Since the Americans with Disabilities Act (ADA) was passed in 1990, businesses have been vulnerable to “drive-by lawsuits” alleging that their facilities are physically inaccessible to disabled customers or guests. The new trend in ADA litigation is the “surf-by” lawsuit—disabled individuals who sue under the ADA because a business website they visited was allegedly inaccessible to them. The U.S. Department of Justice also has been aggressively enforcing website inaccessibility violations even though it won’t issue regulations until 2018.
If you’re still not convinced that the threat of website accessibility lawsuits is real, consider that in March, a California trial court became the first in the nation to rule on summary judgment that a retailer’s website violated the ADA and California’s anti-discrimination law (the Unruh Act). The court determined that the website was inaccessible to visually impaired individuals. The judge slapped the retailer with $4,000 in statutory damages under the Unruh Act, ordered it to either modify or remove the website, and awarded the plaintiff its attorneys’ fees, which are estimated to be in the six-figure range.
What can business owners do to prevent being sued for website accessibility violations? Start with these steps:
- Determine if the ADA applies to you. Title I of the ADA applies to private employers with 15+ employees. Covered employers may not discriminate against employees with disabilities and must make reasonable accommodations for them. In addition, accessibility may be an issue for business websites that allow job applicants to apply online. Title II applies to State and local governments. Under Title III, the website of an organization that qualifies as a “public accommodation” must be accessible to individuals with disabilities. Courts are split on whether “pure Internet” organizations (i.e., those without a bricks-and-mortar presence) are subject to website accessibility requirements.
- Identify accessibility issues. If the ADA applies to you, determine if your website poses accessibility problems to disabled individuals. The DOJ has not yet officially adopted rules for website accessibility, but is considering two sets of standards – the Web Content Accessibility Guidelines (WCAG) 2.0 created by the World Wide Web Consortium and the Electronic and Information Technology Accessible Standards published by the U.S. Access Board for compliance with Section 508 of the Rehabilitation Act. Common accessibility barriers include lack of closed-captioning for audio and video content, a site navigation structure unfriendly to keyboard-only users, and failure to provide descriptive text for images and non-text content.
- Get expert help. Web accessibility standards are highly technical. Consider consulting an IT expert with web accessibility experience to help you identify accessibility problems and solutions. You should also consult a lawyer with ADA experience to help you evaluate and mitigate legal risk, or to devise a defense strategy if you’ve already received a demand letter threatening litigation.
In the last few years, we’ve seen how the private social media activity of employees can get employers in trouble for violating a variety of laws. The National Labor Relations Act. HIPAA. Title VII. Now you can add the Americans With Disabilities Act (ADA) to the list.
In Shoun v. Best Formed Plastics, Inc., 2014 WL 2815483 (N.D. Ind. June 23, 2014), a federal judge held that an employer may be liable under the ADA for an employee’s Facebook comments about the medical condition of a co-worker. George Shoun, an employee at Best Formed Plastics, sustained a workplace injury and took leave to recover. Shoun’s co-worker, Jane Stewart, learned about his injury because she processed his worker’s compensation claim and monitored his medical treatment for the company. Stewart posted this snarky message on her personal Facebook account: “Isn’t [it] amazing how Jimmy experienced a 5 way heart bypass just one month ago and is back to work, especially when you consider George Shoun’s shoulder injury kept him away from work for 11 months and now he is trying to sue us.”
Shoun sued the company, alleging that Stewart’s post made it liable for violating the ADA. According to Shoun, the post was visible to the business community. Shoun claimed that prospective employers refused to hire him because of the post, causing him emotional distress and mental pain and suffering.
The court refused to dismiss the ADA claim against the company, reasoning that Stewart obtained the information through an employment-related medical inquiry and then wrongfully disclosed it. As a result, Shoun could sue for violation of Section 102 of the ADA, which provides that any information relating to a medical condition of an employee obtained by an employer during “voluntary medical examinations, including voluntary work histories, which are part of an employee health program available to employees at that work site,” must be “collected and maintained on separate forms and in separate medical files and [be] treated as a confidential medical record.” Moreover, the company could be liable for Stewart’s actions even though she posted the message on her private Facebook account in her own time.
Shoun is another reminder of how easily the lines between personal and professional conduct can get blurred on social media. Employers must train their employees about what they may and may not disclose on social media. It is almost never proper for an employee to share medical information obtained at work on his or her personal social media account. The confidential nature of medical information needs to be emphasized especially when training employees who handle workers’ compensation claims, medical leave requests, billing for health services, FMLA claims, etc.
Judge allows disability civil rights claim against Netflix to proceed — National Association of the Deaf v. Netflix, Inc., 2012 WL 2343666 (D. Mass. June 19, 2012)
Whoa, talk about floodgates. If this case gets upheld on appeal, it might let loose a new wave of American With Disabilities Act (ADA) litigation. Two groups advocating for the rights of the deaf and hearing impaired sued Netflix under the ADA for failing to provide equal access to its video streaming web site. Now, live video streaming is critical to Netflix’s business model, so the ruling is certainly a blow to Netflix. But the ruling has far greater implications. The basic question is whether websites are “public accommodations” to which the anti-discrimination provisions of the ADA. The federal district court of Massachusetts said yes.
The ruling was handed down in the context of Netflix’s motion for judgment on the pleadings, which is an attempt to end the case at an early stage. Netflix argued that websites are not in the list of public accommodations in the ADA statute. The court rejected the argument, noting that while web-based services are not specifically listed in the statute as public accommodations, Congress intended the ADA to adapt to changes in technology. Moreover, the streaming video website fell into one or more of the listed ADA categories of public accommodations, including a “place of exhibition or entertainment” and a “rental establishment.” But the streaming service is different from a bricks-and-mortar establishment, Netflix argued, because the videos are accessed in private residences, not in public spaces. No matter, said the court. The ADA covers the services “of” a public accommodation, not services “at” or “in” one. Many businesses provide services to a customer’s home (plumbers, pizza delivery services, and moving companies are the ones listed in the court opinion) and they are not necessarily exempt from the ADA.
Netflix made two additional arguments relating to captioning. First, Netflix argued that the plaintiffs failed to allege that Netflix controls the captioning of streaming video content. According to Netflix, owners of video programming (not distributors like Netflix) hold the exclusive copyrights necessary to caption content. Without the copyrights, Netflix cannot caption content without the permission of the copyright owners. The court rejected this argument because Netflix alleged that it is working to provide captioning for the content on its streaming service. This suggests that Netflix has some degree of control over the captioning of its video streams.
Netflix’s second captioning argument was that interpreting the ADA to cover the captioning of video programming would create an irreconcilable conflict with the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA), which regulates the closed captioning of online video content. This argument did not persuade the court either, as it found that the CVAA did not conflict with ADA even if the latter imposes broader duties on Netflix than the CVAA; it was possible to comply with both laws.
LegalTXT Lesson: Netflix likely will appeal to the First Circuit, and with good reason. Small business owners are familiar with the rash of lawsuits spawned by the ADA. If it stands, this ruling exposes a whole new class of businesses to ADA claims. Many web-based services could be potential targets of ADA lawsuits. For instance, could a restaurant that allows customers to make reservations online be sued under the ADA if it doesn’t close-caption its website? Would a hotel booking website violate the ADA by failing to provide a voice activation feature on its site? It all remains to be seen. Stay tuned.