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By Minh N. Vu and Kristina M. Launey

Seyfarth Synopsis: Congress Members recently renewed their efforts to take legislative action and urge the DOJ take regulatory action regarding physical and website accessibility, respectively.

You have to give them credit for trying.  A group of Senators recently sent Attorney General Barr a letter asking the Department of Justice (DOJ) take action to provide some certainty and relief to businesses regarding website accessibility, and a group of Representatives introduced a bill to provide some relief to businesses from physical accessibility lawsuits.  While we appreciate their efforts, we are skeptical either will gain any traction.

On the topic of website accessibility, Senators Grassley, Tillis, Cornyn, Crapo, Ernst, Blackburn, and Rounds sent a letter dated July 30, 2019 to Attorney General Barr following up on the letter a larger group of Representatives wrote to Attorney General Sessions in 2018.  The letter sought an update and urged “further action to promote greater clarity, compliance, and accessibility” in the area of website accessibility.

The 2019 letter noted Attorney General Sessions’ October 2018 response reiterated the DOJ’s position that the ADA applies to public accommodations’ websites and that public accommodations have flexibility in how they will comply with the ADA’s requirements.  But, the response conspicuously lacked any indication that the DOJ would provide guidance to businesses on what it means to provide an accessible website.  The Senators’ 2019 letter emphasized the need for DOJ guidance in this area given the increasing litigation and conflicting judicial opinions on whether the ADA applies to websites at all: “Regulation through litigation should not be the standard.”

The 2019 letter closed by requesting information by August 30, 2019 – regarding what specific steps the DOJ has taken to resolve this issue in the past year, and what it intends to do; whether the DOJ considers the Web Content Accessibility Guidelines (WCAG) 2.0 an acceptable compliance standard for Title III of the ADA; whether a business’ resources should be taken into consideration; and whether the DOJ has considered intervening in any pending litigation to provide clarity or to push back against any identified litigation abuses.

Also on July 30, 2019, Representatives Calvert, Cook, Hunter, Walker, Grothman, Turner, Rice, and Wilson introduced H.R. 4099, the latest effort to provide some relief to businesses from physical accessibility lawsuits – with a bit of web accessibility thrown in.  The bill – dubbed the “ADA Compliance for Customer Entry to Stores and Services Act”, or “ACCESS Act” – would:

(1) Require the DOJ to develop an education program for state and local governments and property owners on “effective and efficient strategies” for promoting accessibility;

(2) Prohibit a lawsuit be filed alleging a violation of the ADA without prior notice be given to the owner or operator of the business and 60 days to provide a plan to cure the violation and 60 days after to make substantial progress on that cure.  The notice must specify in detail how the individual was actually denied access to a public accommodation, whether a request for assistance to remove the barrier was made, and whether the barrier was permanent or temporary.

(3) Require development of a model alternative dispute resolution program, apparently similar in concept to the U.S. District Court for the Northern District of California’s General Order 56.

(4) Require the Attorney General to complete a study within one year of whether the WCAG 2.0 standards, “accessibility widgets, or providing a telephone number through which members of the public can obtain the same information and services as they would on a website would all provide reasonable accommodation for individuals with disabilities.”

The first three provisions are very similar to those in the ADA Education and Reform Act of 2017 (HR 620) which passed the House but gained no traction in the Senate.  The fourth provision concerning website accessibility is new.  Requiring Department of Justice to conduct a study on alternative methods of providing access to information and functionality on a website an interesting long-term academic exercise which might someday provide some fodder for the defense bar, but it will do nothing to provide any relief to businesses facing the barrage of website accessibility claims now and in the foreseeable future.  Considering the fate of HR 620, the ACCESS Act is unlikely to become  law (though some state efforts, such as in Ohio, have succeeded).  We will monitor the bill as well as the correspondence between Congress and keep you updated.

Seyfarth Synopsis: Responding to the surge of website accessibility lawsuits filed under Title III of the ADA, 103 members of Congress from both parties sent a letter to Attorney General Sessions urging action to stem the tide of website accessibility lawsuits.

Just yesterday, a bi-partisan assembly of 103 members of the House of Representatives, led by Congressmen, Ted Budd (R-NC) and J. Luis Correa (D-CA), wrote a letter to Attorney General Jeff Sessions, urging the U.S. Department of Justice (“DOJ”) to “state publicly that private legal action under the ADA with respect to websites is unfair and violates basic due process principles in the absence of clear statutory authority and issuance by the department of a final rule establishing website accessibility standards.” The letter urges the Department to “provide guidance and clarity with regard to website accessibility under the … ADA.”

The congressional support for this letter arises on the heels of a recent surge in website accessibility lawsuits against public accommodations in every sector alleging that websites that are not accessible by people with disabilities violate the ADA. In 2017, a number of courts rejected defendants’ attempts to obtain early dismissals of these cases and supermarket chain, Winn Dixie, lost the first trial in a website accessibility case. These decisions opened the proverbial floodgates and resulted in at least 814 federal lawsuits in 2017 about allegedly inaccessible websites, including a number of putative class actions. The federal lawsuit numbers for 2018 will likely be substantially higher as our tracking shows that there were 349 suits just in January and February of 2018. Despite the monumental increase in litigation and urgent need for clear guidance, the DOJ abandoned its rulemaking on website accessibility standards for public accommodations websites at the end of 2017, seven years after it said it would issue regulations on this issue.

With the number of website accessibility lawsuits on the rise and courts allowing most of these cases to move forward, members of Congress are feeling pressure from the business community to take action against this cottage industry of lawsuits. Indeed, as expressed in the letter:

[B]usinesses of every shape and size throughout the country are being threatened with legal action by private plaintiffs for unsubstantiated violations of the ADA. This problem is expanding at a rapid rate since the Internet allows such actions to be filed from anywhere, and there are no restrictions or limitations on making such complaints. The absence of statutory, regulatory, or other controlling language on this issue only fuels the proliferation of these suits since there are no requirements these complaints have to meet. In fact, in most cases these suits are filed for the purpose of reaching a financial settlement and little or nothing to improve website accessibility.

We support the original spirit and intent of the ADA. However, unresolved questions about the applicability of the ADA to websites as well as the [DOJ’s] abandonment of the effort to write a rule defining website accessibility standards, has created a liability hazard that directly affects businesses in our states and the customers they serve.

Although the members of Congress who endorsed the letter acknowledged Congress’ own responsibility to provide legal clarity through the legislative process, they implored the DOJ to provide “even basic direction on compliance” and to “help resolve this situation as soon as possible.”

It is unclear whether this letter will spurn any prompt action from the DOJ. Given the current Administration’s aversion to increased regulation, it is unlikely that the DOJ will re-start its website accessibility rulemaking any time soon. And unlike the Obama Administration which weighed in on the private lawsuits brought against Winn-Dixie, M.I.T. and Harvard University, the Trump Administration declined to file a brief in a website accessibility case last year despite the district court’s invitation. Thus, we will have to wait and see how Attorney General Sessions and the DOJ react to the congressional letter. In the meantime, we expect website accessibility lawsuits will continue to be filed at a record pace throughout the United States.

Website in Development
A laptop showing a website in development.

John W. Egan, Julia N. Sarnoff and Minh N. Vu

Seyfarth Synopsis: The W3C recently adopted Version 2.2 of the Web Content Accessibility Guidelines (WCAG) which adds nine new success criteria for digital accessibility.

On October 5, 2023, the Worldwide Web Consortium (W3C) issued Version 2.2 of the Web Content Accessibility Guidelines (WCAG).  Version 2.2 is the third iteration of the WCAG since 2008.  Version 2.0 (issued on December 11, 2008) consists of 61 “success criteria” for digital accessibility.  Version 2.1 (issued on June 5, 2018) added 17 success criteria to those that made up Version 2.0, for a total of 78.  Version 2.2 adds 9 new success criteria and removes one (i.e., Success Criterion 4.1.1 Parsing, Level A), for a total of 86 success criteria.  Thus far most experts agree that covered entities should focus on the success criteria designated as Levels A and AA, but that only reduces the number of success criteria to 55 in WCAG 2.2. 

The addition of even more success criteria to the W3C’s website accessibility guidelines is likely to cause frustration and confusion for businesses and state and local governments presently struggling to meet one of the earlier versions of WCAG.  A recent report to Congress found that many federal agencies required to comply with Levels A and AA success criteria of WCAG 2.0 (“WCAG 2.0 AA”) are not in conformance.  In fact, WCAG 2.0 AA is the only version of WCAG mandated by any federal law.  Those federal laws specify that federal agencies, providers of health care programs and services that receive federal financial assistance, and airline carriers must have websites that conform to WCAG 2.0 AA.  And in recent proposed regulations for state and local government websites, the Department of Justice (DOJ) proposed to adopt Levels A and AA success criteria of WCAG Version 2.1 (“WCAG 2.1 AA”) as the accessibility standard. 

What are these nine new success criteria?

  1. 2.4.11 Focus Not Obscured – Minimum (Level AA): This criterion benefits individuals with mobility or other disabilities who rely on a keyboard interface and need to be able to see on the screen where the keyboard is “focused”.  It requires that the focus indicator on a button or link (usually indicated by an outline around the button/link) not be entirely hidden by a pop-up or any other floating content on the page.
  2. 2.4.12 Focus Not Obscured – Enhanced (Level AAA):  This criterion is similar to its AA counterpart (2.4.11 above), except that the “enhanced” Level AAA version would require that the focus indicator on an interactive control be wholly unobscured by any pop-up or other floating content on the page.
  3. 2.4.13 Focus Appearance (Level AAA): This criterion, designed for individuals with disabilities who rely on a keyboard interface (including those with low vision), is a technical standard for what the focus indicator outline should look like. 
  4. 2.5.7 Dragging Movements (Level AA):  This criterion benefits individuals with manual dexterity disabilities.  It requires that for any action that involves dragging movements, the website must also provide a simpler alternative way to complete that action that does not require dragging movements.  There is an exception, however, for dragging functionality that is essential to a website.
  5. 2.5.8 Target Size – Minimum (Level AA):  This criterion benefits individuals with motor disabilities and provides a general minimum size for clickable elements on a webpage, such as links and buttons.
  6. 3.2.6 Consistent Help (Level A):  This criterion benefits screen reader users (who are typically blind or have other vision-related disabilities).  It requires that any help functionality provided on a website be located in the same place across all pages of the site, so that it is easy to find. 
  7. 3.3.7 Redundant Entry (Level A):  This criterion, designed to benefit those with cognitive or memory related disabilities, requires that any information previously entered by the user on a website that is required to be entered again in the same process be either (a) auto-populated on the website or (b) available for the user to select again.   
  8. 3.3.8 Accessible Authentication (Minimum) (Level AA):  This criterion benefits individuals with cognitive disabilities and prohibits websites from requiring users to complete cognitive function tests during the authentication process, subject to four exceptions. 
  9. 3.3.9 Accessible Authentication (Enhanced) (Level AAA):  This criterion is the same as its AA counterpart (3.3.8 above), except that it removes two out of the four exceptions to the rule against requiring cognitive function tests (no exceptions for “object recognition” and “personal content”).

Should businesses meet these new success criteria?  We think businesses should prioritize getting to and maintaining substantial conformance with WCAG 2.1 AA because WCAG 2.1 AA was just proposed for state and local government websites by the DOJ a few months ago, and all federal agency websites are only required by law to meet the less demanding WCAG 2.0 AA.  Plus, the W3C already has a working draft of WCAG 3.0 which the W3C describes as an entirely “new model” with “many differences” from WCAG 2.  In short, WCAG 2.2 could be outdated in a few years. 

The W3C’s changes to its website accessibility guidelines shines the light on the need for the DOJ to exercise its own judgment in determining which success criteria should be adopted as legal requirements applying to the websites of private businesses and state and local governments.  The process of making and maintaining an accessible website requires a substantial investment of both money and human capital.  Businesses and state/local governments should not have to deal with a moving target, especially one set by an entity that is not accountable to Congress or any Executive agency and has no statutory authority to issue any legal standards under the ADA. 

U.S. Supreme Court Building
United States Supreme Court Building

By Minh N. Vu & John W. Egan

Seyfarth Synopsis:  SCOTUS’s refusal to clarify standing requirements for “tester” plaintiffs in ADA Title III lawsuits means it’s business as usual for the plaintiffs’ bar. 

Yesterday, SCOTUS issued its decision in Acheson v. Laufer which – to the disappointment of private businesses and the defense bar – leaves unanswered the question of whether individuals who visit websites and businesses for no other reason than to evaluate their compliance with Title III of the ADA (i.e., so-called “testers”) have standing to bring a lawsuit.  While SCOTUS said it had the discretion to decide this very important question of tester standing, on which the U.S. Courts of Appeals are divided, it declined to do so because Laufer mooted the case by dismissing it at the District Court (along with all her other pending ADA Title III cases) after SCOTUS said it would review the case.  At oral argument two months ago, Defendant Acheson had urged SCOTUS to decide whether Laufer had standing nonetheless, pointing out that Laufer should not be permitted to evade a potentially unfavorable decision (and manipulate the Court’s jurisdiction in the process), by voluntarily dismissing her case with prejudice. 

Justice Barrett authored a brief opinion for the majority in which Chief Justice Roberts, and Justices Alito, Sotomayor, Kagan, Gorsuch, and Kavanaugh joined.  That opinion credited Laufer’s claim that she had dismissed her lawsuit because one of her former attorneys had been sanctioned, rather than to evade the Court’s review.  The majority noted that Laufer represented to the Court that she would not file any other cases but emphasized that the Court might exercise its discretion differently in a future case. 

In his opinion concurring only in the judgment, Justice Thomas found Laufer’s explanation implausible and concluded that she dismissed her case as a “transparent tactic for evading review” by the Court.  He pointed out that the sanctioned attorney had never served as her counsel in the case.  He added: “[W]e have needlessly invited litigants to follow Laufer’s path to manipulate our docket.  We should not resolve this case about standing based upon mootness of Laufer’s own making.”  Justice Thomas went on to conclude that Laufer did not have standing because the alleged violation on the website (i.e. deficient accessibility information about the hotel) caused her no harm, as she never had any interest in staying at the hotel.  He then described the dangers of ADA testers who seek to vindicate the public interest, but do not have the accountability of the Executive Branch.  Without a violation of her own rights, he explained, Laufer was able to, without any discretion required of a government official, “surf the web” to ascertain compliance of hotels she had no intention to visit and obtain monetary settlements from businesses seeking to avoid substantial defense fees.  Justice Thomas concluded that these activities go far beyond the role for private plaintiffs that Congress envisioned in ADA Title III cases.     

Justice Thomas did join the majority with regard to the judgment which was to remand the matter with an order to dismiss and vacate the decision by the First Circuit Court of Appeals.  Justice Jackson, writing separately, agreed with the majority that the case was moot but wanted to leave in place the First Circuit Court of Appeal’s “pro-tester” ruling.

SCOTUS’s failure to settle the issue of tester standing should be very frustrating to private businesses which, in the past five years (2018-2022), have been hit with an average of 10,468 ADA Title III federal lawsuits a year.  Thousands of those suits are filed by tester plaintiffs whose stated desire to patronize the businesses they sue is highly questionable.  Few businesses have the resources to litigate a case all the way to SCOTUS.  Most businesses settle early to avoid incurring legal fees.  Thus, it is unlikely that this question will reach SCOTUS again for many years, especially when – like Laufer – plaintiffs can evade review by voluntarily dismissing their cases when faced with a potentially unfavorable judgment that could impact their future filings.

The bottom line is that tester plaintiffs and their attorneys will continue to bring cases in those jurisdictions where the standing rules are less demanding such as the Fourth Circuit. The situation is somewhat unclear in the First and Eleventh Circuits because – while those circuits had adopted a less demanding standard – the decisions adopting that standard have both been vacated on mootness grounds.  Tester plaintiffs in the Second, Fifth, and Tenth Circuits will continue to face stricter standing requirements.  Meanwhile, the Court of Appeals for the Ninth Circuit is contemplating whether to reconsider its decision in Langer v. Kisor which favors tester plaintiffs.  The Ninth Circuit had put on hold its decision on the Petition for Rehearing en banc to see how SCOTUS would rule in Acheson, and the court is now likely to move forward with its decision soon.

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

Graphic of three judges.

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

pexels-erik-mclean-4833548

By Minh N. Vu

Seyfarth synopsis:  The Ninth Circuit holds that a restaurant’s practice of exclusively providing service at the drive-through and refusing to serve pedestrians at the drive-through line does not violate the ADA.

Many fast food restaurants nowadays take food orders and deliver food exclusively at the drive-through window during certain business hours.  Due to safety concerns, at many locations, restaurants do not allow pedestrians to order at the drive-through window.  Blind customers who do not drive have filed lawsuits against restaurants over this practice, alleging that this facially-neutral practice denies them access to the food offered by these establishments.

So far, the restaurants are winning.  Last week, the Ninth Circuit in Szwanek v. Jack in the Box held that the fast food restaurant’s practice of only providing service at the drive-through does not violate the ADA, even if the practice prevents blind people from being able to independently order food.  The court stated:

A facially neutral policy, like the one at issue here, violates the ADA only if it burdens a plaintiff “in a manner different and greater than it burdens others.”  The operative complaint does not plausibly allege that the Jack in the Box policy did so. The refusal to serve food to pedestrians at drive-through windows does not impact blind people differently or in a greater manner than the significant population of non-disabled people who lack access to motor vehicles. If these non-disabled individuals wish to purchase food at Jack in the Box restaurants when the dining rooms are closed, they face precisely the same burden as blind people—they must arrive at the drive-through window in a vehicle driven by someone else.

(citations omitted).  The court distinguished this case from another Ninth Circuit decision from 1996 (Crowder v. Kitagawa) in which the court concluded that Hawaii’s 120-day quarantine requirement for all dogs violated the non-discrimination requirements of Title II of the ADA (applicable to state governments) because the requirement “burdens visually-impaired persons in a manner different and greater than it burdens others.”  The court noted that visually-impaired people have a “unique dependence upon guide dogs” and the quarantine “effectively denied these persons… meaningful access to state services, programs, and activities while such services, programs, and activities remain open and easily accessible by others.”  The Ninth Circuit in Crowder had relied in part on the legislative history of the ADA which evidenced Congress’ intent to ensure that people with disabilities are not separated from their service animals.

Ninth Circuit Judge Watford dissented in Szwanek, stating his view that the “drive-thru only policy unduly burdens the blind because, as a result of their disability, they are unable to drive,” and “[t]he blind (and others whose disabilities preclude them from driving) are entitled to a reasonable modification of the drive-thru only policy because that is what’s necessary to afford them “full and equal enjoyment” of the goods Jack in the Box offers.”  While finding that the plaintiff did state a claim for violation of the ADA on the facts alleged in the Complaint, Judge Watford acknowledged that the restaurant might ultimately be able to show that the demanded modification of the policy was not reasonable or would fundamentally change the nature of the goods and services offered by the restaurant, but that those questions could not be decided on a motion to dismiss.

Szwanek comes on the heels of a district court decision from the Northern District of Illinois which also concluded that another fast food restaurant did not violate the ADA by limiting service to the drive-through and not allowing pedestrians to order at the drive-through window.  The trial court there concluded that the reason the plaintiff was denied service was because he was a pedestrian, not because he was disabled.  The court did not address the ADA’s obligation to make reasonable modifications to normal policies, practices and procedures that are necessary to ensure access, however, and the case is now on appeal to the Seventh Circuit.

Stay tuned for more updates on this evolving issue.

Edited by Kristina Launey

 

joshua-sukoff-5DDYHjk_KMU-unsplash

Seyfarth Synopsis: Congressmen Budd, Hudson, and Correa reintroduce the Online Accessibility Act which would govern the application of the ADA to websites and mobile applications.

By Kristina M. Launey

On February 18, 2021, U.S. Representatives Ted Budd (R-NC), Richard Hudson (R-NC), and Lou Correa (D-CA) re-introduced the Online Accessibility Act in Congress as H.R. 1100. The bill would codify the principle declared by some courts, such as the Ninth Circuit in Domino’s, that a website (and mobile app) that is not accessible can violate the ADA, and set a standard by which accessibility is measured for the purpose of compliance with the ADA.

To accomplish this, the bill would add a Title VI to the ADA that would prohibit discrimination against individuals with disabilities by any private owner or operator of a customer-facing website or mobile application and impose the following specific requirements:

WCAG as the Access Standard:  The bill would deem any website and mobile application that is in “substantial compliance” with the WCAG 2.0 AA (the “Standard”), or any subsequent version published by the World Wide Web Consortium (W3C) to also be compliant with the new ADA Title VI. For websites that are not in substantial compliance with the Standard, the bill would authorize an “alternative means of access” that is equivalent to access to the content available on the website or mobile application.

Creation of Regulations: The bill would direct the U.S. Access Board – not the U.S. Department of Justice (DOJ) — to issue and publish standards (and to amend them to keep up with technological advances), and to propose and issue regulations on the topic.  This is a change from the ADA Title III regime where only DOJ has the right to issue legally-binding standards.

Notice and Cure: The bill would require an individual plaintiff to notify the website or mobile app owner or operator of the alleged noncompliance and then allow the owner or operator 90 days to cure the alleged noncompliance before the individual may file a complaint with the DOJ.  Disability rights advocates have consistently opposed notice and cure provisions in prior attempts to amend the ADA and they are likely to oppose them in this bill as well.

DOJ Enforcement: The bill would require the DOJ to investigate alleged violations of the new Title VI, as well as to periodically review customer-facing websites and mobile applications for compliance, and authorize the DOJ to file a civil lawsuit upon reasonable belief that an entity has violated Title VI.  Remedies available in such an action would include equitable relief (i.e., fix the website/mobile app), monetary damages to aggrieved persons, and a civil penalty in the amount of $20,000 for the first and $50,000 for any subsequent violation.  A court would be required to consider any good faith effort to comply with Title VI in determining the amount of civil penalty to assess.

Private Right of Action After Exhausting Prerequisite Actions:  An individual with a disability would only be able to file a civil enforcement action after providing notice to the website/app’s owner and operator(s), filing a complaint with the DOJ, and receiving notice that the DOJ will not pursue the matter after an investigation.  In any such lawsuit, the plaintiff would be required to state with particularity the specific barriers to access on the website or mobile application.

In a press release announcing the legislation, Rep. Budd said: “Every year, thousands of website accessibility lawsuits are filed by plaintiffs alleging that certain websites were not ADA compliant. Our bill solves that problem by providing guidance to businesses on how to bring their websites into compliance. If our bill is passed, job-creators will be able to avoid costly lawsuits and be given a roadmap for how to help their disabled customers access online content.”

Rep. Hudson touted the Act, in sentiments echoed in part by Rep. Correa, as one that would: “improve web access for individuals with disabilities, as well as support small businesses. Especially as many small businesses struggle to stay afloat during the current pandemic, we must curtail frivolous and abusive litigation while continuing to push for web accessibility for everyone.”

Does this bill stand a chance?  Unlikely, but these Representatives have been persistent in trying.  Other short-lived attempts at ADA reform in Congress over the past years including the ADA Notification Act (H.R. 881 of 2011), the ADA Education and Reform Act (H.R. 620 of 2018), the “ADA Compliance for Customer Entry to Stores and Services Act” or “ACCESS Act” (H.R. 4099 of 2019), and 2020’s Online Accessibility Act, and even letter writing efforts between these Representatives and the DOJ, and Senators and the DOJ.  These efforts have not gained much traction because they did not receive support from disability rights advocates.  We do not see that situation changing during a Biden Administration.

Edited by Minh N. Vu

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By Minh N. Vu and Kristina M. Launey

Seyfarth Synopsis: A Biden Administration DOJ will likely bring higher engagement and more aggressive enforcement on ADA Title III issues.

While the current administration may still be unwilling to concede the election, it appears there will indeed be a new administration in charge at the Department of Justice (DOJ) come January 20, 2021.  How will the Biden Administration approach Title III of the ADA and its enforcement?  We think there will be much higher engagement – and likely more aggressive enforcement – on multiple fronts.

Enforcement.  Under the Obama Administration, the DOJ aggressively pursued enforcement actions against businesses regarding the alleged inaccessibility to people with disabilities of technologies that businesses use to provide their goods and services to the public – especially websites and mobile apps.  During the Trump Administration, we saw virtually no new investigations about websites or mobile apps that were not accessible to people with disabilities. And, investigations that were pending under the Obama Administration went dormant under the Trump Administration.  We expect the Biden Administration to resume the aggressive approach to enforcement taken by the DOJ during the Obama years on this issue.

As a result of increased enforcement, businesses should expect DOJ to demand higher monetary damages and civil penalties (presently the ADA authorizes maximum penalties of $96,384.00 for a first violation and $192,768 for a subsequent violation) and more onerous remedial terms.

Regulations.  Consistent with its anti-regulation policy, the Trump administration put the kibosh on every ADA Title III rulemaking that was pending.  Granted, many of those saw little progress under the Obama Administration (including, notably, proposed regulations adopting accessibility standards for public accommodations’ websites under Title III), but there is a real chance that some rulemakings will be revived under the Biden Administration.  At  the end of President Obama’s term, there was more rulemaking activity around issuing accessibility standards for the websites of state and local governments covered by Title II of the ADA.  Perhaps the Biden Administration would revive that rulemaking.  Rulemaking efforts that were also in progress at the end of the Obama DOJ’s tenure (and withdrawn by the Trump DOJ), such as on non-fixed equipment and furniture may likewise resurface.  The Obama DOJ squeezed in a final rule on movie captioning audio description on the way out the door in late 2016.

Technical Assistance.  The Trump DOJ put out very few technical assistance documents which historically have been a valuable source of guidance to help businesses understand and comply with the ADA and its implementing regulations.  We anticipate seeing more technical guidance from the DOJ in the coming years.

Intervention in Pending Lawsuits.  The Trump Administration rarely intervened in ADA Title III lawsuits – in contrast to the Obama DOJ (for example, see here and here).  We expect the DOJ to resume its practice of intervening on behalf of plaintiffs in important lawsuits and to push the boundaries of the law in ways that will impose greater obligations on covered entities.

Legislative Reform.  There have been some short-lived attempts at ADA reform in Congress over the past four years, including the ADA Education and Reform Act, the ADA Notification Act, and most recently, the Online Accessibility Act, and even letter writing efforts between members of Congress and the DOJ.  These efforts  have not gained much traction because they did not receive support from disability rights advocates.  We do not see that situation changing during a Biden Administration.

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Given the forthcoming more aggressive enforcement environment, businesses should very seriously consider whether their ADA Title III compliance programs are sufficiently robust, particularly with regard to their digital assets.  How good is our crystal ball?  Pretty clear, based on our November 2016 predictions.

 

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By Minh Vu and Julia Sarnoff

Seyfarth Synopsis:  Congressmen Budd and Correa try to address website and mobile app accessibility in a new bill called the “Online Accessibility Act.”  

On October 2, 2020, Representatives Lou Correa (D-CA) and Ted Budd (R-NC) introduced a bill called the “Online Accessibility Act” (H.R. 8478) (the “OAA”) which would amend the ADA to add a new Title VI prohibiting discrimination by “any private owner or operator of a consumer facing website or mobile application” against individuals with disabilities. The OAA would also establish web accessibility compliance standards for consumer facing websites and mobile apps and create a mandatory administrative process that persons injured by allegedly inaccessible websites and mobile apps must use before they can file a lawsuit.  

Here is a summary of the bill and our initial thoughts on the matter.

Key Provisions of the OAA

Compliance Standard.  Under the bill, covered entities — defined as “any private owner or operator of a consumer facing website or mobile application” — can comply with the ADA with respect to their consumer facing websites and mobile applications by one of the two following ways: 

(1) Substantial Conformance” with WCAG 2.0, Level A and AA.  A website or mobile application would be considered compliant with the ADA if it is in “substantial compliance” with the Web Content Accessibility Guidelines (WCAG) 2.0, Level A and AA, or any subsequent update, revision, or replacement published by the World Wide Web Consortium (the international organization that develops the WCAG technical guidelines).  

(2) “Alternative Means of Access” Acceptable.  A private entity that owns or operates a consumer facing website or mobile app that is not in “substantial compliance” with WCAG 2.0 A and AA could comply with the ADA by providing “alternative means of access to individuals with disabilities that is equivalent to access the content available on such website or mobile application.”  

The bill tasks the Architectural and Transportation Barriers Compliance Board (the “Access Board”) with the job of defining the terms “substantial compliance” with WCAG 2.0, Level A and AA, “alternative means of access,” and “consumer facing website or mobile application.”  The Access Board would also develop regulations for the implementation of the OAA’s compliance standard.  The bill also directs the Access Board to “include flexibility for small business concerns.”

Exhaustion of Administrative Remedies Required Prior to Filing a Civil Lawsuit.  As drafted, the bill would require aggrieved persons with a disability to exhaust their administrative remedies before bringing a civil action.  

To do so, the individual must first provide notice to the owner or operator of the consumer facing website or mobile app of the fact that its website or mobile application does not comply with the WCAG 2.0 AA (or later version) (“accessibility standard”).  The owner or operator would then have 90 days to bring its website or mobile app into compliance with the accessibility standard.

If the owner or operator fails to bring its website or mobile app into compliance with the accessibility requirements described above within the 90 day notice period, the individual may then file an administrative complaint with the Department of Justice (“DOJ”) within 90 days after the notice period expires.  The DOJ would have 180 days to complete its investigation, at which point DOJ could initiate a civil enforcement action against the business in “any appropriate United States district court.”  

The individual may only bring a lawsuit after the end of the 180-day period if the DOJ chooses not to do so.  In a lawsuit brought by DOJ, the court may order compliance with law and, monetary damages (but not punitive damages), and assess a civil penalty not exceeding $20,000 for a first violation, or $50,000 for any subsequent violation.  In considering civil penalties, the court would be required to consider “any good faith effort or attempt to comply” with the bill’s requirements.

Only if DOJ does not complete its investigation within 180 days, or if DOJ finds that there is a violation but decides not to initiate its own enforcement action, may an individual file a private civil lawsuit against the owner or operator for non-compliance with the ADA.  The bill explicitly states that this civil action is “the sole and exclusive remedy for any person aggrieved by the failure of any consumer facing website or mobile application to meet the requirements” of the Act.

Our Initial Observations.

  • The definition of a “consumer facing website” as “any website that is purposefully made available to the public for commercial purposes” is rather vague.  Would it apply to a website or mobile app that sells goods or services only to other businesses, for example?  
  • The bill would apply to a private entity that is an “owner or operator of a consumer facing website.”   This language would seem to cover companies that host or maintain websites on their platforms for private businesses.  Thus, the OAA, if enacted, could cover more entities than just public accommodations that are currently the targets of website and mobile app accessibility lawsuits.
  • Although the DOJ can obtain injunctive relief, damages, and a civil penalty in an enforcement action, the bill does not say what relief would be available to a private litigant.  In addition, the maximum civil penalty that can be obtained by the DOJ under this new Title VI would be significantly less than the maximum for other types of discrimination under Title III of the ADA (i.e. $96,384.00 for a first violation and $192,768 for a subsequent violation).
  • The administrative process contemplated by the OAA would put a new and significant burden on the DOJ, which would have to investigate all complaints.   
  • The bill’s statement that its remedies are the “sole and exclusive remedy” for aggrieved persons raises questions as to whether individuals would be prohibited from filing lawsuits to enforce state and local laws concerning the accessibility of websites and mobile applications.
  • The bill leaves open the question of how long a “grace period” covered entities will have to come into compliance with its requirements following the issuance of regulations by the Access Board.
  • The bill contains no defenses for covered entities, such as technical infeasibility, undue burden, and/or fundamental alteration.

Response to Bill by Disability Rights Advocates.  

Disability rights advocates do not seem enthusiastic about the bill.    

Some advocates say that the more recent WCAG 2.1 should be the standard for compliance, not WCAG 2.0.  They also oppose an allowance for alternative means of access to online content.  Advocates have also expressed concern that the requirement to exhaust administrative remedies would limit the right of disabled people to enforce the ADA through private lawsuits.  Furthermore, the Act could prohibit individuals from enforcing state and local disability access rights laws.  Additionally, advocates believe that limiting the Act to websites and mobile apps puts at risk their efforts to use the ADA to increase accessibility of other technologies such as kiosks and employee software.

What’s Ahead?  

Past attempts to amend the ADA to address the concerns of private entities faced with a deluge of lawsuits (e.g. the ADA Education and Reform Act and the ADA Notification Act) have not gained much traction because they did not receive support from disability rights advocates.  However, we think both businesses and advocates would like to see clear legal requirements on this issue rather than the confusing and constantly evolving patchwork of court decisions that exists today.  Thus, the bill is certainly a step in the right direction.