Does Your Business Have a Website? Get Ready for New ADA Regulations

ada accessibility for the disabledCourts have wrestled for several years with how to apply the ADA’s public accommodation requirements to online businesses or online aspects of businesses (USA Today published an article and quoted me on the issue available at the link below). The statute itself (enacted in 1990) does not address online businesses, nor do current regulations. Litigation in this area has also produced divergent results. In some cases, federal courts have dismissed such claims holding that online stores and websites are not public accommodations within the meaning of Title III of the ADA. In others, courts have held that commercial websites are a natural extension of the ADA’s accessibility goals and requirements.

The Department of Justice appears poised to address this issue through new regulations governing commercial websites. We anticipate that they may be issued as soon as December 2013 with compliance periods some time thereafter. Although not entirely clear at this point, DOJ will likely use the Web Content Accessibility Guidelines 2.0 created by the World Wide Web Consortium. The new regulations may also utilize portions of already-existing guidelines for government websites contained in Title II of the ADA.

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How to Avoid Your Business Becoming an ADA Target

bullseye_targetIt is certainly good to know what to do if your business is served with a lawsuit under the ADA. It is even better to know what steps you can take to help avoid your business becoming a target for these lawsuits in the first place. While there is no way to completely avoid the risk of an ADA lawsuit, taking a few simple (and in many cases low cost) steps can help reduce the risk of appearing as “low hanging fruit” for plaintiffs, plaintiff’s advocacy organizations, and the Department of Justice.

Tip #1: Curb Appeal
We’ve all heard stories of potential plaintiffs simply driving down a major road until they find a likely target. In some cases, the decision may be made before the individual even sets foot on the premises. Avoiding a “lack of compliance” appearance can help your business avoid being the one they choose. This means ensuring that disabled parking spots have clear (not faded) lines, parking signs are erect and not crooked or missing, and debris or merchandise does not block sidewalks and entryways. Old or faded signs and markers signal that your business may not be up to date with its ADA compliance.

Tip #2: Training Matters
Training your employees on how to respond to requests for accommodations or questions about ADA compliance can also help your business avoid lawsuits. Properly trained employees can serve as your first line of defense against claims that your business “failed to accommodate” or allowed violations to exist. Conversely, employees without proper training can exacerbate problems and make ADA lawsuits more likely and harder to defend.

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DOJ Ratchets Up ADA Enforcement For Health Care Providers

In 2011, the Department of Justice launched its  “Barrier Free Health Care Initiative.” This Initiative utilizes U.S. Attorneys Offices across the Country to act as a “force multiplier” to ensure that individuals with disabilities are not denied access to health care. The DOJ’s enforcement priorities include situations where an individual is unable to access treatment, care, or services because of physical limitations such as deafness and blindness.

Recently, the DOJ has made equal access for individuals with HIV/AIDS a priority under this initiative. Within the last two months, the Agency has entered into settlement agreements with three different medical providers (a dental office, a clinic that treats eating disorders, and a pain management clinic) based on their alleged failure to provide equal access to patients with HIV. These settlement agreements address alleged unequal treatment in violation of the ADA’s public accommodations requirements. In the case of the dental office, the DOJ objected to the practice allegedly requiring a patient with HIV to schedule appointments only at the end of the day. The eating disorder clinic allegedly delayed and ultimately refused to accept an individual with HIV based on a policy not to accept patients with “high risk communicable diseases.” Finally, the DOJ settled a case involving a pain management center where a referral physician refused to treat a patient with HIV. Importantly, these three examples only highlight recent enforcement actions under this Initiative. The Agency has also targeted medical practices for failure to provide interpreters or other auxiliary aids for the hearing impaired. Each of these settlement agreements required modifications to the health care providers’ practices, as well as significant monetary penalties.

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Could Your Banking Website Be The Target of a Lawsuit?

web accessibilityRecently, I was interviewed by TheFinancialBrand.com for an article on the ADA and website accessibility standards for the deaf and blind (full article here).

Websites are becoming the next frontier in ADA litigation as courts have ruled that it also applies to a company’s website and have held companies liable for difficulties disabled customers experience online. Taking proactive steps to review and modify your company’s website will save you from the price of ADA non-compliance and costly litigation.

 

The ADA & Athletics: It Applies Here Too

ada sporting eventsWe often think of the ADA’s reach as focused on employment and public accommodations such as hotels and shopping centers. It is, therefore, easy to forget that it also impacts activities. This includes public meetings, conventions—and sporting events.

One of the most well-known sports and disability cases is that of professional golfer Casey Martin. Prior to 2001, the PGA Tour required all tournament participants to walk and barred the use of golf carts. Martin suffers from a degenerative condition that affected his ability to walk that prevented him from competing in PGA events. The U.S. Supreme Court, however, held that the PGA’s policy violated the requirements of the ADA for public accommodations and ordered that Martin must be permitted to use a cart as a public accommodation. Although Martin never qualified for the PGA Tour, this case opened the door to significant questions about the intersection of the ADA and sports. More recently, professional basketball player Royce White has engaged in a very public dispute with his employer, the NBA’s Houston Rockets, over White’s unwillingness to accept an assignment to one of Houston’s farm clubs. White argues that the assignment does not provide adequate support for his disability (i.e. severe anxiety).

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Insurance and ADA Public Accommodations Claims

Navigating common insurance issues for claims under Title III of the ADA

Title III of the Americans with Disabilities Act (ADA) requires that businesses which offer goods and services to the public (i.e. “public accommodations”) take steps to ensure that their facilities are accessible to individuals with disabilities.  In addition to the ADA’s general accessibility mandate, its governing regulations provide detailed requirements for businesses that range from the minimum number of accessible parking spaces to the height of mirrors and toilets in restrooms.  The failure to comply with these guidelines can lead to lawsuits in federal court.  If you follow this blog, you know that these lawsuits are on the rise across the country.  These lawsuits not only raise liability issues that are different from ADA employment claims, but also distinct considerations concerning insurance coverage.  When analyzing a new ADA Title III case, it is important to consider the following:

1.  What type of claim is this?
ADA public accommodations claims can create confusion when trying to pigeon hole them with respect to insurance coverage.  At first glance, they often appear to be similar to building code violations, or other facilities claims.  Rather, these public accommodations lawsuits are civil rights claims in the same respect as employment-based lawsuits under the ADA.

2. Is there insurance for this claim?
Of course, any question of whether insurance coverage exists for a particular claim must be examined on a policy-by-policy basis.  Generally, however, many business insurance policies do provide coverage for claims brought under Title III of the ADA which allege a failure to provide an accessible facility.

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Netflix Settles Massachusetts ADA Lawsuit: What It Means for Online Businesses

If you follow this blog you know that we’ve spent a fair amount of ink covering the recent ADA lawsuits brought against Netflix.  These cases (one brought in Massachusetts federal court and another in California federal court) allege that the company violated the ADA by failing to offer “closed captioning” options for all its Internet streamed movies.  The results have been a split decision for Netflix.  The Massachusetts court held (without deciding liability) that Netflix Internet-streamed movies constituted a public accommodation that must comply with the requirements of the ADA.  The California court reached the opposite conclusion and dismissed that case holding that Netflix’s online Internet movies did not fall within the ADA’s definition of public accommodation.  Recently, Netflix publically settled the Massachusetts case while it was pending on appeal.

Under the terms of the settlement agreement, Netflix agreed to include closed captioning for all of its Internet streamed movies by 2014 and gradually reduce the time for including close captioning for new movies.  The company will also pay $755,000 in fees to the plaintiff’s attorneys (ed. note not a typo) and commit $40,000 for the implementation of changes to its practices.

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ADA Checklist for Pool Lifts

The ADA’s Deadline for Installing Pool Lifts is January 1, 2013!

It is now past Labor Day and if you are a hotel or motel owner outside of the warmer climates, you are likely running through your checklist to prepare your swimming pools for winter. This year you will need to add “ADA Compliance” to your list of annual checks. As of January 1, 2013, swimming pools that are public accommodations (e.g. pools that can be used by the public or by hotel/motel guests) must ensure accessible means of entry for the disabled. Unless your pool has permissible sloped entries into the water, this will require the installation of “pool lifts.” These pools lifts must be fixed (not removable). Removable pools lifts, which were permissible under older ADA regulations, will no longer be allowed after January 1, 2013.

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Where to Start When Auditing Your Business’s ADA Compliance

As you know if you are a frequent reader of this blog, many states have seen spikes in the number of federal lawsuits filed under the ADA for alleged violations of accessibility requirements. Individual plaintiffs have filed upwards of one hundred lawsuits in some states. Class actions are also on the rise.

What can you do to protect your business from ADA lawsuits and determine if you are a likely target? If a complete audit of the your ADA compliance and renovation of non-complying features is not realistic or readily achievable, evaluating the hot spots which are the most frequent subjects of lawsuits is a good place to start. Many ADA violations in these areas are easy to spot and, in many cases, easy to fix.

Parking Spaces
Determine whether your business satisfies the ADA’s requirements for parking spaces. At the most basic level, make sure you are providing the appropriate number of disabled parking spaces. The number required is determined by your total number of available parking spaces. The ADA  also mandates specific size and slope requirements for accessible spaces.

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California Legislature Passes State Disability Lawsuit Abuse Act

The California legislature recently passed a new amendment to its civil rights law (the Unruh Civil Rights Act) aimed at curbing abuses related to disability discrimination lawsuits against public accommodations (i.e. businesses that offer goods and services to the public). This bill, sponsored by Senate Pro Tem Darrell Steinberg (D-Sacramento) and Senator Bob Dutton (R-Rancho Cucamonga) received strong bipartisan support and now awaits a decision from Governor Jerry Brown.

Recent figures show that California is home to approximately 40% of all claims against businesses alleging a failure to satisfy accessibility requirements for the disabled. As in most states, plaintiffs will file such lawsuits under both the federal ADA and a state civil rights statute that provides state remedies for disability discrimination. Unlike the ADA, many of these state civil rights laws (e.g. the Unruh Act) allow for the recovery of damages in addition to injunctive relief and attorney’s fees.

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