Americans with Disabilities Act

Lawsuits under Title III of the Americans with Disabilities Act, or ADA, based upon a company’s alleged failure to make its website accessible to the visually impaired or legally blind exploded in 2017 and 2018.  In  Gil v. Winn-Dixie, 2017 U.S. Dist. LEXIS 90204, the only known website accessibility case to actually go to trial, Judge Robert N. Scola, Jr. of the United States District Court for the Southern District of Florida ruled in favor of Gil, holding that Winn-Dixie’s website was indeed a place of public accommodation inaccessible to persons with visual impairments and holding that:  a.) the website had to be fully accessible; and b.) Winn-Dixie was required to implement the Web Content Accessibility Guidelines (WCAG) 2.0 for its website by an agreed-upon date.

The Gil v. Winn-Dixie case is currently on appeal to the United States Court of Appeals for the 11th Circuit.  The appellate court heard oral argument on October 4, 2018.  Winn Dixie’s arguments were as follows:

  • websites are not places of public accommodation under Title III of the ADA;
  • the WCAG are not law and the trial court’s adoption of those guidelines violated due process;
  • Winn Dixie is in compliance with the ADA because Gil had not been deprived of the full benefit of and equal access to the services and goods in Winn Dixie’s stores.

The 11th Circuit has not yet issued its decision on the appeal.  The outcome—particularly if there is a reversal—can potentially dramatically impact the landscape of website accessibility cases, particularly in Florida.

In another important website accessibility case under the ADA, Haynes v. Dunkin’ Donuts, LLC et al., Case No. 18-10373, the 11th Circuit, in a written opinion dated July 31, 2018, reversed the lower court’s dismissal of the website accessibility complaint of Dennis Haynes, a legally blind person.  The lower court had concluded that Haynes had failed to properly allege a nexus between barriers to accessing the website and an inability to access services and goods at a physical store.  In reversing and remanding the case back down to the trial court, the appellate court found that Haynes had demonstrated “a plausible claim for relief under the ADA.”  Thus, the initial victory for those defending ADA lawsuits arising from the trial court’s decision in Haynes was essentially wiped out by the 11th Circuit’s reversal.

Finally the future of the ADA Education and Reform Act of 2017 remains uncertain.  The bill, passed by the House of Representatives, requires amongst other things, pre-suit notice to an owner or operator of a place of public accommodation and an opportunity to cure prior to the filing of a lawsuit under Title III of the ADA.  That bill, however, does not appear to have gain any real traction in the Senate where 43 Senators—enough for a filibuster—have pledged, in writing, to block a vote on the Act.

When the Americans with Disabilities Act—the ADA—became  law in 1990, websites, which are so common a part of business and life these days, did not exist.   Nearly 30 years later, websites are now the driving force behind what is the most dramatic new and growing trend for lawsuits under the ADA, namely claims against owners and operators of websites.  The gist of these claims is that the websites are not properly accessible to those who are visually impaired or legally blind.

The number of ADA lawsuits has increased significantly in the last four years.  In 2017 alone over 7,600 lawsuits were filed as compared to a little over 2,700 such lawsuits in 2013, an increase of nearly 65%.  ADA lawsuits continue on the rise in 2018 with website accessibility cases accounting for the increase.  Florida and California, in particular, are two states where large numbers of lawsuits have been and are being filed.

Since website accessibility cases are not, in all likelihood, going away anytime soon, a question to ask is what is the owner and operator of a website, an owner and operator who desires to be proactive in preventing such lawsuits, to do?  Are there any regulations or guidelines in effect that can be followed or implemented earlier rather than later so that such an owner or operator can prevent rather than defend a lawsuit?

Unfortunately, there are no regulations in effect that can provide guidance or direction to owners and operators of websites.   The federal government has not communicated any desire to intervene on the issue.  Indeed, the Department of Justice has abandoned rulemaking on website accessibility cases even though it had indicated, years earlier, that it would issue regulations.   Those regulations presumably would and could provide a roadmap that owners and operators of websites currently do not have.

The only real direction that exists for owners and operations of websites at the present time comes in the form of guidelines published by the World Wide Web Consortium–or W3C—a private group of experts.    These guidelines are the Web Content Accessibility Guidelines (WCAG).  The WCAG Guidelines 2.0 were the guidelines specifically referenced by the United States District Court for the Southern District of Florida,  a little over a year ago, in the case of Gil v. Winn-Dixie Stores, Inc., where Winn-Dixie’s website was found to have violated the rights of a visually-impaired plaintiff under the ADA.

Earlier this month, the W3C updated the WCAG Guidelines 2.0.  The updated guidelines are known at the Web Accessibility Guidelines Level 2.1.   These, however, are simply guidelines; they are not regulations and they are not law.  For there to be clear, unequivocal direction to owners and operators of websites, equally clear and unequivocal law, in the form of regulations, is what is necessary.

When Congress passed the Americans with Disabilities Act, or the ADA as it is routinely referred to, in 1990 it probably could not have envisioned the sheer number of lawsuits that would be filed under the ADA in the ensuing years.  While there have been some ebbs and flows in the volume of such filings over the years, ADA lawsuits, nevertheless, have, by and large, abounded and continue to do so to the present day.

The rules of engagement with respect to ADA lawsuits may have begun to change, however, on February 15, 2018 when the United States House of Representatives passed H.R. 620, the ADA Education and Reform Act of 2017.  The bill is now pending in the Senate.

While there are probably two major components of H.R. 620, the most significant changes with respect to lawsuits under the ADA are as follows:

  • Prior to filing a lawsuit, the aggrieved party must serve the owner or operator of a place of public accommodation with a detailed notice of the alleged violation or violations of the ADA;
  • The owner or operator is then provided with 60 days to respond to the notice, describing how the violation or violations will be addressed; and
  • The owner or operator is then given another 120 days to correct the violation or violations—referred to as removing the barriers—or to at least make substantial progress in doing so.

Currently, there is no requirement that a party suing for alleged violations under the ADA provide any kind of notice to the owner of operator of a place of public accommodation prior to filing a lawsuit.  As such, opponents of H.R. 620 fear that the bill will dramatically impact access to courts for persons with disabilities seeking to remedy ADA violations.  Proponents of the law, on the other hand, believe changes are necessary to curtail what they see as an abundance of frivolous lawsuits designed to do nothing more than generate attorney’s fees.

If the ADA Education and Reform Act of 2017 passes the Senate, it is unclear what impact, if any, it will have on the newest trend in ADA lawsuits, namely lawsuits against owners or operators of websites, alleging that those websites are not accessible to the legally blind or visually impaired.  At first blush, it would not appear that this amendment to the ADA would apply to such claims in that the bill specifically uses the term “architectural barriers” which would seem to confine its scope to physical issues with a place of public accommodation.  Of course, since websites did not exist when the ADA was passed in 1990, the true scope of the ADA Education and Reform Act of 2017 will probably be an issue shaped by courts in the years to come.

Since the Americans with Disabilities Act–often referred to as the ADA—was passed by Congress in 1990, lawsuits under the Act have been quite common.  These lawsuits, until recently, have focused on physical or architectural barriers to places of public accommodation such as restaurants, retail stores and strip malls.  The emphasis has been on items such as handicapped parking spaces, entrance ramps into buildings, public restrooms and doors with the allegation being that such items have not been accessible to persons with defined physical disabilities.

A whole new trend, however, is taking shape with respect to lawsuits under the ADA.   Courts throughout the country are seeing more and more ADA cases where the claim is that the owner or operator of a website has not taken appropriate measures or steps to make that website accessible to the legally blind or visually impaired.   These are routinely referred to as website accessibility cases, and we are seeing what is, perhaps, a disproportionate number of these being filed in federal district courts in Florida.

One of the biggest issues with website accessibility cases is that websites did not exist when the ADA was enacted nearly 30 years ago.  Certainly, the Congress could not have envisioned website accessibility lawsuits back then.  There are no regulations and no mandates on website accessibility.   All that exists, at this point, are the Web Content Accessibility Guidelines or WCAG.  These are simply guidelines developed by a number of private organizations whose desire is to make websites accessible to or for all people.

While the number of website accessibility cases is growing, to date, there appears to have been only one such case that has actually gone to a trial on the merits.  The case, Gil v. Winn-Dixie Stores, Inc., was filed in the United States District Court for the Southern District of Florida.  The court there found against Winn-Dixie and concluded that its website violated the visually-impaired plaintiff’s rights under the ADA.  Apparently, the vast majority of the search tabs, as well as the search box, on Winn-Dixie’s website did not function with screen reader software designed for those with visual impairments.

A proposed amendment to the ADA, the ADA Education and Reform Act, has passed the House of Representatives and is pending before the Senate.  This amendment requires notice of ADA violations to a defendant, prior to the filing of a lawsuit, and the opportunity to cure.   If passed, it remains to be seen how this amendment will impact website accessibility lawsuits.

The United States Equal Employment Opportunity Commission (“EEOC”) issued final rules yesterday establishing how employer-sponsored wellness programs can comply with the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”), without discriminating against employees or running afoul of the Health Insurance Portability and Accountability Act (“HIPAA”).

In today’s health-driven world, many employers are encouraging their employees to participate in wellness programs to promote good health and healthier lifestyles.  Ultimately, employers aim for a healthier and happier workforce that will lead to greater productivity and less needed time off for sick leave.  Often, employers will offer employees financial incentives for participating in such wellness programs and achieving goal-oriented results.  As part of such programs, though, employees and their family members are typically asked to provide certain protected medical information to help assess their individual health risk factors, which in turn raises potential conflicts with employee privacy rights under the ADA and GINA.

The EEOC’s new wellness program rules provide clarity on this issue.  Specifically, the new rules require employers to explain to participating employees what information will be collected from them in connection with a wellness plan, with whom and for what purpose such information will be shared, and what safeguards are in place to ensure that such information will be kept confidential.  In addition, the final ADA rule permits employers to offer incentives of up to 30% of the total cost of self-only coverage if an employee participates in a wellness program that is part of a group health plan that requires information about the health conditions of an employee or his/her family members.  The final GINA rule provides a similar cap equivalent to 30% of the total cost of self-only coverage if an employee’s spouse participates in the wellness program.  However, neither the ADA nor GINA rules permit employers to offer incentives in exchange for the provision of current or past health information about employees’ children or for certain genetic information about an employee, his/her spouse and his/her children (including the results of certain genetic tests).  The EEOC’s rules also prevent employers from discriminating against employees based upon the health information that they provide or, alternatively, from discriminating if employees choose  not to participate in the offered wellness programs.

Along with these new rules, the EEOC conveniently published informative Q&A documents on its website, which are available at https://www.eeoc.gov/laws/regulations/qanda-ada-wellness-final-rule.cfm (ADA), and https://www.eeoc.gov/laws/regulations/qanda-gina-wellness-final-rule.cfm (GINA).  The EEOC’s wellness program rules, which will apply to all workplace wellness programs, will go into effect in 2017.