By: Seyfarth ADA Title III News & Insights Editors
Seyfarth Synopsis: Here’s our take on Sunday’s 60 Minutes episode on “drive-by” abusive ADA Title III lawsuits and the legislative efforts to address them.
60 Minutes aired a segment about ADA Title III “drive-by” lawsuits on Sunday, December 4, which focused on a few of the ways in which the law
Continue Reading Controversial 60 Minutes Segment on “Drive-By” ADA Lawsuits Highlights Negative Aspect of the Law
By Kevin Fritz
This Sunday, July 26, marks the 25th anniversary of the Americans with Disabilities Act. In the spirit of anniversary of this important law, here are 25 simple ways to make your business more accessible to customers with disabilities, and provide a great experience for them and their friends and/or family members:
By 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
By Minh N. Vu
According to the Spring 2015 Unified Agenda of Federal Regulatory and Deregulatory Actions, the Department of Justice (DOJ) will issue no proposed regulations for public accommodations websites until least April 2016 — nearly a year from now. However, the proposed regulations for state and local government websites, originally slated for December 2014, should be out
Continue Reading Website Regulations Update: Public Accommodations Proposed Regs Further Delayed BUT State and Local Proposed Rules Due Out. . . Now?
By Kevin Fritz
We recently came across a news story that inspired us to draft this post: A Wisconsin woman and a kangaroo enter a restaurant. (If that isn’t a great joke intro, we don’t know what is.) Another customer calls the police to report the animal, but the woman claims that her kangaroo is a service animal and produces
Continue Reading Is a Kangaroo a Service Animal? It Depends on Where you Are and What the Animal Does
By Minh N. Vu
For today’s Global Accessibility Awareness Day, we have yet another Department of Justice enforcement action to report relating to the allegedly inaccessible websites and other technologies. This time, DOJ is trying to intervene in an existing lawsuit, Dudley v. Miami University, filed by a former Miami University student who is blind. Although the lawsuit is brought under Title II of the ADA which applies to state and local government entities and not public accommodations, the obligations under the Title II and III are very similar. Thus, the DOJ’s position in this lawsuit provides useful insight into how it would treat private universities and other public accommodations covered by Title III of the ADA.
On May 12, 2015, the DOJ sought permission from the court to intervene in the lawsuit as an additional plaintiff. If the request is granted, the lawsuit’s scope will widen. As an individual plaintiff, Ms. Dudley can only seek injunctive relief that relates to her own disability (blindness) and attorneys’ fees. The DOJ, on the other hand, can and is seeking injunctive relief that would benefit people with other types of disabilities such as those who are deaf or hard of hearing. In addition, the DOJ can seek compensatory damages for past and present students who have been harmed, and a civil penalty of up to $75,000.
The DOJ’s action stems from the University’s obligation ensure that its communications with individuals with disabilities is effective. One question we often get is whether a public accommodation is required to ensure that all of its communications with the public are effective, or just those that relate to the core goods and services that the public accommodation offers (e.g, communications by a university to students and prospective students about its courses and programs). Some advocacy groups have taken the position that all material posted on any university website must be accessible for the benefit of the public at large, even if the material is not directly related to any coursework or other programs offered by the school.
Continue Reading Another DOJ Action over Allegedly Inaccessible Websites and Other Technologies
By Kristen Verrastro and Andrew McNaught
Recently, a Federal court in Northern California denied Uber Technologies, Inc.’s request to dismiss an access lawsuit. The plaintiffs, National Federation of the Blind of California (“NFBC”) and individual blind members with guide dogs, filed an ADA lawsuit alleging Uber-X drivers committed various forms of discrimination, including refusing to transport blind riders with their service animals.
For example, one blind member of NFBC alleged an Uber-X driver pulled up to the curb; yelled “no dogs;” and then cursed at him before taking off without the NFBC member in the driver’s vehicle. The complaint also alleges that Uber-X drivers have mishandled guide dogs, in one instance even forcing a guide dog into the closed trunk of a sedan before transporting the blind rider. When the blind rider realized where the Uber-X driver placed her dog, she pleaded with the driver, who refused to pull over so the rider could remove the dog from the trunk.
Below, we discuss the arguments considered by the Court regarding Uber’s motion to dismiss. The Court ultimately determined that: (1) the plaintiffs had standing under the ADA; and (2) Uber may be subject to the ADA, potentially as a place of “public accommodation.”
Plaintiffs’ Standing under the ADA
Uber argued that the plaintiffs did not have standing to bring the lawsuit because, among other state law arguments: (1) one plaintiff did not have standing under the ADA’s deterrent effect doctrine; and (2) another plaintiff did not have standing as to the likelihood of future harm under the ADA.
The Court rejected Uber’s arguments. In finding that plaintiffs have standing under the ADA, the Court noted that the plaintiffs shouldn’t have to engage in a “futile” attempt to access services when they: (1) have knowledge that Uber has refused service to passengers with service animals; and (2) believe there is a likelihood such refusals will continue. Specifically, the Court said that “the ADA directs this Court to relax its standard for injury in fact in order to discourage both piecemeal litigation and futile attempts at access” when plaintiffs have actual notice of the alleged discriminatory practice and are in fact deterred from attempting access.
The Court also granted NFBC associational standing to bring suit under the ADA on behalf of its members.
Uber May Be Subject to the ADA
Continue Reading Federal Lawsuit Challenging Uber X’s Exclusion of Service Animals Shifts into Discovery
By Minh N. Vu
We are pleased to report that The Economist took an interest in our research which showed a 63% surge in the number of ADA Title III lawsuits filed in 2014. The Economist published an article (to come out in the print edition on April 25) entitled “Hobbling businesses: A law designed to help people with disabilities
Continue Reading The Economist Highlights Seyfarth's ADA Title III Lawsuit Data
By John W. Egan
Despite the url (www.adatitleiii.com) and frequent federal focus of this blog, it is important to remember that many states and municipalities have their own disability access laws and regulations with which businesses must comply. Although many state and local requirements are similar to the ADA, this is not always the case.
Usually we’re reporting
Continue Reading New York Law Creates Quandary for Businesses with New “Accessible Icon”
By Minh N. Vu and Susan Ryan
In August 2014, we reported that the number of ADA Title III lawsuits filed against public accommodations rose by nearly 9% in 2013 over 2012. At that time, we predicted that there could be a 40% increase in the number of lawsuits filed in 2014 based on 6 months of data. Now that
Continue Reading ADA Title III Lawsuits Surge by More than 63%, to Over 4400, In 2014