“Regardless, Plaintiff may not claim a violation of Title III based on an internet website’s accessibility. Neither Busch Gardens’ nor SeaWorld’s online website is a physical or public accommodation under the ADA. Access Now, Inc. v. Sw. Airlines, Co., 227 F. Supp. 2d 1312, 1321 (S.D. Fla. 2002). “[T]he internet is a unique medium—known to its users as ‘cyberspace’—located in no particular geographical location but available to anyone, anywhere in the world, with access to the internet.” See id. (internal quotation marks omitted). Hence, Plaintiff is unable to demonstrate that either Busch Gardens’ or SeaWorld’s online website prevents his access to “a specific, physical, concrete space such as a particular airline ticket counter or travel agency.” See id. As a result, Plaintiff may not plead a claim based on accessibility of an online website under Title III of the ADA. See id.” More
ADA Internet Web
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Internet, ADA Internet Web, ADA Litigation Procedure, Internet Accessibility Tags: ADA Reform, ADA serial litigation, Anderson Cooper, drive-by lawsuits
Sixty Minutes and Forbes have now weighed in on the serial litigation crisis that threatens small businesses sued for often innocent or trivial ADA violations. Congress is gearing up once again to require pre-suit notice, a change demanded by businesses and opposed by disability rights groups. Meanwhile, the pace of ADA filings has only increased, with hyper-aggressive lawyers moving from dozens to hundreds of lawsuits a month, many now concerning web access. Federal judges have responded in some cases with sanctions that amounted in one case to more than $100,000.
How did we get to here? Why has a law to help the disabled turned into a litigation industry? The answer is more complicated than unethical lawyers or profiteering plaintiffs. At the root of the litigation crisis are four things: More
Three interesting decisions, and a news report were published last week that deserve attention, but really don’t need a lengthy discussion. First, in Natl. Assn. of the Deaf v. Harvard U., 2016 WL 6540446, at *2 (D. Mass. Nov. 3, 2016) the Court adopted the earlier Magistrate Judge’s recommendation against dismissal claims against Harvard for failing to caption its on-line video courses. The case will now continue into discovery or, more likely, settle as the costs of defense become unreasonable when compared to the cost of settlement. A related news story , Pitt Professor Sues Southside Works Cinema discusses a lawsuit based on the lack of closed captioning at a local movie theater. As with internet access, closed captioning in theaters is an area in which DOJ’s failure to regulate has created a situation in which litigation is going to define the requirements of the ADA because DOJ is incapable of figuring out how to make a good rule. I’m sympathetic to the difficulties face by DOJ after reading through the mass of requirements imposed on the regulatory process (see, Fed. Reg. vol. 79, pages 44976 to 44514), but these regulations were first announced in 2010. The regulatory process simply cannot keep up with the rapid pace of technological change, and so DOJ has adopted the far more inefficient and regulatory method of letting the requirements of the ADA be set through hundreds of different judicial decisions whose outcome depends not only on the quality of the judge, but also the quality and position of the litigants. If DOJ cannot regulate the details of accessibility, it should at least provide that accessibility is not required until those details are provided.
The inefficiency and sometimes outright stupidity of ADA litigation is perfectly illustrated by Love v. Sanchez, 2016 WL 6683152 (C.D. Cal. Nov. 14, 2016). The plaintiff alleged, correctly, that the defendant lacked accessible parking. Defendant provided a space, but did it wrong. Plaintiff obtained an expert report to that effect and filed a motion for summary judgment. Defendant hired an expert and made the space compliant except, perhaps, for slightly excessive cross slopes at two locations. Plaintiff hired a new expert who found those excessive cross-slopes. Defendant’s expert disagreed and, at the end of the day, the Court denied the motion for summary judgment because it could not determine the fact question as to which expert was right.
Conceding that the lawsuit had the beneficial effect of persuading the defendant to put in an accessible spot, consider the time and money spent afterwards quibbling about the difference between a 2.8% and 2.0% cross slope. The plaintiff’s motive was simple. His attorneys would not be paid unless they won. The defendant’s motive was equally simple. Losing would more than double his liability because he would also have to pay the plaintiff’s attorney’s fees. The focus of the lawsuit, almost from the beginning, was on payment for the attorneys, not accessibility for the disabled. This is a perpetual theme in ADA litigation, with access for the disabled usually taking second place to profits for the lawyers.
A third decision concerned public restrooms; or more accurately, a former public restroom. In Ramirez v. Golden Crème Donuts et al., 2016 WL 6648699 (9th Cir. Nov. 10, 2016) the Ninth Circuit reminded us that the ADA does not require public restrooms in public accommodations, and that closing a restroom to the public is one way to solve the problem of non-compliant restrooms. This is true even when local ordinances may require public restrooms because compliance with local law is a matter between the business and local authorities in which the federal courts will not ordinarily participate. Restroom renovation is frequently the most complex and expensive part of ADA compliance, so the quick fix of closing the restroom may be a good option in avoiding litigation even though in the long run the expense is unavoidable.
20 or more times a day an ADA claim is filed in Federal Court somewhere in the United States. This has been true for decades, and yet non-compliance appears to be as prevalent as ever. Maybe it’s time to re-think the way the ADA is enforced.
The ADA played a typically minor role in the recent election. Democrats made it clear they were for the disabled but did not propose specific new programs. Republicans barely mentioned the disabled except for a brief controversy involving Trump mocking a disabled reporter. With disability rights playing such a minor role in Republican politics one might think that Trump’s election means no change, but in fact a Trump presidency may lead to a significant narrowing of the ADA’s application and reduced federal enforcement action. More
By Richard Hunt in Accessibility Litigation Trends, ADA Class Actions, ADA Gig Economy, ADA Internet, ADA Internet Web, Internet Accessibility Tags: Gig Economy, Kardashian, Lyft, National Federation of the Blind, uber
Uber and Lyft have made news for the last couple of years because of allegations that their drivers do not provide appropriate service to disabled individuals.(1) Settlement of a national class action against Uber is awaiting court approval in the Northern District of California,(2) but as recently as October 13 another lawsuit was filed claiming that Uber drivers did not comply with the ADA.(3) Legal arguments about the application of the ADA to app based services using independent contractors are fascinating, but these lawsuits have a much broader importance in the modern gig economy, for increasing numbers of individuals have dropped or been forced out of traditional employment positions and are now on their own, dealing directly with the public and making decisions that may have ADA and fair housing implications.(4)
One of the persistent myths about the ADA is that it only applies to businesses of a certain size, and many indivduals operating solo businesses assume that they are just too small for the ADA to apply to them. The confusion comes because Title I of the ADA, concerning employment, is limited to businesses with more than 15 employees. Title III of the ADA, which governs the interactions of a business with the public, has no such limitation. The homeless man who washes your windshield at a stop light and hopes for a few bucks as a tip is just as much a “public accommodation” subject to Title III of the ADA as a Walmart or a Holiday Inn hotel.(5) In a gig economy the freedom that comes with working for yourself is accompanied by a legal obligation to those with disabilities that may be hard to understand. Here are just a few examples:
- Internet sellers have varying degrees of control over the websites they use to display their goods and receive payment, and may not understand that the very act of selling makes them public accommodations with some obligation to sell through accessible websites. You don’t have to be a Kardashian to be sued under the ADA for having an inaccessible website.(6)
- Ride share drivers are public accommodations just like the companies they contract with. The first target of a lawsuit will usually be Uber or Lyft or a similar organization for the very good reason they are bigger and have more money, but individual drivers can be targets as well.
- Boutique bakers, brewers and pastry chefs operating out of a tiny storefront or old house may discover the ADA requires that their premises be accessible.
- Freelance yoga instructors may need to consider what they will do when a student with physical or intellectual impairments wants to join their class in the park.
The ADA and the ADAAG and 2010 Standards make a nod toward small businesses, and the hypothetical, long awaited DOJ regulations concerning internet accessibility may as well, but the ADA and existing regulations were not written with the gig economy or the possibility of internet businesses in mind. Unless and until new regulations are issued, which is years away at best, folks who have embarked on independent careers working for themselves should carefully consider what their ADA obligations might be.(7)