Rental bikes and the ADA – Hunt quoted in Dallas News Article

January 23, 2018 By Richard Hunt in ADA Tags: ADA, Dallas Morning News, Kyle Martin, rental bikes

Richard is quoted the Dallas Morning News article “For disabled people, rent-a-bikes are more than an annoyance, but do they violate the ADA?” an article by Kyle Martin that appeared on January 22, 2018. The problem is simple. Bicycles are rented and then left blocking sidewalks and ramps. The person to blame is the individual who rented the bike, but such individuals are not subject to Title III of the ADA. The rental companies themselves have no control of the bikes other than the ability to engage locks that make them unrideable, and the City has few effective means to police where the bikes are left. It is a reminder that the ADA is not a general “make life better for the disabled” law, but rather a targeted effort to give the disabled equal access to the goods and services of American businesses. Some problems, including people who are just plain rude, can’t be fixed by legislation.*

*For more information about the problem see “What a photographer found on a search for bike-share carnage in Dallas” by Rose Baca of the Dallas News. Thanks to Rose and the Dallas News for use of her photograph.

Hunt quoted on Rehabilitation Act Section 508 provisions for web access

January 18, 2018 By Richard Hunt in Rehabilitation Act, Section 508 Web Access Tags: Rehabilitation Act, Section 508 Refresh

Tooting our own horn as they say, we note that B2B E-Commerce World quoted Richard in a January 17, 2018 article by Paul Demery, “The government’s push to higher web accessibility standards.” For businesses that do business with the federal government the article provides a good overview of the Section 508 “ICT Refresh” that incorporated WCAG 2.0 into the requirements of Section 508. Richard’s observation was simply that litigation under Section 508 is far less common that litigation under Title III of the ADA because the requirements apply primarily to the federal government and some of its technology contractors so disputes are handled directly between the government and those contractors. It should be noted that Title III and Title II lawsuits against entities that receive federal funding frequently include a claim under Section 504 of the Rehabilitation Act, which has only a general non-discrimination provision and whose regulations do not explicitly incorporate a web accessibility standard. DOJ takes the position that both Section 504 and Title III of the ADA require web accessibility.

What is an ADA accessible website? Well, it’s complicated.

January 17, 2018 By Richard Hunt in Accessibility Litigation Trends, ADA Internet, ADA Internet Web, ADA Mootness, ADA Web Access

What does it mean for a website to be “accessible?” The standard answer for several years, now embodied in the implementing regulations for Section 508 of the Rehabilitation Act, is that accessible means “conforming” to WCAG 2.0 success level AA. A recent decision from the Eastern District of New York, Andrews v. Blick Art Materials, LLC, 2017 WL 6542466 (E.D.N.Y. Dec. 21, 2017), has a good discussion of why this should be the case, at least with respect to the visually impaired.* However, the focus in Andrews v. Blick Art was whether the terms of a settlement were appropriate, not whether WCAG 2.0 success level AA is what the courts should order.

In the one case that has gone to trial, Gil v. Winn-Dixie Stores, Inc., the court ordered WCAG 2.0 compliance after finding that the defendant’s website was not accessible. The order is interesting because it orders in general terms that the website be accessible and then specifically that it comply with WCAG 2.0, but never says that WCAG 2.0 compliance is equivalent to accessibility and never says what success level is required. This is one of many issues raised by the defendant on appeal, for it argues that because WCAG 2.0 is based on general principles rather than specific mandates the defendant can never be sure whether it has complied.**

This brings us to Eason v. New York State Bd. of Elections, 2017 WL 6514837 (S.D.N.Y. Dec. 20, 2017). Eason is a Title II / Rehabilitation Act case that bypasses the “does the ADA apply” question because Title II entities must make their programs accessible, meaning there is no real doubt that their websites should be accessible. That leaves more complicated questions about just what accessibility means.

The Court’s first observation is that the plaintiff and defendant have very different theories about how to approach the case in the first place. The plaintiff seems to have wanted a broad finding that the website was not accessible with an order for the implementation of policies and procedures to make and keep it accessible. The defendant, on the other hand, had fixed the specific problems listed in the complaint and wanted the case dismissed on the theory that the case concerned only those problems and was therefore moot. The Court rejected both approaches.

It rejected the defense approach because, it found, the complaint was sufficiently open to include accessibility problems other than those listed in it. It also analogized websites to physical facilities, noting that inaccessibility at one place might keep a disabled person from even getting to another place to discover what was inaccessible there.

The Court did not reject the plaintiff’s theory of relief, but did reject the report of the plaintiff’s expert, which it found had a number of problems, the most important of which was a failure to focus on “meaningful access” as opposed to “equal access.” Equal access is, of course, impossible. A blind person cannot under any circumstances equally see an image. What is required, according to the Court, is meaningful or functional access to the services offered on the website.

This focus on meaningful access required a trial according. The opinion says the Court wants to see how screenreader software works on the website itself to determine whether there is meaningful access. That, it found, depends on things like how long it takes to access a service for a vision impaired person as compared to a person with ordinary vision. It isn’t hard to imagine any number of difficult questions raised by the “meaningful access” standard. If an image is important, how much description is required for a person using a screen reader to have meaningful access. Is “boy and dog” enough, or does it need to specify “boy and dog playing with stick” or “boy and dog playing with stick in the park?” Those are the kinds of questions the Court seems to believe could only be answered by looking at the entire process by which an individual with a screen reader uses a website. This is, by the way, something that good website accessibility consultants agree is true. No algorithmic or software analysis is sufficient. If you want to know whether a website is accessible, you have to test it with humans.

Notably absent is any mention of WCAG 2.0. The Court seems to have adopted an approach that asks the plaintiff to explain where the problems are, the Court looks at the problems to see if it agrees, and then the Court orders that problem fixed as opposed to accepting that problems exist and then ordering WCAG 2.0 compliance as the solution. From a legal perspective this makes perfect sense. The Court can only decide the dispute it has before it, and that dispute involves a particular blind individual who had or might have specific problems with a specific website. Requiring that the website meet some general level of accessibility for the good of all disabled persons is generally beyond the court’s authority in individual private lawsuits.

Although Andrews v. Blick touches on the question of whether WCAG 2.0 is an appropriate accessibility standard, none of these cases delves very far in to the difficult questions raised by the Winn-Dixie appeal. The first of these is how to bridge the gap between general principles and the hard reality of software code and hardware choices. One of the disputes in another recent case, Del-Orden v. Bonobos, Inc., 2017 WL 6547902 (S.D.N.Y. Dec. 20, 2017) concerned the ability of low-vision users to see an on-screen button while using the screen zoom function. On screens larger than 23.5 inches it was visible. On smaller screens it was not. Is WCAG 2.0 compliance required for every possible screen size or resolution, or can a business ignore outdated displays and standards? Similar problems exist with respect to the differing capabilities of screen reader software and mobile devices. WCAG 2.0 is supposed to be device independent, but that comes at the cost of not being precise, and a lack of precision is an invitation to litigation.

The ADA standards for access to physical places are “objective,” “precise” and “thorough.”† A business that satisfies them can be certain that its physical facility complies with the requirements of the ADA. WCAG 2.0, for all its commentary and technical resources, ultimately concerns the subjective experience of a particular user, with particular software and hardware, interacting with a website that, unlike most physical businesses, constantly changes. WCAG 2.0 Success Level AA is the best bet for any business website, but cases like Winn-Dixie and Eason are raising questions about what “accessible” means that courts may find difficult to answer when it comes to websites.‡

* This decision is worth reading by any person who wants to understand how websites can be inaccessible, for it includes a detailed description of the problems in the defendants’ website from a functional perspective.

** The appeal is Case No. 17-13467 in the 11th Federal Circuit Court of Appeals. On January 13 the Court of Appeals found the case required oral argument, but it has not yet set a date.

† Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 945 (9th Cir. 2011).

‡ In this regard businesses should note that WCAG 2.0 will be updated this spring to WCAG 2.1, which includes a number of new Success Level AA criteria, including one that would probably fix the zoom problem identified in Del-Orden v. Bonobos. Like any change in accessibility criteria this one begs the question, “if the change is needed, does that mean the earlier standard did not insure accessibility?” Every accessibility technology can be improved and no accessibility standard guarantees complete access for all. When technology is rapidly evolving every effort to find the right compromise is bound to be temporary. Rapid change is not something that Congress, the Courts, or regulators are very good at.

Weapons of Mass Confusion – meet the ADA and FHA.

January 2, 2018 By Richard Hunt in Accessibility Litigation Trends, ADA, ADA - Hotels, ADA FHA General, ADA service animals, FHA, FHA Emotional Support Animals, FHA Regulation Tags: ADA, Confusion, FHA, WMD

The last ADA / FHA headline that reached my email in 2017 was about a woman in Florida who complained that her “service dog” was not allowed at the pool by her condominium association. It was not an unusual story, but it summed up the way the ADA and FHA, both individually and together have caused confusion for the disabled and businesses that leads to distrust and litigation. To start the New Year I’m presenting a very short primer on the rights these statutes protect and how they relate to each other.

The ADA and FHA protect the rights of the disabled in different places. Title III of the ADA* is designed to make sure that disabled individuals have access to the goods and services sold by every kind of business that is open to the public** except residential sales and rentals. The FHA, on the other hand, is intended to make sure disabled individuals have equal access to housing. When the woman in the story I mentioned above says that the ADA gave her the right to have her dog at the pool she was confusing the ADA and FHA. A condominium swimming pool that is not open to the public is not governed by the ADA because it is not a public accommodation. It is governed by the FHA because it is associated with housing. Both the FHA and ADA have rules about service dogs, but they aren’t the same because they apply in different places.

Speaking of service dogs, this is another area in which confusion reigns. The ADA generally requires businesses to admit “service dogs” and “service miniature horses.” In either case the animal must have special training to help with the disability of the individual. Guide dogs for the blind are an example. Admission is required despite the fact that animals can be disruptive in public places because a disabled person generally cannot function without his or her service dog or miniature horse, and because the training of these animals includes socialization and correct behavior in public. The FHA, on the other hand, creates rights for the disabled not only for service dogs and miniature horses, but also for “comfort” or “therapy” animals of every kind. These need not have special training as long as they are needed for the disabled individual to use and enjoy their housing. For example, a person with anxiety disorder may not be able to sleep without a comfort animal nearby. The FHA is less restrictive because the untrained animal is only needed in the apartment or house and is not exposed to the public. This becomes tricky when the resident claims the animal is needed to allow access to a related facility, like a pool. Can a disabled resident enjoy the pool if his or her therapy animal is left behind in the apartment? That depends on the nature of the disability and the reason the animal is needed in the first place.†

How about service animals in training? Here again the prospects for confusion are considerable. The ADA does not require that service animals in training be allowed in public accommodations precisely because until they are trained they are not useful to or required by the disabled person. On the other hand, if the training involves living with the disabled handler then the FHA requires the animal be permitted even if, at present, it is not really doing anything useful at all.

This housing v. public accommodation difference isn’t always perfectly obvious. Hotels are public accommodations even though people live in them for some period of time. Student housing is always temporary, but some courts say dormitories are subject to the FHA. Housing, temporary or not, is a frequent source of confusion for builders. The ADA requires that in larger hotels or inns 5% of the rooms be completely accessible – meaning that they must have grab bars and even roll in showers for example. The rest of the rooms generally need not have this level of accessibility. The FHA, on the other hand, requires that every apartment be somewhat accessible, but does not require things like grab bars or roll-in showers. I have had any number of apartment developers assure me they complied with the law because five percent of the units were “ADA” units even though the other 95% did not meet the standards in the Fair Housing Act. Apartments must comply with the FHA, hotels must comply with the ADA and some kinds of housing must apply with both. Knowing which law applies makes a difference.

Knowing which law applies also matters when it comes to existing conditions that violate the statutory standards. The ADA requires that any business owner or operator correct conditions that are barriers to access for the disabled as long as it is not unreasonably expensive or difficult. That obligation applies to every public accommodation, no matter how old it may be and to every owner and operator, even if they just took over last week. The FHA, on the other hand, does not require that any owner except the original owner fix accessibility problems, and applies in any case only to buildings constructed after its effective date. We regularly get calls about individuals who want their landlord to fix an accessibility problem that would need correction in a public accommodation, but for which the current owner and management company for an apartment complex have no obligation to fix unless the tenant will pay for it.

Sometimes, of course, both laws apply. The leasing office of an apartment complex offers services to the residents. That makes it an FHA facility. The leasing office is also open to the public. That makes it an ADA public accommodation. The rules for accessibility in such areas are slightly different, with the ADA rules being a little more restrictive. That architect who designed the “ADA” apartments should have put his knowledge of the ADA construction standards to use in the leasing office.

A related problem concerns model homes. The FHA design standards apply only to multi-family buildings‡ but when a single family residence is used as a model home open to the public it can become an ADA public accommodation. Single family homes and duplexes are rarely designed with accessibility in mind, and this can create real problems.

What about the pool? A condominium or apartment pool is not generally open to the public, and the standards for pool accessibility under the FHA are much easier to meet than the ADA standards for a public pool. However, if the apartment or condominium allows the pool to be rented by non-residents it becomes, at least while it is rented, a public accommodation. That means, among other things, it must have a built-in pool lift. This can be a problem in single family developments where a pool facility owned by the homeowners association is rented to non-residents.

Finally, even the language of the ADA and FHA can be confusing. The FHA requires that apartment owners or managers be willing to do two things, make reasonable accommodations in policies and procedures and make reasonable modifications to the physical premises. That’s “accommodation” v. “modification.” The ADA, on the other hand, talks about “modification” of policies and procedures. When someone asks about a “reasonable modification” in the ADA context it means something completely different than in the FHA context.

None of this confusion is really necessary, but unfortunately the FHA is administered by the Department of Housing and Urban Development, Title III of the ADA is administered by the Department of Justice, and many businesses of all kinds rely on architects, contractors or (horror of horrors) the internet to determine just what their obligations might be. With two different administrative agencies, two statutes and thousands of pages of regulatory material this is one of those areas in which, unfortunately, you really need a lawyer familiar with the statutes and regulations.

NOTE: that last sentence means this may be an advertisement or means of self promotion. But you already knew that, didn’t you?

* I’m only going to discuss Title III of the ADA, which is the part that applies to public accommodations – that is, businesses open to the public. Titles I, II and IV cover disability rights in other contexts.

** Whether this includes internet businesses is still an open question, but it certainly includes every business with a physical location open to the public.

† An additional layer of confusion is created by the Air Carrier Access Act, which has its own rules about service and other animals, as well as by Title I of the ADA, which asks different questions about the animal in an employment context.

‡ Basically, four or more units under one roof.

Thanks to Mark du Toit for the cartoon. His website is www.marktoon.co.uk

DOJ’s withdrawal of its 2016 Olmstead statement – this one does mean something.

December 28, 2017 By Richard Hunt in Uncategorized

The last of the ADA related guidance withdrawals in the Attorney General’s December 21, 2017 press release was the:

“Statement of the Department of Justice on Application of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C. to State and Local Governments’ Employment Service Systems for Individuals with Disabilities (October 31, 2016).”

This lengthy statement covers work programs for the disabled. DOJ’s position has long been that any work program for the disabled, whether private or governmental must be conducted in an “integrated setting;” that is, with other non-disabled individuals as employees. The 2016 statement was originally published as an extension of DOJ’s June 22, 2011 statement:

“Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C.”

Here’s what DOJ officially says about the withdrawal of the Statement:

December 21, 2017—The Department of Justice has withdrawn and removed from ADA.gov its October 2016 guidance on State and local governments’ employment service systems, titled “Statement of the Department of Justice on Application of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C. to State and Local Governments’ Employment Service Systems for Individuals with Disabilities.” This action was taken to afford further discussion with relevant stakeholders, including public entities and the disability community, as to how best to provide technical assistance in this area. Withdrawal of this guidance document does not change the legal responsibilities of State and local governments under title II of the ADA, as reflected in the ADA, its implementing regulations, and other binding legal requirements and judicial precedent, including the U.S. Supreme Court’s Olmstead decision. This withdrawal should not be understood as expressing any view on the legal merits of the principles set forth in this Statement, or on the merit of any specific procedures currently in place in any State or local jurisdictions. The Department will continue to fully and fairly enforce all laws within its jurisdiction, including the ADA.

This carefully worded explanation seems to make the withdrawal of the statement meaningless, for DOJ is not denying any of its individual principles; however, a look at the statement itself shows that DOJ is significantly retreating from positions likely to be seen as extreme by state and local governments. A few examples:

The entire statement is premised on the idea that “competitive integrated employment” is preferred default for giving jobs to the disabled as part of a service setting. The immediate problem with this premise is that governments, as employers, are already obligated not to discriminate against those with disabilities. “Competitive integrated employment” is just employment. By withdrawing this statement it appears DOJ is backing away from the notion that governments must create new programs that somehow pull disabled individuals into jobs for which they would not qualify under Title I.
The answer to Question No. 3 includes a long and expensive list of ways that local governments can create “competitive integrated employment.” This includes creation, presumably at government expense, of a “career development plan” for the disabled individual, customizing employment duration and intensity to the disabled person’s needs, and integrated non-working services. The statement makes a nod to expense, but what the statement seems to require is that every disabled individual unable to compete in the ordinary job market be provided with individual coaching along with customized work and work schedules.

DOJ cannot reject Olmstead or limit what the courts may require under Title II, but by withdrawing the 2016 Statement it appears DOJ has recognized that the intersection between employment services programs and ordinary employment is going to be hard to define, especially since “integration” in this context means moving disabled individuals who cannot meet the requirements for employment under Title I into jobs for which they could not compete without extraordinary assistance. That kind of integration may be an appropriate goal for government employment services programs, but it isn’t an easy one to achieve because these programs are generally intended to give meaningful work and social interactions to individuals who cannot by reason of their disability handle an ordinary competitive job environment. For the present, at least, it seems DOJ understands that local governments that Title II was not intended to implement sweeping statements about what is best for the disabled based on academic research. It also seems likely that DOJ will be less likely to engage in enforcement actions intended to coerce local governments into accepting programs whose effectiveness has not been tested and whose costs may be enormous.

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