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Picture of New York City at sunset

By Lotus Cannon and Minh Vu

Seyfarth synopsis:  Leading the country with 3,173 federal ADA Title III lawsuits in 2022, plaintiff-friendly court decisions will likely keep New York in the top spot.

It is no surprise that New York has become the nation’s leader in ADA Title III and website accessibility litigation, bypassing California by a substantial margin in 2022. District Court judges in New York – especially in the Southern District – have been increasingly reluctant to dismiss website accessibility lawsuits before discovery.

Cases in point: 

In Loadholt v Shirtspace, the blind plaintiff alleged that he attempted to access the defendant’s website with his screen reader to buy a T-Shirt and encountered various barriers to access.  Joining the “vast majority of courts” in the Southern District and consistent with his prior opinion in Slade v. Life Spectacular, Inc., U.S. District Judge Andrew Carter held that the defendant’s online-only business is a public accommodation covered by the ADA.  (This question has not been addressed by the Second Circuit Court of Appeals, which decides appeals from New York federal courts).  Judge Carter also found that plaintiff’s allegations regarding the barriers allegedly encountered on the website, such as multiple dead links, were sufficient to state a claim and that plaintiff’s allegations regarding the T-shirt he intended to purchase, as well as his to return to the website to purchase several T-shirts once the website is made accessible, were sufficient to confer standing. Lastly, the judge denied defendant’s request to dismiss and/or strike plaintiff’s demand for civil penalties, fines, and punitive damages under the NYCHRL as premature.

In Weekes v The Outdoor Gear Exchange, Inc., the blind plaintiff alleged he encountered various barriers on defendant’s website, which offers a variety of products for outdoor activity, that prevented him from purchasing a carry-on bag. Defendant’s website offers a live telephone customer service representative during store hours whom customers can interact with to learn about defendant’s products and facilitate purchases. U.S. District Judge Ramos found that the availability of customer service representatives as an alternative auxiliary aid had no impact on whether plaintiff had suffered an injury in-fact for standing purposes, and noted that it is unclear whether customer service representatives would even serve as an effective alternative auxiliary aid if they cannot read plaintiff’s screen and are unavailable outside of business hours. Other courts have issued similar rulings, particularly at the motion to dismiss stage.  Judge Ramos also denied Defendant’s request to transfer venue to Vermont. Notably, while the defendant did not argue that its website was an online-only business exempt from ADA requirements, the Judge cited a holding in another decision issued by a Southern District of New York judge that a website with no nexus to a physical location where goods and services are offered is a place of public accommodation under Title III of the ADA.

These decisions suggest that New York, and particularly the Southern District, will continue to lead the nation as a hotbed of Title III and website accessibility litigation.

Edited by Kristina Launey

Accessibility Button on Computer Keyboard
Accessibility Button on Computer Keyboard

By Ashley Jenkins & Minh Vu

Seyfarth Synopsis: After ten years, the Department of Justice (DOJ) finally issued a report on the accessibility of federal government websites which exposes widespread accessibility barriers.

The adage, “Do as I Say, Not as I Do” seems to be the motto of the federal government when it comes to compliance with digital accessibility standards.  A recent report shows that many federal agencies are not complying with Section 508’s mandate that their websites be accessible even while one of their own, DOJ, seeks to impose website accessibility mandates on state and local governments and privately-owned businesses under Titles II and III of the Americans with Disabilities Act (ADA).

On February 21, 2023, DOJ released its first report on the federal government’s compliance with Section 508 of the Rehabilitation Act in ten years.  Section 508 requires federal agencies to ensure that their websites and other information and communication technologies are accessible to individuals with disabilities. Section 508 also requires the DOJ to submit a report to the President and Congress every two years regarding compliance with this requirement. 

Senator Bob Casey (D-PA) blasted the recently-released data in a press release, making the following observations about the report: 

  • “One in 10 public-facing websites at major federal departments and agencies are not fully accessible for people with disabilities. Three in five internal websites at major federal departments and agencies are not fully accessible to people with disabilities.”
  • “The Department of Agriculture, Department of Labor, Department of State, and Department of Veterans Affairs reported that 50 percent or less of the public-facing websites that were tested comply with federal accessibility requirements.”
  • “Some departments and agencies did not report conducting any accessibility testing of internal websites. It [is] not clear what steps departments and agencies are taking to test other types of technology covered by Section 508 of the Rehabilitation Act.”
  • “DOJ found that key government agencies, including DOJ itself, as well as the Department of Agriculture, the Department of Defense, and the Environmental Protection Agency did not have adequate ‘resources committed and/or staff trained to implement policies, processes, and procedures.’ These shortfalls in staffing were reflected in data regarding the low number of federal and contract employees directly supporting Section 508 programs in many agencies.”
  • “DOJ also found that ‘[a]gency maturity remains largely unchanged from prior reporting,’ raising concerns that, despite over a decade of technological evolution, many federal government agencies have not made efforts to improve and better integrate Section 508 compliance and ensure the federal government’s resources are available for people with disabilities, including taxpayers and federal workers.”

The findings are not surprising because ensuring that websites are accessible to individuals with disabilities requires a substantial and ongoing commitment of resources which even the federal government seems to lack.  Nonetheless, the DOJ has in the past two years ramped up its enforcement efforts to compel private businesses to comply with accessibility standards and put in place rigorous website testing and monitoring efforts.  Private plaintiffs have also been extremely active, filing a record 3,255 website accessibility lawsuits in federal court against private businesses in 2022.  This latest data from DOJ is further evidence that DOJ needs to adopt reasonable website accessibility standards for public accommodations that recognize the real challenges that businesses face in making and keeping their websites accessible. 

Edited by Kristina Launey

By Minh Vu, Kristina Launey and Susan Ryan

Seyfarth Synopsis: The number of ADA Title III lawsuits filed in federal court dropped by 24 percent, the lowest since 2017, and California is no longer the epicenter.

ADA Title III case filings in federal court had been on a sharp upward trajectory since we started compiling these statistics in 2013. That year, there were only 2,722 lawsuits nationwide.  Eight years later, in 2021, there were 11,452 such lawsuits.  In-between, year over year increases ranged from 4% to 63%.  2020 was the only “down” year, with a 1% slight decrease which was likely attributable to pandemic restrictions. 

We now have a second, far more significant, “down” year.  In 2022, Plaintiffs filed 8,694 Title III lawsuits in federal courts, a drop of 2,758 cases, or 24.1%, from 2021.  However, compared to the 2,722 total lawsuit count in 2013, 8,694 lawsuits is still a very significant number of lawsuit filings for a fairly discrete area of the law, and marks an astounding 319% increase from 2013. 

[Total Number of ADA Title III Federal Lawsuits Filed Each Year January 1, 2013 – December 31, 2022: 2013:  2,722; 2014: 4,436 63% increase over 2013; 2015: 4,789 8% increase over 2014; 2016: 6,601 38% increase over 2015; 2017: 7,663 16% increase over 2016; 2018: 10,163 33% increase over 2017; 2019: 11,053 9% increase over 2018; 2020: 10,982 1% decrease from 2019; 2021: 11,452 4% increase over 2020; 2022: 8,694 24% decrease from 2021]

The other big news is that California – the historical leader in ADA Title III litigation – has fallen behind New York.  Plaintiffs filed 3,173 cases in the Empire State compared with 2,519 in the Golden State.  Third on the list was Florida with 1,350.  Rounding out the top five (well behind the leaders) were Texas with 348 and Pennsylvania with 245 lawsuits.  Sixth through tenth places went to: Tennessee (145), Missouri (142), Georgia (136), Colorado (117) and Massachusetts (71).  (Missouri is a newcomer to the top ten.)  Nevada and Illinois dropped out of the top 10.  Illinois came in at number 11 with 63 cases and Nevada plummeted to 4 cases from 130 in 2021.

[Top 10 States with Federal ADA Title III Lawsuits Filed January 1, 2022 – December 31, 2022:  New York: 3,173; California: 2,519; Florida: 1,350; Texas: 348; Pennsylvania: 245; Tennessee: 145; Missouri: 142; Georgia: 136; Colorado: 117; Massachusetts: 71]
[California, New York, Florida ADA Tile III Federal Lawsuits 2013-2022: California: 2013: 995; 2014 1,866; 2015: 1,659; 2016: 2,458; 2017: 2,751; 2018: 4,249; 2019: 4,794; 2020: 5,869; 2021: 5,930; 2022: 2,519; Florida: 2013: 816; 2014: 1,553; 2015: 1,338; 2016:1,663; 2017: 1,488; 2018: 1,941; 2019: 1,885; 2020: 1,208; 2021: 1,054; 2022: 1,350; New York: 2013: 125; 2014: 212; 2015: 366; 2016: 543; 2017: 1,023; 2018: 2,338; 2019: 2,635; 2020: 2,238; 2021: 2,774; 2022: 3,173]

The states with no federal ADA Title III filings in 2022 were Alaska, Iowa, North Dakota, South Dakota and Vermont.

The end of the year was the least busy time for filings – November and December had 521 and 532 filings respectively.  The busiest months?  June (884), May (878) and March (872).  The year started out busy, but dropped precipitously in the second half.

[Total Number of Federal ADA Title III Lawsuits Filed Per Month January 1, 2022 – December 31, 2022: January: 850; February: 828; March: 872; April: 602; May: 878; June: 884; July: 624; August: 732; September: 640; October: 731; November: 521; December: 532]

So what’s behind this decrease in filings?  As we discussed in a post about the mid-year lawsuit numbers, one prolific plaintiff’s firm in Southern California was sued by the Los Angeles and San Francisco District Attorneys which may have slowed down their filings.  That lawsuit was dismissed by the trial court (an appeal has been taken) so that firm may return to its normal pace of filings in 2023.  Several attorneys from that firm also left to form their own firm which will likely result in additional filings in California.  Furthermore, the Ninth Circuit Court of Appeals issued a decision in October 2022 that was unfavorable to plaintiffs’ attorneys which might have had a chilling effect for the rest of the year.  Unfortunately for businesses, a different panel of the Ninth Circuit reversed course in January 2023 when it issued a decision which will likely cause a surge in new filings by serial plaintiff “testers” unless it is rescinded.  The defendant in that case has filed a Petition for Rehearing En Banc which is under consideration.

We should note that federal website accessibility lawsuits accounted for 37% of the 8,694 ADA Title III lawsuits filed in federal court in 2022 – the largest percentage ever.  This is not surprising because serial plaintiffs can visit websites for the purpose of filing a lawsuit without even leaving their house. Lawsuits involving physical barriers typically require a visit to the place of business.

A note on our methodology: Our research involved a painstaking manual process of going through all federal cases that were coded as “ADA-Other,” manually culling out the ADA Title II cases in which the defendants are state and local governments, and categorizing them by state.  The manual process means there is the small possibility of human error.

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Red hospital building graphic

By John W. Egan and Minh N. Vu

Seyfarth Synopsis: Under a new Consent Decree with the DOJ, 24 Arizona eye surgery centers can no longer require patients with mobility disabilities to pay for third-party services to transfer them on and off operating tables, must pay $1M in damages and penalties, and implement comprehensive ADA policies and training.   

We predicted that the DOJ would get more aggressive in enforcing Title III of the ADA during the Biden Administration and we were right. On the heels of a comprehensive Consent Decree with UC Berkeley comes a Consent Decree involving 24 eye surgery centers in Arizona. 

The Consent Decree concluded a lawsuit the DOJ filed in the U.S. District Court of Arizona against the medical practice operating these eye surgery centers, as well as the organization that provided management, infrastructure, and technology services to that practice, as well as other partner practices. The lawsuit alleged that the eye centers refused to provide transfer assistance to patients who needed such assistance to get onto tables for surgery, and instead required them to pay a medical transportation provider to transport them from their homes in gurneys or stretchers and place them on the surgical table.  The DOJ alleged that the defendants had “sometimes” assisted patients, but in 2017 began requiring surgical patients with mobility disabilities who could not bear their own weight to pay for their own assistance.  The agency took the position that this was an unlawful surcharge under the ADA, as well as a violation of the obligation to provide reasonable modifications to normal policies, practices, and procedures, free of charge.

Last week, the DOJ and defendants agreed to a 22-page Consent Decree under which defendants would not only stop requiring patients with mobility disabilities to assume transfer-related costs, but also pay $1 million in damages and penalties, including establishing (and publicizing) a claims fund for aggrieved individuals, and implementing ADA policies and staff training. Here are the key aspects of the Consent Decree:

  1. “Interactive Process” Required For Providing Transfer Assistance.  Defendants and partner practices will engage in an “interactive process” with patients in need of transfer assistance when scheduling surgical appointments, which must include consideration of patient preferences and an individualized assessment of patient needs to determine transfer assistance options.  Defendants will provide and pay for transfer options that may consist of in-house staff assistance, equipment to provide transfer assistance, or third-party transportation services.
  2. Policy Requirements.  Defendants and partner practices will implement a transfer assistance policy that includes, among other things, a process for conducting individualized assessments for transfer assistance requests, acquiring transfer equipment, training of personnel to provide this assistance, and resolution of related patient disputes.  Defendants will also adopt and post a non-discrimination policy on their websites, as well as in employee handbooks and patient materials.  
  3. Staff Training.  Defendants and partner practices will provide annual training on ADA Title III requirements for facility accessibility, interacting with individuals with disabilities, and techniques for safely transferring individuals with disabilities to and from medical equipment, examination tables, and surgical tables.     
  4. Claims Fund, Damages, and Civil Penalty.  Defendants will deposit a sum of $725,000 into an independently-administered claims fund for aggrieved persons and pay for the administration of the fund.  The fund is to be distributed, in its entirety, to patients and prospective patients who, since 2017, were advised that they needed to pay for third-party medical personnel to transport them to surgical appointments.  Additionally, defendants will pay compensatory damages in the amount of $225,000 to specific individuals to be identified by the DOJ, as well as a civil penalty of $50,000 to the United States Treasury.
  5. Settlement Notice.  Defendants will notify patients eligible for compensation by U.S. Mail and e-mail monthly for one year.  Notice will also be provided on defendants’ websites, and this posting must conform to the Web Content Accessibility Guidelines (WCAG), Version 2.0, Level AA.  Additionally, once a month for at least 6 months, defendants will “post, pin, and maintain a tweet” on their Twitter accounts publicizing the Notice, and do the same on their Instagram and Facebook pages.    

*           *           *

The DOJ’s position is generally consistent with its previous guidance entitled Access to Medical Care for Individuals with Mobility Disabilities issued in July 2010.  In response to FAQs addressing accessible services and facilities at doctors’ offices, clinics, and other health care providers, the guidance states that medical personnel must provide “reasonable assistance” to enable individuals with mobility disabilities to receive medical care, which may include providing aid, through trained personnel and potentially with the assistance of lifts or other medical equipment, to facilitate the transfer in and out of mobility devices as necessary to receive treatment and care.  

The DOJ’ s position that the ADA requires health care providers to provide transfer assistance in health care settings raises a thorny question for health care providers with limited staff who neither have the training nor physical strength to provide such assistance.  Does a dental practice with one dentist, a receptionist and a dental assistant need to hire additional staff to provide transfer assistance, for example?  The ADA and its implementing regulations state that public accommodations do not have to modify a policy, practice, or procedure that “fundamentally alters” a public accommodation’s services or facilities, but this defense has not been tested in the context of transfer assistance in the health care setting.  The defendants in this case elected not to test this defense.  Had they done so, the analysis would have been fact intensive and would have required an analysis of their operations, the types of patient assistance they already provide, the nature of the services provided, and other factors. 

Medical providers of all sizes should take note, evaluate their own protocols for handling transfer requests, and consult with knowledgeable counsel as to the ADA compliance considerations that these issues raise.  

Edited by Kristina Launey

By Kristina M. Launey & Minh N. Vu

Seyfarth Synopsis: Plaintiffs filed 3,225 website accessibility lawsuits in federal court in 2022 – a 12% increase over 2021. 

2022 was another record setting year for website accessibility lawsuits filed in federal court.  The total number of lawsuits filed in federal court alleging that plaintiffs with a disability could not use websites because they were not designed to be accessible and/or work with assistive technologies in 2022 was 3,255–360 more than 2021. This 12% increase in the number of lawsuits in 2022 is just slightly lower than the 14% 2021 increase, and matches the 12% increase we saw in 2020.  While these numbers pale by comparison to the explosion of cases we saw from 2017 to 2018 (an increase of 177%), the continued year-over-year increases are still very significant.

[Graph: ADA Title III Website Accessibility Lawsuits in Federal Court 2017-2022: 2017: 814; 2018: 2,258 (177% increase from 2017); 2019: 2,256 (.01% decrease from 2018), 2020: 2,523 (12% increase from 2019); 2021: 2,895 (14% increase from 2020); 2022: 3,255 (12% increase from 2021). *The number of cases that could be identified through a diligent search.]

Especially striking is the fact that, based on our soon-to-be-released overall 2022 ADA Title III lawsuit numbers, these website accessibility lawsuits made up a whopping 37% of the ADA Title III lawsuits filed in 2022, up from roughly 25% in 2021.

The first half of 2022 saw a steady climb from 210 in January to 383 in March, a dip to 164 in April, then spikes at 412 and 448 in May and June. The monthly numbers were more consistent at between 232-273 in July through October, with a dip to 163 in November, before a December finish of 201.

[Graph: Total Number of Website Accessibility Lawsuits Filed by Month (Jan. 2022 – Dec. 2022): Jan. 2021 (210), Feb. 2021 (285), Mar. 2021 (383), Apr. 2021 (164), May 2021 (412), Jun. 2021 (448), Jul. 2021 (232), Aug. 2021 (237), Sep. 2021 (247), Oct. 2021 (273), Nov. 2021 (163), Dec. 2021 (201). *The number of cases that could be identified through a diligent search.]

New York, Florida, and California federal courts continued to be the busiest by far, with Florida regaining the #2 spot and Pennsylvania besting California for the #3 spot.  New York federal courts continued to be bombarded with lawsuits, totaling 2,560 lawsuits in 2022 (continuing an upward trend from 2,074 in 2021, 1,694 in 2020, 1,354 in 2019, and 1,564 in 2018).  Florida was a distant second with 310 lawsuits. California federal courts saw only 126 lawsuits in 2022 (halting the prior upward trend of 359 in 2021, 223 in 2020, 120 in 2019, and 10 in 2018), as shown in the chart below. Pennsylvania passed the 200 mark at 216 in 2022, materially up from 167 lawsuits filed in 2021 and 173 in 2020.  Illinois retained the #5 spot with 19 suits—considerably fewer than its 34 in 2021 and 32 in 2020 and 91 in 2019). Connecticut and Indiana remained in the top 10 with relatively meager numbers at 5 and 2, respectively, and newcomers Massachusetts, North Carolina, and Minnesota beat out Oregon and Wisconsin for the final 3 top 10 spots, with 13, 3, and 1 filings, respectively.

[Graph: Top 10 States for Federal ADA Title III Website Accessibility Lawsuits 2022: NY 2,560, FL 310, PA 216, CA 126, IL 19, MA 13, CT 5, NC 3, IN 2, MN 1. *The number of cases that could be identified through a diligent search.]
[Graph: New York, Florida, Pennsylvania, and California Federal ADA Title III Website Accessibility Lawsuits 2017-2022: NY: 2017 (335), 2018 (1,564), 2019 (1,358), 2020 (1,694), 2021 (2,074), 2022 (2,560); FL: 2017 (325), 2018 (576), 2019 (529), 2020 (302), 2021 (185), 2022 (310); PA: 2017 (58), 2018 (42), 2019 (92), 2020 (173), 2021 (167), 2022 (216); CA: 2017 (9), 2018 (10), 2019 (121), 2020 (223), 2021 (360), 2022 (126).]

If you’re wondering why California has so few website accessibility cases relative to New York, it is likely because New York courts have been more favorable toward plaintiffs, especially when the defendant is an online-only business. Whether online only businesses are covered by the ADA remains unanswered by the Court of Appeals for the Second Circuit; however, with a few exceptions, district court judges in New York that have addressed the issue have found that online only businesses are covered by the ADA. 

In contrast, in California, both federal and state courts of appeals have reached the conclusion that online only businesses are not covered by the ADA, making it much more difficult (if not impossible) for plaintiffs to sue online-only businesses for accessibility violations.  Thus, we predict fewer website accessibility cases in both California state and federal courts in the future.

These numbers do not account for the many demand letters sent out by law firms which never result in lawsuits, as well as lawsuits filed in state courts (mostly in California) which are more difficult to track.  These numbers also do not include lawsuits filed alleging that a mobile app is inaccessible, unless the lawsuit also alleged an inaccessible website.

Will the Title II rulemaking effort slated to start in 2023 make a difference in the 2023 lawsuit count?  Unlikely, as that process can take a significant amount of time, and only would apply to state and local governments under Title II and not private businesses.  While a Title III rulemaking could follow, it is highly unlikely to be completed by the end of this Presidential term.

***

About our methodology:  Our 2022 numbers are based on searches using keywords of data from the Courthouse News Services.  Thus, it is possible that there are some website accessibility cases that were not captured in the searches if their descriptions did not include the keywords.  We then review the thousands of entries manually to remove lawsuits that may be about websites but are not about a website’s accessibility to a user with a disability.  For example, there were a number of lawsuits in 2018-2021 (a very large explosion of such suits in 2021 in California) brought by plaintiffs with mobility disabilities alleging that the reservations websites of hotels did not provide adequate information about the accessibility of hotel facilities.

Seyfarth Synopsis:  We predict another busy year on all fronts as DOJ continues to push its regulatory and enforcement agenda.

Photo showing hand holding a crystal ball

Lawsuit Numbers.  Last January, we predicted that roughly the same number of ADA Title III lawsuits would be filed in federal court in 2022 as in 2021, but halfway through 2022 it became apparent that the numbers would likely be substantially lower.  That downward trend continued, and while our diligent research department is waiting for the dust to settle for December numbers before we announce the total for 2022, we are certain that the final number for the whole year will be substantially less than the number of ADA Title III lawsuits filed in 2021.  We attribute that decrease in part to the fewer number of filings by one Southern California plaintiffs’ firm (the Center for Disability Access), after the Los Angeles and San Francisco District Attorneys filed a civil lawsuit against the firm alleging fraudulent conduct in connection with its lawsuit activities.  The trial court dismissed this lawsuit in August 2022, but the newly-elected San Francisco District Attorney filed an appeal in November 2022, so the matter is far from over.  Stay tuned for our final 2022 ADA Title III federal lawsuit count and more analysis in the coming weeks.

For 2023, we think the number of lawsuits filed in federal court will increase as certain plaintiffs’ firms regroup and new plaintiffs and firms continue to enter the scene.

Physical Barrier Lawsuits.  If the past is any indication, lawsuits concerning physical access barriers at public accommodations facilities will continue to be the most common type of ADA Title III lawsuit.  Hotels, shopping centers, restaurants, and retail stores continue to be the most popular targets, particularly for those serial plaintiffs.  We continue to see lawsuits and demands from some serial plaintiffs whose disabilities are highly questionable.  The most common barriers alleged in these lawsuits pertain to accessible parking, loading zones, public restrooms, sales counters, accessible tables, and aisle width.

Website-Related Lawsuits.  In 2022, we continued to see large numbers of private lawsuits filed in federal and state courts, as well as demand letters, about website accessibility. We also saw the beginnings of renewed efforts by DOJ on the regulatory (discussed here and here) and enforcement front concerning accessible websites. A few notable court decisions issued in 2022, including an unceremonious end to the Winn-Dixie and Domino’s sagas, a few pro-defendant standing, class cert, physical nexus, and anti “serial plaintiff” decisions. What does 2023 have in store?  

Website Accessibility Lawsuit Numbers.  We are still finalizing our count of lawsuits filed last year in federal court concerning websites that are allegedly not accessible to the blind, but a preliminary peek suggests that  over 3250 such lawsuits were filed —  a significant jump from 2021. As in prior years, the vast majority of these lawsuits were filed by only a handful of law firms, overwhelmingly based in New York.  We predict the number of these suits filed in 2023 will be comparable to 2022.  We will be taking a closer look at this increase in another post later this month.

“Tester” Standing.  “Does a self-appointed Americans with Disabilities Act ‘tester’ have Article III standing to challenge a place of public accommodation’s failure to provide disability accessibility information on its website, even if she lacks any intention of visiting that place of public accommodation?” This is the question the defendant hotel has asked the U.S. Supreme Court to decide in Acheson Hotels, LLC v. Laufer.   The First Circuit Court of Appeals in Acheson had answered this question in the affirmative, putting it at odds with other circuits which have reached the opposition conclusion.  The Second and Tenth Circuits, for example, have held that a plaintiff’s encounter with an ADA violation found on a website of a public accommodation does not automatically confer that plaintiff with standing to sue unless there are downstream consequences resulting from the violation.  These courts require a plaintiff to show that the plaintiff wanted to patronize the public accommodation but could not because of the ADA violation on the website.  

While Acheson is a case about the alleged lack of accessibility information on a website (i.e., a deficient content issue), the question presented is also relevant to lawsuits in which plaintiffs with disabilities claim they could not use/navigate a website due to digital barriers.  In the Second and Tenth Circuits, as noted above, these plaintiffs would have to show that they wanted to patronize the public accommodations but could not because of digital barriers on their websites.

The Supreme Court will decide whether it will hear the case in January 2023.

Online-Only Businesses.  Online-only businesses will likely see fewer ADA lawsuits in California in 2023 because in 2022, the California Court of Appeals agreed with the federal Ninth Circuit Court of Appeals that a “public accommodation” under the ADA must be a physical place where goods and services are offered.  (The California Supreme Court declined review of the decision.)  Thus, only websites that have a nexus to a business with a physical location where goods and services are offered to the public are subject to Title III of the ADA.  With both state and federal courts in California now aligned in their interpretation of the ADA on this issue, plaintiffs will face a significant barrier in suing online-only businesses in California for violations of the ADA or Unruh Act.  (In lawsuits based on disability discrimination, plaintiffs can establish violations of the Unruh Act by proving either a violation of Title III of the ADA or intentional discrimination.)

Hotel Reservations Websites.  In late 2020 and early 2021, the aforementioned Center for Disability Access filed over 550 lawsuits in federal court alleging that hotels had failed to disclose sufficient information about the accessibility of their hotels as required by ADA regulations.  After suffering over 90 defeats in district court and then in the Ninth Circuit Court of Appeals, the firm voluntarily dismissed nearly all of these suits in 2022.  In its decision, the Ninth Circuit endorsed the interpretation of the regulation that had been implemented by lodging industry leaders back in 2012 when the regulation became effective. While we saw a very small handful of these cases filed in 2022, new lawsuits of this type are unlikely because most U.S. hotels comply with the Ninth Circuit’s direction.

U.S. Department of Justice Enforcement Actions. Last January we predicted the DOJ would be busy enforcing the ADA in 2022, and we were right.  The DOJ filed two enforcement lawsuits under Title III:  One concerning architectural barriers at Wrigley Field in Chicago and another against a number of eyecare facilities for refusing to provide transfer assistance to patients who use wheelchairs.  The DOJ also entered into at least fifteen settlement agreements or consent decrees in 2022 resolving many different types of alleged ADA Title III violations. These resolutions included a multi-million dollar settlement with a rideshare app company to resolve claims that the company failed to waive wait time charges for passengers with disabilities, a settlement with a Rhode Island university regarding its student medical leave policies, a settlement with a New York university regarding accessible student housing, and settlements with three retailers concerning the accessibility of their vaccine appointment scheduling websites.  The DOJ also filed one Statement of Interest in which it maintained that plasma donation centers are places of public accommodation covered by Title III of the ADA.

The DOJ was equally busy enforcing Title II of the ADA, which imposes obligations similar to Title III of the ADA on state and local governments.  One of the most notable ADA Title II resolutions was the DOJ’s comprehensive agreement with UC Berkeley about its website and other online content.  Other universities, both public and private, should take note.

All of these enforcement activities are set out on the DOJ’s website.

Regulatory Developments.  We will see continued rulemaking activity by DOJ and the U.S Architectural and Transportation Barriers Compliance Board (Access Board) on website accessibility, medical diagnostic equipment, and kiosks in 2023.

Websites: As we previously reported, the DOJ announced in July 2022 that it would be issuing a Notice of Proposed Rulemaking (NPRM) (essentially, a draft regulation) in April 2023 setting forth the accessibility requirements for state and local government websites under Title II.  This has just been pushed back to May 2023.  Given its dismal track record of issuing any regulations on the subject of accessible website for the past decade (including many missed deadlines), it will be interesting to see if DOJ actually meets this revised target date.  If DOJ does issue proposed regulations for state and local government websites under Title II of the ADA, it is likely the agency will later using those as a framework for regulations covering public accommodations under Title III of the ADA.  

Medical Diagnostic Equipment: DOJ has also announced that it will be issuing a Notice of Proposed Rulemaking for Medical Diagnostic Equipment in April of this year.  This rule, if finalized, would make the Standards for Medical Diagnostic Equipment (MDE) previously issued by the Access Board into binding legal standards for health care providers covered under Title III of the ADA.  Health care providers should be on the lookout for this NPRM and be ready to comment on the proposed rule. 

Self-Service Kiosks: Meanwhile, the Access Board will be busy this year reading public comments filed in response to its Advance Notice of Proposed Rulemaking (ANPRM) on the accessibility of self-service kiosks.  It recently announced that a proposed rule will issue by November 2023.  As we explained in a prior post, the Access Board is responsible for issuing technical standards which are not legally binding on public accommodations until the DOJ incorporates them into its regulations through a separate rulemaking process.  Thus, the Access Board’s ANPRM, and subsequent proposed rule, for self-service kiosks is the first step of a lengthy regulatory process.

***

2023 will likely be another busy year in the ADA Title III space.  We will be here to provide our insight into the latest developments.  Happy 2023 from The Seyfarth ADA Title III Team!

Edited by Kristina Launey

Accessibility computer icon button
Accessibility computer icon button

By Minh N. Vu

Seyfarth Synopsis:  UC Berkeley and the DOJ resolve an 8-year investigation with a comprehensive Consent Decree that requires UC Berkeley to make virtually all the content on its online platforms accessible to people with disabilities within three years and adopt comprehensive policies and procedures to ensure accessible online content.

After eight years, the U.S. Department of Justice (DOJ) finally concluded its investigation into UC Berkley’s online content-related accessibility policies and practices with a 16-page Consent Decree that is awaiting approval by the federal court in the Northern District of California.  The investigation started in 2014 when the National Association of the Deaf (NAD) complained to the DOJ that free online courses, conferences, lectures, performances and other programming in audio or video formats offered by UC Berkeley did not have closed captioning.  NAD alleged that the failure to provide closed captioning violated Title II of the ADA which requires state entities to provide equal access to their services, programs, and activities.

The DOJ’s investigation expanded beyond access for people with hearing-related disabilities. The Consent Decree reflects this scope by requiring access to UC Berkley’s online content for people with all types of disabilities.  Although the Consent Decree is based on UC Berkeley’s obligations under Title II the ADA, it nonetheless provides a useful framework for private universities seeking to ensure their own website accessibility policies and procedures comply with Title III of the ADA.  We note, however, that a good compliance program does not have to be exactly like the one outlined in the UC Berkeley Consent Decree.

There is a lot to unpack in this Consent Decree, but here are some of the most significant takeaways:

  1. UC Berkeley must report to DOJ on the state of its compliance with the Consent Decree every six months during the Consent Decree’s 42-month long term.
  2. The Consent Decree covers the activities of the “Berkeley Entities”, defined as “the central administration of UC Berkeley and any UC Berkeley school, college, department, program, or academic unit.”  The Consent Decree specifically excludes individual students and student groups from coverage.
  3. The UC Berkeley platforms covered by the Consent Decree are:  (a) UC Berkeley’s Massive Online Open Course (“MOOC”) platform referred to as UC BerkeleyX; (b)  http://www.berkeley.edu/ (and any subdomain of www.berkeley.edu that may be accessed by the general public and that is controlled by a Berkeley Entity); (c) any podcast channel or account controlled by a Berkeley Entity that is hosted on a third-party platform (e.g. Apple Podcasts and Spotify); and (d) any other audio or video channel or account controlled by a Berkeley Entity that is hosted on a third-party platform (e.g. YouTube).
  4. UC BerkeleyX Platform.  Within nine (9) months of the date the Court approves the Consent Decree, UC Berkeley must ensure that all online content, including audio and video content, on this platform conforms to WCAG 2.0, Level AA. 
  5. Main Website.  Within eighteen (18) months of the date the Court approves the Consent Decree, UC Berkeley must ensure that all content on http://www.berkeley.edu/ and subdomains conforms to WCAG 2.0, Level AA, except for audio and video content which is subject to a different timeline. 
  6. New Audio and Video Content.  Within nine (9) months of the date the Court approves the Consent Decree, UC Berkeley will ensure that all audio and video content on the following platforms created or made publicly available after the date the Court approves the Consent Decree conforms to WCAG 2.0 Level AA:  http://www.berkeley.edu/ and subdomains, any podcast channel or account controlled by a Berkeley Entity that is hosted on a third-party platform (e.g. Apple Podcasts and Spotify), and any other audio or video channel or account controlled by a Berkeley Entity that is hosted on a third-party platform, such as YouTube.
  7. Existing Audio and Video Content: Within thirty-six (36) months of the date the Court approves the Consent Decree, UC Berkeley will ensure that:
    1. all audio and video Content on http://www.berkeley.edu/ and subdomains that was made publicly available prior to the Effective Date conforms to WCAG 2.0, Level AA;
    2. all audio and video content on UC Berkeley’s podcast platforms (e.g. Apple Podcasts, Spotify) that was made publicly available prior to the Effective Date conforms to WCAG 2.0, Level AA; and
    3. all other audio and video content on any other audio or video channel or account controlled by a Berkeley Entity that is hosted on a third-party platform (e.g. YouTube) that either (1) was created or made publicly available within the two (2) years preceding the Effective Date; or (2) has at least 750 views as of the effective date, conforms to WCAG 2.0, Level AA.

The Consent Decree also requires UC Berkeley to adopt very detailed web accessibility procedures, appoint a web accessibility coordinator, create a very specific process and notice to the public for receiving and promptly responding to feedback and requests from users concerning web accessibility, and provide website accessibility training to individuals whose duties include uploading and managing online content on a UC Berkeley platform on behalf of a Berkeley Entity.  Furthermore, the Consent Decree requires UC Berkeley to not only continue its own internal accessibility testing of its online content, but also hire an external auditor to test the various covered platforms 9, 21, and 33 months into the Consent Decree. 

There is nothing particularly surprising about these comprehensive terms, other than the fact that the DOJ only required conformance with WCAG 2.0 AA, as opposed to the more demanding  WCAG 2.1 AA.  DOJ has required compliance with WCAG 2.1 AA in recent website accessibility agreements, even though DOJ itself is only required by law to comply with WCAG 2.0 AA for its own online content.  The longer timeline to bring existing audio and video content into compliance with accessibility standards is also noteworthy.  DOJ apparently recognized that requiring the addition of closed captioning and audio description to the many thousands of existing videos and audio files on UC Berkeley’s platforms could be cost-prohibitive and may result in their permanent removal. 

The Consent Decree is an example of the Biden’s Administration’s commitment to website accessibility enforcement, even if it seems to be in no hurry to issue regulations on this topic.

Edited by Kristina Launey

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By Minh N. Vu

Seyfarth synopsis:  Ninth Circuit judges are getting tougher on lawyers who represent serial plaintiffs by reducing their fees and threatening sanctions for citing outdated law.

In 2021, plaintiffs filed 11,452 federal lawsuits alleging violations of Title III of the Americans with Disabilities Act (ADA). More than half (5,930) of those were filed in California.  While most judges in California have not seemed particularly concerned that the vast majority of these cases are filed by repeat plaintiffs, the patience of some judges is wearing thin. 

In a recent decision concerning fees awarded to a prevailing serial plaintiff, the Ninth Circuit made rather pointed comments about serial plaintiffs and their attorneys.  Quoting from a law review article advocating for lawsuit reform, the Court said:  “The ADA satisfied the need for meaningful legislation for the protection of individuals with disabilities; however, one of the unforeseen consequences of this statute was the widespread abuse taking form due to the actions of serial ADA plaintiffs.”  The Ninth Circuit then devoted several pages of its opinion to how these “get-money quick” lawsuits work and lamented that “the number of ADA cases in the Central District of California has ballooned from 3 percent of its civil docket to roughly 20 percent in recent years.”  The Court noted that “ [a] hallmark of abusive ADA litigation is the use of form complaints containing a multitude of boilerplate allegations of varying merit.” 

The Ninth Circuit Court concluded that in the federal trial court, District Judge Wu’s application of a blended $300 rate for all attorneys working on a case and a 65% reduction of all fees was warranted due to the routine nature of the work and the defendant’s lack of opposition on the merits.  With these reductions, the plaintiff’s firm received $10,000 in fees instead of the $34,000 it demanded for work through summary judgment.

The Court rejected plaintiff’s argument that the district court had failed to adequately explain the basis for the blended rate and downward multiplier.  It held that the district court “was not required to write the equivalent of a law review article justifying its fee award; it only had to provide a ‘concise but clear explanation” of the grounds for its decision.’”  It found the district court did that, finding that the ADA serial litigation is not complex and did not require partner level work, let alone two partners billing at $500 per hour. 

This decision should be useful for businesses fighting fee petitions filed by serial plaintiffs in routine cases.

In another recent decision, District Judge Otis Wright of the Central District of California made clear his intolerance for sloppy work by plaintiff’s attorneys in ADA Title III cases.  Judge Wright denied the plaintiff’s motion for a default judgment against a liquor store because, among other things, the plaintiff had failed to establish that the alleged barriers had denied her access to the public accommodation, or that the removal of the barriers was readily achievable.  On the latter issue, the court observed that plaintiff had not met her initial burden “to plausibly show how the cost of removing the architectural barrier at issue does not exceed the benefits under the circumstances,” as required by controlling Ninth Circuit precedent.  Indeed, the court concluded that the plaintiff had ignored this precedent altogether.  The court ordered plaintiff to show cause as to “why a sanction in the amount of up to $8,001 should not be imposed on counsel for repeatedly citing to law that was abrogated by the Ninth’s Circuit’s decision in Lopez v. Catalina Channel Express.” 

These decisions show that courts share businesses’ frustration with ADA complaints that do not contain specific factual allegations, seek unreasonable fees, or fail to heed controlling law.

Edited by Kristina Launey

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By Minh N. Vu and John W. Egan

Seyfarth Synopsis: The U.S. Access Board published an ANPRM on September 21, 2022 requesting public comment on nine questions as it prepares draft regulations addressing the accessibility of self-service kiosks.

As previewed in the Spring 2022 Unified Agenda of Regulatory and Deregulatory Actions (the “Agenda”) (as we previously covered), the U.S. Access Board recently issued an Advanced Notice of Proposed Rulemaking (“ANPRM”) for Fixed Self-Service Transaction Machines (“SSTMs”) (a.k.a. self-service kiosks).  The U.S. Access Board—the federal agency that develops accessibility standards that become regulations under ADA Title III once adopted by the DOJ—is requesting public comment on nine questions (listed below) as it works on proposed accessibility requirements for self-service kiosks.

Self-service kiosks typically utilize touchscreens and visual displays which allow customers to access services or perform functions themselves that are traditionally provided by employees of the business.  These devices present financial and operational incentives to businesses, allowing them to have fewer employees serving customers, offer a largely contact-free customer experience, and give customers the option to skip the line for in-person service.  However, these kiosks can be impossible to use by people who are blind if there is no audio output for visual information, or controls that can be perceived without sight.  Persons who use scooters and wheelchairs can also have difficulty using self-service kiosks if the controls are out of reach from their seated position, the screen is too high, or there is no clear floor space in front of the machine.

Self-service kiosks have sprouted up everywhere in recent years.  They are used to order food, buy tickets of all kinds, pay for parking, check-in to a hotel or healthcare provider, get a rental car, and rent movies.  But unlike ATMs and fare machines that long predate them, self-service kiosks do not have specific accessibility requirements set forth in the ADA Standards for Accessible Design (“2010 Standards”) which apply to public accommodations and commercial facilities.  The absence of technical standards does not mean that there are no legal requirements, however.  The U.S. Department of Justice (“DOJ”) made clear in a recent Statement of Interest (“SOI”) that public accommodations have a duty to ensure effective communication for the goods and/or services offered through self-service kiosks.  This can be done by providing an accessible kiosk that people with disabilities can use independently, or with employee assistance that provides an equivalent experience.  In the SOI, the DOJ found that providing employee assistance at a self-service check-in kiosk was not sufficient where the process resulted in placing blind patients with appointments at the end of the line for people with no appointments.

The ANPRM notes that the accessibility of similar equipment is already covered in non-public accommodation contexts.  For example, the design and functionality of self-service kiosks in U.S. post offices must comply with accessibility requirements that apply to federal agencies employing such devices under Section 508 of the Rehabilitation Act of 1973 (“Section 508”).  Similarly, regulations under the federal Air Carrier Access Act already cover the accessibility of airport kiosks that allow customers to independently print boarding passes, check luggage, receive essential information about their flights, change seat locations, and pay various fees.  According to the ANPRM, the Access Board is evaluating whether, and to what extent, similar requirements should be issued for public accommodations.  Under the ADA, the Access Board is responsible for drafting the technical standards but they do not become binding on public accommodations until the DOJ incorporates them into its own ADA regulations.  The DOJ will not have much leeway to change the technical standards at that time, but it will be solely responsible for determining when the requirements will become effective and similar implementation issues. 

Included in the ANPRM is a matrix prepared by the Access Board that compares the current accessibility requirements for (1) ATM and Fare Machines under the ADA, (2) applicable hardware under Section 508, and (3) airport kiosks under the Air Carrier Access Act.  There are a number of commonalities among the requirements, which may provide insight on how the Access Board will approach these issues.  They include:

  • The usability of operable parts for individuals with disabilities;
  • Speech output requirements, privacy considerations (i.e. headset/audio jack), and user ability to change volume, interrupt and/or repeat audible content;
  • Numeric keys and other controls that are discernable by touch/tactile sense, and their format and organization;
  • Display screen requirements, character/font size, and visibility;
  • Braille instructions on the devices; and
  • Clear or unobstructed floor space or area in front of the devices.

The ANPRM specifically requests public comment on the following questions:

“Question 1. . . . Are there capabilities, functions, or other objective criteria that should define the types of devices covered as SSTMs or self-service kiosks?”

“Question 2. Are there other types of electronic devices providing unattended interaction that should be addressed by this rulemaking? If so, what are they?”

“Question 3. Are there types of self-service electronic devices that should not be covered by this rulemaking? If so, why not?”

“Question 4. Should the Board’s rule require all fixed or built-in SSTMs and self-service kiosks in each location to be accessible? If not, why, and what should the number be? Are there some facilities or locations that should have a higher number of accessible devices than others?”

“Question 5. The Board seeks comment on this planned approach [of incorporating more recent, Section 508 standards for kiosks] for the proposed supplementary guidelines for SSTMs and self-service kiosks outlined in this ANPRM.”

“Question 6. Should requirements for ATMs and fare machines in the current ADA and ABA Accessibility Guidelines be updated as part of this rulemaking to address additional features covered in the Revised 508 Standards and the DOT rule pertinent to the accessibility of ATMs and fare machines?”

“Question 7. The Board seeks comment from users and manufacturers of self-service transaction machines and self-service kiosks on their experiences in using or designing accessible machines and the benefits and costs associated with the proposed requirements.”

“Question 8. The Board seeks comments on the numbers of small entities that may be affected by this rulemaking and the potential economic impact to these entities; these include small businesses, small non-profits and governmental entities with a population of fewer than 50,000. The Board also seeks feedback on any regulatory alternatives that may minimize significant economic impacts on small entities.”

“Question 9. Should SSTM and self-service kiosk which accept credit and debit cards be required to accept contactless payment systems?”

Because it is very unlikely the DOJ will change the technical standards that issue from the Access Board in its own rulemaking process, self-service kiosk manufacturers and businesses that currently employ these technologies (or are considering employing them in the future) such as retailers, restaurants, banks, lodging facilities, institutions of higher learning, and other covered entities, should submit public comments by the deadline of November 21, 2022.

Edited by Kristina M. Launey

By Minh N. Vu

Seyfarth Synopsis:  The California Court of Appeals decision that put an end to lawsuits against online only businesses in California and called out DOJ and Congress for inaction stays put after California Supreme Court denied plaintiff’s review request.

Update: On November 9, 2022, the California Supreme Court denied plaintiff’s request that the Court review the California Court of Appeals precedent setting, 35-page opinion, that closed the door on California lawsuits brought against online only businesses, agreeing with the U.S. Court of Appeals for the Ninth Circuit that websites are not “public accommodations” covered by Title III of the ADA.  It also held that creating and maintaining an inaccessible website cannot constitute intentional discrimination under the Unruh Act.

The blind plaintiff in Martinez v. Cot’n Wash, Inc. alleged that the online only retailer had engaged in disability discrimination in violation of California’s Unruh Act by having a website that he could not use with his screen reader software.  There are two ways to establish a violation of the Unruh Act: prove (1) intentional discrimination; or (2) a violation of Title III of the ADA.  Martinez claimed that he had alleged sufficient facts to establish a violation under both theories.

Martinez struck out on both counts.

With regard to the intentional discrimination theory, Martinez argued that the retailer’s failure to take action in response to his demand letters complaining about the website’s accessibility barriers constituted intentional discrimination.  The Court disagreed, reiterating that “[a] claimant may not “rel[y] on the effects of a facially neutral policy on a particular group… to infer… a discriminatory intent.” The Court also said that “a failure to address known discriminatory effects of a policy” is not sufficient to establish intentional discrimination under the Unruh Act.

As for Martinez’s claim that the online-only retailer had violated Title III of the ADA, the Court opined that “even after examining the language of the statute and considering maxims of statutory interpretation and legislative history pre-dating passage of the law, we remain without a clear answer as to whether a purely digital retail website can constitute a ‘place of public accommodation’ in the context of Title III.”  The Court thus turned to what it called “the third and final step in the interpretive process.”   The Court explained:

In this phase of the process, we apply reason, practicality, and common sense to the language at hand.  Where an uncertainty exists, we must consider the consequences that will flow from a particular interpretation.  Based on such an analysis, we ultimately find dispositive that adopting Martinez’s proposed interpretation of “place of public accommodation” would mean embracing a view that Congress (through its inaction since the enactment of the ADA) and the DOJ (through its unwillingness to draft regulations) have both tacitly rejected.

The Court observed that since 2010, Congress and the DOJ recognized the need to address through legislation or regulations whether and under what circumstances a website constitutes a “place of public accommodation” but chose to do nothing, suggesting that neither the DOJ nor Congress “officially endorses” the coverage of websites by the ADA.  The Court stated that:

Congress’s failure to provide clarification in the face of known confusion—and, to a lesser extent, the DOJ’s similar failure—is not a reason for us to step in and provide that clarification.  To the contrary, it is a reason for us not to do so.  This is particularly true, given that providing clarification in the manner Martinez requests could have sweeping effects far beyond this case, none of which has been the subject of legislative fact-finding.

In short, the Court said it was not its place to “adopt an interpretation of the statute that is not dictated by its language, especially in the face of… legislative and agency inaction.”

Martinez will likely file a petition for review by the California Supreme Court, but that court’s review is entirely discretionary and less than five percent of petitions are granted.  Thus, this decision will likely stand as binding precedent on all California trial courts.

The significance of this decision for online only businesses cannot be overstated.  It means that plaintiffs cannot successfully sue them for having inaccessible websites in California state or federal courts.  As discussed, the U.S. Court of Appeals for the Ninth Circuit has long held that a website is not a place of public accommodation covered by Title III of the ADA.  This decision will certainly reduce the number of lawsuits brought in California state and federal courts by plaintiffs enticed by under the Unruh Act’s $4,000 minimum statutory damages provision.

The data underscores the importance of this decision.  Relatively few website accessibility lawsuits have been filed in California federal court – most likely because of the Ninth’s Circuit’s position on online only businesses.  California plaintiffs have favored state court where a few judges, until now, were willing to allow suits against online only businesses and even found that having an inaccessible website could constitute intentional discrimination under Unruh.

Businesses must keep in mind, however, that this decision has little impact on claims relating to websites that have a nexus to a physical facility where goods and services are offered to the public.  Such websites would likely be considered a benefit or service of a brick and mortar place of public accommodation, and be covered by Title III’s non-discrimination mandate.

MARCH 2023 UPDATE:  The Martinez decision has already had an impact on website accessibility lawsuits pending in California Superior Court against online only businesses.  For example, in Licea v. PTC Therapeutics, the court dismissed the lawsuit based on Martinez.  The court held that the defendant pharmaceutical company is not a public accommodation covered under Title III of the ADA because it has no physical location where goods and services are provided.  Accordingly, the plaintiff could not establish an Unruh Act violation by proving a violation of the ADA. The court also concluded, relying again on Martinez, that having an inaccessible website is not intentional discrimination under the Unruh Act, even where the defendant has been advised of accessibility barriers on the website.

Edited by Kristina M. Launey