The ADA played a typically minor role in the recent election. Democrats made it clear they were for the disabled but did not propose specific new programs. Republicans barely mentioned the disabled except for a brief controversy involving Trump mocking a disabled reporter. With disability rights playing such a minor role in Republican politics one might think that Trump’s election means no change, but in fact a Trump presidency may lead to a significant narrowing of the ADA’s application and reduced federal enforcement action. More
ADA Internet Web
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
“Just the facts, m’am” – A bad week for ADA serial litigants
This is a follow up to last week’s blog, “Consolidate and Eliminate.” A magistrate judge in the Western District of Texas seems to be just that in a series of cases (more than 300) filed by Jon Deutsch in Austin, Texas. Deutsch v. Annis Enterprises, Inc., 2016 WL 5317431 (W.D. Tex. Sept. 21, 2016). I won’t provide a detailed analysis of the opinion, which should be read by every lawyer representing defendants in serial litigant cases,* but two points stand out. First, the Court conducted an evidentiary hearing, thus moving past the pleading stage, at which standing depends only on the plaintiff’s willingness to lie. Putting the plaintiff to his proof of standing early in the case is the single most important reason to consolidate and eliminate because it allows the critical fact issue to be resolved early, before the costs of litigation become absurd. More
ADA and the Internet – what non-internet cases can tell us.
“In deciding that Coca–Cola’s vending machines in the instant case are not places of public accommodation, we acknowledge the limits of our holding. As the district court recognized, those vending machines may very well be subject to various requirements under the ADA by virtue of their being located in a hospital or a bus station, both of which are indisputably places of public accommodation. Here, however, Magee sued only Coca–Cola, an entity that does not own, lease (or lease to), or operate a place of public accommodation.”
Magee v. Coca-Cola Refreshments USA, Inc., 2016 WL 4363306, at *5 (5th Cir. Aug. 15, 2016).
Last month the Fifth Circuit confirmed a lower court decision finding that vending machines were not public accommodations and that by themselves they are not required to be accessible. The reasoning was very similar to that in the Netflix and Target cases from the Ninth Circuit. Like the Fifth Circuit, the Ninth Circuit found that a “public accommodation” means a physical store or similar facility where one buys goods or services. A website (in Netflix) or a vending machine (in Magee) might be a service of a public accommodation, in which case the public accommodation may be required to make it accessible. By itself, however, a website or vending machine is not a public accommodation. Standing alone it is not required to be accessible because it is simply not covered by the ADA.
The same kind of argument led to a similar result in Am. Ass’n of People with Disabilities v. Harris, 647 F.3d 1093 (11th Cir. 2011). The issue in Harris was whether voting machines were required to be accessible. The Court found they were not because the machines themselves were not public accommodations.
A completely different view appears in cases like Carparts Distribution Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, Inc., 37 F.3d 12 (1st Cir. 1994) that focus less on the definition of public accommodation and more on the notion that goods and services should be accessible. These courts tend to view a distinction based on how goods or services may be purchased as irrational. Buying on the web or by phone shouldn’t be any different than buying in a physical store, at least with respect to accessibility. Carparts was a pre-internet case dealing with telephone transactions, but it resembles recent cases like Scribd that make the same argument.
The position of the Department of Justice lines up with that of the First Circuit in Carparts, even though its regulatory definitions of words like “facility” would seem to support McGee. At the end of the day though the day the courts will decide just what the ADA covers.
What we see in the contrast between McGee and Carparts is competing views of the ADA, with McGee representing courts who believe Congress applied the ADA only to public accommodations because it is focused on physical accessibility, while Carparts reflects the views of those courts and the Department of Justice who see the ADA as a broad mandate for accessibility regardless of its specific language. These views cannot be reconciled, and while the question of internet accessibility tends to dominate today’s discussion of the ADA, it is worthwhile to remember that cases about vending machines and telephone services will also help define the law in individual circuits – at least until the Supreme Court is finally given a chance to weigh in on the subject.
NOTE: for earlier blogs on this subject, click on the ADA Web Access category to the left.