A number of court precedents suggest that private websites are generally not among the public accommodations and places of business subject to the handicap accessibility mandates of the Americans with Disabilities Act. Disabled rights litigators, assisted by the Obama administration, have been battering away at these precedents for years, and in March they secured a significant win as a California Superior Court judge ordered a private company, Colorado Bag ‘N’ Baggage, to pay $4,000 to a blind customer and revise its website. Notably, the judge’s ruling came in response to a summary judgment motion by the plaintiff, implying that in his view the business’s defense was not strong enough to justify trial [Bob Dorigo Jones, Jacob Gershman/WSJ Law Blog, Amanda Robert/Legal NewsLine/Forbes] If the notion of legally obligatory web accessibility were accepted, quite a large share of existing websites would be far out of compliance, with likely consequences including the emergence of cash-seeking filing mills and pressure to take down countless existing websites used for business, community and nonprofit activity, journalism, and so forth. More at our web accessibility tag.
- New gun store in Arlington, Va., just outside D.C., sues neighbors as well as officials who tried to block its opening [Washington Post]
- Good: “Amendment Could Save the Vaping Industry From Prohibitive FDA Regulations” [Jacob Sullum]
- N.J.: “Bergen County Father Jailed For Non-Payment Of Support For Kids Who Live With Him” [Bergen Dispatch via Hans Bader]
- Outrage over state override of local regulatory options seems to depend a lot on whose ox is gored [Aaron Renn, Urbanophile]
- That way, they could challenge it in court? Claim that businesses would be better off if DOJ went ahead and issued regulations commanding their websites to have ADA “accessibility” [Legal NewsLine, earlier]
- “Washington Redskins Appeal To SCOTUS On Trademark And Seek To Tie Their Case To That Of The Slants” [Timothy Geigner, TechDirt, earlier]
I’ve predicted that with wider acceptance of the legal theory that the ADA requires websites to reflect the needs of blind, deaf, paralyzed, and other disabled users in their design, there will eventually emerge filing mills generating form complaints alleging lack of online accessibility, just as we see with ADA complaints in some states against brick-and-mortar stores on Main Street. Now, after years of effort from disabled advocacy groups and the Obama administration to overcome unfavorable court precedent, we may be several steps closer to that day [Amanda Robert, Legal NewsLine]:
Defense attorneys say there has been an “explosion of activity” from payment-seeking plaintiffs lawyers and their blind clients who are alleging violations of federal disabilities law in lawsuits over companies’ websites – particularly in three jurisdictions [California, New York, and Pennsylvania].
One Pittsburgh attorney representing two blind plaintiffs has brought cases against Hard Rock Café International, Toys “R” Us, and Pep Boys over their online operations, as well as a case now consolidated against 16 different defendants including Ace Hardware, Brooks Brothers, the National Basketball Association and Red Roof Inns. As for smaller businesses, they are for the most part not exempt under the law, so their time will come too.
Did our message finally get through? (See “How ADA-for-the-Web Regulations Menace Online Freedom,” 2013). Or that of other commentators like Eric Goldman, who warned (of a related court case) that “all hell will break loose” if the law defines websites as public accommodations and makes them adopt “accessibility”? At any rate, the U.S. Department of Justice, after years of declaring that it was getting ready any day now to label your website and most others you encounter every day as out of compliance with the ADA, has suddenly turned around and done this:
In an astonishing move, the Department of Justice (DOJ) announced that it will not issue any regulations for public accommodations websites until fiscal year 2018 — eight years after it started the rulemaking process with an Advanced Notice of Proposed Rulemaking (ANPRM).
Yes, eight years is a very long time for a rulemaking, especially one pursuing issues that have been in play for many years (that link discusses testimony I gave in 2000). And predictably, some disabled interest-group advocates are already charging that the latest delay is “outrageous” and shows “indifference.” More likely, it shows that even an administration that has launched many audacious and super-costly initiatives in regulation has figured out that this one is so audacious and super-costly that it should be – well, not dropped, but left as a problem for a successor administration.
Besides, as so often happens, for regulated parties the issue is (to borrow a phrase) not freedom from obligation, but freedom from specification as to what that obligation might be. Court decisions, which for years ran mostly against ADA advocates’ “public accommodations” claim, now point confusingly in both directions. And in the mean time both private litigants and DoJ itself continue to sue online providers and fasten on them new settlements and decrees, as when Amazon lately agreed to caption more videos for the deaf; Harvard and MIT, meanwhile, were still being sued for the audacity of having offered uncaptioned online courses to the public. Minh Vu and Kristina Launey of Seyfarth Shaw:
…since issuing that  ANPRM, DOJ’s enforcement attorneys have investigated numerous [entities claimed to be] public accommodations, pressuring them to make their websites accessible. DOJ even intervened in recent lawsuits (e.g., here, here, and here) taking the position that the obligation to have an accessible website has existed all this time in the absence of any new regulations.
The next administration – or better yet Congress – should summon the courage to give a firm and final No.
[cross-posted from Cato at Liberty]
As I’ve said more than once, I view the Department of Justice’s much-delayed plans to mandate “accessibility” of websites under the Americans with Disabilities Act (ADA) as perhaps the single most under-reported and alarming regulation that I know of in the federal pipeline. Here is a June rundown from Porter Wright attorneys Bob Morgan and Melissa Barnett of the state of play on the issue. It notes, as has our coverage, that even without getting around to issuing regs, DoJ is busy using ADA settlements to impose its views of accessibility on businesses it sues.
The article affords some glimpses of the staggering hassles that lie ahead for those who sell or promote products or services online, including for many the likely need to hire not just consulting help but full-time web accessibility specialists. Just one excerpt:
…making a website accessible to disabled users centers on design and functionality. The complexity of achieving this objective varies by the “type of content, the size and complexity of the site, and the development tools and environment,” according to the World Wide Web Consortium. But hundreds of design options exist to make a website accessible; WGAC 2.0 [the Web Content Accessibility Guidelines] alone provides 206 options. These include, but are not limited to, providing links to definitions, removing time limits for activities, providing spoken word versions of text, and ensuring keyboard control for all website functions.
One wording in this passage strikes me as a bit peculiar. To say that WGAC “alone provides 206 options” might suggest that achieving legal compliance is a snap — look, there are 206 options to comply, just pick one. But it doesn’t mean that, does it? Just because you’ve arranged to “provide spoken word versions of text” to fend off a lawsuit on behalf of blind users doesn’t mean you can get out of a lawsuit representing persons lacking fine hand motor control for not “ensuring keyboard control for all website functions” (i.e., disabling any mouse-only functions and patching any failures this generates in your current design). And even if you can do both those things along with fifty more, you may still be exposed to a lawsuit if you haven’t gotten around to “removing time limits for activities.”
According to Porter Wright’s Morgan and Barnett the Department of Justice is now expected to release its new rule in April 2016. Do not count on Congress to save the day; its record in the past under both Republican and Democratic leadership has been one of stepping in to expand the scope of the ADA, not rein in its more extreme applications. A better hope is the courts, which, despite some recent erosion, have not overturned some noteworthy precedents in which judges declined to extend ADA regulation wholesale from physical to virtual “space.”
- Another web accessibility settlement from the U.S. Department of Justice, this time Carnival cruise lines [Minh Vu and Paul H. Kehoe, Seyfarth Shaw, my warnings on legally prescribed web accessibility]
- A topic I’ve often discussed: “Has The ADA Broken Its Economic Promises To People With Disabilities?” [Amelia Thomson-Deveaux, Five Thirty-Eight]
- Nebraska meat-packer tried too hard to hire only legal workers, will now pay dearly for asking for too many documents [Department of Justice press release]
- Owing to discrimination, a Colorado couple had to drive a few extra miles to get a cake, and fly 2000 extra miles to get a marriage license. So guess who’s now in legal trouble for inconveniencing them [Jacob Sullum, New York Post] Sen. Ted Cruz sounds as if he might be skeptical of religious discrimination laws as applied to public accommodation, and down that path might be found libertarian wisdom [Scott Shackford, Reason]
- EEOC says University of Denver Law School must pay its female faculty more [Denver Post, TaxProf]
- “Court Rejects The EEOC’s Novel Attempt To Impose Disparate Treatment Liability Without Any Injury” [Seyfarth Shaw; EEOC v. AutoZone, N.D. Ill.]
- Because more coercion is always the answer: France considers ban on “discrimination” against poor [Frances Ryan, The Guardian]
Today is the twenty-fifth anniversary of the Americans with Disabilities Act. Listen to Diane Rehm’s roundtable on the law with me and other guests here:
Five years ago I wrote on the occasion of the ADA’s 20th anniversary. I criticized the more recent, United Nations-drafted Convention on the Rights of Persons with Disabilities in this 2012 piece. And the potentially massive disruptions to be expected from a legal requirement that websites be “accessible” — a regulatory idea that the Obama administration is thought to be in the very final stages of considering — have been a regular theme here for many years, as has the harm done by ADA filing mills that file accessibility complaints by the batch against businesses and property owners, often with recovery of attorneys’ fees in mind. More: James Bovard, USA Today.
This is no joke. If you work for Federal Money, which I do, everything published to the web must be Section 508 compliant.
It’s like a choke chain on a leash. Many, many tools and features useful to 99% of your users must remain unavailable because 1% of the people who come to your site might not be able to use them.
It’s one of the reasons ANY federal web site is so BORING in design.
More: Scott Greenfield, Simple Justice (“The Public Accommodation Formerly Known As SJ”)
- Per The Economist, long-awaited Justice Department rules decreeing ADA accessibility for websites (earlier here, here, etc.) expected any day now, “in June. For example, each picture must have text describing it, so that screen-reader programs can tell blind people what is there.” Individual enforcement actions, as against Peapod, aren’t waiting [DoJ press release] Settlement with MOOC firm signals DOJ plans to deal with online education providers [Cooley] Contributor believes it’s a snap to include online captioning in all online Harvard and MIT courses, so what’re they waiting for? [Time]
- Rest of the Economist article is of interest too, especially on ADA filing mills in Florida and elsewhere;
- In Sheehan v. San Francisco, Ninth Circuit created right to ADA accommodation in confrontations with law enforcers, SCOTUS reversed on other (qualified immunity) grounds [Mark Pulliam, City Journal; Richard Re, Prawfs]
- Commemorations of 25th anniversary of the ADA — here’s what I had to say about the 20th — include plans “to hold [various Chicago institutions] publicly accountable for their commitments” to, inter alia, “increase civic engagement around disability issues” [Michael Waterstone, Prawfs]
- Sacramento: “Squeeze Inn owner joins fight against costly ADA lawsuits” [KCRA]
- Spread of fake service dog paraphernalia alarms groups that work with actual service dogs [BBC]
- Intended class-action plaintiff sues McDonald’s over new style Coca-Cola Freestyle dispensers, saying touchscreen format unfair to disabled users [BigClassAction.com]
Fifteen years ago, I wrote the following, to considerable skepticism from some ADA advocates, about the idea that online publishers should be legally obliged to make their websites “accessible” to blind, deaf, and other disabled users:
If it’s easy for entrepreneurial litigators to stroll down the main street of a town and find stores vulnerable to an ADA suit because their water fountain or pay phone is at the wrong height, it’s even easier for them to surf the Web and find sites that flunk the most widely accepted disability guidelines. Assuming a court can be found with proper jurisdiction over them, the next logical step is the filing of accessibility complaints by the cartload.
Federal courts were cool toward the idea of obligatory web accessibility, but more recently it has been stirring back to life, in part owing to an Obama administration move to revitalize the idea. And while it’s taken me a while to catch up with the story, it appears that at least one practicing lawyer has indeed spotted a niche for the mass filing of ADA suits against small businesses over their online presence.
That lawyer is Minneapolis-based attorney Paul Hansmeier, who fittingly or otherwise was previously associated with the now-disgraced Prenda Law Group, which engaged in mass copyright complaint filing against computer users recorded as downloading certain X-rated materials. Mike Masnick at TechDirt followed the adventures of Hansmeier and his Class Justice in multiple web-accessibility filing in this 2013 post with sequel and even more entertaining followup (channeling Dan Nienaber, Mankato, Minn., Free Press). Now Tim Cushing at TechDirt reports that Hansmeier is running into a bit of resistance in the form of a counterclaim by one of his targets, Kahler Hotels.