Seyfarth Synopsis: DOJ’s response to members of Congress about the explosion in website accessibility lawsuits contains some helpful guidance for public accommodations fighting these claims.

As we reported in June, 103 members of the House of Representatives from both parties asked Attorney General Jeff Sessions to “state publicly that private legal action under the ADA with respect to websites is unfair and violates basic due process principles in the absence of clear statutory authority and issuance by the department of a final rule establishing website accessibility standards.” The letter urged the Department of Justice (DOJ) to “provide guidance and clarity with regard to website accessibility under the … ADA.”

DOJ’s September 25 response did not do what the members asked, but it did provide some helpful guidance and invited Congress to take legislative action to address the exploding website accessibility litigation landscape. DOJ first said it was “evaluating whether promulgating specific web accessibility standards through regulations is necessary and appropriate to ensure compliance with the ADA.” (This is helpful – to at least know this issue has not fallen totally off DOJ’s radar.) It continued:

The Department first articulated its interpretation that the ADA applies to public accommodations’ websites over 20 years ago. This interpretation is consistent with the ADA’s title III requirement that the goods, services, privileges, or activities provided by places of public accommodation be equally accessible to people with disabilities.

Additionally, the Department has consistently taken the position that the absence of a specific regulation does not serve as a basis for noncompliance with a statute’s requirements.

These statements are not surprising, as DOJ (granted, under the previous Administration) has made them on other occasions.  But here’s the part of the letter that is helpful for businesses:

Absent the adoption of specific technical requirements for websites through rulemaking, public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication. Accordingly, noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.

(emphasis added). The fact that public accommodations have “flexibility” in how to comply with the ADA’s effective communication requirement has been lost in the past eight years, even though DOJ made this point in its 2010 Advanced Notice of Proposed Rulemaking (ANPRM) for websites.  In that document, DOJ stated that a 24/7 staffed telephone line could provide a compliant alternative to an accessible website.  The few courts to have considered this argument in the context of an early motion to dismiss have recognized its legitimacy, but have allowed cases to move forward into discovery on this and other issues.  There have been no decisions on the merits addressing the viability of having a 24/7 telephone option in lieu of an accessible website.

The statement that “noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA” is new and significant.  It is a recognition that a website may be accessible and usable by the blind without being fully compliant with the privately developed Web Content Accessibility Guidelines (WCAG) 2.0 or 2.1.  The statement confirms what some courts have said so far:  That the operative legal question in a website accessibility lawsuit is not whether the website conforms with WCAG, but whether persons with disabilities are able to access to a public accommodation’s goods, services, and benefits through the website, or some alternative fashion.

In response to the members’ concern about the proliferation of website litigation lawsuits, DOJ said:  “Given Congress’ ability to provide greater clarity through the legislative process, we look forward to working with you to continue these efforts.”  DOJ is essentially putting the ball back in the Congressional court, where little is likely to happen.

Edited by Kristina M. Launey.

Seyfarth Synopsis: California will soon have a new law requiring WCAG 2.0 AA compliance for state agencies’ websites by 2019.

On October 14, 2017 California Governor Jerry Brown signed into law AB 434, which will create a new Government Code section 11546.7 and require, beginning July 1, 2019, state agencies and state entities to post on their website home pages a certification that the website complies with the Web Content Accessibility Guidelines 2.0 Level AA, or a subsequent version, and Section 508 of the Rehabilitation Act.

State agencies have been required, since January 1, 2017 by virtue of 2016 legislation, to comply with Section 508 in developing, procuring, maintaining, or using electronic or information technology “to improve accessibility of existing technology, and therefore increase the successful employment of individuals with disabilities, particularly blind and visually impaired and deaf and hard-of-hearing persons.” That statute, Government Code 7405, also requires entities that contract with state or local entities for the provision of electronic or information technology or related services to respond to and resolve any complaints regarding accessibility that are brought to the entity’s attention.

The new Government Code section 11546.7 will also require the State’s Director of Technology to create a standard form for each state agency or entity’s chief information officer to use in determining whether its respective website complies with the accessibility standards.

With this legislation, California joins state and municipal entities in other parts of the country that have similar web accessibility requirements for governmental entities and contractors.  This legislation fills a small part of a void the federal Department of Justice has decided for the time being not to fill, when it put its pending regulations that would set an accessibility standard for state and local (as well as private entity) websites on the inactive list.

Edited by: Minh N. Vu.

Seyfarth Synopsis: New website and mobile app accessibility settlement agreement requires WCAG 2.0 AA conformance, training, and feedback mechanism.

Being named one of the most innovative companies of 2016 doesn’t make one immune from a website and mobile app accessibility lawsuit.  Capping 2016’s banner accessibility lawsuit count, including record website accessibility lawsuit numbers, on which we reported yesterday, was an end-of-the-year settlement between innovative local-sourcing salad restaurant Sweetgreen, Inc. and two blind individuals, on behalf of other similarly-situated individuals.

The settlement concluded a lawsuit filed on March 2, 2016 in the United States District Court for the Southern District of New York, which alleged that Sweetgreen discriminated against the plaintiffs due to an online ordering portal and mobile app that were not accessible in violation of Title III of the Americans with Disabilities Act, the New York State Human Rights Law, and the New York City Human Rights Law.

Specifically, the plaintiffs alleged that Sweetgreen’s online and mobile app ordering systems allowed customers to “customize signature salads, filter by dietary preferences, track calories and more,” but that barriers to accessibility on the online ordering portal and mobile app prohibited them from independently placing salad orders online for pick-up.

The settlement agreement requires:

  • Improving accessibility to both the online ordering portal and mobile app (excluding third party content except as integral to an online transaction function) to conform to, at minimum, the Web Content Accessibility Guidelines 2.0 Level A and AA Success Criteria by March 31, 2017, and maintaining that conformance;
  • A link on Sweetgreen’s contact page that provides visitors the opportunity to provide feedback regarding accessibility;
  • Attempt to remedy accessibility issues raised through the feedback page within 30 days of receipt; and
  • For a period of two years, web accessibility training to employees who write or develop programs or code for http://order.sweetgreen.com, and its mobile applications, or who publish final content to http://order.sweetgreen.com, and its mobile applications.

These are common settlement terms; signaling they are also good proactive steps for companies to take in their own web and mobile app accessibility efforts.  And for those companies frustrated with the proliferation of ADA lawsuits and demand letters, some solace in knowing they’re not the only ones grappling with this issue.

Notably, one of the plaintiffs, Mika Pyyhkala, was a plaintiff (in addition to the National Federation of the Blind) in the landmark web accessibility H&R Block lawsuit and consent decree.  Advocacy group Washington Lawyers’ Committee For Civil Rights And Urban Affairs represented Pyyhkala in the Sweetgreen lawsuit.

Edited by Minh Vu.