The Department of Justice and Housing and Urban Development have just issued a guidance document concerning sober homes and other types of group living arrangements. It should help provide some clarity to cities and towns still wrestling with issues related to group living after decades of litigation. At the same, however, the document reminds us of the sobering reality that the Department of Justice and Housing and Urban Development believe they are above the law in their roles as advocates for the disabled, and will not hesitate to use their essentially unlimited resources to litigate intellectually unsustainable positions. More
Internet Accessibility
ADA and the Gig Economy – what Uber and Lyft cases mean for everybody.
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)
1) You can read my earlier blogs Is it all Uber for ride-sharing businesses that don’t comply with the ADA? and Need a Lyft? The ADA may apply to app based businesses as well as these more recent articles: Court hits Uber and Lyft for ADA Violations,
2) National Federation of the Blind v. Uber Technologies, Inc., Case No. 3:14-cv-04086. A hearing is set for December 1, 2016 on approval of the settlement.
4) An interesting take on this phenomenon can be found at Why I Tell My MBA Students to Stop Looking for a Job and Join the Gig Economy
5) 42 U.S.C. section 12181 limits “public accommodations” to those that affect interstate commerce, but interstate commerce has been so broadly defined by the courts that this does not limit the meaning of “public accommodation” in any meaningful way. After all, the homeless windshield washer may well be washing the windshield of a car from another state.
7) Employers interested in telecommuting and other issues related to the gig economy will find a lengthy article on Title I issues at http://www.jdsupra.com/legalnews/telework-under-the-ada-other-16761/
Accessible websites under the ADA – shortcuts on a rocky road.
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
You can’t agree to what you can’t read – the perils of clickwrap when the ADA is involved.
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
ADA and the Internet – Guilty until proven innocent, and you don’t get to prove you are innocent.
I
n a decision issued on April 20, Judge Arthur Schwab of the Western District of Pennsylvania makes it clear that every potential defendant who was sent one of the Carlson Lynch firm’s ADA Internet demand letters will end up in his court, and will have little choice but to settle. Since Carlson Lynch apparently sent hundreds of letters, Judge Schwab has effectively seized control of hundreds of cases that have not yet been filed. Sipe v. Am. Casino & Entm’t Properties, LLC, 2016 WL 1580349 (W.D. Pa. Apr. 20, 2016). More