How can I avoid getting sued for having a non-accessible website? With thousands of demand letters sent, and more than a hundred lawsuits filed(1), this is an important question for any business that has a consumer facing website. It is widely assumed based on past DOJ consent decrees, existing non-ADA regulations and the settlements made by private litigants that “accessible” means compliant with WCAG 2.0, success level AA.(2) Most businesses find, however, that it is a long and rocky road from today’s non-accessible website to a primary website that meets the WCAG 2.0 standard. Until the journey’s end there is no certain defense to an ADA lawsuit.(3) On top of that, it is universally agreed that a dynamic consumer facing website will inevitably fall out of compliance unless the folks who create and maintain it are constantly vigilant. More
ADA Web Access
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Internet, ADA Internet Web, ADA Web Access Tags: ADA drive-by litigation, ADA serial litigation, ADA standing, Ron Deutsch, Travis County
This is a follow up to last week’s blog, “Consolidate and Eliminate.” A magistrate judge in the Western District of Texas seems to be just that in a series of cases (more than 300) filed by Jon Deutsch in Austin, Texas. Deutsch v. Annis Enterprises, Inc., 2016 WL 5317431 (W.D. Tex. Sept. 21, 2016). I won’t provide a detailed analysis of the opinion, which should be read by every lawyer representing defendants in serial litigant cases,* but two points stand out. First, the Court conducted an evidentiary hearing, thus moving past the pleading stage, at which standing depends only on the plaintiff’s willingness to lie. Putting the plaintiff to his proof of standing early in the case is the single most important reason to consolidate and eliminate because it allows the critical fact issue to be resolved early, before the costs of litigation become absurd. More
By Richard Hunt in Accessibility Litigation Trends, ADA Internet, ADA Internet Web, ADA Vending Machines, ADA Web Access, Internet Tags: ADA Internet, ADA vending machines, ADA web, Coca Cola ADA, internet accessibility, Magee v Coca Cola
“In deciding that Coca–Cola’s vending machines in the instant case are not places of public accommodation, we acknowledge the limits of our holding. As the district court recognized, those vending machines may very well be subject to various requirements under the ADA by virtue of their being located in a hospital or a bus station, both of which are indisputably places of public accommodation. Here, however, Magee sued only Coca–Cola, an entity that does not own, lease (or lease to), or operate a place of public accommodation.”
Magee v. Coca-Cola Refreshments USA, Inc., 2016 WL 4363306, at *5 (5th Cir. Aug. 15, 2016).
Last month the Fifth Circuit confirmed a lower court decision finding that vending machines were not public accommodations and that by themselves they are not required to be accessible. The reasoning was very similar to that in the Netflix and Target cases from the Ninth Circuit. Like the Fifth Circuit, the Ninth Circuit found that a “public accommodation” means a physical store or similar facility where one buys goods or services. A website (in Netflix) or a vending machine (in Magee) might be a service of a public accommodation, in which case the public accommodation may be required to make it accessible. By itself, however, a website or vending machine is not a public accommodation. Standing alone it is not required to be accessible because it is simply not covered by the ADA.
The same kind of argument led to a similar result in Am. Ass’n of People with Disabilities v. Harris, 647 F.3d 1093 (11th Cir. 2011). The issue in Harris was whether voting machines were required to be accessible. The Court found they were not because the machines themselves were not public accommodations.
A completely different view appears in cases like Carparts Distribution Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, Inc., 37 F.3d 12 (1st Cir. 1994) that focus less on the definition of public accommodation and more on the notion that goods and services should be accessible. These courts tend to view a distinction based on how goods or services may be purchased as irrational. Buying on the web or by phone shouldn’t be any different than buying in a physical store, at least with respect to accessibility. Carparts was a pre-internet case dealing with telephone transactions, but it resembles recent cases like Scribd that make the same argument.
The position of the Department of Justice lines up with that of the First Circuit in Carparts, even though its regulatory definitions of words like “facility” would seem to support McGee. At the end of the day though the day the courts will decide just what the ADA covers.
What we see in the contrast between McGee and Carparts is competing views of the ADA, with McGee representing courts who believe Congress applied the ADA only to public accommodations because it is focused on physical accessibility, while Carparts reflects the views of those courts and the Department of Justice who see the ADA as a broad mandate for accessibility regardless of its specific language. These views cannot be reconciled, and while the question of internet accessibility tends to dominate today’s discussion of the ADA, it is worthwhile to remember that cases about vending machines and telephone services will also help define the law in individual circuits – at least until the Supreme Court is finally given a chance to weigh in on the subject.
NOTE: for earlier blogs on this subject, click on the ADA Web Access category to the left.
On August 11, 2016 the Department of Justice finally issued its regulations implementing the expanded definition of disability contained in the 2008 Americans with Disabilities Act Amendments. The actual content of the regulations, which apply to Titles II and III of the ADA, will already be familiar to most businesses because they are intended to be consistent with the EEOC’s 2011 regulations implementing the 2008 ADAA for Title I. Equally important, they appear after eight long years of lawsuits brought under the 2008 ADAA in which the courts and litigants had to wrestle with the meaning of the statute. More
By Richard Hunt in Accessibility Litigation Trends, ADA Class Actions, ADA Internet, ADA Internet Web, ADA Point of Sale, ADA Web Access, Internet, Internet Accessibility, Retail Tags: ADA arbitration, ADA Class Action, Container Store, National Federation of the Blind, Point of Sale, POS terminal
This week’s decision in Nat’l Fed’n of the Blind v. Container Store, Inc., 2016 WL 4027711 (D. Mass. July 27, 2016) is a call to action for every business that uses a click to accept type license or other agreements. Such agreements may not be enforceable in an ADA context unless special care is taken.
The case involved the Container Store’s loyalty program, which provides various perks and rewards. Customers could sign up when making a purchase at a store or online. In either case the process included clicking an “I Accept” button linked to the usual boilerplate terms and conditions, which included an agreement to arbitrate. The problem? Container Stores use a touchscreen Point of Sale device that is not accessible to the blind because it has no tactile controls. I blogged about the issue here, and the problem hasn’t gone away. The argument is straightforward. Blind customers cannot use the devices without giving personal information about their credit card information and email address to the clerk, while sighted customers can preserve their privacy on these matters. More