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By Eden Anderson

Seyfarth Synopsis: Ninth Circuit concludes in trilogy of disability access cases that complaints must specifically allege unlawful conditions.

Over the years, ADA Title III complaints filed by the plaintiff’s bar have gotten progressively more vague with respect to the barriers alleged.  This is no coincidence: Some have stated outright that they keep those allegations vague so businesses cannot easily fix the alleged barriers to moot the lawsuits.

The Ninth Circuit is putting an end to this strategy.  In a trilogy of decisions just issued, it made clear that the more stringent pleading standard established in the Iqbal/Twombly cases still applies in determining whether a disability access plaintiff’s allegations state a claim for relief.  All three cases involved the same plaintiff—Brian Whitaker—a serial filer of disability access lawsuits who uses a wheelchair for mobility.

In the first case, Whitaker v. Panama Joes, Investors, LLC, Whitaker alleged he encountered inaccessible “dining surfaces” at a restaurant and that the restaurant also lacked “accessible restrooms” and “accessible paths of travel in the patio area.”  He alleged he was deterred from returning to the restaurant because of these alleged barriers.

The Ninth Circuit concluded these allegations were sufficient to establish Whitaker’s standing to sue, but not to state a claim for relief under Title III of the ADA.  Specifically, no facts were alleged to identify the “specific deficiencies in the dining surfaces,” and there was no description of “how the restrooms were inaccessible” or “which paths of travel in the patio area were accessible.”  Without such specificity, the restaurant was not on notice of the claims, and the allegations did not satisfy the Iqbal/Twombly pleading standard to sufficiently state a claim and avoid dismissal of the complaint.

The second case, Whitaker v. Body, Art, and Soul Tattoos Los Angeles, LLC, involved a tattoo parlor which Whitaker alleged lacked “accessible sales counters” causing him “difficulty and discomfort.”  The Ninth Circuit again found standing, but explained the allegations were too “vague” to state a claim for relief because the “specific deficiencies in the sales counters” were not identified.  It affirmed the district court’s granting of the motion to dismiss on that basis.

In the third case, Whitaker alleged he encountered “inaccessible service counters” at an auto dealership which caused him “difficulty and discomfort” and which deterred him from returning.  The Ninth Circuit again found standing, but affirmed dismissal of the complaint.  The court stated that under Iqbal/Twombly, to state a claim for relief, Whitaker needed to allege “well pleaded facts, not legal conclusions.”  Yet his complaint “failed to answer the basic questions: Were the service counters too low?  Or too high?  Were they positioned in an area that was inaccessible for another reason?”  Without this detail, the complaint failed to state a claim for relief and was properly dismissed.  The Ninth Circuit soundly rejected Whitaker’s plea for “more lenient treatment,” concluding, “we have never held that civil rights litigants are exempt from satisfying the pleading standard demanded by Iqbal and Twombly.”

In each of the cases, Whitaker stood on his allegations and did not amend his complaint to add the requisite factual details—even though the district courts permitted him to do so.  While one might wonder why Whitaker chose that route, his arguments on appeal furnish the answer and some amusement.  Whitaker took the position that providing details about the nature of alleged access barriers would provide a defendant with sufficient information to remediate and moot his ADA claims.  The Ninth Circuit was not persuaded, responding that “defendants should be encouraged to remove barriers from their establishments.  This is an important objective of the ADA.”

As this trilogy of cases makes clear, plaintiffs and lawyers in disability access cases must provide sufficient factual details to place defendants on notice of the nature of the barriers they allege they personally encountered and which allegedly denied them of full and equal access in order to state a claim.

Edited by Minh Vu and Kristina Launey

 

 

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By Minh N. Vu

Seyfarth synopsis:  A federal judge dismisses the first two of hundreds of pending lawsuits filed against hotels for allegedly not providing enough accessibility information on their reservations websites.

Last fall, a prolific plaintiff’s firm in California began filing lawsuits against hundreds of hotels in California on behalf of seven plaintiffs.  The plaintiffs alleged that the information about the hotels’ accessibility provided on their reservations websites or on Expedia (in a handful of cases), was not sufficiently detailed for them to make a choice as to whether the hotel met their accessibility needs –  in violation of the ADA Title III regulation governing hotel reservations.  So far, these plaintiffs – all represented by this same firm –  have filed over 450 suits and the number keeps growing.

The plaintiffs insist that hotels must report on their reservations websites and third party websites specific data about accessibility features such as the dimensions of space under accessible desks and sinks.  They also claim that describing an element as “accessible” is not sufficient.

A number of hotels disagree that the regulations require that level of detail and are filing motions to dismiss.  Earlier this week, Judge Carney of the Central District of California issued decisions in two of these cases.  In the first case, the plaintiff alleged that the hotel’s information on Expedia did not comply with the regulations because it was not sufficiently detailed.  The court said the hotel was not responsible for information on Expedia because “nothing in Plaintiff’s Complaint suggests that the alleged deficiencies on Expedia’s website was due to Defendant’s failure to make information available to Expedia.”  The court further stated that the information on Expedia as well as on Marriott.com was, in any event, more than adequate because “[a] website need not list its compliance or non-compliance with every ADAAG provision to satisfy 28 C.F.R. § 36.302(e)(ii), citing the DOJ Guidance.”

Specifically, the court noted that:

Expedia identifies all of the major common areas as wheelchair-accessible (e.g., the business center, concierge desk, elevators, fitness center, restaurant, parking, registration desk, pool). (Expedia’s Website.) It indicates that the routes of travel to areas of the hotel and accessible guestrooms are accessible.  It specifies that guestrooms are accessible and provides details on types of accessibility features, including a “grab bar near toilet,” a “low-height counter and sink,” and a “raised toilet seat.”  It also directs customers to contact the hotel directly for additional information on accessibility features.  Defendant’s website provides similar information in even more detail, listing the following “Guest Room Accessibility” features: accessible guest rooms with 32-inch wide doorways, accessible route from public entrance to accessible guest rooms, alarm clock telephone ringers, bathroom grab bars, bathtub grab bars, bathtub seat, lowered deadbolt locks, lowered door night guards, doors with level  handles, lowered electrical outlets, flashing door knockers, hearing accessible rooms and kits, roll-in showers, adjustable shower wands, “TTY/TTD available,” TVs with closed-captioning, toilet seats at wheelchair height, transfer showers, accessible vanities, and lowered viewports. (D’s Website.) Defendant’s website also notes that “[f]or more information about the physical features of our accessible rooms, common areas, or special services relating to a specific disability, please call +1 714-772-6777.”  This information more than satisfies Defendant’s obligation under § 36.302(e)(ii).

(citations omitted).

In the second case which involved the sufficiency of a hotel’s information on Marriott.com, Judge Carney reiterated the legal principles stated in the first decision, and concluded that the accessibility information “more than satisfies” ADA requirements.

Judge Carney’s decisions are good for the hotel industry and an important step toward countering the tsunami of lawsuits hitting California hotels during a very difficult time for the hospitality industry.  Check back for more developments on these cases.

UPDATE: On February 25, 2021, U.S. District Judge Percy Anderson dismissed with prejudice a third reservations website case filed by this law firm against another hotel with an even more detailed opinion which squarely rejects the plaintiff’s demand for detailed accessibility information.  The court stated:

The 2010 DOJ ADAAG Guidance on this provision “recognizes that a reservations system is not intended to be an accessibility survey,” and “[b]ecause of the wide variations in the level of accessibility that travelers will encounter . . . it may be sufficient to specify that the hotel is accessible” and to provide basic facts about each accessible room.” That is exactly what Defendant does here. Defendant provides Plaintiff notice that it has accessible rooms. While Plaintiff argues that “claiming something is ‘accessible’ is a conclusion or opinion,” the term “accessible” is specifically defined in the ADAAG to describe “a site, building, facility, or portion thereof that complies with these guidelines.” 1991 ADAAG § 3.5. Thus, the Defendant’s use of the term “accessible” is not merely conclusory, it means that the features in the hotel defined by Defendant as “accessible” comply with the ADAAG.

Edited by Kristina M. Launey

Seyfarth Synopsis: A recently-filed lawsuit contains a lengthy critical report by a digital accessibility consultant of accessibility issues created by an accessibility widget.

Amidst the thousands of lawsuits filed over the past few years alleging business’ websites and mobile apps are not accessible to blind individuals, businesses have scrambled to find ways to make their websites and apps accessible.  Often those businesses engage a consultant experienced in digital accessibility to perform an audit of the website or app. The consultant may also provide instruction on how to remediate the underlying code of the website or app to make it – and maintain it so it stays – accessible. This process can be costly and take a considerable amount of time, depending on the size and complexity of the website and the business’ resources. All the while, the business remains at risk of more lawsuits for not providing a website that individuals who are blind or have hearing impairments, for example, can use.

As lawsuits have proliferated, so have consultants and companies offering to make a website accessible through an overlay or “widget”, at much less effort – though not necessarily less cost or less risk – than remediation of the underlying code. Even while respected members of the digital accessibility community voiced reactions ranging from skepticism to flat out repudiation of these products, businesses have used them on their websites, desperately searching for any cost-effective accessibility solution. In a comprehensive article about the legal and technical issues surrounding these products, disability rights attorney Lainey Feingold wrote that “[c]ompanies promise that a website will work for disabled people if the software is installed” and that “using the software will prevent a website from being sued [for not being accessible].” Her article concludes with links to a number of articles written by reputable digital accessibility consultants (who have qualifications sufficient to provide expert witness services to a business facing a website accessibility lawsuit), that provide useful information for any company considering purchasing one of these products, and she provides the following advice: “take the time to understand how disabled people navigate websites.  Hire disabled people for roles throughout the design and development process and implement well recognized best practices. Rely on reputable consultants and proven tools. Respect the ADA and avoid quick-fix tools.”

Last year, there were a number of website accessibility suits filed against companies who had attempted to make their websites accessible using these products.  One plaintiff’s law firm recently took it up a notch, including in a lawsuit a detailed criticism and lengthy report by a digital accessibility consultant of the accessibility issues created by an accessibility widget.

The digital accessibility expert’s report, which is attached to the complaint, explains that the widget requires a JavaScript snippet be added to each page of the business’ website, which then provides controls that allow the user to modify the website’s appearance, a series of disability “profiles” which provide modifications or enhancements on the website for a user’s specific disability, and in some cases attempts to repair the website’s underlying accessibility issues. The report lays out the consultant’s opinion about the ways in which the widget product not only does not and cannot ensure full and equal access to a website by individuals with disabilities, but also that the product actually adds new accessibility issues to the website.  Obviously this is one expert’s opinion, and we’ll watch how this argument plays out in this lawsuit if it proceeds through litigation rather than settlement.

In the meantime, businesses looking to make their websites and mobile apps more accessible should carefully vet all consultants and other accessibility solutions.  Outside legal counsel experienced in digital accessibility can often add great value in these efforts and engagements.

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By Minh N. Vu and Kristina Launey

Seyfarth Synopsis: We predict 2021 will be a very busy year for ADA Title III lawsuits.  Here is our take on the types of cases public accommodations can expect to face.

2020 was, by all accounts, an unusual year.  The year began with some prolific plaintiffs’ attorneys turning their attention from website accessibility lawsuits to lawsuits claiming that the ADA requires gift cards containing Braille. That gambit has not worked out well for these plaintiffs’ lawyers at the district court level, and the issue is now on appeal to the Court of Appeals for the Second Circuit.

Then the COVID-19 pandemic hit, causing a significant drop in the number of lawsuits filed — stalling the year over year growth in the number of ADA Title III lawsuits filed in federal courts, which peaked in 2019 with 11,053 lawsuits.

The pandemic did result in some new types of ADA lawsuits, however.  For example, a handful of plaintiffs sued about having to wear masks in public accommodations.

As the year wore on, the plaintiffs’ bar got back to work and filed a number of new lawsuits in the last quarter of 2020. As in prior years, we are completing our tally of lawsuits filed in federal courts and will know whether the end-of-year surge made up for the decrease in activity over the summer.

No one could have predicted what we have endured as a country in 2020.  But one thing is fairly certain:  2021 will be a very busy year for ADA Title III lawsuits.  If they remain on current pace, we expect they will likely equal or exceed the 2019 count.

What will those lawsuits be about?

Hotel Reservations Websites.  In 2020, several law firms and their plaintiffs filed hundreds of lawsuits against hotels which allegedly did not provide enough accessibility information about their hotels and accessible rooms on their own reservations websites or on online travel agency websites (OTAs) such as Expedia or Booking.com.  In the final months of 2020, one California firm filed over two hundred of these suits (most in state court) that will continue to be litigated in 2021.  Many hotels are fighting back so we anticipate more judicial decisions about how much accessibility information the ADA actually requires hotels provide on their reservations websites.

Website and Mobile App Accessibility Lawsuits.  As in prior years, we expect a significant number of lawsuits alleging violations of the ADA and related state laws based upon the alleged inaccessibility of websites and mobile apps to the blind or people with hearing disabilities.  We anticipate that the Eleventh Circuit will finally issue its decision in the Gil v. Winn Dixie appeal, which may provide further guidance on whether the privately-developed Web Content Accessibility Guidelines (WCAG) should be the legal standard for accessible public accommodations websites.

Physical Access Barrier Lawsuits.  Lawsuits about accessibility barriers in physical facilities of public accommodations have always been the bread and butter of the ADA Title III plaintiffs’ bar, and we do not see that changing.  The barriers we most often see in these lawsuits concern accessible parking, exterior paths of travel, store aisles, restroom elements, and sales counters.

Department of Justice (DOJ) Enforcement Actions and Investigations.  The DOJ under the Trump administration was not particularly aggressive in its enforcement of Title III of the ADA and did not appear to pursue website accessibility investigations.  We expect much more zealous enforcement in a Biden administration, so businesses should be prepared to face broad investigations into their compliance with Title III of the ADA and potentially onerous demands for remedial action.

***

What can a place of public accommodation do to mitigate the risk of being a statistic in 2021’s annual lawsuit count?  Have an ADA expert review your physical facility and take steps to remove barriers to access.  Adopt an ADA policy and train your employees on the law’s requirements to ensure appropriate interactions with individuals with disabilities.  Have a digital accessibility expert review your websites and mobile apps to ensure they can be used by people with disabilities.  And hotels, be sure you are providing accessibility information about your accessible rooms and common areas on your reservations website and that accessible rooms can be reserved on that website.  Also be sure you send accessible rooms and information to some OTAs.  It’s going to be a very busy year for ADA Title III matters, but you can take steps to make your business a less attractive target.  For a nice overview of common compliance problems, check out our video tips here.

penguins and pelican in the airplane cabin.
Penguins and pelican fly in the airplane cabin. Creative photocombination concept

By Kevin A. Fritz

Seyfarth Synopsis: Emotional support animals will no longer be categorized as “service animals” under the Air Carrier Access Act under new Department of Transportation regulations. 

Questionable verifications for certain assistance animals have frustrated the airline industry for years. From peacocks to pigs, all sorts of furry and feathered companions have accompanied individuals on domestic and international flights in the guise of “emotional support animals” (ESAs) sitting pretty in cabins next to their owners.  While stories of such support animals are entertaining, complaints from passengers, increasing requests to transport unusual species of animals on board aircrafts disguised as ESAs, and thousands of comments in the rulemaking process prompted the U.S. Department of Transportation (DOT) to take action.  Just last week the DOT declared that airlines “are not required to recognize emotional support animals as service animals and may treat them as pets.” This recent final rule under the Air Carrier Access Act (ACAA) will change how emotional service support animals are categorized for air travel. The DOT also provided a brief summary of the rule on its website.

To understand the impact of this change, let’s review how other disability access laws address service animals and emotional support animals:

A service animal, under Title III of the Americans with Disabilities Act (ADA), is a dog that is individually trained to do work or perform tasks for people with disabilities.  Public accommodations must allow service dogs to accompany people with disabilities in all areas of a facility where the public is allowed to go, and are only allowed to ask two questions to determine if the animal is a service animal. The public accommodation cannot ask about the disability, require medical documentation, require a special identification card, certificate, or training documentation for the dog, or ask that the dog demonstrate its ability to perform the work or task it has been trained to perform.  And while miniature horses are not technically service animals, the ADA requires public accommodations allow them to accompany individuals with disabilities who require their assistance due to a disability subject to weight and size limitations. The ADA does not require public accommodations to allow ESAs into their facilities.

ESAs provide comfort and support to their owners, but are not trained to perform any work or task.  Unlike the ADA, the Fair Housing Act (FHA) recognizes ESAs as “assistance animals”—defined as any “animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or that provides emotional support that alleviates one or more identified effects of a person’s disability.” The FHA requires housing providers to allow ESAs as a reasonable accommodation (regardless of any pet restrictions) when a resident makes a request that is supported by reliable disability-related information or when the disability-related need for the animal is apparent.

Things are different up in the sky.  The ACAA has maintained a much broader definition of “service animal” for many years—until now.  Previously, the ACAA defined “service animal” to include “any animal that is individually trained or able to provide assistance to a person with a disability; or any animal that assists persons with disabilities by providing emotional support.”  The DOT’s new rule brings this definition more in line with the ADA’s definition of service animal.  A service animal under the ACAA is “a dog, regardless of breed or type, that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.”

Unlike the ADA, the ACAA allows airlines to require passengers to submit two forms created by the DOT.  The first concerns the behavior and health of the service animal(s), and the second requires assurances by the animal owner that the service animal(s) will not need to relieve themselves on flights longer than 8 hours.  These forms can be required up to 48 hours in advance of the date of travel if the travel was booked prior to that time.  In addition, each passenger may only bring up to two service animals, provided they all fit in the passenger’s foot space on the plane.  ADA regulations, on the other hand, do not limit the number of service animals a person with a disability can bring into a place of public accommodation.

The skies are not so friendly to horses either. Unlike the ADA, miniature horses—even those trained to perform work or tasks for an individual with a disability—can be excluded from aircraft cabins.

The bottom line: The ACAA now only requires airlines to allow two service dogs per passenger to fly for free.  All other animals are subject to whatever rules or fees the airlines choose to impose.  Keep in mind, however, that these new rules only apply to air travel and have no impact on existing regulations relating to service animals and ESAs in public accommodations and housing.

Learn more about service animals and other tips for ADA compliance here in honor of the 30th anniversary of the ADA!

Edited by Minh N. Vu and Kristina M. Launey

 

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By Minh N. Vu and Kristina M. Launey

Seyfarth Synopsis: A Biden Administration DOJ will likely bring higher engagement and more aggressive enforcement on ADA Title III issues.

While the current administration may still be unwilling to concede the election, it appears there will indeed be a new administration in charge at the Department of Justice (DOJ) come January 20, 2021.  How will the Biden Administration approach Title III of the ADA and its enforcement?  We think there will be much higher engagement – and likely more aggressive enforcement – on multiple fronts.

Enforcement.  Under the Obama Administration, the DOJ aggressively pursued enforcement actions against businesses regarding the alleged inaccessibility to people with disabilities of technologies that businesses use to provide their goods and services to the public – especially websites and mobile apps.  During the Trump Administration, we saw virtually no new investigations about websites or mobile apps that were not accessible to people with disabilities. And, investigations that were pending under the Obama Administration went dormant under the Trump Administration.  We expect the Biden Administration to resume the aggressive approach to enforcement taken by the DOJ during the Obama years on this issue.

As a result of increased enforcement, businesses should expect DOJ to demand higher monetary damages and civil penalties (presently the ADA authorizes maximum penalties of $96,384.00 for a first violation and $192,768 for a subsequent violation) and more onerous remedial terms.

Regulations.  Consistent with its anti-regulation policy, the Trump administration put the kibosh on every ADA Title III rulemaking that was pending.  Granted, many of those saw little progress under the Obama Administration (including, notably, proposed regulations adopting accessibility standards for public accommodations’ websites under Title III), but there is a real chance that some rulemakings will be revived under the Biden Administration.  At  the end of President Obama’s term, there was more rulemaking activity around issuing accessibility standards for the websites of state and local governments covered by Title II of the ADA.  Perhaps the Biden Administration would revive that rulemaking.  Rulemaking efforts that were also in progress at the end of the Obama DOJ’s tenure (and withdrawn by the Trump DOJ), such as on non-fixed equipment and furniture may likewise resurface.  The Obama DOJ squeezed in a final rule on movie captioning audio description on the way out the door in late 2016.

Technical Assistance.  The Trump DOJ put out very few technical assistance documents which historically have been a valuable source of guidance to help businesses understand and comply with the ADA and its implementing regulations.  We anticipate seeing more technical guidance from the DOJ in the coming years.

Intervention in Pending Lawsuits.  The Trump Administration rarely intervened in ADA Title III lawsuits – in contrast to the Obama DOJ (for example, see here and here).  We expect the DOJ to resume its practice of intervening on behalf of plaintiffs in important lawsuits and to push the boundaries of the law in ways that will impose greater obligations on covered entities.

Legislative Reform.  There have been some short-lived attempts at ADA reform in Congress over the past four years, including the ADA Education and Reform Act, the ADA Notification Act, and most recently, the Online Accessibility Act, and even letter writing efforts between members of Congress and the DOJ.  These efforts  have not gained much traction because they did not receive support from disability rights advocates.  We do not see that situation changing during a Biden Administration.

***

Given the forthcoming more aggressive enforcement environment, businesses should very seriously consider whether their ADA Title III compliance programs are sufficiently robust, particularly with regard to their digital assets.  How good is our crystal ball?  Pretty clear, based on our November 2016 predictions.

 

Accessibility computer icon button
Accessibility computer icon button

By Minh Vu and Julia Sarnoff

Seyfarth Synopsis:  Congressmen Budd and Correa try to address website and mobile app accessibility in a new bill called the “Online Accessibility Act.”  

On October 2, 2020, Representatives Lou Correa (D-CA) and Ted Budd (R-NC) introduced a bill called the “Online Accessibility Act” (H.R. 8478) (the “OAA”) which would amend the ADA to add a new Title VI prohibiting discrimination by “any private owner or operator of a consumer facing website or mobile application” against individuals with disabilities. The OAA would also establish web accessibility compliance standards for consumer facing websites and mobile apps and create a mandatory administrative process that persons injured by allegedly inaccessible websites and mobile apps must use before they can file a lawsuit.  

Here is a summary of the bill and our initial thoughts on the matter.

Key Provisions of the OAA

Compliance Standard.  Under the bill, covered entities — defined as “any private owner or operator of a consumer facing website or mobile application” — can comply with the ADA with respect to their consumer facing websites and mobile applications by one of the two following ways: 

(1) Substantial Conformance” with WCAG 2.0, Level A and AA.  A website or mobile application would be considered compliant with the ADA if it is in “substantial compliance” with the Web Content Accessibility Guidelines (WCAG) 2.0, Level A and AA, or any subsequent update, revision, or replacement published by the World Wide Web Consortium (the international organization that develops the WCAG technical guidelines).  

(2) “Alternative Means of Access” Acceptable.  A private entity that owns or operates a consumer facing website or mobile app that is not in “substantial compliance” with WCAG 2.0 A and AA could comply with the ADA by providing “alternative means of access to individuals with disabilities that is equivalent to access the content available on such website or mobile application.”  

The bill tasks the Architectural and Transportation Barriers Compliance Board (the “Access Board”) with the job of defining the terms “substantial compliance” with WCAG 2.0, Level A and AA, “alternative means of access,” and “consumer facing website or mobile application.”  The Access Board would also develop regulations for the implementation of the OAA’s compliance standard.  The bill also directs the Access Board to “include flexibility for small business concerns.”

Exhaustion of Administrative Remedies Required Prior to Filing a Civil Lawsuit.  As drafted, the bill would require aggrieved persons with a disability to exhaust their administrative remedies before bringing a civil action.  

To do so, the individual must first provide notice to the owner or operator of the consumer facing website or mobile app of the fact that its website or mobile application does not comply with the WCAG 2.0 AA (or later version) (“accessibility standard”).  The owner or operator would then have 90 days to bring its website or mobile app into compliance with the accessibility standard.

If the owner or operator fails to bring its website or mobile app into compliance with the accessibility requirements described above within the 90 day notice period, the individual may then file an administrative complaint with the Department of Justice (“DOJ”) within 90 days after the notice period expires.  The DOJ would have 180 days to complete its investigation, at which point DOJ could initiate a civil enforcement action against the business in “any appropriate United States district court.”  

The individual may only bring a lawsuit after the end of the 180-day period if the DOJ chooses not to do so.  In a lawsuit brought by DOJ, the court may order compliance with law and, monetary damages (but not punitive damages), and assess a civil penalty not exceeding $20,000 for a first violation, or $50,000 for any subsequent violation.  In considering civil penalties, the court would be required to consider “any good faith effort or attempt to comply” with the bill’s requirements.

Only if DOJ does not complete its investigation within 180 days, or if DOJ finds that there is a violation but decides not to initiate its own enforcement action, may an individual file a private civil lawsuit against the owner or operator for non-compliance with the ADA.  The bill explicitly states that this civil action is “the sole and exclusive remedy for any person aggrieved by the failure of any consumer facing website or mobile application to meet the requirements” of the Act.

Our Initial Observations.

  • The definition of a “consumer facing website” as “any website that is purposefully made available to the public for commercial purposes” is rather vague.  Would it apply to a website or mobile app that sells goods or services only to other businesses, for example?  
  • The bill would apply to a private entity that is an “owner or operator of a consumer facing website.”   This language would seem to cover companies that host or maintain websites on their platforms for private businesses.  Thus, the OAA, if enacted, could cover more entities than just public accommodations that are currently the targets of website and mobile app accessibility lawsuits.
  • Although the DOJ can obtain injunctive relief, damages, and a civil penalty in an enforcement action, the bill does not say what relief would be available to a private litigant.  In addition, the maximum civil penalty that can be obtained by the DOJ under this new Title VI would be significantly less than the maximum for other types of discrimination under Title III of the ADA (i.e. $96,384.00 for a first violation and $192,768 for a subsequent violation).
  • The administrative process contemplated by the OAA would put a new and significant burden on the DOJ, which would have to investigate all complaints.   
  • The bill’s statement that its remedies are the “sole and exclusive remedy” for aggrieved persons raises questions as to whether individuals would be prohibited from filing lawsuits to enforce state and local laws concerning the accessibility of websites and mobile applications.
  • The bill leaves open the question of how long a “grace period” covered entities will have to come into compliance with its requirements following the issuance of regulations by the Access Board.
  • The bill contains no defenses for covered entities, such as technical infeasibility, undue burden, and/or fundamental alteration.

Response to Bill by Disability Rights Advocates.  

Disability rights advocates do not seem enthusiastic about the bill.    

Some advocates say that the more recent WCAG 2.1 should be the standard for compliance, not WCAG 2.0.  They also oppose an allowance for alternative means of access to online content.  Advocates have also expressed concern that the requirement to exhaust administrative remedies would limit the right of disabled people to enforce the ADA through private lawsuits.  Furthermore, the Act could prohibit individuals from enforcing state and local disability access rights laws.  Additionally, advocates believe that limiting the Act to websites and mobile apps puts at risk their efforts to use the ADA to increase accessibility of other technologies such as kiosks and employee software.

What’s Ahead?  

Past attempts to amend the ADA to address the concerns of private entities faced with a deluge of lawsuits (e.g. the ADA Education and Reform Act and the ADA Notification Act) have not gained much traction because they did not receive support from disability rights advocates.  However, we think both businesses and advocates would like to see clear legal requirements on this issue rather than the confusing and constantly evolving patchwork of court decisions that exists today.  Thus, the bill is certainly a step in the right direction.

Judge holding gavel in courtroom

By Myra Villamor, Minh Vu, and Kristina Launey

Seyfarth Synopsis: The Ninth Circuit Court of Appeals adopts a burden-shifting framework for analyzing claims involving the removal of pre-ADA barriers which requires the plaintiff to “plausibly show how the cost of removing the architectural barrier at issue does not exceed the benefits under the circumstances.”

Under the Americans with Disabilities Act (ADA), public accommodations must remove architectural barriers that pre-date the ADA and have not been altered if the removal is “readily achievable.”  The ADA and its regulations do not state which party bears the burden of showing that barrier removal is or is not readily achievable, so courts have had to devise their own approaches.

On September 9, 2020, in Lopez v. Catalina Channel Express, Inc., the Ninth Circuit ruled that to survive summary judgment, a plaintiff bears the initial burden to “plausibly show how the cost of removing the architectural barrier at issue does not exceed the benefits under the circumstances.”  And while a plaintiff  is not required – in meeting its initial burden – to address in detail each of the four factors for determining whether barrier removal is “readily achievable,” the Ninth Circuit noted that “it is in plaintiffs’ best interest to submit as much evidence as possible pertaining to each of the [four] factors in their initial barrier-removal proposal. Otherwise, plaintiffs risk meeting their initial burden but failing to ultimately prevail on summary judgment.” Those four factors are:

(A) “the nature and cost of the action needed”

(B) “the overall financial resources of the facility or facilities involved in the action; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such action upon the operation of the facility;”

(C) “the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and”

(D)  “the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity.”

42 U.S.C. § 12181(9)(A)–(D).

The Ninth Circuit then stated that “[if]f the plaintiff makes a plausible showing that the requested accommodation is readily achievable, the burden shifts to the defendant to counter the plaintiff’s initial showing, and at that point the district court is required under the statute to weigh each of the § 12181(9) factors to determine whether removal of the architectural barrier is readily achievable or not.”

Even though the district court had applied a more stringent standard in granting summary judgment to the defendant, the Ninth Circuit nonetheless affirmed the district court’s conclusion that the plaintiff failed to meet his initial, less onerous, burden under its newly-articulated burden shifting framework.  Specifically, the plaintiff alleged that the restroom door on defendant Catalina Channel Express’s Jet Cat Express passenger ship was too narrow for his wheelchair to enter, in violation of the ADA and California Unruh Civil Rights Act. On cross-motions for summary judgment, Lopez submitted a scanty two-page declaration from a “private investigator” stating the doorway to the restroom could be widened to 34-inches if the sliding door was not blocked by a metal pin on top of the door. The Ninth Circuit concluded that Lopez failed to meet his initial burden of establishing that a suggested method of barrier removal was readily achievable, and found that the private investigator’s declaration “only identifies the problem,” but “does not bear on the question of whether remediating the problem is readily achievable.” The Ninth Circuit found the plaintiff provided no evidence as to how much the requested barrier removal might cost, much less any evidence showing that the cost of widening the restroom doorway does not exceed the benefits (i.e., that widening the restroom doorway was readily achievable).

The Ninth Circuit’s decision on this point did not conclude the matter, however. The Ninth Circuit held that the plaintiff could still prevail if he could show that Catalina could have made the restroom available to Lopez through alternative methods without much difficulty or expense. Because the district court did not evaluate this issue, the Ninth Circuit remanded and directed the district court to determine this remaining question, as to whether there is sufficient evidence that “Catalina could have made the restroom available to Lopez through alternative methods without much difficulty or expense.”

There are two key takeaways for businesses from this decision:  In considering whether or not the removal of a pre-ADA barrier is readily achievable, a business must carefully analyze and document the four factors set forth in the regulation and weigh the cost and benefit of the barrier removal. Additionally, it must determine if there are alternative ways to make the goods and/or services in question accessible to the plaintiff without much difficulty or expense. If there are, those alternative methods should be implemented.

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

Seyfarth synopsis:  Businesses enjoyed a brief reprieve in ADA Title III lawsuits while the country was shut down but the rest of the year will most likely be business as usual.  

In the first six months of 2020, 4,759 ADA Title III lawsuits were filed in federal court, as compared to 5,592 of such suits filed in the first six months of 2019, for a decrease of 15 percent during this period.  This downtick is largely due to the significantly fewer  filings in April and May of 2020, when most of the country was shut down.  Based on this data, we predict that 2020 will end with fewer lawsuits than in 2019, but expect numbers to pick back up with the country and courts slowly reopening, for a year-end decrease that will likely be much less than 15 percent.

[Total Number of ADA Title III Federal Lawsuits Filed Each Year, January 1, 2020 – June 30, 2020; 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: 4,759 as of 6/30/20]

The number of lawsuits filed per month dipped significantly in April and May – with 572 and 538 lawsuits, respectively – and then rebounded in June and July.  July saw 954 lawsuits filed — the second highest monthly number in 2020.  July’s sharp uptick suggests that federal courts will be very busy with ADA Title III lawsuit filings for the rest of 2020.

[Total Number of Federal ADA Title III Lawsuits Filed Per Month January 1, 2020 – July 31, 2020: January: 973; February: 930; March: 888; April: 572; May: 538; June: 858; July: 954]

California (2,702 lawsuits), New York (756 lawsuits), and Florida (574 lawsuits) continue to lead the country in the number of federal filings. The top ten states for federal ADA Title III filings has changed only slightly, with the addition of Massachusetts which has had 39 lawsuits this year.  Alabama fell out of the top ten with only 18 lawsuits.

[Top 10 States with Federal ADA Title III Lawsuits Filed January 1, 2020 – June 30, 2020: California: 2,702; New York: 756; Florida: 574; Texas: 136;  Georgia: 120; Illinois: 85; Pennsylvania: 72; Massachusetts: 39; Colorado: 37; New Jersey: 26]

What are these lawsuits about?  Based on the many cases we see in our practice, most cases concern allegedly inaccessible physical facilities or websites, or hotel reservations websites that do not have sufficient accessibility information about their accessible rooms and common areas.  Some plaintiffs have also filed suit about strict COVID-19 mask policies, though it seems most plaintiffs’ firms are waiting to see what happens in those cases before diving in.

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 cases from the count.

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By Minh N. Vu

Seyfarth Synopsis:  California state courts are becoming an even friendlier jurisdiction for plaintiffs filing lawsuits about allegedly inaccessible websites.

The U.S. Court Appeals for the Ninth Circuit has longstanding precedent that only businesses with a brick and mortar location that customers can physically visit are “public accommodations” covered by Title III of the Americans with Disabilities Act.  Following this precedent, in 2015, it held that Title III does not apply to online-only businesses such as eBay and Netflix.  The Ninth Circuit is not alone in its position—the Eleventh Circuit has reached the same conclusion.  However, other circuits, such as the First Circuit, have concluded that businesses do not need to have a physical place of business where customers go to qualify as public accommodations so long as they fall within the twelve categories of businesses identified by the ADA as “public accommodations.”  While the First Circuit did not reach this conclusion in a website accessibility case, district courts in the First Circuit have applied this precedent to hold that online-only businesses are covered by Title III of the ADA.

Because neither the U.S. Supreme Court or the California Supreme Court have considered the issue of whether an online-only business is covered by Title III of the ADA, California state court judges have latitude in deciding this issue.  Last week, California Superior Court Judge Gregory Kiosan decided  that Title III of the ADA does cover online-only businesses and refused to dismiss a lawsuit filed against an online-only video game retailer.  In December 2019, California Superior Court Judge Angel Bermudez also refused to dismiss a lawsuit against an online-only business on the same basis.

California Superior Court judges are opining on federal law because a plaintiff can establish a violation of California’s Unruh Act by demonstrating a substantive violation of Title III of the ADA. Thus, in deciding website accessibility cases under Unruh, California judges must determine whether online-only businesses are covered under the federal law.

Although the decisions of these two judges are not binding on any other California judges and may ultimately be overruled by a California appellate decision, they suggest that California state court may be a good choice for plaintiffs seeking to sue an online-only business for an allegedly inaccessible website, and provide a likely explanation for why the number of website accessibility lawsuits filed in federal courts in California is fewer than one might expect.

Edited by Kristina Launey