Top Things New Frontier Questions and Misconceptions About Title III of the ADA
Dec 02, 2016 Top Ten Download PDF
By Kristina Launey
Innovation. It’s changing - in many great ways - the ways companies do business, people live their daily lives, and the legal landscape. Faster than regulatory authorities can keep up. This is all too true in the ADA Title III area, where enterprising plaintiffs’ attorneys are acting quickly to capitalize upon this uncertainty. Below are the top ten “new frontier” questions and misconceptions about Title III of the ADA.
1. It’s Not Just About Ramps or Buildings
Yes, when President Bush signed the Americans with Disabilities Act into law 25 years ago, Title III - the title that governs businesses’ provision of goods and services to the general public - was intended to ensure physical access by individuals with disabilities to the businesses. But it’s more than that. The ADA also requires businesses to effectively communicate with individuals with disabilities and to modify policies and procedures as necessary to ensure equal access to goods and services. And, even in the absence of specific requirements or regulations, enterprising plaintiffs’ attorneys increasingly bring actions alleging ADA violations based upon the ADA’s general principles of equal access.
2. What is this Effective Communication Obligation and How Do We Comply?
Businesses must provide auxiliary aids and services necessary to ensure effective communication, unless a business can show doing so poses an undue burden or fundamental alteration of its goods or services. The public accommodation generally may choose which auxiliary aid or service to provide, as long as the communication is equally as effective as with people without disabilities and privacy and independence are assured. But the business is required to give primary consideration to the person’s requested aid or service. What is effective varies depending on the length, complexity, and context of the communication and the person’s normal method of communicating. The lengthy list of potential auxiliary aids and services includes, as exemplar - in addition to expected aids such as sign language interpreters and Braille - real-time captioning and Electronic and Information Technology (EIT) that is independently accessible or through technology such as accessible features in electronic documents. Though not stated in statute or regulation, websites and mobile applications may fall within EIT.
3. Policies and Procedures: To Have and To Modify
Yes, you do need policies and procedures, but be prepared to modify them. As noted in #1, the ADA requires businesses modify policies and procedures as necessary to ensure equal access to goods or services, unless the public accommodation can demonstrate that making the modifications would fundamentally alter the nature of the goods or services. Having ADA policies in place, including an effective communication policy, is key to ensuring employees know the business’ procedures for complying with ADA obligations, so that they can consistently follow them and ensure equal treatment of all customers, regardless of disability. An effective policy will help a company’s defense if faced with a legal action, and are always required as part of DOJ settlements with companies. Be proactive. And be prepared to modify your policies to ensure you do what is necessary to provide equal access.
4. Does the ADA require websites be accessible?
A very good question. The ADA does not address website accessibility, nor will it anytime soon. The US Department of Justice (DOJ) announced in November that it will not issue any regulations setting a legal standard for public accommodations websites until fiscal year 2018—eight years after it started the website rulemaking process with an 2010 Advanced Notice of Proposed Rulemaking (ANPRM). In the ANPRM, DOJ made a number of statements that led businesses to reasonably conclude that they could and should wait for the regulation to issue before taking action, such as acknowledgement of a need to adopt a legal technical standard for an “accessible” website and asking how much time businesses should be given to comply. It also said that “covered entities with inaccessible websites may comply with the ADA’s requirement for access by providing an accessible alternative, such as a staffed telephone line, for individuals to access the information, goods, and services of their website. In order for an entity to meet its legal obligation under the ADA, an entity’s alternative must provide an equal degree of access in terms of hours of operations and range of information, options, and services available.” But DOJ now publicly takes the position that the obligation to have an accessible website has existed all along. DOJ, advocacy groups, and private plaintiffs have pursued increasing numbers of enforcement actions, demands, and lawsuits, citing the “equal access” principle of the ADA and settlement agreements as “authority” for their claim websites that do not conform to a certain standard for website accessibility violate the ADA. In this murky legal atmosphere, most companies are proactively taking steps to bring their websites and mobile apps into conformance with that web access standard.
5. What Is An Accessible Website?
An accessible website is one that is designed in such a way that people with disabilities - including visual, auditory, physical, speech, cognitive, and neurological disabilities - can perceive, understand, navigate, and interact with the Web. An international consortium called the WC3 developed a set of guidelines called the Web Content Accessibility Guidelines (WCAG), which has become the generally accepted standard for web accessibility. It is the standard cited in most DOJ consent decrees and private settlement agreements, in proposed Rehabilitation Act Section 508 regulations (applicable to the federal government), and adopted in Air Carrier Access Act regulations (applicable to airlines). It is therefore the standard that proactive businesses are trying to achieve as well.
6. Can you give me some examples?
Common issues individuals with disabilities experience with inaccessible websites include: complex navigation, timeout restrictions, poor screen contrast; fields that did not state an accepted format (such as date fields) and fields that were mislabeled or not labeled at all; images that conveyed information, but did not have alternative text for individuals using screen readers; could not be navigated with keystrokes and required mouse input; videos or audio instructions that were not closed captioned; inaccessible “CAPTCHAs“ (used to determine whether or not the user is human) with no audio option; lack of contact information for technical support.
7. Web-Only Businesses Are Not Subject to the ADA
Even the courts can’t agree on this one. On April 1, 2015, the Ninth Circuit became the first federal appellate court in the country to hold that web-only businesses are not places of public accommodation, and thus, not covered by Title III of the ADA. Following Ninth Circuit district court decisions, the Court held in the cases of Cullen v. Netflix and Earll v. Ebay that websites must have a nexus to a brick and mortar location to be subject to Title III. In contrast, district courts in Massachusetts and Vermont (Nat’l Federation of the Blind v. Scribd) have held that no brick and mortar presence is required for Title III coverage. This is as far as courts have gone in opinions on the applicability of the ADA to websites because the cases have settled after this point.
8. Are you seeing ADA website litigation?
Yes, we have seen plaintiff’s lawyers initiate a virtual tsunami of demand letters and lawsuits against all manner of businesses (e.g., retailers, hotels, banks) alleging that their websites are not accessible to claimants with disabilities. We have seen time and again businesses settle—hence the dearth of case law in this area—quite simply (to the outside world; not so simple to the business’s interior decision-making) because it is less expensive to settle than to litigate in an uncertain legal landscape. These enterprising litigants know this. Even if your business is not subject to Title III (or even if you are), you may still face claims from prospective or current employees regarding inaccessible websites. We’ve seen this year a flurry of lawsuits and publicity surrounding the inability of candidates for employment with disabilities to complete online applications for employment due to inaccessible company websites. Seyfarth’s ADA Title III Team tracks ADA Title III lawsuit filings. We’ve found the number of ADA Title III lawsuits increased 60% between 2013 and 2014 (2479 vs. 4436). In the first six months of 2015, 2114 Title III lawsuits were filed, which we believe will cause the total 2015 number to closely mirror 2014’s total. While we have not analyzed whether the filings dealt with architectural issues, operational issues, or digital accessibility; it is clear physical accessibility lawsuits are still frequently filed, and website accessibility lawsuits are rapidly increasing.
9. What About Other Technologies?
Inaccessible point of sale (POS) devices have been a frequent subject of DOJ and private actions over the past few years. In 2014, the DOJ filed a Statement of Interest in support of a private plaintiff who sued a retailer over an inaccessible POS device. The plaintiff could not make a purchase using his debit card because he could not input his PIN into the POS device’s smooth touchscreen keypad. Similar to the arguments we’re seeing in the web access area, the DOJ emphatically stated that the lack of specific technical standards for POS devices does not mean that they are not required to be accessible because the more general obligation for public accommodations to provide auxiliary aids and services to ensure effective communication would still apply and it would be up to the public accommodation to come up with a way to meet the obligation. The DOJ noted that while providing POS devices with tactile keypads would be one approach, there could be other technologies that could provide accessibility as well. The DOJ argument that a POS device has to be accessible even though there are no technical standards could be extended to all manner of self-service equipment found in public accommodation establishments, such as coupon machines, beverage dispensers, and kiosks used for ticketing, rental, and check in. In fact, there have been multiple lawsuits about DVD rental kiosks, beverage dispensing machines, and other technologies like UPC scanning devices. Thus, public accommodations with such equipment should carefully consider how accessibility will be ensured for these machines and other technologies at their place(s) of business.
10. What Can I Do To Mitigate Risk?
Put in place effective policies. Most businesses have, at a minimum, a general ADA policy and an effective communication policy. Then train your employees on those policies and best practices to ensure they prepared to interact sensitively with customers who are have disabilities - especially disabilities that are not obvious. For example, they should be ready to read written documents to customers who are blind or have low vision and to exchange notes with customers who are deaf, hard of hearing, or have difficulty speaking. In the web access area, work with your ADA Title III specialist attorneys and an accessibility consultant to evaluate your websites and make any necessary changes. Training all employees involved in web design and creation, user experience, and customer service is crucial toward ensuring dynamic websites do not become inaccessible through code changes and customer service agents know the issues individuals with disabilities may call about and how to deal with them. Be open to customer feedback. It is a great opportunity to learn about your customers and their thoughts on how accessible your business actually is. Be open to receiving feedback and act on it. You may be preventing a lawsuit in the process.
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