By: Minh N. Vu

Seyfarth Synopsis: The Justice Department withdraws pending rulemakings for accessible websites, furniture and non-fixed equipment.
The current Department of Justice’s (DOJ) regulatory approach to Title III of the ADA is yet another example of what a difference an election can make.

In 2010, the DOJ started the rulemaking process to issue new regulations about the websites of public accommodations and state and local governments, as well as non-fixed equipment and furniture used in public accommodations. In July of this year, the DOJ placed these rulemakings on the “inactive list”. On December 26, 2017, these rulemakings will officially be withdrawn.

On the web access rules, the DOJ stated that it is “evaluating whether promulgating regulations about the accessibility of Web information and services is necessary and appropriate. Such an evaluation will be informed by additional review of data and further analysis. The Department will continue to assess whether specific technical standards are necessary and appropriate to assist covered entities with complying with the ADA.” This is an unfortunate development for the disability community and covered businesses alike. Instead of having clear rules to follow, businesses will have to look to the constantly evolving patchwork of decisions coming out of the courts for guidance. Meanwhile, the number of website accessibility lawsuits continues to surge as businesses scramble to make their websites accessible.

With regard to the withdrawal of the rulemaking about non-fixed equipment and furniture, DOJ said that it is “reevaluating whether regulation of the accessibility of non-fixed equipment and furniture is necessary and appropriate.” We see far less litigation on this topic although advocacy groups may feel the need to press the litigation agenda more aggressively now that no rules are forthcoming. Businesses are, for the most part, better off without these rules but they need to remember that the absence of technical standards does not necessarily mean there are no obligations under the ADA with regard to these items. Title III of the ADA contains a general non-discrimination mandate and more general rules that still require a public accommodation to ensure access to all its goods, services and benefits, subject to certain defenses.

This latest development just confirms what we predicted would happen during this administration, albeit with more finality than we had anticipated.

Edited by Kristina M. Launey

Seyfarth Synopsis:  The Supreme Court declines to review a Fifth Circuit decision stating that a public accommodation covered by Title III of the ADA has to be a physical place and vending machines are not sales establishments covered by Title III of the ADA.

In August 2016, the U.S. Court of Appeals for the Fifth Circuit ruled in Magee v. Coca-Cola that vending machines are not places of public accommodation covered by Title III of the ADA. The blind plaintiff in that case had argued that the inaccessible Coca-Cola vending machine in question was a “sales establishment” regulated by Title III of the ADA and sued Coca Cola — the owner and operator of the vending machine.  Both the trial court and the Fifth Circuit Court of Appeals disagreed, holding that a “sales establishment” is a physical space that is occupied by a business and that the vending machine was not such a space.  In other words, the owner or operator of the establishment where the vending machine was located who was not sued may have had obligations with respect to the machine, but not the owner or operator of the vending machine itself.

The plaintiff petitioned the U.S. Supreme Court for review.  On Monday, the Supreme Court Denied plaintiff’s petition for writ of certiorari, declining to hear the case.  Before issuing Monday’s denial deciding whether to review the case, the Supreme Court had asked the U.S. Department of Justice (DOJ) to weigh in on whether vending machines are places of public accommodation.  The DOJ firmly answered the question in the negative and also urged the Court to not review the Fifth Circuit’s decision. We blogged about the DOJ’s position and how it may prove useful to defendants defending cases involving self-service machines here.

The Magee decision has implications beyond vending machines.  It makes the federal courts in the Fifth Circuit (i.e. Louisiana, Mississippi, and Texas) unattractive venues for lawsuits against web-only businesses that have no physical location where customers go.  Plaintiffs seeking to sue such businesses will be much more likely to bring their lawsuits in the First or Seventh Circuit which have interpreted the term “public accommodation” to extend beyond physical spaces.  The Supreme Court’s denial of review prolongs the conflict among judicial circuits about whether a “public accommodation” under the ADA must be a physical place, and promotes forum shopping for plaintiffs.


Seyfarth Synopsis: The federal government has adopted the Web Content Accessibility Guidelines 2.0 Levels A and AA as its accessibility standard for federal agency websites, making it very likely that the Department of Justice will also adopt this standard for public accommodations websites in its forthcoming regulations.

ADA BLOGBusinesses working on making their websites accessible to individuals with disabilities often ask us what technical standard they should be using since the ADA Title III regulations do not yet specify a standard.  We believe the Department of Justice (“DOJ”) will likely adopt the Web Content Accessibility Guidelines 2.0 Levels A and AA (“WCAG 2.0 AA”)  as the standard for public accommodations websites for a number of reasons, including the fact that WCAG 2.0 AA is the access standard used in all DOJ settlement agreements and consent decrees about websites and mobile apps.

Yesterday, the U.S. Architectural and Transportation Barriers Compliance Board (the “Access Board”) announced a final rule, under the authority of Section 508 of the Rehabilitation Act, requiring the websites and electronic content of federal agencies to conform to WCAG 2.0 AA within one year of the date the rule is published in the Federal Register (most likely in the next few weeks).  The federal government’s adoption of WCAG 2.0 AA for its own websites makes it even more likely that the DOJ will adopt the same standard for the websites of public accommodations and state and local governments under Titles II and III of the ADA–someday.

As we have previously reported, the DOJ most recently stated that its proposed rule for public accommodations websites will be published in 2018.  However, we have little confidence in that date given the number of delays thus far and the impending administration change.  That said, this final rule applicable to federal agency websites should provide businesses with confidence that WCAG 2.0 AA is the standard to use if they are working on making their websites accessible.

Edited by Kristina M. Launey

Seyfarth Synopsis: Many years in the making, today the Access Board issued design criteria and other standards for medical diagnostic equipment.

Today, the U.S. Access Board issued new accessibility standards for medical diagnostic equipment (MDE). The final rule will be effective February 8 – 30 days from today’s publication of the final rule containing the standards in the Federal Register.

The standards provide design criteria and other requirements for the accessibility of examination tables and chairs, weight scales, radiological and mammography equipment, and other diagnostic equipment. They are divided into separate technical criteria based on how the diagnostic equipment is used by the patient: (1) supine, prone, or side lying position (M301); (2) seated position (M302); (3) while seated in a wheelchair (M303); and (4) standing position (M304); and include technical criteria for supports (M305), for instructions or other information communicated to patients through the equipment (M306), and for operable parts used by patients (M307).

The Access Board is an independent federal agency established by the Rehabilitation Act of 1973, responsible for developing accessibility guidelines and standards under various laws to ensure that individuals with disabilities have access to and use of buildings and facilities, transportation vehicles, and information and communication technology.  Section 510 of the Rehabilitation Act (as amended by the Affordable Care Act in 2010) instructs the Access Board to promulgate, in consultation with the Food and Drug Administration, technical standards regarding accessibility of medical diagnostic equipment; but it does not give the Access Board authority to enforce these standards. In other words, these standards do not have the force of law and are technically not binding on health care providers and equipment manufacturers unless and until a federal agency such as the Department of Justice of the Department of Health and Human Services adopts them as part of their own regulations.   That said, now that there are standards from the Access Board as to what constitutes an accessible piece of medical diagnostic equipment, plaintiffs and possibly the DOJ will argue that acquiring such equipment is required under the existing requirement to make reasonable modifications to policies, practices and procedures.  Thus, manufacturers and purchasers of new medical diagnostic equipmement should take these standards into account in making future acquisitions.

The publication of this final rule completes a process the Access Board began in 2012 – as we have previously reported – with issuance of a proposed rule; public comment; review and preparation of a report based on the public comments by an MDE Advisory Committee of 24 stakeholders comprised of representatives from disability groups, equipment manufacturers, health care providers, and standard-setting organizations; and, finally, and the Access Board’s review of the report, revision, then adoption of the final standards.

Significant changes that were made from the notice of proposed rulemaking to this final rule in response to the comments received, recommendations from the MDE Advisory Committee, and other information that came to the Access Board’s attention during the rulemaking process; and there will still be more changes to come.  For example, citing substantial disagreement amongst stakeholders regarding appropriate transfer height standards, the Access Board decided to establish in the final rule, for five years only, a range for the minimum low height requirement of 17 inches to 19 inches. It has commissioned a study to quantify the portion of the population that would benefit from a low transfer height below 19 inches, and intends to amend this portion of the final rule with a subsequent rulemaking to establish a minimum low transfer surface height once the study has been completed and before the five-year sunset provision takes effect.

In its press release announcing the new standards, Regina Blye, Vice Chair of the Access Board, stated: “The new standards will be instrumental in ensuring access to health care services…The Board is pleased to fill this gap in accessibility because diagnostic equipment has remained problematic for many people with disabilities due largely to the lack of design specifications for making such equipment accessible.”


Edited by Minh Vu

Photograph of a stopwatch, isolated on white.

By: Seyfarth ADA Title III News & Insights Editors

Seyfarth Synopsis: Here’s our take on Sunday’s 60 Minutes episode on “drive-by” abusive ADA Title III lawsuits and the legislative efforts to address them.

60 Minutes aired a segment about ADA Title III “drive-by” lawsuits on Sunday, December 4, which focused on a few of the ways in which the law has been misused by some plaintiffs and their attorneys to make money.  Some disability rights advocates have called the piece a “hit job” on the ADA and “propaganda” for the future Trump Administration’s  perceived anti-civil rights agenda.  Others say that by highlighting only the “bad apples,” the story “mischaracterized the ADA as an instrument of opportunism” instead of the force that has opened doors for millions of Americans.  These are all fair points, but the 60 Minutes piece does highlight the need for targeted changes which would mitigate the abusive litigation and restore confidence in a very important law.

When Anderson Cooper interviewed our ADA Title III Team Leader, Minh Vu, for the story, it seemed that the piece would seek to uncover the reasons behind the huge year-over-year increase in ADA Title III lawsuits (which we have reported on this blog); whether the cases are legitimate; and whether reform to the law might stop its abuse by a small cadre of plaintiffs’ lawyers and their serial plaintiffs.  The final story was much narrower and focused on a small hotel owner who was sued for not having a pool lift by a plaintiff who had never been to his hotel; a California attorney who made millions filing over 2000 lawsuits under the ADA and state law; and two disabled plaintiffs who claim they were recruited by and then deceived by their attorneys who filed and settled lawsuits on their behalf without their knowledge.  The segment also highlighted the fact that the ADA regulations contain “thousands” of detailed requirements for public accommodations facilities that small businesses are not likely to know.

Interestingly, the story did not highlight the most notable “serial plaintiff” stories of the year –  there was no mention of the Arizona lawyer who filed thousands of lawsuits this year alone, prompting that state’s Attorney General to intervene and file a motion to dismiss over 1,000 of those cases; nor the Florida serial plaintiff who was exposed as not being disabled; nor the hundreds of demand letters and lawsuits that have been sent and filed by various law firms this year alleging violations of the ADA due to inaccessible websites.

The subject of these so-called “drive-by” lawsuits elicits strong reactions from businesses, especially small ones, because they are brought by people whose stated interest in patronizing the defendant businesses are highly suspect.  Businesses that are sued could try to get the case dismissed on the theory that the plaintiff has no genuine interest in returning to the business in the future, but filing a motion to dismiss can cost tens of thousands of dollars.  For this reason, most businesses choose to settle the lawsuits for a lesser amount.  Small business owners that do not have the resources to fight the suits are the most vulnerable targets.

Federal and state lawmakers have often pursued reform legislation.  For example, in May and September 2016, California’s Governor signed into law two such bills.  On the federal level, in 2015, companion bills called the ADA Education and Reform Act were introduced in the House and Senate. The bills require plaintiffs who want to bring lawsuits about architectural barriers to first provide 60-days’ notice to the business owner about the specific barriers that they allege violate the ADA.  No lawsuit can be brought if the business takes action to address the barriers.  The bill also directs the Judicial Conference of the United States to develop a model program to promote alternative dispute resolution mechanisms to resolve such claims.  While opponents of the bill may say that these businesses have had notice of their obligations for over 25 years and should not be getting more notice, the reality is that most business owners are not aware of the very detailed requirements of the ADA Standards for Accessible Design.  A 60-day notice provision would address easily fixed issues such as sink pipes that are not protected, incorrect door hardware, and bathroom dispensers and mirrors that are off by a few inches.  The notice requirement would not prevent lawsuits about more serious barriers which could not be addressed in that period of time.

The ADA Reform Act may well get a boost of momentum from the 60 Minutes story, particularly in a Trump administration.

disabled buttonBloomberg BNA and Lifezette yesterday published articles about the “explosion” of web accessibility lawsuits, quoting Seyfarth ADA Title III Team Leader Minh Vu.  The articles come on the heels our blog reporting on the of the DOJ’s further delay of web accessibility regulations until at least 2018. For more on this surge of litigation activity, and what your business can do to mitigate risk, please join us for our webinar tomorrow, December 2, 2015: Is Your Business the Subject of a Title III Lawsuit Yet?”.

By: Eden Anderson

In 2012, California’s Department of Fair Employment and Housing (“DFEH”) filed a lawsuit against the Law School Admissions Council (“LSAC”) alleging that LSAC was discriminating against, and routinely failing to grant appropriate accommodations for, test takers with disabilities on the Law School Admissions Test (“LSAT”).  DFEH alleged that LSAC was violating the ADA and the state’s Unruh Civil Rights Act in several ways, including by considering “mitigating measures” in determining a test taker’s disability status, by routinely denying testing accommodations, and by “flagging” test scores achieved when extended time was provided as a testing accommodation.  Three individuals intervened in the action, as did the Department of Justice (“DOJ”).

After two years of costly litigation, on May 20, 2014, the parties announced an agreement to resolve the matter and filed a proposed Consent Decree with the court.  The Consent Decree includes a permanent injunction specifying a number of affirmative steps that LSAC must take to ensure the LSAT is accessible to persons with disabilities.  In addition, LSAC may no longer “flag” test scores achieved when extended time is provided as an accommodation.

Pursuant to the settlement, LSAC must pay $55,000 in civil penalties to the DOJ, $7,675,000 in damages, and $1,000,000 in attorneys’ fees to the DFEH and the Legal Aid Society, which represented the individual plaintiffs.  The damages award included a large settlement fund to be distributed to persons affected by the alleged discrimination during the statutory period, and allocations of damages to the DFEH, DOJ, and to the three individual plaintiffs.

While it may be tempting to relegate this enforcement action to admissions testing, the case serves to remind businesses of their obligation to provide accommodations to individuals with disabilities so as to ensure equal access to goods, services, and facilities.  Where necessary to ensure equal access, a public accommodation must make reasonable modifications to its policies, practices, and procedures, and must also provide auxiliary aids and services to individuals with disabilities, subject to only to fairly limited defenses.

For perspective on the effect of this case and settlement on complex discrimination litigation, see our sister blog here.

Edited by Minh Vu and Kristina Launey

By Andrew C. Crane

On January 28, 2014, in Martinez v. Columbia Sportswear USA Corp., the United States Court of Appeals for the Ninth Circuit affirmed summary judgment for our three retail defendants, holding for the first time that a 60-inch long dressing room bench constitutes an “equivalent facilitation” under the 1991 ADA Standards, which specify that benches must be 48” long.

The 1991 ADA Standards permits deviations from particular scoping requirements as long as the deviations allow for “substantially equivalent or greater access to” the facility–otherwise known as an “equivalent facilitation.”  Although a number of lower courts had held that a 60-inch bench constitutes an equivalent facilitation, prior to the Martinez decision, the Ninth Circuit had not taken a position.  The issue is now settled in California – where a disproportionate number of access lawsuits are filed.

In another boon for retailers, the Ninth Circuit also held in Martinez that “the clearing of moveable merchandise racks” that blocked store aisles addressed this barrier and rendered the claim moot.  While this is a great result, prevention is the best cure.  Retailers should have policies and procedure in place to keep their keep aisles clear of merchandise and merchandise racks to avoid a claim on this basis in the first place.

The case was handled through summary judgment and subsequent appeal by Jon D. Meer, Myra B. Villamor, and Andrew C. Crane of Seyfarth Shaw LLP.

Edited by Kristina M. Launey and Minh N. Vu

By:  Karen Stephenson

The Architectural and Transportation Barriers Compliance Board (Access Board) has issued proposed accessibility guidelines for the construction and alteration of passenger vessels covered by the Americans with Disabilities Act (ADA).  These guidelines will apply to passenger vessels that provide public transportation services such as ferries and excursion boats, and public accommodation passenger vessels such as dinner or sightseeing cruises, as well as other types of vessels, classified according to passenger capacity.

Among other things, the proposed guidelines address ramps, gangways, boarding lifts, and other components of accessible boarding; onboard accessible routes connecting passenger decks and passenger amenities within decks; accessible means of escape; doorways and coamings; toilet rooms; wheelchair spaces in assembly areas and transportation seating areas; assistive listening systems; general emergency alarms; and guest rooms.  

Two of the most notable provisions in the proposed guidelines are:

•           An elevator or platform lift would be required to connect passenger decks unless one of ten proposed exceptions apply. 

•           A minimum number of guest rooms with mobility features would be required on cruise ships.  Cruise ships with 501 to 1,000 guest rooms would be required to provide a minimum of 3 percent of guest rooms with mobility features.  Cruise ships with more than 1,000 guest rooms would be required to provide a minimum of 30 guest rooms with mobility features for the first 1,000 guest rooms (3 percent), plus 2 guest rooms with mobility features for each additional 100 guest rooms or fraction thereof over 1,000 (2 percent). 

The U.S. Department of Transportation (DOT) and the U.S. Department of Justice (DOJ) are required to issue accessibility standards for the construction and alteration of passenger vessels covered by the ADA that are consistent with the proposed guidelines.  To that end, passenger vessel owners and operators would not be required to comply with the guidelines until they are adopted by DOT and DOJ as accessibility standards.  Moreover, the proposed guidelines would not require existing passenger vessels to be made accessible until they are altered.  The DOJ has sole discretion to determine whether the proposed guidelines require owners and operators of existing passenger vessels to engage in “readily achievable” barrier removal and, if so, to issue regulations consistent with that determination.

Public comments on the proposed guidelines must be submitted to the Access Board by September 23, 2013.  After the public comment period, the Access Board will finalize the guidelines based on the feedback it receives.  The Access Board estimates the total compliance costs of the proposed guidelines (annualized over 20 years) to be more than $60 million.