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.

This morning, October 12, in sunny Pasadena, California, the Ninth Circuit Court of Appeals heard oral argument in the Robles v. Dominos case. The main issue on appeal was whether the district court erred in applying the doctrines of primary jurisdiction and due process as the basis for granting Domino’s motion to dismiss Robles’s claims that Dominos violated Title III of the Americans with Disabilities Act due to an inaccessible website. The parties and judges had a lively 30-minute discussion, after which the Court took the matter under submission.

In addition to the main issue on appeal, the parties, amicus counsel, and the judges discussed whether the ADA applies to websites in the first place, whether the website is a communication or a service, alternatives to an accessible website such as telephone, whether this is an effective communication case or not, and why the prior and current Administrations’ DOJ haven’t issued regulations.

Next week we’ll discuss our impressions and implications of this hearing.  Have a great weekend everyone.

Seyfarth Synopsis: Florida court rules that plaintiff must allege more than being unable to learn about a brick-and-mortar business to state a claim that an allegedly inaccessible website violates the ADA. 

Allegations that an inaccessible website prevents a blind plaintiff from “learning” about a brick-and-mortar location are insufficient to state an ADA claim, according to one recent federal court decision in Florida. In Price v. Everglades College, the plaintiff alleged that he called a private university to learn about the institution, but was directed instead to its website.  While attempting to visit the website, he allegedly discovered that his screen reader software could not access information provided there, and Plaintiff thereafter filed suit under Title III of the ADA.  Defendant filed a motion to dismiss on the grounds that Plaintiff had failed to state an ADA claim.

The Court granted the motion. It held that allegations that the plaintiff could not learn about the university were insufficient, and that instead the plaintiff had to plead facts sufficient to demonstrate that the alleged digital barriers prevented him from enjoying access to the university’s brick-and-mortar facilities.  Plaintiff did not allege, for example, that he could not apply to the university, pay tuition, or use the student portal.

Courts in the 11th Circuit have required that a nexus exist between the website at issue and a physical business location (some courts from other Circuits do not follow this approach).  Price clarifies that a plaintiff cannot satisfy this nexus requirement in this jurisdiction by alleging “the mere existence of some connection or link” between the inaccessible website, on one hand, and a brick-and-mortar location, on the other.

The decision is welcome news for businesses barraged by increasing numbers of website accessibility lawsuits in recent months and a challenging litigation landscape in 2018.  The decision is also noteworthy for institutions of higher learning, which have also been targeted in these cases as reported in the national news media.  Decisions such as Price may be helpful in defending serial ADA website lawsuits filed by individuals with only tenuous connections to the businesses and institutions they sue.

Edited by Minh N. Vu and Kristina M. Launey.

Seyfarth Synopsis:  Plaintiffs secure a second judgment in a federal website accessibility lawsuit while most of the others successfully fended off motions to dismiss. 

2018 has been a bad year for most businesses that have chosen to fight website accessibility cases filed under Title III of the ADA.  Plaintiffs filing in federal court secured their second judgment on the merits in a website accessibility lawsuit, bringing the federal court judgment score to 2-0 in their favor.  Additionally, in twenty-one cases where defendants filed early motions to dismiss, judges have allowed eleven to move forward.  While a forty percent dismissal rate doesn’t seem bad, most of the cases that were dismissed had a common set of unique facts that most defendants don’t have. Below is a rundown of the most noteworthy 2018 cases and trends.

At the end of August, Southern District of Florida Judge Marcia Cooke issued the second judgment on the merits in a federal court website accessibility lawsuit and it was in favor of the plaintiff.  (The first judgment was in the Winn Dixie case after a bench trial.)  Judge Cooke held on summary judgment that retailer GNC’s website violated the ADA because the evidence in the record “suggests that the Website is inaccessible.”  The court cited to the plaintiff’s expert’s testimony and automated test results to reach this conclusion, and excluded the testimony of the GNC’s expert based on his lack of qualifications.  Judge Cooke refused to order a remedy at the summary judgment phase, but said that she found “highly persuasive the number of cases adopting WCAG 2.0 Success Level AA as the appropriate standard to measure accessibility.”

In June, the U.S. Court of Appeals for the Eleventh Circuit held that a prior private settlement of a website accessibility lawsuit in which the defendant had made a commitment to make its website more accessible did not moot a subsequent lawsuit brought by another plaintiff against the same defendant.  The Court reasoned that the website remediation work was not yet complete, and the second plaintiff had sought other relief that was not addressed by the settlement.  The Court also noted that if the defendant failed to comply with its settlement obligations, the second plaintiff would have no recourse since it was not a party to the prior settlement agreement.

In July, the Eleventh Circuit became the second federal appellate court to explicitly address whether the ADA covers websites.  The Court found that the plaintiff had stated an ADA claim against the defendant because the alleged barriers on its website prevented him from accessing the goods and services of its stores.  Specifically, the blind plaintiff alleged that he could not access the store locator function or purchase a gift card online using his screen reader software.  This case does have a silver-lining for defendants with web-only businesses though:  The Eleventh Circuit’s analysis followed prior precedent holding that a public accommodation is a physical place, and plaintiffs seeking to bring ADA claims about inaccessible websites must show that a barrier on the website prevented them from enjoying the goods and services of that physical place.  This puts the Eleventh Circuit mostly in line with the Ninth Circuit which has held that websites with no nexus to a physical place are not covered by the ADA, and is the only other federal appellate court to have ruled on the issue.

In eleven other decisions, district court judges in Ohio, Pennsylvania, New York, Florida and Michigan allowed website accessibility cases to move forward into discovery, rejecting defendants’ requests for early dismissal.  In most of these cases, the judges rejected the arguments that requiring businesses to make their websites accessible to people with disabilities in the absence of legal standards or regulations is a denial of due process, and that courts should not address website accessibility claims until the Department of Justice issues regulations.

In August, Judge Schwab of the Western District of Pennsylvania issued a pointed decision against a retailer because he found the aggressive tactics of its defense lawyer to constitute bad faith.  Specifically, after receiving a demand letter from the plaintiffs who later filed in Pennsylvania, the retailer filed a pre-emptive lawsuit in Utah against the plaintiffs seeking declaratory relief concerning their website-related obligations under the ADA, and asserting state law claims of negligent representation, fraud, fraudulent non-disclosure, and civil conspiracy.  When the plaintiffs then filed their lawsuit in Pennsylvania, the retailer filed a motion to dismiss based on, among other things, the “first filed” rule which gives the court in the later filed action discretion to dismiss the latter case to avoid duplicative litigation and promote judicial comity.  Judge Schwab said he did not have to apply the “first filed” rule where there was evidence of bad faith by defense counsel, and also said he would consider sanctions if defense counsel tried this forum-shopping tactic again in future cases.  Judge Schwab further held that the ADA covers websites and allowed the case to move forward in Pennsylvania.  Meanwhile, the lawsuit in Utah is still pending after the defense attorney in question withdrew from the case and the retailer filed a First Amended Complaint.

The positive decisions for defendants this year have come from judges in Virginia, Florida, and Ohio.   Judges in Virginia and Ohio dismissed six lawsuits against credit unions about their allegedly inaccessible websites because the plaintiff was not eligible to join the defendant credit unions.  These are fairly unique facts that most defendants defending website accessibility suits will not have, however.

There were four pro-defendant rulings in Florida, but one has been reopened because of the Eleventh Circuit’s holding that a prior settlement does not moot a subsequent lawsuit, discussed supra.  In the second Florida case, Judge Gayles of the Southern District of Florida dismissed an ADA lawsuit because the plaintiff had not alleged that barriers on the website impeded his access to a physical place of public accommodation.   In the third case, Judge Presnell of the Middle District of Florida dismissed a case  because the plaintiff had not alleged that he really intended to return to the location and lacked standing.  In the fourth case, Judge Presnell said that “alleging the mere existence of some connection or link between the website and the physical location is not sufficient.”  Judge Presnell distinguished “an inability to use a website to gain information about a physical location” versus “an ability to use a website that impedes access to enjoy a physical location” and said the former is not sufficient to state a claim.  The judge dismissed the case because the plaintiff’s allegations were about obtaining information, not impeding access.

The takeaway from these recent decisions is that — while the defense strategy for every website accessibility lawsuit must be evaluated on its own set of facts — most courts are not willing to dismiss these cases early except in limited circumstances.  Thus, defendants looking to fight must be prepared to go through discovery and at least summary judgment, if not trial.

Edited by Kristina Launey.

Seyfarth Synopsis: Not long after a similar Congressional appeal, Senators sent a letter to Attorney General Sessions urging action to stem the tide of website accessibility lawsuits plaguing businesses.

On Wednesday, September 12, 2018, Senator Chuck Grassley (Iowa) announced that he and Senator Mike Rounds (South Dakota) sent a letter to United States Attorney General Jeff Sessions seeking clarification on whether the Americans with Disabilities Act (ADA) applies to websites. Senators Joni Ernst (Iowa), Thom Tillis (North Carolina), Mike Crapo (Idaho), and John Cornyn (Texas) also joined in the request.

The letter urges the Department of Justice to help resolve uncertainty regarding website accessibility obligations under the ADA because “for the ADA to be effective, it must be clear so that law abiding Americans can faithfully follow the law. Right now it is not clear whether the ADA applies to websites. This leaves businesses and property owners unsure of what standards, if any, govern their online services.”

The letter noted that the DOJ has issued no guidance or regulations to provide clarity, and that conflicting court decisions have created even more confusion, which plaintiffs’ attorneys are “exploiting” for “personal gain”, “sending threatening demand letters and filing hundreds of lawsuits against small and medium-sized businesses across the country – from banks and credit unions to retailers and restaurants”.

The letter references our data, published in our July 17, 2018 blog, that more ADA website accessibility lawsuits were filed in the first half of 2018 than in all of 2017.  It also cites Administrative Office of the U.S. Courts data that show filings of certain ADA cases increasing 521 percent from 2005 to 2017. These statistics show, the Senators write, that this litigious trend will only continue to grow unless the DOJ takes action.

The Senators recognize that businesses would rather spend money serving their disabled customers than “paying money to avoid a shakedown by trial lawyers who do not have the interests of the disabled at heart.”

Noting the DOJ’s December 2017 withdrawal of the website accessibility rulemaking process, in which the DOJ said it was evaluating the need for regulations, the Senators emphasize that lack of clarity only benefits plaintiffs’ lawyers while “clarity in the law will encourage private investment in technology and other measures that will improve conditions for the disabled.”

The Senators close by urging the DOJ to promptly take actions, including filing statements of interest in currently pending litigation, to resolve the current uncertainty, and to brief the Senators’ staff on the DOJ’s intentions on this issue by September 28, 2018.

This letter comes not long after a bi-partisan assembly of 103 Members of Congress wrote a similar letter to the Attorney General in June.  It remains unclear whether this letter will spurn any prompt action from the DOJ.  Given the current Administration’s aversion to increased regulation, it is unlikely that the DOJ will re-start its website accessibility rulemaking any time soon.  And, though the Senators urge the DOJ to take any actions in its power—including filing statements of interest—the DOJ has thus far been unwilling to do so.  Unlike the Obama Administration which weighed in in favor of plaintiffs on the private lawsuits brought against Winn-Dixie, M.I.T. and Harvard University, the Trump Administration declined to file a brief in a website accessibility case last year despite the district court’s invitation. Thus, we continue to wait and see how Attorney General Sessions and the DOJ react to the Senate letter.  In the meantime, we, like the Senators, expect website accessibility lawsuits will continue to be filed at a record pace throughout the United States.

Seyfarth Synopsis: Responding to the surge of website accessibility lawsuits filed under Title III of the ADA, 103 members of Congress from both parties sent a letter to Attorney General Sessions urging action to stem the tide of website accessibility lawsuits.

Just yesterday, a bi-partisan assembly of 103 members of the House of Representatives, led by Congressmen, Ted Budd (R-NC) and J. Luis Correa (D-CA), wrote a letter to Attorney General Jeff Sessions, urging the U.S. Department of Justice (“DOJ”) to “state publicly that private legal action under the ADA with respect to websites is unfair and violates basic due process principles in the absence of clear statutory authority and issuance by the department of a final rule establishing website accessibility standards.” The letter urges the Department to “provide guidance and clarity with regard to website accessibility under the … ADA.”

The congressional support for this letter arises on the heels of a recent surge in website accessibility lawsuits against public accommodations in every sector alleging that websites that are not accessible by people with disabilities violate the ADA. In 2017, a number of courts rejected defendants’ attempts to obtain early dismissals of these cases and supermarket chain, Winn Dixie, lost the first trial in a website accessibility case. These decisions opened the proverbial floodgates and resulted in at least 814 federal lawsuits in 2017 about allegedly inaccessible websites, including a number of putative class actions. The federal lawsuit numbers for 2018 will likely be substantially higher as our tracking shows that there were 349 suits just in January and February of 2018. Despite the monumental increase in litigation and urgent need for clear guidance, the DOJ abandoned its rulemaking on website accessibility standards for public accommodations websites at the end of 2017, seven years after it said it would issue regulations on this issue.

With the number of website accessibility lawsuits on the rise and courts allowing most of these cases to move forward, members of Congress are feeling pressure from the business community to take action against this cottage industry of lawsuits. Indeed, as expressed in the letter:

[B]usinesses of every shape and size throughout the country are being threatened with legal action by private plaintiffs for unsubstantiated violations of the ADA. This problem is expanding at a rapid rate since the Internet allows such actions to be filed from anywhere, and there are no restrictions or limitations on making such complaints. The absence of statutory, regulatory, or other controlling language on this issue only fuels the proliferation of these suits since there are no requirements these complaints have to meet. In fact, in most cases these suits are filed for the purpose of reaching a financial settlement and little or nothing to improve website accessibility.

We support the original spirit and intent of the ADA. However, unresolved questions about the applicability of the ADA to websites as well as the [DOJ’s] abandonment of the effort to write a rule defining website accessibility standards, has created a liability hazard that directly affects businesses in our states and the customers they serve.

Although the members of Congress who endorsed the letter acknowledged Congress’ own responsibility to provide legal clarity through the legislative process, they implored the DOJ to provide “even basic direction on compliance” and to “help resolve this situation as soon as possible.”

It is unclear whether this letter will spurn any prompt action from the DOJ. Given the current Administration’s aversion to increased regulation, it is unlikely that the DOJ will re-start its website accessibility rulemaking any time soon. And unlike the Obama Administration which weighed in on the private lawsuits brought against Winn-Dixie, M.I.T. and Harvard University, the Trump Administration declined to file a brief in a website accessibility case last year despite the district court’s invitation. Thus, we will have to wait and see how Attorney General Sessions and the DOJ react to the congressional letter. In the meantime, we expect website accessibility lawsuits will continue to be filed at a record pace throughout the United States.

Seyfarth Synopsis: The World Wide Web Consortium just published an expanded version of the WCAG to add 17 more requirements to address new technologies and other digital barriers for individuals with disabilities.

On June 5, the private body of web accessibility experts called the World Wide Web Consortium (W3C) published its update to the Web Content Accessibility Guidelines 2.0, aptly named the Web Content Accessibility Guidelines (WCAG) Level 2.1.

The WCAG 2.1 is an extension of the WCAG 2.0 which the W3C issued in 2008. In recent years, WCAG 2.0 AA has become the generally-accepted set of technical requirements for making websites, mobile apps, and other digital content accessible to people with disabilities. WCAG 2.0 AA is the legal standard for the primary websites of airline carriers as well as the websites of federal agencies.

Four years in the making, WCAG 2.1 “fills gaps” in WCAG 2.0 by adding 17 additional success criteria to address additional accessibility barriers. The updates are mainly related to mobile devices (to keep up with significant technological changes since 2008), disabilities that affect vision (such as colorblindness, low vision; and criteria addressing text spacing and non-text color contrast), and disabilities that affect cognitive function (such as attention deficit disorder and age-related cognitive decline; and criteria addressing timeouts and animations from interactions for seizures and physical reactions). The W3C designed 2.1 to apply broadly to different web technologies now and in the future, and to be testable with a combination of automated testing and human evaluation. The W3C provides an informative introduction to WCAG here.

According to the W3C:

“Following these guidelines will make content more accessible to a wider range of people with disabilities, including accommodations for blindness and low vision, deafness and hearing loss, limited movement, speech disabilities, photosensitivity, and combinations of these, and some accommodation for learning disabilities and cognitive limitations; but will not address every user need for people with these disabilities. These guidelines address accessibility of web content on desktops, laptops, tablets, and mobile devices. Following these guidelines will also often make Web content more usable to users in general.”

The WCAG Level 2.0 AA has been widely considered the de facto standard for website accessibility in the United States, even though the Department of Justice has not adopted it into its Americans with Disabilities Act (ADA) regulations applicable to public accommodations.  The W3C’s publication of WCAG 2.1 does not change that equation; it merely adds additional elements for companies to address in making their websites accessible. 2.1 builds on 2.0, and will still follow the A, AA, and AAA conformance levels. The few court decisions that have issued an order requiring companies to conform their websites to a standard for accessibility have used WCAG 2.0 AA.  Given the rather incremental changes in 2.1, we expect WCAG 2.1 AA to eventually be the new “de facto” standard, but do not expect courts to require websites that already conform to 2.0 AA to meet all 2.1 AA standards overnight.

Further out on the horizon is the W3C’s Silver initiative, which we hear will reimagine the accessibility guidelines completely.  However, there’s no need to worry about that yet.

On May 21, a California state court in Los Angeles held on summary judgment that the Whisper Lounge restaurant violated California’s Unruh Act by having a website that could not be used by a blind person with a screen reader, and ordered the restaurant to make its website comply with the Web Content Accessibility Guidelines (WCAG) Level 2.0 AA.  The court also ordered the restaurant to pay $4,000 statutory damages.  This is the second decision by a California state court on the merits of a website accessibility case.  The first decision concerned the Bags n’ Baggage website.  In 2017, a Florida federal judge conducted the first trial in a website accessibility case against Winn Dixie and held that the grocer’s website violated the ADA because it was not accessible to the blind plaintiff, and ordered Winn Dixie to make its website conform to WCAG 2.0 AA.

The court in the Whisper Lounge case rejected – as most courts on similar facts have – the restaurant’s argument that the website is not a place of public accommodation under the Americans with Disabilities Act (ADA).  The court found that the restaurant’s website “falls within the category of ‘services….privileges, advantages, or accommodations of’ a restaurant, which is a place of public accommodation under the ADA.”

Next, the court noted that the restaurant presented no evidence in opposition to the plaintiff’s showing that the website was inaccessible on February 20, 2017 – the date the plaintiff said she attempted to use the website.  The restaurant only submitted a declaration stating that the declarant was generally able to use the screen reader NVDA on the website from 2014 through 2017, without addressing the specific barriers the plaintiff said prevented her from using the website.

The restaurant also argued that it provided access to the information on its website by having a telephone number and email.  The Court rejected this argument as well, finding that the provision of a phone number and email does not provide “equal enjoyment of the website”, as the ADA requires, but instead imposes a burden on the visually impaired to wait for a response via email or call during business hours rather than have immediate access like sighted customers.  Thus, the court reasoned, the email and telephone number do not provide effective communication “in a timely manner” nor protect the independence of the visually impaired.  The court did not say whether a toll-free number that is staffed 24-hour a day would have yielded a different outcome.

Finally, the Court rejected the restaurant’s argument that the WCAG 2.0 AA is not yet a legal requirement, finding that the Complaint did not seek to hold the restaurant liable for violating the WCAG 2.0 AA.  Rather, the Complaint alleged that the website discriminated against the plaintiff by being inaccessible and sought an injunction to require the restaurant to make its website accessible to the blind.  The Court also rejected the restaurant’s arguments that requiring it to have an accessible website violated due process and the court should wait until the Department of Justice issues regulations addressing website accessibility.  The Court noted that the fact that the restaurant was redesigning its website did not render the case moot because the restaurant did not establish that “subsequent events make it absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.”

The decision does have a silver lining for the defense bar.  The Court noted that the plaintiff was entitled to only $4,000 in damages under the Unruh Act, which provides for a minimum of $4,000 in statutory damages for each incident of discrimination.  The court held that plaintiff’s repeated visits to the same inaccessible website did not establish separate offenses for purposes of calculating damages.

Seyfarth Synopsis: Plaintiffs who pursued numerous web accessibility actions under Title III of the ADA are now using website accessibility to test the limits of a different area of law – employment law – California’s Fair Employment and Housing Act.

Over the past few years, we have frequently written about the proliferation of demand letters and lawsuits alleging that a business denied a usually blind or vision-impaired individual access to its goods and services because the business’ website was not accessible, in violation of Title III of the Americans with Disabilities Act (ADA) and state laws. One firm that pursued many web accessibility actions under Title III and California’s Unruh Act (including a success in the Bags N’ Baggage case decided in plaintiff’s favor by a California state court) is now going after employers.  In recent demand letters and lawsuits, they are alleging that employment websites are not accessible to blind job seekers, in violation of California’s Fair Employment and Housing Act (FEHA), California’s corollary to Title I of the ADA.

While this blog, and Seyfarth’s Disability Access Team, are focused on disability access issues affecting places of public accommodation that provide goods and services to the general public (not employees, though many of our team members are employment specialists as well), this emerging litigation trend is worthy of our discussion here because it is an extension of the tsunami of website accessibility demand letters and lawsuits pursued under Title III, involving the same technological and other issues, as well as the same plaintiffs and plaintiffs’ attorneys.  But there is one big difference – the legal standard that applies to employment disability discrimination claims is different from the standard applied to disability discrimination claims brought against public accommodations. Title III is unique from other anti-discrimination statutes in that it requires (with exceptions) businesses take affirmative, proactive measures to ensure individuals with disabilities are afforded equal access to their goods and services. FEHA prohibits discrimination against individuals in employment.  It requires employers, upon notice that an employee or applicant for employment requires a reasonable accommodation to perform the essential functions of his or her job, or to apply for employment, to engage in the interactive process to devise such a reasonable accommodation.  The employer does not need to provide the employee or applicant’s requested accommodation as long as the accommodation provided is effective.

In the cases filed thus far, such as those by Dominic Martin, Roy Rios, and Abelardo Martinez in Orange County and San Diego Superior Courts in California last week, the plaintiffs argue that they are blind residents of California who want to enter the workforce, attempted to apply using the defendant’s online application, but could not because it was inaccessible to individuals with disabilities. They claim the WAVE tool confirmed the website’s inaccessibility (an automated tool like WAVE, while useful, cannot be relied upon to determine whether a website is accessible or not, let alone useable by an individual with a disability).  In these lawsuits, the plaintiffs claim that they twice asked the defendant to remove the barriers and were ignored.  Plaintiffs also claim that removing the barriers would take only a few hours (which anyone who has worked in the website accessibility space knows is rarely if ever possible).  Plaintiffs allege these requests that defendant remove the barriers were requests for reasonable accommodation, though they were sent by the plaintiff’s attorney and not the actual individual seeking employment; thus possibly perceived as litigation demand letters rather than legitimate requests for reasonable accommodation.  The plaintiffs allege that the companies did not respond and that they have a policy to deny disabled individuals equal employment by refusing to remove the barriers on the website.  Each plaintiff alleges only a single legal claim for violation of FEHA, even expressly noting he is not asserting claims for violation of any federal law or regulation.

Will these claims find any success in the courts under the applicable law?  We will be watching.  In the meantime, businesses that have been focusing efforts on consumer-facing websites to mitigate risk under Title III should be aware of this new trend (if you have not already received such a letter).

Edited by: Minh N. Vu.

By Kristina M. Launey, Minh N. Vu, & Susan Ryan

Seyfarth Synopsis:  The number of federal ADA Title III lawsuits continue to surge in 2017, fueled largely by website accessibility claims; while legislative reform efforts continue to mitigate the physical accessibility portion of those lawsuit numbers.

The results of our 2017 ADA Title III lawsuit count are in, putting a fifth consecutive year (since we began tracking in 2013) of growth in the number of ADA Title III lawsuits filed in federal court.  In 2017, 7,663 ADA Title III lawsuits were filed in federal court — 1,062 more than in 2016. While a bit slower growth than in 2016 (which saw an 1,812, or 37% year over year increase) over 2015, this 16% increase is almost double the 2014-2015 8% increase, demonstrating a continued upward trend in the number of filings.

ADA Title III Lawsuits in Federal Court: 2013-2017: 2013 (2722); 2014 (4436, 63% increase over 2013); 2015 (4789, 8% increase over 2014); 2016 (6601, 37% increase over 2015); 2017 (7663, 16% increase over 2016)

California and Florida continue to be hotbeds of litigation, with 2,751 and 1,488 lawsuits (up from 2,468 in CA in 2016 and down from 1,663 in FL) respectively. New York is the big story, having almost doubled its 543 lawsuits filed in 2016 to 1023 in 2017.  Utah moved up in the ranks, with a more than doubling of federal lawsuit filings, from 124 to 360. Nevada, not in the top 10 states for filings in 2016, is relatively close behind with 276 lawsuits, while the 2016 holder of the fifth spot, Texas, dropped to number nine, cutting its 267 2016 number down by more than half, to 129.  Arizona, with 335 lawsuit filings in 2016, dropped out of the top 10 in 2017.  Colorado’s numbers also more than doubled, from 92 in 2016 to 215 in 2017; and New Jersey newly entered the top 10 this year with 108 lawsuits.  Georgia, held its sixth spot on the chart, also holding fairly steady at 187 lawsuits, a slight decrease from the 193 filed in 2016.  Finally, Pennsylvania showed relatively modest growth, increasing by 80 lawsuits over its 102 2016 count.  Here are the numbers for the top ten states:

  1. CA: 2751
  2. FL: 1488
  3. NY: 1023
  4. UT: 360
  5. NV: 276
  6. CO: 215
  7. GA: 187
  8. PA: 182
  9. TX: 129
  10. NJ: 108
Top 10 States for ADA Title III Federal Lawsuits in 2016: CA (2751); FL (1488); NY (1023); UT (360); NV (276); CO (215); GA (187); PA (182); TX (129); NJ (108)

Similar to last year, while physical accessibility lawsuits remain common, these numbers continue to be driven largely by the vast numbers of website accessibility lawsuit filings, many by new attorneys in familiar (CA, FL, NY) jurisdictions.  The extreme increase in New York is likely due at least in part to 2017 federal court decisions that have likely embolded plaintiffs’ attorneys in that jurisdiction.  Note that these numbers of course do not include the many demand letters plaintiffs sent to businesses asserting website accessibility claims, do not include lawsuits filed only in state courts, and are conservative estimates, as our research methods are sound in finding at least the numbers we report here, and it is entirely likely we have not captured every ADA Title III filed in federal court.

Meanwhile, Congress has continued legislative efforts to provide business some relief from “drive-by” physical accessibility lawsuits.  The ADA Education and Reform Act of 2017, introduced January 24, 2017 as H.R. 620 by Texas Representative Ted Poe, would, among other things, codify a “notice and cure period” that would prohibit a plaintiff from filing a lawsuit based on failure to remove an architectural barrier unless the plaintiff has first given the businesses notice of the alleged violations and an opportunity to provide a plan to address them.  On October 30, 2017, the House Committee on the Judiciary reported the bill, and it is scheduled for referral to the House Judiciary Subcommittee on Constitution and Civil Justice on February 8, 2017.  Some states also continued their own legislative reform efforts, such as Florida HB 727, effective July 1, 2017; and in Nevada the State Attorney General intervened in a federal ADA Title III lawsuit by a serial plaintiff who had filed at least 275 lawsuits seven months.

We will, as always, continue to keep tracking lawsuit filings, legislative efforts, and other breaking developments and keep you up to date — as the Title III trend shows no signs of cooling down in 2018.