As expected given the extreme volume of website accessibility lawsuits filed over the last few years, in the first few weeks of the new year, United States’ Circuit courts have finally begun to weigh in on the law as it pertains to the accessibility of websites and mobile applications, and the results are generally disappointing for businesses.

Background

The U.S. Department of Justice (“DOJ”) has long taken the position that Title III of the Americans with Disabilities Act (“Title III”, “ADA”) applies to both websites and mobile apps, however, its withdrawal of Advanced Notice of Proposed Rulemaking (“ANPRM”) on December 26, 2017 and its September 25, 2018 letter (which effectively passed the onus to Congress to issue legislation on website accessibility standards), have prompted an onslaught of private demand letters and lawsuits filed in both state and federal court against businesses based on the theory that their websites are inaccessible to individuals with disabilities. As those who have confronted these lawsuits may know, the current state of the law has led to businesses being subject to duplicative actions in different jurisdictions, primarily, New York, California, and Florida. Last fall, both the Ninth and Eleventh Circuit courts held oral argument on website accessibility cases, with both panels expressing similar concerns about the current uncertainty in the law and how one can achieve and confirm a sufficient level of accessibility.

The Ninth Circuit Reverses Domino’s

Yesterday, in Robles v. Domino’s Pizza, the Ninth Circuit held that Title III applies to both websites and mobile applications. This decision reversed the district court’s dismissal of a class action lawsuit which asserted that Domino’s Pizza violated the ADA and California’s Unruh Civil Rights Act (UCRA) by failing to make its website and mobile app accessible to individuals who are blind or visually impaired. While the district court’s decision in Robles was always considered an outlier, the Circuit Court’s decision is significant because the Ninth Circuit considered, and rejected, defenses which have traditionally been advanced by businesses that have litigated website accessibility matters. For example, the Court refused to accept as a matter of law/summary judgment that providing a telephone hotline is sufficient alternative method for a company to satisfy its obligations under Title III to customers who are blind or have low vision (noting it was an issue of fact that required specific and contextual supporting factual evidence). The Court also rejected the concept that imposing liability in this context violates companies’ due process rights because DOJ has failed to issue clear technical standards for compliance.

At the outset, the Ninth Circuit agreed with the district court that Domino’s is a “place of public accommodation” and accordingly, the ADA applies to its website and mobile app, thereby requiring it to provide auxiliary aids and services to make its visual materials available to individuals who are blind. Drawing upon prior district court decisions from within the Ninth Circuit, the Court focused on the “nexus” between Domino’s website and mobile app and its physical restaurants, and found that the alleged inaccessibility of the website and app unlawfully prevents customers from accessing the goods and services at Domino’s physical locations. Notably, the Ninth Circuit declined to determine whether the ADA covers websites or mobile apps whose inaccessibility does not impede access to the goods and services at a physical location, reinforcing courts in the circuit’s position more narrowly construing the ADA to apply only to websites with a nexus to a brick-and-mortar location (as opposed to the more expansive positions taken by district courts in Massachusetts, New York, and Vermont).

The Circuit Court also noted that after the plaintiff filed the lawsuit, Domino’s website and mobile app began displaying a telephone number to assist customers who are visually impaired and who use a screen reading software. The Ninth Circuit held that a company’s use of a telephone hotline presents a factual issue, and, simply having a hotline, without any discovery regarding its effectiveness, is insufficient to award summary judgment to a company and determine that it has complied with the ADA. (This underscores that proving the sufficiency of an alternative means of access to a website – short of making the website itself accessible – could prove to be a costly endeavor.)

Citing DOJ’s failure to issue technical standards and withdrawal of ANPRM, Domino’s had argued that: (i) imposing liability would violate due process because it lacks fair notice of the technical standards that it is required to abide by; and (ii) the complaint was subject to dismissal under the doctrine of primary jurisdiction pending DOJ’s resolution of the issue. The Ninth Circuit rejected both arguments. First, the court held that DOJ’s failure to issue guidance on the specific standards or regulations does not eliminate a company’s obligation to comply with the ADA and its obligation to provide “full and equal enjoyment” to individuals with disabilities. Second, the Ninth Circuit held that the district court erred by invoking the doctrine of primary jurisdiction in order to justify its dismissal of the complaint without prejudice pending DOJ’s resolution of the issue. The court found that DOJ’s withdrawal of ANPRM meant that undue delay in resolving this issue “is not just likely, but inevitable,” which required the court to weigh in.

The Robles court did not rule on whether Domino’s website and mobile app comply with the ADA, and did not provide any guidance on how a company’s website or mobile app would comply with the ADA.

The Fourth Circuit Places Minor Restrictions On Standing

Two weeks ago, in Griffin v. Department of Labor Federal Credit Union, the Fourth Circuit considered another defense that has been increasingly asserted by businesses: whether plaintiff has standing to sue. In Griffin, the court rejected the plaintiff’s standing to bring a lawsuit against a Credit Union where he was not eligible for membership, he had no plans to become eligible to be a member, and his complaint contained no allegation that he was legally permitted to use the site’s benefits. The court also held that plaintiff’s status as a tester was insufficient to create standing where he was unable to plausibly assert that returning to the website would allow him to avail himself of its services. Unfortunately, this is an exceedingly narrow holding which should do little to undercut the rampant stream of filings by serial ADA website plaintiffs, as the heightened standard for joining a credit union would not apply to most other industries/websites. Therefore, while technically a victory for businesses, this decision did not issue the significant blow to serial plaintiffs that defendants had hoped would provide a clear defense moving forward.

Looking Ahead

We next await the holding of the 11th Circuit in Winn-Dixie. Unfortunately, it does not appear that, under this administration, we should expect DOJ to promulgate website accessibility guidelines. Similarly, with the government currently shut down (and other issues likely considered more pressing to the general public upon its reopening), it is extremely unlikely that Congress will amend the ADA or promulgate new legislation clarifying these issues in the near future.

Therefore, for the time being, businesses should expect to continue to face the seemingly endless stream of serial plaintiff website accessibility demand letters and lawsuits. As we have repeatedly noted, the best way to avoid falling prey to such a suit is to achieve substantial conformance with WCAG 2.1 Levels A and AA (confirming such status by human-based code and user/assistive-technology testing). Moreover, based upon the scope of the Ninth Circuit’s decision in Domino’s, these matters may soon expand to include mobile apps as well. Therefore, to the extent businesses had, to date, treated mobile application accessibility as a best practice, they should now consider the issue with increased urgency.

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.