Search results for: harvard

By Kristina M. Launey & Minh N. Vu

Seyfarth Synopsis: Four years and two motions to dismiss based on the pleadings later, the National Association of the Deaf’s (NAD) online video captioning lawsuit against Harvard is moving forward to fact discovery. On March 28, Federal Magistrate Judge Robertson in the District of Massachusetts denied the university’s motion for judgment on the pleadings with some notable discussion about whether websites are places of public accommodation under the ADA and limitations of liability for third party content.

Physical Nexus Argument Rejected. The First Circuit has held in a case about an allegedly discriminatory insurance policy that a business can be a public accommodation covered by Title III of the ADA even if it is not associated with a physical place where customers go. Harvard argued that this precedent did not apply to cases involving websites, but the Court was not persuaded. The Court also said that even if the law did require Harvard’s websites to have a nexus with a good or service provided at a physical location, the Plaintiffs had sufficiently alleged such a nexus because some of the allegedly inaccessible videos could, for example, pertain to courses taught at the school.

University Content Posted on Third Party Websites. The Court said whether Harvard could be legally responsible for content it posts on third party websites (e.g. YouTube, iTunesU, and SoundCloud) depends on facts which have yet to be developed, including whether the university has control over how the content is displayed, and whether captioning the content would provide meaningful access. The Court also noted that the university may be able to show that providing captioning would fundamentally alter the nature of the service provided or be an undue burden.

CDA Immunity for Third Party Content. In a meaningful initial victory for Harvard, the Court acknowledged that the Communications Decency Act (CDA) shields Harvard from liability under Title III of the ADA and the Section 504 of the Rehabilitation Act with respect to two categories of content: (1) content hosted on a third party-server (not belonging to Harvard) that is hyperlinked in its existing form to content that is hosted on a Harvard platform or website (“Embedded Content”) and (2) content is hosted on a Harvard platform or website that Harvard did not create, produce, or substantially alter (“Third Party Content”). The CDA shields website operators, including educational institutions, from being treated as the publisher or speaker of material posted on the website by third party users. While the Court’s holding reduces the number of videos that remain at issue in the case, the Court was not willing to immediately exclude all content posted by students, individual faculty members, or other scholars as requested by Harvard. The Court said discovery into Harvard’s role with respect to such content is needed to see if it really is third party content exempted by the CDA.

To Be Continued… We will continue to monitor this long- running case. NAD filed the lawsuit in 2015, alleging Harvard violated Title III of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act by failing to provide closed captioning for thousands of videos on its websites. In November 2016, the court denied Harvard’s motion to stay or dismiss on the primary jurisdiction doctrine, finding the court did not need the DOJ’s expertise to rule on the issue. The present order noted that in the time intervening the two motions, the parties engaged in settlement talks and negotiations to resolve or narrow the issues, but could not reach an agreement.

Seyfarth Synopsis: Not long after a similar Congressional appeal, Senators sent a letter to Attorney General Sessions urging action to stem the tide of website accessibility lawsuits plaguing businesses.

On Wednesday, September 12, 2018, Senator Chuck Grassley (Iowa) announced that he and Senator Mike Rounds (South Dakota) sent a letter to United States Attorney General Jeff Sessions seeking clarification on whether the Americans with Disabilities Act (ADA) applies to websites. Senators Joni Ernst (Iowa), Thom Tillis (North Carolina), Mike Crapo (Idaho), and John Cornyn (Texas) also joined in the request.

The letter urges the Department of Justice to help resolve uncertainty regarding website accessibility obligations under the ADA because “for the ADA to be effective, it must be clear so that law abiding Americans can faithfully follow the law. Right now it is not clear whether the ADA applies to websites. This leaves businesses and property owners unsure of what standards, if any, govern their online services.”

The letter noted that the DOJ has issued no guidance or regulations to provide clarity, and that conflicting court decisions have created even more confusion, which plaintiffs’ attorneys are “exploiting” for “personal gain”, “sending threatening demand letters and filing hundreds of lawsuits against small and medium-sized businesses across the country – from banks and credit unions to retailers and restaurants”.

The letter references our data, published in our July 17, 2018 blog, that more ADA website accessibility lawsuits were filed in the first half of 2018 than in all of 2017.  It also cites Administrative Office of the U.S. Courts data that show filings of certain ADA cases increasing 521 percent from 2005 to 2017. These statistics show, the Senators write, that this litigious trend will only continue to grow unless the DOJ takes action.

The Senators recognize that businesses would rather spend money serving their disabled customers than “paying money to avoid a shakedown by trial lawyers who do not have the interests of the disabled at heart.”

Noting the DOJ’s December 2017 withdrawal of the website accessibility rulemaking process, in which the DOJ said it was evaluating the need for regulations, the Senators emphasize that lack of clarity only benefits plaintiffs’ lawyers while “clarity in the law will encourage private investment in technology and other measures that will improve conditions for the disabled.”

The Senators close by urging the DOJ to promptly take actions, including filing statements of interest in currently pending litigation, to resolve the current uncertainty, and to brief the Senators’ staff on the DOJ’s intentions on this issue by September 28, 2018.

This letter comes not long after a bi-partisan assembly of 103 Members of Congress wrote a similar letter to the Attorney General in June.  It remains 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, though the Senators urge the DOJ to take any actions in its power—including filing statements of interest—the DOJ has thus far been unwilling to do so.  Unlike the Obama Administration which weighed in in favor of plaintiffs 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 continue to wait and see how Attorney General Sessions and the DOJ react to the Senate letter.  In the meantime, we, like the Senators, expect website accessibility lawsuits will continue to be filed at a record pace throughout the United States.

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.

Seyfarth Synopsis: Two New York federal judges recently said that the ADA covers websites (even those not connected to a physical place) and one held that working on improving the accessibility of one’s website does not make the ADA claim moot.

The number of district court judges siding with plaintiffs in website accessibility cases is increasing. On June 13, a Florida federal judge issued the first web accessibility trial verdict against grocer Winn Dixie for having a website that could not be used by the blind plaintiff.  Two days later, a California federal judge held that a blind plaintiff’s website accessibility lawsuit against retailer Hobby Lobby could proceed to discovery.  Now two federal judges in New York have weighed in, denying restaurant Five Guys’ and retailer Blick’s motions to dismiss lawsuits alleging that the defendants’ inaccessible websites violate the ADA and New York State and City civil rights laws. Both judges found that: (1) websites are subject to the ADA, regardless of whether the goods and services are offered online and in physical locations; and (2) courts don’t need agency regulations setting a standard for website accessibility to decide whether a website violates the ADA. The court in Five Guys additionally held that being in the process of improving a website’s accessibility is very different from having successfully completed that process to meet the mootness standard of being “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” It summarily rejected the restaurant’s mootness argument on that basis.

In the Blick putative class action, Eastern District Court Judge Weinstein issued a lengthy 38-page order on August 1 that addressed the issue of whether a nexus to a physical place of business is required to subject a website to the ADA. The opinion expressed sympathy for blind individuals who are unable to use some websites with their screen reader software and marshalled every possible argument in favor of finding that all websites that fall within the twelve types of businesses classified as “places of public accommodation” are covered by the ADA.  Judge Weinstein first surveyed relevant decisions from federal courts in other circuits.  Although the Ninth Circuit is the only appellate court that has actually addressed the coverage of a website under Title III of the ADA (all other Court of Appeals decisions have concerned other matters, mostly insurance products), he found that the Third, Sixth, and Eleventh Circuits have held that only businesses with a “nexus” to a physical location are subject to the ADA.  He characterized this interpretation of the law as “narrow” because it would mean that “a business that operates solely through the Internet and has no customer-facing physical location is under no obligation to make [its] website accessible.” The court then considered First and Seventh Circuit decisions which have held that a business does not need a physical place of business where customers go to be considered public accommodations under the ADA.

Finally, looking to its own Court of Appeals (which has not squarely addressed the question of whether a business with no physical location can be covered by Title III of the ADA or considered a website accessibility case), the Blick court relied upon an extended interpretation of the Second Circuit’s holding in Pallozzi – an insurance policy case – to hold that a business that has no physical place of business can be a covered public accommodation under the ADA.  Notably, the defendant in Pallozzi had a physical place of business where the plaintiff had purchased the allegedly discriminatory insurance product.  The Second Circuit held in Pallozzi that Title III of the ADA reaches beyond access barriers at a physical location and extends to the terms of the products sold from that physical location. It did not hold, nor even state in dicta, that a business with no physical location is covered by the ADA in the first place, or that a business’ website is covered by the ADA.

In holding that a website does not need a nexus to a physical location to be covered by the ADA, Judge Weinstein aligned himself with two other District Court judges in the Second Circuit (District of Vermont Judge William K. Sessions III and New York Southern District Judge Katherine Forrest) who reached the same conclusion in cases brought against Scribd and Five Guys, respectively.   

The Blick decision also rejects the recent Bang & Olufsen decision out of the Southern District of Florida, which followed the Target case in holding an ADA website access claim can only survive a motion to dismiss if the website’s inaccessibility has an actual nexus to the business’ physical location. The Bang & Olufsen court held that the plaintiff had not stated an ADA Title III claim because his complaint did not allege that the alleged website barriers in any way impeded his ability to shop at the physical store. The Blick court found this interpretation of the ADA “absurd,” as it would require that only select aspects of Blick’s website and online presence be accessible to the blind, such as allowing disabled individuals “a right to ‘pre-shop’ in their home, but no right to actually make a purchase in their home,” and provide disabled individuals “no right whatsoever to purchase goods or services from companies whose business models (e.g. television shopping channels, catalogs, online-only) are premised on having customers shop only from home.”

The court concluded its 22-page discussion of the issue by stating the plaintiff “has a substantive right to obtain effective access to Blick’s website to make purchases, learn about products, and enjoy the other goods, services, accommodations, and privileges the defendant’s website provides to the general public.” It also found that the plaintiff might be able to enforce his rights through a class action, but that issue would wait until after the parties’ motion(s) for summary judgment. The court also stated that it would convene a “Science Day” where experts would demonstrate web access technology to the court “to explore how burdensome it would be for the defendant to make its website compatible with available technology.”

Both the Blick and Five Guys decisions rejected the argument that Justice Department regulations setting website accessibility requirements are necessary for a finding that a defendant has violated the ADA by having an inaccessible website. Like the District of Massachusetts in denying MIT and Harvard’s motions to dismiss, and the Central District of California in denying Hobby Lobby’s motion (contrary to a different decision out of that same district) the Blick court rejected the primary jurisdiction argument on the basis that it is the court’s job to interpret and apply statutes and regulations and the risk of inconsistent rulings is outweighed by plaintiff’s right to prompt adjudication of his claim. The court discussed the long history of the Justice Department’s website accessibility rulemaking efforts before concluding that “t[]he court will not delay in adjudicating [plaintiff’s] claim on the off-chance the DOJ promptly issues regulations it has contemplated issuing for seven years but has yet to make significant progress on.”  Both courts rejected the defendants’ due process arguments, stating no standard set by statute or regulation for is needed for the ADA’s requirements of “reasonable modifications,” “auxiliary aids and services,” and “full and equal enjoyment” to apply to website accessibility. In rejecting Five Guys’ argument that there are no regulations setting forth accessibility standards for websites, the Five Guys court noted that there are steps defendant could take, such as using the Web Content Accessibility Guidelines.

Finally, the Blick decision addressed the coverage of website accessibility claims under the New York State Human Rights Law, New York State Civil Rights Law, and New York City Human Rights Law, and found that such claims were covered to the same extent as they are under Title III of the ADA.

While there is no way of knowing whether other federal judges in New York will agree with the holdings of District Judges Weinstein and Forrest, more lawsuits will likely be filed in New York after these decisions.

Seyfarth Synopsis: Fewer online videos from UC Berkeley will be available to the public as a result of a DOJ demand that the videos have closed captioning.

Starting March 15, 2017, more than 20,000 videos of classroom lectures and podcasts on UC Berkeley’s YouTube and iTunes channels will no longer be available for public viewing, according to a recent statement by the university.  The statement explains that the decision will “partially address recent findings by the Department of Justice which suggests that the YouTube and iTunesU content meet higher accessibility standards as a condition of remaining publicly available,” and “better protect instructor intellectual property from “pirates” who have reused content for personal profit without consent.”  UC Berkeley stated that it would focus its resources on creating new accessible online content and continue to offer free courses in accessible formats to the public through massive online open course provider, edX.

On August 30, 2016, the Department of Justice (DOJ) issued the findings UC Berkeley referenced in its recent statement, after conducting an investigation into the university’s compliance with Title II of the ADA.  DOJ concluded in the findings that that a covered entity subject to Title II has a duty to ensure content that it makes available to the public free of charge is accessible.

Similar to Title III of the ADA which applies to public accommodations (i.e., twelve categories of privately-owned entities that do business with the public), Title II of the ADA requires public universities and other covered entities to take appropriate steps to ensure that communications with individuals with disabilities are as effective as communications with others to afford qualified individuals with disabilities an equal opportunity to participate in, and enjoy the benefits of their services programs, or activities.  It also requires covered entities to furnish appropriate auxiliary aids and services where necessary to achieve effective communication.  A covered entity is not, however, required to take any action that would result in a fundamental alteration in the nature of its service, program or activity or in undue financial and administrative burdens.

As set forth in its findings letter, the DOJ opened its investigation after receiving complaints from the National Association of the Deaf (NAD) on behalf of two of its members that some of UC Berkeley’s online videos did not have closed captioning.  Significantly, these complainants were members of the public seeking access to free information, not students, prospective students, or faculty.  The DOJ concluded that many of UC Berkeley’s online videos did not have proper closed captions, and has threatened to file an enforcement lawsuit against the school unless it agrees to enter into a consent decree, caption all of its online content, and pay damages to individuals with disabilities who had been injured by UC Berkeley’s failure to provide accessible online videos.  This DOJ matter is still pending as no resolution or enforcement suit has been announced.

The DOJ’s position in its findings letter to UC Berkeley — that a covered entity has a duty to ensure that content that it makes available to the public free of charge is accessible — certainly pushes the boundaries of the ADA and has not been tested in the courts.  If covered entities must in fact ensure that all of the information that they put out for the world to use for free (no matter how remotely related to their central mission) or face lawsuits and DOJ investigations, there may well be a significant reduction in the amount of information provided on the web for public consumption.

A court may at some point rule on this precise question in the pending lawsuits brought by members of the NAD against Harvard University and the Massachusetts Institute of Technology (MIT) in Massachusetts federal court.  The plaintiffs there are members of the public who are asking the court to order the universities to provide captioning for tens of thousands of videos on their websites.  As we reported, the court rebuffed the universities’ efforts to dismiss the case early and President Obama’s DOJ filed briefs supporting the NAD. As the case continues, the universities will likely focus their efforts on proving that providing captioning for tens of thousands of videos is an undue burden or would fundamentally alter the nature of the videos they are providing.  We would not be surprised if these lawsuits result in these universities deciding to follow UC Berkeley’s lead and limit the amount of public access to their online videos.

Edited by Kristina Launey.

Seyfarth Synopsis: Fighting a web accessibility lawsuit could invite DOJ’s intervention, as did a Florida retailer’s recent Motion for Judgment on the Pleadings.

Fighting a website accessibility lawsuit is very tempting to many frustrated businesses, but can be a risky decision. One such risk – Department of Justice intervention in the lawsuit – came to fruition for one such business on Monday in Gil v. Winn Dixie, when the DOJ filed a Statement of Interest in the case pending in the Southern District of Florida.

In the lawsuit, Gil alleged that he attempted to access the goods and services available on the Winn-Dixie website, but was unable to do so using his screen reader technology or any other technology provided on the Winn-Dixie website. Accordingly, he claimed the website is inaccessible in violation of Title III of the Americans with Disabilities Act.

Triggering the DOJ’s somewhat unexpected involvement in this prolific plaintiff’s (by our count, as of October 20, 2016, Gil’s attorney had filed 43% of the 244 federal website accessibility cases filed this year) lawsuit was Winn-Dixie filing a Motion for Judgment on the Pleadings.  The DOJ states that Winn-Dixie admitted in the Motion that, through its website, patrons can order prescription refills to be picked up at the store pharmacy; search for nearby stores; and gather information on store hours, products, and services. Winn-Dixie argued that it has “no obligation under the ADA to ensure that Mr. Gil and other blind patrons can access these and other services and advantages offered through its website” because under the Eleventh Circuit law, only physical locations are subject to Title III of the ADA. The DOJ could not stand by and let this position go unchallenged:

“Because Winn-Dixie Stores’ argument cannot be squared with the plain language of the statute, the regulations, or with federal case law addressing this issue, the United States respectfully submits this Statement of Interest to clarify public accommodations’ longstanding obligation to ensure that individuals with disabilities are not excluded, denied services, or treated differently than other individuals because of the absence of auxiliary aids and services, such as accessible electronic technology. This obligation means that websites of places of public accommodation, such as grocery stores, must be accessible to people who are blind, unless the public accommodation can demonstrate that doing so would result in a fundamental alteration or undue burden.”

DOJ’s authority is the ADA’s requirement that public accommodations provide auxiliary aids and services – including accessible electronic information technology – at no extra charge to ensure effective communication with individuals with disabilities, unless it would result in a fundamental alteration or undue burden.

In response to Winn-Dixie’s position that Title III applies only to its physical location. DOJ cited the language of the ADA which says that “Title III applies to discrimination in the goods and services ‘of’ a place of public accommodation, rather than being limited to those goods and services provided ‘at’ or ‘in’ a place of public accommodation.”  DOJ also argued Title III’s application to the website at issue is consistent with every other court decision to have addressed the coverage of websites with a nexus to brick and mortar locations. DOJ went on to state its view that even websites with no nexus to a brick and mortar location are also covered under Title III of the ADA – a position that has been explicitly rejected by the Ninth Circuit.

Coming on the heels of the DOJ’s intervention in the MIT and Harvard cases, and one retailer’s loss on summary judgment when fighting a web accessibility lawsuit in Colorado Bags N’ Baggage, this case demonstrates that litigating a website accessibility case has broader implications than just winning or losing on the merits.  Few businesses want the DOJ inquiring into their ADA Title III compliance practices, of which websites are only a part.

Edited by Minh Vu.

There is more bad news for businesses that thought that they could wait for the Department of Justice (DOJ) to issue specific regulations before making their websites accessible to individuals with disabilities.  Federal Magistrate Judge Robertson in the District of Massachusetts recently denied motions by Harvard and MIT to dismiss or stay website accessibility class action lawsuits, and recommended that the lawsuits move forward to discovery.  The judge found that the existing law and regulations provide a basis for the deaf advocates’ claim that the universities violated Title III of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act by failing to provide closed captioning for thousands of videos on their websites. The judge rejected the universities’ arguments that the court dismiss or stay the case while DOJ works on its proposed rules for website accessibility, finding that the court did not need the agency’s expertise to adjudicate the cases.  The judge did, however, give weight to the DOJ’s interpretation of the ADA expressed in its Statement of Interest filed in the Harvard and MIT lawsuits.

The Magistrate Judge’s recommendation will not be a final order of the court until U.S. District Court Judge Mastroianni adopts it.  Even after adoption, the decision will not be a finding that the universities have violated the law or that they must caption all videos on their websites.  The ruling would simply allow the cases to move forward to discovery.  As Judge Robertson noted, the schools will have an opportunity to assert various defenses later in the case.  For example, Harvard and MIT might show that they provide access to their videos in some alternative, equivalent matter.  They might also seek to establish that providing closed captioning for some or all videos on their websites would constitute an undue burden or fundamentally alter the nature of the goods and services that they offer.

There are many takeaways from Judge Robertson’s 45-page opinion, but we see two very basic, practical points:

  • Judges, at least thus far, have not been receptive to the argument that there is no obligation to make websites accessible until DOJ issues regulations on the subject. In 2015, a federal judge in Pittsburgh also denied a defendant bank’s motion to dismiss or for a stay of a website accessibility case, without any discussion or explanation.
  • Courts seem reluctant to dismiss website accessibility lawsuits at the beginning of the case. This means that the cases will likely continue to discovery and cause defendants to incur potentially substantial costs of defense, even if the defendants ultimately prevails on the merits.

The Harvard and MIT decisions will undoubtedly fuel the continuing explosion of website accessibility cases.  We are working to determine how many such suits have been filed and will report it to you as soon as we have it.

Edited by Kristina M. Launey.

By Minh N. Vu and Kristina Launey

internetIn an astonishing move, the Department of Justice (DOJ) announced that it will not issue any regulations for public accommodations websites until fiscal year 2018—eight years after it started the rulemaking process with an Advanced Notice of Proposed Rulemaking (ANPRM).

As we previously discussed, DOJ made a number of statements in the 2010 ANPRM that led businesses to reasonably conclude that they could and should wait for the regulation to issue before taking action. Among other things, the ANPRM acknowledged a need to adopt a legal technical standard for an “accessible” website and asked how much time businesses should be given to comply. However, since issuing that ANPRM, DOJ’s enforcement attorneys have investigated numerous public accommodations, pressuring them to make their websites accessible. DOJ even intervened in recent lawsuits (e.g., here, here, and here) taking the position that the obligation to have an accessible website has existed all this time in the absence of any new regulations.

DOJ claims that it is delaying the public accommodations website regulations so that it can learn from the development of state and local government website regulations, which it will supposedly issue in January 2016. Specifically, DOJ states in its Fall 2015 Statement of Regulatory Priorities that “[t]he Department believes that the title II web site accessibility rule will facilitate the creation of an important infrastructure for web accessibility that will be very important in the Department’s preparation of the title III web site accessibility NPRM.” Whatever the reason, DOJ’s delay in issuing public accommodations website regulations perpetuates the murky waters businesses must navigate, with no regulatory guidance about what the law requires of them. Right now there is no legally binding technical standard that defines an “accessible” website. There is no rule about whether a business is required to ensure that third party content or software on its site is “accessible.” There is no rule about whether the existence of an occasional unintended barrier on a website which can arise from routine updates is a violation of the ADA.

In the meantime, the DOJ and private plaintiffs continue to pressure businesses, through enforcement actions and lawsuits, to bring websites into conformance with a standard no law requires, citing the ADA’s general principle of “equal access”. This puts businesses in an untenable position, as they struggle to prioritize what can often be considerable spend and business disruption to bring a website into conformance with this standard, against the multitude of other, established, regulatory requirements with which the business must comply upon risk of violating established laws. This external pressure has only increased of late—we have seen plaintiff’s lawyers initiated a virtual tsunami of demand letters and lawsuits against all manner of businesses (e.g., retailers, hotels, banks) alleging that their websites are not accessible to claimants with disabilities. We have seen (and reported) time and again—hence the dearth of case law in this area—businesses settle (most recently, as we had predicted, Scribd joined that club), quite simply (to the outside world; not so simple to the business’s interior decision-making) because it is less expensive to settle than to litigate in an uncertain legal landscape. These enterprising litigants know this.

For more on this surge of litigation activity, and what your business can do to mitigate risk, please join us for our webinar on December 2, 2015: Is Your Business the Subject of a Title III Lawsuit Yet?”.

(Photo) WebsiteBy Minh N. Vu

What a difference five years makes. In September 2010, the Justice Department (DOJ) announced in an Advanced Notice of Proposed Rulemaking (ANPRM) that it would issue new regulations under Title III of the ADA to address the accessibility of public accommodations websites. At that time, it made a number of statements that reasonably led public accommodations to conclude that their websites did not necessarily have to be accessible as long as the public accommodation offered an equivalent alternative way to access the goods and services that were provided on the website. The DOJ’s statements also led public accommodations to believe that once DOJ issues a final regulation, they would have time to make their websites comply with the technical accessibility standard DOJ adopts in that regulation.

DOJ has now shifted positions, presenting its revised viewpoint in Statements of Interest it filed in two lawsuits originally brought by the National Association of the Deaf (NAD) against two universities about the alleged inaccessibility of videos on their websites. See here and here.

What DOJ said in 2010.

In the 2010 ANPRM, DOJ stated that “covered entities with inaccessible websites may comply with the ADA’s requirement for access by providing an accessible alternative, such as a staffed telephone line, for individuals to access the information, goods, and services of their website. In order for an entity to meet its legal obligation under the ADA, an entity’s alternative must provide an equal degree of access in terms of hours of operations and range of information, options, and services available. For example, a department store that has an inaccessible website that allows customers to access their credit accounts 24 hours a day, 7 days a week in order to review their statements and make payments would need to provide access to the same information and provide the same payment options in its accessible alternative.”

DOJ also asked the public to comment on the following questions: (1) “Are the proposed effective dates for the regulations reasonable or should the Department adopt shorter or longer periods for compliance?” (2) “Should the Department adopt a safe harbor for such [web] content so long as it is not updated or modified?” (3) “Should the Department´s regulation initially apply to entities of a certain size (e.g., entities with 15 or more employees or earning a certain amount of revenue) or certain categories of entities (e.g., retail websites)?” Particularly relevant to the NAD lawsuits, DOJ specifically asked the public to comment on whether requiring videos on websites to have captioning would reduce the number of videos that public accommodations would make available, to the detriment of the public. (“[W]ould the costs of a requirement to provide captioning to videos cause covered entities to provide fewer videos on their websites?”).

What the DOJ is saying now. Continue Reading DOJ Shifts Position on Web Access: Stating In Court Filings That Public Accommodations Have a "Pre-Existing" Obligation to Make Websites Accessible