By 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
By 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
Last month, a California district court reaffirmed that Title III of the Americans with Disabilities Act (“Title III”) does not require a public accommodation to offer accessible goods (i.e. videos with captioning) as part of its inventory. In Jancik v. Redbox Automated Retail, LLC, No. SACV 13-1387-DOC, 2014 WL 1920751 (C.D. Cal. May 14,
Continue Reading California District Court Holds that Redbox Does Not Have to Offer Captioned Videos at its Rental Kiosks or on its Streaming Video Website
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
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:
Continue Reading New Justice Guidance Reminds Businesses They Are Responsible for Ensuring Their Communications With People with Disabilities Are Effective
By John W. Egan
From our experience, businesses often must deal with customers and guests who claim that their pets or comfort animals are “service animals” to avoid “no animal” rules or extra charges for pets. A recent decision from the United States District Court for the Eastern District of California serves as a reminder that businesses do have a
Continue Reading Combatting Service Animal Fraud: Those Two Questions You Are Allowed To Ask DO Work!
By Minh. N. Vu
If you thought that Title III of the ADA was intended to protect people with disabilities who might want to do business with you – as opposed to those people who visit your business for the sole purpose of filing a lawsuit –– think again. The U.S. Court of Appeals for the Eleventh Circuit last week
Continue Reading Eleventh Circuit Holds that Testers Who Have No Intent to do Business at a Place of Public Accommodation Can File ADA Title III Lawsuits.
Minh Vu, Seyfarth Shaw’s ADA Title III Team Leader and a Department of Justice veteran, provided insights for Law360’s Expert Analysis column today on how a Romney victory tomorrow might impact important pending disability access regulations that would cover the websites, equipment, and furniture of public accommodations. Click here to see this article.
Continue Reading Minh Vu Shares Thoughts on How The Presidential Election Could Affect Pending ADA Regulations on Law360
