To avoid lawsuits, companies should make websites ADA compliant
Title III of the ADA, 42 U.S.C. § 12182, provides that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182. Title III is enforced in two primary ways. First, individuals may bring a private action under Title III for injunctive relief and may, at the court’s discretion, recover attorneys’ fees. See 42 U.S.C. § 12188(a)(2); 42 U.S.C. § 12205. Second, the DOJ, which is responsible for enforcing the ADA, may bring (or intervene in) a lawsuit to obtain monetary damages and/or equitable relief. See 42 U.S.C. § 12188(a)(1). The DOJ may also obtain substantial civil penalties for violations of Title III. In addition, some states (e.g., California) have enacted statutes that provide for a separate cause of action where monetary damages may be sought for each violation.
The DOJ has yet to issue regulations regarding specific Internet accessibility obligations of private sector websites under Title III. In July 2010 the DOJ issued an Advance Notice of Proposed Rulemaking (ANPRM) on the subject but withdrew the ANPRM in 2017. In a 2018 letter to members of Congress, the DOJ reaffirmed its position that the ADA “applies to public accommodations’ websites” but declined to endorse any particular standard of compliance, such as the standards of the Web Content Accessibility Guidelines (WCAG-2), published by the World Wide Web Consortium, instead saying that each business has “flexibility in how to comply with the ADA’s general requirements of nondiscrimination and communication.”
Gift card litigation over alleged Title III violations continue into the new year
Recently, gift cards have found popularity with a new group: plaintiffs’ lawyers. In the fall, a small number of plaintiffs filed over 100 virtually identical class action lawsuits in New York federal courts. These lawsuits allege that retailers, restaurants, and other businesses violate Title III of the Americans with Disabilities Act and the New York City and State Human Rights Laws by failing to provide gift cards with Braille, the tactile writing system of raised dots that can be “read” by people who are blind or have low vision.
Now, these types of claims are also beginning to be filed in California. Along with New York, California is a hotbed of disability rights litigation because those states’ laws provide for compensatory damages (unlike the Americans with Disabilities Act).
Title III of the Americans with Disabilities Act (ADA) prohibits discrimination against disabled persons in places of “public accommodation.” Generally, businesses that provide goods or services to the public must provide disabled individuals with the same type of access to those goods and services as they provide to individuals who are not disabled, and must remove certain existing barriers to access.
Although individuals may have legitimate claims under Title III — and the overall goal of increasing accessibility is laudable — the majority of these lawsuits are filed by serial litigants and a small group of attorneys who are largely apathetic about the substantive claims and, instead, focus on quick settlements for nuisance amounts. The motivation for these serial litigants is the ADA’s private enforcement incentive. Plaintiffs who prevail on their claims generally recover attorneys’ fees, expert witness costs, and other legal expenses.
Although the ADA was enacted long before the ubiquity of websites and e-commerce, businesses are frequently targeted with claims that their websites and mobile applications are inaccessible to blind and visually-impaired individuals. Now, using similar reasoning, plaintiffs have alleged that gift cards must be “independently accessible” and that they and all other legally blind individuals have been denied equal access to the goods and services available through gift cards.
In addition to seeking statutory and punitive damages and attorneys’ fees, these plaintiffs request that retailers modify their policies and provide auxiliary aids with gift cards. Among other things, these plaintiffs demand that:
- The name and denomination of every retail gift card and its packaging be printed in Braille.
- Other pertinent information, such as terms of use, privacy policies, ability to ascertain gift card balance, and restrictions be printed in Braille on the card, affixed to the card or inserted in the packaging.
- The size and texture of Braille gift cards be different from regular gift cards to allow blind and visually impaired consumers to find them.
The demands raise complex questions relating to the potential expense and burden with implementation.
The plaintiffs’ novel theories may be distinguishable from ADA claims against websites and mobile applications in a number of ways. For example, the ADA does not specifically require the use of Braille. Instead, businesses have various options to provide effective communication to individuals with disabilities. Moreover, the ADA does not require businesses to alter “inventory to include accessible or special goods that are designed for, or facilitate use by, individuals with disabilities.”
These and other legal issues may provide businesses with viable defenses. However, the plaintiffs’ legal theory about requiring Braille gift cards is in its infancy. It is too early to predict whether it will gain traction and expand to other types of written materials.
In the meantime, businesses should be prepared to address the variety of litigation risks under the ADA and consult experienced legal counsel to address any concerns.
First Deaf and Blind Harvard Law Graduate Says Accessibility Isn’t Charity
Haben Girma, a lawyer born deaf and blind, has advocated for accessibility from her hometown of Oakland, California, all the way to the White House. Now, she has written a book about her journey.
In a phone interview with VOA, Girma read questions on a braille display after they were typed out by an interpreter. She said her parents, immigrants from Ethiopia and Eritrea, refused to listen to those who said she could not do certain things.
“One of the biggest challenges is people's attitudes. People would say to my parents, ‘Oh, poor thing, she’ll never go to school; she’ll never get a job.’ And that was really hard for my parents to hear. It’s hard for me to hear, too,” she said. “Kids with disabilities want to hear that they’ll be successful. But society often tells us, from very young, that we won’t do anything.”
Why Disability Advocacy Is So Important for the ADA Generation
People with disabilities born in the U.S. a few years prior to or after 1990, such as myself, have had the great fortune of growing up in a world where the American With Disabilities Act (ADA) exists to protect our rights. Older advocates have coined a term for this group of people: the ADA Generation. While society still has a long way to go in terms of truly accepting people with disabilities, the ADA Generation has not had to fight for our rights with the same intensity as older advocates due to having the law to fall back on.
The ADA Generation had a bit of a wake-up call recently when a new political party entered the White House and aspects of our very existence in society were threatened by proposed cuts to Medicaid. In March 2017, older advocates and advocates from the ADA Generation came together and staged a die-in at the Capitol Rotunda in protest of the cuts which have threatened the rights of people with disabilities to live in our homes with the help of personal assistants and assistive devices.
Geriatric Care “Giant” versus Pregnant Nurse: Guess Who Won?
Now, why would a health care company discriminate against a pregnant or disabled employee? Seems to contradict everything that a health care provider is supposed to stand for.
Now, why would a health care company discriminate against a pregnant or disabled employee? Seems to contradict everything that a health care provider is supposed to stand for.
Seems also to be self-destructive, as I have demonstrated countless times here: the EEOC has no easier target than a health care or medical provider who is alleged to have violated the Americans With Disabilities Act (“ADA”) or the Pregnancy Discrimination Act (“PDA”), and seems therefore to zero in on such cases as often as possible.
May I remind you of the Dallas home healthcare company which agreed to pay $25,000 for allegedly discriminating against an employee with bipolar disorder by firing her when she requested leave to see her health care provider.
The EEOC regional attorney stated then:
“We would expect that employers in the health care field would be keenly aware of the importance of supporting the medical needs of their employees by allowing reasonable time that may be required for treatment.”
Ouch.
Yet, according to a new EEOC press release, a geriatric care “giant” in Washington State “refused to accommodate [a CNA, or Certified Nursing Assistant’s] request not to lift anything heavier than 15 lbs. for the last part of her pregnancy,” while allowing “light duty to employees injured on the job.”
That’s right – light duty to those injured but not for those pregnant.
The nurse was placed on involuntary, unpaid leave, and was told “to reapply for a CNA job once she was ready to return to unrestricted duty, which she understood to mean that she was fired.”
The geriatric care “giant” just agreed to pay $170,000 to the nurse to settle the lawsuit which the EEOC filed.
Ouch, again.
The EEOC noted that:
“Denying light duty to a pregnant employee while providing it to similarly-abled non-pregnant employees may violate Title VII,” and an EEOC attorney said that “An employer may not reject an employee’s request for pregnancy-related work restrictions if the same employer is granting the light duty request of a non-pregnant employee.”
Takeaway
As I noted many times before, you must engage in an interactive process with a requesting employee who is pregnant or who has a disability to seek a reasonable accommodation that is not unduly burdensome to you.
It isn’t that difficult and usually not particularly expensive to arrive at a “reasonable accommodation” – at least compared to the cost of litigation and settlement.
And if you are a heath care or medical facility or provider, be aware – be very aware – that if you fail to do this you are inviting – if not daring – the EEOC to target you!