Legislative/Regulatory Actions

Seyfarth Synopsis: In yet another effort to limit predatory ADA lawsuits, California Governor Jerry Brown recently signed into law – effective immediately – legislation that will provide small business owners with some potential relief.

Another year, another attempt in California to reform disability access laws – which presently offer plaintiffs a $4,000 per violation bounty for suing businesses.  But this one might actually make a difference – for small businesses at least. The bill is significant as a demonstration of yet another effort at reform that will still likely have little effect on the big picture.  As the bill’s author has noted, it is a “watered down solution to this lawsuit abuse dilemma.”

On Tuesday, May 10th, Governor Jerry Brown signed into law Senate Bill 269.  The bill became effective immediately.

Most significantly, the legislation creates a third category of businesses exempt from full minimum statutory damages — businesses that have employed 50 or fewer employees on average over the past three years, with a facility that has been inspected by a CASp inspector before the filing of a lawsuit or receipt of a demand letter (and the business was not otherwise on notice of the alleged violations), and the business corrected, within 120 days of the CASp inspection, all construction-related violations noted by the CASp inspector that are the basis for the lawsuit or demand letter.  This third category is added to two other categories of businesses which are eligible for reduced statutory damages by virtue of 2012 reform legislation — the last earnest effort of reform that made it into law, which we wrote about here.

There are quite a few hoops for a small business to jump through to qualify for this new exemption, which is why we doubt it will make much of a difference.

SB 269 also allows an exemption from statutory damages for small businesses (25 or fewer employees and less than $3.5 million in gross receipts annually over the past three years), and only provides protection from enumerated technical violations (things like parking lot paint fading or signage) if the small business can manage to fix them within 15 days of notice of the alleged violations — a really short time.  Often it can take more than 15 days to get a contractor out to re-paint parking lot striping, and much longer than that to order and install proper, compliant signage.

A plaintiff can still recover damages if he shows that he did in fact experience difficulty, discomfort, or embarrassment on the particular occasion as a result of one or more of the technical violations.  This means that the plaintiff could just try to open the door and find a violation inside the facility, or find a violation that doesn’t fall into one of the “technical violations” specified in Civil Code section 55.56(e).

Last year’s reform effort, AB 1521, added Section 425.55 to the Code of Civil Procedure.  That section imposes procedural and substantive conditions (disclosure of number of previous lawsuits filed, the reason the plaintiff was in the geographic location of the alleged violation, and why he/she visited the site) before a “high-frequency litigant” can file a lawsuit in California state courts.  A “high frequency litigant” is a “plaintiff who has filed 10 or more complaints alleging a construction-related accessibility violation within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation or an attorney who has represented as attorney of record 10 or more high-frequency litigant plaintiffs in actions that were resolved within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation.”

AB 1521 also requires, in Government Code section 70616.5, a high-frequency litigant to pay at the time of filing a construction-related accessibility lawsuit in California state court, a $1,000 filing fee in addition to the court’s initial filing fee.  Finally, AB 1521 established state court procedures to evaluate cases that involve a high-frequency litigant as well as procedures for requesting a joint inspection of the premises as part of participating in an early evaluation conference.

We’re often asked what practical effect these California reform bills have on the big picture of ADA lawsuit abuse.  The response, unfortunately, is usually: very little because the statutory damages exceptions apply mostly to small businesses, and the procedural protections only apply to lawsuits filed in state courts, while many ADA cases are filed in federal courts.  On May 4, 2016, the United States District Court for the Eastern District of California issued an Order confirming that defendants sued in federal court are not entitled to a stay of proceedings and an early evaluation conference under California’s disability accessibility laws.

Despite efforts to reign in overzealous plaintiff’s attorneys and bring back the spirit of the ADA and California accessibility laws, the wheels of justice turn slowly.  These bills show the legislature’s attempts to chip away at this issue bit by bit.

Edited by Kristina M. Launey,  Minh N. Vu.

This morning, on Global Accessibility Awareness Day, DOJ participated by issuing its Spring 2016 unified agenda, including upcoming regulatory actions on web accessibility and movie captioning.

Click on the links to the right in the bullets below for the lowdown on each rule, but here are a few highlights:

AA65: State and Local Government web accessibility regulations.  No need to follow this like a bloodhound; the DOJ just issued a Supplemental Advanced Notice of Proposed Rulemaking, which we reported here.  Watch this space for an imminent detailed blog on the SANPRM – so you don’t have to slog through the 30 pages of small print.  The comment period closes in August 2016, and the NPRM is due out in July 2017, with comment period on the NPRM to end in September 2017.

AA60: Regulation to reflect statutory amendments to the definition of disability applicable to section 504 of the Rehabilitation Act. NPRM due in July 2016, with final action expected by years’ end.

AA59:  Regulations to clarify terms within the definition of disability and to establish standards that must be applied to determine if a person has a covered disability under Title II and Title III, due to statutory changes made in the ADA Amendments Act of 2008. Final rule due May 2016 (like, now!)

AA63:  Movie Captioning and Audio Description regulations.  The final rule is due July 2016; read our take on these regs here.

  • DOJ/CRT – Prerule Stage – Nondiscrimination on the Basis of Disability: Accessibility of Web Information and Services of State and Local Governments: 1190-AA65
  • DOJ/CRT – Proposed Rule Stage – Implementation of the ADA Amendments Act of 2008 (Section 504 of the Rehabilitation Act of 1973): 1190-AA60
  • DOJ/CRT – Final Rule Stage – Implementation of the ADA Amendments Act of 2008 (Title II and Title III of the ADA): 1190-AA59
  • DOJ/CRT – Final Rule Stage – Nondiscrimination on the Basis of Disability; Movie Captioning and Audio Description: 1190-AA63

So it’s possible we could have several interesting things happen in 2016.  Do we believe that everything will come out when DOJ says it will?  No.  No, we do not, if history is any indication.  Will we (Susan Ryan) check these diligently every day like our old friend Sisyphus with his boulder?  Yes.  Yes, she will.

Oh, and in case you remember that old chestnut AA61, the Title III almost-proposed web regulations (which we’ve reported on ad nauseum), that apparently does not merit an entry in the Unified Agenda.  The focus is all Title II (AA65) now.  There’s a mention of the Title III almost-proposed regulations in the AA65 write-up, but no indication of any status.

Stay tuned… and if you’re not taking advantage of any of the great information provided by various entities as part of Global Accessibility Awareness Day – all about digital (web, software, mobile, etc.) accessibility and users with different disabilities, check it out: http://www.globalaccessibilityawarenessday.org/!

Seyfarth Synopsis: NYC recently passed a law requiring that its government agency websites meet accessibility standards.  Other state and local governments may follow NYC’s lead and enact accessibility standards for government agencies, contractors and even public accommodations in the absence of regulations from DOJ.

On March 14, New York City became the first major municipality in the United States to adopt legislation mandating accessibility standards for all of its government agency websites.  Serving a population of over 8 million, the New York City government includes more than 120 agencies staffed by approximately 325,000 employees.  This legislation will have an impact on City agencies, and access for persons with disabilities to those institutions.  It may also have an impact on future website regulations impacting businesses across the country.

Recent NYC Legislation

The website legislation (Intro. 683-A) was among three disability access bills that Mayor Bill De Blasio signed into law on the same day.  In addition to mandating website protocols, the legislation requires that each City agency designate a “disability service facilitator,” and publicize, among other things, the availability of wheelchair access, communication access real-time translation, sign language interpretation, assistive listening systems (e.g. loop technology), and any other accommodations to be made available for all public events.  This sweeping legislative mandate also expressly requires that City government websites display New York State’s controversial “Accessible Icon” (rather than the International Symbol of Access), to designate venues for government meetings or other events that are accessible to wheelchair users.

NYC Must Adopt an Accessible Website Protocol within 6 Months 

The new City law underscores that the Web Content Accessibility Guidelines 2.0 Level AA (“WCAG 2.0 AA”) is increasingly becoming the de facto standard for website accessibility, despite the continued lack of any regulations from the U.S. Department of Justice (“DOJ”) setting a legally-required standard for state and local governments under Title II of the ADA, or for public accommodations (i.e. private businesses) under Title III.

Under the new law, the City must establish a website protocol within 6 months that incorporates: (1) Section 508 of the Rehabilitation Act (“Section 508”); (2) WCAG 2.0 AA; or (3) any “successor” standards.  The Section 508 standard applies to the federal government websites and  consists of a list of 16 requirements that are less rigorous than WCAG 2.0 AA.  But last year the Access Board proposed a rule that would, among other things, adopt WCAG 2.0 AA as the new website standard under Section 508.  Thus, if the City incorporates Section 508 in its website protocol, its agency websites may be subject to WCAG 2.0 Level AA once the final Section 508 regulations are issued.

There are several exceptions to the new accessibility mandate.  The City may adopt protocols that differ from Section 508, WCAG 2.0 AA, or any successor standard, but if it does, it must first consult with experts in website design, conduct a public hearing, and ensure that any differences will still provide effective communication for persons with disabilities.  In addition, the law does not require the “fundamental alteration” of any service, program, or activity, and shall not impose an “undue financial or administrative burden.”

Potential Impact on Businesses

The adoption of accessibility standards for government websites in the most populous city in the United States is significant.  Other municipalities may follow New York City’s lead and pass their own legislation or regulations for accessible features in government websites.  This may result in differing local standards across jurisdictions, which would undermine DOJ’s efforts to implement a comprehensive, national set of rules for website accessibility under Title II of the ADA.

State and local legislators may decide to extend the WCAG 2.0 AA’s reach to the websites of private businesses doing business with state or local governments, or the public, after they are done dealing with their agency websites.  This could follow the model of Ontario, Canada, where the provincial government enacted regulations requiring businesses with 50 or more employees in Ontario to ensure that their websites meet WCAG 2.0 Level A guidelines (and to meet WCAG 2.0 Level AA by 2021).  Based on the progressive legislative and regulatory agenda of the current mayoral administration, we would not be surprised if New York City passed a future law requiring that government contractors or businesses with a presence in the City provide accessible websites.

The bottom line is that if DOJ continues to delay in issuing proposed rules for website accessibility, states and local governments may step into that void and enact rules of their own for government entities, contractors, and even public accommodations.  This could subject businesses to potentially inconsistent rules across jurisdictions.  It is yet another reason why DOJ guidance on this topic is needed now more than ever.

Edited by Minh Vu and Kristina Launey.

As we reported in July of 2014, the DOJ is working on final regulations that would require movie theatres with digital screens to show movies with closed captioning and audio description.

At a cost to the industry that DOJ estimated will be between $138.1 and $275.7 million, the proposed regulations would require that all movie theatres with digital screens (other than drive-ins) provide a minimum number of devices for visually and hearing impaired moviegoers based on seating capacity, acquire movies with these features where available, ensure that there is at least one person on-site to locate and operate this equipment, and inform customers of the availability of these features in movie times shown in wide variety of advertising materials.

We just learned that a draft Final Rule has gone to the Office of Management and Budget (OMB) for review, which is the final stage of the rulemaking process.  The projected Final Rule publication date is May of this year.  That said, these projected dates have often been moved before (especially when it comes to website regulations), so we are not holding our breath.

Stay tuned to the blog for more updates.

Edited by Kristina Launey and 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.

Marcapitolianne Wilson of Chain Store Age Media reported today that the “ADA Education and Reform Act of 2015”, H.R. 3765, introduced yesterday, October 20, 2015, by Representatives Ted Poe (R-TX), Doug Collins (R-GA) and David Jolly (R-FL), seeks to address ADA “drive-by” lawsuits. This is a topic about which we’ve reported about numerous times, such as here. Wilson reported Tom McGee, president and CEO of the International Council of Shopping Centers (ICSC), a group endorsing the proposed legislation believes the bill will “ensure[] resources are focused on improving access while protecting businesses from abusive lawsuits.” The article notes ICSC cited our blog’s data, which shows that from 2013 to 2014 the number of ADA Title III lawsuits surged by more than 63%.

What would the bill require?

The bill would require that DOJ’s Disability Rights Section, in consultation with property owners and representatives of the disability rights community, develop a program to educate State and local governments and property owners on effective and efficient strategies for promoting access to public accommodations for persons with a disability, such as training for Certified Access Specialist professionals.

The bill would also make it unlawful for any person to send a demand letter alleging a violation of the ADA unless the letter specifies details about the alleged denial of access circumstances, the address of the property, the specific sections of the ADA violated, and whether a request was made to remove an architectural barrier, and whether the barrier to access was permanent or temporary. Failure to comply with that provision subjects the demanding party to a fine. It also would amend the ADA to provide that a civil action based on failure to remove architectural barriers in existing public accommodations may not be brought unless the complaining party has first provided specific notice to the owner or operator of the public accommodation, after which the owner or operator would have 60 days to provide a written description of improvements to remove the barrier, and the owner or operator has not made those improvements within 120 days.

Finally, the bill directs the US Judicial Conference to, with property owners and representatives of the disability rights community, develop a model program to promote the use of alternative dispute resolution mechanisms, including a stay of discovery during mediation, to resolve claims of architectural barriers to access. The goal of the program would be promote access quickly and efficiently without costly litigation. As many are aware, such a program already exists in the U.S. District Court for the Northern District of California. Its General Order 56 requires a stay of discovery except for certain disclosures until after a joint inspection, meet and confer, and mediation with the Court’s ADR unit has occurred.

We will continue to follow this legislation as it moves through the process.

Review of Disabled Persons Act Applicability to Websites Withdrawn; California Agency Issues Guidance on CASp Benefits; and Novel New Serial Lawsuits Filed Against Car Dealerships

By Kristina Launey

As we’ve discussed previously, California is a hotbed for disability access suits – both based upon alleged physical accessibility violations of California law and the ADA and based upon alleged inaccessible websites.  Three recent developments on this front merit mention:

First, the California Division of the State Architect recently posted useful information regarding its interpretation of why a business may want to hire a Certified Access Specialist to inspect and certify a property at: Why is it Beneficial to Hire a CASp? And Other Frequently Asked Questions.  The page explains the law in California which authorizes private plaintiffs to receive statutory damages of up to $4,000 per occurrence of violation as well as the legal benefits and protections a CASp consultant’s evaluation can provide a business when faced with such a lawsuit.

Second, we had expected some guidance from the California Supreme Court regarding whether the Disabled Persons Act applies to businesses’ websites after the Ninth Circuit in Greater Los Angeles Agency on Deafness et al. v. Cable News Network, Inc. certified the issue to that Court.  On October 10, the Ninth Circuit withdrew its request for review after GLAAD agreed to dismiss its action with prejudice in exchange for CNN’s promise not to seek attorneys’ fees and costs and CNN voluntarily dismissed its appeal in the Ninth Circuit.  Despite the lack of judicial and regulatory guidance, lawsuits, demand letters, and enforcement actions over alleged inaccessible websites continues.

Finally, in the category of what new serial lawsuit trend is hot in California right now, we’ve seen a wave of lawsuits filed against car dealerships by one firm in California alleging violations of law based upon the car dealerships’ failure to offer and refusal to install vehicle hand controls on vehicles for persons with disabilities to test drive the vehicles.

As always, we’ll continue to monitor disability access developments in California and nationwide to keep you up to date.

Edited by Minh Vu

By Kevin Fritz

Members of the European Parliament voted last week to strengthen a proposed European Directive on Accessibility of Public Sector Bodies’ Websites.  The beefed up version of the directive would require all UK public sector websites to be accessible to users with disabilities; not just those sites proposed by the European Commission, such as social security benefits and enrolment in higher education.  The proposed directive is intended to benefit individuals with disabilities across the EU, and increase the potential of the internal market for web accessibility products and services.  The amended version would also strengthen monitoring of EU bodies’ conformance with the law.  Until the EU institutes its own specific technical web accessibility standards, the level of accessibility required by the proposed directive would be level AA of the international technical standard WCAG 2.0.  And while the recommended amendments are likely to become adopted, it is unlikely that a final agreement will take place before early 2015.

For more on the new EU public sector web accessibility rules, check out: http://bit.ly/1orjE1a.

Edited by Kristina Launey and Minh Vu

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 and Kristina M. Launey

Now that we are all back in work mode, we thought it would be useful to take a quick look at some of the major ADA Title III trends and highlights of 2013 and how they will impact the coming year.   

Digital Accessibility.  We saw a definitive uptick in the number of issues relating to the accessibility of electronic information technology by individuals with disabilities.  Individuals with sight disabilities complained that they could not access the websites of businesses, or that they had trouble using mobile applications that were not fully compatible with the screen readers provided on their mobile devices.  The enforcement agencies in Massachusetts and New York took a keen interest in these issues, which resulted in some businesses agreeing to make their websites and mobile applications accessible to people with disabilities.  Private litigants and advocacy groups were also successful in persuading businesses to voluntarily make their websites accessible. 

The Department of Transportation (DOT) issued its final regulations under the Air Carrier Access Act, requiring airlines to make their websites accessible to people with disabilities by complying with Levels A and AA success criteria of the Web Content Accessibility Guidelines (WCAG) 2.0 within the next few years.  The DOT’s adoption of this standard suggests to us that the Department of Justice (DOJ) will also propose this standard for the websites of public accommodations.  When those proposed regulations will come out is still uncertain, but we predict it will be sometime in 2014. 

Perhaps the most significant news in the area of website accessibility is that DOJ sought to intervene in a private class action brought against a public accommodation for not having an accessible website.  While DOJ has always pressured businesses behind the scenes to make their websites accessible, this is the first enforcement suit of its kind, filed before DOJ has even issued proposed regulations defining what constitutes an accessible website.  The proposed complaint cites to the WCAG 2.0 as a well-accepted industry guideline, further persuading us that the DOJ will in fact adopt this set of guidelines as its legal standard when it finally issues its proposed rule.

Businesses are taking note of the increased private and governmental enforcement activity relating to websites and digital accessibility more generally.  We are seeing businesses be more proactive about this issue and trying to include accessibility in new websites, new web pages, and new contracts with partners that are involved with development of website content.   This is a smart move, as digital accessibility will almost certainly continue to be a hot area in 2014.

Pool Lift Lawsuits Against Hotels.  If you stayed at a hotel with a swimming pool or spa in 2013, you might have noticed that the swimming pool and/or spa had a crane-like device with a seat installed next to it.  These devices are used by people with mobility disabilities to get in and out of a pool or spa.  The DOJ’s 2010 ADA Title III regulations required these lifts to be installed in existing public accommodations facilities by January 31, 2013, unless doing so was not readily achievable.  As we predicted, within several months after the deadline, plaintiffs’ attorneys began filing a flurry of lawsuits in Ohio and Indiana alleging that certain hotels did not have pool lifts, even though some actually did.  We anticipate that more lawsuits of this type will be filed in 2014.

Point of Sale Device Class Actions.  In the second half of 2013, a number of major retailers across the United States were hit with class actions filed in the Western District of Pennsylvania by a blind plaintiff alleging that he and other blind people are being denied access because they cannot use Point of Sale (POS) devices that do not have a tactile keypad for inputting personal identification numbers.  Although the ADA Title III regulations do not specifically address POS devices and their accessibility to the blind, tactile keypads on POS devices have been required in California for several years.  We will report on developments in these pending cases as they arise.

New California Accessibility Standards.  Effective January 1, 2014, the 2013 California Building Code’s (“CBC”) requirements were substantially revised and reorganized to be  more consistent with the federal  2010 ADA Standards for Accessible Design (“ADA 2010 Standards”). However, many substantial differences remain, so businesses in California should take care to comply with both the ADA 2010 Standards and CBC, or if the standards conflict, with the stricter – meaning that which provides greater access.  Businesses should also remain mindful of the other California distinction  – statutory damages of $1000-$4000 per violation – which makes vigilant compliance with the CBC and 2010 ADA Standards that much more important to California businesses.

New Mobile Apps that Rate the Accessibility of Businesses.  In 2013, entrepreneurs with disabilities launched two new mobile applications — AbleRoad and AccessMap — that allow the public to rate and review how accessible business establishments are to people with disabilities.  We reported on these applications and will continue monitoring to see how they develop and whether they will become a litigation research tool for serial plaintiffs and their lawyers. 

Challenges in Renovations Due to Changes in the 2010 Standards.   Effective March 15, 2012, all public accommodations and commercial facilities had to start complying with the 2010 ADA Standards in constructing new facilities and altering existing ones, subject to very limited exceptions.   In 2013, we began seeing some of the challenges the new standards present as hotels renovate spaces that are compliant with the prior set of ADA Standards but must now be brought up to the 2010 ADA Standards because they are being altered.  For example, the 2010 ADA Standards require different bathroom configurations in accessible guestrooms than the 1991 Standards and some hotels are finding it very difficult and/or expensive to make those bathrooms comply with the 2010 Standards.  This issue will continue to be a problem in 2014 and for many years to come.

We thank you for your readership last year and look forward to bringing you more ADA Title III News and Insights in 2014.