As those of you who have followed my thoughts on the state of the website accessibility legal landscape over the years are well aware, businesses in all industries continue to face an onslaught of demand letters and state and federal court lawsuits (often on multiple occasions, at times in the same jurisdiction) based on the concept that a business’ website is inaccessible to individuals with disabilities.  One of the primary reasons for this unfortunate situation is the lack of regulations or other guidance from the U.S. Department of Justice (DOJ) which withdrew long-pending private sector website accessibility regulations late last year.  Finally, after multiple requests this summer from bi-partisan factions of Members Congress, DOJ’s Office of Legislative Affairs recently issued a statement clarifying DOJ’s current position on website accessibility.  Unfortunately, for those hoping that DOJ’s word would radically alter the playing field and stem the endless tide of litigations, the substance of DOJ’s response makes that highly unlikely.

DOJ’s long-awaited commentary makes two key points:

  1. DOJ continues to take the position that the ADA applies to public accommodations’ websites, explaining that this interpretation is consistent with the ADA’s overarching civil rights obligations; and
  2. Absent the adoption of specific technical requirements for websites through rulemaking, public accommodations have flexibility in determining how to comply with the ADA’s general requirements of nondiscrimination and effective communication.

This line of reasoning is similar to that adopted in judicial decisions holding that while the ADA’s overarching civil rights obligations apply to websites, it would be inappropriate to specifically require compliance with WCAG 2.0/2.1, without the WCAG having been officially adopted by the government as a required standard.  Of course, as those cases note, DOJ’s position begs the question, if a business has to make the goods and services offered on its website accessible to individuals with disabilities how else can it provide for “full and equal enjoyment” and/or “effective communication” if the business does not otherwise offer a website in substantial conformance with WCAG 2.0/2.1.  Indeed, DOJ’s views on this issue stops far from providing businesses with an ironclad defense.  While DOJ explains that public accommodations have “flexibility” in determining how to comply with the ADA’s requirements it also cautions that, “…noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.” (emphasis added)  By way of example, a select number of cases have contemplated the validity of offering telephone service as an alternative to an accessible website (something DOJ had also previously considered during the since abandoned rulemaking process), with several courts expressing doubt that the availability, speed, and thoroughness of such a telephone service could ever fully equal that of the independently usable accessible website.  With that in mind, any employer looking to establish that it provides a viable alternative to an accessible website would have to be prepared to engage in a significant amount of litigation to prove the viability/accessibility of its alternative offering.

In concluding its response, DOJ seemingly passes the onus for resolving these issues back onto Congress, noting, “Given Congress’ ability to provide greater clarity through the legislative process, we look forward to working with you to continue these efforts [to address the risk of litigation on covered entities].”  Of course, given the number of higher profile matter currently confronting both DOJ and Congress, it would not be surprising if promulgating new website accessibility legislation/regulation will not be high on their lists.

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.