Seyfarth Synopsis: In an apparent effort to stop one plaintiff’s lawsuit spree, the Nevada Attorney General moves to intervene in a federal ADA Title III lawsuit arguing that the plaintiff failed to provide notice to the state agency responsible for enforcing Nevada’s antidiscrimination law before filing suit.

On Wednesday, August 9, the Nevada Attorney General filed a motion to intervene in an ADA Title III lawsuit filed by serial plaintiff Kevin Zimmerman who (according the motion) had sued more than 275 Nevada businesses in federal courts in the past seven months.

The motion to intervene argues that Title III of the ADA requires private plaintiffs to – before filing in federal court – provide 30 days’ notice to the state agency responsible for enforcing state laws that prohibit the same type of discriminatory conduct at issue in the federal suit.  The Nevada Attorney General explained that the notice gives the state enforcement agencies an opportunity to conduct their own investigation and take action.  The brief notes that there is an exception to this notice requirement where a plaintiff has actual notice that the defendant does not intend to comply with the law, but Mr. Zimmerman did not plead that he had actual notice of any such intent.  This is an interesting argument that could be a useful defense strategy in some ADA Title III cases, though it has been rejected as the basis for a dispositive ruling by the Ninth Circuit in Botosan v. Paul McNally Realty.

The Nevada Attorney General’s motion to intervene is not the first time that a state attorney general has stepped in to thwart the actions of serial plaintiffs filing accessibility lawsuits.  Last year, the Arizona Attorney General intervened in and secured the dismissal of 1700 cases filed against Arizona businesses under the Arizonians with Disabilities Act (not the ADA), as we reported here.

Stay tuned for more developments in Nevada – a state that only had 6 ADA Title III lawsuits in all of 2016.

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.

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:  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:  The number of federal ADA Title III lawsuits continue to surge, fueled by new plaintiffs, new plaintiffs’ lawyers, and website accessibility claims.

Our 2016 lawsuit count is complete, and the results no less remarkable than prior years.  In 2016, 6,601 ADA Title III lawsuits were filed in federal court — 1,812 more than in 2015. This 37 percent increase continues the upward trend in the number of filings, which we’ve been tracking since 2013.  In 2015, there were 8 percent more Title III lawsuits filed than in 2014.

ADA Title III Lawsuits in Federal Court: 2013-2016: 2013 (2722); 2014 (4436, 63% Increase over 2013); 2015 (4789, 8% Increase over 2014); 2016 (6601, 37% Increase over 2015)
ADA Title III Lawsuits in Federal Court: 2013-2016: 2013 (2722); 2014 (4436, 63% Increase over 2013); 2015 (4789, 8% Increase over 2014); 2016 (6601, 37% Increase over 2015)

California and Florida continue to be hotbeds of litigation, with 2,468 and 1,663 lawsuits, respectively. New York, Arizona, and Texas hold distant third, fourth, and fifth positions.  Here are the numbers for the top ten states:

  1. CA: 2468
  2. FL: 1663
  3. NY: 543
  4. AZ: 335
  5. TX: 267
  6. GA: 193
  7. UT: 124
  8. PA: 102
  9. MN: 96
  10. CO: 92
Top 10 States for ADA Title III Federal Lawsuits in 2016: CA (2468); FL (1663); NY (543); AZ (335); TX (267); GA (193); UT (124); PA (102); MN (96); CO (93)
Top 10 States for ADA Title III Federal Lawsuits in 2016: CA (2468); FL (1663); NY (543); AZ (335); TX (267); GA (193); UT (124); PA (102); MN (96); CO (93)

The number of cases in Utah jumped from only one in 2015 to 124 in 2016 — due almost entirely to plaintiff Carolyn Ford who filed 105 of those suits.  Other states that experienced significant increases include Arizona, California, Colorado, and Georgia.  Alaska, North Dakota, South Dakota, and Wyoming are the only states that had no ADA Title III lawsuits at all filed in 2016.

What is driving these numbers?  While historically there had been a few predictable plaintiffs and attorneys filing Title III lawsuits, over the past year we’ve seen quite a few newcomers filing (the most common) physical accessibility lawsuits, as well as a recent proliferation of plaintiffs and attorneys filing website accessibility lawsuits.  There were more than 250 lawsuits filed in 2016 about allegedly inaccessible websites and/or mobile apps.   This number does not include the hundreds, if not thousands, of demand letters plaintiffs sent to businesses asserting website accessibility claims.

Plaintiffs who filed more than a hundred lawsuits in 2016 were Theresa Brooke (274), Scott Johnson (258), Howard Cohan (251), Lional Dalton (184), Jon Deutsch (175), Advocates for Individuals with Disabilities LLC/Advocates for Individuals with Disabilities Foundation Incorporated, Advocates for American Disabled Individuals LLC (165), Chris Langer (163), Santiago Abreu (152), Damien Moseley (141), Patricia Kennedy (138), Doug Longhini (114), Andres Gomez (113), and Carolyn Ford (105).  We expect to see fewer suits from Howard Cohan who was the subject of a news expose in late 2016 which showed videos here and here of him not appearing to be limited in his mobility.  Mr. Cohan has filed many hundreds of suits over the years concerning alleged barriers that would affect people who are limited in their mobility.

In 2016, lawmakers in both the Senate and House proposed legislation called the ADA Education and Reform Act designed to, among other things, reduce the number of lawsuits filed by serial plaintiffs by requiring them to give businesses notice of the alleged violations and an opportunity to address them before filing suit.  Those efforts stalled but may gain new momentum with a new administration that is sympathetic to the plight of small businesses and hostile to federal regulation.  There were also state legislative efforts, which will no doubt continue in 2017.

We will, as always, continue to keep tracking lawsuit filings, legislative efforts, and other breaking developments and keep you up to date — as the Title III trend shows no signs of cooling down in 2017.

By: ADA Title III Editorial Board

Seyfarth Synopsis: Final Rule Setting WCAG 2.0 AA as the Federal Agency Website Standard Published in Federal Register, Triggering Compliance Deadline of January 18, 2018.

Last week we reported that the Access Board announced a final rule, under the authority of Section 508 of the Rehabilitation Act, requiring the websites and electronic content of federal agencies to conform to WCAG 2.0 AA within one year of the date the rule is published in the Federal Register.  This final rule was published in the Federal Register yesterday, January 18, 2017, making the effective date of the final rule March 20, 2017; and requiring compliance with the new rule setting WCAG 2.0 AA as the standard for federal government websites by January 18, 2018.

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

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

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

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

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

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

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

Edited by Kristina Launey and Minh Vu.