Articles Posted in ADA Compliance and Defense

01 January 2015

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ADA Issues on Websites: Department of Justice Poised to Adopt Accessible Website Standards

Since at least 2000, the U.S. Department of Justice (DOJ) has been advocating standardized website development and content to promote access to blind and low vision internet users.  In 2013, the DOJ withdrew its proposed Advanced Notice of Proposed Rule Making (ANPRM) which would have established standardized internet protocols by adopting the Web Content Accessibility Guidelines (WCAG) 2.0.

In 2006, we reported on the landmark case National Federation of the Blind v. Target Corporation, regarding “cyber accessibility” (a term we coined). Target was the first case in which any court ruled that the ADA applied to a retail website. With limited exception, the few courts that had addressed the subject uniformly held that the ADA only applied to brick and mortar architectural barriers, not to internet retail channels (Access Now, Inc. v. Southwest Airlines.)

Target argued that it complied with the ADA because its retail stores were fully compliant and that its website channel was not covered by the ADA standards.  The Court disagreed.  Plaintiffs’ class certification motion was granted.  Target paid a hefty sum and implemented WCAG standards to make its website accessible to blind and low vision customers.  The Target decision was followed with Rendon v. Valleycrest Productions Ltd.  Since Target, the DOJ and other agencies have imposed accessibility requirements for web content and services in Consent Decrees and Settlement Agreements with such industry leaders as Amazon.com, Netflix, H&R Block, Hilton International and others.

Website standards are imminent

The DOJ’s issuance of website standards is not a matter of “if”, but “when.” The regulations will “establish requirements for making goods, services, facilities, privileges, accommodations, or advantages” offered by state and local government agencies and businesses via the Internet, “specifically at sites on the World Wide Web,” accessible to persons with disabilities.

On November 25, 2014, the DOJ Civil Rights Division issued its Advance Notice of Proposed Rule Making entitled “Nondiscrimination on the Basis of Disability: Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations.”  These revised regulations, when adopted, will implement web site development standards which the DOJ has been working on for nearly a decade. CONTINUE READING →

07 November 2014

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ADA Lawyer: FedEx sued for failure to provide
effective auxiliary aids and services for hearing and speech impaired
employees and job applicants

by

Marty Orlick | ADA Compliance & Defense Lawyer

Effective communication with blind, low vision, deaf, hard-of-hearing, speech impaired and cognitively challenged employees, potential employees, customers and guests is one of the fundamental tenets of the Americans with Disabilities Act of 1990 (“ADA”). For nearly 25 years, the ADA has been the most sweeping civil rights legislation designed to provide persons with disabilities full and equal access to public accommodations, employment and potential employment.

The DOJ . . . and private litigants have expanded litigation against companies who fail to provide a wide variety of auxiliary aids and services to effectively communicate with guests, customers, employees and job applicants. FedEx is the latest highest profile lawsuit.

In its latest effort to enforce the ADA’s effective communication requirements, the Equal Employment Opportunity Commission (“EEOC”) filed a lawsuit in a Baltimore federal court against FedEx, charging the overnight delivery giant with failing to provide basic auxiliary aids and services to effectively communicate with its deaf, hard-of-hearing and speech impaired employees and job applicants.

The suit accuses FedEx of not providing Qualified American Sign Language interpreters, Communications Access Realtime Translation (“CART”) services or closed captioned training videos during new hire orientation or staff and safety meetings to its employees and job applicants in violation of the ADA’s requirement that businesses provide such auxiliary aids and services. CONTINUE READING →

16 September 2014

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The recent Uber lawsuit

On September 9, 2014, Uber Technologies was sued in Federal Court in San Francisco for violating the Americans with Disabilities Act (ADA) and California’s Unruh Act. The suit arose from the claim that UberX drivers refused to allow blind riders to bring their guide dogs. For a copy of the complaint, click here to see Natl Federation of the Blind v. Uber Technologies.

This is just the latest in an long history of complaints or enforcement actions involving the legal requirements concerning “service animals” under the ADA and corresponding state laws such as California’s Unruh Act.

Why public facilities are subject to these service animal rules

Like Uber taxis, all hotels, restaurants, spas, retail facilities, movie theatres, and sports and entertainment venues are places of public accommodation. As such, they are expressly subject to the ADA and corresponding state laws.

Because so many people ask us about the “service animal” issues, we thought it might be helpful to provide our industry friends with some guidelines on the major questions in this area through a series of frequently asked questions or FAQs about this subject.

FAQs about the ADA’s legal requirements for service animals

by

Jim Butler & Marty Orlick
ADA Defense & Compliance Lawyers

Here are some of the most Frequently Asked Questions on service animal issues under the Americans with Disabilities Act or ADA.

What qualifies as a “service animal?”

Businesses . . . may ask only two questions of individuals regarding their service animals . . .
Under the ADA, a dog or miniature horse that “is individually trained to do work or perform tasks for the benefit of an individual with a disability” qualifies as a service animal. The “work” or “tasks” performed by a service animal must be directly related to the individual’s disability. For example, the service animal might pull a wheelchair, guide a visually impaired person, or assist an individual with psychiatric disabilities.

Comfort animals and pets are NOT service animals. Comfort animals merely provide emotional support and are not individually trained to assist with a disability.

What can you ask a customer who enters your business with an animal?

Businesses and their representatives who come in contact with the public may ask only two questions of individuals regarding their service animals: CONTINUE READING →

06 January 2014
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Hotel Lawyer with observations on the DOJ’s ADA investigation of Starwood Hotels and The Phoenician, and the recent ADA Settlement Agreement.

In January 2009, the Hotel Law Blog reported the Department of Justice’s (DOJ) Americans with Disabilities Act (ADA) Time Square Manhattan Theater District sweep of nearly 60 hotels. See ADA Defense Lawyers: ADA Sweeps by Department of Justice – Coming to a theater district or hotel near you soon? At that time, Marty Orlick, Chair of JMBM’s ADA Compliance and Defense Group – who represented an institutional investor/owner that owned an off-Broadway boutique hotel caught in the dragnet – opined that the DOJ’s investigations of America’s hotels and restaurants would only accelerate. Since then, the DOJ’s efforts to enforce accessibility at tourist destinations around the country have intensified.

In the article below, Marty brings us up to speed on the DOJ’s enforcement activity in the hospitality sector and highlights the ADA lessons to be learned by the recent agreement between the DOJ and Starwood Hotels & Resorts Worldwide Inc. and the Phoenician Golf and Resort. Marty also questions how in this investigatory and litigation environment, Starwood or The Phoenician can find themselves targets of a DOJ sweep.

CONTINUE READING →

6 November 2013

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ADA Defense lawyer: Pool lift litigation proliferates. Why enterprise-wide compliance is the best solution.

It has been almost a year since the Department of Justice’s ADA requirement for fixed or permanent pool lifts in “places of public accommodation” has been in effect. Now a fact (and cost) of doing business in the hospitality industry, many of our clients and friends in the industry are asking, “what’s the result of all this activity, what’s going on now?” Well, after all the lobbying, education, handwringing, headaches, counseling, and expense, we can say …. things went pretty much as predicted:

• Many hotel owners complied with the requirements and were prompted to take a comprehensive look at all ADA requirements and bring their properties and procedures into enterprise-wide compliance.
• Others are getting sued by serial plaintiffs, armed with a new reason to sue hotel owners under the ADA.

Marty Orlick, Chair of JMBM’s ADA Compliance and Defense Group and senior member of its Global Hospitality Group® has been helping hotels, restaurants, retailers, banks and other commercial properties bring their properties and operations into enterprise-wide ADA compliance for years. Here’s his report on what’s going on.

CONTINUE READING →

8 April 2013

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ADA defense lawyer: Striking the right balance

The ADA defense and compliance team at JMBM has long advocated compliance with the Americans with Disabilities Act, commonly known as the ADA. ADA compliance is good business and it is the law. (See articles at www.HotelLawyer.com under HotelLawBlog/ADA Defense & Compliance.)

But we have all seen some terrible abuses of this law in the hands of certain plaintiffs and attorneys who literally file dozens of cases. I have a service that follows the filing of ADA complaints, and recently, one lawyer filed 18 cases in one day against various small businesses for purported ADA violations.

It seems as if both courts and legislatures are getting fed up with abusive practices by some greedy or overzealous advocates. We recently reported on action by the California legislature in “Finally! Relief from abusive ADA litigation in California?“)

Today, we want to recognize a recent federal court decision that reflected outrage at abusive plaintiffs and their lawyers which detract from the spirit and noble purpose of the ADA. We think this kind of insight and approach will help to strike a better balance that we believe was the intent of the ADA.

Today, my partner Marty Orlick provides us with a trenchant summary of the case, including some insightful quotes from the court’s opinion.

CONTINUE READING →

20 January 2013

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Hotel Lawyer with some practical advice on what do when the Department of Justice knocks on your door with an ADA “survey”

Actually, the DOJ normally mails you the ADA survey form. But it does come down to the same thing.

By the time you get a DOJ survey, a lot of your flexibility is gone, but it is not too late to protect yourself if you seek experienced counsel immediately.

We are already seeing an increase in public and private enforcement of the ADA. While many are being distracted by pool lifts and other new ADA requirements, private advocacy groups and the DOJ keep banging away on the basics.

Examples? One day this past week, a single ADA plaintiff’s lawyer filed 19 lawsuits in the Los Angeles federal court (Central District of California). And, here is the latest on what is going on with the DOJ enforcement action in New York City with the top-rated Zagat restaurants.

CONTINUE READING →

14 January 2013

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Hotel ADA Defense & Compliance Lawyer with some tips on what you should do now.

January 31, 2013 is fast approaching and once again our phones are ringing off the hook and the emails are streaming in. Our hospitality clients want to know the latest action being taken by the Department of Justice (“DOJ”) on the Americans with Disabilities Act requirements for pool lifts at pools and spas at hotels, resorts, country clubs, golf and tennis facilities and other places of “public accommodation.”

So here is where things stand.

The pool lift controversy continues to make a splash,
but is it a diversion from enterprise-wide ADA compliance?

The latest update is that the DOJ has not yet further delayed the January 31, 2013 implementation date.

The DOJ stunned both the hospitality industry and pool manufacturers when it proclaimed that only “fixed” or permanent pool lifts would comply with the new 2010 ADAAG Standards (effective March 21, 2012) to the extent “readily achievable.” Portable pool lifts installed on an as needed basis are prohibited unless it is not readily achievable, in which event a portable lift may be used if it is properly anchored.

Due to the efforts of industry groups like American Hotel & Lodging Association and pool and spa organizations, the DOJ postponed the pool lift effective date from March 21, 2012 to January 31, 2013.

The DOJ’s published position is that pool lifts need to be available at each pool and spa (although only one lift is required at a “cluster” of spas) during all pool and spa operating hours. The DOJ has mandated that only “fixed” pool lifts may be installed at each location unless the business can establish that such installation is not “readily achievable.” In such event, a portable pool lift may be permitted if it is properly secured and in place during operating hours.

All indications are that the DOJ remains intransigent that the pool lift requirement will be enforced on January 31, 2013 and pool lifts must be “fixed” to the extent readily achievable. A determination of what is “readily achievable” requires a legal opinion based on the facts of each case.

The ADA pool lift requirement — Situation summary

In September 2012, the DOJ announced it would extend the fixed pool lift requirement to January 31, 2013. Since then, the pool lift controversy has drawn little public attention, until now. Industry groups continue to work with legislators and DOJ officials to provide a greater degree of certainty and “real world” practicality to the pool lift controversy. Those close to the source believe that the DOJ will affirm the implementation date and its position that fixed pool lifts are required where readily achievable. The pool lift train left the station and those in the know believe the DOJ and disabled advocacy groups will enforce the “fixed” pool lift requirement January 31, 2013. We know of several lawsuits filed over the lack of pool lifts after March 21, 2012. We also know of a number of plaintiff’s lawyers who have been waiting for February 1, 2013 to make their splash into pool lift accessibility litigation.

CONTINUE READING →