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Cartoon image of computer

By Kristina Launey and John W. Egan

Seyfarth Synopsis: DOJ issues useful new Guide to help small governmental entities understand the new web and mobile app accessibility requirements under Title II of the ADA.

On May 22, 2024 the Department of Justice (“DOJ”) published a Small Entity Compliance Guide to help people who work for or with state or local governments understand the web content and mobile app accessibility requirements of newly-issued regulations under Title II of the Americans with Disabilities Act (“ADA”). The Guide reviews reasons why the DOJ established these specific requirements to ensure that people with disabilities have access to the services, programs, and activities of state and local governments, and to provide greater clarity about what covered entities must do to comply with the new requirements.  

The Guide explains that state and local governmental entities must comply with the Web Content Accessibility Guidelines (“WCAG”), Version 2.1 Level AA technical standard for covered web content and mobile apps, subject to several exceptions, which are illustrated by helpful examples of situations that would satisfy, and fail to satisfy, those exceptions.

Under a “plan for success” section, the Guide advises that covered entities should create and implement policies, processes, and training to ensure compliance with the web content and mobile app requirements. These principles are generally consistent with terms of website accessibility settlement agreements the DOJ has entered into over the last seven or so years. The Guide also reminds covered entities of the applicable compliance deadlines based on the entity’s population size:

State and local government sizeCompliance date
0 to 49,999 personsApril 26, 2027
Special district governmentsApril 26, 2027
50,000 or more personsApril 24, 2026

The Guide should be required reading for every state or local government entity, large or small. While the compliance deadlines may seem distant, covered entities should be taking steps now to address these new requirements. Beyond Title II, the Guide’s discussion and examples of exceptions to WCAG conformance is particularly important for in-house web developers, accessibility and other compliance personnel, and attorneys of companies subject to Title III to carefully digest and consider, as the DOJ will almost certainly apply the same principles in enforcement actions and likely incorporate them in any Title III rulemaking process. 

Service dog.

By Ashley S. Jenkins and Kristina M. Launey

Seyfarth Synopsis: A Puerto Rico federal court holding reminds us that an animal that performs work or tasks for a person with a psychiatric disability – such as identifying the onset of a panic attack and taking action to mitigate its effect – is a service animal.

It is a common misconception that service animals are limited to dogs that wear a “guide dog” vest and assist individuals who are blind.  

A recent ruling out of a federal trial court in Puerto Rico serves as a reminder that service animals perform different work and tasks for individuals with a variety of disabilities, such as detecting the onset of a panic attack and/or decreasing the duration of the event for individuals with severe anxiety or panic disorders.

In this case, an employee at a fast food restaurant in Puerto Rico mistakenly believed that only “guide dogs for the blind” were allowed inside the restaurant. The restaurant employee told the plaintiff she could not enter the restaurant with her American Bulldog mix (often referred to as a “bully breed”), because her dog was not a “guide dog.”  After the plaintiff explained that service animals can be dogs that perform other work or tasks, the restaurant operator allowed her to enter with her service animal but she filed a lawsuit anyway.  The court concluded that the initial denial did not violate the ADA and granted summary judgment to the restaurant.

The ADA defines a service animal as a dog that is individually trained to do work or perform tasks for people with disabilities.  In this case, the plaintiff claimed she suffers from severe anxiety disorder and panic disorder, “conditions that affect her neurological system, her brain and her day-to-day activities of thinking and standing upright during dizzy spells associated to panic episodes.”  The court found that the plaintiff’s dog is a service animal because it “detect[s] the Plaintiff’s panic attacks, [and] gets close to and distracts her to help her out of the panic attack quicker.”  

While a relatively simple case, it is a variation of a fact pattern we see often: employees who are not properly trained making and acting upon unfounded assumptions about what types of dogs can be service animals, and what types of tasks service animals may perform. While not an issue in this case, we also see employees who incorrectly believe that service animals must have documentation or vests/collars identifying them as service animals.  This case reminds us that: (1) not all disabilities are visible; (2) service animals provide a variety of work and services to assist individuals with disabilities; and (3) public accommodations cannot exclude a service dog based on breed; rather, a dog may only be excluded if out of control.  And finally, don’t forget that miniature horses are also protected under the ADA as long as they are trained to perform work or tasks for individuals with disabilities.  The rules that apply to service dogs also apply to them.

Edited by Minh Vu

department-g7072af42e_1280
Department of Justice logo.

By Minh N. Vu and John Egan

Seyfarth Synopsis:  The DOJ issued final regulations under Title II of the ADA requiring state and local government websites and mobile apps to conform to WCAG 2.1 AA in two or three years, with few exceptions. 

Update: On April 24, 2024, the Final Rule was published in the Federal Register.  Under the now-finalized ADA Title II regulation, state and local governments with a population of 50,000 or more will have to comply with WCAG 2.1 AA by April 24, 2026; those covered entities with a population of less than 50,000 will have until April 26, 2027 to comply.    

The U.S. Department of Justice (DOJ) announced yesterday the issuance of a Final Rule which requires the websites and mobile apps of state and local governments to comply with the Web Content Accessibility Guidelines 2.1 Levels A and AA (“WCAG 2.1 AA”) in two or three years, depending on the number of people within their jurisdictions.  The Final Rule does contain some narrow exceptions to this requirement, but is overall quite stringent.  Case in point:  Even though the WCAG 2.1 AA allows for the use of a “conforming alternate version” of a website to provide access, the Final Rule limits the use of such conforming alternative versions to where it is not possible to make web content directly accessible due to technical or legal limitations.  In addition, the DOJ chose WCAG 2.1 AA even though the federal government only has to conform its websites, under Section 508 requirements, with the less demanding WCAG 2.0 AA.

There is quite a bit to unpack in the 320-page Final Rule so we will back later with more analysis and takeaways.  In the meantime, the DOJ did provide a helpful Fact Sheet which contains a summary of the major points.  As we have mentioned previously, this Final Rule is important because it will likely provide the roadmap for future DOJ regulations for public accommodations websites and mobile apps under Title III of the ADA.  If the Biden Administration gets a second term, we predict such a proposed rule will issue.

Edited by Kristina Launey

pexels-katrin-bolovtsova-6077326
Judge banging a gavel.

By Lotus Cannon and Minh Vu

Seyfarth Synopsis:  SDNY Judge Mary Kay Vyskocil dismisses with prejudice a website accessibility lawsuit with vague allegations about plaintiffs’ standing.

The U.S. District Court for the Southern District of New York (SDNY) has been a highly favored venue for serial plaintiffs bringing website accessibility lawsuits for years – at least in part because many judges have refused, at the outset of a case, to dismiss complaints with boilerplate allegations about a plaintiff’s standing to sue.  However, last year, we saw one decision from SDNY Judge Colleen McMahon that conducted a more rigorous standing analysis in website accessibility cases, and last week another SDNY Judge Mary Kay Vyskocil took a similar approach.  Judge Vyskocil dismissed with prejudice a website accessibility complaint for lack of standing after a meaningful analysis of the plaintiffs’ boilerplate complaint.

The plaintiffs – two self-described testers who are blind – sued an online retailer, claiming that  the retailer’s website violated the ADA and the New York State Human Rights Law because of various technical barriers that the plaintiffs allegedly encountered.  The plaintiffs had previously filed multiple lawsuits against operators of various commercial websites.

The Complaint allegations were vague but similar to those that some other SDNY judges have considered sufficient to establish standing at the outset of a lawsuit.  The plaintiffs alleged that they visited the website for the purpose of purchasing products, goods, and/or services and that each encountered various technical barriers, such as “redundant links” and “improperly labeled headings.”  As to their intent to return to the website, the plaintiffs alleged that they were “highly interested” in purchasing Defendant’s products and intended to purchase certain goods and services in the future, and intended to return to the website once the alleged accessibility barriers were removed.

The Court held that Plaintiffs’ conclusory allegations failed to establish an injury in fact to confer standing.  The Court noted that Plaintiffs each alleged only a single visit to the website and alleged no facts supporting their interest in the products or services on the website, such as how they learned of the website, what piqued their interest in the website, what particular products they viewed or were interested in purchasing, and whether they searched for comparable products elsewhere.

The Court pointed to the plaintiffs’ other “carbon-copy complaints,” nine of which were filed on the same day as the Complaint at issue, as further evidence that Plaintiffs did not suffer an injury in fact, referencing the Second Circuit’s Calcano decision blasting “Mad-Libs-style” complaints.

Notably, while dismissals based on lack of standing are typically without prejudice, the Court issued the decision with prejudice and denied Plaintiffs’ leave to amend. The Court justified its decision with Plaintiffs’ refusal to amend the Complaint even after the defendant pointed out all the pleading deficiencies in its pre-motion letter to the Court.

The Court also dismissed Plaintiffs’ NYSHRL claim based on lack of standing, rather than following the usual course of declining to exercise subject matter jurisdiction over state law claims. 

This decision suggests that some SDNY judges may be fed up with the volume of “cut and paste” complaints in their courts and actually requiring Plaintiffs to plead facts, as opposed to boilerplate conclusions, to establish standing.  Let’s see if this becomes a trend. 

Edited by John W. Egan

onesix-LBikV4HMGwM-unsplash
"Order Here" Self-service kiosk

By Kristina Launey and Ashley Jenkins

Seyfarth Synopsis: Ninth Circuit paves the way for nationwide class action concerning the accessibility of healthcare check-in kiosks for individuals who are blind.

On February 8, 2024, the U.S. Court of Appeals for the Ninth Circuit approved a federal trial court’s certification of two classes of plaintiffs to proceed against LabCorp regarding the alleged inaccessibility of self-service check-in kiosks at LabCorp’s facilities. In the lawsuit, filed in the Central District of California in January of 2020, the named plaintiff who is blind claimed that he was denied effective communication and equal access to LabCorp’s services because the kiosks cannot be used without sight. The plaintiff claimed that unlike sighted customers, he had to wait for a staff member to notice him and assist him with check-in, forcing him to wait longer to get into the patient queue, and was not able to access other kiosk features like the ability to privately alter account information.

On the appeal of the class certification grant, LabCorp argued that the named plaintiff and other class members did not have standing to pursue their claims because they were not injured by the kiosks’ inaccessibility.  The Court disagreed, holding that the named plaintiff could not use the inaccessible kiosk and had to wait for an employee to notice him and check him in.  Based on these facts, the Court concluded that the named plaintiff “was denied effective communication and, by extension, the full and equal enjoyment of LabCorp’s services.”  While some plaintiffs will undoubtedly rely on this statement to claim that self-service kiosks must always be accessible, such a position would be contrary to the caselaw and DOJ’s prior guidance that providing prompt employee assistance is a lawful method for ensuring effective communication.  It is also noteworthy that the court made this statement in an unpublished decision while deciding if the plaintiff has standing as opposed to the merits. 

The Court also rejected LabCorp’s argument that the commonality requirement for class certification was not met because the standing of each class member to pursue the Unruh Act damages claim requires an “individualized inquiry” into whether each class member has demonstrated “difficulty, discomfort, or embarrassment.”  The Court disagreed with this argument, finding that this standard only applies to the standing inquiry for construction-related Unruh Act claims, not for effective communication claims.  The Court accordingly found the class commonality requirement satisfied because “all class members maintain that their injury resulted from the inaccessibility of a LabCorp kiosk.”  The Court found the other Unruh Act damages class requirements of predominance, typicality, manageability, and superiority also satisfied.

As for the ADA injunctive relief class, the Court rejected LabCorp’s argument that no single injunction could provide relief to all class members because not all blind people prefer the same accommodations.  The Court found that the class members were injured by the “complete inaccessibility of LabCorp kiosks for blind individuals”, not by LabCorp’s failure to meet their preferences.  The Court adopted the district court’s reasoning that the entire class’s injuries could be addressed by making the kiosks accessible, even if some class members may prefer not to use the kiosks.

The two classes certified are: (1) a California class seeking damages under California’s Unruh Civil Rights Act, and (2) a nationwide class seeking injunctive relief under the Americans with Disabilities Act (ADA), the Rehabilitation Act, and Affordable Care Act. The case will now proceed back in the district court on the merits of the claims.

Given the recent proliferation of self-service equipment in public accommodations, this case serves as an important reminder that before entering into contracts for such equipment, businesses must consider whether the equipment is accessible to users with disabilities and, if not, whether there will be employees in the area to provide prompt assistance.  And while some courts have held that prompt employee assistance can be provided at inaccessible self-service equipment to comply with the ADA, providing accessible self-service equipment mitigates risk of litigation.

Edited by Minh Vu

pexels-ron-lach-9594681
Price tag hanging from shirt.

By Minh N. Vu & Lotus Cannon

Seyfarth Synopsis:  Federal court in New York reaffirms that reading information aloud to customers who are blind or low vision is still an acceptable auxiliary aid or service and retailers do not have to offer accessible goods.

On January 30, 2024, U.S. District Judge Rachel Kovner of the Eastern District of New York ruled that a clothing retailer does not have to provide digital labels for its products (some offer digital labels on product tags, such as QR codes, which can be scanned and read aloud by screen readers on mobile phones).  The decision is a nice win for retailers, particularly since the plaintiff never asked for assistance while in the store, but instead filed a claim based on the theory that retailers that do not provide digital labels on their products, irrespective of whether they were willing and able to provide one-on-one assistance to blind or low vision customers, violate Title III of the ADA. 

The plaintiff, who is blind, sued Gap claiming that the lack of digital labels on products sold at its stores violates Title III of the ADA as well as New York State and New York City disability access laws by: 1) denying customers with disabilities full enjoyment of its goods and services; and 2) failing to provide “auxiliary aids and services” to ensure effective communication. 

The Court held that Gap does not have to provide digital labels because a place of public accommodation does not have to offer accessible versions of its goods or products, or alter its goods or services to make them accessible, so long as it provides access to its existing goods and services.  Since product labels are part of, and intertwined with, the products sold, they are not required to be accessible.  The Court also cited to 36 C.F.R. § 36.307(a) which provides unequivocally that a public accommodation is not required under Title III “to alter its inventory to include accessible or special goods that are designed for, or facilitate use by, individuals with disabilities.”  Additionally, the Court relied on the Second Circuit’s decision addressing the Braille gift cards in Calcano v. Swarovski N. Am. Ltd. 

The Court also found that the complaint had not plausibly alleged that Gap stores failed to provide the plaintiff with auxiliary aids or services to ensure effective communication because there was no allegation that the plaintiff asked for assistance from in-store employees to read the product labels aloud or other auxiliary aids.  And in response to the plaintiff’s argument that she would not be able to access the label information at home, Judge Kovner held that the ADA’s mandate to provide auxiliary aids and services “is not, by its terms, concerned with regulating the performance of products in consumers’ homes.” 

Interestingly, the Court dismissed the Complaint without prejudice, and gave the plaintiff thirty days to file an amended complaint.

A victory for public accommodations, this decision reinforces the following legal principles:  (1) businesses do not have to provide accessible goods, such as digital labels; (2) reading product and other information to customers who are blind or low vision is an acceptable auxiliary aid in the retail context; and (3) individuals with disabilities cannot assert a claim that they were denied auxiliary aids or services unless they actually asked for them.  To benefit from this legal framework, businesses must ensure that employees are properly trained to promptly provide assistance to customers with disabilities upon request.

Edited by John Egan

By Kristina M. Launey, Minh N. Vu, and Susan Ryan

Seyfarth Synopsis: In 2023, the number of ADA Title III lawsuits filed in federal court declined but still exceeded 8,200 for a second year in a row.

From 2013 to 2021, federal court ADA Title III case filings climbed steadily to a staggering 11,452 in 2021.  The number of filings fell dramatically by 24% in 2022, and then declined another 5% to 8,227 in 2023.  That said, this is still a very big number and triple the number of cases filed in 2013 when we first started tracking these lawsuits.

Total Number of ADA Title III Federal Lawsuits Filed Each Year January 1, 2013 – December 31, 2023.
[Total Number of ADA Title III Federal Lawsuits Filed Each Year January 1, 2013 – December 31, 2023: 2013: 2,722; 2014: 4,436 63% increase over 2013; 2015: 4,789 8% increase over 2014; 2016: 6,601 38% increase over 2015; 2017: 7,663 16% increase over 2016; 2018: 10,163 33% increase over 2017; 2019: 11,053 9% increase over 2018; 2020: 10,982 1% decrease from 2019; 2021: 11,452 4% increase over 2020; 2022: 8,694 24% decrease from 2021; 2023: 8,227 5% decrease from 2022]

For the second year in a row New York led the country in ADA Title III federal filings with 2,759 cases.  California came in second again with 2,380 filings, and Florida stayed in third place, with 1,415 cases.  Of these top three states, Florida was the only one that saw an increase in the number of federal suits from 2022 to 2023. 

Rounding out the top ten were Texas (224), Illinois (202), Pennsylvania (189), Tennessee (134), Missouri (121), Georgia (120) and New Jersey (115).  All of these states had fewer filings than in 2022, except for Illinois and New Jersey – both of which recorded their highest number of ADA Title III case filings since we began tracking filings in 2013.

Top 10 States with Federal ADA Title III Lawsuits Filed January 1, 2023 – December 31, 2023
[Top 10 States with Federal ADA Title III Lawsuits Filed January 1, 2023 – December 31, 2023:  New York: 2,759; California: 2,380; Florida: 1,415; Texas: 224; Illinois: 202; Pennsylvania: 189; Tennessee: 134; Missouri: 121; Georgia: 120; New Jersey: 115]

Two states leaving the Top 10 were Colorado and Massachusetts.  Colorado plummeted to only 33 cases, and Massachusetts saw 57 filings.  New to the Top 10 chart are Illinois and New Jersey.

At the other end of the spectrum, Alaska, Montana, Nebraska, North Dakota, South Dakota, West Virginia and Wyoming had no filings in 2023.  Each year, we have a slightly different list of states, but North Dakota wins the award for no ADA Title III filings going back to 2013. 

California, New York, Florida ADA Tile III Federal Lawsuits 2013-2023.
[California, New York, Florida ADA Tile III Federal Lawsuits 2013-2023: California: 2013: 995; 2014 1,866; 2015: 1,659; 2016: 2,458; 2017: 2,751; 2018: 4,249; 2019: 4,794; 2020: 5,869; 2021: 5,930; 2022: 2,519; 2023: 2,380; Florida: 2013: 816; 2014: 1,553; 2015: 1,338; 2016:1,663; 2017: 1,488; 2018: 1,941; 2019: 1,885; 2020: 1,208; 2021: 1,054; 2022: 1,350; 2023: 1,415; New York: 2013: 125; 2014: 212; 2015: 366; 2016: 543; 2017: 1,023; 2018: 2,338; 2019: 2,635; 2020: 2,238; 2021: 2,774; 2022: 3,173; 2023: 2,759]

January (571) and December (553) were the least busy times for filings.  Considering the number of holidays at that time of the year, and the potential for bad weather in many parts of the US, that’s not surprising.  However, January 2022 was very busy with 850 filings.  August (842) was the busiest month of 2023, followed by March (774) and June (769) – both consistently high filing month in prior years as well.  Filings remained steady throughout the year, and consistent with the highs and lows of 2022 in roughly the 550-850 per month range.

Total Number of Federal ADA Title III Lawsuits Filed Per Month January 1, 2023 – December 31, 2023.
[Total Number of Federal ADA Title III Lawsuits Filed Per Month January 1, 2023 – December 31, 2023: January: 571; February: 714; March: 774; April: 635; May: 618; June: 769; July: 704; August: 842; September: 703; October: 713; November: 631; December: 553]

What to make of this data?  Are ADA Title III filings going to continue to slow year over year? Or are we seeing the start of a plateau? Or will numbers come roaring back in 2024, making 2022 and 2023 the outliers?  Only time will tell, obviously, but here’s our thinking.

First, while we do not track state court lawsuit filings due to less reliability in reporting sources, we know anecdotally and from experience that some of the largest filers have moved to filing in state courts instead of federal courts.  We saw this in New York, in California, and even in states not historically high in Title III lawsuits like New Jersey.  The continued decrease in California filings is particularly striking (from an all-time high of 5,930 in 2021 to 2,380 in 2023).  We think there are a number of factors that have contributed to the decrease.  First,  many California federal judges are routinely dismissing state law claims for damages that plaintiffs like to add to their ADA lawsuits on the theory that they are an end run around more stringent state court filing requirements.  These actions have made federal court a less attractive venue for plaintiffs seeking to recover damages which cannot be obtained under the ADA.  Second, a prolific Southern California plaintiff’s firm split up several years ago resulting in fewer filings.   

In Florida, a prolific law firm stopped filing cases after one of its attorneys became the subject of a disciplinary proceeding and was suspended from the practice of law for six months.  Some of the unsavory findings from this disciplinary proceeding may have dampened the enthusiasm of some other plaintiff’s attorneys to file ADA Title III lawsuits.  Nationwide, it is quite possible that we’ll see an uptick in filings this year now that the SCOTUS punted on deciding whether plaintiff testers have standing to sue in Acheson v. Laufer.  SCOTUS will have another chance to consider the issue if it grants the Petition for Certiorari in Langer v. Kisor, however.

A note on our methodology: Our research involves a painstaking manual process of going through all federal cases that were coded as “ADA-Other,” manually culling out the ADA Title II cases in which the defendants are state and local governments, and categorizing them by state.  The manual process means there is the small possibility of human error.

Website in Development
A laptop showing a website in development.

John W. Egan, Julia N. Sarnoff and Minh N. Vu

Seyfarth Synopsis: The W3C recently adopted Version 2.2 of the Web Content Accessibility Guidelines (WCAG) which adds nine new success criteria for digital accessibility.

On October 5, 2023, the Worldwide Web Consortium (W3C) issued Version 2.2 of the Web Content Accessibility Guidelines (WCAG).  Version 2.2 is the third iteration of the WCAG since 2008.  Version 2.0 (issued on December 11, 2008) consists of 61 “success criteria” for digital accessibility.  Version 2.1 (issued on June 5, 2018) added 17 success criteria to those that made up Version 2.0, for a total of 78.  Version 2.2 adds 9 new success criteria and removes one (i.e., Success Criterion 4.1.1 Parsing, Level A), for a total of 86 success criteria.  Thus far most experts agree that covered entities should focus on the success criteria designated as Levels A and AA, but that only reduces the number of success criteria to 55 in WCAG 2.2. 

The addition of even more success criteria to the W3C’s website accessibility guidelines is likely to cause frustration and confusion for businesses and state and local governments presently struggling to meet one of the earlier versions of WCAG.  A recent report to Congress found that many federal agencies required to comply with Levels A and AA success criteria of WCAG 2.0 (“WCAG 2.0 AA”) are not in conformance.  In fact, WCAG 2.0 AA is the only version of WCAG mandated by any federal law.  Those federal laws specify that federal agencies, providers of health care programs and services that receive federal financial assistance, and airline carriers must have websites that conform to WCAG 2.0 AA.  And in recent proposed regulations for state and local government websites, the Department of Justice (DOJ) proposed to adopt Levels A and AA success criteria of WCAG Version 2.1 (“WCAG 2.1 AA”) as the accessibility standard. 

What are these nine new success criteria?

  1. 2.4.11 Focus Not Obscured – Minimum (Level AA): This criterion benefits individuals with mobility or other disabilities who rely on a keyboard interface and need to be able to see on the screen where the keyboard is “focused”.  It requires that the focus indicator on a button or link (usually indicated by an outline around the button/link) not be entirely hidden by a pop-up or any other floating content on the page.
  2. 2.4.12 Focus Not Obscured – Enhanced (Level AAA):  This criterion is similar to its AA counterpart (2.4.11 above), except that the “enhanced” Level AAA version would require that the focus indicator on an interactive control be wholly unobscured by any pop-up or other floating content on the page.
  3. 2.4.13 Focus Appearance (Level AAA): This criterion, designed for individuals with disabilities who rely on a keyboard interface (including those with low vision), is a technical standard for what the focus indicator outline should look like. 
  4. 2.5.7 Dragging Movements (Level AA):  This criterion benefits individuals with manual dexterity disabilities.  It requires that for any action that involves dragging movements, the website must also provide a simpler alternative way to complete that action that does not require dragging movements.  There is an exception, however, for dragging functionality that is essential to a website.
  5. 2.5.8 Target Size – Minimum (Level AA):  This criterion benefits individuals with motor disabilities and provides a general minimum size for clickable elements on a webpage, such as links and buttons.
  6. 3.2.6 Consistent Help (Level A):  This criterion benefits screen reader users (who are typically blind or have other vision-related disabilities).  It requires that any help functionality provided on a website be located in the same place across all pages of the site, so that it is easy to find. 
  7. 3.3.7 Redundant Entry (Level A):  This criterion, designed to benefit those with cognitive or memory related disabilities, requires that any information previously entered by the user on a website that is required to be entered again in the same process be either (a) auto-populated on the website or (b) available for the user to select again.   
  8. 3.3.8 Accessible Authentication (Minimum) (Level AA):  This criterion benefits individuals with cognitive disabilities and prohibits websites from requiring users to complete cognitive function tests during the authentication process, subject to four exceptions. 
  9. 3.3.9 Accessible Authentication (Enhanced) (Level AAA):  This criterion is the same as its AA counterpart (3.3.8 above), except that it removes two out of the four exceptions to the rule against requiring cognitive function tests (no exceptions for “object recognition” and “personal content”).

Should businesses meet these new success criteria?  We think businesses should prioritize getting to and maintaining substantial conformance with WCAG 2.1 AA because WCAG 2.1 AA was just proposed for state and local government websites by the DOJ a few months ago, and all federal agency websites are only required by law to meet the less demanding WCAG 2.0 AA.  Plus, the W3C already has a working draft of WCAG 3.0 which the W3C describes as an entirely “new model” with “many differences” from WCAG 2.  In short, WCAG 2.2 could be outdated in a few years. 

The W3C’s changes to its website accessibility guidelines shines the light on the need for the DOJ to exercise its own judgment in determining which success criteria should be adopted as legal requirements applying to the websites of private businesses and state and local governments.  The process of making and maintaining an accessible website requires a substantial investment of both money and human capital.  Businesses and state/local governments should not have to deal with a moving target, especially one set by an entity that is not accountable to Congress or any Executive agency and has no statutory authority to issue any legal standards under the ADA. 

U.S. Supreme Court Building
United States Supreme Court Building

By Minh N. Vu & John W. Egan

Seyfarth Synopsis:  SCOTUS’s refusal to clarify standing requirements for “tester” plaintiffs in ADA Title III lawsuits means it’s business as usual for the plaintiffs’ bar. 

Yesterday, SCOTUS issued its decision in Acheson v. Laufer which – to the disappointment of private businesses and the defense bar – leaves unanswered the question of whether individuals who visit websites and businesses for no other reason than to evaluate their compliance with Title III of the ADA (i.e., so-called “testers”) have standing to bring a lawsuit.  While SCOTUS said it had the discretion to decide this very important question of tester standing, on which the U.S. Courts of Appeals are divided, it declined to do so because Laufer mooted the case by dismissing it at the District Court (along with all her other pending ADA Title III cases) after SCOTUS said it would review the case.  At oral argument two months ago, Defendant Acheson had urged SCOTUS to decide whether Laufer had standing nonetheless, pointing out that Laufer should not be permitted to evade a potentially unfavorable decision (and manipulate the Court’s jurisdiction in the process), by voluntarily dismissing her case with prejudice. 

Justice Barrett authored a brief opinion for the majority in which Chief Justice Roberts, and Justices Alito, Sotomayor, Kagan, Gorsuch, and Kavanaugh joined.  That opinion credited Laufer’s claim that she had dismissed her lawsuit because one of her former attorneys had been sanctioned, rather than to evade the Court’s review.  The majority noted that Laufer represented to the Court that she would not file any other cases but emphasized that the Court might exercise its discretion differently in a future case. 

In his opinion concurring only in the judgment, Justice Thomas found Laufer’s explanation implausible and concluded that she dismissed her case as a “transparent tactic for evading review” by the Court.  He pointed out that the sanctioned attorney had never served as her counsel in the case.  He added: “[W]e have needlessly invited litigants to follow Laufer’s path to manipulate our docket.  We should not resolve this case about standing based upon mootness of Laufer’s own making.”  Justice Thomas went on to conclude that Laufer did not have standing because the alleged violation on the website (i.e. deficient accessibility information about the hotel) caused her no harm, as she never had any interest in staying at the hotel.  He then described the dangers of ADA testers who seek to vindicate the public interest, but do not have the accountability of the Executive Branch.  Without a violation of her own rights, he explained, Laufer was able to, without any discretion required of a government official, “surf the web” to ascertain compliance of hotels she had no intention to visit and obtain monetary settlements from businesses seeking to avoid substantial defense fees.  Justice Thomas concluded that these activities go far beyond the role for private plaintiffs that Congress envisioned in ADA Title III cases.     

Justice Thomas did join the majority with regard to the judgment which was to remand the matter with an order to dismiss and vacate the decision by the First Circuit Court of Appeals.  Justice Jackson, writing separately, agreed with the majority that the case was moot but wanted to leave in place the First Circuit Court of Appeal’s “pro-tester” ruling.

SCOTUS’s failure to settle the issue of tester standing should be very frustrating to private businesses which, in the past five years (2018-2022), have been hit with an average of 10,468 ADA Title III federal lawsuits a year.  Thousands of those suits are filed by tester plaintiffs whose stated desire to patronize the businesses they sue is highly questionable.  Few businesses have the resources to litigate a case all the way to SCOTUS.  Most businesses settle early to avoid incurring legal fees.  Thus, it is unlikely that this question will reach SCOTUS again for many years, especially when – like Laufer – plaintiffs can evade review by voluntarily dismissing their cases when faced with a potentially unfavorable judgment that could impact their future filings.

The bottom line is that tester plaintiffs and their attorneys will continue to bring cases in those jurisdictions where the standing rules are less demanding such as the Fourth Circuit. The situation is somewhat unclear in the First and Eleventh Circuits because – while those circuits had adopted a less demanding standard – the decisions adopting that standard have both been vacated on mootness grounds.  Tester plaintiffs in the Second, Fifth, and Tenth Circuits will continue to face stricter standing requirements.  Meanwhile, the Court of Appeals for the Ninth Circuit is contemplating whether to reconsider its decision in Langer v. Kisor which favors tester plaintiffs.  The Ninth Circuit had put on hold its decision on the Petition for Rehearing en banc to see how SCOTUS would rule in Acheson, and the court is now likely to move forward with its decision soon.

Canine Companion
Service dog guiding their human companion.

By: Kristina Launey and Minh Vu

Seyfarth Synopsis: The Sixth Circuit Court of Appeals approved state-owned hospital’s exclusion of nursing student’s service animal that posed a direct threat to patients and staff with severe allergies where no reasonable alternatives existed to mitigate the threat.

The Sixth Circuit Court of Appeals recently issued a decision in Bennett v. Hurley Med. Ctr. concerning the use of a service animal in a state-owned hospital under Title II of the ADA that provides useful guidance on how health care facilities should assess whether a service animal poses a direct threat to the health and safety of others. This decision is also relevant for private health care facilities because the direct threat analysis is the same under Title III of the ADA.

The plaintiff was a nursing student who worked at a hospital as part of her educational program for four hours once a week for six weeks. She has a panic disorder and her service dog was trained to recognize symptoms of a forthcoming panic attack so that she could immediately take her medications.  

The hospital at first approved the student’s request that her service dog accompany her on her rotation. However, on the very first day one staff member and one patient experienced allergic reactions to the dog. In response, the hospital revoked its approval of the service animal. The hospital offered the alternative accommodation of crating the service dog on a separate floor from those with allergies in the hospital and plaintiff taking necessary breaks to be with the service dog. The hospital had determined that relocating patients and staff with dog allergies from the floor where the plaintiff had to work (her university program supervisor was on that floor) would be unworkable and directly compromise patient care.

The court first held that the hospital had not engaged in intentional discrimination by refusing to allow the plaintiff to have her dog accompany her on rotations. The court concluded that the hospital’s decision was motivated by staff and patient complaints of allergic reactions to the dog – not the disability.

The court then considered whether the hospital had violated Title II of the ADA by not modifying its policy to accommodate the service dog on Plaintiff’s rotations. After reviewing the DOJ’s implementing regulations, DOJ guidance, and “scant” relevant case law to determine what constitutes reasonable accommodation of a service animal in a healthcare setting, the court concluded that “service animals are permitted as a reasonable accommodation unless they are ‘out of control,’ ‘not housebroken,’ would fundamentally alter the activities of the public entity, or, if, after conducting an individualized assessment of the animal, the public entity concludes that the service animal poses a direct threat.” The court then concluded that the service dog’s presence did constitute a direct threat because of the actual allergic reactions that took place and the lack of a workable alterative to mitigate that threat. Specifically, the court found that separating the service dog from allergic patients and staff was not possible.

While this decision provides helpful guidance to health care facilities on the issue of service animal access, it should not be viewed as license to exclude service animals from such facilities. The U.S. Department of Justice has taken the position that blanket exclusions of service animals from health care facilities are not permissible, consistent with the principle that exclusions based on the direct threat defense must be based on an individualized assessment of the circumstances presented. Here, there was concrete evidence of the direct threat and the hospital demonstrated that there was no way to mitigate it.