disability discrimination

Our colleague at Epstein Becker Green has a post on the Hospitality Labor and Employment Law blog that will be of interest to our readers in the retail industry: “The Generally Prevailing Website Accessibility Guidelines Have Been Refreshed – It’s Time to Officially Welcome WCAG 2.1.”

Following is an excerpt:

After nearly ten years, on Tuesday, June 5, 2018, the World Wide Web Consortium (the “W3C”), the private organization focused on enhancing online user experiences, published the long awaited update to its Web Content Accessibility Guidelines 2.0 (“WCAG 2.0”), known as the WCAG 2.1. Those who have been following along with website accessibility’s ever-evolving legal landscape are well aware that, despite not having been formally adopted by regulators for the vast majority of the private sector, compliance with WCAG 2.0 at Levels A and AA has become the de facto baseline for government regulators, courts, advocacy groups, and private plaintiffs when discussing what it means to have an accessible website. …

Read the full post here.

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.

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.

 

The top story on Employment Law This Week is the EEOC’s release of fiscal year 2015 enforcement data.

Retaliation claims were once again the number one type of charge filed, up 5% from last year for a total of 44.5% of all charges. Race claims were second, making up 34.7% of claims. 30.2% of charges alleged disability discrimination, up 6% from last year. Ronald M. Green from Epstein Becker Green (EBG) gives more detail on what’s behind the numbers.

View the episode below or read recent comments about the EEOC’s release, from David W. Garland of EBG.