These two developing areas have implications for almost any entity covered by Title III By Joshua A. Stein
March 25, 2015
July 26, 2015, is the 25th anniversary of the Americans with Disabilities Act (ADA). This event will likely be celebrated with significant developments impacting the scope of coverage of Title III of the ADA.
The U.S. Department of Justice (DOJ), charged with regulating Title III, is expected to advance and finalize some regulations affecting most industries, and others focused on movie theaters, cruise lines, and possibly, healthcare facilities. Additionally, advocacy groups and plaintiffsbuoyed by these looming developments and emboldened by the 25th anniversary may continue aggressively pursuing an expansive interpretation of Title III in structured negotiations/”cooperative” agreements and litigation.
This article focuses on two developing areas with implications for almost any entity covered by Title III. At a quick glance, these developments could seem somewhat unrelated. However, a closer look reveals that they are governed by a unifying concepta focus on the application of Title III’s overarching civil rights provisions (e.g., “full and equal enjoyment” and “effective communication”) to developing areas currently lacking specific regulations (e.g., accessible technology) and/or requiring a nuanced context-specific and individualized analysis in their application (e.g., the provision of auxiliary aids and services).
Website accessibility has become one of the most prominent issues under Title III, as regulatory agencies and advocacy groups have increasingly challenged the inaccessibility of websites under Title III and related state and local accessibility laws.
The legal landscape regarding this issue remains conflicted as courts are divided on whether the term “places of public accommodation” applies to websites and, if so, to what extent. Generally, the division among courts has created three lines of thought:
- The ADA must be read broadly to successfully achieve its purpose, allowing individuals with disabilities to fully and equally participate in society and, therefore, websites must be made accessible under Title III
- The ADA must be read as it is written and, because “places of public accommodation” are plainly defined with an extensive list of solely physical locations, the ADA must be amended, or new regulations promulgated, before Title III can apply to websites
- Title III applies to websites of places of public accommodation to the extent there is a nexus between the goods and services provided by the brick-and-mortar place of public accommodation and the website
Notwithstanding this tension among the courts, DOJrelying upon Title III’s “full and equal enjoyment” obligationhas long taken the position that Title III, as currently drafted, applies to the websites of places of public accommodation. To further strengthen its position and remove ambiguity about what constitutes an accessible website under Title III, since 2010, the DOJ has taken the necessary steps to promulgate regulations specifically addressing the requirements for website accessibility for public accommodations. Most recent estimates project that the next step in this rulemaking will occur this summer, shortly before the 25th anniversary.
Separately, the U.S. Access Board continues to promulgate a revised version of Section 508 of the Rehabilitation Act of 1973, which addresses, in part, website accessibility for federal agencies and the contractors of federal agencies in certain contexts. A Notice of Proposed Rulemaking was just published in February 2015, triggering a 90-day comment period. Previously, in December 2013, the U.S. Department of Transportation amended the Air Carrier Access Act of 1986 (ACAA) to create accessibility obligations for public-facing websites of covered airlines and airports.
Despite the fluid state of this issue on both the judicial and regulatory front, over the past year, both DOJ and advocacy groups, such as the National Federation of the Blind and the American Counsel for the Blind, have continued to press the issue, utilizing the threat of litigation and/or investigation to prompt website accessibility agreements with notable entities in many industries. These agreements sometimes developed during “structured negotiations”involved, among others, H&R Block, Peapod, Safeway, eBay and other facilities, including colleges and universities, hospitals and fashion retailers. In recent years, certain state attorneys general offices have also pursued settlement agreements involving website accessibility
Fortunately, there is a fairly clear path for those seeking guidance on how to make their websites accessible. Both the pending regulations and settlement agreements entered into by DOJ and advocacy groups generally define the appropriate level of website accessibility by referencing the Website Content Accessibility Guidelines (WCAG) 2.0, Levels A and AA, prepared by the Website Accessibility Initiative (WAI) of the World Wide Web Consortium (W3C). Places of public accommodation that wish to assess the accessibility of their websites and/or take steps to enhance their accessibility should engage in a user and programming-based dual-pronged audit of their websites against WCAG 2.0, Levels A and AA.
Accessible point-of-sale devices and other touchscreen technology
Another “front burner” issue also involving accessible technology is the adoption of touchscreen devices, predominantly for use at the point of sale (POS). Similar to the website accessibility context, specific federal regulations governing the accessibility of such devices do not currently exist. The DOJ began the process of implementing such regulations several years ago, but significant developments are not expected until late this year. (California has an explicit accessible POS requirement, and the accessibility of touchscreen kiosks in the airline industry is separately governed by the aforementioned recent amendments to the ACAA.)
Even without specific regulations in place, over the past year, a handful of plaintiffs and advocacy groups have repeatedly brought class action lawsuits against a “who’s who” of retailers and big-box stores in virtually all contexts alleging a violation of Title III for failing to provide POS devices that are accessible to the blind. Specifically, these lawsuits allege that retailers are denying patrons who are blind the “full and equal enjoyment” of their shopping experience because, by installing touchscreen devices that do not provide a tactile keypad, in order to utilize their debit cards via the POS device, patrons who are blind must disclose their debit card PIN to another person (e.g., the sales person). This process not only invades the privacy of patrons who are blind but also requires them to take a disadvantageous step that is not required of patrons who are not blind. Some lawsuits also allege that retailers are failing to meet their obligation to provide auxiliary aids and services necessary for patrons who are blind to effectively communicate with store employees. The DOJ has aligned itself with the plaintiffs in these cases, taking the position that places of public accommodation are not relieved of their obligation to provide accessible POS devices just because patrons who are blind have other methods of payment available for use.
Therefore, places of public accommodation contemplating the installation of touchscreen devices (e.g., for retail POS, hotel check-in, purchasing tickets, ordering food, rental kiosks) would be advised to consider both traditional accessible design issues (e.g., reach range, accessible route, and protruding objects/detectable warnings) and the provision of accessible measures for individuals who are blind and deaf to make full use of the devices.
This year’s 25th anniversary will likely bring even greater change for, and ideally greater clarity to, the obligations placed upon places of public accommodation under Title III. Some might be tempted to await the final publication of impending regulations before taking any action to rectify areas lacking, or deficient, in accessibility. However, waiting creates ongoing vulnerability to both DOJ enforcement and plaintiff/advocacy group activity that rely upon Title III’s overarching civil rights obligations to fill regulatory gaps and/or cover newly utilized technology.
Places of public accommodation are better served by getting ahead of the curve and creating demonstrable evidence that they are aware of, understand, and are taking steps to address relevant accessibility issues. Accessibility policies, practices, and procedures should be developed to create an infrastructure to handle accessibility issues as they arise, and then appropriate management and employees should be trained on how to properly apply them. In areas that are novel, or present less certainty regarding how to best achieve compliance, places of public accommodation should consider pilot programs that allow them to assess the viability and effectiveness of a preferred option. And, throughout, places of public accommodation should document their efforts to address accessibility. Even if there is ultimately a disagreement about, or investigation into, how a place of public accommodation has chosen to address a certain issue, the mere fact that it is proactively addressing the issue will generally better position the place of public accommodation for a quicker and more favorable resolution.
Joshua A. Stein
Joshua Stein is a Member of the Firm in the Labor and Employment practice and co-chairs the firm’s ADA and Public Accommodations Group, in the…