pexels-jean-daniel-2570139
Image of a football on a field.

By: Ashley Jenkins and Kristina Launey

Seyfarth Synopsis: A federal court recently held that a football stadium must make reasonable modifications to its seating policy to allow a wheelchair user with a ticket for a non-wheelchair accessible seat access to view the game in person.

The football season is well underway, and a recent decision from a federal California Court serves as a reminder that stadiums must offer some form of reasonable modification for wheelchair users who do not have a ticket for an accessible wheelchair space at a game. 

The Complaint alleged the following: One of the plaintiffs — a 78-year old grandfather with polio who uses a wheelchair — received a ticket to see a game with his family.  However, none of the family’s tickets were for wheelchair accessible seats (i.e., open spaces for a wheelchair) and could only be reached by stairs.  As there were a number of unoccupied wheelchair seats nearby, the grandfather took one of those seats.  Stadium security officers refused to let the grandfather remain in that seat, claiming it was against policy, and told the plaintiff he could watch the game on the TV in the concourse.  When the family objected, the security officers threatened to eject the whole family if they did not stop complaining. The family had to carry the grandfather to a non-accessible seat which embarrassed him and prevented him from using the restroom during the game.  Meanwhile, the wheelchair space remained empty for the entire game.

The grandfather and his son brought suit, alleging that the stadium owner had discriminated against them in violation of the ADA and California’s Unruh and Disabled Persons Acts. Plaintiffs argued that the stadium owner had failed to make a reasonable modification to its normal seating policy to allow the grandfather to watch the game in person in an accessible location and retaliated against them when they complained by threatening to eject them from the game.   

The stadium owner moved to dismiss the case, arguing, among other things, that the ADA regulations have detailed ticketing requirements and none of them require stadiums to allow persons who do not have a ticket for a wheelchair seat to occupy such a seat.  The Court disagreed, holding that: “Whether or not defendants were required to permit the [plaintiffs] to use the empty wheelchair seats [they] had identified, the ADA required them to offer [the plaintiff] some reasonable accommodation to account for his wheelchair-bound status.”  In short, the Court found that the ADA required that the stadium make some reasonable modification beyond what was offered – watching the game in the concourse on a TV.  The Court also held that the Complaint stated a claim for retaliation based on the alleged threatened ejection from the game.

It is important to keep in mind that this was just a decision on a motion to dismiss in which the Court had to assume that all the facts alleged by the Plaintiffs are true.  What actually transpired, and the legal decisions that flow from those facts, may be much different after discovery and an adjudication on the merits.  Nonetheless, the decision provides some important reminders.  First, adhering to specific regulatory mandates, such as the ADA’s ticketing rules, is not always sufficient.  When there is a request, public accommodations must also make reasonable modifications to normal policies, practices and procedures, unless doing so would fundamentally alter the nature of the goods and services normally provided.  The DOJ has made this clear in other cases.  Second, responding to requests for reasonable modifications with empathy and a willingness to solve the problem at hand can often be a winning strategy for lawsuit avoidance.

Edited by Minh Vu and John Egan

office-925806_1280
Image of computer and coffee mug

By: John W. Egan and Minh N. Vu

Seyfarth Synopsis: A recent decision holding that web-only businesses cannot be sued over the accessibility of their website under the ADA is the first of its kind in the Southern District of New York and may cause forum-shopping serial plaintiffs and their counsel to shift to state court. 

The Chief Judge Laura Taylor Swain of the U.S. District Court for the Southern District of New York (SDNY) issued a ruling this week dismissing a website accessibility lawsuit filed under the ADA because the website was not associated with any physical location where goods and services are provided to the public.  This decision, in Mejia v. High Brew Coffee Inc., is a noteworthy development because it conflicts with the decisions of many other judges in the SDNY who have held that website-only businesses are covered under the ADA.  The first decision in New York federal court came from Judge Weinstein of the Eastern District of New York (EDNY) in Andrews v. Blick Art Materials, concluding that the ADA covers websites as places of public accommodations.  It should be noted, however, that not all EDNY District Judges have followed Judge Weinstein’s lead.  In 2021, Winegard v. Newsday (Komitee, J.) and Suris v. Gannett (Cogan, J.) went another way, holding that the defendant newspaper publishers did not qualify as a covered “place of public accommodation” under the ADA.  In the months following those two decisions, we noted a 43 percent decrease in the number website accessibility filings in the EDNY.

In High Brew Coffee, the plaintiff alleged he is a blind screen reader user who could not purchase “a twelve pack of Double Expresso flavored coffee” on two occasions because the website was inaccessible.  After reciting the split among the U.S. Courts of Appeals on the question of whether the ADA covers websites without any connection or relationship to physical places of public accommodation, Chief Judge Swain analyzed the Second Circuit’s decision in Pallozzi v. Allstate Life Ins. Co.  That case has been cited by other SDNY District Judges to support their conclusion that websites are places of public accommodation, even though Pallozzi merely held that the ADA’s non-discrimination provisions applied to the allegedly discriminatory terms of an insurance policy purchased at an actual, brick and mortar insurance office.

Chief Judge Swain agreed with the EDNY Judges who interpreted Pallozzi to hold that the ADA regulates the sales of insurance policies at insurance offices, and held that the existence of a physical place is a “conditional precedent . . . [to concluding that] the goods and services sold by that place of public accommodation are swept within the ADA’s remit.” The Chief Judge also analyzed the text of the covered categories of “places of public accommodation” enumerated in the ADA for their plain meaning, and considered Congressional intent dating back more than thirty years.  Chief Judge Swain reasoned that nearly all of the “establishments” listed in the ADA have physical locations, and declined to find (as some other courts had) that the inclusion of a “travel service” and “other service establishment” among the categories of covered public accommodations supports the application of the ADA to an online-only retailer with no physical storefront. 

Interestingly, Chief Judge Swain did not originally preside over this case; the matter was re-assigned to her the after the defendant’s motion to dismiss was fully briefed.  We will not speculate as to whether the Chief Judge decided it was necessary for her to express her views on this matter, or whether this decision will have an impact on other Judges in the SDNY who have yet to weigh in on this issue.  We do predict, however, that this decision may cool (somewhat) the website accessibility lawsuit frenzy that has besieged New York’s federal courts.  In 2023, 77 percent of the 2,794 website accessibility lawsuits filed in federal court were in New York.  After this decision, more serial plaintiffs and their attorneys may choose to file their cases in state court instead.  As we previously reported, we started observing more state court filings in New York, and other jurisdictions such as California, New Jersey, and Pennsylvania in 2023.  The High Brew Coffee ruling may cause this trend to accelerate in New York.

Additionally, it is possible that the plaintiff will appeal the District Court order in High Brew Coffee to the Second Circuit which would provide much needed clarity on this issue.  Stay tuned for further updates.   

Edited by: Kristina M. Launey

michael-fousert-YhXlYJYlr3c-unsplash
Image of electric car charging port.

By Minh N. Vu and John W. Egan

Seyfarth synopsis:  Public accommodations planning to add EV charging stations to their properties should take note of these proposed guidelines and file comments by November 4, 2024.

Recognizing that more and more retailers, shopping malls, lodging facilities, gas stations, and restaurants are providing EV charging stations (“EVCS”) for customer use on their properties, the U.S. Access Board (“Access Board”) initiated a formal rulemaking process last week that proposed guidelines for EVCS accessibility (“EVCS Guidelines”) that would amend the requirements for buildings and facilities covered by the Americans with Disabilities Act (“ADA”).  Once the Access Board completes its process, the U.S. Department of Justice (“DOJ”) will undertake its own rulemaking process to incorporate the new guidelines into the existing ADA Standards for Accessible Design and they will become legally binding standards for public accommodations.  Because the ADA prohibits the DOJ from making any changes to Access Board final guidelines that would reduce accessibility, now is the time for public accommodations and covered entities to provide input by submitting comments by the November 4, 2024 deadline. 

A brief summary of the major requirements are below.

What EVCS will be covered?  Once the DOJ finalizes and adopts the proposed guidelines as legally binding regulations, the EVCS Guidelines will apply to all new EVCS.  Existing EVCS will need to comply with the EVCS Guidelines when they are altered to the maximum extent feasible.  As for ECVS that have already been installed when the ECVS Guidelines take effect, the DOJ will need to decide how the requirements will apply to them and if any modifications will be necessary.   In similar prior situations where the DOJ has added newly covered existing elements to regulatory requirements — such as swimming pools and spas — the DOJ has required compliance within a certain time frame if it is readily achievable to do so.

How many accessible EV charging spaces are required?  The EVCS Guidelines contain a chart setting forth the minimum number of required accessible EV charging spaces (“ACSs” or “ACS” singular) based on the total number of charging spaces provided at each EVCS.   For example, if an EVCS has one to 25 charging spaces, then one must be accessible.  If an EVCS has 26 to 50 charging spaces, then two must be accessible.  If a property has different types of EVCS (e.g. DCFC chargers versus AC Level 2 chargers), then the number of required ACSs must be calculated separately for each EVCS type.  The EVCS Guidelines also make clear that existing required accessible parking spaces cannot be turned into ACSs.  However, similar to accessible parking, ACSs would display International Symbol of Accessibility (ISA) signage and be restricted to individuals with accessible parking placards.  

Interestingly, the Access Board is asking for comment on a possible alternative approach that would require a greater number of ACSs, but none would be reserved for exclusive use by individuals with accessible parking placards.  In this scenario, the ACSs would be marked to indicate that they are the last ones to be used by people who do not have an accessible parking placard.  In its commentary, the Access Board expressed concern that this framework would be difficult, if not impossible to enforce, and would increase the costs of the regulation.

Where must the accessible EV charging spaces be located?  Recognizing that new EVCSs will most likely be added to existing parking lots and their location may be dictated by existing infrastructure, the EVCS Guidelines do not require that ACSs be located on the shortest route to the nearest accessible entrance to a public accommodations facility.  The ACSs need only be the closest to the accessible entrance relative to non-accessible charging spaces.  For example, if there are two ACSs in a group of ten charging spaces, those ACSs need to be the two that are closest to the facility entrance.

The EVCS Guidelines do require that ACSs be connected to the facility entrance on the same site by an accessible route.  Additionally, where there is a pedestrian route between the EVCS and so-called “site arrival” points, such as public sidewalks and transportations stops, that route must be accessible as well.  Complying with these accessible route requirements could be quite expensive, or possibly infeasible, for public accommodations seeking to add new EVCS to an existing parking lot with excessive slopes, or where for infrastructure, safety, or practical reasons, EVCS need to be located far away from the facility entrance or other site amenities.  

What does an accessible EV charging space look like?  The EVCS Guidelines require ACSs to be at least 132” wide, 240” long, and 98” high and adjacent 5’ wide access aisle.  Both the space and access aisle must be level (i.e. have slopes no greater than 1:48), except where in-ground connectors are used in the charging space.  ACSs must also display the ISA symbol, much like current accessible parking spaces.  The EVCS Guidelines also contain special rules for pull-through charging spaces where drivers do not need to exit the vehicle.

What are the physical accessibility requirements for EV chargers?  EV chargers serving ACSs must comply with existing ADA requirements for clear floor/ground space, reach range, and operable parts.  In addition, the EV charger must have a screen that can be viewed at 40” above the ground.

What are the effective communication requirements for EV chargers?  The EVCS Guidelines require that every EV charger – not just the ones serving ACSs – have the following communications features:  (1) volume control; (2) status indicators that are both visually discernable for the deaf, as well as discernable by touch or sound for those with low vision; (3) a method other than color to communicate information for the color blind; (4) audible signals that are conveyed visually or with a tactile indication; (5) if provided, two-way communication that is usable by the deaf or hard of hearing; and (6) if provided, real-time video that has sufficient quality to support communication with sign language.  The Access Board does not state whether these features are available on any EV chargers available today.

Issues for public accommodations to consider now.  As the above key provisions makes clear, regardless of the ultimate form of the regulations, there will be many requirements for EVCS. Public accommodations should comment on the EVCS Guidelines by November 4 if they disagree with any of the proposed requirements.  Public accommodations that are installing EVCS now should try to ensure these proposed requirements are incorporated as they are not likely to change significantly between now and finalization. 

Edited by Kristina M. Launey

By Minh Vu, Kristina Launey and Susan Ryan

Seyfarth Synopsis: The decline in ADA Title III lawsuits that began in 2022 comes to a halt in 2024 and California retakes its mantle of “national filing hotspot.”

ADA Title III filings have decreased each year since 2022.  2024 changes the narrative with an uptick in filings, albeit a small one.  In 2021, we saw the highest mid-year total since we started keeping count in 2017: 6,304 ADA Title III lawsuit filings in the first six months of the year.  Since then, however, the numbers have fallen. 

At the mid-year point in 2022, there were 4,914 ADA Title III lawsuits filed, compared to 4,081 at the same point in 2023.  We wondered if the trend would continue and if so, just how far the numbers would fall.  Well, the numbers are in, and the filings are slightly up from 2023 but still below 2022.  From the beginning of January to end of June of 2024, 4,280 ADA Title III lawsuits were filed in federal courts.  If this trend continues for the rest of the year, the projected number of suits for 2024 will be around 8,500 – slightly higher than 2023 but lower than 2022.

[Mid-Year ADA Title III Federal Lawsuit Filings 2017-2024; 2017: 4,127; 2018: 4,965, 20% Increase from 2017; 2019: 5,592, 12% Increase from 2018; 2020: 4,751, 15% Decrease from 2019; 2021: 6,304, 33% Increase from 2020; 2022: 4,914, 22% Decrease from 2021; 2023: 4,081, 17% Decrease from 2022; 2024: 4,280, 5% Increase from 2023]

In addition, New York’s reign as a top filing destination for ADA Title III plaintiffs for the first six months of 2024 has come to an end.  1,106 lawsuits were filed in the first half of 2024, down from a high of 1,819 in 2022 and 1,477 in 2023. 

Sunny California – which had been the dominant state until 2022 – retakes the top spot.  So far this year, there have been 1,588 ADA Title III filings in the California federal district courts, a significantly higher number than New York.  In third place was Florida, with 781, about half of California’s total.  Rounding out the top five are Texas and Pennsylvania, maintaining their positions from last year and the year before.

Here are the top ten states with the highest number of cases filed so far this year:

[2024 Mid-Year Federal ADA Title III Filings for Top 10 States: TN: 40; GA: 53; MO: 54; MN: 65; IL: 76; PA: 81; TX: 114; FL: 781; NY: 1,106; CA: 1,588]

What accounts for the rise in ADA Title III filings and for the trade-off in spots between California and New York?  With regard to the latter, serial plaintiffs represented by a New York law firm responsible for hundreds of filings each year have been filing in New York state court, resulting in fewer filings in New York federal court.  There have also been some filings in New Jersey state court.  Notwithstanding this shift to New York and New Jersey state courts, the overall number of federal lawsuits is still higher than last year, indicating that 2024 has seen more accessibility litigation.  We attribute this increase in part to a significant increase in federal lawsuits filed in Minnesota – from 5 in 2023 to 65 so far in 2024.  Sixty-three of these suits have been filed by the same law firm on behalf of three plaintiffs. 

Check back with us in January 2025 when will have final numbers for the entire year.

Our Methodology:  Our overall ADA Title III lawsuit numbers come from the federal court’s docketing system, PACER.  However, because the area of law code that covers ADA Title III cases also includes ADA Title II cases, our research department reviews the complaints to remove those from the count.

POSTED IN ADA TITLE III, TITLE III ACCESS

By the Seyfarth ADA Title III Specialty Team

Seyfarth Synopsis:  In honor of today’s 34th anniversary of the passage of the ADA, Seyfarth’s ADA Title III Specialty Team re-shares our videos illustrating 30 tips for how to provide great service to people with disabilities.

Celebrate the 34th Anniversary of the ADA with a video refresher on tips about how to provide a great experience for your customers with disabilities!  Our popular three-part video series ADA 30:  30 Tips for 30 Years, which our team prepared during the pandemic, contains practical advice on how to make your facilities more accessible to people with disabilities, make reasonable modifications to your normal practices and procedures to ensure access, and effectively communicate with individuals who have sight, hearing, and speech disabilities.  Most of these tips cost nothing to implement — awareness of the issues and how to respond is all that’s required.

The links to the videos are below:

By Kristina M. Launey & Minh N. Vu

Seyfarth Synopsis: Plaintiffs filed 2,794 website accessibility lawsuits in federal court in 2023 – a 14% decrease from 2022. 

After 2022’s record-setting year for website accessibility lawsuits filed in federal court, the 2023 filings dropped by 14%.  The total number of lawsuits filed in federal court alleging that plaintiffs with a disability could not use websites because they were not designed to be accessible and/or work with assistive technologies in 2023 was 2,794–461 fewer than 2022. This 14% decrease in the number of lawsuits in 2023 takes us below even 2021 filing totals, but still above the total number of lawsuits filed in 2020 (and any year prior). 

[Graph: ADA Title III Website Accessibility Lawsuits in Federal Court 2017-2023: 2017: 814; 2018: 2,258 (177% increase from 2017); 2019: 2,256 (.01% decrease from 2018), 2020: 2,523 (14% increase from 2019); 2021: 2,895 (12% increase from 2020); 2022: 3,255 (12% increase from 2021), 2023: 2,794 (14% decrease from 2022). *The number of cases that could be identified through a diligent search.]

Website accessibility lawsuits made up 34 percent of the total number of ADA Title III lawsuits filed in federal court in 2023 (2794 out of 8227 cases).  In 2022, website accessibility lawsuits made up 37 percent of all the ADA Title III lawsuits filed in federal court (3225 out of 8694 cases).  Also, as shown in the graph below, the number of filings per month ranged from a low of 162 cases in December to a high of 308 cases in August. 

[Graph: Total Number of Website Accessibility Lawsuits Filed by Month (Jan. 2023 – Dec. 2023): Jan. 2023 (210), Feb. 2023 (228), Mar. 2023 (307), Apr. 2023 (241), May 2023 (212), Jun. 2023 (281), Jul. 2023 (248), Aug. 2023 (308), Sep. 2023 (170), Oct. 2023 (232), Nov. 2023 (195), Dec. 2023 (162). *The number of cases that could be identified through a diligent search.]

New York federal courts continued to be the busiest by a wide margin, with Florida retaining the #2 position, and Pennsylvania slotting in as #3.  Illinois passed California for the #4 spot. New York federal courts saw 2,152 lawsuits filed in 2023 (continuing a solid trend of 2,560 in 2022, 2,074 in 2021, 1,694 in 2020, 1,354 in 2019, and 1,564 in 2018).  Florida was a distant second with 385 lawsuits, up from 310 in 2022.  California federal courts saw only 30 lawsuits in 2023, down from 126 in 2022.  Pennsylvania came in at 143 in 2023.

[Graph: Federal ADA Title III Website Accessibility Lawsuits per State, Jan. 2023 – Dec. 2023: NY 2,152, FL 385, PA 143, IL 42, CA 30, NJ 25, MA 7, MN 3, WI 3, NC 1, IN 1, CO 1, OR 1. *The number of cases that could be identified through a diligent search.]

[Graph: New York, Florida, Pennsylvania, and California Federal ADA Title III Website Accessibility Lawsuits 2017-2023: NY: 2017 (335), 2018 (1,564), 2019 (1,358), 2020 (1,694), 2021 (2,074), 2022 (2,560), NY (2,152); FL: 2017 (325), 2018 (576), 2019 (529), 2020 (302), 2021 (185), 2022 (310), 2023 (385); PA: 2017 (58), 2018 (42), 2019 (92), 2020 (173), 2021 (167), 2022 (216), 2023 (143); CA: 2017 (9), 2018 (10), 2019 (121), 2020 (223), 2021 (360), 2022 (126), 2023 (30).]

If you’re wondering why California has so few website accessibility cases relative to New York, it is likely because judges in New York federal courts – with a few exceptions – have historically been more favorable toward plaintiffs, especially when the defendant is an online-only business.  Although the Court of Appeals for the Second Circuit has yet to decide whether online-only businesses are covered by the ADA, most district court judges in New York to have addressed the issue have concluded that they are.   

In contrast, in California, both federal and state courts of appeals have reached the conclusion that online only businesses are not covered by the ADA, making it virtually impossible for plaintiffs to sue online-only businesses for accessibility violations.  Thus, we predict fewer website accessibility cases in both California state and federal courts in the future.  That said, in our practice we continue to see a significant numbers of demand letters, and lawsuits filed in California state courts, which are not included in our federal lawsuit numbers.

Why was there an overall decrease in the number of website accessibility lawsuits filed in federal courts throughout the country last year?  While there is no way to know for certain, we think there are at least four factors in play. 

First, and most significantly, we noticed that a number of plaintiffs’ firms responsible for historically significant numbers of filings started filing website accessibility lawsuits in state courts in NY, NJ, and PA in 2023, instead of federal court.  Since these filings are difficult to track, it may well be that the total number of website accessibility lawsuits increased year-over-year when accounting for state court filings.  

Second, some of the plaintiffs’ lawyers who used to file a substantial number of these lawsuits seem to be less active in this space. 

Third, more businesses are making website accessibility a priority, and so perhaps websites are more accessible than they were five years ago. 

Fourth, many businesses have already been sued over the accessibility of the websites at least once and are potentially more likely to push back with the assistance of their consultants and/or counsel, providing something of a disincentive to serial ADA filers.   

In August 2023, the U.S. Department of Justice issued new regulations under Title II of the ADA requiring websites and mobile apps of state and local governments to conform to the Web Content Accessibility Guidelines version 2.1, Level AA (WCAG 2.1 AA) within two or three years, depending on their size.  Will these new rules impact the number of website accessibility lawsuits filed against public accommodations?  We think it’s unlikely.  Will the DOJ issue regulations in the near future covering the websites and mobile apps of public accommodations?  We think this too is unlikely, and any proposed regulations would most certainly be halted if there is a change in administration. 

The bottom line is that lawsuits alleging inaccessible websites will continue to be a significant percentage of the ADA Title III filings in federal court for the indefinite future, particularly because the requirements for an accessible website continue to evolve.  While federal government agencies only have to comply with WCAG 2.0 AA to be accessible, the DOJ adopted the more stringent WCAG 2.1 AA as a legally binding accessibility standard for state and local governments in August 2023.  Just a few months later, the World Wide Web Consortium (WC3) issued WCAG 2.2 AA which added a number of new requirements.  And then just a month ago W3C issued a first draft of WCAG 3.0.  Version 3.0 is a total revamp of the guidelines and, per the WC3, is “a new model and guidelines to make web content and applications accessible to people with disabilities.” 

***

About our methodology:  Our 2023 numbers are based on searches using keywords of data from the Courthouse News Services.  Thus, it is possible that there are some website accessibility cases that were not captured in the searches if their descriptions did not include the keywords.  We then review the thousands of entries manually to remove lawsuits that may be about websites but are not about a website’s accessibility to a user with a disability. 

Edited by John W. Egan

web-3967926_1280
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