By Minh N. Vu and John W. Egan

Seyfarth Synopsis: Reopening businesses need to carefully consider how social distancing and other Covid-19 mitigation measures will impact customers with disabilities and be prepared to make adjustments.

Covid-19 has had a profound impact on the ways in which we use (or, more accurately, avoid) public accommodations spaces in recent months.  As businesses start to reopen in various parts of the country, they are implementing social distancing and other mitigation measures aimed to curb the spread of the virus among their employees and customers.  Businesses need to consider how these new measures impact customers with disabilities and adjust them accordingly.

           1. Screening Customers for Fever

Can businesses use temperature scanners or thermometers to screen customers for Covid-19 and refuse admission if they have a fever?  Title III of the ADA does not allow public accommodations to impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations.  However, it also has a specific provision that allows public accommodations to “impose legitimate safety requirements that are necessary for safe operation. Safety requirements must be based on actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities.”

In cases where public accommodations have relied on the “legitimate safety requirement” defense, courts have carefully scrutinized the evidence that the businesses used to develop the eligibility criteria.  Thus, businesses that plan on screening customers for fever need to carefully document the case for the eligibility criteria and be prepared to defend them.

The ADA also does not “require a public accommodation to permit an individual to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations of that public accommodation when that individual poses a direct threat to the health or safety of others.”  Unlike the “legitimate safety requirement” defense, the “direct threat” defense requires businesses to conduct an individualized inquiry into whether a specific person poses a direct threat.  Courts tend to be very stringent in their analysis of what constitutes a direct threat, so businesses again need to be very careful about excluding people with disabilities using this rationale.

          2. Enforcing Social Distancing Guidelines

Businesses are enforcing social distancing guidelines with a variety of measures, including changes to points of entry, creating queue lines, and requiring customers to wait outside to limit the number of people inside a facility. These measures can create a number of ADA compliance issues.

Accessible Routes.  The ADA requires the maintenance of accessible routes so that people who use wheelchairs and other mobility devices have access to public accommodations.  Thus, if a facility has two entrances, and only one is accessible, the accessible one must remain open.  If a business creates queue lines for entry, those lines must be 36” wide from the ground up, and wider if there is a U-turn.  If there is not enough space for the regular queue line to maintain a 36” width, an alternative is to provide a separate shorter accessible line for people who use mobility devices.  This line should be marked with an ISA.

Waiting Customers.  The ADA requires reasonable modifications of normal policies, practices, and procedures, where necessary to ensure access for individuals with disabilities.  Customers with physical disabilities who cannot stand for long periods may ask to go to the front of the line as a reasonable modification.  Businesses may be reluctant to allow this as the claimed disability may not be obvious and the request may be fraudulent.  Allowing those who have a disability parking placard to go to the head of the line would be one possibility, combined with the provision of small folding chairs or other seating for those who need it but don’t have a placard.

          3. Face Masks and Lip Reading

Many customers who are deaf or hard of hearing rely on lip reading to communicate.  Some have complained that they cannot do so when employees are wearing face masks or coverings.  Thus, businesses should consider alternative means of communication. This might include providing a sanitized white board and pens to both the customer or employee to exchange written communications.  The ADA allows for flexibility in providing an appropriate auxiliary aid which depends on the nature, complexity, and context of the specific communication and individual’s preferred method of communication.  For example, providing real-time captioning or an American Sign Language (ASL) interpreter is not required for simple retail or restaurant communications. However, businesses should explore other potential solutions that will not spread the virus, but are also practical and effective in their particular setting.

          4. Assisting Customers with Disabilities While Social Distancing

The ADA requires employees of public accommodations to provide assistance to customers with disabilities for a variety of tasks, such as retrieving out of reach products, reading written product or other information to those with sight disabilities, and guiding those with sight disabilities to locations within a facility.  This obligation has not changed, and most of these tasks can still be performed while maintaining a safe distance.   However, employees should be reminded of their obligation to provide assistance while maintaining distancing measures.  For example, instead of offering a blind person an arm to guide the person to a destination, verbal wayfinding directions can be used instead.

          5. Accessible Seating

The ADA requires public accommodations that offer work or dining surfaces to provide accessible work or dining surfaces.  Specifically, five percent of seats at such surfaces must have a work surface that is between 28” and 34” above the ground, with clear space underneath that is at least 27” high, 17” deep, and 30” wide.  To ensure there is enough space between tables, businesses may remove tables from their dining rooms.  In so doing, they must ensure that the required number of accessible tables remain in service.

          6. Accessible Digital Alternatives

Even as stay-at-home orders are lifted, many customers will still prefer shopping online.  This also applies to customers with visual, hearing, or physical disabilities who rely on assistive technologies like screen readers or captioning on videos to access the internet. Businesses should review the accessibility of their websites and mobile apps, and ensure they have a manner and means to provide assistance to patrons with disabilities who encounter difficulties using the website or mobile app.

*                       *                       *

Unlike the U.S. Equal Employment Opportunity Commission (EEOC) which has issued guidance to employers about how to protect employees in the workplace from Covid-19 in compliance with non-discrimination laws, the Department of Justice (DOJ) has not issued any guidance on how public accommodations should apply social distancing and safety measures while maintaining compliance with Title III of the ADA. Thus, we strongly recommend that businesses consult with experienced counsel in developing and implementing plans for reopening that address the needs and heath of their employees and customers, including those with disabilities.

Edited by Kristina Launey

By Kristina M. LauneyMinh N. Vu

We’ve sheltered in place and finished our tally.  The numbers are in for total website accessibility lawsuit filings in federal courts in 2019, they show a small decrease from 2018. The total number of website accessibility lawsuits filed in federal court (i.e. lawsuits alleging that plaintiffs with a disability could not use websites because they were not coded to work with assistive technologies like screen readers, or otherwise accessible to them) in 2019 was 2,256 — two fewer than in 2018.  In short, the number of suits appears to be leveling out after businesses saw an explosive 177% increase in these suits from 2017 to 2018.

[Graph: ADA Title III Website Accessibility Lawsuits in Federal Court 2017-2019: 2017: 814; 2018: 2,258; 2019: 2,256. *The number of cases that could be identified through a diligent search.]

In fact, the number of federal ADA Title III website accessibility lawsuit filings decreased in the fourth quarter of 2019, contrary to our prediction that the U.S. Supreme Court’s refusal to review the Ninth’s Circuit’s pro-plaintiff decision in Robles v. Domino’s would result in a surge of website accessibility lawsuits. Prior to the Supreme Court’s October 7, 2019 refusal to hear the Domino’s case, an average of 7 lawsuits were filed per day, as compared to 4 per day after that date for the remainder of 2019.   And as shown in the chart below, while the greatest number of suits were filed in July and August (258 and 270, respectively) monthly filings then decreased by nearly half for each of the last four months of the year.

[Graph: Total Number of Website Accessibility Lawsuits Filed by Month (Jan. 1, 2019 – Mar. 30, 2020): Jan. 2019 (239), Feb. 2019 (211), Mar. 2019 (183), Apr. 2019 (183), May 2019 (203), Jun. 2019 (181), Jul. 2019 (258), Aug. 2019 (270), Sep. 2019 (131), Oct. 2019 (140), Nov. 2019 (138), Dec. 2019 (119), Jan. 2020 (187), Feb. 2020 (174), Mar. 2020 (167).  *The number of cases that could be identified through a diligent search.]

The number of filings went back up for the first three months of 2020 but were still lower that the number of filings in the same months in 2019.  The tally was 187, 174, and 167 for January, February, and March 2020, compared to 239, 211, and 183 for those same months in 2019.

New York and Florida federal courts continued to be the busiest with 1,354 (down from 1,564 in 2018) and 526 (down from 576 in 2018) lawsuits, respectively, as shown in the chart below. California and Pennsylvania bypassed Illinois and Massachusetts for the distant third and fourth positions, even though lawsuits for all those states more than doubled in 2019 over 2018.  Pennsylvania had 92 lawsuits while Illinois had 91 lawsuits in 2019, more than double the 42 and 7 respectively in 2018.  The number of California lawsuits jumped from 10 in 2018 to 120 in 2019. This number does not account for the many demand letters sent out by California firms that never result in lawsuits and lawsuits filed in state courts which are much more difficult to track.

[Graph: Top 10 States for Federal ADA Title III Website Accessibility Lawsuits 2019: NY 1,354, FL 526, CA 120, PA 92, IL 91, MA 33, WI 8, IN 6, CO 6, DC 5. *The number of cases that could be identified through a diligent search.]

The number of New York federal website accessibility lawsuits continues to be staggering but it is going down, compared to last year.  The New York surge began in 2017 after New York federal judges allowed website accessibility cases to proceed to discovery in lawsuits against Blick Art and Five Guys in 2017.  The modest decrease in the New York numbers is likely due to some New York attorneys turning their attention to filing hundreds of lawsuits regarding the accessibility of gift cards in late 2019 and early 2020.

***

About our methodology:  Our 2019 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.  For example, there were a number of lawsuits in 2018-2020 brought by plaintiffs with mobility disabilities alleging that the reservations websites of hotels did not provide adequate information about the accessibility of hotel facilities.  We also removed a number of lawsuits from the 2019 count brought against state and local government entities under Title II of the ADA for having inaccessible websites.

By Minh Vu and Michael Steinberg

Seyfarth Synopsis: In a first-in-the-nation decision, Judge Gregory Woods of the Southern District of New York ruled that Title III does not require public accommodations to manufacture or sell Braille gift cards.

It has been a gloomy month for businesses that (ordinarily) open their doors to the public, but there was a small bright spot yesterday:  U.S. District Court Judge Gregory Woods issued a decision holding that Title III of the ADA does not require public accommodations to make and sell gift cards with Braille.

The decision is significant because, at the end of 2019 and first few months of this year, a handful of plaintiffs represented by a small group of coordinated plaintiff’s attorneys inundated the New York federal courts with more than 200 boilerplate lawsuits claiming that retailers, restaurants, and entertainment venues violated Title III of ADA, New York State, and New York City non-discrimination laws by not offering gift cards with Braille.  Defendants fought back with motions to dismiss these lawsuits, and Judge Woods’ decision is the first to issue from the bench. Decisive and thorough, the decision provides a roadmap for other judges to reach the same conclusion in the many other pending cases, should they be so inclined.

In the case in question, as in the other cases, the plaintiff here alleged that he called the defendant and inquired whether the defendant sells gift cards with Braille.  The defendant answered in the negative and did not proactively offer some other auxiliary aid or service.  The plaintiff filed a lawsuit shortly thereafter.

Judge Woods first concluded that the plaintiff’s “all-too-generic” complaint was insufficient to establish standing to sue because the plaintiff had not demonstrated that he would be injured by the absence of Braille on the retailer’s card in the imminent future – a requirement for ADA Title III lawsuits, which only offer forward looking injunctive relief.  Specifically, the plaintiff provided no facts to suggest that he would be patronizing the defendant’s store in the future where he would need to use a Braille gift card.  Judge Woods could have ended the opinion there, but, because it could inform other pending cases, went on to address the merits of the plaintiff’s ADA Title III claim.

First, he concluded that Title III and its regulations do not require the provision of different goods or services to people with disabilities, but rather only require nondiscriminatory enjoyment of those that are provided. So, for example, a bookstore would not be required to sell books in both Braille and standard print. Likewise, the court found, the ADA does not require businesses to make or sell gift cards with Braille print.  The court wrote:  “A retailer need not alter the mix of goods that it sells to include accessible goods for the disabled.”

Second,  the court held that the gift card is not a place of public accommodation, as claimed by the plaintiff.  “[R]eading the words “place of public accommodation” to include small slabs of plastic requires more than just a broad construction of Title III—it requires a rewrite of Title III entirely.”

Third, the court found that the defendant did not deny the plaintiff access to a service by failing to provide him with an accessible gift card because the plaintiff never asked for an auxiliary aid or service in the first place.  The court said: “The recitation of facts in Dominguez’s complaint make it clear that he never even asked for one, even though Plaintiff acknowledges that no one specific auxiliary aid is mandated by the ADA.”

Fourth, the court rejected Plaintiff’s argument that gift cards are like U.S. paper money which the D.C. Court of Appeals has held must be made accessible to people who are blind or low vision. The court called this argument “a strange interlude in Plaintiff’s opposition,” and said “the analogy to cash falls apart under even modest scrutiny.” The court also found no privacy considerations were implicated by the use of gift cards, unlike ATMs, for example, which require the input of a personal identification number.

Judge Woods concluded with the following comment about the boilerplate nature of these lawsuits:

“Computers have made a lot of things in life easier. Copy-and-paste litigation is one of them. The pitfalls of such an approach is evident here where, among other things, Plaintiff’s opposition responds to arguments never made by its opponent in its motion and failed to even correctly identify what Defendant sells. See, e.g., Opp‘n at 3, 15, 16, 20 (referring to Banana Republic as a “food establishment”). Although it features the fruit in its name, Banana Republic does not sell bananas.”

This decision is only the first of many decisions, but it is certainly a good start. We expect to see more judges weighing in in the coming months and we will continue to report on these decisions as they come out.  Stay tuned for more updates.

UPDATE:  Shortly after the court issued the decision discussed above, Judge Woods issued decisions in a number of other nearly identical gift card cases which rely on the analysis in the Banana Republic case to dismiss the plaintiff’s claims.

Edited by Kristina M. Launey

By Minh Vu

Seyfarth Synopsis:  Miniature horses trained to perform work or tasks for a person with a disability must be allowed in public accommodations in most instances.

The news is not particularly uplifting these days, so we thought our readers would enjoy seeing clips of former California Governor Arnold Schwarzenegger’s miniature horse, Whisky (the clips also features Lulu, his mini-donkey) (see here and here). Under the ADA regulations, miniature horses that are individually trained to perform work or tasks for a person with a disability must be allowed in public accommodations just like a service animal as long as they are housebroken, not too large, under the owner’s control, and would not compromise legitimate safety requirements.  We have no idea whether Whisky is trained to perform any work or tasks for anyone, but (s)he is awfully cute.

For more information about service animals, which the ADA defines to only include dogs, check out this very helpful FAQ from the Department of Justice.

Seyfarth Synopsis: The U.S. Health and Human Services Department Office for Civil Rights issued a bulletin reminding healthcare and other entities receiving federal funds that their anti-discrimination obligations under Section 1557 and the Rehabilitation Act remain in place in this time of COVID-19 emergency.

By Kristina M. Launey and Minh N. Vu

In this unprecedented time of COVID-19 emergency, there have been reports on the news that healthcare providers may need to make tough choices between patients due to various factors, including the shortage of much-needed life-saving equipment.  On March 28, 2020, the U.S. Health and Human Services Department (“HHS”) Office for Civil Rights (“OCR”) issued a bulletin reminding entities receiving federal funds for programs subject to Section 1557 of the Affordable Care Act (“Section 1557”) and Section 504 of the Rehabilitation Act (“Section 504), that their anti-discrimination obligations under those laws remain in place and must continue to be observed.

The bulletin warned: “individuals with disabilities should not be denied medical care on the basis of stereotypes, assessments of quality of life, or judgments about a person’s relative ‘worth’ based on the presence of absence of disabilities.”  Rather, covered entities, which receive federal funding for health programs or activities, should make decisions regarding whether an individual is a candidate for treatment “based on an individualized assessment of the patient based on the best available objective medical evidence.”

The bulletin is intended to help health care providers meet the HHS’s goal of “leaving no one behind” during an emergency, according to OCR Director Roger Severino, and that persons with disabilities “should not be put at the end of the line for health services during emergencies.”

To accomplish this, the bulletin reminded health care providers and other covered entities of some key obligations under Section 1557 and the Rehabilitation Act: providing effective communication with individuals who have hearing and vision related disabilities; making emergency messaging available in multiple formats, including audio, large print, captioning, and accessible websites; addressing needs of individuals with disabilities, including those with mobility impairments, using assistive devices or durable medical equipment, and immunosuppressed conditions in emergency planning.  Of course, the bulletin notes, some actions or accommodations may not be required, if they may fundamentally alter the nature of a program, pose an undue burden, or a direct threat.  While not required, the bulletin recommends covered entities “consider adopting” practices to make use of multiple outlets and resources for messaging to reach individuals with disabilities, and stocking facilities with items to help people maintain independence such as hearing aid batteries, canes, and walkers.

Significantly, though relegated to a footnote, the bulletin emphasized that it is more than just a recommendation; due to the COVID-19 public health emergency, it is a statement of policy not subject to the notice and comment requirements of the Administrative Procedure Act, over which the OCR will exercise its enforcement authority.

The OCR bulletin came on the heels of a complaint filed with the OCR by disability rights advocacy groups based in Washington State concerning a plan under development by the Washington State Department of Health and the Northwest Healthcare Response Network to ration health care during the COVID-19 pandemic.  The complaint alleges that the “rationing scheme places the lives of disabled people at serious risk” and “discriminates against people with disabilities in violation of … the Americans with Disabilities Act (ADA), Section 504 … and Section 1557.”

We cannot close without restating the bulletin’s reminder to us all to practice social distancing; clean your hands often; cover coughs and sneezes; and call your healthcare provider if you believe you may be infected. http://www.coronavirus.gov.

By Minh Vu, Kristina Launey and Susan Ryan

Seyfarth Synopsis:  The ADA Title III federal lawsuit numbers in 2019 topped 11,000 for another all-time record.

Plaintiffs filed at least 11,053 ADA Title III lawsuits in federal court in 2019 — 890 (or 8.8%) more than in 2018. This is the highest number since we started tracking these lawsuits in 2013, when there were only 2,722 such lawsuits.  These numbers include Title III lawsuits filed on all grounds — physical facilities, websites and mobile applications, service animals, sign language interpreters, and more.  These numbers do not include the significant number of disability access lawsuits filed in state courts which are much more difficult to accurately track.

[Graph: Total Number of ADA Title III Federal Lawsuits Filed Each Year January 1, 2013 – December 31, 2019: 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]

California, New York, and Florida continued to lead the country with the highest number of lawsuits by a long shot, with 4,794, 2,635, and 1,885 lawsuits, respectively.  These three states saw 84% of all the ADA Title III lawsuits nationwide, with California and New York each breaking their own records for the number of ADA Title III lawsuits, as shown in the graph below.

[Graph: California, New York, and Florida ADA Title III Lawsuits in Federal Court (2013-2019): 2013: CA 995, FL 816, NY 125; 2014: CA 1,866, FL 1,553, NY 212; 2015: CA 1,659, FL 1,338, NY 366; 2016: CA 2,468, FL 1,663, NY 543; 2017: CA 2,751, FL 1,488, NY 1,023; 2018: CA 4,249, FL 1,941, NY 2,338; 2019: CA 4,794, FL 1,885, NY 2,635]

Georgia, Texas, Pennsylvania, Illinois, New Jersey, Colorado, and Alabama also made the top ten but trailed very far behind with Georgia leading the second pack with 243 lawsuits.  Arizona fell out of the top ten with a dramatic decrease in lawsuit numbers (94 in 2018 to 13 in 2019), replaced by Illinois which had 190 lawsuits in 2019 — a 171% increase over 2018.

Businesses in North Dakota, South Dakota, and Vermont continued to be ADA Title III lawsuit-free for the third consecutive year (2017-2019).

[Graph: Top 10 States for ADA Title III Federal Lawsuits 2018 Compared to 2019; CA 2018: 4,249, 2019: 4,794; NY 2018: 2,338, 2019: 2,635; FL 2018: 1,941, 2019: 1,885; GA 2018: 160, 2019: 243; TX 2018: 196, 2019: 239; PA 2018: 129, 2019: 193; IL 2018: 70, 2019: 190; NJ 2018: 70, 2019: 95; CO 2018: 75, 2019: 81, AL 2018: 70, 2019: 79]

For the lawsuit trends in 2019 that drove these numbers, see our year end roundup post.

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

By: Minh N. Vu and Samuel Sverdlov

Seyfarth Synopsis:  Purveyors of porn are being sued for offering online videos without closed captioning.

We really can’t make this stuff up. Lawsuits by deaf plaintiffs against public accommodations for failing to provide closed captioning for videos on their websites are not uncommon. But last week, a deaf man sued three porn websites in federal court in New York claiming that online porn videos must have closed captioning which would provide a transcription of any dialogue, as well as a description of sounds in the video. The plaintiff claimed that the porn purveyors’ failure to provide closed captioning on the videos prevented him from full enjoyment of videos such as Hot Step Aunt Babysits Disobedient Nephew – Sofi Ryan – Family Therapy, Sexy Cop Gets Witness To Talk, A— Lesbian Action and Dirty Talk, The Guy Talked a Woman to A— Sex, Daddy 4K – Allison Comes To Talk About Money To Her Naughty Father, 18 YO Blonde Stripper DP in Homemade Gangbang Porn, and Beautiful Newbie Jasmine Interviewed Before A— Crea—e, in violation of Title III of the ADA, the New York State Human Rights Law, the New York City Human Rights Law, and the New York State Civil Rights Law.

Putting aside jokes about whether the dialogue is that critical or how one would describe the various sounds in these videos, these lawsuits do raise some interesting legal questions. For example, are the websites, which are not likely to be associated with any physical place of public accommodation, covered by Title III of the ADA? There is no precedent from the Court of Appeals for the Second Circuit on this issue, though some New York district judges in the Circuit think they are. The porn websites may also contain content posted by third parties for which the sites may have immunity under the Communications Decency Act of 1996, as one Massachusetts federal judge recently found in another case involving closed captioning of online videos posted on university websites.  We’ll keep a close eye on this one and apprise you of any legally noteworthy developments.

Edited by Kristina Launey

By Minh N. Vu

Seyfarth synopsis:  ADA Title III lawsuits flooded federal courts in 2019 and will likely continue to do so in 2020 with new theories for the courts to consider. 

We are still tallying up the end-of-year numbers, but the number of ADA Title III lawsuits filed in federal courts by the end of November 2019 (10,206) exceeded the number of such lawsuits filed in all of 2018 (10,163).  California courts continue to be the busiest with roughly 43% of the lawsuits, with New York and Florida courts taking second and third place with  24% and 18% of the market share, respectively.  With plaintiffs and their lawyers constantly conjuring up new claims, businesses are not likely to see any relief from these types of suits in 2020.

What types of lawsuits are trending now?

Braille Gift Card Lawsuits.  Starting in October of 2019, more than a dozen blind plaintiffs represented by five attorneys have filed at least 243 lawsuits in the Southern and Eastern Districts of New York alleging that retailers and other businesses have violated the ADA and New York state and city laws by failing to offer for sale gift cards that have all the information printed on the cards shown in Braille. These cases are assigned to at least twenty-nine different judges. A firm in southern California has also jumped on the bandwagon, filing Braille gift card lawsuits in California state court and sending out a number of pre-suit demand letters. Most defendants are digging in for a fight so we expect to see many motions to dismiss filed in the first quarter of 2020.

Website and Mobile App Accessibility Lawsuits.  Although we are still tallying the numbers, lawsuits alleging inaccessible websites and mobile apps accounted for at least a fifth of the total number of ADA Title III lawsuits filed in federal courts in 2019. Most plaintiffs in these cases are blind and claim that the websites in question do not work with their screen reader software which reads website content aloud. A much smaller number of plaintiffs are deaf and are suing about the lack of closed captioning for online videos.

Plaintiffs continue to file these website and mobile app accessibility lawsuits, though the rate at which they were being filed seemed to slow down in the fourth quarter of 2020. The change may be attributable to the fact that some of the lawyers who were filing many of these website accessibility suits in New York have turned their attention to Braille gift card lawsuits.

The big news from 2019 on the website accessibility front was the U.S. Supreme Court’s refusal to hear Domino’s appeal from a Ninth Circuit Court of Appeals decision allowing a blind plaintiff to pursue his lawsuit against the pizza chain for having an allegedly inaccessible website and mobile app. Businesses had hoped that the Supreme Court would hear the case and perhaps take some action to curtail the tsunami of website and mobile app lawsuits.

In 2019, Plaintiffs also made significant headway in persuading California state courts that inaccessible websites violate the state’s non-discrimination statute, including one appellate affirmation of a judgment in favor of blind plaintiff. In fact, one California Superior Court judge decided that the ADA applies to websites of businesses with no physical location where customers go. In reaching this conclusion, this California judge rejected federal Ninth Circuit precedent that the ADA only applies to websites of public accommodations with a nexus to a physical location.

Hotel Accessibility Information on Reservations Websites.  A number of plaintiffs filed lawsuits against hotels for allegedly failing to provide sufficient information about the accessibility of their accessible guest rooms and common areas on their websites, as required by the ADA Title III regulations, to allow travelers with disabilities to make informed decisions about whether a hotel meets their needs. In response to this flurry of lawsuits, many hotels have updated their websites to provide the required information. Now some plaintiffs are filing lawsuits alleging that hotels are not making accessible rooms available for sale on websites operated by third party online travel agencies.

Accessible Hotel Room Dispersion.  Title III of the ADA requires hotels to provide accessible rooms in a range of different room types (e.g. rooms with two beds, premium views, suites) so that people with disabilities have room choices that are comparable to those offered to people without disabilities. One plaintiff in particular has filed more than a hundred lawsuits under this theory, and we have no reason to think she will stop in 2020.

Inaccessible Facilities.  Historically the most prolific category for accessibility lawsuits, we have continued to see in the lawsuit filing numbers and in our practice many lawsuits about allegedly inaccessible physical public accommodations facilities such as hotels, retail stores, restaurants, and shopping centers in 2019. We do not expect this to change in 2020.

***

Be sure to subscribe to our blog to receive notices of developments throughout the year!

Edited by Kristina Launey

By Minh N. Vu and John W. Egan

Seyfarth Synopsis:  Enterprising plaintiffs in New York are suing more than 100 businesses under a new theory – – that ADA Title III requires Braille gift cards.

Between Thursday, October 24 and as recently as last Friday, over 100 putative class action lawsuits (and counting) have been filed against businesses for violations of ADA Title III, as well as the New York State and City Human Rights Laws in the United States District Courts for the Southern and Eastern Districts of New York.  The complaints are nearly identical and assert the same theory: A business that provides a gift card for purchase, but does not offer a Braille version, is committing discrimination against individuals who are blind or have visual impairments.

There are 11 plaintiffs and 4 law firms that have filed these cases.  Coincidentally, these are the same litigants and attorneys who have filed hundreds of lawsuits against businesses (including some of the same business targeted in these gift card cases) for allegedly inaccessible websites over the past several years.  In fact, based on our research, these plaintiffs and their attorneys, taken together, were responsible for approximately one-third of all federal website accessibility lawsuits filed in New York last year.

Businesses facing a barrage of website accessibility lawsuits and demand letters must now deal with this new threat based on what certainly appears to be a coordinated and wide-ranging legal challenge.

The gift card complaints allege that the plaintiff is blind and contacted the defendant earlier this month to inquire as to whether its gift cards are provided in Braille.  When each defendant allegedly responded that a Braille gift card was not available, the plaintiff commenced a lawsuit shortly thereafter.  The complaints cite at least one retailer that sells a gift card with its name in Braille, recites the ubiquity and importance of gift cards in the retail industry, and relies on the provision of Braille materials as an example of an auxiliary aid or service in ADA regulations.

Without “giving away the store,” we believe that there are compelling defenses to these cases and look forward to how the judges in the SDNY and EDNY will respond.  Stay tuned to the Blog for further updates on this developing story.

Edited by Kristina M. Launey

By Kristina M. Launey and Minh N. Vu

Seyfarth Synopsis: Website accessibility lawsuit filings in federal court in 2019 are on track to exceed 2018.  Will we see an increase in filings as a result of the Supreme Court’s decision not to review the Ninth Circuit’s Order in Robles v. Domino’s?

As of June 30, 2019, we counted 1204 website accessibility lawsuits filed in federal courts since January 1, 2019, for a projected total of 2408 by year end. This would constitute a seven percent increase over 2018’s numbers.

[Graph: ADA Title III Website Accessibility Lawsuits in Federal Court Jan. 1, 2017 to Jun. 30, 2019: 2017: 814; 2018: 2,258, 177% Increase over 2017; 2019: Total: 1,204 as of June 2019, Projected: 2,408, Projected 7% Increase over 2018]

As in past years, New York continued to lead the way, with 676 lawsuits filed from January 1, 2019 to June 30, 2019.  Florida and California followed with 336 and 74 lawsuits, respectively.

[Graph: All States Where Federal ADA Title III Website Accessibility Lawsuits Have been Filed Jan. 1 to Jun. 30, 2019: NY: 676; FL: 336; CA: 74; PA: 44; IL: 30; MA: 19; WI: 8; IN: 6; NJ: 4; CN: 2; TX: 2; DC: 1; ID: 1; VA: 1]

There were 5,592 federal ADA Title III lawsuits of all types (not just website accessibility) filed in the first half of 2019, so website accessibility suits make up roughly 22 percent of the overall number of cases.

For the first time, we looked at website accessibility lawsuits by month for 2019 and there was a significant decrease in the number of filings in September:  From 272 in August to 135 in September. It may be that attorneys were holding off on filing new lawsuits until the Supreme Court issued its decision regarding Domino’s Petition for Certiorari.  On average, seven website accessibility lawsuits were filed in federal court each day in 2019.

[Graph: Total Number of Website Accessibility Lawsuits Filed By Month in 2019 (Jan. 1 to Sept. 30, 2019): January: 240; February: 211; March: 185; April: 183; May: 197; June: 188; July: 261; August: 272; September: 135; On average, there were approximately 7 website accessibility lawsuits filed per day.]

Many commentators predict that the U.S. Supreme Court’s denial of review of the Robles v. Domino’s Ninth Circuit decision will result in a surge of website accessibility lawsuits.  To test this theory, we counted the number of lawsuits filed from January 1, 2019 to October 7, 2019 – the date the Supreme Court declined to hear the case.  There were 1906 website accessibility lawsuits filed up to and including October 7, 2019, for a daily average of seven filings. We will see how the post-Domino’s number stacks up in the coming months.