On October 7-8 I’ll be joining Jason Taylor of Usablenet and Jeremy Horlick of ADA Site Compliance at American University’s Digital Accessibility Legal Summit in a panel discussion of accessibility overlays, widgets and plug-ins titled “The Great Accessibility Overlays Battle.” You can find the complete program at www.accessibility.legal. As you know, the use of widgets and overlays has generated some controversy, with makers of this software claiming they can create an accessible website and every credible consultant claiming they cannot. You can read my blogs about his subject at Is there a silver bullet for ADA website accessibility? Sorry, but the answer is no. and Thanks for the shout-out Lainey – a website plug-in followup. Those looking for an interesting technical analysis of the differences between various products will find one by Jason Taylor at https://blog.usablenet.com/inclusive-accessibility-crushes-widgets-and-overlays. Any attorney with clients who own a website – and that should be most of us – will find the entire Summit usefuls. The need for digital accessibility and the risk when it is absent colors every kind of business and consumer transaction, so keeping up to date is critical.
ADA Web Access
By Richard Hunt in Accessibility Litigation Trends, ADA Internet, ADA Internet Web, ADA Web Access, ADA Website Accessibility Tags: ADA and the internet, ADA defense, website accessibility, Winn-Dixie
On April 7 the Eleventh Circuit issued what is likely to be among the most important ADA decisions in the last twenty years. (6) In Gil v. Winn-Dixie Stores, Inc., 2021 WL 1289906 (11th Cir. Apr. 7, 2021) the Eleventh Circuit not only rejected the idea that Title III of the ADA covers websites as public accommodations, it also adopted a very limited view of the circumstances in which websites would be required to be accessible even when associated with a physical place of business. The impact on regional businesses in the Eleventh Circuit will be immediate – almost all ADA website lawsuits brought in the Eleventh Circuit are probably subject to dismissal unless carefully repled. More important is the prospect of an application of writ of certiorari to the Supreme Court. Unlike the Robles v Dominos case¹ Gil v. Winn-Dixie deals directly with the question of the ADA’s scope, making it an appropriate vehicle for Supreme Court review. There is finally a chance that we will have a definitive answer about the extent to which websites are subject to ADA accessibility requirements.
The Court dealt with the first issue before it; that is, are websites places of public accommodation, in the expected way. Because Title III gives only physical places of business as examples of public accommodations the Court found that a public accommodation is necessarily a physical place.² Websites are not physical places and are therefore not directly subject to the ADA’s accessibility requirements.
The next step in Court’s decision takes on the thornier issue of just what constitutes the “goods, services, privileges or advantages” of a public accommodation. The Court’s discussion is tangled because it tries to fit the problem into its earlier cases discussing “intangible barriers” and the question of what auxiliary aids and service might be required. When you look past this chaff the approach is clear: for the 11th Circuit the “goods, services, privileges and advantages” of a public accommodation are those offered at its physical place of business. Just because a website is created by or associated with a public accommodation does not make it a service of that public accommodation. It may be, as in the case of Winn-Dixie’s website, simply an alternative means of offering services already offered in the store. Because the website is not a service in and of itself there is no requirement that it be accessible.
This leads to the consideration of auxiliary aids and services, a particularly confused area of analysis when it comes to websites. It is clear from the language of the ADA that auxiliary aids and services are something that must be provided when necessary to avoid exclusion of the disabled. Screen readers and other assistive technologies are typical auxiliary aids and services, but in the context of a website they are not something provided by the public accommodation; they are something brought to the public accommodation or to its website by the disabled user. Thus, the auxiliary aids and services requirement in the ADA really cannot apply to website accessibility issues unless the website itself is treated as an auxiliary aid or service that must be provided in order to give those with disabilities equal access. The Court does not address this possibility, but would certainly reject it because, as it points it out, all the goods and services at Winn-Dixie were already available to those with disabilities at the physical stores.
This doesn’t mean websites associated with a physical place of business will never have to be accessible in the 11th Circuit. The Court’s discussion of the 9th Circuit’s decision in Robles v. Domino’s Pizza (4) suggests that an e-commerce website through which customers could purchase the same goods available in the physical store might be subject to an accessibility requirement. The logic of the distinction drawn by the Court isn’t clear though. The Court rejects the idea that a somewhat more convenient online re-fill process created a privilege that had to be equally accessible to those with disabilities, so taking the additional step of allowing on-line payment doesn’t seem to change the fact that a buyer is just doing on-line what they could do in the store. The very early decision in Access Now, Inc. v Southwest Airlines, Inc. rejected the idea that just because it was harder to do something in a physical store did not mean that an easier alternative had to be accessible.³
The decision also leaves open the possibility that an inaccessible website might be an intangible barrier to use of the goods and services of a store. If prescriptions could only be refilled online it seems clear the Court would find the inaccessibility of the website made it an intangible barrier to access to the goods and services of the store itself.
The long dissent makes it clear that what is really at stake in Winn-Dixie is the majority’s limited definition of the “goods, services privileges and advantages” of a public accommodation. For the majority the Winn-Dixie pharmacy is just in the business of selling drugs and refilling prescriptions. If a disabled customer can buy drugs and get their prescription refilled at the store there has been no denial of the full and equal enjoyment of the public accommodation even if other customers can do the same thing in a more convenient way online. After all, the majority points out, it is never possible to give those with disabilities a truly equal experience. Gil’s ability to do business at Winn-Dixie did not change just because the website became available as a convenience to other customers. For the dissent, on the other hand, any convenience offered to non-disabled customers must be offered to disabled customers as well even if the convenience is not fundamental to the acquisition of goods and services offered by the business. The majority is focused on meaningful access to goods and services; the dissent is focused on achieving equality in the entire range of interactions between customers and public accommodations.
The difference in views is not, I think, one that can be resolved by simply appealing to the text of the ADA or its regulations. The ADA’s requirements are premised on compromise; if true equality is impossible, how much money has to be spent getting close to true equality. The 11th Circuit would draw the line at enough money so those with disabilities can buy what is being sold. The dissent would require more equality at some additional cost, though it isn’t clear how much. This line drawing is implicit in the ADA, but that doesn’t make it easy to do. When the Winn-Dixie case was filed in 2016 online prescription refills may have looked like nothing but a slightly more convenient way to do what customers were already doing. During 2020, when shopping in person was far more difficult and dangerous, online prescription refills began to look like something close to a fundamental need. The more the general public uses on-line services of any kind the less likely it is that even physical places of public accommodation will devote the same resources to serving their customers any other way. That in turn makes it harder to claim services offered through the internet are merely an alternative to a traditional trip to the store. The difficulty in drawing the line between convenience and necessity can be seen in the Court’s discussion of Robles v. Dominos. Why is the ability to pay online more like a necessity than the ability to order online and pay in the store, or more like a service that should be provided equally to all? The Eleventh Circuit doesn’t answer that question or many similar questions that could arise in defining the line between a website as an intangible barrier and a website as merely an alternative means of doing something.
The best argument for the 11th Circuit’s conservative approach is that major technological and social shifts should be addressed explicitly by amendments to the ADA rather than being decided by hundreds of different federal judges in thousands of different specific fact situations. This could happen as the effort to amend the ADA to explicitly cover websites has started anew. (5) In the meantime, businesses in the 11th Circuit can breathe a sigh of relief and businesses everywhere can hope the Supreme Court will have an opportunity to better define just what the ADA requires for business websites.
By Richard Hunt in ADA, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Internet, ADA Internet Web, ADA Mootness, ADA Web Access, FHA, FHA Reasonable Accommodation, Hotels, Internet Accessibility, Landlord-tenant, Policies and Procedures FHA ADA Tags: ADA and Uber, ADA defense, ADA hotel litigation, ADA tester standing, ADA vexatious litigation, ADA Website Litigation, ASL interpreters, FHA Defense, FHA disability discrimination, Unruh Act supplemental jurisdiction
If foolishness were limited to one day a year this blog would be well overdue, but a glance at the news – legal, political or other, shows that every day in April can be April fools day, so I make no apologies for the delay in getting this out.
The difference between accommodation and modification under the ADA and FHA
Any discussion of S.W. Fair Hous. Council v. WG Chandler Villas SH LLC, 2021 WL 1087200 (D. Ariz. Mar. 22, 2021) must begin with a vocabulary note. The thing called “modification” under the ADA is called “accommodation” under the FHA and the thing called “modification” under the FHA doesn’t really exist under Title III of the ADA. The vocabulary matters because under the FHA a “modification” is a change to a physical feature that the tenant must pay for while an “accommodation” is a change in policy that the landlord must pay for on the theory that the costs will usually be nominal. In WG Chandler Villas the plaintiff, a fair housing organization that was testing local apartment communities for their responsiveness to the needs of the deaf, asserted that installation of a flashing doorbell was an accommodation rather than a modification, thus making the cost the landlord’s responsibility. The Court held that how to characterize such a request depended on what kinds of services the landlord already provided:
The Court finds that a flashing doorbell is a reasonable accommodation under the ADA—not merely a modification—in the context of Defendant’s housing facility, because one of the services that Defendant provides residents is safety checks.
Those safety checks included ringing the doorbell to see if the resident responded. Since deaf residents would not benefit from that safety check if they didn’t know the doorbell was being rung the addition of the flashing doorbell was better characterized as a change in policy about safety checks rather than a physical modification in the form of a new doorbell. This reasoning could apply to an array of services that any apartment complex might provide. If reserved parking is a service, for example, then a reserved accessible parking space would be an accommodation despite the physical changes (including using up an entire extra parking space) and their cost.²
More on hotel websites and the litigation beast.
The beast must be fed. The California Legislature and Ninth Circuit created a litigation monster in California; the former by creating a $4,000 penalty for even innocent violations of the Unruh Act and the latter by defying the Constitution and permitting lawsuits by individuals who suffered no injury from their encounter with a supposed ADA violation. There are, however, only so many ADA targets and plaintiffs like Samuel Love and his attorneys are making increasingly implausible claims in what I see as a desperate effort to keep the settlement money rolling in. That, at least, is my interpretation of cases like Love v Marriot Ownership Resorts, Inc., 2021 WL 1176674, at *7 (N.D. Cal. Mar. 29, 2021) and Love v. KSSF Enterprises Ltd., 2021 WL 1056604 (N.D. Cal. Mar. 18, 2021)¹ in which Love claims that hotel websites fail to meet ADA requirements for describing accessible features because they lack sufficient detail for him to determine whether the hotel is telling the truth about its accessibility. In these, as in other similar cases, his claims were dismissed because on their face they had no merit. Will this deter future suits? Probably not. For every defendant willing to spend thousands, or tens of thousands of dollars defending meritless lawsuits there are a dozen who will just pay off the plaintiff’s attorneys to be rid of the case. Until the California legislature and Congress decide to put an end to exploitative ADA litigation the rampage will continue.
Brooke v. Superb Hospitality, LLC, 2021 WL 1173208 (E.D. Cal. Mar. 29, 2021) is another case that seems to have been filed only as a way to make money for the plaintiff’s lawyers. Brooke claimed the hotel violated the ADA because its only suite was not accessible. Buried in a long but informative discussion of mootness and ADA liability for information on 3rd party websites is the observation that under the applicable regulations a hotel is not required to make one of every type of room accessible as long as there are comparable rooms available that are accessible, which was the case with this hotel. In other words, the hotel never violated the ADA. Why then did Brooke file suit? The beast must be fed.
Speaking of hotel websites. . .
The plaintiff in Katz v. Wanderstay Hotels, LLC, 2021 WL 1093169, at *4 (E.D.N.Y. Mar. 4, 2021), report and recommendation adopted, 2021 WL 1091907 (E.D.N.Y. Mar. 22, 2021) probably thought he had it made when the defendant failed to file an answer, making a default judgment possible. Unfortunately the court found he had failed to make all the allegations needed under New York’s long arm jurisdiction statute (4), so even if everything in the Complaint was presumed true (which is what happens in a default case) there wasn’t enough for the plaintiff to win. The most interesting sentence in the opinion, and one that defendants will likely want to quote, is this:
Plaintiff fails to allege that defendant engaged in a “transaction” with him in the way that the term is typically understood, but rather, plaintiff states that he visited Wanderstay’s website and witnessed the ADA violation. Courts in this Circuit have held that a New York resident viewing the website of an out-of-state defendant, absent more, is not enough to establish personal jurisdiction over the defendant.
For businesses with no substantial business in New York it appears that a typical serial litigant claim won’t be sufficient to drag the defendant out of their home in another state.
Policies and procedures under the ADA.
The long discussion of class action certification in Allen et al v Ollie’s Bargain Outlet, Inc. 2021 WL 1152981, at *1 (W.D. Pa. Mar. 26, 2021) includes one sentence that says all you need to know: “Ollie’s does not train or educate its employees on ADA compliance.” The defense arguments were thorough and well researched, and it is not clear that the plaintiffs can prevail at trial, but the defendant’s real problem was that it could not say its employees knew they were supposed to keep the aisles clear so goods were accessible by wheelchair. It followed, of course, that the defendants has probably failed to keep the aisles clear in many stores over many years. If your business doesn’t want to be sued it past time to have an ADA training policy in place that covers not just employment issues, but also Title III accessibility issues.(6)
Merely filing a lot of lawsuits does not make one a vexatious litigant.
The decision in Bouyer v Rocky’s Racquet World, LP, 2021 WL 1146384 (C.D. Cal. Mar. 25, 2021) includes discussions of supplemental jurisdiction of Unruh Act claims (they were dismissed) and the specificity required in declarations intended to prove mootness (a good deal). It also includes an important observation for those who are outraged at the litigation beast described above. The Court denied a motion to declare the plaintiff a vexatious litigant because, for that designation to apply, “the plaintiff’s claims must not only be numerous, but also be patently without merit.” Id. at p.8.³ ADA serial litigation is often outrageous, and frequently involves what are clearly lies about intent to return and motivation, but if there is a real ADA violation the character of the plaintiff and the lawyers is never going to overcome the fact that the defendant didn’t follow the law.
Feasibility and cost
Bronx Independent Living Services et al v. Metropolitan Transportation Authority et al, 2021 WL 1177740 (S.D.N.Y. Mar. 29, 2021) is a long opinion about two complex subjects, associational standing and technical infeasibility. The opinion doesn’t reach any conclusion except that competing expert testimony creates a fact issue requiring a trial, but the explication of the law is a worthwhile resource.
ADA Tester Standing
Laufer v. Q Ill Developement, LLC, 2021 WL 1202329 (C.D. Ill. Mar. 30, 2021) includes an unusually clear and concise explanation of tester standing that correctly applies the Supreme Court’s holding in Havens Realty Corp. Most courts read Havens to simply say that testers have standing, but in Q Ill Dev. the Court correctly notes that testers have standing only when they suffer precisely the injury the statute was intended to prevent. Because the ADA regulations concerning hotel websites are intended to make sure disabled individuals have information about accessibility a disabled person who cannot find that information has suffered precisely the injury the statute was intended to prevent. Without identifying the specific injury the statute was intended to prevent and determining whether a tester suffered that injury any discussion of tester standing is incomplete.
Mahoney v. Waldameer Park, Inc., 2021 WL 1193240 (E.D. Pa. Mar. 30, 2021) reaches, in a roundabout way, the same conclusion as Q Ill Dev. Mahoney is a serial filer who originally claimed an ADA violation based on the defendant’s inaccessible website then pivoted to a claim based on the defendant’s place of business when he realized that the Third Circuit does not recognize websites as public accommodations. The Court considered his standing under two tests – the four-part proximity test used by many courts outside the Ninth Circuit and the deterrent effect test sometimes used by the Ninth Circuit. Mahoney “flunked,” as the Court put it, the proximity test because he had never visited the business and lived too far away to plausibly claim he would ever do so. He failed the deterrent test as well because you cannot be deterred from visiting a place you never intended to visit in the first place. As a final step the Court considered the possibility of “tester” standing. Without defining what tester standing might require, the Court rejected its application to Mahoney because “Mahoney is no tester.” Mahoney only tried to test the website, and without testing the physical place of business his testing of the website did not give rise to an ADA claim. This makes sense when looking at “precisely the injury” the ADA was intended to prevent. In the Third Circuit the ADA covers websites only because they are connected to a physical place of business, so the injury must necessarily relate to the the physical business, not the website.
More about supplemental jurisdiction
Whitaker v. Mouallem, 2021 WL 1152899 (C.D. Cal. Mar. 17, 2021) is another in the string of cases I have discussed in which the Court declines to exercise supplemental jurisdiction over Unruh Act claims because the federal filing was used to circumvent the state law requirements intended to deter serial litigation. California counsel will find it useful because it has a very complete discussion of the state legislation, its purposes, and the reasons plaintiffs’ law firms try to circumvent it. Boyer v. Pizza Hut No. 026192, 2021 WL 1153062 (C.D. Cal. Mar. 8, 2021) reaches the same conclusion with quite a bit less discussion.
Dotting your i’s and crossing your t’s
The defendant in Sandhu Brothers Liquor, Inc. 2021 WL 1145994 (N.D. Cal. Mar. 25, 2021) almost got it right when asserting that the plaintiff’s claim was moot because a single parking space had been remediated. “Almost” because the declarations concerning the work did not specify the dimensions of the parking place, making it impossible to tell whether the remediation actually met ADA standards. It takes time to do things right, no matter how small the case.
I originally noted the case of Green v. Mercy Hous., Inc., 2021 WL 1080679 (9th Cir. Mar. 19, 2021) when the plaintiff survived a motion to dismiss.(7) The defendant had better luck at the summary judgment stage, obtaining a dismissal of the claims against it. Unfortunately the record the district court found sufficient did not satisfy the Ninth Circuit, which overturned the summary judgment and remanded the case with the observation that with respect to the reasonableness of the accommodation sought by Green “the record is somewhat vague.” There are no shortcuts in this kind of litigation.
Default as a strategy
Winegard, Pl., v. Crain Commun., Inc., Def. 2021 WL 1198960 (S.D.N.Y. Mar. 30, 2021) is an unusual default case because it is from the Second Circuit rather than California and because it concerns a website instead of a strip shopping center or family owned restaurant. For small businesses accused of not being physically accessible default poses little risk because the cost of remediation can be defined and is often less than the cost of attorneys’ fees. Website remediation is another matter because the cost to remediate a modest website can be far in excess of the revenue it generates. This is true even when, as in this case, the only claimed ADA violation concerns closed captions. However, it seems unlikely that the Court’s order – “Defendant is therefore ordered to bring its website into compliance with the ADA and its implementing regulations” – can be enforced since an order to obey the law is not sufficiently specific to be enforceable. See, Peregrine Myanmar Ltd. v. Segal, 89 F.3d 41, 51 (2d Cir.1996). Because there are no regulations defining website accessibility the injunction in this case may pose no threat at all to the defendant.
Does the ADA require that cities regulate jerky behavior?
Electric scooters for rent are an energy saving convenience that help reduce traffic and pollution or, perhaps, are a curse and danger to all pedestrians. Montoya v. City of San Diego, 2021 WL 1056594 (S.D. Cal. Mar. 19, 2021) doesn’t decide which of these is true, but does explain in considerable detail why a preliminary injunction requiring the City of San Diego to ban all such scooters was not appropriate. For me the key observations are that reckless driving and scooters blocking the sidewalk affect those with disabilities and those without disabilities alike and that skateboards and bicycles pose the same kinds of problems. (5)
Strojnik – again
In the next few days I’ll be taking a close look at the decision in nlawful discriminatory Equal Rights Ctr. v. Uber Techs., Inc., 2021 WL 981011 (D.D.C. Mar. 15, 2021), a case that raises two important issues. Do broad allegations of deterrence satisfy the pleading requirements for an ADA claim and can a business that serves the public structure itself so that it avoids any ADA obligation. Stay tuned.
¹ See also, Quick Hits – Vernal Equinox edition
² This case, like the similar case covered in Quick Hits – Vernal Equinox edition and other earlier blogs also dealt with the obligation to provide ASL interpretation to prospective tenants. The message here is the same as in those earlier cases – don’t refuse a requested accommodation until you’ve discussed it and tried to resolve it.
³ This was the subject of one of my blogs in 2013, Standing for serial plaintiffs – it’s a legal issue, not a moral problem. The situation hasn’t changed. If your defense is mootness because the ADA violation was fixed after the suit was filed it doesn’t make much sense to say the suit had no merit at the time it was filed.
(4) Long arm jurisdiction is the legal doctrine that allows someone who does not live in a state to be sued there. In very broad terms (there are books about this) a defendant can’t be sued away from their home state unless it is fair to sue them elsewhere. Fairness usually comes from either having done business with the particular plaintiff or having done a good deal of business in the state with others. If ADA serial filers are forced to prove their target defendant actually did business with others in the state they will be forced to do more work before filing suit.
(5) This isn’t a brand new issue. See, ADA and FHA Quick Hits – Day that will live in infamy edition, Quick Hits – Making a list and checking it twice edition and Rental bikes and the ADA – Hunt quoted in Dallas News Article
(6) See my 2018 blog, ADA Compliance Policies and Procedures – you need them, and now.
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees, ADA FHA General, ADA FHA Litigation General, ADA Internet, ADA Internet Web, ADA Mootness, ADA Web Access, ADA Website Accessibility Tags: ADA default judgment, ADA defense, FHA Defense, hotel website, Informational injury, mootness, serial litigation, Strojnik, supplemental jurisdiction, tester standing
Madeira was traditionally aged in barrels that crossed the equator twice, the heat and time fortifying and sweetening the wine. Like a cask of Madeira the sun will cross the equatorial plane of the earth in a few days, but you won’t have to wait for the next crossing in the fall for a quick hits blog. Here’s the news.
What if someday never comes?
The classic Creedence Clearwater Revival song asks what will have if someday never comes. The Eighth Circuit had the same question in Smith v. Golden China of Red Wing, Inc., 987 F.3d 1205, 1209 (8th Cir. 2021). Following its earlier decisions involving the same lawyers and plaintiff the Eighth Circuit had little trouble concluding that the plaintiff, who visited the defendant only as a “tester” driven by his attorney and whose return would be as directed by his attorney did not have sufficiently concrete plans to return for there to be a likely future injury that would support standing for injunctive relief. Since the ADA only provides for injunctive relief that was fatal to this claim as it had been to others in the past. The Eighth Circuit has seen dozens, rather than tens of thousands, of ADA lawsuits because the Court takes Article III standing seriously. If the Ninth Circuit ever does the same my blogs will start getting much shorter. More
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Internet, ADA Internet Web, ADA Mootness, ADA Public Accommodation, ADA Web Access, FHA, FHA Reasonable Accommodation, Interactive Process Tags: ADA defense, ADA Multidistrict Litigation, FHA Defense, Hotel accessibility litigation, WCAG 3.0
Valentines Day, which has been in the stores since December 26, has finally arrived in reality. Since I last blogged a few weeks ago the courts have continued to decide cases and the blogosphere has continued to cover, or mis-cover, accessibility related news. Here’s a sweet collection of matters to read after you’ve finished your celebration of the day.
WCAG 3.0 – Will it really matter at all?
The preliminary draft of WCAG 3.0 has generated a lot of attention. From a litigation defense standpoint the possible new standards are irrelevant, as is compliance with existing standards. Lawsuits are not filed to make the web more accessible; they are filed to make lawyers rich (or richer). As long as it is cheaper to settle than fight most businesses will continue to pay off the plaintiffs lawyers regardless of how accessible their websites might be. For those who do care about accessibility the new standard adopts a different approach that is focused less on specific technical requirements and more on the actual experience of the disabled user. Lawyers will recognize this as similar (though with much more detail) to the meaningful access standard required by Title II of the ADA. It remains to be seen whether DOJ, which will almost certainly restart the regulatory process under the Biden administration, can balance the certainty of strictly technical standards against the purpose of the ADA, which is meaningful access. That balance and the courts’ willingness to require plausible allegations concerning web access in order to meet the Iqbal / Twombly pleading standard will determine the future of website accessibility litigation. If courts are willing to require plaintiffs to plead facially credible claims that they were denied meaningful access to the content of a website than a new regulatory standard based on meaningful access could slow down the litigation industry and help businesses make their websites accessible in a meaningful way. If not the abuse of the ADA for the benefit of lawyers will continue unabated. More