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 Shaw Synopsis: Effective December 18, 2017, New York became the latest state to enact a law cracking down on fake service animals.

New York recently joined an increasing number of states that have passed laws aimed at curbing abuse of laws and regulations designed to ensure that individuals with disabilities can be accompanied by their service animals in places of public accommodation and other settings. On December 18, 2017, New York State Governor Andrew Cuomo signed into law a bill that, among other things, makes it unlawful to knowingly apply a false or improper identification tag designating a service, emotional support, or therapy dog. In signing the bill, Gov. Cuomo noted an increasingly important role therapy dogs play in supporting individuals with diseases such as anxiety and PTSD, and also their role in assisting the ill and elderly. Authority to enforce the new law is vested with each municipality’s dog control officer. Violators will face a fine of up to $100, up to 15 days of jail time, or both.

Service animal registrations, vests, and any other means which identify service animals do not have any legal significance, according to the DOJ, and may be easily obtained online. And, as we have previously reported, businesses may only ask a handful of permitted questions to assess whether they must admit a purported service animal. Businesses should be aware of and train their employees to comply with the ADA’s, and any applicable state and local laws’, service animal requirements. Although it may be tempting to undertake more aggressive measures to ferret out cases of service animal fraud, new laws in places like New York do not relieve businesses of their federal obligations to adhere to a protocol for addressing service animal issues. Under DOJ guidance, businesses cannot, for example, ask about the nature of a person’s disability who is accompanied by a purported service animal, or ask for a demonstration of what tasks the animal performs. Therefore, businesses should nonetheless remain vigilant in complying with their obligations to ensure access for those individuals with a genuine need for these animals.

Other states such as Colorado, Maine, Michigan, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, Texas, Utah, and Virginia have similar laws or regulations prohibiting the misrepresentation of service animals. This trend has recently made national news. These state laws will hopefully discourage those who seek to take advantage of disability laws for an improper purpose, and empower authorities in dealing appropriately with cases of abuse.

CaptureBy John W. Egan

Despite the url (www.adatitleiii.com) and frequent federal focus of this blog, it is important to remember that many states and municipalities have their own disability access laws and regulations with which businesses must comply. Although many state and local requirements are similar to the ADA, this is not always the case.

Usually we’re reporting on a peculiarity of California law, but not today. Effective November 22, 2014, businesses in New York must use the Accessible Icon (depicted above) in new construction and alterations. New York is the first state in the country to adopt this icon, which is distinctly different than the International Symbol of Access (“ISA”) specified in federal ADA Title III regulations.

The New “Accessible Icon”

Created over forty years ago, the ISA is a widely-recognized depiction of an individual in a wheelchair that signifies access for persons with disabilities. ADA design standards, as well as many state and local laws, regulations and building codes expressly require that businesses use the ISA to designate accessible entrances, restrooms, and parking spaces, to name a few.

On July 25, 2014, New York Governor Andrew Cuomo signed legislation designed to phase out the ISA throughout the state. Under the new law and its implementing regulations, accessibility signage installed or replaced on or after November 22, 2014 must use the Accessible Icon. The new law also prohibits the use of the term “handicapped” on accessible signage.

The description of the Accessible Icon in state regulations is taken verbatim from the website of The Accessible Icon Project, an advocacy organization that developed the icon and is lobbying for its adoption in the United States and abroad. Rather than what the regulations describe as a “static” position of the ISA, the Accessible Icon depicts a “dynamic character leaning forward and with a sense of movement.” The forward position of the head, arms pointing backward, and appearance of a wheelchair in motion “broadcast[] an important message that the emphasis should be on the person rather than the disability.”

The regulations make clear that their purpose is to change the accessibility symbol in the state, but make no reference to the fact that federal regulations – with which businesses must also comply – still require the traditional ISA.

New NYS Requirements Conflict with the ADA

New state signage requirements are inconsistent with the 2010 ADA Standards for Accessible Design (and the preceding 1991 Standards), which require that public accommodations use the ISA to designate certain accessible architectural features.

As a result, New York businesses that install or replace accessible signage on or after November 22, 2014 are faced with a Catch-22. They must either display the Accessible Icon and risk violating the ADA, or display the ISA instead and fail to comply with state law.

One way out of this quandary would be for New York businesses to display the Accessible Icon and rely on the equivalent facilitation provision in Section 103 of the 2010 ADA Standards, which allows “the use of designs, products, or technologies as alternatives to those prescribed, provided that they result in substantially equivalent or greater accessibility and usability.” Businesses can take the position that the Accessible Icon constitutes equivalent facilitation under Section 103, and thus its use in lieu of the ISA is permitted. However, the agency responsible for enforcing Title III of the ADA – – the Department of Justice (“DOJ”) – – has not issued any formal guidance on this issue. Moreover, if a lawsuit is filed under the ADA against a business that chose to display the Accessible Icon, the burden of proving that the Accessible Icon provides equivalent facilitation would be on the business.

A Sign of Things to Come?

Will other states follow New York’s lead and replace the ISA with the Accessible Icon? According to The Accessibility Project’s website, the Icon is displayed in municipal buildings in New York City, Cambridge, Massachusetts, and El Paso, Texas, as well as by a number of museums, restaurants, colleges, and hospitals in the United States and internationally. Additional state jurisdictions may well follow suit.

The symbolism underlying the design of the Accessible Icon is unquestionably positive. Its recent adoption in New York, however, has created uncertainty for public accommodations that must comply with both federal and state law.

Edited by Kristina Launey and Minh Vu

Review of Disabled Persons Act Applicability to Websites Withdrawn; California Agency Issues Guidance on CASp Benefits; and Novel New Serial Lawsuits Filed Against Car Dealerships

By Kristina Launey

As we’ve discussed previously, California is a hotbed for disability access suits – both based upon alleged physical accessibility violations of California law and the ADA and based upon alleged inaccessible websites.  Three recent developments on this front merit mention:

First, the California Division of the State Architect recently posted useful information regarding its interpretation of why a business may want to hire a Certified Access Specialist to inspect and certify a property at: Why is it Beneficial to Hire a CASp? And Other Frequently Asked Questions.  The page explains the law in California which authorizes private plaintiffs to receive statutory damages of up to $4,000 per occurrence of violation as well as the legal benefits and protections a CASp consultant’s evaluation can provide a business when faced with such a lawsuit.

Second, we had expected some guidance from the California Supreme Court regarding whether the Disabled Persons Act applies to businesses’ websites after the Ninth Circuit in Greater Los Angeles Agency on Deafness et al. v. Cable News Network, Inc. certified the issue to that Court.  On October 10, the Ninth Circuit withdrew its request for review after GLAAD agreed to dismiss its action with prejudice in exchange for CNN’s promise not to seek attorneys’ fees and costs and CNN voluntarily dismissed its appeal in the Ninth Circuit.  Despite the lack of judicial and regulatory guidance, lawsuits, demand letters, and enforcement actions over alleged inaccessible websites continues.

Finally, in the category of what new serial lawsuit trend is hot in California right now, we’ve seen a wave of lawsuits filed against car dealerships by one firm in California alleging violations of law based upon the car dealerships’ failure to offer and refusal to install vehicle hand controls on vehicles for persons with disabilities to test drive the vehicles.

As always, we’ll continue to monitor disability access developments in California and nationwide to keep you up to date.

Edited by Minh Vu

By: Kristina Launey

As we reported last year, in September 2012, the Governor signed into law legislation reforming some of California’s disability access statutes.  Most of those reforms went into effect as of the date the Governor signed the bill, but one provision becomes effective today, July 1, 2013. 

California Civil Code Section 1938 requires, among other things, commercial property owners or lessors to state on every lease form or rental agreement executed on or after TODAY – July 1, 2013 – whether the property being leased or rented has undergone inspection by a Certified Access Specialist (CASp), and, if so, whether the property has or has not been determined to meet all applicable construction-related accessibility standards. 

Are your lease forms and rental agreements ready?

 If you have property in San  Francisco, you likely already know – but worth a topical reminder – of San Francisco Administrative Code Chapter 38, which requires landlords to make certain disclosures and provide certain notices regarding accessibility on commercial properties.  Chapter 38 was enacted to ensure that: (1) public restrooms and ground floor entrances to and exits from real property leased to Small Business Tenants comply with applicable disability access requirements and that Commercial Landlords disclose any noncompliance with such requirements before a Small Business Tenant enters into or renews a lease for the property; (2) Commercial Landlords and Small Business Tenants receive priority permit processing for work consisting primarily of disability access improvements; and (3) every new and amended commercial lease between a Commercial Landlord and a Small Business Tenant for premises that will be used as a public accommodation clearly and expressly addresses the respective obligations of the parties for making and paying for disability access improvements.  As such, like the new state law, the Ordinance requires revisions to leases and lease amendments, but only for Smaller Business Tenants (occupying space of 7500 square feet or less).  The lease must also require the tenant and the landlord to use reasonable efforts to notify each other if they make alterations to the leased property that might impact accessibility under federal and state disability access laws.  The new ordinance was effective January 1, 2013 with respect to leases (and amendments) for spaces 5,001-7,500 square feet and on June 1, 2013 with respect to leases (and amendments) for spaces of less than 5,000 square feet.