By John W. Egan
On July 25, 2014, the Department of Justice (DOJ) issued proposed regulations that would require movie theaters with digital screens to show movies with closed captioning and audio description. We covered this development here.
DOJ has requested public comment on a number of issues related to these proposed regulations, including whether closed captioning and audio
Continue Reading Comment Period for Movie Captioning NPRM Opens Today
By John W. Egan
On Friday of last week—the day before the ADA’s twenty-fourth anniversary—the Department of Justice (DOJ) announced a proposed rule that would require movie theaters with digital screens (and possibly those with only analog screens) to show movies with closed captioning and audio descriptions (if available), and to purchase equipment that would allow the transmission of such information to moviegoers with hearing or sight disabilities. The regulations would also require theaters to inform the public about the availability of such captioning and audio descriptions in its advertisements and other communications about the movies they show.
The regulations implementing Title III of the Americans with Disabilities Act (ADA) already require that public accommodations, including movie theaters, provide auxiliary aids and services to ensure effective communication with persons with visual and auditory impairments. The proposed rule would require that movie theaters provide specific equipment and accommodations to patrons who are blind or have low vision, as well as patrons with auditory impairments. DOJ estimates that complying with these proposed requirements would cost the industry between $138.1 and $275.7 million and that a substantial number of small businesses will experience “a significant economic impact.”
The major provisions are discussed below.
By Minh N. Vu and Kristina M. Launey
Although “drive-by” ADA Title III lawsuits alleging physically inaccessible public accommodations facilities will continue to be a mainstay for the plaintiff’s bar, a new type of lawsuit has recently emerged: The “surf-by” lawsuit. In the past month, we have seen an onslaught of case filings and demand letters threatening lawsuits from private
Continue Reading Businesses Nationwide Hit By Wave of Lawsuits Alleging Inaccessible Websites
Ebay has announced that it has teamed with The National Federation of the Blind in a “Web 2 Sustainable Accessibility Partnership Agreement”, aimed to “enhance the accessibility of eBay’s website and mobile applications” Ebay’s announcement states that, through the partnership, “blind buyers and sellers on eBay who use technologies such as text-to-speech screen readers and Braille displays
Continue Reading Ebay Announces Web Accessibility Partnership with the National Federation of the Blind
By Minh N. Vu
The federal government recently released an Unified Agenda announcing that the Department of Justice (DOJ) has delayed to March 2015 the issuance of proposed regulations setting requirements and technical standards for public accommodations websites.
According to the last Unified Agenda, these proposed regulations were to be issued this past April 2014. This is not a positive
Continue Reading Still Waiting For Web Regs: Justice Department Pushes Back Issuance Date For Accessible Website Proposed Regulations (Again)
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 Paul Kehoe and Minh Vu
As noted in an October 2013 blog post (here), more than three years have passed since the Department of Justice (“DOJ”) revised its regulations requiring businesses and state and local governments (“covered entities”) to allow the use of other power-driven mobility devices (“OPDMDs”) in their facilities by individuals with mobility disabilities. Unlike wheelchairs and scooters, OPDMDs are mobility devices that are not designed primarily for use by people with mobility disabilities (e.g., Segways™ and golf carts). Last month, the DOJ issued its first full technical guidance document on this topic. Our takeaway from this recent guidance is that DOJ does not want covered entities limiting the use of OPDMDs, especially Segways, unless there is a very good reason to do so. DOJ also expects covered entities to develop written policies and rules for OPDMD use and train their employees on how to implement those policies.
The guidance restates the five assessment factors that covered entities should analyze when determining whether the use of a particular OPDMD type should be permitted in a particular facility by people with mobility disabilities. They are:
Continue Reading Justice Department Issues New Guidance on the Use of Other Power-Driven Mobility Devices by Individuals with Mobility Disabilities
By Minh Vu and Paul Kehoe
Since we reported that the Department of Justice (“DOJ”) issued its proposed regulations last month concerning the definition of a “disability” under Titles II (applicable to state and local governments) and III (applicable to public accommodations) of the Americans with Disabilities Act (ADA), we have received a number of inquiries about the regulations’ impact and whether clients need to take any action. We share here our initial thoughts.
Background and Key Provisions. The proposed regulations implement the ADA Amendments Act of 2008 (ADAAA) which amended the Americans with Disabilities Act of 1990 (ADA). Congress passed the ADAAA in response to several court decisions, including from the Supreme Court, that narrowly interpreted the definition of “disability.” The point of the ADAAA, according to the DOJ, was to “mak[e] it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the statute.”
In March 2011, the Equal Employment Opportunity Commission (“EEOC”) issued its final regulations to implement the ADAAA’s requirements for Title I of the ADA, which prohibits disability discrimination by employers. These DOJ proposed regulations will implement ADAAA requirements for Titles II and III of the ADA, which prohibit discrimination in state and local programs and by public accommodations, respectively. DOJ’s proposed regulations closely track the statutory requirements of the ADAAA and the EEOC’s final regulations.
The ADAAA did not change the ADA’s definition of disability, which continues to be:
Continue Reading More People Will Be Individuals With a "Disability" Under Proposed Justice Department Regulations
By Minh. N. Vu
The Department of Justice (DOJ) yesterday published a proposed rule to expand the definition of the term “disability” under Titles II and III of the Americans with Disabilities Act (ADA). (Title II applies to state and local governments and Title III applies to public accommodations.) The revision purports to make the Title II and III regulatory
Continue Reading Justice Department Issues Proposed Rule Revising Definition of "Disability"
By Minh Vu and Paul Kehoe
Many individuals with disabilities are choosing other power-driven mobility devices (OPMDs) such as Segways™ over traditional wheelchairs and scooters to provide them with enhanced mobility. In response, as we previously reported, the Department of Justice (DOJ) amended its regulations in 2010 to require businesses to allow the use of OPMDs in their facilities unless the business can establish that the particular OPMD cannot be operated safely within any particular facility. Three years later, businesses still have very little practical guidance from the courts and DOJ about when they may limit the use of these devices.
The regulations specify that businesses must analyze five factors to determine whether they must allow a particular OPMD to be used in a specific facility, including (i) the type, size, weight, dimensions and speed of the device, (ii) the facility’s pedestrian traffic, (iii) the facility’s design and operational characteristics, (iv) whether legitimate safety requirements can be established to permit the safe operation of another OPMD in that facility, and (v) whether the use of that OPMD creates a substantial environmental harm or conflicts with federal land management laws. But there is little guidance on how to apply these factors to specific situations.
The DOJ’s position is that “in the vast majority of circumstances,” public accommodations would have to admit Segways™ and other OPMDs. In its technical guidance document, ADA Update, A Primer for Small Businesses, the DOJ encourages businesses to develop written policies based on these factors specifying when OPMDs will be permitted on their premises and to communicate those policies to the public. However, it does not give examples of scenarios in which OPMDs can be excluded, other than to say a business may be able to limit OPMD use at certain times of the day when a facility has a high volume of pedestrian traffic.
Continue Reading Do I Have to Let Segways™ Used by Persons With Disabilities Into My Business?
