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).

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.

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.

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.

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.

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. 

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.

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.

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.

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.