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.
Accessibility Litigation Trends
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 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
By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA - Standing, ADA Internet, ADA Internet Web, ADA Litigation Procedure, ADA Mootness, ADA Web Access, ADA Website Accessibility, Reasonable accommodation, Title II Tags: ADA arbitration, ADA defense, ADA Negligence, ADA supplemental jurisdiction, Center for Disability Access, COVID-19, Deborah Laufer, FHA Defense, Judge Olguin, Model Home Sales Offices, nexus requirement, unruh act
With more than 40 new decisions in the last two weeks it hasn’t been easy getting this blog out. I’m not the only lawyer with too much to do too fast, as the following cases demonstrate.
The problem with industrial litigation
In a classic episode of “I Love Lucy” she and her friend Ethel get a job in a chocolate factory but find they can’t keep up with the assembly line and have to resort to stuffing chocolates in their mouths and shirts.³ I thought of their predicament when I read Garcia v. Hwangbo, 2021 WL 149086 (C.D. Cal. Jan. 15, 2021), one of hundreds of cases filed on behalf of Orlando Garcia by the “Center for Disability Access.” The problem with an assembly line practice is keeping up with the speed of the line, and Garcia’s lawyers found they couldn’t keep up on January 15 when Judge Olguin dismissed the Hwangbo case under the terms of a docket control order that required the defendants be served within 90 days of filing. More