I’ve been posting a lot of blogs in the last few days in an effort to catch up with a backlog of important or at least interesting cases. Just as I was wrapping up this Quick Hits blog the Sixth Circuit handed down its decision in Brintley v. Aeroquip Credit Union, precipitating the blog’s publication. Subscribers who feel they are being spammed can rest assured the pace of posts will slacken – assuming the pace of ADA and FHA accessibility developments slackens, of course. More
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees, ADA Internet, ADA Internet Web, ADA Policies Tags: ADA defense, ADA Internet, ADA website, CSUN Assistive, Lainey Feingold, WCAG
I’m just departing from the 2019 Assistive Technology Conference with a few prejudices confirmed but with some new ideas as well.
I spoke with a number of companies that sell consulting services for web accessibility based on a wide range of business models. Since the website litigation storm broke in 2015 the field has developed, but there is still no good accessibility solution for a small retail store or restaurant. Simple websites are less likely to have accessibility issues, but their owners are heavily dependent on small, independent web designers and developers who often live in blissful ignorance of accessibility issues. Twenty-five years after passage of the ADA strip shopping centers that don’t meet ADA standards are still being built because smaller contractors and one person architecture firms don’t know about or understand the construction standards. The same thing will be true for web accessibility twenty-five years from now if we don’t find a way to educate the web design community about it. For those who don’t want to wait the following link has a list of resources from Lainey Feingold’s website. Resources.
It seems likely that accessibility litigation concerning mobile applications is going to increase. Easy to use tools for testing the accessibility of mobile apps are now becoming more available. That will make it easy for those members of the plaintiffs’ bar who are on the prowl for targets to find mobile apps to sue. In this case however businesses and developers have the lead time needed to make their apps accessible if they will only pay attention to the need.
Speaking of the plaintiffs’ bar, I was reminded by Ms. Feingold that buried in the avalanche of lawsuits whose only purpose seems to be lawyer enrichment are a few brought by organizations and individuals whose first concern is accessibility for those who are disabled. It is a reminder that the real problem with web accessibility cases is not that they exist, but that they are wasteful because they divert resources away from accessibility and to lawyers, whether on the plaintiff or defense side. The most needed ADA reform is one that delivers robust enforcement without waste.
A number of defense lawyers, including myself, spoke about one aspect or another website accessibility litigation. No one is defending the idea that websites should remain inaccessible, but cases are being defended nonetheless for various reasons, including unreasonable settlement demands by plaintiff’s lawyers and defendants who are simply fed up with being sued over and over again based on supposed WCAG non-comformance that does not affect the usability of the site. DOJ’s refusal to regulate is part of the problem, but it is becoming clear that reliance on WCAG 2.0 AA as an ADA standard imposes an unreasonable requirement of perfection on any website. Our existing model for measuring accessibility comes from the world of physical access. Strict technical requirements make sense when you’re building a permanent physical structure because if it is built to comply with the requirements it generally continues to remain compliant. Modern websites are complex and dynamic. Compliance with any rigid standard is bound to fail as the website changes over time. We need a regulatory definition of ADA compliance focused on usability rather than technical perfection.
The main takeaway for me was that a lot of people are working very hard to make the world more accessible for the disabled, but the emphasis in the news is on those who abuse the system for some kind of personal gain. The reporting is not the problem. It simply reflects the fact that the existing statute and regulations lend themselves to abuse. Unfortunately the solutions are all political, and political solutions don’t seem possible right now. The best advice remains the same as in 2014. If you have a website, You need a nerd, not a lawyer.
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Internet, ADA Internet Web, ADA Web Access Tags: ADA defense, ADA Internet, ada litigation, ADA website, website accessibility
Like Coke machines, websites are not places of public accommodation subject to the ADA according to Judge Sim Lake’s January 24, 2019 decision in Zaid v. Smart Fin. Credit Union, 2019 WL 314732 (S.D. Tex. Jan. 24, 2019). It is a holding of first impression in the Fifth Circuit and it can be hoped it will influence the flood of cases sure to follow.* The Court’s reasoning was straightforward: The list of public accommodations in the ADA itself refers exclusively to physical places and the Fifth Circuit’s holding in Magee v. Coca-Cola Refreshments USA, Incorporated, 833 F.3d 530 (5th Cir. 2016) confirms that only physical places can be places of public accommodation.** More
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA Attorney's Fees, ADA Internet, ADA Internet Web, ADA Mootness, ADA Policies Tags: ADA defense, ADA Internet, ADA web access, ADA website, bull market, CUNA, drive-by lawsuits, unruh act, Usablenet, WCAG 2.0
The financial markets are bouncing around like ping pong balls, but there is one financial indicator that is only going up. For website accessibility litigation we have a bull market and no sign of a recession. Based on federal filings alone the number of website accessibility cases almost tripled in 2018, increasing by 181%*. For ordinary serial ADA litigation based on parking and restrooms the market is flat and the cases confirm the general lack of consistent standards across circuits and between judges – know your court is the rule with respect to every strategic decision. The fake service animal businesses online continue to outrage businesses but without much resulting litigation. A few notable serial filing lawyers have gotten trouble, but the 181% increase in federally filed** web access cases has created both the most serious threat to businesses and the most interesting legal developments in Title III litigation. More
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees, ADA Mootness, Animals, FHA Emotional Support Animals Tags: ADA defense, ADA Internet, ADA website, FHA Defense, FHA Guidelines, Glueck v National Conference of Bar Examiners, Hillesheim v Holiday Stationstores, mootness, service animals, Wetzel v Glen St. Andrew
Landlord liability for tenant discrimination
Wetzel v. Glen St. Andrew Living Community, LLC, 2018 WL 4057365 (7th Cir. Aug. 27, 2018) is a critically important decision for landlords because it holds a landlord may be liable for its failure to restrain discriminatory conduct by tenants. The plaintiff is a lesbian who found herself the subject of a “torrent” of abuse from fellow tenants based on her sexual orientation that included both verbal and physical assaults. The rules of the apartment complex were similar to those of most apartments and permitted the landlord to take action against any tenant whose conduct was a threat to the health and safety of others or interfered with the peaceful use and enjoyment of the apartments. The plaintiff reported the abuse to management, who did nothing about it. In fact, they engaged in various kinds of conduct that essentially punished the plaintiff for complaining. When the plaintiff finally sued under the Fair Housing Act the landlord’s defense was that it could not be held liable for discrimination by other tenants. More