Seyfarth synopsis:  A Florida Judge Holds that SeaWorld’s website is not a place of public accommodation covered by Title III of the ADA but the decision has its limits.

Defendants fighting website accessibility lawsuits in the past several years have not had a great deal of success, so the recent decision by Florida federal Magistrate Judge Carol Mirando holding that
Continue Reading Florida Federal Court Holds That a Website is Not a Place of Public Accommodation

Marcapitolianne Wilson of Chain Store Age Media reported today that the “ADA Education and Reform Act of 2015”, H.R. 3765, introduced yesterday, October 20, 2015, by Representatives Ted Poe (R-TX), Doug Collins (R-GA) and David Jolly (R-FL), seeks to address ADA “drive-by” lawsuits. This is a topic about which we’ve reported about numerous times, such as here.
Continue Reading ADA Reform Legislation Proponents Cite Seyfarth’s Lawsuit Data

Domain names and internet conceptBy Minh N. Vu

For today’s Global Accessibility Awareness Day, we have yet another Department of Justice enforcement action to report relating to the allegedly inaccessible websites and other technologies.  This time, DOJ is trying to intervene in an existing lawsuit, Dudley v. Miami University, filed by a former Miami University student who is blind.  Although the lawsuit is brought under Title II of the ADA which applies to state and local government entities and not public accommodations, the obligations under the Title II and III are very similar. Thus, the DOJ’s position in this lawsuit provides useful insight into how it would treat private universities and other public accommodations covered by Title III of the ADA.

On May 12, 2015, the DOJ sought permission from the court to intervene in the lawsuit as an additional plaintiff.  If the request is granted, the lawsuit’s scope will widen.  As an individual plaintiff, Ms. Dudley can only seek injunctive relief that relates to her own disability (blindness) and attorneys’ fees.  The DOJ, on the other hand, can and is seeking injunctive relief that would benefit people with other types of disabilities such as those who are deaf or hard of hearing.  In addition, the DOJ can seek compensatory damages for past and present students who have been harmed, and a civil penalty of up to $75,000.

The DOJ’s action stems from the University’s obligation ensure that its communications with individuals with disabilities is effective.  One question we often get is whether a public accommodation is required to ensure that all of its communications with the public are effective, or just those that relate to the core goods and services that the public accommodation offers (e.g, communications by a university to students and prospective students about its courses and programs).  Some advocacy groups have taken the position that all material posted on any university website must be accessible for the benefit of the public at large, even if the material is not directly related to any coursework or other programs offered by the school.
Continue Reading Another DOJ Action over Allegedly Inaccessible Websites and Other Technologies

Blind woman and a guide dogBy Kristen Verrastro and Andrew McNaught

Recently, a Federal court in Northern California denied Uber Technologies, Inc.’s request to dismiss an access lawsuit. The plaintiffs, National Federation of the Blind of California (“NFBC”) and individual blind members with guide dogs, filed an ADA lawsuit alleging Uber-X drivers committed various forms of discrimination, including refusing to transport blind riders with their service animals.

For example, one blind member of NFBC alleged an Uber-X driver pulled up to the curb; yelled “no dogs;” and then cursed at him before taking off without the NFBC member in the driver’s vehicle. The complaint also alleges that Uber-X drivers have mishandled guide dogs, in one instance even forcing a guide dog into the closed trunk of a sedan before transporting the blind rider. When the blind rider realized where the Uber-X driver placed her dog, she pleaded with the driver, who refused to pull over so the rider could remove the dog from the trunk.

Below, we discuss the arguments considered by the Court regarding Uber’s motion to dismiss. The Court ultimately determined that: (1) the plaintiffs had standing under the ADA; and (2) Uber may be subject to the ADA, potentially as a place of “public accommodation.”

Plaintiffs’ Standing under the ADA

Uber argued that the plaintiffs did not have standing to bring the lawsuit because, among other state law arguments: (1) one plaintiff did not have standing under the ADA’s deterrent effect doctrine; and (2) another plaintiff did not have standing as to the likelihood of future harm under the ADA.

The Court rejected Uber’s arguments. In finding that plaintiffs have standing under the ADA, the Court noted that the plaintiffs shouldn’t have to engage in a “futile” attempt to access services when they: (1) have knowledge that Uber has refused service to passengers with service animals; and (2) believe there is a likelihood such refusals will continue. Specifically, the Court said that “the ADA directs this Court to relax its standard for injury in fact in order to discourage both piecemeal litigation and futile attempts at access” when plaintiffs have actual notice of the alleged discriminatory practice and are in fact deterred from attempting access.

The Court also granted NFBC associational standing to bring suit under the ADA on behalf of its members.

Uber May Be Subject to the ADA
Continue Reading Federal Lawsuit Challenging Uber X’s Exclusion of Service Animals Shifts into Discovery

wooden gavel on laptopFailure to Provide an Accessible Alternative Is Not Intentional Discrimination Sufficient to Establish an ADA-Independent Unruh Act Claim

By Kristina M. Launey and Minh N. Vu

On April 1, 2015, the Ninth Circuit became the first federal appellate court in the country to hold that web-only businesses are not places of public accommodation under the ADA.

As we previously reported
Continue Reading Ninth Circuit Rules Website Must Have Nexus to a Physical Place of Business for ADA to Apply

(Photo) Online ShoppingBy Christina F. Jackson, Kristina M. Launey, Minh N. Vu Courts on both coasts have grappled with whether Title III of the Americans with Disabilities Act (ADA) applies to websites of businesses that have no physical place of business where customers go. One judge in the U.S. District Court for the District of Massachusetts answered this question in the affirmative, holding that Netflix’s video streaming website is a “place of public accommodation” covered by Title III of the ADA, even if the website has no connection to a brick and mortar business. In contrast, two judges from the U.S. District Court for the Northern District of California have held that Netflix and eBay’s websites are not covered by Title III of the ADA because they did not have a connection to an actual, physical place of business. These judges were all purporting to follow Court of Appeals precedents in their respective circuits, although those precedents did not specifically concern websites. Title III of the ADA and its regulations provide little guidance because they were drafted before the Internet became so ubiquitous.

Last Friday, on March 13, 2015, the Ninth Circuit Court of Appeals heard oral argument on the question of whether a web-only business is a place of public accommodation under the ADA and California state laws predicated upon the ADA in Cullen v. Netflix and Earll v. eBay, Inc.. (We’ll explore the California-specific issues more in-depth in a separate post.) Recordings of the oral arguments are available here and here.

Does Title III of the ADA apply to web-only businesses?
Continue Reading Ninth Circuit Hears Arguments: Are Web-Only Businesses “Places of Public Accommodation” Subject to Title III?

Question markBy Minh N. Vu and Kristina M. Launey

Seyfarth’s ADA Title III Team — along with many businesses and disability advocates — has closely monitored the status of the Justice Department’s (DOJ) proposed website regulations since the DOJ started its process in September 2010. We were surprised to hear NPR’s March 7 report by Todd Bookman that the DOJ is
Continue Reading NPR Report that DOJ Will Release Website Regulations This Month Requires Clarification

disabled buttonBy Minh N. Vu and Kristina M. Launey

On February 18, 2015, the U.S. Architectural and Transportation Barriers Compliance Board (“Access Board”) issued a proposed rule (“NPRM”) which would, among other things, adopt the WCAG 2.0 Level AA Guidelines (“WCAG 2.0 Level AA”) as the standard for federal government websites.  Section 508 of the Rehabilitation Act requires federal government websites
Continue Reading Proposed Accessibility Standards for Federal Government Websites Highlights Double Standard Justice Department Seeks to Impose on Public Accommodations

As we start 2015, the recent activity and interest surrounding the issue of service animals under Title III of the ADA show no signs of abating.  Customers and patrons of retailers and other public accommodations continue to test the boundaries of the federal statute and the applicable regulations, as well as those of state statutes, by bringing service animals (some
Continue Reading Seyfarth Partner Provides Insight for SHRM Article on Service Animals

By Kevin Fritz and Kylie Byron

If you’ve visited a shopping mall in America, you’ve probably seen the characteristic design of the Hollister Co. clothing stores.  About 249 of the stores have a roofed porch-like entrance, with steps leading up onto the porch from the mall area and steps leading down from the elevated porch into the store interior.  Flanking
Continue Reading Tenth Circuit Rejects DOJ and Advocacy Group’s Attempt to Inject Unstated Requirements Into ADA Standards for Accessible Design