On May 21, a California state court in Los Angeles held on summary judgment that the Whisper Lounge restaurant violated California’s Unruh Act by having a website that could not be used by a blind person with a screen reader, and ordered the restaurant to make its website comply with the Web Content Accessibility Guidelines (WCAG) Level 2.0 AA.  The court also ordered the restaurant to pay $4,000 statutory damages.  This is the second decision by a California state court on the merits of a website accessibility case.  The first decision concerned the Bags n’ Baggage website.  In 2017, a Florida federal judge conducted the first trial in a website accessibility case against Winn Dixie and held that the grocer’s website violated the ADA because it was not accessible to the blind plaintiff, and ordered Winn Dixie to make its website conform to WCAG 2.0 AA.

The court in the Whisper Lounge case rejected – as most courts on similar facts have – the restaurant’s argument that the website is not a place of public accommodation under the Americans with Disabilities Act (ADA).  The court found that the restaurant’s website “falls within the category of ‘services….privileges, advantages, or accommodations of’ a restaurant, which is a place of public accommodation under the ADA.”

Next, the court noted that the restaurant presented no evidence in opposition to the plaintiff’s showing that the website was inaccessible on February 20, 2017 – the date the plaintiff said she attempted to use the website.  The restaurant only submitted a declaration stating that the declarant was generally able to use the screen reader NVDA on the website from 2014 through 2017, without addressing the specific barriers the plaintiff said prevented her from using the website.

The restaurant also argued that it provided access to the information on its website by having a telephone number and email.  The Court rejected this argument as well, finding that the provision of a phone number and email does not provide “equal enjoyment of the website”, as the ADA requires, but instead imposes a burden on the visually impaired to wait for a response via email or call during business hours rather than have immediate access like sighted customers.  Thus, the court reasoned, the email and telephone number do not provide effective communication “in a timely manner” nor protect the independence of the visually impaired.  The court did not say whether a toll-free number that is staffed 24-hour a day would have yielded a different outcome.

Finally, the Court rejected the restaurant’s argument that the WCAG 2.0 AA is not yet a legal requirement, finding that the Complaint did not seek to hold the restaurant liable for violating the WCAG 2.0 AA.  Rather, the Complaint alleged that the website discriminated against the plaintiff by being inaccessible and sought an injunction to require the restaurant to make its website accessible to the blind.  The Court also rejected the restaurant’s arguments that requiring it to have an accessible website violated due process and the court should wait until the Department of Justice issues regulations addressing website accessibility.  The Court noted that the fact that the restaurant was redesigning its website did not render the case moot because the restaurant did not establish that “subsequent events make it absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.”

The decision does have a silver lining for the defense bar.  The Court noted that the plaintiff was entitled to only $4,000 in damages under the Unruh Act, which provides for a minimum of $4,000 in statutory damages for each incident of discrimination.  The court held that plaintiff’s repeated visits to the same inaccessible website did not establish separate offenses for purposes of calculating damages.

Seyfarth Synopsis: Plaintiffs who pursued numerous web accessibility actions under Title III of the ADA are now using website accessibility to test the limits of a different area of law – employment law – California’s Fair Employment and Housing Act.

Over the past few years, we have frequently written about the proliferation of demand letters and lawsuits alleging that a business denied a usually blind or vision-impaired individual access to its goods and services because the business’ website was not accessible, in violation of Title III of the Americans with Disabilities Act (ADA) and state laws. One firm that pursued many web accessibility actions under Title III and California’s Unruh Act (including a success in the Bags N’ Baggage case decided in plaintiff’s favor by a California state court) is now going after employers.  In recent demand letters and lawsuits, they are alleging that employment websites are not accessible to blind job seekers, in violation of California’s Fair Employment and Housing Act (FEHA), California’s corollary to Title I of the ADA.

While this blog, and Seyfarth’s Disability Access Team, are focused on disability access issues affecting places of public accommodation that provide goods and services to the general public (not employees, though many of our team members are employment specialists as well), this emerging litigation trend is worthy of our discussion here because it is an extension of the tsunami of website accessibility demand letters and lawsuits pursued under Title III, involving the same technological and other issues, as well as the same plaintiffs and plaintiffs’ attorneys.  But there is one big difference – the legal standard that applies to employment disability discrimination claims is different from the standard applied to disability discrimination claims brought against public accommodations. Title III is unique from other anti-discrimination statutes in that it requires (with exceptions) businesses take affirmative, proactive measures to ensure individuals with disabilities are afforded equal access to their goods and services. FEHA prohibits discrimination against individuals in employment.  It requires employers, upon notice that an employee or applicant for employment requires a reasonable accommodation to perform the essential functions of his or her job, or to apply for employment, to engage in the interactive process to devise such a reasonable accommodation.  The employer does not need to provide the employee or applicant’s requested accommodation as long as the accommodation provided is effective.

In the cases filed thus far, such as those by Dominic Martin, Roy Rios, and Abelardo Martinez in Orange County and San Diego Superior Courts in California last week, the plaintiffs argue that they are blind residents of California who want to enter the workforce, attempted to apply using the defendant’s online application, but could not because it was inaccessible to individuals with disabilities. They claim the WAVE tool confirmed the website’s inaccessibility (an automated tool like WAVE, while useful, cannot be relied upon to determine whether a website is accessible or not, let alone useable by an individual with a disability).  In these lawsuits, the plaintiffs claim that they twice asked the defendant to remove the barriers and were ignored.  Plaintiffs also claim that removing the barriers would take only a few hours (which anyone who has worked in the website accessibility space knows is rarely if ever possible).  Plaintiffs allege these requests that defendant remove the barriers were requests for reasonable accommodation, though they were sent by the plaintiff’s attorney and not the actual individual seeking employment; thus possibly perceived as litigation demand letters rather than legitimate requests for reasonable accommodation.  The plaintiffs allege that the companies did not respond and that they have a policy to deny disabled individuals equal employment by refusing to remove the barriers on the website.  Each plaintiff alleges only a single legal claim for violation of FEHA, even expressly noting he is not asserting claims for violation of any federal law or regulation.

Will these claims find any success in the courts under the applicable law?  We will be watching.  In the meantime, businesses that have been focusing efforts on consumer-facing websites to mitigate risk under Title III should be aware of this new trend (if you have not already received such a letter).

Edited by: Minh N. Vu.

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:  A federal judge in the Central District of California has allowed a blind plaintiff to continue his lawsuit about the accessibility of a public accommodation’s website under Title III of the ADA, despite the diametrically opposite views of his Central District colleague.

Within a week after a Florida federal judge handed down a trial verdict finding that Winn Dixie had violated Title III of the ADA by having a website that could not be used by the blind plaintiff, U.S. District Judge John Walter of the Central District of California ruled that blind plaintiff Sean Gorecki could continue his lawsuit against retailer Hobby Lobby about the accessibility of its website.  The retailer had asked the court to dismiss the case on various grounds, all of which were rejected by the judge.  The case will now move forward.

This decision is significant for several reasons:

  • The decision illustrates that two judges in the same United States District Court can have diametrically opposite views on the very same issue. In March of this year, U.S. District Judge James Otero dismissed a lawsuit brought by a blind plaintiff against Domino’s Pizza about its allegedly inaccessible website.  Judge Otero found that Domino’s had met its obligations under the law by providing telephonic access via a customer service hotline, and that requiring Domino’s to have an accessible website at this time would violate its constitutional right to due process.  On the due process point, Judge Otero noted that neither the law nor the regulations require websites to be accessible, and that the Department of Justice (DOJ) had failed to issue regulations on this topic after seven years.  As further evidence that covered entities have not been given fair notice of their obligations under the ADA, he cited the DOJ’s official statements from the beginning of the website rulemaking process that (1) it was considering what legal standard of accessibility to adopt, and (2) telephonic access could be a lawful alternative to having an accessible website.  Based on these due process concerns, Judge Otero invoked the “primary jurisdiction” doctrine which “allows courts to stay proceedings or dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency.”
  • In stark contrast, U.S. District Judge John Walter in the Hobby Lobby case rejected the due process argument and held that the “primary jurisdiction” doctrine did not apply. With regard to the due process argument, Judge Walter stated that “[f]or over 20 years, the DOJ has consistently maintained that the ADA applies to private websites that meet the definition of a public accommodation” and that “Hobby Lobby had more than sufficient notice in 2010 to determine that its website must comply with the ADA.”  Judge Walter also held that the “primary jurisdiction” doctrine did not apply because it only applies to cases whose resolution require the “highly specialized expertise” of a federal agency.  Judge Walter found that this case is a “relatively straightforward claim that Hobby Lobby failed to provide disabled individuals full and equal enjoyment of goods and services offered by its physical stores by not maintaining a fully accessible website.”
  • Judge Walter reserved judgment on what Hobby Lobby would have to do to make its website accessible until after a decision on the merits. The Court specifically noted that the plaintiff was not asking for conformance with a specific technical rule such as the Website Content Accessibility Guidelines 2.0.

Because Judge Walter’s decision was on a motion to dismiss and not a final judgment, Hobby Lobby does not have the right to appeal the decision at this time.  We predict that the case will settle before the court reaches the merits of the case.

By Minh Vu

Only four months into 2014, the Department of Justice (DOJ) has already made clear that it is pursuing an aggressive enforcement agenda when it comes to the obligation of public accommodations to ensure effective communication with individuals with disabilities.  On March 3, the DOJ entered into a consent decree with H&R Block that requires the company’s website, tax preparation tool, and mobile applications to be accessible.  On April 10, the DOJ filed a Statement of Interest in a pending case to support the plaintiff’s position that retailers must provide a means for blind customers to independently input their personal identification numbers (PIN) at point of sale devices (POS) when making purchases using a debit card.  The clear message is that DOJ will get involved in private litigation when it does not like the positions or arguments made by defendants.   As these and other businesses know, a DOJ intervention can be a game changer in a pending case.  The DOJ brings its expertise and agency authority to the table which some judges may find persuasive even if they are not required to defer to the agency’s interpretation of its own regulations.

Website and Mobile Application Accessibility.  The H&R Block lawsuit was originally filed by the National Federation of the Blind of Massachusetts and two of its members . The plaintiffs alleged that H&R Block’s website is not accessible to the blind.  In December 2013, the DOJ filed a motion to intervene in the case with a broader complaint alleging that H&R Block had violated the ADA by having a website that was inaccessible to people with various disabilities, not just the blind..  The lawsuit was a bold move considering that DOJ had not issued (and still has not issued) proposed regulations defining the standard for what constitutes an “accessible” website.

In March, DOJ and H&R Block entered into a consent decree in which the latter agreed to make its website, mobile applications, and tax preparation tool comply with the Website Content Accessibility Guidelines (WCAG) 2.0 AA.  The WCAG 2.0 is a privately developed set of guidelines for website accessibility which can also be adapted for mobile applications.  H&R Block also agreed to pay damages to the named plaintiffs and the maximum civil penalty.  The decree contains stringent monitoring and testing obligations.

Point of Sale Device Accessibility.  This month, the DOJ filed a Statement of Interest in support of a private plaintiff who sued a retailer over an inaccessible POS device.  The plaintiff could not make a purchase using his debit card because he could not input his PIN into the POS device’s smooth touchscreen keypad.  The DOJ intervened to counter two arguments the retailer made:  (1) POS devices are not required to be accessible because the ADA Standards for Accessible Design do not specify standards for them; and (2) the plaintiff was not denied access because he could make his purchase using the alternative methods of cash, credit cards, and debit card payment that is processed as a credit card charge and requires no PIN.

In response to the first argument, the DOJ emphatically stated that the lack of specific technical standards for POS devices does not mean that they are not required to be accessible.  In the absence of such specific standards, DOJ argued, the more general obligation for public accommodations to provide auxiliary aids and services to ensure effective communication would still apply and it would be up to the public accommodation to come up with a way to meet the obligation.  The DOJ noted that while providing POS devices with tactile keypads would be one approach, there could be other technologies that could provide accessibility as well.

In response to the second argument that the blind plaintiff had other payment options besides a debit from his account which would require the input of a PIN,  the DOJ stated that the ADA prohibits differential treatment — not just complete exclusion.  The fact that blind individuals do not have the full range of payment options available to sighted individuals, in DOJ’s view, constitutes such differential treatment.

(After the DOJ’s filing, the district court dismissed the case without prejudice because the plaintiff had not alleged enough facts to establish that he had standing to bring the lawsuit, but since court granted the plaintiff permission to amend his complaint, the lawsuit is not likely to go away).

*     *     *

What do these recent DOJ actions mean for businesses that have websites, POS devices, or other self-service equipment? Continue Reading Justice Department Targets Websites, Mobile Apps, and POS Devices

By Minh N. Vu

For more than a decade, courts have struggled with the question of whether the ADA’s coverage of twelve “places of public accommodation” (e.g., places of lodging, entertainment, retailers, restaurants, service establishments) is limited to physical places, or whether they can be virtual.  The answer to this question dictates whether virtual places, such as websites, are covered by Title III of the ADA, and therefore must be accessible to individuals with disabilities.  If accessibility is required, businesses must, among many other things, ensure that audio content is communicated to deaf users in some effective manner (e.g., captioning, transcripts) and that visual content can be read by screen readers used by blind readers.

In 2006, federal District Court Judge Marilyn Patel in San Francisco avoided answering the question directly by holding that Target’s retail website is a covered “place of public accommodation” because there was a “nexus” between the website and Target’s brick and mortar stores.  This week, federal Massachusetts District Court Judge Michael A. Ponsor pushed the envelope one step further in National Association for the Deaf v. Netflix (June 19, 2012) by holding that Netflix’s web only video streaming business, “Watch Instantly,” is a “place of public accommodation” covered under Title III of the ADA. 

The decision is not entirely surprising.  In 1994, the First Circuit held in Carparts Distribution Center v. Automotive Wholesaler’s Association of New England, that the phrase “place of public accommodation” is not limited to physical places.  The Court allowed an ADA Title III claim to proceed against an insurance plan that provided its benefits through the employer and had no physical place of business patronized by customers. 

That said, the extension of this concept to include all websites of public accommodations regardless of whether the business has a physical presence has a much greater impact.  Essentially every public accommodation business in the world that has a website that can be accessed by customers in the United States and its Territories might be covered under Title III of the ADA.  What would happen if the United States and other countries adopted conflicting technical standards for an “accessible” website?  As with many other areas of the ADA (e.g., pool lifts), the lawyers and consultants will benefit greatly from the complicated issues that will arise.  It may be time for Congress to step in to deal with these issues now in a certain and sensible fashion rather than allowing the law to develop in piecemeal fashion in the courts.    

Further complicating matters is the fact that the U.S. Department of Justice (“DOJ”) has yet to issue regulations setting technical standards for accessible public accommodations websites.  Despite the lack of standards, the DOJ has made clear that it expects websites to be “accessible” — whatever this might mean. Most businesses seeking to make their websites accessible to individuals with disabilities have adopted WCAG 2.0, a standard developed by a private group called the Worldwide Web Consortium.  The DOJ has signaled in an Advanced Notice of Proposed Rulemaking for website accessibility standards that it is considering adopting WCAG 2.0 as the legal standard.  However, because making websites comply with this standard can cost millions of dollars, many businesses understandably want a definitive legal standard to be in place before investing that kind of money.  Businesses are increasingly caught between a rock and a hard place:  Adopt a standard that could change before it becomes legally binding, or risk exposure to class action lawsuits that could cost millions of dollars.  The Netflix decision may well tip the scale in favor of adopting WCAG 2.0 now for many businesses with and without physical locations. 

The San Francisco Chronicle also published an interesting article on the Netflix decision.  For more interesting commentary on this decision, see this article from the Cato Institute.