In a decision that will be celebrated by employers in the Seventh Circuit struggling with employee requests for post-Family Medical Leave Act (“FMLA”) leave as an accommodation under the American with Disabilities Act (“ADA”), the Seventh Circuit in Severson v. Heartland Woodcraft, Inc., 2017 U.S. App. LEXIS 18197 (7th Cir. Sept. 20, 2017), recently held that an employer did not violate the ADA by firing an employee instead of extending his leave after he exhausted all leave under the FMLA.  This holding – finding that extended long-term leave is not a reasonable accommodation under the ADA – is not only contrary to the Equal Employment Opportunity Commission (“EEOC”)’s position regarding extended leave as a reasonable accommodation, but also conflicts with several other federal Circuit courts that had previously ruled on the same issue (holding that extended/post-FMLA leave can be a reasonable accommodation under the ADA).

In Severson, the plaintiff was diagnosed with back myelopathy, which negatively affected his back, neck, and spinal cord.  While plaintiff generally could perform his duties without incident, he did experience several “flare ups” which made it difficult for him to walk, bend, lift, stand, and work.  As a result of his disability, plaintiff injured his back and went on FMLA leave, with several continuations of leave, totaling 12 weeks, approved by defendant.  After exhausting all FMLA leave, plaintiff informed defendant that he would undergo disc compression surgery and would require at least an additional two months of leave for recovery time.  Instead of extending plaintiff’s leave, defendant informed plaintiff that his employment would terminate on the date that his FMLA leave expired.

In reaching its holding that leave for an extended period of time is not a reasonable accommodation under the ADA, the Seventh Circuit reaffirmed its analysis in an earlier case – Byrne v. Avon Prods., Inc. 328 F.3d 379 (7th Cir. 2003) – that a long-term leave of absence could not be a reasonable accommodation under the ADA.  Although EEOC guidance “Employer-Provided Leave and the Americans with Disabilities Act” states that employers should consider long-term leaves of absence as reasonable accommodations, the Seventh Circuit disagreed, stating that such an interpretation was untenable and would transform the ADA into “a medical-leave statute – in effect, an open-ended extension of the FMLA.”  (A previous article on the guidance can be found here.)  Moreover, the Court in Severson stated that long-term medical leave does not enable an individual to perform the essential functions of the job and, therefore, cannot be considered a reasonable accommodation because at the time it is required the employee is not a qualified individual with a disability.  Finally, the Court noted that the ADA only requires “reasonable accommodations” and not “effective accommodations”, finding the a request for extended leave is only the latter.  Thus, the Seventh Circuit rejected plaintiff’s argument (which had been joined by the EEOC) that defendant should have granted him a reasonable accommodation of additional leave.

This case represents a stark deviation from both the EEOC’s guidance and the rulings of multiple other Circuit courts throughout the country setting forth that employers must evaluate requests for leave (including those extending beyond FMLA leave) under the ADA on a case-by-case basis to analyze whether granting the leave would be an undue hardship, so long as the request is not for indefinite leave. While this may change the way employers in the Seventh Circuit approach their analysis of leave as a reasonable accommodation under the ADA, employers should be careful not to over-extend this ruling:

  • First, the Severson holding itself does not totally preclude any post-FMLA as an accommodation under the ADA. Indeed, the holding leaves open the possibility that leave spanning a few days or even a couple of weeks could be a reasonable accommodation.
  • Second, some state and local laws governing disability discrimination and accommodation may have different language and standards that could result in a contrary decision. (And now, more than ever, state and local laws that are more restrictive than federal law are being passed on a regular basis.)
  • Third, employers outside the Seventh Circuit should remain diligent in individually analyzing requests for extended leave as an ADA accommodation, particularly in jurisdictions that follow the EEOC’s guidance or where Circuits have expressly ruled contrary to Severson.

No matter what jurisdiction an employer operates in, it is always important for employers to communicate with employees regarding expiration of leave and expected return dates while the employee remains out on leave.

While the ADA finished celebrating its 27th anniversary at the end of July, for plaintiffs looking to bring website accessibility complaints in New York the party is still ongoing.  Following on the heels of last month’s decision of the U.S. District Court for the Southern District of New York in Five Guys, Judge Jack B. Weinstein of the U.S. District Court for the Eastern District of New York, in Andrews vs. Blick Art Materials, LLC, recently denied a motion to dismiss a website accessibility action, holding that Title III of the ADA (“Title III”), the NYS Human Rights Law and the New York City Human Rights Law all apply to websites – not only those with a nexus to brick and mortar places of public accommodation but also to cyber-only websites offering goods and services for sale to the public.

The Court’s decision in Blick was comprehensive – spanning nearly 40 pages – addressing the major theories and defenses website accessibility decisions have been considering with increasing frequency for more than a decade, through lenses that were extremely sympathetic to plaintiff’s claims.  Relying upon the Second Circuit’s decision in Pallozzi v. Allstate., 198 F.3d (2d Cir. 1999), recognizing the need to apply Title III broadly to match the expansive remedial and protective purposes of the ADA (albeit in the context of insurance policies), along with other district court decisions within the Second Circuit expressly applying that same theory to website accessibility (NFB v. Scribd and Five Guys), Judge Weinstein rejected the decisions of other circuits and district courts concluding that Title III only applies to a website when there is a connection to a physical place of public accommodation.  Adopting what it deemed to be a “sensible approach to the ADA”, the Court held that, “Blick is prohibited from discriminating against the blind by failing to take the steps necessary to ensure that the blind have ‘full and equal enjoyment’ of the goods, services, privileges, advantages, facilities, or accommodations of its website – provided that taking such steps would not impose an undue burden on Blick or fundamentally alter the website.”  This conclusion was deemed to embody the broad remedial mandate of the ADA, protecting individuals with disabilities from discrimination and allowing them to fully and equally participate in society – one that in 2017 places significant value on the ability to utilize websites – with accommodations needing to evolve alongside technology.  (The Court postponed a decision on whether such an action is appropriate for a class action.)

In reaching its conclusion, the Blick decision was also the latest to reject defenses based upon primary jurisdiction and due process (joining other decisions such as Hobby Lobby and Harvard/MIT.  First, the Court rejected the primary jurisdiction argument because:  (i) the question at issue was legal in nature and within traditional judicial competence (e.g., courts regularly decide similar issues under Title III involving “full and equal enjoyment” and “effective communication”/“auxiliary aids and services”); and (ii) plaintiff is entitled to a prompt adjudication of his claims (and the U.S. Department of Justice’s failure to promulgate regulations seven years after suggesting it would do so cannot be a reason to delay that process).  To alleviate defendant’s concern that the Court might lack the technical background necessary to rule on the issue, the Court ordered a “Science Day”, during which experts will testify and provide demonstrations about website design and assistive technology.  Second, the Court rejected any claims that plaintiff’s claim would violate concepts of due process, finding that the ADA, which requires a contextual assessment of specific facts against a “gray” backdrop of various defined terms (e.g., “reasonable modification”, “full and equal enjoyment”, “auxiliary aides and services”, “fundamental alteration”, and “undue burden”) is merely providing necessary flexibility.  (Moreover, any challenges by defendant regarding whether specific modifications or remedies might be improper was not ripe at the current stage of the litigation.)

While it is still possible the other cases with different facts decided in the EDNY and SDNY may not follow Blick and Five Guys, for now businesses in New York City must take these decisions seriously.  With DOJ no longer expected to issue clarifying regulations in the near future (if at all) and in light of the recent pro-plaintiff decisions in this case, Five Guys, Winn-Dixie, and Hobby Lobby, the plaintiffs’ bar is further escalating its efforts to blanket most major industries with website accessibility demand letters and lawsuits.  Not only are new players emerging every day, but the well-known plaintiff’s attorneys in this area – emboldened by these recent decisions – are becoming increasingly aggressive.  The Blick decision underscores what we’ve been cautioning clients about for some time – businesses with websites that are either connected to a brick and mortar place of public accommodation or use a website to directly sell goods and services to the public who are looking to avoid website accessibility lawsuits should promptly take the steps necessary to make their websites accessible that we have addressed in our previously website accessibility blogs.

Today marks the 27th Anniversary of the Americans with Disabilities Act (ADA).  Unfortunately for businesses, two recent developments in the context of website accessibility suggest that there is no reason to celebrate and every reason to believe the ever-increasing wave of demand letters and lawsuits in this area will continue unabated.

First, in Lucia Marett v. Five Guys Enterprises LLC (Case No. 1:17-cv-00788-KBF), the U.S. District Court for the Southern District of New York has finally issued a decision directly speaking to the applicability of Title III of the ADA (Title III) to websites, denying Five Guys’ motion to dismiss, and holding that Title III does indeed apply to websites.  Facing a class action lawsuit brought by serial plaintiff, Lucia Marett, Five Guys sought to dismiss the claim that its website (which, among other things, allows customers to order food online for delivery or pick up at its brick and mortar stores) violated Title III and related state/local statutes because it is inaccessible to the blind, on the grounds that Title III does not apply to websites and, even if it did, the case was moot because Five Guys was in the process of updating its website to provide accessibility.  The Court rejected Five Guys’ arguments.  Citing both the text and the broad and sweeping purpose of the ADA, the Court held that Title III applies to websites – either as its own place of public accommodation or as a result of its close relationship as a service of Five Guys’ restaurants (which the court noted are indisputably public accommodations under Title III).  Further, the court was unmoved by Five Guys’ ongoing efforts to make its website accessible because they had yet to successfully do so and there was no absolutely clear assurance that further accessibility issues would be avoided.  The fact that the Court leaves open the possibility that a website conducting business only in cyber-space might have to comply with Title III is troubling as, to date, that position had remained an outlier, being only adopted by a couple of district courts.

Second, the Trump Administration has finally released its first Unified Regulatory Agenda and – in accordance with its goal of reducing the number of federal regulations – the private sector website accessibility regulations, most recently earmarked for 2018, have been marked as “Inactive.”  The potential for website accessibility regulations has long been one of the factors mitigating against website accessibility lawsuits.  With no reasonable expectation for such regulations in the near future, the courts will continue to serve as the primary forum for the development of this body of law.

These developments, taken in tandem with the recent post-trial verdict for Plaintiff’s in the Winn-Dixie litigation and the recent Hobby Lobby decision further devaluing various jurisdictional and due process defenses may create a perfect storm further emboldening an already aggressive plaintiff’s bar to continue to push website accessibility demands and lawsuits.  Indeed, in recent weeks we have not only seen another surge in the number of such actions being filed, but regular players in this space are using these decisions to push for greater settlement values, and new “copycat” players are starting to enter the fray.

Given the current climate, the best way for companies to try and avoid these litigations remains promptly taking legitimate and comprehensive steps to make their websites accessible.  This is particularly true for companies whose websites are tied to brick and mortar places of public accommodation but, now, may in some contexts and jurisdictions apply equally to cyber-only businesses.  Companies interested in taking such steps should conduct website accessibility audits (both user-based and code-based; and not simply running an automated scanning tool); add website accessibility obligations into vendor agreements; adopt and implement a website accessibility policy; and conduct training for necessary parties.  To the extent such efforts do not prompt plaintiffs to target other websites, they will certainly improve companies’ leverage for settlement negotiations and/or strategies for defending against litigations.

In the latest of an increasing number of recent website accessibility decisions, in Gorecki v. Hobby Lobby Stores, Inc. (Case No.: 2:17-cv-01131-JFW-SK), the U.S. District Court for the Central District of California denied Hobby Lobby’s motion to dismiss a website accessibility lawsuit on due process and primary jurisdiction grounds.  In doing so, the Hobby Lobby decision further calls into question the precedential value of the Central District of California’s recent outlier holding in Robles v. Dominos Pizza LLC (Case No.: 2:16-cv-06599-SJO-FFM) which provided businesses with hope that the tide of recent decisions might turn in their favor.

The Hobby Lobby website provides a variety of services which are closely related to Hobby Lobby’s brick and mortar stores, including:  purchasing products online; searching for store locations; viewing special price offers; and purchasing gift cards.  Plaintiff alleged that Hobby lobby violated Title III of the ADA, as well as California’s Unruh Act, by not providing full and equal access to its website for individuals with disabilities (as the website was inaccessible to individuals who are blind and make use of a screen-reading program).  In the complaint, Plaintiff sought injunctive relief requiring Hobby Lobby to ensure that individuals with disabilities have as full and equal enjoyment of the website as individuals without disabilities.  However, importantly, Plaintiff did not seek the imposition of a specific technical rule or standard for Hobby Lobby to provide full and equal enjoyment.

Hobby Lobby made a motion to dismiss Plaintiff’s complaint on two grounds – due process and the primary jurisdiction doctrine.  In short, Hobby Lobby argued that because the U.S. Department of Justice had not promulgated final website accessibility regulations under Title III setting forth specific accessibility standards, it would violate due process to provide Plaintiff with injunctive relief imposing website accessibility obligations as Hobby Lobby lacked sufficient notice of its obligation.  Additionally, Hobby Lobby argued the action should be dismissed under the primary jurisdiction doctrine which, if applied, would hold that the court should not rule on website accessibility issues until DOJ – the expert regulator in this area – first speaks on the issue by promulgating and adopting regulations.  While these arguments have generally failed in the context of website accessibility, their potential viability was recently revisited following the Dominos decision which dismissed a website accessibility action based on these very grounds (noting that businesses might be able to provide access to a website’s services via alternative means than making the website itself accessible – e.g., a 24/7 toll-free, sufficiently staffed, hotline).

Here, in denying the motion to dismiss, the court rejected each of Hobby Lobby’s arguments.  First, the court took great exception with the contention that Hobby Lobby did not have sufficient notice of the need to make its website accessible.  The court stressed that DOJ had articulated its position that Title III requires website accessibility for over 20 years – including in speeches, congressional hearings, amicus briefs and statements of interest, rulemaking efforts, and enforcement actions and related settlement agreements.  Moreover, at a broader level, the court noted that from its inception, Title III has always required “full and equal enjoyment” and the provision of “auxiliary aids and services” for “effective communication” and further explained that these overarching civil rights concepts could (and should) easily apply to websites and screen-readers.  Second, following up on this reasoning and underscoring other comparable times when courts have interpreted similar issues under Title III’s civil rights provisions, the court disagreed that it would be appropriate to apply the primary jurisdiction doctrine.  The court saw no reason the issue of website accessibility could not be adjudicated in the same way countless other Title III matters had been handled in the past.  Moreover, the court expressed concern that – given that seven years has already passed since DOJ first expressed an intent to promulgate website accessibility regulations under Title III with little progress – invoking the doctrine could needlessly delay potentially meritorious claims.

The Court also rejected Hobby Lobby’s efforts to rely upon the Dominos decision – which was reached in the very same court – to support its arguments.  In Dominos – contrary to the law that had come before it in website accessibility matters decided in other jurisdictions – citing due process concerns, the court did invoke the primary jurisdiction doctrine to dismiss a website accessibility claim.  However, the court in Hobby Lobby, readily distinguished the Dominos decision in concluding it did not dictate the same ruling in this case.  Specifically, in Dominos the plaintiff sought injunctive relief that required Dominos comply with the WCAG 2.0, a specific standard that has not been officially adopted by DOJ in Title III regulations (though it has been officially adopted in other government regulations and is readily used by DOJ in its settlement agreements).  In Hobby Lobby plaintiff merely sought “full and equal” enjoyment of the website’s services without specifying how that would have to be accomplished – a pivotal distinction.

The Hobby Lobby decision underscores the likelihood that the Dominos decision remains, for now, an outlier.  Taken in tandem with last week’s post-trial verdict in Gil v. Winn-Dixie Stores, Inc., this most recent decision should be viewed as another reason why businesses should seriously consider prophylactic efforts to make their websites (at least when linked to places of public accommodation) accessible.  (For now, the most commonly accepted path to accessibility remains compliance with WCAG 2.0 at Levels A and AA).

After years of ongoing and frequent developments on the website accessibility front, we now finally have – what is generally believed to be – the very first post-trial ADA verdict regarding website accessibility.  In deciding Juan Carlos Gil vs. Winn-Dixie Stores, Inc. (Civil Action No. 16-23020-Civ-Scola) – a matter in which Winn-Dixie first made an unsuccessful motion to dismiss the case (prompting the U.S. Department of Justice (“DOJ”) to file a Statement of Interest) – U.S. District Judge Robert N. Scola, Jr. of the Southern District of Florida issued a Verdict and Order ruling in favor of serial Plaintiff, Juan Carlos Gil, holding that Winn-Dixie violated Title III of the ADA (“Title III”) by not providing an accessible public website and, thus, not providing individuals with disabilities with “full and equal enjoyment.”

Judge Scola based his decision on the fact that Winn-Dixie’s website, “is heavily integrated with Winn-Dixie’s physical store locations” that are clearly places of public accommodation covered by Title III and, “operates as a gateway to the physical store locations” (e.g., by providing coupons and a store locator and allowing customers to refill prescriptions).  This line of reasoning follows the “nexus theory” body of law that has been developing over the past several years.  Based upon this conclusion, Winn-Dixie was ordered to: (i) bring its website into conformance with the WCAG 2.0 Guidelines; (ii) develop and adopt a website accessibility policy (publishing aspects of it upon the website); (iii) provide website accessibility training; (iv) conduct regular ongoing compliance audits; and (v) pay Plaintiff’s reasonable attorney’s fees and costs.  The parties were left to negotiate the exact timeframe for each requirement.

While this post-trial verdict does not have precedential value in other matters, it does raise a variety of points that businesses should consider as they continue to confront the still-increasing number of website accessibility demand letters and lawsuits:

  • The Court applied the nexus theory to the Winn-Dixie website even though customers could not make purchases directly through the website.  The Court deemed the ability to obtain coupons and link them to customer discount cards (for use in stores), refill prescriptions (for in-store pick up), and the presence of the store locator sufficient services for a nexus to exist between the brick and mortar locations and the website;
  • By applying the nexus theory, the Court was able to avoid having to rule on whether a website is a public accommodation in and of itself (a point of law courts remain split on);
  • The Court adopted the WCAG 2.0 Guidelines as the standard of website accessibility, thus following DOJ, the recently refreshed standards for Section 508 of the Rehabilitation Act, the Air Carrier Access Act, and countless private settlements between businesses and advocacy groups or private plaintiffs reached over the past 5 years;
  • The Court gave heavy weight to the testimony of an “accessibility consultant” who had conducted an audit of the Winn-Dixie site and testified very favorably for the Plaintiff that he did not believe that remediation process would be terribly difficult;
  • Relying upon the accessibility consultant’s representations, the Court went far beyond the scope of most existing website accessibility agreements by holding Winn-Dixie must require that any third-parties – including tech-giants such as Google – who are responsible for aspects of the website to also conform to the WCAG 2.0 while operating as part of the Winn-Dixie website;
  • The Court was unmoved by Winn-Dixie’s estimates that the remediation work to bring the website into conformance with WCAG 2.0 could cost upwards of two hundred and fifty thousand dollars ($250,000), and did not believe that such an amount would constitute an undue burden, noting that in the preceding 2 years the company had spent a total of approximately nine million dollars ($9,000,000) to launch a new website and then modify that new website to roll out a new customer rewards system; and, finally, in the one somewhat helpful piece for businesses;
  • The Court noted that in making a website accessible, a business need not ensure that it is accessible on all browsers and when read by all screen reader programs, provided that it is accessible on “main browsers” (e.g., Google Chrome, Internet Explorer, and Apple Safari) when read by “main screen reader programs” (e.g., JAWS and NVDA).

Given the Trump Administration’s edict against the promulgation of new regulations (without first eliminating multiple existing similar regulations) it is increasingly unlikely that DOJ will issue private sector website accessibility regulations in the near future.  Therefore, businesses can expect advocacy groups and private (often serial) plaintiffs to continue to threaten and/or bring website accessibility actions under both the ADA and corresponding state laws.  With that in mind, this verdict serves as a strong reminder of the risks of litigating a website accessibility matter, at least in situations where there is a reasonably clear nexus between a brick and mortar place of public accommodation and the website.

You Snooze, You Don’t Necessarily LoseDo retail employers really need to tolerate employees who sleep on the job??  The plaintiff in Beaton v. Metropolitan Transportation Authority New York City Transit, (S.D.N.Y. June 15, 2016), was an overnight Station Agent at a New York subway station who was terminated after he was found sleeping at his work station.  While he admitted that it appeared that he was sleeping, plaintiff denied that he was actually sleeping.  Rather, he informed his supervisor that he was drowsy due to the high dosage of anti-psychotic prescription medication that he took after he experienced severe schizophrenia symptoms at work that night.  Despite informing his employer of his disability, and presenting medical corroboration that his medication caused drowsiness, plaintiff’s employment was terminated.  Plaintiff initiated his lawsuit asserting that the termination of his employment was an act of disability discrimination in violation of the ADA and New York State Law.

Upon receipt of plaintiff’s Complaint, the defendant employer moved to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that plaintiff could not establish a prima facie case of disability discrimination because sleeping on the job prevented him from performing the essential functions of his job and rendered him not qualified for the position.  The employer also argued that plaintiff could not raise an inference that his employment was terminated because of his disability given the fact that it appeared to the employer that he was sleeping, even if he was not.   Surprisingly, the Court sided with the slumbering plaintiff, denying defendant’s motion and refusing to dismiss plaintiff’s Complaint.  The Court considered the fact that plaintiff was a long-term employee who worked for the defendant for years without incident in concluding that he was qualified for the position.  The Court also found that it was plausible that plaintiff’s employment was terminated because of his disability in light of the fact that plaintiff’s employment was terminated even though he informed his supervisor of his mental ailment and that drowsiness was a side-effect of his medication.

The result is largely attributable to the early stage of the proceeding.  The Court forecast that the defendant “may very well have evidence of non-discriminatory reasons for the termination … but such evidentiary disputes are not appropriate at this stage of the case.”  Thus, the Court’s decision hinged, as is expressly stated in the Opinion, on “the minimal threshold” that plaintiff faced in response to a Rule 12(b)(6) motion.  However, the Court’s refusal to dismiss the Complaint pursuant to Rule 12(b)(6) evidences a desire by the Court to see some proof that the employer engaged in good faith in the interactive process before imposing discipline, especially where the employee presents appropriate medical information to support his claim of disability.   This decision does not mean that retail employers must tolerate employees who sleep on the job.  Indeed, Courts have repeatedly upheld discharges for sleeping on the job, and retail employers remain entitled to enforce their discipline process against employees found sleeping on the clock.  However, retail employers are well-advised to not summarily dismiss dozing employees who offer some medical explanation for their mid-shift hibernation, but to consider the explanation offered by the employee before taking action.

Service DogDespite the noble purpose for Title III of the ADA, businesses have long been frustrated by the ease in which Title III and its state and local equivalents can be exploited by serial plaintiffs/attorneys looking to make money instead of enforce the law.  Similar feelings arise from the inability of businesses to combat fraud tied to accessibility.   In an effort to address these concerns, recent developments at the state law level are ushering in a welcome change in the way certain accessibility issues are addressed.  California is strengthening its existing limitations on the ability of a plaintiff to file a “drive by” litigation alleging inaccessible structural elements under state law.  Colorado may soon adopt criminal penalties for individuals found to have fraudulently misrepresented an animal as a service dog.  While both of these measures are relatively modest in scope, they reflect a positive trend in legislation to try and limit accessibility litigations to legitimate claims.  Businesses can only hope these initiatives (and ones with even greater scope) gain traction in other states across the country and, ultimately, at the federal level.

California’s New Restrictions on “Drive By” Technical Construction-Related Litigations

Earlier this month, California Governor Jerry Brown signed SB 269, the latest effort by the state to enhance its existing measures curtailing the number of lawsuits brought under the Title III and equivalent state laws (e.g., Unruh Act, Disabled Persons Act) that are currently flooding the dockets of California courts.  While individuals bringing private actions under Title III cannot seek damages, California state law permits a plaintiff to seek actual damages and minimum statutory damages (generally $4,000, with a possibility of a reduction to $2,000 for small businesses in certain circumstances) for each instance of discrimination relating to a construction-related accessibility issue (e.g., non-compliance with California’s Construction-Related Accessibility Standards Compliance Act or the federal 2010 ADA Standards).  Under both federal and state law plaintiffs can recover attorney’s fees and costs.  The unfortunate by-product of this dynamic has been the development of a “cottage industry” whereby an individual with a disability partners with a plaintiff’s firm to repeatedly file multiple (in some instances hundreds of) litigations alleging highly technical instances of structural inaccessibility with the hopes of convincing the defendant (often smaller businesses unaware of these laws or large companies with hundreds of national locations who are unaware of such minor technical issues at a specific location) to quickly settle the matters for a small payment to plaintiff for vaguely defined “damages” plus fees/costs to plaintiff’s counsel.

The new provisions set forth in SB 269 seek to discourage frivolous actions brought predominately to collect fees by creating a rebuttable presumption that for any claims filed after May 10, 2016, a plaintiff has not experienced difficulty, discomfort, or embarrassment for purposes of being awarded minimum statutory damages if the defendant is:

A small business (one that employs 25 or fewer employees on average over the past three years (or since its inception if less than three years) and has annual gross receipts of less than 3.5 million dollars over the past three years (or since its inception if less than three years));

  • The small business has corrected all “technical violations” within 15 days of service or receipt of complaint or written notice; and
  • The technical violation is based on one the following:
    • Interior signs, other than directional signs or signs that identify the location of accessible elements, facilities, or features, when not all such elements, facilities, or features are accessible;
    • The lack of exterior signs, other than parking signs and directional signs, including signs that indicate the location of accessible pathways or entrance and exit doors when not all pathways, entrance and exit doors are accessible;
    • The order in which parking signs are placed or the exact location or wording of parking signs, provided that the parking signs are clearly visible and indicate the location of accessible parking and van-accessible parking;
    • The color of parking signs, provided that the color of the background contrasts with the color of the information on the sign;
    • The color of parking lot striping, provided that it exists and provides sufficient contrast with the surface upon which it is applied to be reasonably visible;
    • Faded, chipped, damaged, or deteriorated paint in otherwise fully compliant parking spaces and passenger access aisles in parking lots, provided that it indicates the required dimensions of a parking space or access aisle in a manner that is reasonably visible; and
    • The presence or condition of detectable warning surfaces on ramps, except where the ramp is part of a pedestrian path of travel that intersects with a vehicular lane or other hazardous area.

In addition, SB 269 exempts defendants from liability for minimum statutory damages with respect to a structural area inspected by a certified access specialist (CASp) for a period of 120 days (unless a limited exception relating to delays in obtaining necessary permits is triggered) if specified conditions are met:

The defendant is a business that, as of the date of inspection, has employed 50 or fewer employees on average over the past three years, or for the years it has been in existence if less than three years;

  • The structure or area of the alleged violation was the subject of an inspection report indicating “CASp determination pending” or “Inspected by a CASp.”;
  • The inspection predates the filing of the claim by, or receipt of a demand letter from, the plaintiff regarding the alleged violation of a construction related accessibility standard, and the defendant was not on notice of the alleged violation prior to the CASp inspection; and
  • The defendant has corrected, within 120 days of the date of the inspection, all construction-related violations in the structure or area inspected by the CASp that are noted in the CASp report that are the basis of the claim.

It is worth noting that this CASp provision can only be utilized once for each structure or area inspected by a CASp unless the inspected structure or area has undergone modifications or alterations that affect the compliance with construction-related accessibility standards or those structures or areas after the date of the last inspection, and the defendant obtains an additional CASp inspection within 30 days of final approval by the DOB or COO, as appropriate, regarding the modifications or alterations.

While unlikely to entirely stem the flow of “drive by” litigations – particularly against larger businesses – these provisions of SB 269 certainly provide new protections for small businesses, particularly those who proactively engage a CASp to inspect their businesses and then promptly work to bring their businesses into compliance in accordance with applicable law.

Colorado May Soon Criminalize Fraudulent Misrepresentation of Service Animals

Another issue that businesses are facing with increased frequency are individuals fraudulently misrepresenting that a pet or emotional support animal is a service animal protected under Title III and/or equivalent state and local laws.  Title III defines a service animal as a dog or miniature horse that is trained to do work or perform tasks for the benefit of a person with a disability and whose work or task is directly related to the person’s disability.  Businesses seeking to determine if an animal meets this definition and is entitled to the protections under accessibility laws can only ask a patron two questions:  (i) is the dog (or miniature horse) required because of a disability; and (ii) what work or task has the dog (or miniature horse) been trained to perform.  The business cannot demand any sort of certification papers.  Not only can people easily lie when answering these questions, but individuals seeking to bring pets into businesses have taken to purchasing readily available “service animal vests” online to aid in committing fraud.

Recognizing that such fraudulent activities ultimately harm both businesses and individuals with disabilities who truly rely upon assistance from a legitimate service animal, Colorado recently passed legislation that would make it a minor crime to intentionally misrepresent entitlement to the assistance of a service animal.  The penalties would be triggered if:  (i) the animal is not a service animal with regard to the person in question; and/or (ii) the person does not have a disability.  Individuals found in violation of this statute would be subject to a modest monetary fine that escalate with each documented violation.  The bill is currently pending signature.  Once signed it would become effective as of January 1, 2017, unless a referendum petition is filed against the bill and that bill is then defeated in a vote during a November 2016 election.

While modest fines are unlikely to eliminate service animal fraud in Colorado, the proposed bill correctly recognizes a legitimate issue and provides other states (and the federal government) a potential path to follow and build upon in an effort to prevent service animal fraud.

Internet Connectivity and Web Browser - AbstractOn April 28, 2016, the U.S. Department of Justice, Civil Rights Division, withdrew its Notice of Proposed Rulemaking (NPRM) titled Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities.  This original initiative, which was commenced at the 20th Anniversary of the ADA in 2010, was expected to result in a final NPRM setting forth website accessibility regulations for state and local government entities later this year.  Instead, citing a need to address the evolution and enhancement of technology (both with respect to web design and assistive technology for individuals with disabilities) and to collect more information on the costs and benefits associated with making websites accessible, DOJ “refreshed” its regulatory process and, instead, on May 9, 2016, published a Supplemental Notice of Proposed Rulemaking (SNPRM) in the federal register.

By August 8, 2016, the SNPRM seeks comments on a variety of issues, including, among others:

  • The appropriate technical standards for providing an accessible website (e.g., WCAG 2.0?);
  • The time period covered entities should be given for compliance once the regulations are effective (e.g., two years?)  and whether additional time should be granted for any specific requirements (e.g., narrative description?);
  • Whether exemptions should be granted for a variety of reasons (e.g., smaller entities; archived materials; existing pdf/Word documents; third-party content/links);
  • Should alternative formats ever be an acceptable alternative to an accessible website? and
  • Should mobile applications be covered by the regulations?

While this development does not directly impact businesses covered by Title III, it does suggest a few relevant considerations.  The questions posed in the SNPRM indicate that DOJ is considering many of the issues that Title III businesses have been forced to grapple with on their own in the face of the recent wave of website accessibility demand letters and lawsuits commenced on behalf of private plaintiffs and advocacy groups.  It would be a positive development for any eventual government regulations to clearly speak to these issues.  Conversely, it may be even longer before we see final regulations for Title III entities.  DOJ has long indicated its intent to first promulgate Title II regulations and then draw upon them in developing subsequent Title III regulations.  While the final Title II regulations were expected in 2016, the Title III regulations were already not expected until any earlier than 2018.  Therefore, this unexpected development could result in even further delays in the issuance of final Title III regulations (something which could also be impacted by any developments relating to this being an election year) resulting in businesses continuing to have to draw teachings from a variety of indirect/analogous resources when assessing how to best address accessible technology issues.

One Industry Takes Action

In the face of mounting frustration stemming from DOJ’s ongoing delays in promulgating website accessibility regulations while plaintiff’s counsel are allowed to continue to aggressively pursue claims some in the real estate industry recently decided to take action.  Citing “the growing confusion around web site accessibility,” on April 29, 2016, the National Association of Realtors wrote a letter to DOJ’s Civil Rights Division imploring DOJ to take actions to regulate the issue of website accessibility for Title III entities as soon as possible.  The letter highlighted the unfortunate dynamic that currently exists as DOJ and plaintiffs’ counsel seek to enforce broad overarching civil rights provisions in the absence of any uniform federal regulations.  (This is similar to the December 2015 efforts of Senator Edward J. Markey (D-Mass.) and a group of eight other Senators who wrote to the Obama administration calling for the prompt release of rules that would clarify and support access to information and communications technology ADA.)

Another Possible Approach to Mobile Accessibility?

While most current settlement agreements regarding website accessibility focus on desktop websites, many businesses are anticipating that the next target for plaintiffs and advocacy groups will be their mobile websites and applications.  Such concern is well founded as recent DOJ settlement agreements addressing accessible technology have included modifications to both desktop websites and mobile applications.

To date, those settlements have referenced the same compliance standard for both desktop and mobile websites and applications; WCAG 2.0 at Levels A and AA.  This is notwithstanding the fact that as currently written WCAG 2.0 does not directly incorporate mobile applications.  While the W3C has stated that a large number of existing WCAG 2.0 techniques can be applied to mobile content, a separate list of mobile-related guidelines is not currently available (though the W3C’s Mobile Accessibility Task Force is working to develop WCAG 2.0 Techniques that directly address emerging mobile accessibility challenges such as small screens, touch and gesture interface, and changing screen orientation for use with the WCAG).   In the interim, the W3C has published a working draft document titled “Mobile Accessibility:  How WCAG 2.0 and Other W3C/WAI Guidelines Apply to Mobile” that is intended to help mobile app developers apply the current WCAG 2.0 requirements to mobile applications.

However, a recent settlement between Netflix Inc. and the American Council of the Blind and Bay State Council of the Blind took a somewhat different approach.  While relying upon WCAG 2.0 Levels A and AA for the desktop website obligations, for mobile applicable devices, the agreement instead referenced the British Broadcasting Corporation’s Mobile Accessibility Standards and Guidelines version 1.0 (the “BBC Mobile Requirements”).

The BBC Mobile Requirements are a set of best practices for mobile web content and applications.  Instead of attempting to apply the desktop website requirements of the WCAG 2.0 to mobile applications, the BBC Mobile Requirements provide mobile application developers with a list of accessibility requirements for 11 topics that are specifically geared to enhance the accessibility of mobile applications.  The BBC Mobile Requirements were developed to:  (i) more accurately reflect the technology used by mobile applications; (ii) provide testing criteria that can be specifically applied to mobile devices; and (iii) provide developers of the two most pervasive mobile application platforms – iOS (Apple) and Android – with specific guidance for providing accessibility where one technique may not be applicable to both platforms.  They are categorized as:  (i) “Standards,” which are identified by the words, “Must” or “Must Not”; and (ii) “Guidelines,” which are identified by the words, “Should” or “Should Not.”  Per the BBC Mobile Requirements website, “In general, standards are best practices that can easily be tested with specific criteria that is not subjective and is technologically possible to achieve with current assistive technology on mobile devices.  Guidelines are less testable but considered core to accessible mobile website and apps.”

For the most part, the BBC Mobile Requirements reflect existing WCAG 2.0 requirements.  For example, the BBC Mobile Requirements state that mobile application content requiring user input (e.g., forms to sign up for email alerts) should have explicit labels describing the type of user input that is required.  This is similar to WCAG 2.0 Level A Guideline 3.3.2 – Labels or Instructions, requiring that, “Labels or instructions are provided when content requires user input.”  Additionally, in some instances, the BBC Mobile Requirements directly reference the WCAG 2.0.  For example, the BBC Mobile Requirements’ Standard for color contrast states that developers should “… use the WCAG 2.0 Level AA contrast ratio of at least 4.5:1.”  However, there are some BBC Mobile Requirements, such as “Touch target size” (requiring mobile application content to be structured so that it is large enough for a user to tap the target area comfortable with one finger), that do not have an equivalent WCAG 2.0 requirement at this time.

Given the challenges some businesses have cited in directly applying all WCAG 2.0 guidelines to certain aspects of mobile applications, the BBC Mobile Requirements offer another possible consideration.  However, the lack of clarity with respect to this issue only underscores why DOJ’s most recent additional regulatory delay is the sources of considerable frustration for most businesses.

As always, keep following EBG’s blogs for updates regarding ongoing developments in accessible technology.

While many continue to wait with growing impatience for the U.S. Department of Justice to finally issue regulations governing website accessibility for businesses under Title III of the ADA, DOJ has just launched a new online resource for those interested in staying abreast of developments in the overall area of accessible technology. 

This new site is meant to provide further guidance and information to employers, state/local governments, businesses and non-profits, and individuals with disabilities by serving as a “one stop” source for DOJ’s technical assistance and guidance about accessible technology (e.g., website accessibility, e-readers, point-of-sale devices), as well as providing up to date information about DOJ’s enforcement efforts, regulatory/rulemaking endeavors, and other related initiatives in this sphere. 

We will, of course, also continue to keep you apprised of breaking news in this rapidly developing area of the law. 

 

Our colleague Frank C. Morris, Jr., attorney at Epstein Becker Green, has a post on the Financial Services Employment Law blog that will be of interest to many of our readers in the retail industry: “New Online Recruiting Accessibility Tool Could Help Forestall ADA Claims by Applicants With Disabilities.”

Following is an excerpt:

In recent years, employers have increasingly turned to web based recruiting technologies and online applications. For some potential job applicants, including individuals with disabilities, such as those who are blind or have low vision, online technologies for seeking positions can prove problematic. For example, some recruiting technologies and web-based job applications may not work for individuals with disabilities who use screen readers to access information on the web. The U.S. Department of Labor’s Office of Disability Employment Policy (ODEP) recently announced the launch of “TalentWorks.”

Read the full post here.