By Minh N. Vu and John W. Egan
Seyfarth Synopsis: Enterprising plaintiffs in New York are suing more than 100 businesses under a new theory – – that ADA Title III requires Braille gift cards.
Between Thursday, October 24 and as recently as last Friday, over 100 putative class action lawsuits (and counting) have been
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
Seyfarth Synopsis: New Affordable Care Act and Medicaid Regulations will require covered entities providing health care programs and services have accessible electronic information technology, including accessible websites.
While we continue to wait for new regulations for the websites of state and local governments, federal agencies and public accommodations, two new regulations from the Department
As we have previously noted, Title III of the ADA requires that public accommodations provide, at their expense, “auxiliary aids and services” to ensure “effective communication” with persons with hearing disabilities. The “nature, length, complexity, and context of the communication” at issue and the individual’s “normal method of communication” must be
Title III of the ADA requires that public accommodations provide, at their expense, “auxiliary aids and services” to ensure effective communication with persons with hearing, vision, or speech disabilities. But what does that really mean for a business? What is effective communication? The Department of Justice last month released its most recent guidance on this topic (the “Guidance”). DOJ’s previous guidance on the subject was issued in 2011 in a primer targeted for small businesses. Since the DOJ and state enforcement agencies have taken a keen interest in this subject, businesses should take a minute to review these two guides and make sure that they, and their employees, are meeting their obligations.
The “effective communication” obligation exists because people who have hearing, vision, or speech disabilities communicate differently from people without these disabilities. For example, a person who is blind is not going to be able to read a menu or legal documents. A person who is deaf is not going to be able to hear what a doctor says about his diagnosis. Thus, in most instances, these individuals will need appropriate “auxiliary aids and services” to ensure effective communication.
The Guidance explains that the key to effective communication is to consider the “nature, length, complexity, and context of the communication” and the person’s “normal method of communication.” In some contexts, effective communication may entail simply reading something to a blind individual (e.g., a menu so he or she can order in a restaurant ), or exchanging notes with a deaf individual (e.g., about a product for sale in a retail setting).
In other contexts where communication is extensive (e.g., educational or medical settings), ensuring effective communication can be complex and costly, and may require the provision of an interpreter or the acquisition and use of unfamiliar technology. As the Guidance explains, various technologies can be used to ensure effective communication, such as computer-assisted real-time transcription, video remote interpreting, and screen reader software. The public accommodation should consult with the individual—especially in these more complex situations —to determine an aid or service that will provide effective communication. If more than one aid or service would allow equally effective communication, the public accommodation is not required to provide the individual’s requested aid or service.
The Guidance notes that the public accommodation must provide the aid or service unless it can show that it would “fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden, i.e., significant difficulty or expense.” The standard for establishing this defense is quite high; the Guidance states it will be shown only in “rare” circumstances.
As important reminders, the Guidance also notes the following:
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By Minh N. Vu
A recent decision by the federal court in the Northern District of Illinois serves as an important reminder that organizations that do not lease or own physical space where they provide goods, services, or accommodations to the public may still be covered by Title III of the ADA when they hold
