Settlement Agreement: West Point Tours, Inc.
The ADA, Websites and the Decision in Robles v. Dominos Pizza LLC
Lexology
Are website operators required to comply with the Americans with Disabilities Act?
Yes, but the compliance standard is undefined. In Robles v. Dominos Pizza LLC (Case No. 42 CV 16-06599 SJO (C.D. Cal. Mar. 20, 2017)), a federal court in California dismissed a class action lawsuit that asserted Domino's Pizza discriminated against Americans with disabilities on its web and mobile sites. Specifically, the plaintiff had complained that the company failed to make its website and mobile app accessible to blind or visually-impaired people who utilise screen reader software to use the Internet. The court found that website operators do not currently have to offer the specific accommodations identified by the plaintiff in this case but that some form of accommodation is required.
The Americans with Disabilities Act and its applicability to websites
The Americans with Disabilities Act ('ADA') prohibits discrimination against people with disabilities in employment, transportation, public accommodation, communications, and governmental activities. The ADA does not specifically reference websites or mobile sites and US courts have been split on the question of whether online services are covered.
Some US courts, as well as the U.S. Department of Justice ('DOJ'), have held in various opinions that certain provisions of the ADA are applicable to websites. For example, they have required retailers to revise their websites to afford screen reading and voice over software programs the ability to interpret websites audibly for the visually impaired. Notwithstanding these opinions, the DOJ has delayed for many years the anticipated rulemaking for website accessibility under the ADA. In the meantime, the agency has insisted that websites comply with the Web Content Accessibility Guidelines ('WCAG') 2.0AA or AAA, developed by the World Wide Web Consortium ('W3C'), a third party international consortium that develops web standards.
The decision in Robles v. Dominos Pizza LLC
The plaintiff had complained that Domino's Pizza failed "to design, construct, maintain, and operate its website [and mobile application] to be fully accessible to and independently usable by [himself] and other blind or visually-impaired people" using screen readers pursuant to version 2.0 of W3C's Guidelines, thereby preventing him from completing purchases.
The court framed the key question as "whether and to what extent the ADA, a statute enacted before the widespread adoption of the Internet, regulates the manner in which companies can permissibly engage in e-commerce." For purposes of the analysis, the court assumed the applicability of Title III of the ADA and rejected Domino's argument that the suit should be dismissed because the ADA was not drafted with the specific regulation of virtual spaces in mind. It noted the nexus between Domino's websites and its brick-and-mortar pizza stores and found that any operator whose products or services are related to physical stores open to the public are required to provide accessible web and mobile websites.
However, the court sided with Domino's on its due process challenge. Domino's had argued that "the DOJ has not promulgated concrete guidance regarding the accessibility standards an e-commerce webpage must meet, much less required that companies operating such webpages comply with the specific standards Plaintiff references in his Complaint." The court found merit in this challenge and rejected the plaintiff's attempt to impose specific technical requirements on all regulated entities without specifying a particular level of technical compliance and without the DOJ offering meaningful guidance on the topic. The court held such a request "flies in the face of due process."
Overall, the decision gives website and mobile app owners the defence that it would be a violation of their right to due process to require them to revise existing websites to comply with industry standard guidelines not yet approved by any federal agency. To address this lack of approved guidelines, the court called upon the DOJ to issue implementing regulations on web accessibility under Title III.
Practical takeaways
In the short term, operators of websites and mobile sites should try to comply with ADA requirements to the extent practicable. This is particularly true for any operator whose products or services are related to physical stores. For guidance, companies can look to the WCAG 2.0AA or AAA, developed by the W3C. Companies can take some comfort in the fact that these stringent and potentially burdensome standards have not yet been adopted as the governing standard, and other, less onerous ways of accommodating the disabled may provide some defence.
In the long term, companies should monitor new legislation or pronouncements from the DOJ as to which set of standards will be applied to websites and mobile apps.
PPG Industries Sued By EEOC For Disability Discrimination
Pittsburgh-based global paint supply company PPG Industries, Inc. violated federal law by terminating an employee with a disability after he suffered seizures which led to medical restrictions, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit.
According to the EEOC's lawsuit, the employee worked in the Ferndale, Mich., plant of the Revocoat company. The employee was placed on a six-month medical restriction prohibiting him from driving and operating heavy machinery because of his having suffered seizures. After that, the company put him on a medical leave of absence. While out on his medical leave, PPG Industries purchased Revocoat. The employee communicated with PPG's human resources director and provided him with updated medical information. However, the HR director refused to provide any accommodations, and fired the employee. Thereafter, the Ferndale plant was closed.
Such alleged conduct violates the Americans with Disabilities Act (ADA). After attempting to reach a pre-litigation resolution through its conciliation process, the EEOC filed suit in U.S. District Court for the Eastern District Court of Michigan (EEOC v. PPG Industries, Inc., Case No. 2:17-cv-12304). The EEOC is seeking monetary relief for the employee and an injunction prohibiting PPG from engaging in this type of conduct in the future.
"Federal law prohibits employers from denying workers with disabilities a reasonable accommodation," explained EEOC Trial Attorney Nedra Campbell. "In this case, PPG could have considered a temporary change in duties or a six-month medical leave to coincide with this man's medical restrictions. When employers flatly refuse to even explore such measures, the EEOC will step in to make things right."
Federal Government Weighs In on Transgender Rights Under ADA
New Jersey Law Journal-
The U.S. Department of Justice has entered the fray in a New Jersey transgender rights suit in hopes of averting a constitutional challenge over protections granted under the Americans with Disabilities Act.
In a statement of interest filed Monday, the Justice Department asked the judge in the case not to address the plaintiff's assertion in Doe v. Arrisi that a provision of the ADA denying protection to "transsexualism" and "gender identity disorders not resulting from physical impairments" is unconstitutional. The suit seeks to overturn a New Jersey law which prevents a transgender person to change the sex noted on the birth certificate unless the person had surgery to change the gender.
The DOJ was placed on notice because the suit argued that the ADA's exclusion of transgender people is unconstitutional. But it said the judge need not address the constitutionality of the exclusion because the plaintiff in the case asserts that her gender identity disorder is the result of a physical impairment. The agency cited the plaintiff's assertion in her complaint that her disorder "is a biological condition, likely due to brain neuroanatomy and the formation of that brain neuroanatomy in the womb." That would place her outside the ADA's exclusion for certain transgender persons, 42 U.S.C. §12211(b)(1), the DOJ said.
But, according to the plaintiff's lawyer, the federal government's participation is notable because it acknowledges that gender dysphoria is protected under the ADA.
Uber is being sued by NY disability advocates for not having accessible cars
Recode
The ride-hail company says 200 of its close to 60,000 cars in New York are accessible.
Uber sued again for failing to accommodate disabled passengers
Engadget
The plaintiffs claim that Uber only provides .1 percent of its fleet for people using wheelchairs.
Constable: Is that dog a service animal, a pet or none of your business?
Chicago Daily Herald
ICC releases updated a117.1 building accessibility standard
Lexology
On June 29, 2017, the International Code Council (ICC), announced the release of an update to the 2009 ICC American National Standards Institute (ANSI) A117.1 Accessible and Usable Buildings and Facilities Standard. The ICC is the publisher of the International Codes or family of I-Codes as they are commonly known. One member of this family is the International Building Code (IBC), which has now been adopted in all 50 states. Accessibility requirements are addressed in Chapter 11 of the IBC, including section 1101.2 which requires buildings and facilities to be designed and constructed to be accessible in accordance with the IBC and ICC A117.1 standard.
Where Chapter 11 of the IBC addresses accessibility scoping requirements such as the “what,” where,” and “how many,” ICC/ANSI A117.1 is the referenced standard for the technical provisions or the “how” necessary to properly execute accessibility requirements. The updated edition of the standard continues to meet or exceed provisions in the Americans with Disabilities Act Accessibility Guidelines and the Fair Housing Design Guidelines; both federal requirements.
In Virginia, the ANSI A117.1 is enforced through its incorporation by reference through the Virginia Uniform Statewide Building Code (USBC) via the ICC International Building Code. Unless directed otherwise by local code enforcement officials or policy, designers and contractors should always comply with the versions of codes presently enforced within the jurisdiction of the project, local requirements, and the latest versions of referenced standards such as the ICC/ANSI A117.1.