By Kristina M. Launey

Seyfarth Synopsis: AB 1757, which would set a standard for website accessibility for businesses in California, has been held in the Legislature to resume discussion in 2024.

While Southern California and Burning Man revelers were hit with unprecedented severe storms in August, the California Legislature has given businesses at least a temporary reprieve from legislation that

Continue Reading California Assembly Bill on Website Accessibility Downgraded from Potential Lawsuit Tsunami to 2024 Weather Watch

By Kevin Fritz

Gavel on sounding blockWhen people think of the term “public accommodation,” images of restaurants, storefronts, and hotels come to mind.  The Department of Justice’s (DOJ) recent Consent Decree with a moving company provides an important reminder that service providers can also be considered a “place of public accommodation” covered by Title III of the ADA.  Title III of the ADA
Continue Reading DOJ Consent Decree Is A Reminder That Service Providers Are Public Accommodations

By Kristina Launey

disabled buttonLast week, a California State Court became the first in the nation to rule that a retailer violated the Americans with Disabilities Act due to a website that is not accessible to individuals with vision-related disabilities.  As we have previously reported, courts have ruled on whether the ADA applies to websites, but have always stopped short
Continue Reading A First: California Court Rules Retailer’s Inaccessible Website Violates ADA

By: Minh Vu

iStock_000016636778MediumIn late December, nine Democratic senators (Edward J. Markey (D-Mass), Elizabeth Warren (D-Mass.), Sherrod Brown (D-Ohio), Cory A. Booker (D-N.J.), Barbara A. Mikulski (D-Md.), Richard Blumenthal (D-Conn.), Benjamin L. Cardin (D-Md.), Al Franken (D-Minn.) and Richard J. Durbin (D-Ill.)) sent a joint letter to the Office of Management and Budget (OMB) requesting that office “complete its review”
Continue Reading Nine U.S. Senators Urge Obama Administration to Issue Title III Website Regulations ASAP

disabled buttonBloomberg BNA and Lifezette yesterday published articles about the “explosion” of web accessibility lawsuits, quoting Seyfarth ADA Title III Team Leader Minh Vu.  The articles come on the heels our blog reporting on the of the DOJ’s further delay of web accessibility regulations until at least 2018. For more on this surge of litigation activity, and what your business
Continue Reading Articles On Rising Website Accessibility Lawsuits Quote Seyfarth Title III Team Lead

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
Continue Reading Justice Department Delays Web Accessibility Regulations For At Least Three More Years, Leaving Businesses in Turmoil

By: Eden Anderson

In 2012, California’s Department of Fair Employment and Housing (“DFEH”) filed a lawsuit against the Law School Admissions Council (“LSAC”) alleging that LSAC was discriminating against, and routinely failing to grant appropriate accommodations for, test takers with disabilities on the Law School Admissions Test (“LSAT”).  DFEH alleged that LSAC was violating the ADA and the state’s Unruh
Continue Reading LSAC Agrees To Pay Over $9 Million To Settle Lawsuit Over Testing Accommodations And Commits To Substantial Injunctive Relief

By Minh Vu

Only four months into 2014, the Department of Justice (DOJ) has already made clear that it is pursuing an aggressive enforcement agenda when it comes to the obligation of public accommodations to ensure effective communication with individuals with disabilities.  On March 3, the DOJ entered into a consent decree with H&R Block that requires the company’s website, tax preparation tool, and mobile applications to be accessible.  On April 10, the DOJ filed a Statement of Interest in a pending case to support the plaintiff’s position that retailers must provide a means for blind customers to independently input their personal identification numbers (PIN) at point of sale devices (POS) when making purchases using a debit card.  The clear message is that DOJ will get involved in private litigation when it does not like the positions or arguments made by defendants.   As these and other businesses know, a DOJ intervention can be a game changer in a pending case.  The DOJ brings its expertise and agency authority to the table which some judges may find persuasive even if they are not required to defer to the agency’s interpretation of its own regulations.

Website and Mobile Application Accessibility.  The H&R Block lawsuit was originally filed by the National Federation of the Blind of Massachusetts and two of its members . The plaintiffs alleged that H&R Block’s website is not accessible to the blind.  In December 2013, the DOJ filed a motion to intervene in the case with a broader complaint alleging that H&R Block had violated the ADA by having a website that was inaccessible to people with various disabilities, not just the blind..  The lawsuit was a bold move considering that DOJ had not issued (and still has not issued) proposed regulations defining the standard for what constitutes an “accessible” website.

In March, DOJ and H&R Block entered into a consent decree in which the latter agreed to make its website, mobile applications, and tax preparation tool comply with the Website Content Accessibility Guidelines (WCAG) 2.0 AA.  The WCAG 2.0 is a privately developed set of guidelines for website accessibility which can also be adapted for mobile applications.  H&R Block also agreed to pay damages to the named plaintiffs and the maximum civil penalty.  The decree contains stringent monitoring and testing obligations.

Point of Sale Device Accessibility.  This month, the DOJ filed a Statement of Interest in support of a private plaintiff who sued a retailer over an inaccessible POS device.  The plaintiff could not make a purchase using his debit card because he could not input his PIN into the POS device’s smooth touchscreen keypad.  The DOJ intervened to counter two arguments the retailer made:  (1) POS devices are not required to be accessible because the ADA Standards for Accessible Design do not specify standards for them; and (2) the plaintiff was not denied access because he could make his purchase using the alternative methods of cash, credit cards, and debit card payment that is processed as a credit card charge and requires no PIN.

In response to the first argument, the DOJ emphatically stated that the lack of specific technical standards for POS devices does not mean that they are not required to be accessible.  In the absence of such specific standards, DOJ argued, the more general obligation for public accommodations to provide auxiliary aids and services to ensure effective communication would still apply and it would be up to the public accommodation to come up with a way to meet the obligation.  The DOJ noted that while providing POS devices with tactile keypads would be one approach, there could be other technologies that could provide accessibility as well.

In response to the second argument that the blind plaintiff had other payment options besides a debit from his account which would require the input of a PIN,  the DOJ stated that the ADA prohibits differential treatment — not just complete exclusion.  The fact that blind individuals do not have the full range of payment options available to sighted individuals, in DOJ’s view, constitutes such differential treatment.

(After the DOJ’s filing, the district court dismissed the case without prejudice because the plaintiff had not alleged enough facts to establish that he had standing to bring the lawsuit, but since court granted the plaintiff permission to amend his complaint, the lawsuit is not likely to go away).

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What do these recent DOJ actions mean for businesses that have websites, POS devices, or other self-service equipment?
Continue Reading Justice Department Targets Websites, Mobile Apps, and POS Devices

By: Kevin A. Fritz

The Department of Justice recently issued a final rule increasing — due to inflation adjustment — the civil monetary penalties that a court can impose on a public accommodation in an enforcement action brought by the Attorney General under Title III of the ADA.  The amounts of adjustments are determined according to a formula set forth
Continue Reading Justice Department Increases ADA Title III Monetary Penalties

By:  Minh Vu

Nearly three years ago, in September 2010, the Department of Justice (DOJ) announced that it would be issuing proposed regulations governing the accessibility of websites of public accommodations and state and local governments.  The announcement came in the form of an Advanced Notice of Proposed Rulemaking which sought comments from the public about what should be in
Continue Reading Justice Department Pushes Back Date For Proposed Website Accessibility Rules – Yet Again