National Federation of the Blind

Seyfarth Synopsis: Due process, DOJ’s failure to enact regulations, and whether the ADA covers websites arguments dominated the recent Domino’s Ninth Circuit oral argument.

In the increasing morass of varying state and federal district court opinions in website accessibility cases, we will soon have two additional federal appellate decisions to provide more guidance of precedential value to federal trial courts.  Most recently, on October 12, the Ninth Circuit heard the parties’ oral arguments in Robles v. Domino’s Pizza.  On October 4, the Eleventh Circuit heard oral argument in Gil v. Winn-Dixie.  We attended the Robles argument.

Sitting on the Domino’s Ninth Circuit panel were Ninth Circuit Judges Watford and Owens, and Arizona District Court Judge Zipps.  Judges Watford and Owens actively questioned all parties while Judge Zipps only listened.  The judges seemed to be leaning in Robles’ favor, expressing skepticism at many of Domino’s arguments, especially with respect to the main issue on appeal: Whether the court can apply the ADA to websites of public accommodations without regulatory guidance from the Department of Justice (DOJ).  Below is a summary of the key arguments and judges’ comments:

Primary Jurisdiction/Due Process.  The main issue on appeal is whether U.S. District Judge Otero erred in granting Domino’s motion to dismiss the case on primary jurisdiction and due process grounds.  Robles argued that the lack of specific website accessibility regulations does not eliminate the statutory obligation to comply with the ADA, and that Domino’s is not exempted from the ADA and its implementing regulations because DOJ was working on such regulations at one time.  Robles pointed out that DOJ has terminated the rulemaking process since the District Court ruled.  Robles stated that the court does not need the DOJ to rule on this issue – in fact, that the DOJ said in a recent letter (to Congressman Ted Budd) mentioning this very case that it was not going to act.

Frustration with DOJ’ s Inaction.  Not surprisingly, the DOJ continued to come up numerous times during the Domino’s argument.  Judge Watford stated that all “agree it’s a highly undesirable state for the law to be in” and “it’s DOJ that’s mainly at fault – it should have happened a long time ago.”  Domino’s asked whether the Court could certify the question for the DOJ to answer.  Judge Watford did not believe any mechanism to do so existed.  Judge Owens interjected that the DOJ could have intervened, but did not. “This shows the problem with your primary jurisdiction argument. It’s like a Samuel Beckett play – we’re just waiting and it’s not going to happen.”  Isn’t that an inherent due process problem, Domino’s asked?  “The court’s job is to interpret the law as best it can.”  If the Supreme Court doesn’t like it, it doesn’t like it.

Coverage of Websites by the ADA.  The question of whether the ADA covers websites also came up at several points.  Domino’s took the position that the ADA covers the communication on websites, but not the websites themselves – a position that Judge Owens said was contrary to what Domino’s said in District Court.  Judge Watford pointed out that the DOJ has said the ADA covers websites on numerous occasions.  In response, Domino’s said the DOJ’s latest position on this topic was a footnote in the U.S. Solicitor General’s brief filed in the McGee v. Coca Cola case which did not involve a website.  The footnote simply noted district courts have grappled with the question of whether the ADA applies to goods and services offered over the Internet.  Judge Watford said if that footnote is “all you’ve got, you’re on extremely shaky ground… you don’t have much to stand on there.”

What is an accessible website? Domino’s argued, as a possible explanation for DOJ’s inaction: “there is no such thing as an accessible website, and there never will be.” He cited the plaintiff’s expert’s statement in Winn-Dixie, also cited by the Eleventh Circuit judges in that oral argument, that the expert had never seen a website that complies with the Web Content Accessibility Guidelines (WCAG).  To illustrate the difficulty businesses face in applying the guidelines, Domino’s posited how detailed the alt-text behind a picture of a basketball needs to be to conform to the guidelines – if it has LeBron James’s autograph on it, for example, does the alt-text need to go to that level of detail, or can it just say “basketball.”  He thinks the regulatory effort was stymied because the DOJ couldn’t “wrap its head around” this.

Judge Watford disagreed, “I don’t think it’s as dire as you painted”.  The Judge added, skeptically, “You want us to just throw our hands up and say this is just impossible, there’s no way to figure this out.  I don’t think that’s correct.”  Judge Watford noted any particulars as to what businesses need to do to have an accessible website can be worked out in the remedy stage.  At various points, counsel for Robles and the National Federation of the Blind (NFB), as Amicus, as well as Judge Owens, remarked that the lower court had not decided whether Domino’s website was required to be, and was or was not, accessible – let alone by what standard accessibility should be measured.  Thus, those issues were not before this Court.  Judge Watford asked, since it appears the WCAG is the “only game in town”, “how could compliance with anything else render a website’s content accessible to people with vision disabilities”? (Note that in its oral argument, Winn-Dixie, appealing the district court’s order that the grocer conform its website to the WCAG, argued that such an order constituted “legislating from the bench”, which denies businesses due process.)

Telephonic Access.  At one point, Domino’s counsel stated that that people who could not use the website could call a 1-800 number.  Judge Watford reminded him that banner displaying the number was not on the Domino’s website at the time Robles attempted to access it.  The Judge did not say that the phone number could not provide a lawful alternative to access but said “we can debate whether that would be adequate.”  Amicus Counsel for the NFB expressed skepticism about whether the phone could ever be an adequate substitute, and argued that this was an issue of fact.

The Ninth Circuit will likely issue its order in the next three to twelve months.

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.

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).

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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 Kristina M. Launey

E-readers should be great tools to provide access to individuals with visual disabilities due to their ability to change font sizes and be compatible with screen readers.  In theory at least, if not always in practice, as evidenced by various cases the US DOJ, National Federation of the Blind (NFB), and the American Council of the Blind (ACB), have brought and settled over the past few years against universities, school systems, and libraries involving e-readers that are allegedly inaccessible to individuals with vision impairments.

In 2009, the NFB and the ACB sued five universities alleging the universities’ pilot programs to distribute textbooks via e-reader violated the ADA because the e-reader’s text-to-speech capabilities were very limited.  Specifically, the e-reader device could read books aloud but did not read aloud the menu or other features.  Consequently, blind students could not turn on the text-to-speech feature, let alone navigate the device, without assistance.  The parties settled in 2010 for an agreement that the universities would use devices that are accessible to individuals who are blind or have low vision if they chose to deploy e-book readers in the future. 

In June 2010, the DOJ and the US Department of Education wrote a letter to university presidents cautioning against requiring the use of e-book devices in a classroom setting due to these same accessibility concerns. 

While e-readers have advanced in accessibility capability in the past few years, organizations cannot assume all e-readers are fully accessible.  Those that choose to use the technology must carefully choose e-readers that are in fact fully accessible.  The DOJ and NFB are still watching.  In January 2012, the NFB asked the DOJ to investigate a school district’s proposed acquisition of an allegedly inaccessible e-reader device. 

Most recently – just last week – the DOJ announced that it and the NFB reached a settlement with the Sacramento (California) Public Library Authority to remedy alleged violations of the ADA due the library’s use of inaccessible electronic reader devices in a patron lending program.  The settlement agreement provides that the library will not acquire any more inaccessible e-readers for patron use (i.e., lacking text-to-speech functions or the ability to access menus through audio or tactile options), that the library will acquire at least 18 accessible e-readers, and that the library will train its staff on the ADA. 

While many of the specific cases discussed above involved public entities subject to Title II of the ADA and the Rehabilitation Act, the cautionary tale is equally applicable to private institutions – such as libraries, universities, primary and secondary schools – that are subject to Title III.  If you choose to use e-readers, make sure they are fully accessible.