Seyfarth Synopsis: Trump Administration’s first Unified Agenda reveals DOJ has placed web accessibility, medical equipment, and furniture rulemakings under Title II and III of the ADA on Inactive List.

Federal agencies typically provide public notice of the regulations that are under development twice a year in the Unified Regulatory Agenda. The first Agenda the Trump Administration issued, which went online July 20, 2017, contains some very noteworthy changes from the last such Agenda, issued by the Obama Administration.

For the first time, the Agenda breaks down all agency regulatory actions into three categories: active, long-term, or inactive. While the Agenda does not define these terms, it appears that only the active and long-term matters receive a description and projected deadlines. The inactive matters appear on a PDF document under a link called “2017 Inactive Actions”.

The Agenda places the Department of Justice’s rulemakings under Titles II and III of the ADA for websites, medical equipment, and furniture of public accommodations and state and local governments on this 2017 Inactive Actions list, with no further information. Thus, as we had predicted, there will be no regulations about public accommodations or state and local government websites for the foreseeable future.

In the absence of website regulations, the courts are filling the void with a patchwork of decisions that often conflict with one another. The uncertain legal landscape has fueled a surge of lawsuits and demand letters filed and sent on behalf of individuals with disabilities alleging that the websites of thousands of public accommodations are not accessible.

The placement of the website and all other pending ADA Title III rulemaking activities (medical equipment and furniture) on the Inactive list is part of the Administration’s larger effort to reduce the number of regulations in development.  The Administration touted the following accomplishments on the Agenda’s homepage:

  • Agencies withdrew 469 actions that had been proposed in the Fall 2016 Agenda;
  • Agencies reconsidered 391 active actions by reclassifying them as long-term (282) and inactive (109), allowing for further careful review;
  • Economically significant regulations fell to 58 – about 50 percent fewer than Fall 2016;
  • For the first time, agencies will post and make public their list of “inactive” rules.

Edited by: Kristina M. Launey.

Seyfarth Synopsis:  Utah businesses are experiencing an unprecedented number of ADA Title III lawsuits.

Utah used to be a good place for public accommodations that did not want to be sued for ADA Title III violations.  In 2013, 2014, and 2015 combined, plaintiffs only filed a total of eight such lawsuits in federal court (1, 6, and 1, respectively).  In 2016, the number surged to 124, making Utah the seventh most busy federal venue for such filings for that year.  In just the first five months of 2017, plaintiffs have filed 125 lawsuits in the Utah federal courts, the highest number since we started tracking them in 2013.

Federal ADA Title III Lawsuits Filed in Utah Federal Courts: 2013-2017: 2013 (1), 2014 (6), 2015 (1), 2016 (124), Jan.-May 2017 (125)

Nine plaintiffs are responsible for the 2017 numbers so far, with one who has filed 57 such suits.  Another six plaintiffs have each filed between 9 and 15 cases, and two have only filed one case each.  These plaintiffs have been represented by one of six law firms, one of which was counsel in 105 of the 124 cases filed in 2016.  Most of these cases appear to concern alleged architectural barriers in public accommodations facilities.

Utah businesses are not likely to experience the level of disability access litigation as their counterparts in California, Florida, or New York, but we are not ruling out that possibility.

The increase of ADA Title III lawsuits in federal court shows no signs of stopping.  From January 1 through April 30, 2017, 2629 lawsuits were filed — 412 more than during the same period in 2016.  That’s a whopping 18 percent increase.  As we previously reported, the total number of lawsuits filed in federal court in 2016 was 6,601 and represented a 37% increase from 2015.

Federal ADA Title III Lawsuits: January 1-April 30, 2017: Jan.-April 2016 (2217); Jan.-April 2017 (2629)
Federal ADA Title III Lawsuits: January-April 2017: Jan.-April 2016 (2217); Jan.-April 2017 (2629)

Based on our own practice, website and mobile app accessibility lawsuits have become more common, with lawsuits being brought in new jurisdictions.  Our research team is crunching the website lawsuit numbers and we hope to get them to you soon.

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: New website and mobile app accessibility settlement agreement requires WCAG 2.0 AA conformance, training, and feedback mechanism.

Being named one of the most innovative companies of 2016 doesn’t make one immune from a website and mobile app accessibility lawsuit.  Capping 2016’s banner accessibility lawsuit count, including record website accessibility lawsuit numbers, on which we reported yesterday, was an end-of-the-year settlement between innovative local-sourcing salad restaurant Sweetgreen, Inc. and two blind individuals, on behalf of other similarly-situated individuals.

The settlement concluded a lawsuit filed on March 2, 2016 in the United States District Court for the Southern District of New York, which alleged that Sweetgreen discriminated against the plaintiffs due to an online ordering portal and mobile app that were not accessible in violation of Title III of the Americans with Disabilities Act, the New York State Human Rights Law, and the New York City Human Rights Law.

Specifically, the plaintiffs alleged that Sweetgreen’s online and mobile app ordering systems allowed customers to “customize signature salads, filter by dietary preferences, track calories and more,” but that barriers to accessibility on the online ordering portal and mobile app prohibited them from independently placing salad orders online for pick-up.

The settlement agreement requires:

  • Improving accessibility to both the online ordering portal and mobile app (excluding third party content except as integral to an online transaction function) to conform to, at minimum, the Web Content Accessibility Guidelines 2.0 Level A and AA Success Criteria by March 31, 2017, and maintaining that conformance;
  • A link on Sweetgreen’s contact page that provides visitors the opportunity to provide feedback regarding accessibility;
  • Attempt to remedy accessibility issues raised through the feedback page within 30 days of receipt; and
  • For a period of two years, web accessibility training to employees who write or develop programs or code for http://order.sweetgreen.com, and its mobile applications, or who publish final content to http://order.sweetgreen.com, and its mobile applications.

These are common settlement terms; signaling they are also good proactive steps for companies to take in their own web and mobile app accessibility efforts.  And for those companies frustrated with the proliferation of ADA lawsuits and demand letters, some solace in knowing they’re not the only ones grappling with this issue.

Notably, one of the plaintiffs, Mika Pyyhkala, was a plaintiff (in addition to the National Federation of the Blind) in the landmark web accessibility H&R Block lawsuit and consent decree.  Advocacy group Washington Lawyers’ Committee For Civil Rights And Urban Affairs represented Pyyhkala in the Sweetgreen lawsuit.

Edited by Minh Vu.

Seyfarth Synopsis: In yet another effort to reduce ADA lawsuits, California Governor Jerry Brown recently signed into law – effective immediately – legislation to encourage tenants and landlords to acknowledge and address any accessibility issues during lease negotiations.

On September 16, 2016, California Governor Jerry Brown signed into law Assembly Bill 2093 – the second new disability access reform law of the year – in the state’s continuing effort to address the huge number of accessibility lawsuits. This bill, which became effective immediately, seeks to ensure that prospective commercial real estate tenants are notified of known construction-related accessibility violations during the course of lease negotiations so that owners and tenants have the opportunity to decide how any violations will be addressed and avoid future ADA lawsuits.  AB 2093 is similar to a piece of California’s last large-scale attempt at disability access reform, SB 1186 of 2012, which required a commercial property owner to state on a lease form or rental agreement executed on or after July 1, 2013, whether the property being leased or rented has undergone inspection by a certified access specialist.

AB 2093 takes the 2012 legislation one step further and requires commercial property owners to state on every lease or rental agreement executed after January 1, 2017, whether the property being leased or rented has been inspected by a California Certified Access Specialist (CASp) for compliance with construction-related accessibility standards.  If it has, and there have been no alterations affecting accessibility since, the owner must provide the prospective tenant a copy of the CASp report at least 48 hours prior to the execution of the lease or rental agreement.  Any necessary repairs are deemed the responsibility of the owner unless the landlord and tenant contractually agree otherwise.  If the CASp report indicates the property meets applicable accessibility standards, the owner must provide the report and CASp certificate to the tenant within seven days of the execution of the lease or rental agreement.

If the property has not been CASp-inspected, the owner must include specific language in the lease or rental agreement notifying the prospective tenant that: (a) a CASp can inspect the property and determine whether the property complies with construction-related accessibility standards; (b) a CASp inspection is not required by law; (c) the owner may not prohibit the tenant from obtaining a CASp inspection of the property; and (d) the owner and tenant shall mutually agree on the terms of the CASp inspection, including time, payment of fees, and allocation of responsibility for making any required corrections to accessibility violations identified in the CASp report.

Earlier this year, the Governor signed into law SB 269, which largely sought provide small business owners with some relief and protect businesses against liability for certain “technical” violations.  Both bills come on the heels of 2015’s AB 1521, which imposed procedural and substantive prerequisites to a “high-frequency litigant” filing a lawsuit in California state courts.

AB 2093 is intended to raise the issue of the existence of possible violations of the ADA and California accessibility laws during the course of commercial property lease negotiations to encourage business owners to make any necessary repairs in a proactive manner, rather than making repairs as a reaction to a future ADA lawsuit from a plaintiff seeking the $4,000 per violation bounty offered by California’s disability access laws.   Only time will tell if this latest effort at reform will make any difference in mitigating the huge, and growing number of disability access lawsuits in California (and across the country).  For those of you closely following state government attempts to intervene and quell the proliferation of disability access lawsuits, read about the Arizona Attorney General’s recent action here.

Edited by Kristina Launey and Minh Vu.

iStock_000018867002_LargeOh, the irony.  Our federal government is filing lawsuits against private businesses and universities for having allegedly inaccessible websites and mobile apps when its own agencies have inaccessible websites.  In April 2014, we reported that the American Council of the Blind (ACB) and three blind federal contractors sued the General Services Administration , alleging GSA’s own website, SAM.gov, is inaccessible and denies certain blind and visually impaired government contractors the ability to register or timely renew their government contracts online.

On Tuesday, November 10, 2015, the plaintiffs announced that the parties had reached a settlement, which requires GSA to make significant changes to SAM.gov to make it more accessible.  The announcement did not reference the Web Content Accessibility Guidelines (WCAG 2.0), even though the Department of Justice has been using this set of guidelines for all of its website settlements with private businesses.

The plaintiffs report that following GSA’s implementation of the agreed-to changes, the website will undergo review by another independent accessibility expert. In addition, the agreement creates a process by which members of the blind community will test and provide feedback on future changes to SAM.gov.

The attorneys for the plaintiffs stated in a press release: “The Internet is part of our daily lives, and being unable to access any website—much less a website that is essential to doing business with the federal government—puts members of the blind community at an economic disadvantage. It is unfortunate that it took the filing of a lawsuit to bring about meaningful change but we thank GSA for working collaboratively with us and our clients to make SAM.gov accessible.”   And, “everyone, including the blind community, deserves access to the Internet, which has become a means for independence, information and commerce.

We are trying to get a copy of the actual agreement and will update this post when we do.

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.

By Minh N. Vu

Serial ADA Title III lawsuit filer Howard Cohan made local television news last week in a story CBS Action News 47 reported after Mr. Cohan filed 24 new lawsuits against various north Florida hotels.  Seyfarth Shaw’s Title III Team has handled a number of cases filed by Mr. Cohan.  Our search of the federal court docket shows that he has filed 606 lawsuits since the beginning of 2013.

Businesses often ask why the courts would allow a plaintiff with no apparent interest in doing business with the target of these lawsuits to pursue these matters. The reality is that challenging the legitimacy of these cases will almost always exceed the cost of settling the matter.  As a result, most businesses choose the latter, seemingly more practical option, which simply encourages more lawsuits.  On occasion, some businesses targeted by serial plaintiffs decide to fight and have obtained excellent results, as we reported here. However, these cases are the exception.

Edited by Kristina M. Launey

By Craig B. Simonsen and Kristina M. Launey

This blog, as the “ADA Title III” name indicates, is primarily about a business’s obligation to individuals with disabilities who may access its goods, services, benefits, and accommodations, rather than employees with disabilities.  However, we also frequently receive questions from entities that are subject to Title III about their obligations to provide accessible technology to  their employees, so we thought this news would be of interest to our readers. 

The U.S. Department of Labor’s Office of Disability Employment Policy recently announced the launch of a Web portal, spearheaded by ODEP’s Partnership on Employment & Accessible Technology (PEAT). PEAT is an initiative to promote the employment, retention, and career advancement of people with disabilities through the development, adoption, and promotion of accessible technology. The portal is intended to provide everything “from educational articles to interactive tools.” The content “aims to help employers and the technology industry adopt accessible technology as part of everyday business practice so that all workers can benefit.”

Available on the portal Resources & Tools is the “Accessible Technology Action Steps: A Guide for Employers.” The Guide aims to provide a “roadmap to ensure that the technology in your workplace is accessible to all employees and job applicants.”

This issue is not just on the government’s radar.  At least one plaintiff’s firm in California is forcing businesses to deal with the issue of website accessibility in the employment context, recently filing a lawsuit against multiple retailer defendants alleging that the plaintiff was discriminated against in violation of the California Fair Employment and Housing Act (FEHA) (state equivalent of Title I of the ADA) and California’s Unruh Act (state equivalent of Title III of the ADA) because the businesses’ online applications were inaccessible and the companies refused to allow him any other method (i.e., paper) to apply.

These developments serve to remind businesses to review policies, procedures, training materials, and assistive technologies they use to interface with customers or employees to ensure those with disabilities are afforded equal access to the goods and services the business provides and to the benefits of employment, with or without reasonable accommodation.

Edited by Minh N. Vu.