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.

As I have discussed in many of my prior blog posts, over the past few years there has been a significant expansion in accessibility cases brought under Title III of the ADA (and related state and local accessibility statutes) with the focus of the litigations transitioning from brick and mortar issues to accessible technology.  As businesses continue to compete to provide customers and guests with more attractive services and amenities, we have seen increased utilization of technology to provide those enhanced experiences.  However, in adopting and increasingly relying on new technologies such as websites, mobile applications, and touchscreen technology (e.g., point of sale devices, beverage dispensers, check-in kiosks) accessibility is often overlooked because of the lack of specific federal standards in most contexts.  In turn, regulators, advocates, and ambitious plaintiff’s firms across the country have pursued actions in virtually all industries attacking the inaccessibility of various technology, under theories that inaccessible technology denies individuals with disabilities full and equal enjoyment of the offered goods/services/amenities and/or requires the business to provide access via auxiliary aids and services.  With the rise in accessible technology litigation, we are finally beginning to see greater guidance from the courts regarding the scope of businesses’ obligations in these contexts.  The two recent decisions discussed below– one in New York and the other in California – do just that.

Flexibility When Utilizing Touchscreen Technology In Certain Contexts

The recent ruling by the U.S. District Court for the Southern District of New York in West v. Moe’s Franchisor, LLC, provides businesses utilizing touchscreen technology to provide certain types of goods and services to its patrons with a possible roadmap for avoiding liability under Title III.  This litigation stemmed from Moe’s Restaurant installation of “Freestyle” drink dispensers that provide customers with the ability to select from over 100 distinct beverages using a touchscreen interface.  Plaintiffs, who are blind, could not utilize the dispensers and, after failing to secure assistance from an employee of the restaurant, needed to rely upon other customers for assistance with the device.  As a result of their experience, plaintiffs filed a class action lawsuit alleging that the inaccessibility of the touchscreen drink dispensers (the “Freestyle Dispensers”) violated Title III of the ADA and the New York State and New York City Human Rights Laws.  Specifically, plaintiffs alleged the Dispensers should have provided adaptive technology, such as tactile/Braille controls and a screen reader that provided audible instructions, as auxiliary aids and services.

In granting Moe’s motion to dismiss, the Court agreed with Moe’s argument it had appropriately met Title III’s obligation that places of public accommodation provide auxiliary aids and services to patrons with disabilities.  In meeting this flexible obligation, while the place of public accommodation is encouraged to consult with the individual with a disability, Title III leaves the ultimate determination of what auxiliary aid/service is appropriate up to the place of public accommodation provided the option adopted is effective.  The Court noted that one type of auxiliary aid/service expressly contemplated by Title III’s governing regulations is the provision of employees trained to read menus to guests who are blind.  To that end, the Court concluded that “nothing in the ADA or its implementing regulations supports Plaintiffs’ argument that Moe’s must alter its Freestyle machines in a way that allows blind individuals to retrieve beverages without assistance.”  While the Court conceded that providing accessible Freestyle Dispensers to enable independent usage by guests with disabilities might be feasible and/or preferable, because Moe’s trained its employees to provide assistance to guests with disabilities who had difficulties operating the Freestyle Dispensers, plaintiffs failed to establish a claim that Moe’s violated Title III or the equivalent state/city laws.  (The fact that in one instance Plaintiffs did not promptly obtain such assistance was insufficient to alter this conclusion.)

This decision, while only directly applicable to businesses in the SDNY’s jurisdiction, certainly provides support for the argument that even when adopting the use of accessible technology, a business may not always have to provide directly accessible technology in lieu of offering the prompt assistance of well-trained employees (and ideally indicating the availability of such assistance via accessible signage).  One important note of caution, however, in reaching its conclusion, the Court took care to distinguish that its decision might have been different if the technology being considered touched upon plaintiffs’ legitimate privacy concerns (e.g., a financial transaction).  Therefore, businesses should pause before seeking to apply the teachings of this decision to devices such as touchscreen point-of-sale/debit card technology (indeed, California has a state law expressly requiring accessible point-of-sale devices).

Website Accessibility Obligations Continue to Become More Certain

In a decision on the opposite end of the country last month that will not be met with the same reaction by businesses, the San Bernardino Superior Court in California held that a retailer violated the ADA (and the Unruh Act under California law) because its website was inaccessible to individuals who are blind or have low vision.  The decision in Davis v. BMI/BND Travelware, granting summary judgment to the plaintiff, is particularly noteworthy because prior decisions addressing the issue have occurred pre-discovery when considering motions to dismiss.

The Court, concluding that Plaintiff was denied full and equal enjoyment of the goods and services of defendant’s luggage business, based its decision that Title III applied to defendant’s website on the fact that the plaintiff demonstrated that he sought goods and services from a place of public accommodation and a sufficient nexus exists between defendant’s retail store and its website, which – by being inaccessible – directly impeded his ability to access defendant’s goods and services.  On the basis of this ruling, the Court ordered the defendant to: (i) either make its website “readily accessible to and usable by visually impaired individuals” or to terminate the website; and (ii) pay $4,000 in statutory damages under the Unruh Act on the grounds that, “the undisputed evidence is that plaintiff’s access to the website was prevented by the defendant at the time the website was designed.”  (However, the Court also refused to grant additional statutory damages for subsequent unsuccessful attempts to access the website.)

This decision reflects the latest in a series of rulings on website accessibility that increasingly reject arguments that business establishments with websites do not have an obligation under Title III and state/local laws to make the websites accessible.   Of course, as we’ve noted in the past, these decisions do not foreclose a variety of potentially successful defenses that may be asserted in later stages of a litigation – e.g., undue burden, fundamental alteration, and the provision of equivalent/alternative means of access.  As an increasing number of website accessibility cases proceed through litigation, businesses should soon have further guidance from the courts.  In the interim, the best way to guard against potential website accessibility claims continues to be to take prophylactic measures to address compliance before you receive a demand letter, complaint, or notice of investigation.

Joshua A. Stein
Joshua A. Stein

For businesses hoping to identify an avenue to quickly and definitively defeat the recent deluge of website accessibility claims brought by industrious plaintiff’s firms, advocacy groups, and government regulators in the initial stages of litigation, recent news out of the District of Massachusetts – rejecting technical/jurisdictional arguments raised by Harvard University and the Massachusetts Institute of Technology – provides the latest roadblock.

In National Association of the Deaf, et al., v. Harvard University, et al. (Case No. 3:15-cv-30023-MGM, Dist. Mass.) and National Association of the Deaf, et al., v. Massachusetts Institute of Technology (Case No. 3:15-cv-30024-MGM, Dist. Mass.), Plaintiffs brought claims on behalf of individuals who are deaf or hard-of-hearing, alleging that Harvard and MIT violated Section 504 of the Rehabilitation Act of 1973 and Title III of the Americans with Disabilities Act by failing to offer its online video content in a format accessible to individuals who are deaf or hard-of-hearing (e.g., by providing captioning).  Facing case law in the District of Massachusetts that already made arguing against the potential applicability of Title III to goods and services offered on websites more difficult (see Nat’l Assoc. of the Deaf v. Netflix, Inc. (D. Mass. June 19, 2012)), both Harvard and MIT made motions to dismiss and/or stay the actions pending the U.S. Department of Justice’s eventual promulgation of website accessibility regulations governing places of public accommodation under Title III (currently expected in 2018) by asserting the primary jurisdiction doctrine.  DOJ submitted Statements of Interest in both cases opposing Harvard and MIT’s motions, arguing that the courts are presently capable of adjudicating Plaintiffs’ claims based on the existing state of the law and any delay pending the release of its regulations would unduly prejudice the Plaintiffs.

While it will not become a final order until adopted by U.S. District Court Judge Mastrioanni, in an extensive and thorough decision, Magistrate Judge Robertson, denied both Harvard and MIT’s motions in their entirety.  The decisions hold, among other things, that these were not appropriate matters to invoke the primary jurisdiction doctrine because the existing law provides the necessary legal framework for the Court to appropriately adjudicate whether or not Section 504 and Title III were violated by Harvard and MIT’s failure to provide captioning of its online video content.  The Court explained that it did not need to await DOJ’s issuance of final regulations because, if necessary, it had other resources available through which to educate itself about any technical issues involved in the case.  Moreover, as the analysis involved in accessibility cases must be specifically tailored to the entity and situation in question, the Court was not concerned about the potential impact these decisions might have on any broader issues addressed by DOJ’s regulations.  Finally, noting that DOJ’s Title III regulations will not even be in final form if delivered as planned in 2018, the Court expressed concern about the amount of time that would elapse for Plaintiffs if it was concluded that the defendants were violating the law.  This decision comes on the heels of the U.S. District Court of the Western District of Pennsylvania’s decision this past November denying a similar motion to dismiss made by Huntington National Bank in defending against a claim brought by the law firm Carlson Lynch Sweet & Kilpea on behalf of Michelle Sipe.  (Sipe v. Huntington National Bank, Case No. 2:15-cv-01083-AJS (W.D.Pa. 2015))  While that decision came without any discussion, the papers filed by both parties relied heavily upon those submitted by the parties in the Harvard and MIT decisions.

These recent decisions reveal a reluctance among the courts to dismiss website accessibility actions on technical/jurisdictional grounds.  Taken along with the expanding number of jurisdictions who subscribe to legal theories accepting that Title III covers website accessibility (whether adopting a nexus theory or broadly interpreting the spirit and purpose of the ADA) and it is becoming increasingly clear that many businesses will have a difficult time ridding themselves of website accessibility claims in the early stages of litigation.  Of course, these decisions have been quick to note they do not foreclose a variety of potentially successful defenses that may be asserted later in the litigation – e.g., undue burden, fundamental alteration, and the provision of equivalent/alternative means of access.  While, to date, the existing website accessibility case law has not focused on when these defenses might prevail, with the recent proliferation of website accessibility demand letters and litigation, businesses should soon find themselves with greater guidance from the courts.  In the interim, the best way to guard against potential website accessibility claims continues to be to take prophylactic measures to address compliance before you receive a demand letter, complaint, or notice of investigation.

We will, of course, continue to monitor these ongoing developments and update you as appropriate.

 

Our colleague Frank C. Morris, Jr., a Member of the Firm in the Litigation and Employee Benefits practices, in the firm’s Washington, DC, office, was quoted in “Retaliation, ADA Charges Rise” by Allen Smith.  The article discusses the uptick in retaliation charges which have been filed and includes tips for employers on how to reduce the likelihood that they will get hit with those types of charges.

Following is an excerpt:

ADA cases today are more often about what took place in the interactive process for identifying a reasonable accommodation than about whether a disability is covered by the law. So, employers should have protocols in place on how to respond to accommodation requests and should document those efforts. This is “incredibly important” if there is litigation, Morris said.

If there is an agreement on an accommodation, put it in writing and have the employee sign the document, he recommended.

Remember that under the ADA, the accommodation obligation is ongoing. “Just because you’d done everything right in 2015 doesn’t mean you don’t need to do everything right in 2016,” he said. Things change, and the employer should be ready to start the accommodation conversation on fresh footing if the employee requests a new accommodation.

Joshua A. SteinFrustrating news has emerged from Washington D.C. as the recently-published federal government’s Fall Semiannual Regulatory Agenda revealed that the long-anticipated U.S. Department of Justice’s (“DOJ”) Notice of Proposed Rulemaking (“NPRM”) for regulations governing website accessibility for places of public accommodation under Title III of the Americans with Disabilities Act (“Title III”) would not be issued in the Spring of 2016 as most recently anticipated and would instead be delayed until fiscal year 2018.  DOJ now intends to issue a NPRM governing website accessibility for state and local governments under Title II of the ADA in early 2016 and then hopes that that process will create the necessary infrastructure to develop and promulgate similar regulations for entities governed by Title III

Such news is particularly troubling given the recent surge in website accessibility actions brought against places of public accommodation and business establishments operating exclusively in cyberspace by private plaintiffs, advocacy groups, and regulators at the federal, state, and local levels.  Indeed, notwithstanding DOJ’s latest delay, there is no indication that the federal government intends to cease its quest to have places of public accommodation provide accessible websites.  Relying upon Title III’s overarching civil rights obligations – most importantly that places of public accommodation provide “full and equal enjoyment” of its goods, services, etc. – DOJ continues to seek website accessibility provisions as part of its settlement agreements with a wide variety of places of public accommodation.  DOJ has even gone so far as to file Statements of Interest in private litigations ongoing between both Harvard University and the Massachusetts Institute of Technology and the National Association of the Deaf in the U.S. District Court for Massachusetts opposing their efforts to have the lawsuits dismissed or stayed pending DOJ’s completion of the rulemaking process.  (3:15-CV-30023 (D.Mass) and 3:15-CV-30224 (D.Mass))

The limited number of judicial decisions addressing the applicability of Title III to the websites of places of public accommodation and online businesses do not provide a clear road map for businesses due to the existence of a split body of case law.  The current law falls along three primary lines:  (i) Title III’s application is limited to actual physical places and cannot apply to websites absent an amendment to Title III or the issuance of new regulations; (ii) Title III applies to websites when there is a nexus between a physical place of public accommodation and the goods and services offered on its website; and (iii) Title III applies to even online-only businesses because Title III must be read broadly to promote the ADA’s goal of allowing individuals with disabilities to fully and equally enjoy and participate in society and, therefore, it must evolve to apply to new technologies.  The limited body of case law to date has developed primarily in the preliminary motion to dismiss phase and, therefore, the viability of various potential affirmative defenses or what it means for a website to be accessible has not be sufficiently analyzed by the courts. 

Further complicating the landscape, since DOJ announced its previous delay of the regulations (then into April 2016) this past spring, businesses across most industries – including retail, hospitality, financial services, and sports and entertainment – have been deluged with demand letters from industrious plaintiffs’ firms seeking to take advantage of the regulatory uncertainty and limited case law.  Understanding that the costs of litigating a developing area of the law may prove significant and the return uncertain, many businesses are opting to reach amicable resolutions to these matters rather than explore more aggressive litigation positions.  To the extent others hoped that DOJ guidance would soon stem the tide of these demand letters, this most recent development is disheartening news.  Businesses hoping to avoid such letters are best served by taking prophylactic actions to address the accessibility of their websites.

For more on these issues see: 

http://www.hospitalitylaboremploymentlawblog.com/2015/06/articles/ada/doj-further-delays-release-of-highly-anticipated-proposed-website-accessibility-regulations-for-public-accommodations/

http://www.technologyemploymentlaw.com/ada-and-disability-law/access-board-seeks-to-revise-accessibility-standards-for-information-and-communications-technology-of-federal-agencies-and-certain-technology-manufacturers-moving-to-functionality-based-approach/

http://www.ebglaw.com/joshua-a-stein/news/key-issues-facing-places-of-public-accommodation-at-the-25th-anniversary-of-the-ada/

Service DogThe United States Department of Justice recently released technical guidelines aimed at cur”tail”ing proliferating efforts purporting to expand the meaning of “service animal” under the Americans With Disabilities Act (“ADA”). Under the ADA, public accommodations (e.g. restaurants, hotels, retail establishments, theaters, and concert halls) must permit the use of service animals by disabled individuals. These technical guidelines take aim at increasing claims that a variety of animals (e.g. a pigs) are service animals because they provide emotional support or comfort to the disabled individual. As this technical guideline makes clear, a service animal must not only be a dog, but it must be working like one as well.

The technical guidelines explain that, under the ADA, a service animal is “a dog that has been individually trained to do work or perform tasks for an individual with a disability.” In addition, the task(s) performed by the dog “must be directly related to the person’s disability.” Applying these definitions, the technical guidelines make clear that dogs (or other animals) that provide comfort through their presence alone do not qualify as service animals under the ADA. To satisfy the requirements of the ADA, the dog must be trained to take a specific action when the disabled individual requires assistance. The technical guideline provides these examples:

  • A person with diabetes may have a dog that is trained to alert him/her when his blood sugar reaches high or low levels;
  • A person with epilepsy may have a dog that is trained to detect the onset of a seizure and then help the person remain safe during the seizure; and
  • A person who suffers anxiety attacks may have a dog that is trained to sense when an attack is about to happen and take a specific action to help avoid or lessen its impact.

Merely providing emotional support and comfort by presence alone is insufficient to qualify a dog as a service animal under the ADA.

The technical guidelines also provide clarification as to the proper inquiries that may be made of a patron seeking to utilize a service animal in a place of public accommodation. In situations where it is not obvious that the dog is a service animal, staff may ask the patron only two specific questions:

  1. Is the dog a service animal required because of a disability?
  2. What work or task has the dog been trained to perform?

Staff may not request supporting documentation for the dog, require the dog to demonstrate the task, or inquire about the nature of the patron’s disability.

Managers of restaurants, hotels, retail establishments and other public accommodations should review the guidelines provided by the Department of Justice in order to more fully understand their rights when presented with a patron claiming need to use a service animal.