Judges Handling ADA Lawsuits Over Websites Not Waiting On DOJ Regulations
Mar 29, 2016 @ 09:11 AMPost written by Amanda Robert
While companies continue a years-long wait for guidance from the Department of Justice on how to make their websites compliant with federal disabilities law, judges aren’t hitting the pause button on a growing area of litigation.
In the past year, an increasing number of companies have faced lawsuits from blind and deaf plaintiffs alleging their websites violate the Americans with Disabilities Act. Plaintiffs lawyers in three jurisdictions – California, New York and Pennsylvania – have led the charge.
Complicating matters for defendants has been the delay of formal regulations first announced by the Department of Justice in 2010. Companies will have to wait until 2018 before they are issued.
Judges, though, aren’t waiting until then. On March 21, a California judge, for what is believed to be the first time in any court, granted summary judgment to a blind plaintiff who sued luggage retailer Colorado Bag’n Baggage over its website.
“We are very grateful that the Court agreed that corporate websites must be accessible to individuals with disabilities,” said Newport Trial Group attorney Victoria Knowles, who represented plaintiff Edward Davis.
“This ruling will have implications far and wide.”
Davis has filed at least nine lawsuits in San Bernardino County Superior Court and another two in federal court.
Several have ended with settlements.
Judge Brian Foster awarded Davis $4,000 in damages in the case against Colorado Bag’n Baggage. His attorneys say the judgment also entitles Davis to recover his attorneys fees.
The decision is another blow to defendants, coming more than a month after federal Magistrate Judge Katherine Robertson rejected arguments by Harvard University and the Massachusetts Institute of Technology that the court should dismiss or stay their cases while the DOJ works on its regulations.
The universities were sued in Massachusetts federal court by the National Association of the Deaf in 2015 for not providing captions and other auxiliary aids for its online programming.
“There is no reason that this case and the administrative process cannot proceed simultaneously on separate tracks,” Robertson wrote in her opinion in the Harvard case.
“Should DOJ issue either set of proposed rules while this case is still pending, the parties can bring them to the attention of the court so that the court can have the benefit of whatever aid they may offer.”
Robertson added that the help provided by the proposed rules would be limited.
“Even if DOJ issues proposed rules, they will be just that – proposed,” she wrote.
“The court would still have to consider how the proposed rules might shed light on the specific questions presented in this case – whether Harvard has violated the ADA’s prohibition against disability-based discrimination and the extent to which Harvard is required to provide accommodations under the ADA, if at all.”
Minh Vu, a partner at Seyfarth Shaw and leader of the firm’s ADA Title III team, points out in an analysis of Robertson’s opinion that there are two practical takeaways for businesses facing these types of lawsuits.
The first, she says, is that judges have not been receptive to the argument that companies don’t need to make their websites accessible until after the DOJ issues its regulations.
The second is that many judges are reluctant to dismiss website accessibility lawsuits early in the case.
“This means that the cases will likely continue to discovery and cause defendants to incur potentially substantial costs of defense, even if the defendants ultimately prevail on the merits,” Vu said.
Vu also contends that the Harvard and MIT decisions will “undoubtedly fuel the continuing explosion” of website accessibility cases.
The DOJ submitted briefs in those cases that reflect its stance on what makes a website compliant with the ADA.
Anne Marie Estevez – a Miami partner and global head of the ADA public accommodation and accessibility group at Morgan, Lewis & Bockius, who has also witnessed the surge in website accessibility litigation – adds that federal courts have come to differing conclusions on the issue.
She explains that in 2015, in Earll v. eBay, the U.S. Court of Appeals for the Ninth Circuit held that eBay.com, a website not connected to any physical place, is not a “place of public accommodation” under the accessibility requirements of Title III of the ADA.
“Very significantly, it said Title III and ADA law does not cover a website unless it is tied to a brick-and-mortar, meaning that if it’s just e-commerce, this law doesn’t apply,” Estevez said.
Foster, according to the minutes of the hearing during which he granted summary judgment, ruled Davis demonstrated that he sought goods and services from a place of public accommodation because he showed a nexus exists between the defendant’s retail store and its website.
Robin Stewart, an attorney in the Kansas City, MO, office of Lathrop & Gage, says that also in 2015, the Ninth Circuit came to the same conclusion in Cullen v. Netflix, Inc.
“Since the goods and services offered on the Netflix and eBay websites are not connected to an actual physical location, the Ninth Circuit found that the ADA did not apply to the Netflix and eBay websites and therefore the website accessibility claims failed as a matter of law,” she said.
Stewart contends that the Eleventh Circuit took the same nexus-type approach, although arriving at the opposite result, in 2002, ruling that disabled plaintiffs had a valid claim under the ADA when they alleged that the fast finger telephone selection process for the television show, “Who Wants to Be a Millionaire?” violated the federal disabilities law.
The court found that it prohibited people with disabilities from being contestants on the show, which took place in an actual physical structure.
However, she says, other courts, such as the First and Seventh circuits, found in earlier cases that no connection between a website and a physical structure needs to exist in order for a website to fall under the mandates of the ADA.
And, Stewart adds, on the far opposite end, both the Third and Sixth circuits held in the late 1990s that places of public accommodation must be actual physical structures.
“However, those rulings were not decided in the context of a website, so it is unclear how they would rule when presented with ADA website accessibility litigation,” she said.
Stewart contends that it is up to the courts, and not the DOJ, to interpret the ADA and decide if websites are considered places of public accommodation under the statute. Otherwise, she adds, Congress would need to amend the ADA to specifically address websites.
“Should the DOJ issue regulations, it would at least let us know what the DOJ expects a website to include in order to be deemed compliant with the ADA,” she said.
“Depending on the jurisdiction, a company could still defend an action in court and argue that the ADA doesn’t apply to websites, regardless of the DOJ regulations.”
Looming ADA rules could affect millions of websites
June 26, 2015 @ 1:25 PMPost written Ron Hurtibise - Contact Reporter Sun Sentinel
Is your website fully accessible to the disabled?
Are all of its photos embedded with alternative text that can be read aloud by software for the visually impaired?
Are all of its videos captioned and do they include embedded soundtracks with descriptions of what's going on for hard-of-hearing users?
Are all of its features accessible by keyboard, and not just the mouse?
The answer to all of those questions: probably not.
And while that might be OK for now, some experts warn that your non-compliant website might soon fall under the same scrutiny as the corner store's wheelchair access ramp, the community center swimming pool and the bathroom at your favorite restaurant.
Owners of websites, especially those connected to actual stores, could be vulnerable to lawsuits if their sites don't adopt the same accessibility standards required of H&R Block online grocer Peapod, education course provider edX and others in recent settlements with the federal Department of Justice, according to some legal experts who advise companies how to comply with the Americans with Disabilities Act.
Members of the disabled community need the same access to online goods and services as the rest of us, says Caesar Eghtesadi, president of Tech for All, an accessibility design consulting firm in Wellington.
"People with disabilities are pushing that the Americans with Disabilities Act should apply to the Internet and that websites should be accessible in the same way as ramps or signage," Eghtesadi said.
Most disabled people will ask companies to make accommodations before they file suit, he said.
Some sue first and ask questions later. The cadre of South Florida-based disability advocates that have for years been suing thousands of small business owners — and forcing expensive settlements — over ADA violations probably will start scrutinizing websites, said Boca Raton attorney Allen H. Weitzman, an ADA defense specialist.
More than 2,300 federal disabled-access suits have been filed in the Southern District of Florida since January 1, 2013, court records show. Nearly two-thirds were filed by the same 10 plaintiffs, and the most prolific, Howard Cohan, filed 435 complaints.
Instead of traveling all over the state measuring handicapped parking spaces, doorways and bathroom stalls, "all you have to do [to test Web accessibility] is go to your back yard, sit in your chaise lounge and open your laptop," Weitzman said. "If you know what to look for, you don't have to get out of your car."
The Justice Department has announced that it will issue accessibility standards after March that probably will have "an enormous cost impact" on millions of businesses with websites, according to a June 3 blog post by Minh N. Vu, partner and ADA Title III team leader at Seyfarth Shaw LLP in Washington, D.C.
The department announced in 2010 that it would issue separate sets of proposed website accessibility regulations for state and local governments and for private entities that do business with the public. Both sets of recommendations were expected by now, but the department recently said the recommendations for private entities won't be issued before April.
The delays have created confusion as companies and governments waited to make changes to their sites, Vu said in an interview. Even more frustrating was the fact that, as the wait for proposed regulations dragged on, the Justice Department intervened in website accessibility suits and secured companies' agreements to adopt a set of guidelines developed by the World Wide Web Consortium called Web Content Accessibility Guidelines 2.0, Level AA, that may or may not mirror the coming proposals.
"We have no idea whether they've taken the same positions [in the lawsuits] that the proposed regulations will take," Vu said.
But some ADA consultants believe the settlement signifies the department's intention to make WCAG 2.0, Level AA required for virtually all business and education websites.
The WCAG standards are designed to assist vision- and hearing-impaired users, through adaptive software and equipment, easily navigate through websites and understand content of text, images, audio and video, and conduct business by recognizing where to fill out forms. Rules govern how links can be tagged and arranged, and images used as links must include alternative text so vision-impaired users know where they're going.
The standards are intended to be incorporated anytime new content is posted to both desktop and mobile sites.
The official WCAG 2.0 guidelines can be found at w3.org/TR/WCAG20.
A checklist to help website owners comply with the standards is at webaim.org/standards/wcag/checklist.
And any website can be tested for accessibility by entering its url at wave.webaim.org.
Meanwhile, the question of which websites must adhere to ADA accessibility standards is winding through two separate federal courts.
In accessibility suits involving Netflix and Ebay, California's 9th Circuit Court of Appeals in April upheld a 2000 ruling that a business website must be connected to a physical place to be considered a "public accommodation" and bound by the anti-discrimination mandate of the ADA.
But days earlier, a federal district court in Vermont refused to dismiss a suit by the National Federation of the Blind against digital library Scribd after Scribd's attorneys argued it is solely a digital service and not a "place of public accommodation."
And in 2012, a federal district court in Massachusetts ruled in a different case against Netflix by the National Federation for the Deaf that the ADA does apply to Web-only businesses. Netflix agreed to caption all of its content within two years.
Regardless of how the question is resolved, the effect of the Justice Department regulations is expected to be wide-reaching, Vu said. Under existing precedents dealing with Title III of the ADA, regulations would at least apply to all government sites, education sites where students take online courses, retailer sites used to order products, and hotel and airline sites where users make reservations.
Retrofitting non-compliant sites will be expensive and time consuming for many businesses, said Eghtesadi, the Web accessibility consultant in Wellington.
"Most sites are not accessible," he said. "And only 5 percent of government sites are accessible."
If the law is broadened to cover entertainment sites like Netflix and YouTube, standalone sales sites like Ebay or Amazon, social network sites and sites that promote smaller local businesses, there won't be enough experts available to bring everyone into compliance, Eghtesadi said.
He estimates there are fewer than 10 companies in the nation with expertise in the technical standards and how to design websites to interact with assistive technology and hardware.
Not long ago, businesses gave little thought to whether their sites could be used by the blind or deaf, Eghtesadi said. "I've been in boardrooms where they ask, 'How many blind are going to buy [my product]?' "
He said demand for Web accessibility services have been growing in recent years as larger national companies are contacted by disabled consumers, get sued or decide to cater to an aging baby boomer population.
Vu said new regulations will preferably come with "a safe harbor concept" that allows for an occasional screw-up, such as posting an image without alternative text, as well as a grace period allowing businesses to come into compliance after a complaint is filed.
Still, many questions remain, she said. "How much time will they have to transition? What about the millions of videos without captions? Do we make everyone fix everything? What about YouTube? Do we force them to remove videos that aren't compliant?"
Grif Blackstone, president of Fort Lauderdale-based Blackstone Media Group, which hosts and designs more than 400 websites for mostly South Florida businesses, said few clients come to him with accessibility in mind. "Not a lot of people say specifically, 'I want this to be optimized for people who can't see.' "
But if the federal government imposes broad accessibility standards "and widespread compliance is mandated, that's going to open up a lot of business" for website accessibility consultants, he said.
"Would that mean financial strain on some small businesses? Probably, to have it done the right way."
The good news, Blackstone said, is that websites built by professional designers using "best practices" for search engine optimization — or SEO — are already halfway home to accessibility compliance.
Embedding alternative text in photos, making headlines clear and concise, ensuring ease of navigation, reducing the number of links on a page and keeping pages from being overloaded with text — those are practices important for both for SEO and ADA, Blackstone said.
Adhering to accessibility regulations might be a pain for some in the short term but better for all in the long run, he said. "Is it important to make sure the visually impaired and hearing impaired can have an online experience close to someone who's not impaired? I'd definitely agree with that."
Website Accessibility Lawsuits Are Coming, Are You Prepared?
Published on August 26, 2016Post written by Laura Zaroski, J.D., RPLU - V.P. Cyber, Management & Professional Liability at Socius Insurance Services, Inc.
Plaintiff’s attorneys around the country are relying upon Title III of the Americans with Disabilities Act (ADA) to claim that websites are not accessible to the disabled. Title III of the ADA requires places that are open to the public to not discriminate against individuals due to their disability or otherwise deny them “the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation.” These rules apply to any Company that permits “entry” by the public. Although traditionally Title III of the ADA has been applied to physical structures, recent cases have raised issues as to whether these rules may apply to the websites as well.
To date, the case law addressing these issues is very limited and has been mixed. Case law from the Seventh Circuit has applied the ADA to websites, and the First, Second, and Eleventh Circuits have applied the ADA beyond physical structures, providing ground for plaintiffs to argue that the ADA can extend to a virtual space such as websites. Meanwhile, the Third, Fifth and Ninth Circuits have applied the ADA provisions to physical locations only.
The Department of Justice, which is responsible for interpreting and enforcing Title III of the ADA, says that Title III does apply to websites. However, in typical government fashion, the DOJ has delayed releasing its “accessibility” guidelines for webpages, with an anticipated release date in 2018.
While the regulations and laws on website accessibility may be unclear, a few law firms are nonetheless sending out demand letters targeting specific industry sectors nationwide (for example, private universities and real estate brokerage firms) and demanding compliance with onerous website standards. The letters ask the recipient to hire the Plaintiff’s law firm (or their preferred vendor) to help reach an “acceptable level” of compliance. In addition, several national retailers, including Patagonia, Ace Hardware, Aeropostale, Bed Bath and Beyond have been named in lawsuits regarding accessibility to their sites. According to BNA, 45 of these type of lawsuits were filed in 2015. That number is expected to increase substantially in 2016.
With the law so unclear on this topic, how should businesses navigate these murky waters? First, if you receive one of these demand letters, you should consider contacting an attorney and should avoid engaging in discussions with the Plaintiff or their law firm without representation. Then, along with your attorney and an IT representative (in-house or a vendor), develop a strategy to bring your webpage into accessibility compliance. Although there is no “one-size fits all” approach, depending on what is on your website, to move towards compliance, businesses can consider providing audible text on each webpage and providing audible captions for pictures. Ultimately, to play it safe you may want to take all cost-reasonable steps to improve navigation and access on your website.
Takeaway: Lawsuits related to website accessibility could likely be the next cash cow for plaintiff’s attorneys. As the early case law on this issue is so mixed, there is little guidance as to who has to be compliant and what exactly compliance would look like. Until the DOJ gets around to issuing their guidelines (and if they provide much guidance when they are issued) businesses should consider reviewing their websites and documenting reasonable efforts to make the sites accessible to the disabled. Further, companies should consider purchasing a robust EPL policy with broad third party coverage that will pick up the defense of claims related to website access claims.
By Laura Zaroski, JD, Socius Insurance Services and Marty Heller, attorney at the law firm Freeman Mathis & Gary LLP