website accessibility

Quick Hits – fall color edition.

September 20, 2022 By Richard Hunt in Accessibility Litigation Trends, ADA, ADA - serial litigation, FHA Reasonable Accommodation, Internet Accessibility Tags: ADA defense, drive-by lawsuits, FHA Defense, opioids, website accessibility

red mushroom on background of rocks

Fall mushrooms are beautiful, but also potentially poisonous, which is a real stretch for an analogy to the disability protection provisions of the ADA and FHA. Here’s a roundup of the latest decisions.

Website accessibility – let’s review

Roman v. Greenwich Village Dental Arts P.C., 2022 WL 4226026 (S.D.N.Y. Sept. 13, 2022) isn’t an extraordinary case, but it is a reminder that the law of website accessibility remains fractured. In this case the plaintiff’s only claim was that as a blind person he could not use the website of defendant dental office. He does not appear to have alleged he wanted to actually have work done on his teeth, just that he wanted to use the website. The Court recognized that some 2nd Circuit courts require that a website have a nexus with a physical business to be covered by Title III of the ADA, but held that because this website was associated with a physical business there was no doubt about coverage. With that we can consider the various views:

Websites are covered by Title III of the ADA only as a service or means of communication for a physical place of business. That nexus requirement implies that to suffer an ADA injury from an inaccessible website the plaintiff must be seeking the goods and services offered by the physical business.
Websites are covered by Title III of the ADA when associated with a physical place of business, but a plaintiff can suffer an ADA injury from being denied access to the website regardless of whether they seek the goods and services of the physical business.
Websites are public accommodations covered by Title III of the ADA regardless of whether they are associated with a physical place of business, so a denial of access necessarily causes the plaintiff to suffer an ADA injury.

The first and third choices have their own logic, but the middle one makes no sense at all. An ADA injury arises when the plaintiff is denied access to the goods and services of a public accommodation. If the plaintiff has no interest in those goods and services then a denial of access causes no injury.² Decisions like Roman v Greenwich Village Dental do nothing to help those with disabilities who might need access to the goods and services of a business but do help lawyers get rich and create the legal atmosphere in which some plaintiffs’ lawyers don’t bother with having a real plaintiff (see Antonini v. Nieves below). After all, if you don’t need a real injury to maintain a suit under Title III of the ADA why bother having a real person as plaintiff?

Speaking of fees . . .

Brooke v. Harbor Suites LLC, 2022 WL 4234960, (9th Cir. Sept. 14, 2022) is a case that can be explained only as an effort by the plaintiff’s lawyers to keep their claim for fees alive. Brooke is a serial filer whose attorneys can be fairly said to operate an industrial scale ADA litigation business. This lawsuit claimed the defendant’s property lacked an access aisle. The district court dismissed her claims under California state law because it found the exercise of supplemental jurisdiction was not appropriate. Months later it dismissed her federal claims because they were moot, the access aisle having been installed. Why did Brooke, having gotten the hotel to do what she wanted, the appeal the dismissal of her state court claims? Money. She had the option of re-filing in state court seeking statutory damages and attorneys’ fees under state law. However, because she is a high-frequency litigant she would have faced a higher filing fee and other impediments created by state law. She almost certainly filed suit in federal court to avoid those impediments because when you are operating a high volume business maintaining low costs is a key to profitability (just ask Walmart). Serial ADA litigation creates huge waste in terms of legal fees paid because the litigation is driven by fees, not accessibility.

Another problem with industrial litigation. . .

Elliott v. Mejia, 2022 WL 4120276 (C.D. Cal. Sept. 9, 2022) is one of several recent decisions dismissing an ADA claim for failure to timely effect service of process. It isn’t hard to file a lawsuit based on a form complaint, but it takes real work to track down a hard-to-find defendant, and real work is not what industrial litigation is about.

If it works it is good enough.

In Bax v. Doctors Med. Ctr. of Modesto, Inc., 2022 WL 4127522, at *7 (9th Cir. Sept. 12, 2022) the Ninth Circuit confirmed that under the Rehabilitation Act what constitutes effective communication depends on the circumstances. The plaintiff is deaf and in various interactions with the defendant hospital communicated with notes or was provided remote video ASL interpretation that sometimes did not work perfectly. The District Court found no violation after a detailed analysis of the facts and the Ninth Circuit confirmed that “We do not apply categorical rules to determine which auxiliary aids are required to achieve effective communication.” It is good news for businesses that must effectively communicate because it means there is no absolute requirement for ASL interpretation, remote or in person. It is also a reminder though that businesses must think about what constitutes effective communication in each particular context and be prepared, if necessary, to arrange for different means to communicate when hand written notes are not appropriate.

Burden of proof on “readily achievable”

Antolini v. Nieves et al. 2022 WL 4219655 (S.D.N.Y. Sept. 13, 2022) confirms that the plaintiff has the burden of proof on whether barrier removable is readily achievable, a burden that must be met with evidence at the summary judgment stage. Un-answered is the question of whether the plaintiff’s attorney, Stuart Finkelstein, will be filing future suits from jail since he “entered a guilty plea to one count of mail fraud, 18 U.S.C. § 1341, admitting to his filing of fraudulent lawsuits in the Southern District of New York and elsewhere.” He has not, however, been disbarred yet, it appears.

Do those with disabilities need more opioids?

Smith v. Walgreens Boots Alliance, Inc., 2022 WL 4126274 (N.D. Cal. Sept. 9, 2022) makes a clever argument that wasn’t quite clever enough. Boiled down to its essentials it goes like this. First, people who are prescribed lots of opioids are likely to be disabled. Second, Walgreens policy of discouraging its pharmacists from dispensing what look like excessive opioid prescriptions deprives those who have such descriptions of their drugs. Thus, the policy discriminates against those with disabilities in violation of the ADA. The Court was not persuaded. It found the policy did not facially discriminate because it treats those with and without disabilities equally. It found the policy did not have a disparate impact because both disabled and non-disabled individuals were equally deprived of their prescriptions. Finally, because the policy affected those with and without disabilities the same way there was no need for a “reasonable modification” to create equal access. The discussion of disparate impact is the most interesting part of the decision because it illuminates a principle that can be overlooked. The comparison in a disparate impact analysis is between those with and without disabilities who are affected by the policy, not between those with disabilities and the whole world. Walgreens’ policy had a greater impact on those with disabilities who had prescriptions for “excess” amounts of opioids than it did on those with an ordinary prescription or no prescription at all, but that’s because those people were not subject to the policy at all. The comparison had to be between those with disabilities and those without disabilities who had prescriptions for “excess” quantities, and between those groups there was no difference.

The cost of default

Brian Whitaker, Pl., v. D.S.A. Sports, Inc., Def.., 2022 WL 4280639 (N.D. Cal. Sept. 15, 2022) – $6,415.00 plus an order to remediate.

Gilbert v Gswar Inc., 2022 WL 4245325 (E.D. Cal. Sept. 15, 2022) $5,984.25 plus remediation.

It’s tough to run a city, but that isn’t always an excuse.

Ramos v. Department of Homeless Services, 2022 WL 4234557 (S.D.N.Y. Sept. 14, 2022) is one of those lawsuits that drives city attorneys crazy. The plaintiff, appearing pro se, had any number of complaints about services offered to him as a homeless Hispanic. He lost his request for a preliminary injunction because, it appears, none of his claims had any merit at all. This was, however, the second go-round and of course the case remains alive even without immediate injunctive relief.

Keith v. City of San Diego, 2022 WL 4241271 (S.D. Cal. Sept. 12, 2022) on the other hand shows that even a pro se plaintiff may have enough of a point to keep her case alive. The plaintiff had been given a designated accessible parking space on the street in front of her home many years in the past in keeping with the city’s obligation under Title II of the ADA to provide accessible street parking.¹ Then the city decided to create a bike lane on the opposite side of the street and paint what the plaintiff said were some confusing arrows indicating cyclists could also use her side of the street, making it dangerous for her to enter and exit her car. Her complaint was not a model of clarity, but it was enough to defeat a motion to dismiss. Everything done to help one group of people (cyclists) has the potential to harm another. My only question would be why, since the plaintiff had a coherent complaint, the city dedicated so much time and effort to a battle in court that might have been solved with some paint on the street. First fix, then fight.

Finally, any municipal or state agency responsible for housing should pay careful attention to the recent settlement between the Housing and Urban Development and the Dallas Housing Authority.³ The City of Dallas agreed to pay $500,000 to a single individual who filed a claim of disability discrimination. The number is extraordinary: HUD’s other recent press releases announced settlements for $29,000 and $45,000 and a judgment for $70,000. However, if the facts in the press release are true the City really messed up. It isn’t hard to imagine how this might have happened. The first mistakes were by local managers whose compassion for tenants had been long since worn away by being paid too little to do too much for tenants that were often too demanding. When it escalated stubbornness set in and the us against them attitude commonly found in municipal service organizations took over. It reminds me of a line in a Raymond Chandler novel, The Continental Op, when the protagonist complains about having been roughed up by the police. To paraphrase; the problem – said the police lieutenant – is that this job calls for the highest kind of person, and nothing about the job attracts the highest kind of person.

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¹ The exact nature of municipal obligations with respect to street parking and sidewalks varies by Circuit. See my blogs ADA Title II – Maybe sidewalks aren’t services after all, Eternal liability under ADA Title – It’s what you don’t do that matters and Frame v City of Arlington, what’s wrong with this picture?

² For a more detailed explanation see my blogs Stigmatic injury and how the 11th Circuit got in wrong in Laufer v Arpan, Laufer v Looper – the death of tester standing, and not just in ADA cases. Laufer v Looper – chapter 2 and Tester standing under the ADA – Getting it wrong, getting it right, and an interesting but irrelevant analysis.

³ HUD’s press release is at https://www.hud.gov/press/press_releases_media_advisories/HUD_No_22_166

ADA regulations and the reality of website accessibility

July 22, 2022 By Richard Hunt in ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, ADA Internet, ADA Internet Web, ADA Website Accessibility Tags: ADA defense, Gomez, Judge William Orrick, Laufer, Trinitas Cellars, WCAG, website accessibility

Trinitas Cellars Logo

It has long seemed that the best way to both create accessibility for websites and to tame the industrial ADA litigation monster is to have a technical regulatory standard. Most recently a group of U.S. Senators has written to the Attorney General urging a resumption of the regulatory process that was ended under President Trump.¹ Before the process was ended the proposed regulations were essentially the familiar Web Content Accessibility Guidelines 2.0; the same guidelines that have been adopted as regulations for government websites under Section 508 of the Rehabilitation Act. Another group of members of Congress tried to accomplish the same thing with legislation that would have added a new title to the ADA and require this kind of regulation.²

I thought for a long time that some kind of regulatory solution was needed, but my experience defending lawsuits concerning physical accessibility ADA suits has persuaded me that a regulatory approach that essentially makes some version of the Web Content Accessibility Guidelines legally binding – which is what the abandoned DOJ regulations did – will neither improve website accessibility nor tame the beast.³ Instead we need regulations that adopt a functional approach to accessibility – the kind of approach used by Judge William Orrick in the recent decision in Gomez v. Trinitas Cellars, LLC, 2022 WL 2194658 (N.D. Cal. June 17, 2022).

Judge Orrick was considering a Motion to Dismiss that he had converted to a motion for summary judgment, a procedure that allows consideration of evidence beyond the words of the Complaint. The defendant attacked the plaintiff’s standing to sue, which is a real issue for this plaintiff (4), but the most interesting part of the decision concerns the defendant’s claim that the website was in fact accessible. Judge Orrick’s approach to that question shows just how similar issues should be approached in every ADA lawsuit.

Mr. Gomez’s first claim was that some of the images on the website did not have a meaingful text equivalent and could not be “seen” by a visually impaired user with screen reading software (SRS). The first such image was the logo of the business, which the defendant admitted had a meaningless text label. Judge Orrick found that this did not violate the ADA because the plaintiff could not explain how the lack of a label would deny him the full and equal enjoyment of the business or deter him from visiting it. As Judge Orrick observes, “it may have been ideal for that banner to be readable, but that does not mean it shows a cognizable injury or violates the ADA.” He applied the same analysis to social media logos that were not SRS readable: “neither Gomez’s opposition nor his supplemental brief draws even an arguable connection between this lack of readability and a barrier that would matter to the ADA.” This is how the ADA should be applied to technical accessibility issues. The ADA’s guaranty is that no person will be denied: “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” (5) Symbols and logos that have no functional purpose cannot be fit within the kind of things whose enjoyment the ADA protects.

This was not a blanket finding that every technical problem was not a violation. The Court recognized that menu items had to be accessible for the website to be usable at all, but it found as a matter of fact that the menus were accessible and could be read by SRS. Gomez’s last claim, concerning the contrast between text and background, was rejected because contrast does not matter to SRS, which is reading code, not visible text. Gomez was not blind – he only suffers from very poor vision – but his testimony was that he used SRS to navigate websites, so low contrast did not matter to him even though it might matter to a plaintiff with poor vision who did not rely on SRS.

Two principles can be found in Judge Orrick’s opinion. First, Title III of the ADA is violated only if some element of the website interferes with its practical use by a person with a disability. Second, an individual does not have standing to sue unless they were personally hindered in their use of the website even though some defective element is connected to their kind of disability. Any new regulations from DOJ should follow these principles and look at accessibility in practical rather than technical terms.(6) Instead of a “gotcha” list of technical requirements that no complex website can possibly meet, regulations should emphasize the purpose of the website, what users expect from it, and whether those expectations are met for individuals with a disability. For most commercial websites the purpose is to sell or rent something, and the question should be whether a person with a disability can accomplish that purpose with reasonable facility. From a litigation standpoint the plaintiff’s burden should be to plead the existence of a problem with the function of the website, not merely that logo or image lacks meaningful alternative text.

And while DOJ is thinking about meaningful regulations directed toward improving accessibility rather than generating meaningless litigation the courts might consider adopting Judge Orrick’s approach to cases involving physical accessibility. I’ve already pointed out the absurdity of so called “stigmatic injury” in Title III ADA cases.(7) Purely objective standards for accessibility have the advantage of being objective, but they suffer the disadvantage of being unachievable in practice. Plaintiffs should be required to plead and prove not just a technical violation, but also that they were personally suffered some kind of excessive inconvenience (8) in their full and equal enjoyment of a facility in order to plead or prove a Title III violation. This is the direction courts seem to be moving; it just needs to be incorporated in any new regulations defining accessibility.

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¹ See, letter dated June 10, 2022 from Senators Tammy Duckworth and Richard J. Durbin to Attorney General Merrick Garland. https://www.judiciary.senate.gov/imo/media/doc/22.06.10%20-%20LETTER%20-%20Duckworth-Durbin%20letter%20to%20DOJ%20on%20web%20accessibility%20-%20FINAL.pdf

² See my blog The Online Accessibility Act of 2020 – does it do what it needs to do?

³ Seyfarth Shaw recently reported that ADA filings are down by 22% in the first half of 2022. 2022 ADA Title III Mid-Year Federal Lawsuit Filings Drop 22% Compared to 2021. The most likely explanation is that recent prosecutions of some of the most notorious ADA serial filers and the Laufer standing decisions from the 5th and 10th Circuits have discouraged new filings. See, A short sharp shock – the end of the beginning for serial ADA lawsuits? and Laufer v Looper – the death of tester standing, and not just in ADA cases. This does not mean that misuse of the ADA no longer exists. Some law firms that engage in serial filing have now lowered their monetary demands and are sending demand letters before filing suit in an effort to make a quick settlement more attractive to defendants who would otherwise be tempted to fight back. The most extreme versions of this kind of ADA exploitation have criminal consequences, see https://www.justice.gov/usao-sdny/pr/attorney-pleads-guilty-filing-fraudulent-lawsuits-under-americans-disabilities-act. It is worth noting that the firms now sending demand letters instead of filing suit will generally not name their supposed client. This avoids criminal conduct like that prosecuted by DOJ, which involved using names without permission, but leaves open the question of whether the firm has a client at all. In the 40+ years I have been a litigator I have had thousands of clients receive demand letters, but the only times I’ve seen a demand letter that did not name a plaintiff have been demand letters concerning ADA website accessibility.

(4) A number of cases filed by Mr. Gomez have been dismissed just based on a lack of standing. See, e.g.,
Gomez v. Wunderlich, 2022 WL 2119120, at *1 (N.D. Cal. June 13, 2022) and Gomez v. Tribecca, Inc., 2022 WL 1469504, at *4 (C.D. Cal. May 10, 2022).

(5) 42 U.S.C. §12182(a).

(6) This kind of functional analysis will be incorporated in the upcoming version of the WCAG, version 3.0, which will measure conformance based more on practical effect than strict technical compliance. See, https://www.w3.org/TR/wcag-3.0-explainer/

(7) See, Stigmatic injury and how the 11th Circuit got in wrong in Laufer v Arpan

(8) Excessive inconvenience is an appropriate standard because disability by definition imposes some limits on the full and equal enjoyment of a facility. Even with perfect technical compliance a facility will be less convenient for a person with a disability than for a person without any disability.

DOJ Guidance on Website Accessibility and the ADA – it still could be worse

March 21, 2022 By Richard Hunt in Accessibility Litigation Trends, ADA Internet, ADA Internet Web, ADA Web Access Tags: ADA defense, DOJ Guidance on Website Accessibility, website accessibility

On March 18 the Department of Justice published its Guidance on Web Accessibility and the ADA. Anything that helps businesses understand their ADA obligations is helpful, but the fact that this Guidance was posted on the beta site of ADA.gov tells you that even DOJ has low expectations. Those low expectations are justified because the Guidance doesn’t define website accessibility and therefore does nothing to help businesses have certainty about their compliance with the law. More

ADA and FHA Quick Hits – Not quite President’s Day edition part 1

February 7, 2022 By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - serial litigation, ADA - Standing, FHA, Uncategorized Tags: ADA defense, ADA intent to return, ADA Mootness, ADA standing, ADA website nexus, FHA Defense, unruh act, website accessibility

Picture of Mount Rushmore The last six weeks have seen some important or at least interesting decisions under the Fair Housing Act and Title III of the ADA. If there is any common thread, it is that courts in general seem increasingly reluctant to give serial plaintiffs the benefit of the doubt on dubious pleadings while some judges continue to treat private enforcement as a legitimate means to advance the policy goals of these statutes. This is part 1 of a 2 part blog, so stay tuned . . . More

Understanding ADA Website Accessibility Litigation

December 7, 2021 By Richard Hunt in Accessibility Litigation Trends, ADA Internet, ADA Internet Web, ADA Website Accessibility Tags: ADA defense, WCAG 2.1 AA, website accessibility

My new paper “Understanding Website Accessibility Litigation” is available now for download. This paper is for businesses who want to understand this highly publicized form of litigation without jargon and legalese. Here’s a summary of what the paper will explain; a link to view the entire paper appears below.

It isn’t clear which business websites are covered by Title III of the ADA. It may cover all websites that are available to the public or it may be limited to websites that have some connection to a physical place of business. Just what that connection must be is also uncertain.

It isn’t clear what it takes for a website to meet the requirements of Title III of the ADA. WCAG in its current version at success level AA is the best available technical standard, but it does not have the force of law. Conformance to its requirements may not be sufficient, and non-conformance may not mean the website violates the ADA.

Not all lawsuits and demands are the same with respect to the threat they pose. Lawsuits and demand letters come from law firms that range from very sophisticated to incredibly ignorant. The only general advice that applies to all such lawsuits and demands is that before adopting any legal or business strategy you must know about the law firm and its history of website litigation.

Different judges can have very different views of what the ADA requires and how different defenses apply. Just as you can’t decide on legal strategy without knowing about the law firm that filed suit, you can’t decide on a legal strategy without knowing what your specific judge has done in the past with similar ADA lawsuits.

Software testing is not adequate to find all the accessibility problems a website may have. Only user testing by trained users can locate all the accessibility problems in a website.

No widget, plug-in or overlay can make a website fully accessible. These products can, at best, improve a small subset of common problems but often do so at the expense of making other parts of the website inaccessible.

Accessibility and good design go hand in hand. Making a website easy to use for non-disabled users will almost always solve common accessibility problems. Good design should b the primary consideration in website development.

To open the paper in your browser click this link: “Understanding Website Accessibility Litigation.”

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