Is Your Website ADA Compliant?

This last year alone, federal courts in Florida, California, and New York have ruled that employers that provide public accommodations, including Winn-Dixie, Five Guys, and Blick Art Materials, must make their websites accessible to disabled consumers.

Despite the fact that 19 percent of the population in the United States (or about 56.7 million Americans) have a disability, most companies do not factor in website accessibility when designing their websites and related smartphone applications. But since 2006, when Target settled a class action lawsuit in California alleging Target.com was inaccessible to the blind in violation of Title III of the Americans with Disabilities Act (ADA), the issue of whether the law applies to commercial websites is a growing concern for small and large businesses alike.

Briefly, Title III of the ADA requires accessibility for disabled persons to places of public accommodation, barring businesses from discriminating “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation . . .” 42 U.S.C. § 12182(a). Increasingly, disabled plaintiffs have argued that the ADA requires any employer that utilizes a website providing access to goods and services to make that website accessible.

However, the law remains somewhat unsettled. Federal courts are split on the threshold question of whether websites are places of public accommodation and, if they are, what steps are required to make them accessible under the ADA.

The 3rd, 9th and 11th Circuit courts that have concluded that places of public accommodation must be physical spaces have held that the goods and services provided by a public accommodation must have a sufficient nexus to a physical place in order to be covered by the ADA. See, e.g., Earll v. Ebay, Inc., 599 Fed. App’x. 695, 696 (9th Cir. 2015) (the term “place of public accommodation” requires some connection between the good or service alleged to be discriminatory and a physical place). In the Target case, the Northern District of California held that where a website is heavily integrated with physical store locations and operates as a “gateway” to the physical store locations, the website is a service of a public accommodation and is covered by the ADA. See Nat’l Fed’n of the Blind v. Target Corp., 452 F.Supp.2d 946, 953-55 (N.D. Cal. 2006).

But the 1st, 2nd and 7th Circuit courts apply the ADA more broadly to include websites that lack any connection to a physical space. As one court within the 2nd Circuit explained, with the internet central to every aspect of the “economic and social mainstream of American life,” excluding from the ADA any business that sells services through the internet “would run afoul of the purposes of the ADA and would severely frustrate Congress’s intent that individuals with disabilities fully enjoy the goods, services, privileges, and advantages available indiscriminately to other members of the general public.” Nat’l Fed’n of the Blind v. Scribd Inc., 97 F. Supp. 3d 565, 575–76 (D. Vt. 2015) (internal citation and quotation omitted).

In July 2010, the U.S. Department of Justice (DOJ) published an advance notice of proposed rulemaking seeking comment on the possibility of regulating websites as places of public accommodation under the ADA. Noting that “[i]ncreasingly, private entities are providing goods and services to the public through websites that operate as places of public accommodation,” the DOJ took the position that it was only logical to bring websites under the same regulation as physical, brick-and-mortar stores. However, since the DOJ began its rulemaking process, it has postponed issuance of final rules year after year. That said, the DOJ has filed statements of interest in numerous cases filed against employers with websites and entered into consent decrees with certain employers, including Peapod and H&R Block, using as a guide compliance standards developed by the World Wide Web Consortium called the “Web Accessibility Guidelines” or “WCAG 2.1 AA.”

While the federal courts remain split and the DOJ continues to delay the rulemaking process, employers should take a second look at their websites and mobile applications. The cases mentioned here are part of a growing trend, and while website accessibility may seem expensive, the alternative costs of litigation that may result – not to mention lost customers – are comparable.

Anat Maytal is President of the Deaf and Hard of Hearing Bar Association. She graduated from Harvard University and Boston University School of Law. She is a litigator in New York.

Disclaimer: The views and opinions expressed in this post are those of the author and do not necessarily reflect the official policy or position of the Deaf and Hard of Hearing Bar Association (DHHBA). This post does not constitute legal advice and does not create an attorney-client relationship with anyone. If you need to contact an attorney, please visit our Find A Lawyer page.

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A Brief History of Deaf and Hard of Hearing Attorneys

If you are visiting our website, then you probably have an interest in deaf and hard of hearing lawyers. Perhaps you are deaf or hard of hearing and need legal representation. Or perhaps you are, or know of someone who is, deaf or hard of hearing and considering going to law school.

You most likely know that a good number of deaf lawyers exist. But you may not know how they “made it” as lawyers.

In 2011, I published a law review article entitled Breaking the Sound Barriers: How the Americans With Disabilities Act and Technology Have Enabled Deaf Lawyers to Succeed. In the article, I discussed the history of deaf lawyers from the mid-nineteenth century to (then) present-day. While much had been written about individual deaf lawyers prior to that time, no one had pulled together their stories in a single written work. While researching my article, I was struck by how often people discussed their experiences and talked about the same issues they faced. Later, I was equally struck by how often people wrote to me saying “Hey! That happened to me, too!” after they read my article.

Much of the history of deaf and hard of hearing lawyers parallels the history of deaf and hard of hearing people in general. As technology progressed, and as accessibility laws were enacted, the opportunities for deaf and hard of hearing lawyers (and deaf and hard of hearing people in general) increased and the barriers we faced were broken. Understanding how we got to this point is crucial to ensuring that the progress continues.

And progress has continued. When I wrote my article in 2011, there was only a handful of deaf lawyers who were admitted to the United States Supreme Court Bar. Today, there are over thirty. It is only a matter of time before a deaf or hard of hearing lawyer argues a case before the U.S. Supreme Court. In fact, I argued a case before a U.S. Supreme Court justice earlier this year, but it was before the U.S. Court of Appeals for the First Circuit, not the U.S. Supreme Court.

Since my article was published, more stories about our experiences have been written. In 2013, deaf lawyer Gerald Shea wrote his autobiography, Song Without Words: Discovering my Deafness Halfway Through Life. Earlier this year, deaf lawyer Melissa Felder Zappala was featured in the American Bar Association magazine. A little before that, the Utah Deseret News did a profile on Jared Allebest.

Many more stories exist. Perhaps someday I will update my 2011 article to include their stories.

And of course, like every demographic, some deaf lawyers have decided to diversify their legal practice and experiences to include other interests. Such is the case for Melissa Kubit Angelides when she joined the St. John’s University Law School Office of Career Development.

The same is true for Amanda Upson, who is now a film producer.

John Stanton became deaf in early childhood. He graduated from Dartmouth College and from the Georgetown University Law Center. After over a decade working in private practice, he is now an attorney for the U.S. Department of Justice. He may be contacted at [email protected].

Disclaimer: The views and opinions expressed in this post are those of the author and do not necessarily reflect the official policy or position of the Deaf and Hard of Hearing Bar Association (DHHBA). Additionally, this post does not constitute legal advice and does not create an attorney-client relationship with anyone. If you need to contact an attorney, please visit our Find A Lawyer page.

Movie Theater Captioning, Part 4 of 4: We’re Not Done Yet

Open captioning is great. The captions are right there on the screen. We don’t need to self-identify and pick up a viewing device. The theaters don’t need any special equipment – they just select the open-caption option from the digital data package, and the captions appear for that showing.

While we like open captions, the theaters don’t – or at least, they haven’t. Their concern is that a lot of hearing people find open captions distracting. And they have some old data to back this up – prior to digital conversion, Regal showed some open-captioned movies at off hours, and attendance at the captioned showings was lower than attendance at non-captioned showings.

My offhand observation is that people actually exposed to open captioning don’t find it all that offensive, but a lot of people think they won’t like it. From the theaters’ point of view, that’s actually the worst possible situation, because those folks won’t give open-captioned movies a try. And from our point of view, the problem is that a number of the people who think open captioning would be a distraction wear judicial robes or are federal regulators. So even when we win smashing victories for closed captioning, we lose on open captioning.

And yet . . . there is hope. I’ve always taken the position that lower attendance at individual open-captioned showings doesn’t mean much, and that the real issue is whether some open-captioned showings reduce overall theater revenue. My hypothesis has always been that if open-captioned showings are publicized in advance, people who don’t want open captions will go to a different movie at the multiplex or go to a different showing, in which case the theaters don’t lose any money. Conversely, people who really do want and need open captioning, even if relatively few in number, represent revenue that the theaters would otherwise not realize.

There is interesting data available. Hawaii passed a law effective in 2016 requiring the larger theater chains in that state to offer some open-captioned showings. (There is some question about whether all the Hawaii lawmakers realized that the theaters already were offering closed captioning.) The affected theaters in Hawaii did a nice job implementing that law in good faith – the open-captioned showings were at different times, not all at off hours, and it appeared possible to see essentially any movie with open captioning at some point during the week.

Here’s the interesting thing – even though the Hawaii law expired at the end of 2017, the theaters there appear to still be offering some open-captioned showings. Other theaters in other parts of the country are doing the same. So even though the legal battle may have been lost, the public-relations and customer-service approaches appear workable, and in fact, appear to be gaining ground. It certainly helps to have high-profile individuals like Nyle DiMarco speak out in favor of open captioning. (I would suggest that any open-captioned movie Nyle DeMarco planned to attend would have a terrific turnout.)

There are ways captioning can be made to work for everyone. A typical movie is shown 31 times per week – four showings each weekday, five each weekend day. (Friday is a weekend day for movies.) People with hearing loss represent about 8% of the United States population, and we vastly prefer open captioning. Would it be too much to ask theaters for two open-captioned showings at each auditorium each week? And would it be too much to ask that those showings be staggered, so that there is essentially always at least one open-captioned movie at the multiplex, and at least one opportunity to see each movie on a weekend?

I think the key here is to be reasonable, and recognize the legitimacy of the theaters’ concerns. We cannot expect everyone to “live in our world” and accept open captioning immediately, nor can we expect the theaters to accept reduced attendance on the opening weekend of a real blockbuster, when people who don’t want open captions really might go elsewhere. But by week three or four, even blockbusters aren’t filling the auditorium any longer, and open-captioned showings could be scheduled at times that wouldn’t reduce overall theater attendance.

One great thing about the ADA, as we all know, is that it does not trump state or local laws more protective of people with disabilities. If we don’t like what ADA gives us, we can try to get our state or city to do better. Drawing on the Hawaii experience, I think reasonable open-captioned accessibility is a promising subject for such laws. I know efforts are under way in some jurisdictions, and I hope efforts of this sort flower in many spots.

Having been involved in movie theater captioning litigation for the past ten years, I’m happy to see a project of this magnitude finally coming to a reasonably successful conclusion. We’ll be able to have captions for essentially every movie, although there are a few small independent films that may still be released without captions, and there’s the persistent, vexing and unexplained problem of uncaptioned previews. But with the adoption and implementation of the DOJ regulations, the theater doors are largely open to us once again.

Movie Theater Captioning, Part 1 of 4: A Wonderful Statute and an Unexpected Problem

Movie Theater Captioning, Part 2 of 4: The Tide Turns

Movie Theater Captioning, Part 3 of 4: A National Requirement

John Waldo is counsel to the Association of Late Deafened Adults (ALDA), a nationwide support and advocacy group, and to the Washington State Communication Access Project (Wash-CAP) and the Oregon Communication Access Project (OR-CAP), two statewide advocacy groups.

Disclaimer: The views and opinions expressed in this post are those of the author and do not necessarily reflect the official policy or position of the Deaf and Hard of Hearing Bar Association (DHHBA). Additionally, this post does not constitute legal advice and does not create an attorney-client relationship with anyone. If you need to contact an attorney, please visit our Find A Lawyer page.