Category: ADA

Indiana Federal Court Gives Frostbitten ADA Plaintiff The Cold Shoulder

The U.S. District Court for the Southern District of Indiana recently granted summary judgment on behalf of a logistics employer in a case alleging discrimination under the Americans with Disabilities Act (ADA). The court found that because the plaintiff employee could not work in the freezer area of his employer’s warehouse, as was required for his job, he failed to establish that he was a “qualified individual” with a disability.

In Pryor v. Americold Logistics, LLC, the defendant employer operates a cold-storage warehouse that “provides temperature-controlled food warehousing and distribution services,” with “five cooler rooms, two freezer rooms, a loading dock, a designated battery-changing room, and a small office.” The plaintiff was a Lift Truck Operator (LTO) who filled orders by picking items from the various rooms of the warehouse and wrapping them on a skid for pickup by another employee. He had previously “suffered severe frostbite on his left hand after he spent three-quarters of a shift in the freezer with defective gloves,” and due to his prior frostbite “exposure to the freezer’s extreme cold caused pain and risked further injury.”

After treatment (and intervening stints of alternate duty), the plaintiff employee “reached maximum medical improvement” and was put on “a permanent restriction of exposure to the freezer for no more than thirty minutes per workday.” The plaintiff’s LTO role, however, required nearly constant exposure to subzero temperatures. When the plaintiff did not return from leave, he was terminated.

The plaintiff alleged that his employer “discriminated against him by failing to provide a reasonable accommodation for his disability and by terminating his employment.” The employer argued that the plaintiff was not a “qualified individual” under the ADA because “he could not perform the essential duties of an LTO with or without a reasonable accommodation.” The district court held that the plaintiff had not “presented sufficient evidence that he was able to perform the essential functions of his job with a reasonable accommodation,” and thus granted summary judgement in favor of the employer.

The court explained the employer’s judgment as to which job functions are essential is entitled to consideration. And with regard to the essential functions of the LTO role, the court found that the LTO role required “substantial exposure to freezer temperatures” each workday. The court explained that, because the plaintiff admittedly could not work in the freezer for more than thirty minutes per day, “he could not perform the essential functions of his LTO order selector position without reasonable accommodation.” He was thus a “‘qualified individual’ under the ADA only if he could perform the essential functions with reasonable accommodation.”

As for the question of what a reasonable accommodation might entail, the plaintiff argued that he could have been reassigned to a non-freezer position, a temporary “cooler-only” position, or a position in the loading dock or office. However, the court stated, “it is the plaintiff’s burden to show that a vacant position exists for which he was qualified.” The court explained that the ADA does not require an employer to “create a new position or transfer another employee to create a vacancy,” or to “transfer a disabled employee to a temporary position on a permanent basis.”

Ultimately, with regard “cooler-only” positions, the court held that the plaintiff failed to identify any vacancies, and noted that pursuant to a union contract, those positions had to be filled according to seniority. With regard to the vacant loading dock or office positions, the plaintiff failed to demonstrate that he was qualified. Thus, the court held that the plaintiff failed “to create a genuine issue of material fact whether reassignment was a reasonable accommodation,” and summary judgement in favor of the employer was appropriate.

The key takeaways from the Pryor decision for employers facing ADA claims are that employees must still be able to perform the essential functions of their job, and that courts should consider the employer’s determination of which job functions are essential. Moreover, the Pryor decision reaffirms that the ADA does not require employers to create positions or vacancies as part of the interactive process.

© 2019 BARNES & THORNBURG LLP
For more ADA cases, see the National Law Review Labor & Employment law page.

Employer Concerns with Employee Substance Abuse and Drug Use: A Q&A with Caroline J. Berdzik of Goldberg Segalla

With headlines and staggering statistics extolling the impact of the opioid epidemic ripping through the United States, and marijuana (medical and recreational) legalized and decriminalized and a patchwork of state, federal and municipal laws across the country; employers dealing with employee substance abuse and drug use issues have a lot of things to consider. Caroline J. Berdzik, a partner with Goldberg Segalla and chair of the firm’s Labor and Employment and Health Care Groups,  focuses on counseling employers on human resources and employment matters, and was kind enough to share her thoughts on the thorny issues of employers navigating employee substance abuse and drug use.  Read on for more insight and ideas on  how employers should proceed when an employee demonstrates some indication of substance abuse, what the concerns are for employers, and some thoughts on how to move forward keeping in mind changing attitudes on addiction and the laws that may apply.

Can you outline some of the dangers employers face when employing an individual who is struggling with addiction?

Unfortunately, substance abuse addiction and its ramifications cannot avoid the workplace. There is an acknowledgment that this is not an issue that has social or economic boundaries, anyone from highly compensated executives to hourly employees may struggle with addiction. Addiction can take many forms including alcohol abuse, opioid dependency, or the use of other illegal or legally prescribed substances. Employers need to be concerned about legal issues when dealing with an employee who is struggling with addiction. It may be difficult to confirm that an employee has an addiction as they may try to hide it and depending on the circumstances, there may be limits of how far an employer can pry into these concerns.

Once the problem is confirmed, some consideration needs to be given as to whether the employee can continue to do their job while working through addiction. If they are unable to perform their job responsibilities, there are options or reasonable accommodations available to the employee or employer (i.e., leave of absence for treatment). Other components to consider include the availability of drug and alcohol testing permitted under the law in their specific jurisdiction; whether the employee’s conduct has violated any company policies; and if the behaviors associated with the employee’s addiction is negatively impacting the quality of their work and interactions with co-workers, supervisors, clients, and others outside the workplace.

What are some of the issues employers must consider when discussing an employee’s addiction problems with an employee? What are the concerns, especially since addiction can be difficult to identify? 

Employers need to be very careful in this regard. Generally, potential addiction is brought to an employer’s attention through observation or by reports from other employees, supervisors, clients, or even customers. If alcohol is the issue, it may be difficult to detect when someone is under the influence, particularly if the consumption is during non-working hours and if the employee is merely coming to work hungover―as opposed to being intoxicated on the job. If the suspected addiction involves drugs (e.g., whether legal or illegal), there are states that don’t allow for reasonable suspicion testing and some states that make it virtually impossible to test at all. Additionally―depending on the nature of the drug―it may also not show up in the drug test depending on when the test is done.

Many times, this is a difficult conversation to have with an employee since they will most likely deny having any issue because they don’t want to jeopardize their income or employment prospects. Employers need to be careful not to potentially run afoul of the Americans with Disabilities Act (ADA) and other state anti-discrimination laws when discussing a suspected substance abuse problem. Merely perceiving the employee as having a disability can open the employer up to legal risk. Therefore, it is critical to proceed with caution and consult internally or externally with legal counsel and human resources on how to best handle the situation.

How does the legality of the substance the employee is addicted to impact the employer’s actions?  For example, an employee addicted to legal opioid painkillers vs. an employee who is addicted to cocaine or other illegal substances?

The laws are greatly evolving in this area, particularly with respect to cannabis. More and more states have legalized medical marijuana and recreational marijuana. With respect to alcohol, it’s legal to drink alcohol as long as the individual is of age; however, alcohol abuse can cause just as many problems as an employee struggling with a substance abuse problem.

While it may seem easier to take certain actions when managing employees with addictions to other substances (e.g., opioids and cocaine), there are still considerations that come into play. For example, employers in some states cannot take actions against employees based on what activities that they do during off-duty hours.

Irrespective of the legality of the substance, the employer needs to focus on whether the employee is impaired at work or at work functions (e.g., on a business trip, attending a conference, meeting with clients, etc.). They also need to consider the impact of those behaviors on the individual, the company, and anyone else involved. Employers also need to be cognizant of the laws in their jurisdictions and the policies the company may have regarding the use of alcohol and drugs in the workplace. If someone is a current user of an illegal substance, there is typically no protection afforded to them under the ADA or similar anti-discrimination laws. However, if an employee can tie their addiction to an underlying mental health disorder, it becomes murkier. For employees who are recovering drug addicts or alcoholics, there is likely more protection afforded under anti-discrimination laws.

The key thing for employers to remember is to not make any knee-jerk decisions when evaluating these issues. Employers should take time to fully analyze the circumstances before taking any action and determine what legal obligations, if any, it may have to try to accommodate employees.

What legal requirements come into play when human resources intervene with an employee struggling with addiction?  For example, can this be a situation where the ADA applies?

The ADA is typically something that would come into play when dealing with an employee struggling with addiction. Human resources should consult with legal counsel while navigating through this type of issue. There are a myriad of laws that are intertwined that could potentially be relevant including the federal Family Medical Leave Act, as well as other state or local counterparts. In many circumstances, the employer may need to provide a reasonable accommodation to assist an employee struggling with addiction. Best practices may dictate this type of documented discussion with the impacted employee, even without a legal requirement to do so.

Attitudes toward addiction are changing with addiction increasingly being seen as a disease that should be treated without judgment–how does this shift change an employer’s reaction to employees with addiction issues?

As these issues become more prevalent, including the revelation that they impact individuals at higher level positions at companies, employers are increasingly willing to work with employees to get them the help they need. I have seen an uptick in counseling calls where employers are genuinely concerned about their employees’ well-being and want to find ways to assist them. However, I have seen situations where employers have gone above and beyond to work with a struggling employee and the employee failed to help themselves with the assistance being offered.

Rates of prescription opioid abuse are skyrocketing. How is this worrisome trend affecting employers, and are there any proactive steps employers can take?

Opioid use is a very serious problem impacting the workplace. Employers are well advised to have employee assistance programs (EAPs) in place. They should also have open-door policies to encourage employees to come to human resources to seek help for their addiction.

Many thanks to Caroline J. Berdzik of Goldberg Segalla for sharing her thoughts and insights on this complicated, yet increasingly relevant employment law issue.

Copyright ©2019 National Law Forum, LLC

More employment law issues on the National Law Review Labor & Employment page.

Seventh Circuit: ADA Does Not Prohibit Discrimination Based on Future Impairments

On October 29, 2019, railway operator Burlington Northern Santa Fe Railway Company (“BNSF”) prevailed before the United States Court of Appeals for the Seventh Circuit – which covers Illinois, Indiana, and Wisconsin – in a case in which the company argued that its refusal to hire an obese candidate due to an unacceptably high risk that the applicant would develop certain obesity-related medical conditions incompatible with the position sought did not violate the Americans with Disabilities Act (“ADA”).

Ronald Shell applied for a job with BNSF as a machine operator position.  Per its standard practice when the applied-for position is safety-sensitive, as was the heavy equipment operator position sought by Shell, BNSF required him to undergo a medical examination.  During the medical examination, the examiner determined that Shell’s body mass index (“BMI”) was 47.  BNSF had a practice of refusing to hire individuals with a BMI higher than 40 for safety-sensitive positions.  In Shell’s case, the employer expressed concern that his obesity, although not causing any present disability, would cause Shell disabilities in the future, such as sleep apnea, diabetes, and heart disease.  BNSF asserted that this risk was significant because a sudden onset of any of these conditions could be catastrophic for a heavy machine operator.  BNSF therefore did not place Shell in the position.

Shell sued, arguing that he was “disabled” under the ADA’s definition of that term because BNSF had “regarded him as” having a disability.  The ADA not only protects individuals who are actually disabled or have a record of being disabled, but also protects individuals who have been subjected to an adverse employment action because of an actual or perceived physical impairment, whether or not that impairment substantially limits a major life activity.  Shell argued that by refusing to hire him based on the risk of future disabilities that he was at risk of as a result of his obesity, BNSF essentially treated him as though he currently had those conditions.

The Court ruled that the ADA does not protect non-disabled employees from discrimination based on a risk of future impairments.  The Court cited precedent from the Eighth Circuit, where BNSF also faced challenges to its practice of refusing to hire obese applicants due to the risk of future impairments.  The Eighth Circuit, like the Ninth and Tenth Circuits, also has held that the statutory language of the ADA does not protect non-disabled individuals who have a risk of disability in the future.

Of note, Shell also argued at the trial court level that his obesity constituted an actual disability, rendering BNSF’s refusal to hire him based on this characteristic a violation of the ADA for this reason as well.  However, as you may recall from our blog post from earlier this year, just a few months ago, the Seventh Circuit addressed this argument in another case, Richardson v. Chicago Transit Authority, and held that obesity, by itself, is not a disability for purposes of the ADA unless it is caused by an underlying physiological disorder.  Shell did not present any evidence in his case of such an underlying disorder, and thus could not, therefore, claim that he was actually disabled.  Notably, the federal appellate courts are split on this issue, which may tee it up for consideration by the United States Supreme Court in the future.  In contrast, among the appeals courts that have addressed the issue of future disabilities, all have agreed, thus far, that the ADA’s reach does not extend to potential or likely future disabilities of currently non-disabled individuals.

© Copyright 2019 Squire Patton Boggs (US) LLP

For more ADA litigation, see the National Law Review Labor & Employment law page.

ADA Website Litigation Likely to Increase

There has been considerable confusion amongst business owners as to the requirements of the Americans with Disabilities Act (ADA) as it relates to websites. The ADA requires, among other things, that places of “public accommodation” remove barriers to access for people with disabilities. This law has long been understood to apply to brick-and-mortar establishments, such as restaurants, retail stores, and hotels, but recent court decisions have held that the ADA applies to the websites and mobile applications of businesses offering goods and services online.

The Department of Justice (DOJ), which is responsible for establishing regulations pursuant to the ADA, has thus far failed to issue any guidance, regulations, or technical standards for online platforms, resulting in uncertainty for many business owners. Many have looked to the case of Robles v. Domino’s Pizza, LLC   for potential guidance. Robles was filed by a blind man who claimed that he could not access the Domino’s website and mobile app with his screen-reading software. The District Court dismissed the case on the basis that, although the ADA applied to the website and app, the DOJ’s failure to provide guidance as to the ADA’s application to websites violated Domino’s due process rights. The Ninth Circuit reversed this ruling, and on October 7, 2019, the U.S. Supreme Court denied a petition by Domino’s Pizza asking the Court to review the Ninth Circuit’s decision.

The Supreme Court’s refusal to review the Ninth Circuit decision maintains the uncertainty in what will no doubt be an expanding field of litigation. Business owners should expect to see an increase in ADA website litigation, and should take steps to ensure that their websites and mobile apps are accessible to disabled users.

 

© 2010-2019 Allen Matkins Leck Gamble Mallory & Natsis LLP

ARTICLE BY Rachel M. Sanders of Allen Matkins Leck Gamble Mallory & Natsis LLP.
More website regulation on the National Law Review Internet, Communications & Media law page.

Practical Tips and Tools for Maintaining ADA-Compliant Websites

Title III of the American with Disabilities Act (ADA), enacted in 1990, prohibits discrimination against disabled individuals in “places of public accommodation”—defined broadly to include private entities that offer commercial services to the public. 42 U.S.C. § 12181(7). Under the ADA, disabled individuals are entitled to the full and equal enjoyment of the goods, services, facilities, privileges, and accommodations offered by a place of public accommodation. Id. § 12182(a). To comply with the law, places of public accommodation must take steps to “ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals.” Id. § 12182(b)(2)(A)(iii).

In the years immediately following the enactment of the ADA, the majority of lawsuits alleging violations of Title III arose as a result of barriers that prevented disabled individuals from accessing brick-and-mortar businesses (i.e., a lack of wheelchair ramps or accessible parking spaces). However, the use of the Internet to transact business has become virtually ubiquitous since the ADA’s passage almost 30 years ago. As a result, lawsuits under Title III have proliferated in recent years against private businesses whose web sites are inaccessible to individuals with disabilities. Indeed, the plaintiffs’ bar has formed something of a cottage industry in recent years, with numerous firms devoted to issuing pre-litigation demands to a large number of small to mid-sized businesses, alleging that the businesses’ web sites are not ADA-accessible. The primary purpose of this often-effective strategy is to swiftly obtain a large volume of monetary settlements without incurring the costs of initiating litigation.

Yet despite this upsurge in web site accessibility lawsuits—actual and threatened—courts have not yet reached a consensus on whether the ADA even applies to web sites. As discussed above, Title III of the ADA applies to “places of public accommodation.” A public accommodation is a private entity that offers commercial services to the public. 42 U.S.C. § 12181(7). The First, Second, and Seventh Circuit Courts of Appeals have held that web sites can be a “place of public accommodation” without any connection to a brick-and-mortar store.1 However, the Third, Sixth, Ninth, and Eleventh Circuit Courts of Appeals have suggested that Title III applies only if there is a “nexus” between the goods or services offered to the public and a brick-and-mortar location.2 In other words, in the latter group of Circuits, a business that operates solely through the Internet and has no customer-facing physical location may be under no obligation to make its web site accessible to users with disabilities.

To make matters even less certain, neither Congress nor the Supreme Court has established a uniform set of standards for maintaining an accessible web site. The Department of Justice (DOJ) has, for years, signaled its intent to publish specific guidance regarding uniform standards for web site accessibility under the ADA. However, to date, the DOJ has not published such guidance and, given the agency’s present priorities, it is unlikely that it will issue such guidance in the near future. Accordingly, courts around the country have been called on to address whether specific web sites provide sufficient access to disabled users. In determining the standards for ADA compliance, several courts have cited to the Web Content Accessibility Guidelines (WCAG) 2.1, Level AA (or its predecessor, WCAG 2.0), a series of web accessibility guidelines published by World Wide Web Consortium, a nonprofit organization formed to develop uniform international standards across the Internet. While not law, the WCAG simply contain recommended guidelines for businesses regarding how their web sites can be developed to be accessible to users with disabilities. In the absence of legal requirements, however, businesses lack clarity on what, exactly, is required to comply with the ADA.

Nevertheless, given the proliferation of lawsuits in this area, businesses that sell goods or services through their web sites or have locations across multiple jurisdictions should take concrete steps to audit their web sites and address any existing accessibility barriers.

Several online tools exist which allow users to conduct free, instantaneous audits of any URL, such as those offered at https://tenon.io/ and https://wave.webaim.org/. However, companies should be aware that the reports generated by such tools can be under-inclusive in that they may not address every accessibility benchmark in WCAG 2.1. The reports also can be over-inclusive and identify potential accessibility issues that would not prevent disabled users from fully accessing and using a site. Accordingly, companies seeking to determine their potential exposure under Title III should engage experienced third-party auditors to conduct individualized assessments of their web sites. Effective audits typically involve an individual tester attempting to use assistive technology, such as screen readers, to view and interact with the target site. Businesses also should regularly re-audit their web sites, as web accessibility allegations often arise in connection with web sites which may have been built originally to be ADA-compliant, but have fallen out of compliance due to content additions or updates.

Companies building new web sites, updating existing sites, or creating remediation plans should consider working with web developers familiar and able to comply with the WCAG 2.1 criteria. While no federal court has held that compliance with WCAG 2.1 is mandatory under Title III, several have recognized the guidelines as establishing a sufficient level of accessibility for disabled users.3 Businesses engaging new web developers to design or revamp their sites should ask specific questions regarding the developers’ understanding of and ability to comply with WCAG 2.1 in the site’s development, and should memorialize any agreements regarding specific accessibility benchmarks with the web developer in writing.

1 See Carparts Distrib. Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, Inc., 37 F.3d 12, 19 (1st Cir. 1994) (“By including ‘travel service’ among the list of services considered ‘public accommodations,’ Congress clearly contemplated that ‘service establishments’ include providers of services which do not require a person to physically enter an actual physical structure.”); Andrews v. Blick Art Materials, LLC, 268 F. Supp. 3d 381, 393 (E.D.N.Y. 2017); Doe v. Mut. of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999).

2 See Peoples v. Discover Fin. Servs., Inc., 387 F. App’x 179, 183 (3d Cir. 2010) (“Our court is among those that have taken the position that the term is limited to physical accommodations”) (citation omitted); Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1010-11 (6th Cir. 1997); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000); Haynes v. Dunkin’ Donuts LLC, 741 F. App’x 752, 754 (11th Cir. 2018) (“It appears that the website is a service that facilitates the use of Dunkin’ Donuts’ shops, which are places of public accommodation.”).

3 See, e.g. Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 907 (9th Cir. 2019) (holding that failure to comply with WCAG is not a per se violation of the ADA, but that trial courts “can order compliance with WCAG 2.0 as an equitable remedy if, after discovery, the website and app fail to satisfy the ADA.”).

© 2019 Vedder Price
This article was written by Margaret G. Inomata and Harrison Thorne of Vedder Price.
For more web-related legal issues, see the National Law Review Communications, Media & Internet law page.

When Good Sites Go Bad: The Growing Risk of Website Accessibility Litigation

For a growing number of companies, websites are not only a valuable asset, but also a potential liability risk. In recent years, the number of website accessibility lawsuits has significantly increased, where plaintiffs with disabilities allege that they could not access websites because they were incompatible with assistive technologies, like screen readers for the visually impaired.

If you have never asked yourself whether your website is “accessible,” or think that this issue doesn’t apply to your company, read on to learn why website accessibility litigation is on the rise, what actions lawmakers and the courts are taking to try to stem the tide, how to manage litigation risk, what steps you can take to bring your company’s website into compliance, and how to handle customer feedback on issues of accessibility.

The Growing Risk of Website Accessibility Litigation

In recent years, there has been a nationwide explosion of website accessibility lawsuits as both individual lawsuits and class actions. Plaintiffs have brought these claims in federal court under Title III of the Americans with Disabilities Act (ADA) and, in some cases, under similar state and local laws as well. In 2018, the number of federally-filed website accessibility cases skyrocketed to 2,285, up from 815 in the year prior. In the first half of 2019, these cases have increased 51.7% over the prior year’s comparable six-month period, with total filings for 2019 on pace to break last year’s record by reaching over 3,200.

Why Website Accessibility Litigation is on the Rise

The ADA was enacted in 1990 to prevent discrimination against people with disabilities in locations generally open to the public (known as public accommodations). The ADA specified the duties of businesses and property owners to make their locations accessible for people with disabilities, but it was enacted before conducting business transactions over the internet became commonplace. With the rapid growth of internet use, lawsuits emerged arguing that websites were places of public accommodation under the meaning of the ADA.

These claims have presented serious questions about whether, when, and how website owners must comply with the ADA. There is no legislation that directly sets out the technical requirements for website accessibility. And while the U.S. Department of Justice (DOJ) has stated that “the ADA applies to public accommodations’ websites,” it has not clarified exactly what standards websites must meet to comply with the law. In the absence of clear guidance, courts considering the question have frequently looked to the Web Content Accessibility Guidelines (WCAG), first developed by the World Wide Web Consortium (W3C) in 1999, but most recently updated in 2018.

In 2017, federal district courts in Florida and New York ruled that business websites failing to meet WCAG guidelines can violate Title III of the ADA, opening the door for litigants to bring an onslaught of claims in these courts. As a result, the rate at which these suits have been filed has skyrocketed, especially in New York and Florida, reaching businesses based throughout the U.S. and internationally. With the pace of these suits showing no signs of slowing, it is critical that every business operating a website consider how to manage the growing risk of litigation.

A Future Fix?
Some recent developments suggest that lawmakers or courts may soon stem the tide.  Congress may decide to enact precise standards, or the DOJ might give clarification or promulgate new rules. At the state level, lawmakers in New York have announced plans to address website accessibility suits based on an outcry from the business community.

Recent decisions in the Southern District of New York and the Fourth Circuit suggest that companies can successfully move to dismiss accessibility suits after mooting claims by taking swift remedial action or by showing that the plaintiff was neither eligible nor in a location to receive the goods or services provided on the website. In addition, the Eleventh Circuit and the Supreme Court may soon weigh in on whether Title III of the ADA categorically applies to all websites and apps.

How to Manage Litigation Risk for Website Accessibility

Knowing your level of exposure is an important first step. Individual risk is currently based on three factors:

  • Location: Brick and mortar locations, the delivery of products, or the performance of services in New York or Florida heighten a company’s exposure.
  • Industry: The present trend shows that retail, food service, hospitality, banking, entertainment industries, and educational institutions are especially at risk.
  • Current website structure: Sites with e-commerce functions or purchased from third-party developers not currently in compliance with WCAG standards are popular targets.

Unfortunately, it is often difficult to predict the cost and complexity of bringing a website into WCAG compliance-based simply on viewing it. An audit of the source code is often required. That said, you can start with a review of your site and develop plans and processes for accessibility. The first steps can include:

  • Assess current compliance: Use free online tools like wave and chrome vox and/or enlist a third-party audit to help you understand your current level of accessibility.
  • Plan for future compliance: Create an overall plan for achieving accessibility on a timeline that makes business sense.
  • Take immediate action: Adopt first-step improvements that can be implemented immediately, and create a process for considering accessibility before all future implementations.

Bringing your business into compliance with WCAG web standards does not need to be a standalone project. By integrating accessibility into regular updates, redesigns, and new pages, you can make meaningful improvements as part of your existing process. And if you don’t have a process for ongoing maintenance and updates on your website, consider whether your website is still looking fresh and modern and if it is still an accurate expression of your corporate brand.

Include in-house and third-party development teams as stakeholders in the process. Make accessibility a discussion in all new engagements and set expectations for accessibility going forward for new and existing teams:

  • Increase accessibility awareness: Make accessibility the topic of the next all-hands meeting with all stakeholders.
  • Ask third-party developers and vendors: Specifically, discuss your website’s current accessibility and which site options are readily available.
  • Integrate accessibility in projects: Ensure that agreements for ongoing and future site additions and upgrades incorporate accessibility. Seek representations, ask about compliance levels, and consider seeking warranties and indemnification.

Good customer care is always good business, but making thoughtful use of feedback on your website is a critical step to reducing your risk of an accessibility lawsuit. Everyone on the customer care team should be trained on the risk posed by non-compliance, and they should be empowered to carefully consider and respond to website feedback. The development team should also ensure that the site, whatever its level of WCAG compliance:

  • Encourages feedback: Provide a way for users to give feedback on and receive assistance with accessibility.
  • Supports engagement with feedback: Document, consider, and carefully respond to user feedback.
  • Reflects expert input: When receiving feedback, notices, complaints, or threatened litigation, consult with legal counsel and website accessibility experts as early as possible to ensure that your next steps limit potential liability.

Website accessibility is a fast-moving area of law that is primed for reform. With an increasing number of conflicting decisions and the possibility of new legislation or Supreme Court guidance, we will be closely monitoring this topic in the coming years.

©2019 Pierce Atwood LLP. All rights reserved.

Does Asking About Employee’s Alcohol Use Violate the ADA?

In Lansdale v. UPS Supply Chain Solutions, Inc., No. 16-4106 (July 23, 2019), the United States District Court for the District of Minnesota concluded that a jury had sufficient evidence to find that an employer’s discharge of an employee for suspected corporate credit card abuse following an investigation in which the employee was asked about his alcohol use and drinking habits did not constitute disability discrimination in violation of the Americans with Disabilities Act (ADA) or corresponding state law.

Background

The employer had a policy prohibiting employees from using corporate credit cards for personal purchases and providing inaccurate expense reports. Following an audit that revealed discrepancies between the employee’s corporate credit card expenses and expense reports, the employer conducted an investigation. During the investigation, the employer interviewed the employee, who indicated that he had used his corporate card for personal charges in order to hide his alcohol consumption from his wife. During the interview, the employer asked the employee several questions about his drinking habits and how his drinking affected his health and family.  The following morning, the employer discharged the employee.

The employee contended that he had been asked impermissible disability-related questions and that his employment had been terminated based on his responses. Under the ADA, an employer “shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.”

Analysis

The court found that the jury had been provided sufficient evidence to find that, even if the questions posed to the employee had been disability-related inquiries, the inquiries had not caused the termination of his employment; rather, the employee’s acknowledgement that he had used his corporate credit card for personal use was a sufficient evidentiary basis for a jury to find that this admission by itself was the reason for the termination.

Additionally, while alcoholism may constitute a disability under the ADA and corresponding state laws, this case confirms that an employee so claiming must still establish that he or she had an impairment that substantially limited one or more major life activities, or that the employer regarded him or her as having such an impairment, and that it was a motivating factor in the termination decision.

Conclusion

Here, the court found that a reasonable jury, weighing the credibility of the witnesses—in  particular, the employee’s own testimony about his alcohol consumption and how it impacted him, his wife’s testimony that he drank nightly, and his doctor’s testimony that he drank more than what was recommended (though the doctor never applied any diagnostic criteria or noted any serious concerns)—could have found that the employee failed to prove that he suffered from an impairment that substantially limited one or more of his major life activities, that the employer regarded him as having such an impairment, and that it was a motivating factor in the termination decision. In the end, the employee’s belated attempts to claim a disability to excuse his corporate credit card and expense report abuses were insufficient to establish a disability discrimination claim.

© 2019, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
For more ADA questions see the Labor & Employment Law page on the National Law Review.

No Soup for You!

An 11-year-old boy required to eat his homemade, gluten-free chicken sandwich outside a restaurant on a school field trip will get to take his case to trial.

The boy sued the owner of the Shields Tavern in Colonial Williamsburg for violating the Americans with Disabilities Act and Virginia law. The tavern offered to make the boy a gluten-free meal, but the boy and his father declined. The boy suffers from a serious gluten allergy, and had gotten ill from cross contamination at other restaurants. The tavern then asked the family to eat outside, citing a public health concern.

In a divided decision, the Fourth Circuit allowed the case to proceed to trial. The court found factual issues remained about whether the boy’s gluten allergy created a disability, and whether his request to eat his own food was necessary, reasonable, and would fundamentally alter the nature of the restaurant, which tries to create a historic colonial experience for visitors.

Judge J. Harvie Wilkinson III wrote a blistering dissent, accusing the court of establishing an “almost per se rule” that forces restaurants “to give up control over their most valuable asset: the food they serve.” Read the opinion here: J.D. v. Colonial Williamsburg Found., No. 18-1725 (4th Cir. May 31, 2019).

©2011-2019 Carlton Fields, P.A.
Post By David A. Karp of Carlton Fields
Read more about Disability Rights on the National Law Review Civil Rights page.

Federal Appellate Courts Ring In the New Year by Taking Up Website and Mobile Application Accessibility

As expected given the extreme volume of website accessibility lawsuits filed over the last few years, in the first few weeks of the new year, United States’ Circuit courts have finally begun to weigh in on the law as it pertains to the accessibility of websites and mobile applications, and the results are generally disappointing for businesses.

Background

The U.S. Department of Justice (“DOJ”) has long taken the position that Title III of the Americans with Disabilities Act (“Title III”, “ADA”) applies to both websites and mobile apps, however, its withdrawal of Advanced Notice of Proposed Rulemaking (“ANPRM”) on December 26, 2017 and its September 25, 2018 letter (which effectively passed the onus to Congress to issue legislation on website accessibility standards), have prompted an onslaught of private demand letters and lawsuits filed in both state and federal court against businesses based on the theory that their websites are inaccessible to individuals with disabilities. As those who have confronted these lawsuits may know, the current state of the law has led to businesses being subject to duplicative actions in different jurisdictions, primarily, New York, California, and Florida. Last fall, both the Ninth and Eleventh Circuit courts held oral argument on website accessibility cases, with both panels expressing similar concerns about the current uncertainty in the law and how one can achieve and confirm a sufficient level of accessibility.

The Ninth Circuit Reverses Domino’s

Yesterday, in Robles v. Domino’s Pizza, the Ninth Circuit held that Title III applies to both websites and mobile applications. This decision reversed the district court’s dismissal of a class action lawsuit which asserted that Domino’s Pizza violated the ADA and California’s Unruh Civil Rights Act (UCRA) by failing to make its website and mobile app accessible to individuals who are blind or visually impaired. While the district court’s decision in Robles was always considered an outlier, the Circuit Court’s decision is significant because the Ninth Circuit considered, and rejected, defenses which have traditionally been advanced by businesses that have litigated website accessibility matters. For example, the Court refused to accept as a matter of law/summary judgment that providing a telephone hotline is sufficient alternative method for a company to satisfy its obligations under Title III to customers who are blind or have low vision (noting it was an issue of fact that required specific and contextual supporting factual evidence). The Court also rejected the concept that imposing liability in this context violates companies’ due process rights because DOJ has failed to issue clear technical standards for compliance.

At the outset, the Ninth Circuit agreed with the district court that Domino’s is a “place of public accommodation” and accordingly, the ADA applies to its website and mobile app, thereby requiring it to provide auxiliary aids and services to make its visual materials available to individuals who are blind. Drawing upon prior district court decisions from within the Ninth Circuit, the Court focused on the “nexus” between Domino’s website and mobile app and its physical restaurants, and found that the alleged inaccessibility of the website and app unlawfully prevents customers from accessing the goods and services at Domino’s physical locations. Notably, the Ninth Circuit declined to determine whether the ADA covers websites or mobile apps whose inaccessibility does not impede access to the goods and services at a physical location, reinforcing courts in the circuit’s position more narrowly construing the ADA to apply only to websites with a nexus to a brick-and-mortar location (as opposed to the more expansive positions taken by district courts in Massachusetts, New York, and Vermont).

The Circuit Court also noted that after the plaintiff filed the lawsuit, Domino’s website and mobile app began displaying a telephone number to assist customers who are visually impaired and who use a screen reading software. The Ninth Circuit held that a company’s use of a telephone hotline presents a factual issue, and, simply having a hotline, without any discovery regarding its effectiveness, is insufficient to award summary judgment to a company and determine that it has complied with the ADA. (This underscores that proving the sufficiency of an alternative means of access to a website – short of making the website itself accessible – could prove to be a costly endeavor.)

Citing DOJ’s failure to issue technical standards and withdrawal of ANPRM, Domino’s had argued that: (i) imposing liability would violate due process because it lacks fair notice of the technical standards that it is required to abide by; and (ii) the complaint was subject to dismissal under the doctrine of primary jurisdiction pending DOJ’s resolution of the issue. The Ninth Circuit rejected both arguments. First, the court held that DOJ’s failure to issue guidance on the specific standards or regulations does not eliminate a company’s obligation to comply with the ADA and its obligation to provide “full and equal enjoyment” to individuals with disabilities. Second, the Ninth Circuit held that the district court erred by invoking the doctrine of primary jurisdiction in order to justify its dismissal of the complaint without prejudice pending DOJ’s resolution of the issue. The court found that DOJ’s withdrawal of ANPRM meant that undue delay in resolving this issue “is not just likely, but inevitable,” which required the court to weigh in.

The Robles court did not rule on whether Domino’s website and mobile app comply with the ADA, and did not provide any guidance on how a company’s website or mobile app would comply with the ADA.

The Fourth Circuit Places Minor Restrictions On Standing

Two weeks ago, in Griffin v. Department of Labor Federal Credit Union, the Fourth Circuit considered another defense that has been increasingly asserted by businesses: whether plaintiff has standing to sue. In Griffin, the court rejected the plaintiff’s standing to bring a lawsuit against a Credit Union where he was not eligible for membership, he had no plans to become eligible to be a member, and his complaint contained no allegation that he was legally permitted to use the site’s benefits. The court also held that plaintiff’s status as a tester was insufficient to create standing where he was unable to plausibly assert that returning to the website would allow him to avail himself of its services. Unfortunately, this is an exceedingly narrow holding which should do little to undercut the rampant stream of filings by serial ADA website plaintiffs, as the heightened standard for joining a credit union would not apply to most other industries/websites. Therefore, while technically a victory for businesses, this decision did not issue the significant blow to serial plaintiffs that defendants had hoped would provide a clear defense moving forward.

Looking Ahead

We next await the holding of the 11th Circuit in Winn-Dixie. Unfortunately, it does not appear that, under this administration, we should expect DOJ to promulgate website accessibility guidelines. Similarly, with the government currently shut down (and other issues likely considered more pressing to the general public upon its reopening), it is extremely unlikely that Congress will amend the ADA or promulgate new legislation clarifying these issues in the near future.

Therefore, for the time being, businesses should expect to continue to face the seemingly endless stream of serial plaintiff website accessibility demand letters and lawsuits. As we have repeatedly noted, the best way to avoid falling prey to such a suit is to achieve substantial conformance with WCAG 2.1 Levels A and AA (confirming such status by human-based code and user/assistive-technology testing). Moreover, based upon the scope of the Ninth Circuit’s decision in Domino’s, these matters may soon expand to include mobile apps as well. Therefore, to the extent businesses had, to date, treated mobile application accessibility as a best practice, they should now consider the issue with increased urgency.

 

©2019 Epstein Becker & Green, P.C. All rights reserved.

DOJ Settlement Suggests Push to Expand ADA Coverage to All Websites and Apps

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The chance of future DOJ investigations justifies companies’ reviews of customer-oriented websites and apps for accessibility.

As consumers continue to use the Internet and their smartphones for their shopping in astonishing numbers, especially on this Cyber Monday, a recent Department of Justice (DOJ) settlement agreement raises questions and potential serious implications for any company with customer-oriented websites or mobile applications. The settlement agreement requires Ahold USA., Inc. and Peapod, LLC (Peapod) to make the www.peapod.com website and Peapod’s mobile applications accessible to the disabled, including persons with vision, hearing, and manual impairments. The settlement agreement demonstrates that the DOJ is reviewing and/or monitoring websites and mobile apps for accessibility and remains aggressive in its push to extend the requirements of Title III of the Americans with Disabilities Act (ADA) to all websites and mobile apps—even when the sites are unrelated to actual physical places of public accommodation. According to the settlement agreement, the DOJ concluded that www.peapod.com was inaccessible to the disabled after initiating a “compliance review” authorized by Title III and its implementing regulations.[1] Peapod, however, contested the DOJ’s conclusion that www.peapod.com and Peapod’s mobile apps were not ADA compliant.

The settlement agreement is particularly noteworthy because www.peapod.com is a purely online grocery delivery service, unrelated to a “brick and mortar” physical place of public accommodation. Most courts considering application of the ADA to websites require a website to have a “nexus” to a physical place.[2] In the past, the DOJ has required websites and mobile apps to be accessible—for example, in a March 2014 consent decree with H&R Block. However, unlike the H&R Block consent decree, which involved a website and mobile apps with a nexus to physical places, the Peapod settlement agreement requires that a website and apps with no nexus to a physical place be made accessible to the disabled. The Peapod settlement agreement therefore shows that the DOJ’s Notice of Proposed Rulemaking (NPRM), which is expected in March 2015, may require—in the words of the Abstract for the DOJ’s NPRM—the websites and apps of “private entities of all types,” even “[s]ocial networks and other online meeting places” to comply with the ADA.

The settlement agreement also indicates which standards the DOJ’s regulations eventually may require websites and mobile apps to meet. The settlement agreement requires www.peapod.com and Peapod’s mobile apps to comply with the Web Content Accessibility Guidelines 2.0, Level AA (WCAG 2.0 AA). The DOJ has required compliance with the WCAG 2.0 AA in the past, including in the H&R Block consent decree. The Peapod settlement agreement further requires Peapod to designate a Website Accessibility Coordinator to coordinate compliance with the agreement; adopt a Website and Mobile Application Accessibility Policy; post a notice on its home page on its accessibility policy, which would include a toll-free number for assistance and a solicitation for feedback; annually train website content personnel on conforming Web content and apps to the WCAG 2.0 AA; seek contractual commitments from its vendors to provide conforming content, or (for content not subject to a written contract) seek out content that conforms to the WCAG 2.0 AA; modify bug fix priority policies to include the elimination of bugs that create accessibility barriers; and conduct automated accessibility tests of the website and apps at least once every six months and transmit the results to the government. The settlement agreement, which stays in effect for three years, additionally provides that every 12 months, the Website Accessibility Coordinator must submit a report to the government that details Peapod’s compliance or noncompliance with the agreement. Peapod is not the only entity that will conduct testing under the settlement agreement. At least once annually, individuals with vision, hearing, and manual disabilities will test the usability of the Web pages. Notably, however, the settlement agreement does not impose damages or a civil penalty on Peapod.

There is a chance that the DOJ’s eventual regulations will differ from the standards to which the DOJ requires Peapod to conform. The settlement agreement accounts for that possibility. It states that if the DOJ promulgates final regulations on website accessibility technical standards during the term of the settlement agreement, the parties must meet and confer at either’s request to discuss whether the agreement must be modified to make it consistent with the regulations.

[1]. See 42 U.S.C. § 12188(b)(1)(A)(i) (“The Attorney General . . . shall undertake periodic reviews of compliance of covered entities under this subchapter.”); 28 C.F.R. § 36.502(c) (“Where the Attorney General has reason to believe that there may be a violation of this part, he or she may initiate a compliance review.”).

[2]. See, e.g., Nat’l Fed. of the Blind v. Target Corp., 452 F. Supp. 2d 946, 953–56 (N.D. Cal. 2011).

ARTICLE BY

Anne Marie Estevez
Beth S. Joseph
Christopher K. Ramsey
OF
Morgan, Lewis & Bockius LLP