A couple of quick hits on the ADA, the internet, and public restrooms

November 20, 2016 By Richard Hunt in Accessibility Litigation Trends, ADA Internet, ADA Internet Web, ADA Mootness, Internet Accessibility Tags: Accessible Restrooms, ADA, Closed Captioning, Harvard

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.

Good news and a sobering reminder about “sober homes” and the FHA

November 14, 2016 By Richard Hunt in ADA FHA General, ADA FHA Legislation, FHA Guidance, FHA Reasonable Accommodation, FHA Regulation, Internet Accessibility

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

ADA and the Gig Economy – what Uber and Lyft cases mean for everybody.

October 22, 2016 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)

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.

3) See, Chicago Disability Advocates file Lawsuit Against Uber over Wheelchair Accessibility.

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.

6) See, Legally Blind Man Sues Kardashian DASH Stores For Violating His Rights — But Is It Just A Money Grab?!

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.

October 10, 2016 By Richard Hunt in Accessibility Litigation Trends, ADA Internet, ADA Internet Web, ADA Web Access, Internet, Internet Accessibility Tags: ADA Internet, ADA web, Doug Loo, Jason Taylor, Usablenet, WCAG 2.0, Xpanxion

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.

July 31, 2016 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