Americans with Disabilities Act Litigation Enters a New Frontier – Websites

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Labor & Employment Law Practice Group, was recorded on Tuesday, July 23, 2019, during a live teleforum conference call held exclusively for Federalist Society members.          

 

Wesley Hodges:  Welcome to The Federalist Society's teleforum conference call. This afternoon’s topic is on “Americans with Disabilities Act Litigation Enters a New Frontier – Websites.” My name is Wesley Hodges, and I'm the Associate Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today we are very fortunate to have with us Karen Harned, who is Executive Director at the National Federation of Independent Business Small Business Legal Center. After our speaker gives her opening remarks, we will have an audience Q&A, so please keep in mind what questions you have for this topic or for Karen herself. Thank you very much for sharing with us today. Karen, the floor is yours.

 

Karen Harned:  Thanks, and thanks for those joining us on this call on what really is an important topic and becoming more so one every day. Most of us, I would think by now, are familiar with the Americans with Disabilities Act that was enacted in 1990 and in relevant part requires, and I quote, that “no individual shall be discriminated against on the basis of disability and the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by a person who owns, leases, or operates a place of public accommodation.” This is known as Title III of the Americans with Disabilities Act. Title I refers to how -- the rights of the disabled in the employment space and in the workplace and the workforce. Title II is a special title that applies to the state and federal government. And then this Title III is known as the public accommodation section because it concerns all businesses everywhere.

 

      And interestingly, or I guess not interestingly, enough, Section 301 of that title really does have an extensive list of the types of businesses that need to make sure that their establishments are accessible to the disabled. And they’ve got an inn, hotel, motel, place of lodging, a restaurant or bar, a motion picture house, auditorium, bakery, grocery store, daycare center, nursery, elementary, secondary school, parks, zoo, amusement parks, even specifically saying a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation. All of those places are listed in Title III as specific places that need to make sure that those that are disabled can enjoy those places and they can be accommodated to do that.

 

      So when the ADA was passed in 1990, websites had just started, and mobile applications did not even exist. Obviously, fast forward to 2019 and that is no longer the case at all. They're all over the place. So what we had seen prior to this newest round of litigation in the website era is when it came to just businesses -- think of maybe your harder businesses to access, like it’s beach season, right? And you're on the boardwalk and you're going into one of those small surf shops that sells t-shirts. Under the law, that needed to be accessible. They had a grandfather clause in there for other businesses, older facilities that were pre-1990. But once they did any renovation, including just updating their bathroom, all of the ADA requirements would apply to that business.

     

      And so what we’ve been seeing since, I don't know, probably I’d say late 1990s at least, there were a lot of lawsuits that were being brought against business owners, and still today are, for problems with their physical space. And in many instances, there probably is something wrong there and it needs to be corrected. But it also has been an area where there’s been a lot of abuse to the point that even in California you’ve seen trial lawyers bringing these types of suits get sanctioned for abuse of litigation and not really -- basically doing drive-by lawsuits, if you will: just having somebody go in there one time, no intention to ever go back, bring a lawsuit and bring hundreds of these types of lawsuits.

 

      I put all of that as background because we’re beginning to see the same thing happen with websites. Yet, unlike the physical accommodation, there’s really no -- well, there is no statutory language beyond just the general requirement that people that are disabled have the ability to enjoy the space, have access to the goods and services provided if they're disabled. So Congress did update the Americans with Disabilities Act in 2008; actually, that focused on employees and what it meant to be disabled as far as being a worker. But I note that just because that was an opportunity for them to update the statute on the website. And they failed to do that. Meanwhile, at the Department of Justice, they have never done a firm pronouncement on what it means to do websites – does the ADA apply to websites, and if they do -- I guess they have said that it does apply to websites. I’m sorry, I misstated that. But they’ve never issued a rulemaking. They had an advanced notice of rulemaking that was on the books for at least eight years under the Obama administration but then was pulled and never went to fruition. So there was no rulemaking there.

 

      So the plaintiff’s bar that has been active over the last several decades in the public accommodation space when it came to physical premise has now gotten active in the website space and mobile app space. And so the law, quite frankly, is being written by them because all of the other arbiters out there really have taken a path, both Congress and DOJ. I mean, DOJ did issue a letter -- before I get into the case at hand, DOJ did issue a letter last September, which was relatively good in that it said that this uber guidance, Web Content Accessibility Guidelines, WCAG 2.0 or 2.1, which had just been privately developed and are very expensive to make your website compatible with -- but that doesn’t mean that to be compliant as a website in 2018-2019, you don’t have to comply with that platinum standard. That there’s places -- businesses can have a more flexible approach; that the key is can the person that’s disabled enjoyed the benefits of the services or of the goods, that sort of thing.

 

      But other than this letter that was sent in response to a congressional inquiry last September by DOJ, that’s really the only reading we have other than what is coming out of the courts. Which now brings us to today. So just this last month, Domino’s has asked the Supreme Court to hear its case in Domino’s v. Robles. Mr. Robles had gone onto Domino’s website and tried to order a pizza, and he’s blind, and he couldn’t custom order it. But there were other ways for him to order that pizza. He could obviously call the restaurant and ask for delivery, and they also had a 24-hour hotline that you could call if, as a disabled person, you were having trouble accessing parts of the website. Because my understanding is with that particular website it really was the issue of when you were custom ordering your pizza, not all of the pictures were being described correctly, I don't know. It was just complicated and, I guess for all intents and purposes, not doable.

 

      Although the lot in this area has not been developed by Congress or the regulators, it is the hope of Domino’s, and quite frankly us—I represent, as Wesley said, the National Federation of Independent Business Small Business—that the Supreme Court might step in here because there are -- with the plaintiff’s bar working this out in the courts, there is now a circuit split as to what is required. So it’s just very ambiguous, and meanwhile, there are literally thousands of lawsuits that are being filed each year alleging that a business’s website does not comply with the ADA. And so we really need some clarity here. So we’re hopeful that the Supreme Court might answer the call and resolve this circuit split.

 

      So the circuit split is actually pretty extensive. The First, Second, and Seventh Circuit: they have said that websites that are offering goods or services to the public are stand-alone public accommodations. And if they're inaccessible, they fail to provide -- they fail to live up to the standards of the ADA, and you're liable under that statute. But the Third, Sixth, and Ninth Circuits have said that web-only enterprises do not face Title III liability. And moreover, in the First, Second, and Seventh Circuits where they say that if there’s a stand-alone business that is a website, you must make your website publicly accommodated -- accommodate the disabled under the ADA. The First, Second, and Seventh, they say that if the individual lacks access to a particular location if they’re a brick-and-mortar location, that any offerings are considered stand-alone for that.

 

      So basically, if you’ve got a stand-alone business, brick-and-mortar like Domino’s, and they’ve got stores but they also have the websites, under the First, Second, and Seventh Circuits they look at whether your restaurant’s physical location is open to the disabled and compliant with the ADA, and then they separately look at whether or not the website is openly accessible to the ADA. So you can get hit on either one.

 

      Whereas the Third, Sixth, and Eleventh Circuits have said, look, if you're Domino’s and there’s a way to get in and call and order that pizza, you have access to a delivery method, or something like that, then you're fine. We’re not going to look separately at whether or not your website is compliant. The First, Second, and Seventh Circuits said. “We are.” Third, Sixth, and Eleventh say, “We are not.”

 

      Interestingly, the Ninth is kind of weird in that it says -- well, I guess they actually followed the Third, Sixth, and Eleventh. So they're also saying that we’re going to look and see if your restaurant is -- I’m sorry. They're like the First, Second, and the Seventh. I’m sorry, it gets so confusing. But anyway, they say that we’re going to look at your restaurant separately and your website separately. So that’s where we are. You’ve got the pace going up saying that websites have to be looked at separately for whether or not the disabled can access them. I apologize for that.

 

      And so that’s where we are, and we’re hopeful that the Supreme Court’s going to take this because it’s kind of a mess. And in the meantime, we’re now seeing banks, hotels, all the interim of businesses being sued. And although the DOJ has said that you don’t have to do the platinum standard to be compliant as a website under the Americans with Disabilities Act, that doesn’t prevent private litigants from continuing to litigate these issues. And so that really is the nub, if you will, that until this is resolved by someone, this is going to go on. Quite frankly, it’s pretty clear that Congress isn’t going to do anything here. And, again, DOJ has taken a path at this point too.

 

      We’re going to be interested to see what happens with this case and whether they take it. The briefs were just filed so we’re hoping to hear at the beginning of next term whether or not this goes up to the Supreme Court. That’s pretty much the bottom line. And I’m happy to take other questions.

 

Wesley Hodges:  Thank you, Karen. That was a very healthy bottom line. Thank you so much. Karen, while we wait for any audience questions, would you mind just taking a minute to dive a bit deeper on what the plaintiff’s bar is looking like right now?

 

Karen Harned:  Right. So we’re already seeing serial offenders, different law firms that are bringing -- really make it a cottage industry out of suing in this regard. And so just from 2017 to 2018 we saw an increase by thousands of the lawsuits that have been brought here. If the public accommodations space of just physical premise is any indication, we think that this is just going to continue to explode on the website front. You may have seen -- 60 Minutes did a piece on the public accommodation of just hotels, for example, and restaurants a year or two ago in which, now with drones and other things, they're looking. And if you even have a pool at your hotel and they don’t see the lift there, they're going to file a lawsuit, and nobody even will have entered the property asking for that kind of access.

 

      Interestingly, there was somebody in Minnesota during the winter that had filed a lawsuit against an outdoor pool that didn’t have accessibility based on a picture that was taken from the side of the road. And then to the extent that the attorneys are suing on the websites as if, and also on these public accommodations of physical brick-and-mortar stores, what you're seeing is they're going to resolve it with just that one entity. They're not going to resolve it more broadly. And so the disabled community isn’t even actually served.

 

      In fact, what we’ve seen on the physical side, and I assume we’re going to see again on the website side, is many times the business will just pay the money and then that will be it. So you won’t even get a resolution for the disabled overall. That may change a little bit on the website side, but you still are seeing these one-off kind of solutions that really involve, at the end of the day, how much money is going to be paid out more than anything else. And that is a concern and really just not the way the law should be constructed.

 

Wesley Hodges:  Well, very good. Thank you so much, Karen. We do have two questions from the audience. Let’s go to our first caller.

 

John McCammon:  Hi, John McCammon calling from Richmond, Virginia. Thank you for your remarks. Your most recent comments may have, in a sense, anticipated my question. I was wondering what kinds of relief are typically sought by plaintiffs in these matters? And what kinds of relief to this point have been granted? And does it extend to equity, or are injunctions part of the formula?

 

Karen Harned:  I do not litigate all of these cases, so I don't know about the injunction question. Most of the relief definitely is financial. What you will see, though, especially more on the website area, is when somebody starts getting sued -- for example, I was visiting with a company not long ago that as soon as that happened, they did take it upon themselves to go ahead and go with the gold standard, if you will, on what the privately developed guidelines of what a compliant website would be. Because the web is so ubiquitous and accessible, I do think that there is more of a broader blanket that the companies are going to be taking to fix the problem after it’s been identified through litigation.

 

      But the cost of that is not insignificant. Depending on the complexity of a website, for example, my understanding is—and this was said in the cert petition, actually—that banks are estimating that to satisfy their website accessibility requirements, it could be up to $3 million a website because of all of the pages and just the way it is.

 

      And then interestingly enough, some of the newer lawsuits -- I spoke with a reporter just a few months ago where in New York City where art galleries, if you can believe it, are being sued for not having website accessible art galleries. And it’s one thing to describe, you know, say there’s going to be pepperoni on this pizza; there’s quite another to say what a painting looks like to someone that can’t see. And so that, I think, also shows you how aggressive the plaintiff’s bar has become, and that that is actually a target of theirs. They’ve literally been going through the phone book, A to Z, of the art galleries in New York suing on this very issue.

 

Wesley Hodges:  Thank you very much. Here comes our second caller.

 

Matthew Howell:  Hi, my name’s Matthew Howell. I’m a professor at Eastern Kentucky University in Richmond. We’re doing ADA compliance on our website now, and we’ve been running into an issue with archive documents. So these are PDF documents we’ve had to upload for reporting graduation rates and such like that, which screen readers have difficulty dealing with. I wondered if you could talk a little bit other types of archive documents on websites and how those have been coming up in the lawsuits. Thank you.

 

Karen Harned:  Well, that is one of the issues that is raised in this petition, is just that sort of thing: that you can’t -- again, like my art dealer example, that there’s not software that can even work, I think, on some of these types of issues right now. I’m not convinced the technology, I guess is what I would say, is there yet, as your example describes. Which is yet another issue. And so I think that’s why the petition does a nice job of what are we trying to accomplish here? What was the ADA intended to do? And if you're able to access something as a disabled person, do you have to be able to access it in every medium possible? And we would argue that the answer -- in order to have full enjoyment of it, and we would argue that the answer is no to that question. And that’s really, I think, interpreting the statute so rigidly on a statute that actually has a very exhaustive, as I started, list of what is covered by the ADA down to golf courses and spas.

 

      So all that to say that that is one of the big issues that on the website frontier, if you will, continues to be a problem is that there is a trouble anticipating everything that will be on a website and making sure that there’s a way with current technology to make that accessible to the disabled in every instance. And I just think the answer to that is clearly no, and therefore, liability doesn’t make sense.

 

Wesley Hodges:  Fantastic. Thank you so much, caller. Well, seeing no immediate questions, Karen, I’d like to turn the mic back to you to see if you have any additional thoughts.

 

Karen Harned:  I would just say that we are hopeful that the Supreme Court will take this case and resolve this issue. It is, unfortunately -- even though this is a very important statute for the disabled and really all Americans that we want to make sure that there’s equal access -- I know our members want to serve all customers everywhere regardless of what physical impairments they may have. But it’s just unfortunate that due to the current dysfunction in our system of government that we’re really allowing the trial bar in this area, and we again see it in many other areas too, to write the law for all of us. It’s not efficient. It’s not effective. It’s not fair. It’s our hope that the Supreme Court at least will step in and give us more clarity in this space so that we can limit, if not get rid of, this kind of abuse that we’re seeing right now in our civil justice system.

 

Wesley Hodges:  Well, thank you, Karen. We do appreciate you shining a light on this subject. On behalf of The Federalist Society, I'd like to thank you for the benefit of your very valuable time and expertise today. We welcome all listener feedback by email at [email protected]. Thank you all for joining us for this call. We are now adjourned.

 

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