seventh Circuit decisions which have held that a business does not need a physical place of business where customers go to be considered public accommodations under the ADA.

Finally, looking to its own Court of Appeals (which has not squarely addressed the question of whether a business with no physical location can be covered by Title III of the ADA or considered a website accessibility case), the Blick court relied upon an extended interpretation of the Second Circuit’s holding in Pallozzi – an insurance policy case – to hold that a business that has no physical place of business can be a covered public accommodation under the ADA.  Notably, the defendant in Pallozzi had a physical place of business where the plaintiff had purchased the allegedly discriminatory insurance product.  The Second Circuit held in Pallozzi that Title III of the ADA reaches beyond access barriers at a physical location and extends to the terms of the products sold from that physical location. It did not hold, nor even state in dicta, that a business with no physical location is covered by the ADA in the first place, or that a business’ website is covered by the ADA.

In holding that a website does not need a nexus to a physical location to be covered by the ADA, Judge Weinstein aligned himself with two other District Court judges in the Second Circuit (District of Vermont Judge William K. Sessions III and New York Southern District Judge Katherine Forrest) who reached the same conclusion in cases brought against Scribd and Five Guys, respectively.   

The Blick decision also rejects the recent Bang & Olufsen decision out of the Southern District of Florida, which followed the Target case in holding an ADA website access claim can only survive a motion to dismiss if the website’s inaccessibility has an actual nexus to the business’ physical location. The Bang & Olufsen court held that the plaintiff had not stated an ADA Title III claim because his complaint did not allege that the alleged website barriers in any way impeded his ability to shop at the physical store. The Blick court found this interpretation of the ADA “absurd,” as it would require that only select aspects of Blick’s website and online presence be accessible to the blind, such as allowing disabled individuals “a right to ‘pre-shop’ in their home, but no right to actually make a purchase in their home,” and provide disabled individuals “no right whatsoever to purchase goods or services from companies whose business models (e.g. television shopping channels, catalogs, online-only) are premised on having customers shop only from home.”

The court concluded its 22-page discussion of the issue by stating the plaintiff “has a substantive right to obtain effective access to Blick’s website to make purchases, learn about products, and enjoy the other goods, services, accommodations, and privileges the defendant’s website provides to the general public.” It also found that the plaintiff might be able to enforce his rights through a class action, but that issue would wait until after the parties’ motion(s) for summary judgment. The court also stated that it would convene a “Science Day” where experts would demonstrate web access technology to the court “to explore how burdensome it would be for the defendant to make its website compatible with available technology.”

Both the Blick and Five Guys decisions rejected the argument that Justice Department regulations setting website accessibility requirements are necessary for a finding that a defendant has violated the ADA by having an inaccessible website. Like the District of Massachusetts in denying MIT and Harvard’s motions to dismiss, and the Central District of California in denying Hobby Lobby’s motion (contrary to a different decision out of that same district) the Blick court rejected the primary jurisdiction argument on the basis that it is the court’s job to interpret and apply statutes and regulations and the risk of inconsistent rulings is outweighed by plaintiff’s right to prompt adjudication of his claim. The court discussed the long history of the Justice Department’s website accessibility rulemaking efforts before concluding that “t[]he court will not delay in adjudicating [plaintiff’s] claim on the off-chance the DOJ promptly issues regulations it has contemplated issuing for seven years but has yet to make significant progress on.”  Both courts rejected the defendants’ due process arguments, stating no standard set by statute or regulation for is needed for the ADA’s requirements of “reasonable modifications,” “auxiliary aids and services,” and “full and equal enjoyment” to apply to website accessibility. In rejecting Five Guys’ argument that there are no regulations setting forth accessibility standards for websites, the Five Guys court noted that there are steps defendant could take, such as using the Web Content Accessibility Guidelines.

Finally, the Blick decision addressed the coverage of website accessibility claims under the New York State Human Rights Law, New York State Civil Rights Law, and New York City Human Rights Law, and found that such claims were covered to the same extent as they are under Title III of the ADA.

While there is no way of knowing whether other federal judges in New York will agree with the holdings of District Judges Weinstein and Forrest, more lawsuits will likely be filed in New York after these decisions.

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: 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.

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.