By Kristina Launey and Ashley Jenkins

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

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

On the appeal of the class certification grant, LabCorp argued that the named plaintiff and other class members did not have standing to pursue their claims because they were not injured by the kiosks’ inaccessibility.  The Court disagreed, holding that the named plaintiff could not use the inaccessible kiosk and had to wait for an employee to notice him and check him in.  Based on these facts, the Court concluded that the named plaintiff “was denied effective communication and, by extension, the full and equal enjoyment of LabCorp’s services.” 

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

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

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

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

Edited by Minh Vu

By Minh N. Vu and John W. Egan

Seyfarth Synopsis: The U.S. Access Board published an ANPRM on September 21, 2022 requesting public comment on nine questions as it prepares draft regulations addressing the accessibility of self-service kiosks.

As previewed in the Spring 2022 Unified Agenda of Regulatory and Deregulatory Actions (the “Agenda”) (as we previously covered), the U.S. Access Board recently issued an Advanced Notice of Proposed Rulemaking (“ANPRM”) for Fixed Self-Service Transaction Machines (“SSTMs”) (a.k.a. self-service kiosks).  The U.S. Access Board—the federal agency that develops accessibility standards that become regulations under ADA Title III once adopted by the DOJ—is requesting public comment on nine questions (listed below) as it works on proposed accessibility requirements for self-service kiosks.

Self-service kiosks typically utilize touchscreens and visual displays which allow customers to access services or perform functions themselves that are traditionally provided by employees of the business.  These devices present financial and operational incentives to businesses, allowing them to have fewer employees serving customers, offer a largely contact-free customer experience, and give customers the option to skip the line for in-person service.  However, these kiosks can be impossible to use by people who are blind if there is no audio output for visual information, or controls that can be perceived without sight.  Persons who use scooters and wheelchairs can also have difficulty using self-service kiosks if the controls are out of reach from their seated position, the screen is too high, or there is no clear floor space in front of the machine.

Self-service kiosks have sprouted up everywhere in recent years.  They are used to order food, buy tickets of all kinds, pay for parking, check-in to a hotel or healthcare provider, get a rental car, and rent movies.  But unlike ATMs and fare machines that long predate them, self-service kiosks do not have specific accessibility requirements set forth in the ADA Standards for Accessible Design (“2010 Standards”) which apply to public accommodations and commercial facilities.  The absence of technical standards does not mean that there are no legal requirements, however.  The U.S. Department of Justice (“DOJ”) made clear in a recent Statement of Interest (“SOI”) that public accommodations have a duty to ensure effective communication for the goods and/or services offered through self-service kiosks.  This can be done by providing an accessible kiosk that people with disabilities can use independently, or with employee assistance that provides an equivalent experience.  In the SOI, the DOJ found that providing employee assistance at a self-service check-in kiosk was not sufficient where the process resulted in placing blind patients with appointments at the end of the line for people with no appointments.

The ANPRM notes that the accessibility of similar equipment is already covered in non-public accommodation contexts.  For example, the design and functionality of self-service kiosks in U.S. post offices must comply with accessibility requirements that apply to federal agencies employing such devices under Section 508 of the Rehabilitation Act of 1973 (“Section 508”).  Similarly, regulations under the federal Air Carrier Access Act already cover the accessibility of airport kiosks that allow customers to independently print boarding passes, check luggage, receive essential information about their flights, change seat locations, and pay various fees.  According to the ANPRM, the Access Board is evaluating whether, and to what extent, similar requirements should be issued for public accommodations.  Under the ADA, the Access Board is responsible for drafting the technical standards but they do not become binding on public accommodations until the DOJ incorporates them into its own ADA regulations.  The DOJ will not have much leeway to change the technical standards at that time, but it will be solely responsible for determining when the requirements will become effective and similar implementation issues. 

Included in the ANPRM is a matrix prepared by the Access Board that compares the current accessibility requirements for (1) ATM and Fare Machines under the ADA, (2) applicable hardware under Section 508, and (3) airport kiosks under the Air Carrier Access Act.  There are a number of commonalities among the requirements, which may provide insight on how the Access Board will approach these issues.  They include:

  • The usability of operable parts for individuals with disabilities;
  • Speech output requirements, privacy considerations (i.e. headset/audio jack), and user ability to change volume, interrupt and/or repeat audible content;
  • Numeric keys and other controls that are discernable by touch/tactile sense, and their format and organization;
  • Display screen requirements, character/font size, and visibility;
  • Braille instructions on the devices; and
  • Clear or unobstructed floor space or area in front of the devices.

The ANPRM specifically requests public comment on the following questions:

Question 1. . . . Are there capabilities, functions, or other objective criteria that should define the types of devices covered as SSTMs or self-service kiosks?”

Question 2. Are there other types of electronic devices providing unattended interaction that should be addressed by this rulemaking? If so, what are they?”

Question 3. Are there types of self-service electronic devices that should not be covered by this rulemaking? If so, why not?”

Question 4. Should the Board’s rule require all fixed or built-in SSTMs and self-service kiosks in each location to be accessible? If not, why, and what should the number be? Are there some facilities or locations that should have a higher number of accessible devices than others?”

“Question 5. The Board seeks comment on this planned approach [of incorporating more recent, Section 508 standards for kiosks] for the proposed supplementary guidelines for SSTMs and self-service kiosks outlined in this ANPRM.”

Question 6. Should requirements for ATMs and fare machines in the current ADA and ABA Accessibility Guidelines be updated as part of this rulemaking to address additional features covered in the Revised 508 Standards and the DOT rule pertinent to the accessibility of ATMs and fare machines?”

Question 7. The Board seeks comment from users and manufacturers of self-service transaction machines and self-service kiosks on their experiences in using or designing accessible machines and the benefits and costs associated with the proposed requirements.”

Question 8. The Board seeks comments on the numbers of small entities that may be affected by this rulemaking and the potential economic impact to these entities; these include small businesses, small non-profits and governmental entities with a population of fewer than 50,000. The Board also seeks feedback on any regulatory alternatives that may minimize significant economic impacts on small entities.”

Question 9. Should SSTM and self-service kiosk which accept credit and debit cards be required to accept contactless payment systems?”

Because it is very unlikely the DOJ will change the technical standards that issue from the Access Board in its own rulemaking process, self-service kiosk manufacturers and businesses that currently employ these technologies (or are considering employing them in the future) such as retailers, restaurants, banks, lodging facilities, institutions of higher learning, and other covered entities, should submit public comments by the deadline of November 21, 2022.

Edited by Kristina M. Launey

By Minh N. Vu

They are sprouting up everywhere:  Kiosks that allow customers to buy tickets, rent DVDs, get boarding passes, check-in at a hotel, count change, and even rent cars without ever having to interact with a human being.  These self-service kiosks can be a boon for customers and businesses, but they also create lawsuit exposure for businesses that fail to consider how they will be used by individuals who are blind or have limited mobility.     

Redbox’s recent settlement of a class action lawsuit brought by advocates for the blind highlights this thorny issue and the uncertain legal landscape surrounding self-service equipment designed for customer use.  Several blind individuals and an advocacy group sued Redbox because its DVD rental kiosks could not be independently used by non-sighted individuals.  After two years of litigation and mediation, the parties entered into a class settlement under which Redbox agreed to take the following steps for all Redbox locations in California:

  • incorporate audio guidance technology, a tactile keypad, and other accessibility features into its DVD rental kiosks so that blind customers can use them independently at one kiosk at every location within 18 months and at all California kiosks within 30 months;
  • provide 24-hour telephone assistance at each kiosk;
  • pay $1.2 M in damages to the class of aggrieved persons in California;
  • pay Lighthouse for the Blind $85K to test kiosks;
  • pay $10K to each named plaintiff in damages; and
  • pay $800K in plaintiffs’ attorneys’ fees and costs.

Redbox also agreed to make certain accessibility improvements to its website but notably did not commit to meeting the Web Content Accessibility Guidelines. Continue Reading Accessible Technology: Redbox DVD Rental Kiosk Class Action Settlement Highlights Litigation Risk Presented by Self-Service Equipment

By Erin McPhail Wetty

Last month, a California district court reaffirmed that Title III of the Americans with Disabilities Act (“Title III”) does not require a public accommodation to offer accessible goods (i.e. videos with captioning) as part of its inventory.  In Jancik v. Redbox Automated Retail, LLC, No. SACV 13-1387-DOC, 2014 WL 1920751 (C.D. Cal. May 14, 2014), a deaf individual claimed that Redbox violated Title III by not making more closed-captioned videos available at its DVD rental kiosks, despite his requests.  The plaintiff also argued that Redbox Digital failed to closed-caption all of its online videos that were available for streaming, in violation of Title III.  The defendants filed a motion to dismiss both claims.

The Court held that Title III does not regulate the content or characteristic of goods that places of public accommodation provide—“the goods in a retailer’s industry”—such as the DVDs Redbox offered at its rental kiosks.  In so holding, the Court relied on regulations, which explicitly state that a public accommodation is not required to “alter its inventory to include accessible or special goods that are designed for, or facilitate use by, individuals with disabilities.”  The plaintiff argued that DVDs should not be considered special goods because of recent technological advances that make captioning DVDs easier.  In rejecting this argument, the Court reasoned that the ease of captioning does not affect whether or not captioned DVDs should be viewed as accessible goods.  Rather, the Court concluded that the plaintiff’s request was essentially a request for Redbox to change its DVD inventory at its kiosks, which Title III does not require.  This ruling is not a positive development for advocates of the deaf and hard of hearing who are pushing for more captioning of video content.  It is also significant in driving home the point that Title III regulates the entity’s provision of a good, not the content or creation of that good.

The Court also found that Redbox Digital did not have to caption its library of web-based videos for deaf or hard-of-hearing consumers because a website is not a place of public accommodation under Title III.  This outcome is not surprising because courts in the Ninth Circuit have taken the position that only websites that have a nexus to a brick and mortar public accommodations location are covered by Title III of the ADA.  The outcome on this point would likely have been different had the case been brought in the First Circuit—where the Massachusetts District Court held that Netflix’s online video-streaming website was covered by Title III, even though Netflix had no brick and mortar place of business, as we previously reported.

This case is significant as one of the few, yet increasing, cases addressing the applicability of Title III to emerging technologies, such as the internet and captioning, that were not contemplated in 1992 when the ADA was enacted.  Even more so, because in the absence of regulations setting requirements for web accessibility, some may point to this case as evidence websites are not subject to Title III, while others point to the Massachusetts Netflix case to argue the contrary.  In view of the recent wave of lawsuits and enforcement actions surrounding accessibility of business’ websites, this area of law is evolving very quickly.

Edited by Minh Vu and Kristina Launey

By Minh Vu and Paul Kehoe

As we reported earlier this month, the Department of Transportation (DOT) issued regulations under the Air Carrier Access Act (ACA) making it easier for airline passengers with disabilities to access both airline websites and terminal kiosks.  These regulations provide a window into the Administration’s view of website and kiosk accessibility, and likely serve as a precursor to forthcoming regulations from the Department of Justice (DOJ) on these subjects for state/local governments and public accommodations.  Since all agencies have an opportunity to review proposed regulations during the interagency review process, we assume that DOJ had input into the new DOT rules.  Here is a closer look at key parts of the new DOT regulations:

Basic Website Requirements.  Airlines that operate at least one aircraft having a seating capacity of more than 60 passengers must make their primary website accessible in two phases.  First, by December 12, 2015, they must ensure that web pages on their primary website associated with core travel information and services (reservations, online check-in, flight status updates, itinerary access, frequent flyer account access, carrier contact information, etc.) conform with WCAG 2.0 Level AA.  Second, by December 12, 2016, all other webpages on the airline’s primary website must conform with these guidelines. The regulations also require airlines to consult with individuals with visual, auditory, tactile and cognitive disabilities, or organizations representing these disability types to test the usability of the updated websites.  The DOT did not indicate what, if anything, covered airlines should be doing to facilitate access for those individuals who cannot use the websites in the meantime.

The regulations also require airlines to provide web-based fare discounts, which are generally offered at a lower cost, and other web-based amenities, to customers with disabilities who are unable to use the airline’s website.  Also, ticket agents that are not small businesses will be required to provide the same web-based fares to customers with a disability who cannot use the agents’ website as of June 10, 2014. Continue Reading New Department of Transportation Website and Kiosk Regulations Provide Insight into Forthcoming Department of Justice Regulations for Public Accommodations

By Minh N. Vu

Last week, the Department of Transportation (DOT) issued final regulations that govern the websites and automated kiosks of U.S. and foreign air carriers.  The regulations have not yet been officially published in the Federal Register but we wanted to get the news (and the regulations) to you as soon as possible. We will post more meaningful analysis and commentary in the coming weeks.

Among other things, the regulation requires U.S. and foreign carriers that operate at least one aircraft having a seating capacity of more than 60 passengers to ensure that their primary websites are accessible.  The webpages that provide “core air travel services” such as making or changing a reservation must comply with the Web Accessibility Content Guidelines (WCAG) 2.0 Levels A and AA (the “Access Standard”) within two years after the rule’s publication date in the Federal Register (the “Effective Date”).  All remaining  webpages must comply with the Access Standard within three years after the Effective Date.

The regulation also requires U.S. and foreign carriers that own, lease, or control automated airport kiosks at U.S. airports with 10,000 or more enplanements to ensure that any kiosks installed three years after the Effective Date meet accessibility standards until 25% of the kiosks at each location are accessible.  Within 10 years of the Effective Date, 25% of all kiosks at every airport location will have to be accessible. The accessibility requirements are similar to those adopted by the Department of Justice (DOJ) in 2010 for ATMs. 

As we have reported, the DOJ is working on proposed regulations for the websites of public accommodations and state and local governments covered by Titles III and II of the ADA, respectively.  Assuming the agencies are talking, these final regulations provide some interesting insights into what may be in the forthcoming DOJ proposed rules.  Stay tuned for our next post on this subject.  In the meantime, here is a link to a story from the Washington Post: http://www.washingtonpost.com/politics/new-transportation-department-rules-seek-to-make-flying-easier-for-disabled-passengers/2013/11/04/2deb0d90-4583-11e3-95a9-3f15b5618ba8_story.html.

Seyfarth Synopsis:  We predict another busy year on all fronts as DOJ continues to push its regulatory and enforcement agenda.

Photo showing hand holding a crystal ball

Lawsuit Numbers.  Last January, we predicted that roughly the same number of ADA Title III lawsuits would be filed in federal court in 2022 as in 2021, but halfway through 2022 it became apparent that the numbers would likely be substantially lower.  That downward trend continued, and while our diligent research department is waiting for the dust to settle for December numbers before we announce the total for 2022, we are certain that the final number for the whole year will be substantially less than the number of ADA Title III lawsuits filed in 2021.  We attribute that decrease in part to the fewer number of filings by one Southern California plaintiffs’ firm (the Center for Disability Access), after the Los Angeles and San Francisco District Attorneys filed a civil lawsuit against the firm alleging fraudulent conduct in connection with its lawsuit activities.  The trial court dismissed this lawsuit in August 2022, but the newly-elected San Francisco District Attorney filed an appeal in November 2022, so the matter is far from over.  Stay tuned for our final 2022 ADA Title III federal lawsuit count and more analysis in the coming weeks.

For 2023, we think the number of lawsuits filed in federal court will increase as certain plaintiffs’ firms regroup and new plaintiffs and firms continue to enter the scene.

Physical Barrier Lawsuits.  If the past is any indication, lawsuits concerning physical access barriers at public accommodations facilities will continue to be the most common type of ADA Title III lawsuit.  Hotels, shopping centers, restaurants, and retail stores continue to be the most popular targets, particularly for those serial plaintiffs.  We continue to see lawsuits and demands from some serial plaintiffs whose disabilities are highly questionable.  The most common barriers alleged in these lawsuits pertain to accessible parking, loading zones, public restrooms, sales counters, accessible tables, and aisle width.

Website-Related Lawsuits.  In 2022, we continued to see large numbers of private lawsuits filed in federal and state courts, as well as demand letters, about website accessibility. We also saw the beginnings of renewed efforts by DOJ on the regulatory (discussed here and here) and enforcement front concerning accessible websites. A few notable court decisions issued in 2022, including an unceremonious end to the Winn-Dixie and Domino’s sagas, a few pro-defendant standing, class cert, physical nexus, and anti “serial plaintiff” decisions. What does 2023 have in store?  

Website Accessibility Lawsuit Numbers.  We are still finalizing our count of lawsuits filed last year in federal court concerning websites that are allegedly not accessible to the blind, but a preliminary peek suggests that  over 3250 such lawsuits were filed —  a significant jump from 2021. As in prior years, the vast majority of these lawsuits were filed by only a handful of law firms, overwhelmingly based in New York.  We predict the number of these suits filed in 2023 will be comparable to 2022.  We will be taking a closer look at this increase in another post later this month.

“Tester” Standing.  “Does a self-appointed Americans with Disabilities Act ‘tester’ have Article III standing to challenge a place of public accommodation’s failure to provide disability accessibility information on its website, even if she lacks any intention of visiting that place of public accommodation?” This is the question the defendant hotel has asked the U.S. Supreme Court to decide in Acheson Hotels, LLC v. Laufer.   The First Circuit Court of Appeals in Acheson had answered this question in the affirmative, putting it at odds with other circuits which have reached the opposition conclusion.  The Second and Tenth Circuits, for example, have held that a plaintiff’s encounter with an ADA violation found on a website of a public accommodation does not automatically confer that plaintiff with standing to sue unless there are downstream consequences resulting from the violation.  These courts require a plaintiff to show that the plaintiff wanted to patronize the public accommodation but could not because of the ADA violation on the website.  

While Acheson is a case about the alleged lack of accessibility information on a website (i.e., a deficient content issue), the question presented is also relevant to lawsuits in which plaintiffs with disabilities claim they could not use/navigate a website due to digital barriers.  In the Second and Tenth Circuits, as noted above, these plaintiffs would have to show that they wanted to patronize the public accommodations but could not because of digital barriers on their websites.

The Supreme Court will decide whether it will hear the case in January 2023.

Online-Only Businesses.  Online-only businesses will likely see fewer ADA lawsuits in California in 2023 because in 2022, the California Court of Appeals agreed with the federal Ninth Circuit Court of Appeals that a “public accommodation” under the ADA must be a physical place where goods and services are offered.  (The California Supreme Court declined review of the decision.)  Thus, only websites that have a nexus to a business with a physical location where goods and services are offered to the public are subject to Title III of the ADA.  With both state and federal courts in California now aligned in their interpretation of the ADA on this issue, plaintiffs will face a significant barrier in suing online-only businesses in California for violations of the ADA or Unruh Act.  (In lawsuits based on disability discrimination, plaintiffs can establish violations of the Unruh Act by proving either a violation of Title III of the ADA or intentional discrimination.)

Hotel Reservations Websites.  In late 2020 and early 2021, the aforementioned Center for Disability Access filed over 550 lawsuits in federal court alleging that hotels had failed to disclose sufficient information about the accessibility of their hotels as required by ADA regulations.  After suffering over 90 defeats in district court and then in the Ninth Circuit Court of Appeals, the firm voluntarily dismissed nearly all of these suits in 2022.  In its decision, the Ninth Circuit endorsed the interpretation of the regulation that had been implemented by lodging industry leaders back in 2012 when the regulation became effective. While we saw a very small handful of these cases filed in 2022, new lawsuits of this type are unlikely because most U.S. hotels comply with the Ninth Circuit’s direction.

U.S. Department of Justice Enforcement Actions. Last January we predicted the DOJ would be busy enforcing the ADA in 2022, and we were right.  The DOJ filed two enforcement lawsuits under Title III:  One concerning architectural barriers at Wrigley Field in Chicago and another against a number of eyecare facilities for refusing to provide transfer assistance to patients who use wheelchairs.  The DOJ also entered into at least fifteen settlement agreements or consent decrees in 2022 resolving many different types of alleged ADA Title III violations. These resolutions included a multi-million dollar settlement with a rideshare app company to resolve claims that the company failed to waive wait time charges for passengers with disabilities, a settlement with a Rhode Island university regarding its student medical leave policies, a settlement with a New York university regarding accessible student housing, and settlements with three retailers concerning the accessibility of their vaccine appointment scheduling websites.  The DOJ also filed one Statement of Interest in which it maintained that plasma donation centers are places of public accommodation covered by Title III of the ADA.

The DOJ was equally busy enforcing Title II of the ADA, which imposes obligations similar to Title III of the ADA on state and local governments.  One of the most notable ADA Title II resolutions was the DOJ’s comprehensive agreement with UC Berkeley about its website and other online content.  Other universities, both public and private, should take note.

All of these enforcement activities are set out on the DOJ’s website.

Regulatory Developments.  We will see continued rulemaking activity by DOJ and the U.S Architectural and Transportation Barriers Compliance Board (Access Board) on website accessibility, medical diagnostic equipment, and kiosks in 2023.

Websites: As we previously reported, the DOJ announced in July 2022 that it would be issuing a Notice of Proposed Rulemaking (NPRM) (essentially, a draft regulation) in April 2023 setting forth the accessibility requirements for state and local government websites under Title II.  This has just been pushed back to May 2023.  Given its dismal track record of issuing any regulations on the subject of accessible website for the past decade (including many missed deadlines), it will be interesting to see if DOJ actually meets this revised target date.  If DOJ does issue proposed regulations for state and local government websites under Title II of the ADA, it is likely the agency will later using those as a framework for regulations covering public accommodations under Title III of the ADA.  

Medical Diagnostic Equipment: DOJ has also announced that it will be issuing a Notice of Proposed Rulemaking for Medical Diagnostic Equipment in April of this year.  This rule, if finalized, would make the Standards for Medical Diagnostic Equipment (MDE) previously issued by the Access Board into binding legal standards for health care providers covered under Title III of the ADA.  Health care providers should be on the lookout for this NPRM and be ready to comment on the proposed rule. 

Self-Service Kiosks: Meanwhile, the Access Board will be busy this year reading public comments filed in response to its Advance Notice of Proposed Rulemaking (ANPRM) on the accessibility of self-service kiosks.  It recently announced that a proposed rule will issue by November 2023.  As we explained in a prior post, the Access Board is responsible for issuing technical standards which are not legally binding on public accommodations until the DOJ incorporates them into its regulations through a separate rulemaking process.  Thus, the Access Board’s ANPRM, and subsequent proposed rule, for self-service kiosks is the first step of a lengthy regulatory process.

***

2023 will likely be another busy year in the ADA Title III space.  We will be here to provide our insight into the latest developments.  Happy 2023 from The Seyfarth ADA Title III Team!

Edited by Kristina Launey

By Minh N. Vu

Seyfarth synopsis:  The Spring 2022 Unified Regulatory Agenda is out with rulemakings on medical equipment, EV charging stations and fixed self-service transaction machines on the list of items to be addressed.

We predicted that there would be more regulatory activity in the ADA Title III universe under the Biden Administration and the Spring 2022 Unified Agenda of Regulatory and Deregulatory Actions (the “Agenda”) confirms our forecast.  However, the Agenda does not include any proposed rulemaking concerning website or mobile app accessibility, an area where businesses continue to be barraged with private lawsuits in the absence of regulations.

Medical Diagnostic Equipment.  Back in 2017, the U.S. Access Board — the federal agency tasked under Title III of the ADA with drafting accessibility guidelines which must then be adopted by the Department of Justice (DOJ) before they become law — issued a final guidance containing standards for accessible medical diagnostic equipment.  The Agenda states that the DOJ will be issuing an Advanced Notice of Proposed Rulemaking (ANPRM) about these guidelines in September 2022 with a public comment period to close in November 2022.  The Agenda previews that “[a]mong the public input that the Department is seeking in this ANPRM is whether there are any issues relating to the potential adoption of the . . . [Access Board’s] Standards for Medical Diagnostic Equipment in the ADA regulation.”  Manufacturers of medical diagnostic equipment, as well as health care facilities that purchase and use such equipment, should actively participate in the ANPRM process.

EV Charging Stations.  According to the Agenda, the Access Board will be issuing a Notice of Proposed Rulemaking (NPRM) in September 2022 to set standards for accessible EV charging stations with the intent that the DOJ will eventually incorporate those guidelines in the current ADA Standards for Accessible Design. The rulemaking responds to the Infrastructure Investment and Jobs Act’s allocation of $7.5 billion to construct a national network of 500,000 EV charging stations nationwide.

Fixed Self-service Transaction Machines.  With the proliferation of self-service machines at public accommodations in the past few years, it is no surprise that the Access Board will be working on standards for accessible self-service kiosks, information transaction machines, and point-of-sale devices.  The Agenda states that an ANPRM will be issued in August 2022.  It is very important for manufacturers of these machines, as well as the businesses that use them (e.g. retailers, rental car companies, lodging facilities, health care providers, banks, parking facilities, restaurants) to file comments on the Access Board’s forthcoming proposed guidelines because, once finalized, they are not likely to change in DOJ’s rulemaking process to make them enforceable standards.

***

While the rulemaking process can take years, we predict the DOJ will work hard to get all of these new standards finalized before the end of the Biden Administration because a regime change will most certainly halt all regulatory activity, yet again.

Edited by John W. Egan

By Minh N. Vu

Seyfarth synopsis:  We predict 2022 will look a lot like 2021 with roughly the same number of lawsuits and DOJ pushing the boundaries of the ADA.

Like 2020, 2021 was a tough year for businesses.  Still dealing with the constantly-changing COVID-19 landscape, businesses were also bombarded with what may be another record number of ADA Title III federal lawsuits as well as rejuvenated U.S. Department of Justice (DOJ) enforcement activities.  Here are our predictions for 2022.

DOJ Enforcement Activities.  After little activity in the Trump era (except for the significant withdrawal of the web accessibility rulemaking effort), as we predicted, the new Biden Administration DOJ ramped up enforcement activity in 2021 and is pushing the law’s boundaries.  For example, in two recent settlements concerning vaccine websites of two retailers, the DOJ required conformance with WCAG 2.1 AA, even though the legal standard for the accessibility of its own websites and those of other federal agencies (under Section 508 of the Rehabilitation Act) is WCAG 2.0 AA. (DOJ has yet to issue regulations adopting any version of the WCAG for public accommodations websites and there is no pending rulemaking to do so.)  As another example, at the end of 2021, DOJ sued a chain of 23 medical eye centers that provide eye care and outpatient surgery for not having personnel to lift patients who cannot independently transfer onto exam chairs or surgery tables.  The Biden DOJ also filed four Statements of Interest in pending lawsuits in support of ADA plaintiffs within twelve months – a dramatic change from the Trump DOJ which rarely weighed in on any ADA issues.  We expect in 2022 and beyond that the DOJ will continue to be more aggressive in its enforcement of Title III of the ADA, try to expand the reach of the ADA, and be more supportive of plaintiffs in their private lawsuits.

Important Appellate Decisions.  In April 2021, the Eleventh Circuit Court of Appeals overturned a Florida district court decision that grocery retailer Winn-Dixie had violated the ADA by having an inaccessible website. The Eleventh Circuit found that the website barriers in question did not prevent the plaintiff from accessing the goods and services offered at the retailer’s stores.  In May 2021, the plaintiff filed a petition for rehearing en banc.  We thought the Court would not rule until 2022 but then a decision issued at the end of 2021.  The Court dismissed the appeal as moot, vacated its prior decision as well as the district court judgment below, and remanded the case to the district court to dismiss as moot.  We will discuss this outcome in a forthcoming post, but with this case dismissed, there are no federal appeals involving website accessibility pending.

On the opposite side of the country, the lodging industry is awaiting decisions from the Ninth Circuit Court of Appeals in four cases concerning an ADA Title III regulation that requires hotels to disclose information about the accessibility of the hotel on their reservations websites.  As we previously reported, one law firm in southern California filed over 565 lawsuits on behalf of a handful of plaintiffs alleging that the defendant hotels did not provide enough information about their accessible rooms and/or common areas on their reservations websites.  Nearly 90 district courts have rejected the plaintiffs’ demands for more information, and four of those decisions are on appeal.  How the Ninth Circuit decides these cases will impact hundreds of lawsuits that are stayed pending these appeals.  Oral argument in two of the cases is scheduled for February 14, 2022.

Federal Lawsuit Filings.  We are still crunching the numbers but the number of ADA Title III lawsuits filed in federal courts in 2021 will certainly top 11,000, and likely will continue that upward trajectory in 2022.

Website Accessibility Lawsuits.  As we reported at the end of 2021, lawsuits concerning allegedly inaccessible websites – usually by blind plaintiffs who use screen-readers to access websites –  continue to be filed at a rapid pace.  The Southern District of New York is now a favored venue for the plaintiff’s bar, along with California state and federal courts.   Website accessibility lawsuit activity in Florida quieted down after the Eleventh Circuit’s pro-business Winn-Dixie decision which has now been vacated as discussed above.  Perhaps as a result of this ruling, some plaintiff’s lawyers in Florida have now taken to filing their website accessibility discrimination complaints with Florida county human rights commissions instead of in federal court.  The benefit of filing under state and local non-discrimination laws is that plaintiffs can recover damages, unlike under the ADA which only provides for injunctive relief.

COVID-19 Related Litigation.  The pandemic and mask-wearing requirements imposed by businesses resulted in a relatively small number of lawsuits by plaintiffs alleging that they should be exempt from mask requirements because of a disability.  A number of these lawsuits were dismissed early without meaningful legal analysis, but some continue to be litigated.  Thus, we may see some substantive decisions this year on whether businesses have an obligation to modify their mask (and/or in some cases mandatory vaccination) policies for people with legitimate disabilities and what those modifications look like.

Revived Rulemaking for Equipment and Furniture.  The Obama DOJ repeatedly stated it would propose regulations for non-fixed equipment and furniture (including hotel beds) but issued no proposed regulations during the entire eight years of the Administration.  In 2017, consistent with its anti-regulation agenda, the Trump Administration pulled the plug on this rulemaking effort altogether.  In December 2021, the DOJ announced that it would issue an Advanced Notice of Proposed Rulemaking (ANPRM) in the Fall of 2022 on equipment and furniture.  While clear rules for beds in accessible hotel rooms would be very helpful for the hotel industry, we are not going to be holding our breath given DOJ’s prior inaction on this issue.

Meanwhile, the U.S. Access Board announced that it will issue an ANPRM for fixed self-service transaction machines, self-service kiosks, information transaction machines, and point-of-sale devices by April 2022.  Since an ANPRM precedes the issuance of a proposed rule, it will be many years before there will be regulations on these self-service technologies that apply to public accommodations.  Regulations issued by the Access Board are not binding on public accommodations until the DOJ (or any other federal agency) adopts them in a rulemaking of its own.  It’s a two-step process that will take years.  That said, the absence of regulations does not necessarily mean that self-service machines do not need to be accessible, as the DOJ previously stated in 2014.

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In sum, it’s going to be a busy year for businesses on the ADA Title III front. Businesses are well-advised to review their current accessibility policies, procedures, practices, and training programs to ensure compliance with the ADA and equivalent state laws.

Edited by Kristina Launey

By Minh N. Vu

Seyfarth Synopsis: The Biden DOJ Civil Rights Division has been much more active than its predecessor in enforcing Title III of the ADA and supporting plaintiffs in pending litigation.

As we predicted in January, the Civil Rights Division at the Department of Justice (DOJ) under the Biden Administration has been very busy.  In the nine months since President Biden took office, the DOJ has issued a guidance on “long COVID,” filed Statements of Interest (SOI) in three ADA Title III (public accommodation) cases and three ADA Title II (state and local government) cases, and renewed its effort, dormant under the prior presidential administration, to pressure businesses to make their websites accessible to users with disabilities through threats of enforcement actions. It is even piloting a new www.ada.gov website.

Not surprisingly, all of the SOIs the DOJ has filed this year have been in support of plaintiffs with disabilities.  In the first SOI filed in the Western District of Pennsylvania, the DOJ took the position that – pursuant to the ADA obligation to make reasonable modifications to normal policies, practices, and procedures – places of lodging must provide lowered beds for people with disabilities who cannot transfer to high beds.  Regrettably, DOJ failed to state in the SOI (or anywhere else, for that matter) what constitutes a lowered bed, making it very difficult for lodging facilities to know what sort of beds they need to purchase in case they need to make such a “reasonable modification.”

In the second SOI — filed in a case in the Northern District of Illinois — the DOJ took the position that blood plasma donation centers are “public accommodations” under Title III of the ADA, even though donors are compensated for their plasma.  The DOJ stated that such centers are “service establishments” – one of the types of businesses listed under the definition of “public accommodation” under the Title III statute.  The Third and Tenth Circuit Courts of Appeals have reached the same conclusion, but the Fifth Circuit has found such centers to not be places of public accommodation.

The third SOI filed by the DOJ was in a case brought against a health care provider that used self-service check-in kiosks that are inaccessible to the blind.  The blind plaintiffs alleged that there were no employees to provide assistance so they had to seek the assistance of strangers.  The health care provider argued that the kiosks had a function to notify employees to provide assistance.  The DOJ did not find this solution satisfactory because “[r]elegating patients with disabilities who have scheduled appointments to the bottom of the walk-in waitlist because of a lack of auxiliary aids and services is treating those patients differently.”

Just last week, the DOJ filed an SOI in a case brought by the parents of school children with disabilities challenging Texas Governor Abbott’s Executive Order GA-38, which prohibits school districts from imposing mask requirements in school programs and facilities.  Although the case was brought under Title II of the ADA, which applies to the programs and activities of state and local governments, some of the arguments DOJ made could prove helpful to public accommodations defending their own mask requirements in lawsuits brought under Title III of the ADA.  For example, DOJ argued that the Executive Order denied the disabled plaintiffs who were at greater risk for COVID-19 complications access to school because the absence of masks created an unsafe environment for them.  The DOJ also argued that the Executive Order prevented school districts from complying with their obligation to make reasonable modifications to policies and procedures (i.e., require masks to be worn) to ensure that the disabled plaintiffs have access to school facilities and programs.  Under the right circumstances, a business might be able to make an analogous argument that to protect customers with disabilities who face a higher risk for COVID-19 complications and to ensure they can enjoy the business’ goods and services, the business must impose mask requirements for everyone seeking to enter its facility.

All four SOIs can be found at ADA.gov at https://www.ada.gov/enforce_activities.htm.

In stark contrast to the Trump’s Administration Civil Rights Division, which did not address any COVID-19 issues as they relate to Title III of the ADA, the Biden Civil Rights Division has also issued a joint statement with the Department of Health and Human Services stating that long COVID (i.e. new or ongoing symptoms caused by COVID-19 that can last for weeks or months after an infection) can be a disability, depending on whether the ongoing symptoms meet the definition a disability under the law.

On the investigation/enforcement front, we have seen greater activity by the DOJ in new and pending investigations.  This is no surprise and businesses should expect to see much more action from DOJ in the coming years.

Edited by Kristina Launey