Our colleague Joshua A. Stein, a Member of the Firm at Epstein Becker Green, has a post on the Retail Labor and Employment Law blog that will be of interest to many of our readers in the technology industry: “Start Spreading the News – EDNY Denies Motion to Dismiss Website Accessibility Complaint.”

Following is an excerpt:

While the ADA finished celebrating its 27th anniversary at the end of July, for plaintiffs looking to bring website accessibility complaints in New York the party is still ongoing. Following on the heels of last month’s decision of the U.S. District Court for the Southern District of New York in Five Guys, Judge Jack B. Weinstein of the U.S. District Court for the Eastern District of New York, in Andrews vs. Blick Art Materials, LLC, recently denied a motion to dismiss a website accessibility action, holding that Title III of the ADA (“Title III”), the NYS Human Rights Law and the New York City Human Rights Law all apply to websites – not only those with a nexus to brick and mortar places of public accommodation but also to cyber-only websites offering goods and services for sale to the public. …

Read the full post here.

Our colleague Joshua A. Stein, a Member of the Firm at Epstein Becker Green, has a post on the Retail Labor and Employment Law blog that will be of interest to many of our readers in the technology industry: “As the ADA Turns 27, Recent Developments Suggest No End to Website Accessibility Lawsuits.”

Following is an excerpt:

Today marks the 27th Anniversary of the Americans with Disabilities Act (ADA).  Unfortunately for businesses, two recent developments in the context of website accessibility suggest that there is no reason to celebrate and every reason to believe the ever-increasing wave of demand letters and lawsuits in this area will continue unabated.

First, in Lucia Marett v. Five Guys Enterprises LLC (Case No. 1:17-cv-00788-KBF), the U.S. District Court for the Southern District of New York has finally issued a decision directly speaking to the applicability of Title III of the ADA (Title III) to websites, denying Five Guys’ motion to dismiss, and holding that Title III does indeed apply to websites.  Facing a class action lawsuit brought by serial plaintiff, Lucia Marett, Five Guys sought to dismiss the claim that its website (which, among other things, allows customers to order food online for delivery or pick up at its brick and mortar stores) violated Title III and related state/local statutes because it is inaccessible to the blind, on the grounds that Title III does not apply to websites and, even if it did, the case was moot because Five Guys was in the process of updating its website to provide accessibility.  The Court rejected Five Guys’ arguments.  Citing both the text and the broad and sweeping purpose of the ADA, the Court held that Title III applies to websites – either as its own place of public accommodation or as a result of its close relationship as a service of Five Guys’ restaurants (which the court noted are indisputably public accommodations under Title III).  …

Read the full post here.

Our colleague Joshua A. Stein, a Member of the Firm at Epstein Becker Green, has a post on the Retail Labor and Employment Law blog that will be of interest to many of our readers in the technology industry: “Nation’s First Website Accessibility ADA Trial Verdict Is In and It’s Not Good for Places of Public Accommodation.”

Following is an excerpt:

After years of ongoing and frequent developments on the website accessibility front, we now finally have – what is generally believed to be – the very first post-trial ADA verdict regarding website accessibility. In deciding Juan Carlos Gil vs. Winn-Dixie Stores, Inc. (Civil Action No. 16-23020-Civ-Scola) – a matter in which Winn-Dixie first made an unsuccessful motion to dismiss the case (prompting the U.S. Department of Justice (“DOJ”) to file a Statement of Interest) – U.S. District Judge Robert N. Scola, Jr. of the Southern District of Florida issued a Verdict and Order ruling in favor of serial Plaintiff, Juan Carlos Gil, holding that Winn-Dixie violated Title III of the ADA (“Title III”) by not providing an accessible public website and, thus, not providing individuals with disabilities with “full and equal enjoyment.”

Judge Scola based his decision on the fact that Winn-Dixie’s website, “is heavily integrated with Winn-Dixie’s physical store locations” that are clearly places of public accommodation covered by Title III and, “operates as a gateway to the physical store locations” (e.g., by providing coupons and a store locator and allowing customers to refill prescriptions). …

Read the full post here.

Our colleagues Joshua A. Stein and Frank C. Morris, Jr., at Epstein Becker Green have a post on the Health Employment And Labor blog that will be of interest to many of our readers in the technology industry: “The U.S. Access-Board Releases Long-Awaited Final Accessible Medical Diagnostic Equipment Standards.”

Following is an excerpt:

As part of a flurry of activity in the final days of the Obama Administration, the U.S. the Architectural and Transportation Barriers Compliance Board (the “Access Board”) has finally announced the release of its Accessibility Standards for Medical Diagnostic Equipment (the “MDE Standards”). Published in the Federal Register on Monday, January 9, 2017, the MDE Standards are a set of design criteria intended to provide individuals with disabilities access to medical diagnostic equipment such as examination tables and chairs (including those used for dental or optical exams), weight scales, radiological equipment, mammography equipment and other equipment used by health professionals for diagnostic purposes. …

Read the full post here.

Earlier this month, in the waning moments of the Obama Administration, the U.S. Architectural and Transportation Barriers Compliance Board (the “Access Board”) took the long-anticipated step of requiring websites of federal government agencies to comply with the Web Content Accessibility Guidelines (“WCAG”) 2.0 Levels A and AA.  (The Access Board was established in 1973 to develop and maintain standards for accessible design in the built environment, transit vehicles and systems, telecommunications equipment and electronic and information technology.)

On Thursday, January 5, 2017, the Access Board announced the release of the long anticipated “Information and Communication Technology (“ITC”) Standards and Guidelines,” which update and combine the previously separate requirements of Section 508 of the Rehabilitation Act of 1973 (requiring federal agencies to make their electronic and information technology accessible to people with disabilities) and Section 255 of the Communications Act of 1934 (requiring telecommunication equipment manufacturers and service providers to make their products and services accessible to people with disabilities), into one rule.  The ITC Standards and Guidelines (also referred to as the “508 Refresh”) were officially released by the Access Board on Monday, January 9, 2017 and published in the Federal Register on January 18, 2017.

This final rule includes the following noteworthy changes from the previously published Notice of Proposed Rulemaking (“NPRM”):

  • Provides a “Safe Harbor” provision;
  • Incorporates the Web Content Accessibility Guidelines (“WCAG”) 2.0 Levels A and AA by reference;
  • Covers all types of public-facing content, as well as nine (9) categories of non-public-facing content that communicate agency official business; and
  • Extends the previously contemplated compliance dates.

Application

To Whom Do the ITC Standards and Guidelines Apply?

The Section 508-based ITC Standards apply only to Federal Agencies subject to Section 508 of the Rehabilitation Act of 1973 who develop, procure, maintain or use ITC and is intended to ensure Federal employees with disabilities have comparable access to, and use of, such information and data relative to other Federal employees unless doing so would impose an undue burden.

The Section 255-based guidelines apply to manufactures of telecommunication equipment and address the accessibility of newly released, upgraded, or substantially changed telecommunications equipment (as well as support documentation and services, including electronic documents and web-based product support) subject to Section 255 of the Communications Act of 1934.

Who Do the ITC Standards and Guidelines Not Apply To?

  • Private Businesses – including healthcare, retail, hospitality, financial services, etc.;
  • State and Local Government Agencies;
  • Public Schools;
  • Colleges; and
  • Non Profit Entities.

It should be noted, however, that when the DOJ publishes proposed website accessibility regulations applicable to the private sector, and consistent with the DOJ’s long standing position, website accessibility will very likely be defined as compliance with WCAG 2.0, levels A and AA, just as the Access Board has used these guidelines in the Section 508 Refresh.

Deadlines

On Tuesday, January 10, 2017 the Access Board held a briefing at their Washington, D.C. office to provide a top level overview of these new rules and to provide a public question and answer session.  During this meeting, the Access Board reinforced the following information:

  • The final rule was set to be “effective” 60 days from the date of publication in the Federal Register.  Therefore, as the final rule was published in the Federal Register on Wednesday, January 18, 2017, the “effective” date was set to be Sunday, March 19, 2017.  (It is worth noting on January 20, 2017, White House Chief of Staff Reince Priebus issued a memorandum from the White House to the heads of executive departments and agencies calling for a sixty (60) day postponement of the effective date of regulations that have been published in the Federal Registry but not yet taken effect.  Therefore, this date may yet be delayed.)
  • Notwithstanding that deadline:
    • Compliance with the Section 508-based Standards is not required until 12 months from the date of publication in the Federal Register.  Therefore, the anticipated date of compliance for the Section 508-based Standards will be Thursday, January 18, 2018; and
    • Compliance with the Section 255-based guidelines will not be required until the guidelines are adopted by the Federal Communications Commission.

Our colleagues Joshua Stein, co-chair of Epstein Becker Green’s ADA and Public Accommodations Group, and Stephen Strobach, Accessibility Specialist, have a post on the Retail Labor and Employment Law blog that will be of interest to many of our readers in the technology industry:  “DOJ Refreshes Its Efforts to Promulgate Title II Website Accessibility Regulations and Other Accessible Technology Updates – What Does It All Suggest for Businesses?”

Following is an excerpt:

On April 28, 2016, the U.S. Department of Justice, Civil Rights Division, withdrew its Notice of Proposed Rulemaking (NPRM) titled Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities.  This original initiative, which was commenced at the 20th Anniversary of the ADA in 2010, was expected to result in a final NPRM setting forth website accessibility regulations for state and local government entities later this year. Instead, citing a need to address the evolution and enhancement of technology (both with respect to web design and assistive technology for individuals with disabilities) and to collect more information on the costs and benefits associated with making websites accessible, DOJ “refreshed” its regulatory process and, instead, on May 9, 2016, published a Supplemental Notice of Proposed Rulemaking (SNPRM) in the federal register. …

The questions posed in the SNPRM indicate that DOJ is considering many of the issues that Title III businesses have been forced to grapple with on their own in the face of the recent wave of website accessibility demand letters and lawsuits commenced on behalf of private plaintiffs and advocacy groups.  It would be a positive development for any eventual government regulations to clearly speak to these issues.  Conversely, it may be even longer before we see final regulations for Title III entities. …

While most current settlement agreements regarding website accessibility focus on desktop websites, many businesses are anticipating that the next target for plaintiffs and advocacy groups will be their mobile websites and applications.  Such concern is well founded as recent DOJ settlement agreements addressing accessible technology have included modifications to both desktop websites and mobile applications.

Read the full post here.

Our colleague Joshua A. Stein, attorney at Epstein Becker Green, has a post on the Retail Labor and Employment Law blog that will be of interest to many of our readers in the technology industry: “Recent Decisions Reinforce That Accessible Technology Claims Are Not Going Away.”

Following is an excerpt:

As businesses continue to compete to provide customers and guests with more attractive services and amenities, we have seen increased utilization of technology to provide those enhanced experiences.  However, in adopting and increasingly relying on new technologies such as websites, mobile applications, and touchscreen technology (e.g., point of sale devices, beverage dispensers, check-in kiosks) accessibility is often overlooked because of the lack of specific federal standards in most contexts. The two recent decisions discussed below – one in New York and the other in California – do just that.

Read the full post here.

Our colleague Joshua A. Stein has a Retail Labor and Employment Law Blog post that will be of interest to many of our technology industry readers: “Defending Against Website Accessibility Claims: Recent Decisions Suggest the Primary Jurisdiction Doctrine Is Unlikely to Serve As Businesses’ Silver Bullet.”

Following is an excerpt:

For businesses hoping to identify an avenue to quickly and definitively defeat the recent deluge of website accessibility claims brought by industrious plaintiff’s firms, advocacy groups, and government regulators in the initial stages of litigation, recent news out of the District of Massachusetts – rejecting technical/jurisdictional arguments raised by Harvard University and the Massachusetts Institute of Technology – provides the latest roadblock. …

These recent decisions reveal a reluctance among the courts to dismiss website accessibility actions on technical/jurisdictional grounds.  Taken along with the expanding number of jurisdictions who subscribe to legal theories accepting that Title III covers website accessibility (whether adopting a nexus theory or broadly interpreting the spirit and purpose of the ADA) and it is becoming increasingly clear that many businesses will have a difficult time ridding themselves of website accessibility claims in the early stages of litigation.  Of course, these decisions have been quick to note they do not foreclose a variety of potentially successful defenses that may be asserted later in the litigation – e.g., undue burden, fundamental alteration, and the provision of equivalent/alternative means of access.  While, to date, the existing website accessibility case law has not focused on when these defenses might prevail, with the recent proliferation of website accessibility demand letters and litigation, businesses should soon find themselves with greater guidance from the courts.  In the interim, the best way to guard against potential website accessibility claims continues to be to take prophylactic measures to address compliance before you receive a demand letter, complaint, or notice of investigation.

Read the full post here.

Joshua A. SteinFrustrating news has emerged from Washington D.C. as the recently-published federal government’s Fall Semiannual Regulatory Agenda revealed that the long-anticipated U.S. Department of Justice’s (“DOJ”) Notice of Proposed Rulemaking (“NPRM”) for regulations governing website accessibility for places of public accommodation under Title III of the Americans with Disabilities Act (“Title III”) would not be issued in the Spring of 2016 as most recently anticipated and would instead be delayed until fiscal year 2018.  DOJ now intends to issue a NPRM governing website accessibility for state and local governments under Title II of the ADA in early 2016 and then hopes that that process will create the necessary infrastructure to develop and promulgate similar regulations for entities governed by Title III

Such news is particularly troubling given the recent surge in website accessibility actions brought against places of public accommodation and business establishments operating exclusively in cyberspace by private plaintiffs, advocacy groups, and regulators at the federal, state, and local levels.  Indeed, notwithstanding DOJ’s latest delay, there is no indication that the federal government intends to cease its quest to have places of public accommodation provide accessible websites.  Relying upon Title III’s overarching civil rights obligations – most importantly that places of public accommodation provide “full and equal enjoyment” of its goods, services, etc. – DOJ continues to seek website accessibility provisions as part of its settlement agreements with a wide variety of places of public accommodation.  DOJ has even gone so far as to file Statements of Interest in private litigations ongoing between both Harvard University and the Massachusetts Institute of Technology and the National Association of the Deaf in the U.S. District Court for Massachusetts opposing their efforts to have the lawsuits dismissed or stayed pending DOJ’s completion of the rulemaking process.  (3:15-CV-30023 (D.Mass) and 3:15-CV-30224 (D.Mass))

The limited number of judicial decisions addressing the applicability of Title III to the websites of places of public accommodation and online businesses do not provide a clear road map for businesses due to the existence of a split body of case law.  The current law falls along three primary lines:  (i) Title III’s application is limited to actual physical places and cannot apply to websites absent an amendment to Title III or the issuance of new regulations; (ii) Title III applies to websites when there is a nexus between a physical place of public accommodation and the goods and services offered on its website; and (iii) Title III applies to even online-only businesses because Title III must be read broadly to promote the ADA’s goal of allowing individuals with disabilities to fully and equally enjoy and participate in society and, therefore, it must evolve to apply to new technologies.  The limited body of case law to date has developed primarily in the preliminary motion to dismiss phase and, therefore, the viability of various potential affirmative defenses or what it means for a website to be accessible has not be sufficiently analyzed by the courts. 

Further complicating the landscape, since DOJ announced its previous delay of the regulations (then into April 2016) this past spring, businesses across most industries – including retail, hospitality, financial services, and sports and entertainment – have been deluged with demand letters from industrious plaintiffs’ firms seeking to take advantage of the regulatory uncertainty and limited case law.  Understanding that the costs of litigating a developing area of the law may prove significant and the return uncertain, many businesses are opting to reach amicable resolutions to these matters rather than explore more aggressive litigation positions.  To the extent others hoped that DOJ guidance would soon stem the tide of these demand letters, this most recent development is disheartening news.  Businesses hoping to avoid such letters are best served by taking prophylactic actions to address the accessibility of their websites.

For more on these issues see: 

http://www.hospitalitylaboremploymentlawblog.com/2015/06/articles/ada/doj-further-delays-release-of-highly-anticipated-proposed-website-accessibility-regulations-for-public-accommodations/

http://www.technologyemploymentlaw.com/ada-and-disability-law/access-board-seeks-to-revise-accessibility-standards-for-information-and-communications-technology-of-federal-agencies-and-certain-technology-manufacturers-moving-to-functionality-based-approach/

http://www.ebglaw.com/joshua-a-stein/news/key-issues-facing-places-of-public-accommodation-at-the-25th-anniversary-of-the-ada/

34th Annual Workforce Management Briefing Banner

When:  Thursday, October 15, 2015    8:00 a.m. – 3:00 p.m.

Where:  New York Hilton Midtown, 1335 Avenue of the Americas, New York, NY 10019

This year, Epstein Becker Green’s Annual Workforce Management Briefing focuses on the latest developments that impact employers nationwide, featuring senior officials from the U.S. Department of Labor and the Equal Employment Opportunity Commission. We will also take a close look at the 25th anniversary of the Americans with Disabilities Act and its growing impact on the workplace.

In addition, we are excited to welcome our keynote speaker Neil Cavuto, Senior Vice President, Managing Editor, and Anchor for both FOX News Channel and FOX Business Network.

Our industry-focused breakout sessions will feature panels composed of Epstein Becker Green attorneys and senior executives from major companies, discussing issues that keep employers awake at night.  From the latest National Labor Relations Board developments to data privacy and security concerns, each workshop will offer insight on how to mitigate risk and avoid costly litigation.

View the full briefing agenda here. Contact Kiirsten Lederer or Elizabeth Gannon for more information and to register.   Seats are limited.