Dept of Justice Tells Congress that Websites Must Be Accessible Under ADA

Just as I'm about to argue the appeal in Gil v. Winn-Dixie in the 11th Circuit Court of Appeals this week, there is news on the Executive Branch's position on the question.

The US Department of Justice has responded to 103 Members of Congress and declared in a September 25, 2018 letter that there is no need for regulations to confirm that public accommodations' websites are covered by the ADA and must be accessible. 

Whether that conclusion is supported / upheld by all the courts in the land remains to be seen.

Some circuit courts have held that all websites must be accessible; period. Some have held that websites which have a connection, a nexus, to a physical place must be accessible. Some circuits have not yet spoken to the issue.

The DOJ appears comfortable that the ADA statute itself is clear enough.

Anyone contemplating this question would be well advised to check with an attorney or someone else expert on the issue for advice.

David Ferleger
http://www.ferleger.com
david@ferleger.com
_____________________________

The blog below is from Attorney Lainey Feingold's excellent blog, which I recommend.  https://www.lflegal.com/2018/09/doj-cut/ 

DEPARTMENT OF JUSTICE AFFIRMS ADA’S COVERAGE OF WEBSITES

POSTED ON SEPTEMBER 28, 2018

A September 26, 2018 article in the Credit Union Times brought a sigh of relief to those working for an accessible, inclusive digital world. The article was titled DoJ Refuses Request to Issue ADA Guidance for Websites. It announced that the Department of Justice was not going to issue any new regulations about web accessibility and the ADA. 

Under the current administration this is welcomed news. 

A copy of the DOJ’s letter is linked to the Credit Union Times’ article. It is reprinted here in full so an accessible version is available to anyone who wants to read it. 

o   DOJ’s Response to 103 Members of Congress

o   Full text of September 25, 2018 Letter From the U.S. Department of Justice 

o   Jump to a Simplified Summary of this Article, a feature of this website designed to meet WCAG Success Criteria 3.1.5 (a WCAG 2.1 AAA Reading Level requirement).

DOJ’s Response to 103 Members of Congress

The DOJ’s letter was sent to Congressman Ted Budd. In June of this year the Republican from North Carolina had joined 103 members of Congress in sending a letter to the DOJ asking the Department to issue regulations in response to a significant number of lawsuits filed against credit unions. Read about the June, 2018 letter to DOJ in the Seyfarth Shaw ADA Title III blog. 

The DOJ’s September 25, 2018 letter is unequivocal in describing the application of the ADA to websites:

The Department first articulated its interpretation that the ADA applies to public accommodations’ websites over 20 years ago. This interpretation is consistent with the ADA’s title III requirement that the goods, services, privileges, or activities provided by places of public accommodation be equally accessible to people with disabilities. September 25, 2018 letter from Assistant Attorney General, US Department of Justice

The DOJ’s letter also reminds the congressman that “the Department has consistently taken the position that the absence of a specific regulation does not serve as a basis for noncompliance with a statute’s requirements.” (This is something I have written about for a long time, including last December’s post titled No ADA Web Accessibility Regulations? No Excuses.

Full text of September 25, 2018 Letter From the U.S. Department of Justice 

U.S. Department of Justice
Office of Legislative Affairs

Office of the Assistant Attorney General
Washington, D.C. 20530

The Honorable Ted Budd
U.S. House of Representatives
Washington DC 20515-0001

Dear Congressman Budd:

This responds to your letter dated June 20, 2018, regarding website accessibility for public accommodations under the Americans with Disabilities Act (ADA). We apologize for our delay in responding your letter.

As you may know, on December 26, 2017, the Department of Justice (the Department) published a Notice of Withdrawal of Four Previously Announced Rulemaking Actions in the Federal Register. 82 Fed. Reg. 60932 (Dec. 26, 2017). Two of the withdrawn rulemakings were related to the accessibility of web information and services under the ADA. The first withdrawn rulemaking (RIN 1190-AA61) covered accessibility of web information and services of public accommodations. The second withdrawn rulemaking (RIN 1190-AA65) covered accessibility of web services of state and local governments.

As indicated in the Notice of Withdrawal, the Department is evaluating whether promulgating specific web accessibility standards through regulations is necessary and appropriate to ensure compliance with the ADA. The Department will also continue to review its entire regulatory landscape and associated agenda, pursuant to the regulatory reform provisions of Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs” and Executive Order 13777, “Enforcing the Regulatory Reform Agenda.”

The Department first articulated its interpretation that the ADA applies to public accommodations’ websites over 20 years ago. This interpretation is consistent with the ADA’s title III requirement that the goods, services, privileges, or activities provided by places of public accommodation be equally accessible to people with disabilities.

Additionally, the Department has consistently taken the position that the absence of a specific regulation does not serve as a basis for noncompliance with a statute’s requirements.¹ Absent the adoption of specific technical requirements for websites through rulemaking, public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication. Accordingly, noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.

We very much appreciate the concerns regarding the impact that the risk of litigation has on covered entities. The Department remains committed to safeguarding accessibility for individuals with disabilities while also working with covered entities to ensure that compliance with the ADA is feasible and sustainable. Given Congress’ ability to provide greater clarity through the legislative process, we look forward to working with you to continue these efforts.

We hope this information is helpful. Please do not hesitate to contact this office if we may provide additional assistance regarding this or any other matter.

Sincerely, 

Stephen E. Boyd
Assistant Attorney General

---

^{1.In Robles v. Dominos Pizza, which you referenced in your letter, the court did not dispute that websites of public accommodations that provide goods or services are subject to the ADA’s accessibility requirements. Rather, the Robles court took issue with the plaintiffs position that compliance with a specific technical standard for web accessibility was necessary to comply with the ADA’s requirements}

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11th Circuit to Hear Argument in Appeal of First Website Accessibility Case to Go to Trial

Federal Court of Appeals to Hear Argument

in Appeal of First Website Accessibility Case to Go to Trial

The Senate and Dozens of Organizations Weigh In

On October 4, 2018, the 11^thCircuit Court of Appeals will hear argument in Miami in Gil v. Winn-Dixie, which is the first case to have gone to trial on accessibility under the Americans with Disabilities Act (ADA) of websites for the blind.

The trial court ruled fully for the plaintiff, Juan Gil, and ordered Winn-Dixie, the grocery store chain, to make its website fully accessible. The suit was brought and tried by Miami attorney Scott R. Dinin, Civil Rights Attorney, Miami.  Co-counsel is Joshua Entin, also of Miami.

In the 11^thCircuit, the case will be argued by David Ferleger, Jenkintown, PA., co-counsel for Mr. Gil.  The lower court decision is at Gil v. Winn-Dixie Stores, Inc., 257 F. Supp. 3d 1340 (S.D. FL 2017).

When a business’ website is a service welcoming and bringing people to the business, must the website be accessible to blind persons? What does the ADA (enacted before there were any websites!) require? The trial court emphatically recognized the independence which accessible websites support. As Mr. Gil, a paralympic athlete testified, “Why me, as an individual that’s visually impaired, why can I not access the same, goods, services on a website…”

Organizations representing thousands of businesses are asking the court of appeals to overturn the verdict, arguing that their obligations under the ADA do not extend to websites, and expressing concern about the cost of compliance.

The case is generating unusual interest nationally. Six US Senators, led by Sen. Charles Grassley, wrote to Attorney General Sessions on September 4, 2018 to urge limits on ADA website accessibility cases, citing theGil v. Winn-Dixiecase at the outset of the letter.

The business community has lined up against the Mr. Gil in a friend of the court brief filed by the Chamber of Commerce of the United States of America,  Restaurant Law Center, American Bankers Association, American Hotel & Lodging Association, American Resort Development Association, Asian American Hotel Owners Association, International Council of Shopping Centers, National Association of Convenience Stores, National Association of Realtors®, National Association of Theatre Owners, National Federation of Independent Businesses, National Multifamily Housing Council, and National Retail Federation, and a separate brief by the Florida Justice Reform Institute.

The disability advocacy community’s friend of the court brief is filed by the National Federation of The Blind, American Council of the Blind, American Foundation For the Blind, Association of Late Deafened Adults, Disability Independence Group, Disability Rights Advocates, Disability Rights Education & Defense Fund, Disability Rights Florida, Florida Council Of The Blind, National Association of The Deaf, National Disability Rights Network, National Federation of the Blind of Florida, Washington Lawyers’ Committee For Civil Rights and Urban Affairs, and World Institute on Disability. It is authored by Greg Care, Brown Goldstein & Levy.

For copies of the briefs, feel free to write or call Mr. Ferleger, david@ferleger.com

Keep your eyes on this case….

For various perspectives:

Forbes:

https://www.forbes.com/sites/legalnewsline/2017/06/13/first-of-its-kind-trial-goes-plaintiffs-way-winn-dixie-must-update-website-for-the-blind/#108f9fd11b38

Courthouse News Service

https://www.courthousenews.com/judge-holds-winn-dixie-supermarkets-website-violates-ada/

Court Decisions Brief – Southeast ADA Center

https://www.adasoutheast.org/ada/publications/legal/Gil_v_Winn-Dixie.php

“Perspectives from an ADA Lawyer: Practical Implications of the Winn-Dixie Lawsuit”

https://medium.com/usablenet/perspectives-from-an-ada-lawyer-practical-implications-of-the-winn-dixie-lawsuit-bf56d104b0ae

Seyforth Shaw – ADA Title III

https://www.adatitleiii.com/tag/winn-dixie/

Advertising News

https://www.manatt.com/Insights/Newsletters/Advertising-Law/Court-Rules-That-ADA-Applies-to-Website

Lainey Feingold 

https://www.lflegal.com/2017/06/winn-dixie/

Fredrickson & Byron:

https://www.fredlaw.com/news__media/2017/06/14/1548/first_federal_trial_on_website_accessibility_winn-dixie_violates_ada

Sidewalks to Nowhere: The Supreme Court Lets Stand Landmark Texas ADA Case

Sidewalks to Nowhere:

The Supreme Court Lets Stand Landmark Texas ADA Case

David Ferleger & Richard Frame

The United State Supreme Court on Monday let stand a landmark sidewalk access decision in favor of Richard Frame and several other wheelchair users who won a ruling against Arlington, Texas on sidewalk access under the Americans with Disabilities Act.

The National League of Cities, and the U.S. Conference of Mayors had claimed that the challenged decision will impose a “crushing burden” on cities nationwide.

The case come to the high court from the court of appeals which voted 8 to 7 last year that, when a city constructs a new sidewalk or alters an existing one, the city must take reasonable measures to ensure that accessibility to individuals with disabilities.

The landmark ruling rejected Arlington’s argument that cities across the country may pick and choose when and where to provide accessible sidewalks.

An engineer in the aerospace and defense industry, lead plaintiff Richard Frame became quadriplegic after a devastating auto accident twelve years ago. His body is paralyzed except for his head and shoulders,. He controls his power wheelchair with delicate head movements. Like most of the 3.4 million wheelchair users in the United States, Rick Frame actively participates in the life of his community.

When he leaves his home, however, Mr. Frame is excluded from his own community.  When he takes to the streets of Arlington, Texas, he finds sidewalks to nowhere. Sidewalks with a curb cut at one end and no way to leave the sidewalk at the other end. Utility poles smack in the middle of a sidewalk.  When he tried to go from his doctor’s office to a restaurant across the street, he discovered there was no way to get there.  If his attendant parks Mr. Frame’s van in the municipal parking lot on a game day, he cannot get by wheelchair to the billion dollar Cowboys Stadium, built with $325 million in Arlington city funds.

Joined by other cities and national organizations, the City of Arlington, Texas asked the nine justices to free Arlington and other cities from any obligation to remedy their failure to make new and altered sidewalks accessible to people who use wheelchairs, a discriminatory violation of the 1990 Americans with Disabilities Act. The court refused to heed their plea.

A decision in favor of Arlington would have denied access to beneficiaries of technologies such as the Segway, the two-wheeled self-balancing device which hundreds of veterans disabled in Iraq and Afghanistan now use to go to work, walk their dogs and run with their children.

In addition to the law, there are several moral, public policy and economic reasons why the Supreme Court should refuse to hear Arlington’s appeal. This form of discrimination is unfair, expensive and harmful to our national economy. It has extremely negative consequences for people without disabilities as well.

Excluding a class of people from the same sidewalks which “walking people” use is simply unfair.  When a great city like Arlington builds and helps pay for monumental stadiums, that town ought to ensure that all of its residents can get to those stadiums, as well as to stores, hospitals, downtown restaurants, and their children’s schools.

The National League of Cities protested to the court that, “sidewalk improvement programs can cost a single city hundreds of millions of dollars.” The appeals court disagreed. It explained that Congress looked at the question quite differently. Congress found that disability discrimination “costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.”

Our national economy will benefit when cities are compelled to connect the dots and provide pathways in the community for people with mobility impairments. The ADA itself states that “the mainstreaming of persons with disabilities will result in more persons with disabilities working, in increasing earnings, in less dependence on the Social Security system for financial support, in increased spending on consumer goods, and increased tax revenues.”

Discrimination is a “totally unnecessary contributor to public deficits” and costs literally billions of dollars annually in support payments and lost income tax revenues,” the Congress concluded.

Cities need to do it right the first time. When it comes to sidewalk accessibility, Congress recognized that the additional cost of making a new sidewalk readily accessible is “often nonexistent or negligible.” When Arlington chose to build or alter inaccessible sidewalks after the 1992 ADA effective date, the city wasted taxpayers’ money and broke the law.

Inaccessible sidewalks harm everyone. Simply put, what works for people with disabilities works for everyone. We have all used curb ramps where sidewalks meet the street. They are useful when we are pushing a baby stroller or a shopping cart, lugging a suitcase, moving furniture, walking with crutches, or helping an elder cross a street. Bicyclists use curb ramps all the time.

Just as the invention of the typewriter, Jacuzzi and even email originated as efforts to benefit people with disabilities, so has the development of curb cuts, first implemented in 1945 in Kalamazoo, Michigan, as an accommodation for soldiers returning from World War II.

At a July 1990 ceremony, President George Herbert Walker Bush declared that with his “signing of the landmark Americans with Disabilities Act, every man, woman, and child with a disability can now pass through once-closed doors into a bright new era of equality, independence and freedom." Now, 22 years later, it is past time for all those who pass through those doors to be able to join one another, co-workers and their neighbors.  

_______________________

David Ferleger is an attorney near Philadelphia, PA and represents the plaintiffs in the litigation in the Supreme Court. Richard Frame lives in Arlington, TX, is a retired Registered Accessibility Specialist, and is one of the plaintiffs before the Supreme Court.

Right to Intervene in Community Placement Olmstead Litigation

In a lawsuit for community placement, which institutional residents are the plaintiff class? To what participation in the suit are residents satisfied with institutional care entitled?

This is an ADA class action by people with developmental disabilities who live in institutions but, with adequate services, could live in the community. As the appeals court put it, the suit’s purpose is “to hasten the state of Illinois down the road to community-based care.” The class is not yet certified.

The suit was not unanimously supported by other residents and families. Representatives institutional residents who do not wish to live in the community were worried they might be included in a class which they opposed. They asked the trial court to allow them to intervene in the case. The trial court denied the motion. In this recent decision, the Seventh Circuit Court of Appeals agreed that there is no right to intervene, nor is permissive intervention required.

The appeals court recognized the importance of these issues and the dramatic effect of the Americans with Disabilities Act on this sort of litigation. Citing Olmstead v. L.C., 527 U.S. 581 (1999), the court began by noting that “[t]his case arises in the context of a much larger debate over the proper way to provide care for the developmentally disabled.” However, Olmstead “has left the exact route to implementing this integration mandate somewhat murky.”

Because the complaint emphasized the need for the state to provide a “choice” between institutional and community services, and the proposed class consisted of people who “do not oppose” community placement, the court of appeals was satisfied that the proposed intervenors’ rights could not be impaired by the action going forward without their participation. In any event, the court found that the state defendants presumptively would provide adequate representation for the group who wanted to remain in institutional care.

The appeals court thus avoided clarifying the “murky” Olmstead standards and indicated that the lines set out in the class definition (separating those desiring placement from those opposing it) are sufficient to defeat motions to intervene such as these.

NOTE: For a decision on whether one has a right to live in institutional settings, see Richard C. ex rel. Kathy B. v. Houstoun, 196 F.R.D. 288 (W.D.Pa.1999), aff'd sub nom. Richard C. v. Snider, 229 F.3d 1139 (3d Cir.2000) (unpublished order).

Ligas v. Maram,
478 F.3d 771 (7th Cir. 2007).

High State Officials (Even a Governor) Must Provide Information in ADA Suits

The obligation to provide information in the pre-trial stages of an ADA case apply to high state officials, including a governor, even if no personal involvement of the official is alleged in the case.


This is a suit by parole violators in New York City's jails, claiming that they have been incarcerated in the city's jails needlessly while awaiting an opening in an appopriate treatment program which can address their serious and persistent mental health conditions and additions. The suit's basis is the ADA and the Rehabilitation Act.

The plaintiff prisoners sued the Governor and other executive branch officials. The Governor refused to answer discovery requests, claiming that he need not do so because no claims had been made that he was personally involved in the matters in the suit and that the other defendants' answers represent the response of the executive branch, so his answers would be duplicative. The Governor, however, did not make a timely objection or request for a protective order.

The court held the Governor to the rules and required him to answer the discovery (or show an agreement among the parties that the Governor would be bound by the answers of others). The Governor's violation of the rules was not in bad faith, so no sanctions were imposed.

However, given the Governor's actions, he was found to have waived all objections to interrogatories and thus must answer them in full by a date set by the court. Plaintiffs also won an order that the Governor pay their attorney's fees and expenses on this motion.

Jobe O. v. Pataki, Slip Copy, 2007 WL 844707 (S.D.N.Y., Mar. 15, 2007).

Uncommon Appeals Court Case on the ADA’s Religious Exemption

In an Americans with Disabilies Act (ADA) suit against a private Quaker school and three of its employees, parents of a student claimed that the school created a discriminatory environment complete with public humiliation, improper physical discipline, and an orchestrated campaign to force his withdrawal from the school. The school also allegedly failed to adequately accommodate the boy's Attention Deficit Disorder and related learning disabilities.

The lower court had granted judgment to the school on account of the ADA's exemption for religious organizations. The basis of that decision was a single affidavit by the Head of School describing the intimate connections between the local Quaker Meeting and the school; the family filing suit had not had an opportunity for pre-trial discovery into the factual basis for any religious exemption.

The crucial issue in this case for the court is whether the school is "controlled" by the Quaker religious organization. The ADA provides that its provisions “shall not apply ... to religious organizations or entities controlled by religious organizations, including places of worship.” 42 U.S.C. § 12187. If Abington is a religious organization (or controlled by one), then the case must be dismissed.

Abington Friends School was established in 1697, and is the oldest primary and secondary educational institution in the country that has operated continuously at the same location. It is affiliated with the Abington Monthly Meeting of the Religious Society of Friends (Quakers). The family filing suit claimed that, although the school is a "Quaker" school, it "does not conduct itself or hold itself out as a religious organization or an entity controlled by a religious organization."

The family requested pre-trial discovery of facts related to the ownership and operation of the school, its curriculum, the religious affiliation of staff, teachers and students, and the Quaker Meeting's control over the school. The lower court denied the discovery and granted summary judgment to the school, concluding that the "religious organization" test is not a factual test, but rather one to be decided on the law, as informed by the Head of School's affidavit.

In this decision by the federal Third Circuit Court of Appeals, the court noted the paucity of caselaw on the religious exemption. "No court of appeals has yet fully examined the ADA's religious exemption, and the undeveloped state of this record makes us reticent to do so now." Whether Abington qualifies is a "mixed question of law and fact," and the family is entitled, the court held, to discovery on the school's nature, religious or otherwise. The court concluded:

"One of the oldest primary and secondary schools in the country, long known for its Quaker heritage, superficially seems to be a strong candidate. But discovery digs subsurface and may unearth facts that tend to support the contrary conclusion. Because the Does were not given an opportunity to marshal facts in aid of their argument, we vacate the District Court's grant of summary judgment and remand this case for further proceedings.”

Doe v. Abington Friends School, --- F.3d ----, 2007 WL 777561 (3d Cir., Mar. 15, 2007).

Blind Money

Close your eyes. Reach into your pocket, wallet or purse and pull out a dollar bill. Can't do it? Have to look?

United States paper money is not accessible to people who are blind, a federal court ruled in a headline-making decision. American Council of the Blind v Paulson, No. 02-0864 (D.D.C. Nov. 28, 2006).

Our paper cash is all the same size and same texture. So one cannot tell a $10 from a $50 by touch. And, interestingly, the United States is an international exception here, with many other countries having differentiated bills by size and touch. The Euro: larger denominations are longer!

The court found that the Rehabilitation Act’s Section 504 requires the U.S. Treasury to make paper currency accessible to person who are blind.

This case reminds us that the last 30 years have transformed the participation in our society of people with so-called handicaps. Invisibility and non-participation are still present, but have decreased markedly. “Non-handicapped” (or “temporarily able-bodied people”) are much more conscious of the needs of others in this regard.

The court waxed eloquent here: “There was a time when disabled people had no choice but to ask for help – to rely on the “kindness of strangers.” It was thought to be their lot. Blind people had to ask strangers to push elevator buttons for them. People in wheelchairs needed Boy Scouts to help them over curbs and up stairs. We have evolved, however, and Congress has made our evolution official, . . .”

Like so many other changes required by the ADA and the Rehabilitation Act, a revamped paper money set will benefit ALL of society. I will be able to tell a $1 from a $5 just on reaching into my pocket, or in the dark. Sorting bills will be speeded up for cash businesses. Forgers will have a harder time. And more.

We may have been blind to this issue as a society. Now, that’s over.

ADA Litigation: Too Much? Too Many? Giving Suits a Bad Name?

A California newspaper has reviewed ADA litigation in the state, with an emphasis on multiple suits by the same individuals or law firms, and cases which might prompt the public to look askance at the litigation. The article reports a six month investigation.

Titled, "STATE A MAGNET FOR SUITS BY DISABLED: Out-of-state lawyers have been lured to California by its laws," the article by Marje Lundstrom and Sam Stanton, of The Sacramento Bee, says that the ADA has made California "a magnet for lawyers and plaintiffs and for aggressive, sometimes questionable practices." Monterey County Herald (CA), November 13, 2006

Among the examples provided:

"A disabled teenager was offered $1,000 by a San Diego attorney for every business he could visit to "find" ADA violations the attorney had already identified.

Another disabled man who sued more than 50 businesses in Los Angeles later accused his lawyer of failing to ensure that the violations were fixed.

One Southern California man who issued a string of letters demanding payment for ADA violations turned out not to be a lawyer, but a self-described "nutritionist," better known to authorities for his Internet business arranging body-parts transplants overseas.

A woman is facing prosecution on insurance fraud charges after allegedly faking a disability and filing access claims against several California cities. When confronted by police, the supposedly wheelchair-dependent woman tried to run away."
A businessman is quoted calling the litigation "a big shakedown," and people with disabilities and advocates are quoted to support the need for the litigation. "If they obeyed the law, there wouldn't be any lawsuits," said Laura Williams, president of Californians for Disability Rights, the state's oldest and largest advocacy group for the disabled.

The article concludes: "As it turns out, both sides may be right."

COMMENT: It is inevitable that the recognition of new rights, especially for people with relative political powerlessness, and those vulnerable to others, would prompt new varieties (and quantities) of litigation. This occurred after the 1960s civil rights movement, the women's rights movement, and the 1970s litigation on "mental patient" rights. It is probably also inevitable that the public would notice excesses and abuses in such litigation, while advocates would rightly emphasize its necessity.

I have no doubt that soon things will come to a balance. Meanwhile, we should not take for granted the immense benefit which the ADA has brought to millions of people with disabilities, and to those of us who are not disabled. It is easy to forget the pre-ADA sad state of affairs.