This is going to be an unusual blog because most of it will be in a footnote of sorts. The legal part of the blog is easy. If your business wants to avoid getting sued under the ADA because of an inaccessible website an accessibility overlay or widget isn’t going to help you. I can say this with some certainty because in the last two weeks alone five lawsuits have been filed against businesses that use an accessibility widget or overlay on their websites.* I also know why this is the case. The law firms who file website accessibility lawsuits and their pet clients start the process of finding a target using automated tools that scan for compliance with the technical requirements of the Web Content Accessibility Guidelines 2.0 or 2.1. I have used those tools on websites using an overlay or widget and they almost always flag errors of some kind. There is a lot a dispute about the effectiveness of these scanning tools, but effective or not getting flagged by one of them is an invitation to a lawsuit. If a widget doesn’t fix the errors plaintiff’s lawyers can find using automated tools it won’t prevent a lawsuit. The conclusion is simple. If avoiding litigation is your goal an overlay or widget won’t do the trick. More
Accessibility Litigation Trends
ADA and FHA Quick Hits – Great Caesar’s Ghost edition.
“Beware the Ides of March” was what the prophet warned Caesar according to Shakespeare. It didn’t go well for him, but the latest batch of ADA and FHA decisions are something of a mixed bag. Before getting to that news though I want to make sure everyone who wants one has a copy of my white paper on HUD’s new guidance on service and assistance animals. If you are interested just email me. You will be added as a subscriber to this blog and I’ll email a copy of the paper. But now on to the news.
Standing and intent to return – the Strojnik factor
It is elementary that an ADA plaintiff must establish some likelihood of a future injury in order to have standing. Strojnik v. 1530 Main LP, 2020 WL 981031 (N.D. Tex. Feb. 28, 2020) is one of a small number of Texas cases addressing this issue. Judge Brown’s analysis is worth reading because it looks at the 5th Circuit authorities and explains why the “deterrent effect” doctrine is not sufficient to give a plaintiff standing in the absence of any intent to return. The “deterrent effect” doctrine is, in fact, a mis-named and mis-used substitute for intent to return. A plaintiff who never intended to go back cannot have been deterred from going back by some condition at the defendants’ place of business. Sloppy language and slopping thinking in the Nnth Circuit are the origin and support of the ADA litigation industry. More
Endless liability under the FHA – another court weighs in
I wrote back in 2014 about the problem of endless FHA liability for design/build defects* and have covered other statute of limitations cases as well** but a recent decision from the Southern District of New York is worth noting for both its summary of existing law and the fundamental error it embraces.
In Fair Hous. J. Ctr., Inc. v. JDS Dev. LLC, 2020 WL 1126556 (S.D.N.Y. Mar. 9, 2020) the plaintiff, an advocacy group, dispatched testers to several of the defendant’s developments where they discovered various failures to meet the design/build requirements in 42 U.S.C. §3604(f)(3)(C). The defendant moved to dismiss the plaintiff’s lawsuit on the grounds that the statute of limitations on design/build claims had run. The court disagreed. More
Yes, the ADA is confusing, especially when it comes to websites
I was in the midst of preparing a presentation on ADA website obligations for the Texas Mortgage Bankers Association when I got an email from Jason Richmond of Anttix, Inc., a website design and accessibility consultant. He asked me to clarify, for the benefit of some of his clients, whether the ADA applied to the websites of businesses with fewer than 15 employees. The short answer is: yes, it does. It isn’t surprising though that many businesses and even lawyers are confused about this.
Two different parts of the ADA, Titles I and III, apply to most private businesses. Title I applies to businesses as employers and deals with the rights of disabled employees. Title III applies to businesses that are open to the public and deals with the rights of disabled members of the public. Therein lies the confusion.
Title I only applies to businesses with 15 or more employees. Here’s the statutory tracking for the relevant parts of Title I:
- 42 U.S.C. § 12112(a) forbids discrimination by “covered entities.”
- 42 U.S.C. § 12111(2) defines “covered entities” to include employers and
- 42 U.S.C. § 12111(5)(a) defines “employers” as businesses with 15 or more employees.
Thus, only employers with 15 or more employees are covered by Title I.
Coverage of Title III, on the other hand, goes like this:
- 42 U.S.C. §12182 forbids discrimination by persons who own, lease or operate a “public accommodation.”
- 42 U.S.C. §12181(7) defines a “public accommodation” as any business that falls into one of ten categories of business that typically deal with the public. There is no mention of the number of employees.
Thus, Title III covers any business open to the public, no matter how few employees it has.
An additional source of confusion comes from the fact that not all businesses are public accommodations. A factory, for example, is not usually a public accommodation because it isn’t open to the public. If a factory has 15 or more employees it must to comply with Title I, but if it doesn’t sell to the public it probably does not have any obligation to comply with Title III.
That “probably” can also be a source of confusion. Many courts say that every website that can be accessed by the public is a public accommodation covered by Title III of the ADA. A factory that has no store open to the public might still be covered by Title III if it has a website open to the public. Not all courts agree and the law is developing rapidly, but the safest bet for any business with a website is to treat the website as a public accommodation that must be accessible to those with disabilities under Title III of the ADA.
So, whether a business has only one employee or a thousand, if it is open to the public either in a building or on the internet it is probably covered by Title III of the ADA, and that means it needs an accessible website unless it has a lot of spare cash and a taste for protracted litigation.*
* In which case please call me – I’d love to carry on the fight for you.
ADA and FHA Quick Hits – Hearts & Flowers Edition
Happy Valentine’s Day. The last few weeks have brought the usual assortment of cases, some of more interest than others. I’ll lead with a personal jurisdiction case that has the potential to be important for website accessibility lawsuits.
ADA Website Litigation – an important personal jurisdiction case.
Mercer v. Rampart Hotel Ventures, LLC, 2020 WL 236843 (S.D.N.Y. Jan. 16, 2020) presents a familiar fact pattern. The disabled plaintiff purportedly visited the hotel website for a hotel in Louisiana. She was unable to find information about accessible rooms and therefore exited without trying to book a room. She then sued based on a violation of the ADA, whose regulations require such information, and under New York Law. The Court’s discussion of long arm jurisdiction should be immensely helpful to out-of-state defendants in website cases. The Court first rejected long arm jurisdiction based on a transaction between the plaintiff and defendant because defendant never tried to book a room. It then rejected an argument that other transactions between the hotel and citizens of New York were relevant, finding they were unconnected to the plaintiff’s claims. The next round of briefing in this case will be crucial, for the plaintiff was granted leave to amend to add a claim for personal jurisdiction based on the commission of tortious acts in New York. Courts commonly analogize ADA Title III claims when choosing a statute of limitations: “because most discrimination claims involve “injury to the individual rights of a person” and are analogous to personal injury tort claims. Meriwether v. ABC Training/Safety Council Texas Gulf Coast Chapter, 2016 WL 8711726, at *2 (N.D. Tex. Oct. 24, 2016), report and recommendation adopted, 2016 WL 8711279 (N.D. Tex. Nov. 18, 2016), but to say an ADA claim is analogous to a tort is not the same as saying it is a tort. Indeed, if it were, ADA violations could give rise to a state law action in tort. If the court rejects that notion that an ADA violation constitutes “tortious conduct” under the New York Long Arm Statute it may well become impossible for serial plaintiffs to fuel the ADA litigation machine with casual visits to websites of out-of-state hotels and other businesses.