Seyfarth Synopsis: The ADA Title III team launches the final installment of its 3-part video series containing 30 tips for businesses on how to better serve individuals with disabilities. This final segment addresses how to effectively and appropriately communicate with individuals with disabilities.

We are two days away from the 30th Anniversary of the ADA.  What better way to say “Happy Birthday” to our favorite law than to provide 10 tips on how to effectively and appropriately communicate with people with disabilities.  Check it out here.

Interacting with a person with a disability need not be intimidating or confusing.  Our final installment of ADA 30: 30 Tips for 30 Years provides guidance for a variety scenarios to ensure that individuals with disabilities have a great experience at your place of business.

We hope you find this final segment fun and educational.

If you haven’t seen them, be sure to check out Part 1 (facilities) and Part 2 (reasonable modifications of policies and procedures) of our series.

An audio description of Part 3 is available here.

Seyfarth Synopsis: The ADA Title III team launches the second installment of its 3-part video series containing 30 tips for businesses on how to better serve individuals with disabilities. This video covers reasonable modifications to normal policies, practices and procedures.

Take a look at Part 2 of our video series!

If you enjoyed Part 1 of ADA 30:  30 Tips for 30 Years video, you are in for a treat because our attorneys worked hard to make Part 2 even more entertaining – while still providing you useful tips.  This video addresses the obligation of businesses to make reasonable modifications to their policies, practices, and procedures to ensure access to their goods, services, and privileges by individuals with disabilities and contains tips about service animals, miniature horses, emergency evacuations, event ticketing, hotel reservations, food allergies, non-traditional mobility devices, and so much more.

An audio description of Part 2 is available here.

We hope you enjoy the video and maybe learn something new.

Seyfarth Synopsis: The ADA Title III team makes a 3-part video series containing 30 tips for businesses on how to better serve individuals with disabilities.

July 26, 2020, is the 30th anniversary of the Americans with Disabilities Act.  To mark this important occasion, attorneys from Seyfarth’s ADA Title III Team put on their best work-from-home shelter-in-place attire to create a video series of 30 compliance tips for businesses.  In each of the next three weeks, we will release a video containing 10 tips based on compliance issues that we most often see in our practices.  Today’s video, Part 1, covers accessible facilities.  Next week, Part 2 will cover reasonable modifications to policies, practices and procedures, and the following week, Part 3 will address effective communication with people with disabilities.

We hope you enjoy this video series as much as we enjoyed making it.  We are especially grateful for the video production and editing skills of our colleague Kevin Fritz who pulled this all together.

An audio description of Part 1 is available here.

Seyfarth Synopsis: A second California Court of Appeal rules that websites with a nexus to a physical place of business are covered by Title III of the Americans with Disabilities Act, while a California trial court insists that online-only websites are covered as well, contradicting the U.S. Court of Appeals for the Ninth Circuit.

On June 18, 2020, the California Court of Appeal for the Fourth Appellate District became the second California Court of Appeal to rule, in Martinez v. San Diego County Credit Union (SDCCU), that websites with a nexus to a physical place of business where customers go are covered by Title III of the Americans with Disabilities Act (ADA).  The first decision, in Thurston v. Midvale, was issued in September 2019 by the Second Appellate District Court of Appeal and affirmed the trial court’s ruling that Midvale violated the ADA and California Unruh Civil Rights Act by having a restaurant website that could not be used by a blind person with a screen reader. The SDCCU decision reversed a trial court’s decision that the website of a credit union with physical banking location was not a “public accommodation” under the ADA. These two California state court appellate decisions are consistent with the position of the federal U.S. Court of Appeals for the Ninth Circuit, which has also held that a website with a nexus to a physical place of business where customers go is covered by the ADA on the theory that the website is a service or benefit of a place of public accommodation.

The SDCCU decision is noteworthy because the Court of Appeal discussed at length what it means to have a “nexus” to a physical place of business. It noted that the courts have not yet articulated a single standard on this issue, but that most federal circuits and one California Court of Appeal (Midvale) have found that a nexus exists if the facts show the website “connect[s] customers to the goods and services of [the defendant’s] physical” place.  This standard is much less demanding standard than in, say, the 11th Circuit, which requires plaintiffs seeking to bring ADA claims about inaccessible websites must show that a barrier on the website prevented them from enjoying the goods and services of that physical place.

The SDCCU Court of Appeal expressly withheld its opinion on whether a website with no nexus to a physical place (i.e. an online-only business) is covered by the ADA since the defendant credit union had a physical location.

On that question, at least one California state trial court (in Riverside County) has (recently) decided that an online-only business is covered under Title III of the ADA.  In Martinez v. Kydia Inc., the trial court acknowledged the U.S. Court of Appeals for the Ninth Circuit had reached the opposite conclusion in several cases but chose not to follow these holdings. Instead, the Court of Appeal framed the issue as “whether equality applies to a non-physical marketplace within the meaning of Title III of the ADA.” The court noted that there is “no direct guidance in California through the district courts”, and that it was “not persuaded” by the Ninth Circuit’s Domino’s (and Target) decision because there was a nexus in those cases, before examining decisions in out-of-state district courts on the issue. The SDCCU Court of Appeal cited dicta in the Thurston v. Midvale Court of Appeal decision that “Congress intended the ADA to ‘keep pace with rapidly changing technology’ and “[e]xcluding websites just because they are not built of brick and mortar runs counter to the purpose of the statute.”

The takeaway from these cases is that in California state and federal courts, the websites of brick and mortar businesses falling into the definition of a “public accommodation” under Title III of the ADA are covered by the law. Whether online-only businesses are covered by Title III of the ADA remains an open question in California state court, with at least one trial court now saying the answer is yes.

Edited by Minh N. Vu

Seyfarth Synopsis:  The Ninth Circuit holds that the ADA does not require a 36 inch length of clear sales counter space when the entire counter provided for all customers is at an accessible height.

When a business provides only one sales counter for all customers to use and that entire counter is at an accessible height of 36 inches or less, does the ADA require that counter be at least 36 inches long and clear of all objects?

Earlier this week, deciding appeals in three separate cases handled by Seyfarth attorneys, the U.S. Court of Appeals for the Ninth Circuit said there is no such obligation.  The Court cited the Exception to Section 904.4.1 of the ADA Standards for Accessible Design (the “2010 Standards”) as clear regulatory support.  The U.S. Department of Justice had reached the same conclusion about this counter configuration in an amicus brief it filed in one of these three cases before the judge granted summary judgment for the defendant, but the plaintiff still sought appellate review.

All three cases involved the same retailer which had covered a portion of the transaction counter with merchandise displays, rendering the counter less than 36 inches long.  The Ninth Circuit concluded that the plain language of Exception to Section 904.4.1 of the 2010 Standards permits this: “Where the provided counter surface is less than 36 inches (915 mm) long, the entire counter surface shall be 36 inches (915 mm) high maximum above the finish floor.”  In a footnote, the court said it was not opining on whether the Section 904.4.1 Exception requires any particular clear length of accessible counter – only that 36 inches of clear length is not required as demanded by the plaintiffs.

The plaintiffs in these cases also argued that the ADA regulation at 28 C.F.R. § 36.211(a) imposed a requirement on the retailer to maintain a clear length of 36 inches of sales counter.  This regulation says:  “A public accommodation shall maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities by the Act or this part.”  The Ninth Circuit rejected this argument, stating that “the maintenance requirements cannot be more stringent than the building requirements” which do not require 36 inches of clear length.

Bottom line:  Businesses can provide less than 36 inches of clear counter space as long as everyone is using the same counter and that counter is entirely at an accessible height.

Edited by Kristina Launey

By Minh N. Vu

Several weeks ago, we blogged about mask objectors presenting businesses with documents bearing the U.S. Department of Justice seal stating that they are not required to wear masks because of their disability.  Last week, the DOJ issued a statement that “[t]he Department of Justice has been made aware of postings or flyers on the internet regarding the Americans with Disabilities Act (ADA) and the use of face masks due to the COVID-19 pandemic, many of which include the Department of Justice’s seal.  These postings were not issued by the Department and are not endorsed by the Department.” This statement makes clear that the DOJ has not taken a position on whether businesses can lawfully deny entry to people who refuse to wear masks because of a claimed disability, but provides no guidance to business presented with this thorny issue.

To further complicate matters, jurisdictions such as New York City, Virginia, and Pennsylvania that have issued executive orders mandating the wearing of masks in public all differ slightly on how businesses should respond to people who cannot wear masks because of a disability or medical condition.

The New York City guidance suggests that a business may be able to exclude people who refuse to wear masks because of a medical condition or disability as long as the business offers alternatives to access the business’ goods and services.  The NYC guidance states:

Where a customer declines to wear a face covering due to a medical condition or disability, you cannot require the individual to provide medical documentation verifying the health issue. In addition, you must discuss with the individual whether there is a way you can provide a reasonable accommodation that will not cause you an undue hardship. You should try to provide alternative arrangements that are workable for your store, your staff, and your other customers. These arrangements will vary considerably based on each store’s ability to make accommodations without creating a hardship on the business.

Depending on the staffing and layout of the retail store, some examples of accommodations that may be reasonable and not cause undue hardship to you are:

  1. Have an employee bring the individual the items they want to buy and allow the individual to pay for them at the front of the store.
  2. Have the individual leave a list of items with the store and then deliver the items to their home.
  3. Inform the individual that they may order by telephone or online and have items delivered to their home.
  4. Suggest that the individual have a friend or family member do their shopping.

The Pennsylvania guidance, on the other hand, says “individuals who cannot wear a mask due to a medical condition (including children under the age of 2 years per CDC guidance) may enter the premises and are not required to provide documentation of such medical condition.”

The Virginia guidance takes an approach similar to Pennsylvania, stating:

Nothing in this Order shall require the use of a face covering by any person for whom doing so would be contrary to his or her health or safety because of a medical condition.  Any person who declines to wear a face covering because of a medical condition shall not be required to produce or carry medical documentation verifying the stated condition nor shall the person be required to identify the precise underlying medical condition.

All of these orders prohibit a business from asking a customer about his or her medical condition or disability once the customer has informed the business of the existence of the condition or disability that prevents them from wearing a mask.  The orders differ as on whether a business can lawfully exclude such individuals from the premises.

The fact that a jurisdiction exempts individuals with disabilities and/or medical conditions from its mask mandate does not necessarily mean that private businesses cannot impose more stringent mask requirements to protect their employees and customers.  However, such requirements may be challenged as unlawful under Title III of the ADA.  In fact, just last week, nine such lawsuits were filed in federal court claiming a retailer’s mask policy violated the ADA.  A business defending such a challenge would have to show that requiring masks to be worn by all individuals inside a facility is a legitimate safety requirement, and that making an exception for people with claimed disabilities is not a reasonable modification of the policy.  While it is difficult to predict how courts will rule on this novel issue, businesses can better position themselves for such a challenge by documenting the reasons for the policy at the time the business enacts the policy (e.g., governmental mandate, CDC guidance, etc.), as well as the business’ inability to modify the policy (including all possibilities for modifications considered), put in place alternative measures for providing goods and services to businesses that do not require entry into a facility, and train employees on the existence and appropriate communication of those alternatives.

Of course, businesses could avoid this litigation risk by allowing people claiming a disability or medical condition to enter their premises without a mask, although this heightens the risk of COVID-19 exposure for employees and customers and other potential liability outside of Title III of the ADA.  A rock and a hard place indeed.

By Kevin Fritz

Seyfarth Synopsis:The Northern District of New York sees far fewer ADA Title III lawsuits than its Eastern and Southern counterparts and apparently has no patience for serial plaintiffs with flimsy boilerplate filings. 

Judge Brenda Sannes of the Northern District of New York is apparently not going to let serial plaintiffs and their lawyers get judgments in their ADA Title III cases without doing some work.  Case in point:  Serial plaintiff Deborah Laufer filed at least 250 lawsuits since May 2019, 114 of which are in New York.  In a number of recent cases filed in the Northern District of New York, Laufer alleges that places of lodging have reservation websites that do not comply with the Americans with Disabilities Act or state law.

To bring any type of lawsuit in federal court, a plaintiff must establish that she has suffered an injury which gives her standing to assert a claim.  Because Title III of the ADA only allows private plaintiffs to seek forward-looking injunctive relief, plaintiffs must also establish that they face an imminent injury in the future.

In one recent decision, Judge Sannes sua sponte questioned whether Laufer had established standing to bring her lawsuit when Laufer requested a default judgment against the defendant hotel.  The court ordered Laufer to submit a brief addressing the specific question of whether Laufer has standing to sue.

One day later — Judge Sannes issued another order for Laufer to establish that she has standing in 27 other virtually identical cases before Judge Sannes.  Judge Sanne’s proactive and efficient handling of these many filings with a single sweeping order suggests that at least one judge in the Northern District of New York is not going to let serial ADA Title III plaintiffs overwhelm the court’s docket with boilerplate filings and will require plaintiffs’ attorneys to do some work on their cases.

Edited by Minh N. Vu and Kristina M. Launey

Today, Thursday, May 21, 2020, is the ninth annual Global Accessibility Awareness Day (GAAD).  The purpose of GAAD is to provide opportunities for conversing, thinking, and learning about digital access and inclusion for people with different disabilities.  There is a ton of useful programming, which may be of interest to businesses’ in-house counsel, accessibility program managers and employees, IT and marketing personnel, and more.  A list of the 177 events happening today can be found here: https://globalaccessibilityawarenessday.org/events/.

By Minh Vu

Seyfarth Synopsis:  Businesses get another win in a lawsuit demanding gift cards with Braille.

Yesterday, Magistrate Judge Stewart Aaron in the Southern District of New York issued a Report and Recommendation recommending that District Judge Gardephe grant Foot Locker’s motion to dismiss a boilerplate complaint in which the blind plaintiff alleged that the retailer had violated the Americans with Disabilities Act and New York State and New York City laws by failing to issue gift cards with Braille or some other accessibility feature.  If Judge Gardephe adopts the decision, he will be the second district judge in the nation to find that the ADA does not require gift cards to be accessible.  District Judge Gregory Woods of the Southern District of New York was the first to decide this issue, as we reported several weeks ago.  We hear that one or more of the Woods decisions will be appealed to the Second Circuit.

By Kristina M. Launey

Seyfarth Synopsis: Reopening businesses must quickly prepare for customers claiming the ADA exempts them from face mask requirements.

Business re-opening their doors to serve customers have many issues to consider, and now they must add to their list customers refusing to wear masks because of a claimed disability.

Many businesses are now requiring customers to wear masks at their places of business, either on their own accord or to comply with governmental mandates. There are now reports of customers refusing to comply with this requirement, claiming that their disability prevents them from wearing masks and a refusal to grant them an exemption violates the Title III of the ADA.  We have even seen a document which displays the Department of Justice (DOJ) seal stating that the ADA exempts individuals with disabilities from wearing masks and references penalties for ADA violations.  While it is apparent to us that the document is not issued by the DOJ, is there a basis under the ADA for the objection?

The ADA prohibits the imposition of eligibility criteria that tend to/do screen out individuals with disabilities, unless the business can show the criteria are “legitimate safety requirements” that are necessary for safe operation. Safety requirements must be based on actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities. Requiring customers to wear masks to receive service is likely an eligibility criteria under the ADA, so the question is whether the policy is a legitimate safety requirement.  In places where there is a governmental mandate (e.g., state-wide like Connecticut or county-wide like San Francisco) that people wear masks in public, there is a very compelling argument that a mask policy is based on a legitimate safety requirement. Even where there is no governmental mandate, a business can point to guidelines from the Center for Disease Control or other governmental recommendations that masks are necessary for safe operation to support the business’s mask requirement. Under either scenario, the business should document all support for the requirement, in case it needs to defend its decision to impose a mask policy.

Unfortunately for businesses, demonstrating that a mask policy is justified by “legitimate safety requirements” is not the end of the inquiry because the ADA has a separate requirement that businesses make reasonable modifications to their policies and procedures where necessary to provide access to their goods and services to individuals with disabilities. Thus, a business must consider whether it can modify the mask policy or some other policy or practice so that the individual with the disability can gain access to its goods and services, and whether any such modifications are reasonable.

Governmental mandates and recommendations that masks be worn to protect the safety of employees and customers provide strong support for the unreasonableness of allowing customers to enter a business without a mask.  But the ADA also requires a business to consider reasonable alternatives to access that would not require the customer to wear a mask. For example, instead of allowing a mask-less customer shop in its store, a business may take a phone order which can be placed in/on a customer’s car or in an outdoor pick up area for a contactless exchange.  Businesses should consider alternate means of providing access to their goods and services in advance, so employees can be trained to offer those alternatives to individuals who ask to be exempt from mask requirements due to their claimed disabilities. We should also point out that businesses do not have to modify their normal policies, practices, and procedures if doing so would fundamentally alter the nature of the goods and services they provide.

Edited by Minh Vu