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.


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.


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.


Is Employee Training Your Weakest Link?

Recently I read a national news story about a disabled veteran who claimed that an employee of a hotel denied and mocked his request for assistance in getting his wheelchair down a flight of stairs. Although I lay no claim to knowing the true facts of the incident, or the hotel’s ADA procedures, the story did get me thinking about the vital role employees play in ensuring compliance with a business’s public accommodations obligations. Simply put, your employees can be either your greatest strength in ensuring compliance and avoiding lawsuits, or your Achilles heel.

Most businesses have detailed policies prohibiting disability discrimination in employment and procedures for when an employee requests an accommodation to a job duty or working condition. Many businesses do not, however, provide the same level of employee training on what to do when a customer makes a disability related request, or inquires about disability-related services. It is these employees, including salespeople, cashiers, and bank tellers, that are most likely to receive such requests or questions. Providing training can make your business accessible to more customers and also avoid legal risks.


Is Your ATM Machine A Lawsuit Waiting To Happen?

The 2010 Amendments to the ADA (and accompanying changes to the ADA’s design guidelines) require owners and operators of Automated Teller Machines (ATMs) to modify new and existing ATMs to improve access for the disabled. These mandated changes, which required compliance by March 15, 2012, have resulted in a rash of lawsuits across the country, including significant class action lawsuits in Texas and Pennsylvania. These lawsuits have largely targeted smaller financial institutions, including community banks and credit unions.

ATM Accessibility Requirements

Although the ADA has required ATMs to be “accessible” to the disabled since 1991, the 2010 Amendments provide new and specific technical requirements and specifications. These include:

  • Requirements that all individuals are provided the same degree of privacy when using ATMs;
  • Minimum clear ground space requirements for walk-up ATMs to ensure access by mobility impaired users (such as individuals who use wheelchairs);
  • Restrictions on the distance an ATM user has to reach to access controls and use the machine;
  • Specific requirements on ATM input devices including the arrangement of keypads,  Braille, and the height of input keys; and
  • Speech output functions to ensure that all ATM functions and features (with limited exceptions) are available to the visually impaired.

A complete list of the technical requirements for ATMs can be found in Section 707 of the 2010 ADA Accessibility Standards. In some cases, ATM owners can avoid certain requirements where compliance would create an undue burden.


Netflix Part Deux: California Federal Court Rules that Netflix is Not a Public Accommodation

Recently I wrote about a decision from the federal district court in Massachusetts which held that the ADA applied to Netflix’s Internet-streamed movies. That decision (which is now subject to a petition for appeal) would have required the company to ensure that all of its “on demand” movies had closed captioning to accommodate customers with hearing-related disabilities. Recently, another federal court—this time in California—ruled in favor of Netflix dismissing a claim that the company violated the ADA by failing to provide closed captioning for every movie in its “streaming video library.”

Unlike the District of Massachusetts, which held that the ADA’s definition of “public accommodation” was broad enough to encompass the virtual world of the Internet, the California federal court found that Netflix’s Internet-streamed video library “is not an actual physical place and therefore, . . . is not a place of public accommodation.” Hence, it need not satisfy the ADA’s requirement that businesses which offer goods and services take measures to ensure full and equal access for the disabled, including measures to ensure access for the hearing impaired.


Federal Appeals Court Reinstates ADA Lawsuit Against Disney Over Segway Use

The Ninth Circuit Court of Appeals has reinstated a lawsuit against Walt Disney World Company that alleges the company violated the ADA by refusing to allow a theme park patron to use a “Segway.” The Plaintiff, who suffers from muscular dystrophy, claims that Disney unfairly discriminated against her when the company denied her request to use her Segway at Disneyland. The park’s policies allow patrons to use wheelchairs and motorized scooters, but prohibit two wheeled vehicles, which would include Segways.

The California district court dismissed the Plaintiff’s claim finding that the use of a Segway was not a necessary accommodation under the ADA because she could still use a wheelchair or scooter to address her mobility limitations.  The Appeals Court reversed and reinstated the case holding that the Plaintiff’s requested accommodation was consistent with the goals and requirements of the ADA.  The Court, however, did hold that Disney could still prevail if it proved that the requested accommodation (i.e. the use of a Segway) posed a safety risk.


What Does “Readily Achievable” Mean and How Much Will It Cost Me?

In several recent posts I’ve discussed how the Americans with Disabilities Act (ADA) requires public accommodations (i.e. businesses that offer goods and services to the public) occupied prior to January 26, 1993 to only make modifications that are “readily achievable.” I’ve received a number of requests to comment on what this term means and how a business determines whether a proposed modification (or claimed ADA violation) is readily achievable. Although there are no bright lines and each situation presents its own unique factors to consider, there are a number of factors that businesses can and should consider in deciding whether they are required to commit resources to make changes or modifications to their facility.

The regulations governing the ADA define readily achievable as modifications that are “easily accomplished” and that do not require “much difficulty or expense” (28 C.F.R. § 36.304(a)). What is easy to accomplish, or what is “expensive” is not only subject to interpretation, but also can vary based on the size of a business and its available resources. In other words, what is readily achievable for Apple is not necessarily so for a “mom and pop” restaurant. In many ways, this definition is similar to Justice Potter Stewart’s famous quote about how one defines pornography — “I know it when I see it.” Unquestionably, whether something is readily achievable is very often one of the most hotly contested issues in an ADA public accommodations lawsuit.


Up to Code and Out of Compliance: The Local Building Code Trap

When I meet a new client facing an ADA public accommodations lawsuit, one of the first questions they often ask is: “How could this come up, the city inspector told us our property was in compliance?” The answer is, unfortunately, simple. The requirements of local and state building and construction codes do not always satisfy all the mandates of the ADA and can often become a trap for business owners. The fact that your property may satisfy applicable local, state, and building codes, including codes modeled after the IBC (International Building Code) and UCC (Uniform Construction Code) are no guarantee that your business is in compliance with the ADA (which is a federal civil rights law and not strictly a “building code”). This includes both specific requirements for access, as well when a business needs to make modifications.

Although the Department of Justice has a program by which local and state governments can have buildings codes “ADA certified,” not every building code is certified as compliant, particularly with the many recent changes to the ADA’s Standards for Accessible Design. This includes compliance issues concerning many common areas of ADA litigation such as parking lot access routes, restroom accessibility, and required signage to name just a few.