ADA Accessibility Requirements: Practical Strategies and Best Practices Joyce Ackerbaum Cox, Partner, BakerHostetler Rosemary O’Shea, Partner, BakerHostetler

March 16, 2016

DOES THE ADA APPLY TO THE INTERNET?

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Disabilities Affecting Internet Use • According to the DOJ, millions of Americans have disabilities that

affect their use of internet websites and mobile applications: – Individuals with vision impairments may be unable to read the text or

view images/videos displayed.

– Individuals with hearing impairments may be unable to access information in website videos that lack captions.

– Individuals with mobility impairments regarding their hands may have difficulty navigating a website or using a mouse.

– Individuals with intellectual disabilities may struggle to use portions of websites that require timed responses from users.

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Assistive Technology • Many people with disabilities rely on “assistive

technology” to navigate websites and access information contained on those sites. – Individuals with vision impairments may rely on a

screen reader to convert visual information into speech or may use programs that allow them to modify font size and color contrast.

– Individuals with hearing impairments may rely on captions.

– Individuals with limited manual dexterity may use assistive technology that enables them to interact with websites using only a keyboard instead of a mouse.

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Inaccessibility of Websites/Apps The problem is many websites and apps do not incorporate or activate features that enable disabled individuals to access all information or services. Screen readers require website code that is

compatible Individuals with limited dexterity cannot use

websites that do not support keyboard alternatives for mouse commands

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The ADA and the Internet: The Evolution of Accessibility • The DOJ has acknowledged that “the internet

as it is known today did not exist when Congress enacted the ADA and, therefore, neither the ADA or the regulations the DOJ promulgated under the ADA specifically address access to websites.”

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The ADA and the Internet: The Evolution of Accessibility • Since 2010, the DOJ has taken steps to revise the ADA

regulations in order to establish requirements for website accessibility under Title II (public entities) and Title III (private entities). – In a 2010 Advance Notice of Proposed Rulemaking,

the DOJ said that it was considering revisions to the regulations implementing Titles II and III in order to establish website accessibility standards.

– After several delays, the DOJ announced in late 2015 that it will issue the Title II website regulations in early 2016 and Title III website regulations in 2018.

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Title III of the ADA and Places of Public Accommodation

• The ADA prohibits discrimination against individuals with disabilities in all areas of public life, including jobs, schools, transportation, and all public and private places that are open to the general public.

• Title III of the ADA requires businesses that qualify as places of “public accommodation” to provide equal access to their goods and services to individuals with disabilities.

– Specifically, 28 CFR § 36.201(a) provides: No individual shall be discriminated against on the basis of a disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any private entity who owns, leases (or leases to), or operates a place of public accommodation.

• ADA obligations include providing auxiliary aids and services necessary to

effectively communicate with individuals with hearing, vision, or cognitive disabilities.

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What is a Place of Public Accommodation? • Title III provides that private entities are considered places of public

accommodation if their operations affect commerce and fall within at least one of the following 12 categories: An inn, hotel, or other place of lodging A restaurant, bar, or other establishment serving food or drink A motion picture house, theater, concert hall, stadium, or other place of

exhibition/entertainment A bakery, grocery store, clothing store, hardware store, shopping center, or other sales or

rental establishment A laundromat, drycleaner, bank, barber shop, beauty shop, travel service, shoe repair

service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment

A terminal, depot, or other station used for public transportation A museum, library, gallery, or other place of public display or collection A nursery, elementary, secondary, undergraduate, or post graduate private school, or other

place of education A day care center, senior citizen center, homeless shelter, food bank, adoption agency, or

other social service center A gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation

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Is My Website a Place of Public Accommodation? • Classic lawyer answer: It depends!

– Federal courts have wrestled with the issue of whether Title III covers websites, resulting in a split of authority.

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Is My Website a Place of Public Accommodation? • Spirit Of The Law Approach

– The First, Second and Seventh Circuits have found that places of public accommodation are not limited to actual physical places. In Doe v. Mutual of Omaha, Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999), the

Seventh Circuit held that the “core meaning of Title III’s anti-discrimination provision is that the owner or operator of a store, hotel, restaurant, dentist’s office, theater, website, or other facility (whether in physical space or in electronic space) that is open to the public cannot exclude disabled persons from entering the facility and using the facility in the same way that nondisabled persons do.”

In National Federation for the Blind v. Scribd, 2015 WL 1263336 (D. Vt. March 19, 2015), Scribd’s online-only eBook library was found to be a place of public accommodation. In denying Scribd’s motion to dismiss, the court found that Scribd’s services fell within at least one of Title III’s enumerated categories of public accommodation.

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Is My Website a Place of Public Accommodation?

• Nexus Approach – The Third, Sixth, Ninth and Eleventh Circuits have concluded that places of public

accommodation are limited to physical locations, and Title III requires a nexus between a physical structure and the goods, services, and privileges denied. In Earll v. eBay, Inc., 599 Fed. Appx. 695 (9th Cir. 2015), the Ninth Circuit held that

web-only businesses are not places of public accommodation under Title III because “eBay’s services are not connected to any actual, physical place.”

In National Federation for the Blind v. Target, 452 F. Supp. 2d 946, 953-54 (N.D. Cal. 2006), a class of visually impaired plaintiffs alleged that they could not access Target’s website to purchase products, redeem gift cards, or find Target stores. The district court denied Target’s motion to dismiss and found that there was a sufficient nexus between Target’s website services and the services provided at the actual brick and mortar stores. The court reasoned that the ADA applies to the services of a place of public accommodation, not just the provision of services on the premises of a public accommodation.

In Access Now v. Southwest Airlines, 227 F. Supp. 2d 1312 (S.D. Fla. 2002), the district court held that the plaintiff failed to state a claim under the ADA because it alleged that the inaccessibility of southwest.com denied access to Southwest’s “virtual” ticket counter. The court found that virtual ticket counters are not actual, physical places, and therefore are not places of public accommodation.

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Is My Website a Place of Public Accommodation?

• The implication of this split is that online-only entities with a broad geographic presence may face a patchwork of liability based on where a plaintiff is located/where the claim is brought.

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Netflix Case Example Is Netflix a Place of Public Accommodation?

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Netflix Case Example – Yes, under the “Spirit of the Law” Approach

In National Ass’n of the Deaf v. Netflix, 869 F. Supp. 2d 196 (D. Mass 2012), a Massachusetts district court found that Netflix’s video streaming website was a place of public accommodation even though its web-based services could only be accessed in private residences. The court reasoned that the ADA covers the services “of” a public accommodation, not services “at” or “in” a public accommodation.

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Netflix Case Example – No, under the “Nexus” Approach

In Cullen v. Netflix, 880 F. Supp. 2d 1017 (N.D. Cal. 2012), a California district court (following the “Nexus” approach) found that Netflix’s online streaming service was not a place of public accommodation within the meaning of the ADA because Netflix’s services are only provided online.

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Where to Look for Guidance? • World Wide Web Consortium ("W3C")

• Web Content Accessibility Guidelines ("WCAG") 2.0

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Notable Settlements • H&R Block- In 2013, plaintiffs alleged that H&R Block violated Title III

because their website was inaccessible to people with various disabilities. Soon after the DOJ intervened, H&R Block agreed to a consent decree under which it would make its website, tax preparation tools, and apps conform to the WCAG.

• Peapod- In 2014, the DOJ announced that it reached a settlement with the country’s leading internet grocer. The DOJ alleged that Peapod’s website violated Title III because it was inaccessible to disabled customers. Under the settlement agreement, Peapod agreed to adopt the following measures:

Ensure its website conforms with the WCAG 2.0 standards Designate an employee as the web accessibility coordinator Retain an independent website accessibility consultant, who will annually evaluate

the accessibility of the website Adopt a formal web accessibility policy Provide for accessibility testing Provide mandatory training on website accessibility for Peapod’s website content

personnel

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Pending Cases • In 2015, the DOJ filed Statements of Interest in two lawsuits

brought by the National Association of the Deaf against two major private universities, Harvard and MIT, alleging that they failed to caption thousands of videos that are posted to their websites. – In these filings, the DOJ stated that the obligation to make websites accessible

exists right now, even in the absence of any new regulations. – The DOJ made this point by stating that when it issued the ANPRM in 2010, it

was seeking “to explore whether rulemaking would be helpful in providing guidance as to how covered entities could meet their pre-existing obligations to make their websites accessible.”

– This position departs significantly from the DOJ’s statement in the 2010 ANPRM that public accommodations with inaccessible websites can still comply with the ADA by providing an equal degree of access through alternative means (e.g., the telephone).

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Pending Cases • Recently, in response to the DOJ’s filings, Federal Magistrate

Judge Robertson issued a 45-page report and recommendation denying Harvard and MIT’s motions to dismiss and refused to stay the lawsuits until the DOJ issues specific regulations.

– This report and recommendation is not a final order until the district court judge

adopts it. Even if it is adopted, it is not a finding that the universities violated the law, but the ruling would allow the cases to move forward with discovery.

– Notably, at least thus far, courts have not been receptive to the argument that there is no obligation to make websites accessible until the DOJ issues regulations.

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Pending Cases • NBA- In November 2015, a visually impaired plaintiff sued the NBA seeking an

injunction requiring the NBA to (1) implement corporate policies that ensure website accessibility for the blind; and (2) format its website so that it is compatible with screen reading or text-to-audio software. Jahoda v. National Basketball Association, No. 2:15-cv-01462 (W.D. Pa. November 6, 2015).

• Reebok- Plaintiff filed a claim against Reebok alleging that he was denied equal access to Reebok’s website because the website relies on a visual interface and contains barriers that make it difficult for blind customers to use the website or complete a transaction. Jose Del-Orden v. Reebok International Ltd., No. 1:15-cv-08101 (S.D.N.Y. Oct. 14, 2015). – In September 2015, the same plaintiff filed similar lawsuits against Kohl’s Corp.

and J.C. Penny, also claiming ADA violations due to their inaccessible websites.

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Tips and Resources for Improving Website Accessibility • Ensure that your website meets the WCAG 2.0 Standards

• WCAG 2.0 standards are likely to be incorporated into proposed ADA regulations as evidenced by the DOJ’s recent settlement agreements

GENERAL OVERVIEW OF WCAG 2.0 STANDARDS o Maximize compatibility with assistive technology software o Provide text alternatives for any non-text content (e.g., images) o Provide alternatives to video-only or audio-only content (e.g., transcripts) o Make it easier for users to see and hear content (e.g., separating

foreground and background text, using adjustable font sizes) o Make all functionality available from a keyboard o Avoid design elements known to cause seizures (e.g., rapid flashing

images) • WCAG Standards 2.0 are available at:

https://www.w3.org/TR/WCAG20/

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Tips and Resources for Improving Website Accessibility • Generally, fixing an inaccessible website that was not originally

“coded” to be compatible with assistive technology is more difficult and expensive than implementing accessibility features from the beginning.

• Website Audit -- Consider hiring a third-party digital consultant to audit your website to determine what features might be insufficient.

• Provide mandatory training on website accessibility for website content personnel.

• Companies seeking to limit potential liability while working to make their website accessible should, to the extent possible, ensure that all goods, services and information available on their website can be accessed via 24/7 phone service.

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Segways® and Hoverboards as Title III Mobility Devices

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Mobility Devices • People with disabilities use various types of mobility devices, from

walkers and canes to wheelchairs or electric scooters. • With technological advances, new devices like Segways® and

hoverboards are gaining popularity. – Covered entities must allow disabled persons using

manual/power wheelchairs or scooters and manual devices like walkers and canes to access all areas otherwise open to the public.

– Similarly, covered entities must allow disabled persons using what are called “other power-driven mobility devices” (OPDMD) the same access, unless a particular type of device cannot be accommodated due to legitimate safety concerns.

– If legitimate safety concerns prohibit accommodation of a particular type of device, the covered entity must provide the service it offers in an alternate way, if possible.

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Segways® and Hoverboards • Other Power-Driven Mobility Devices (OPDMD)

– Devices such as Segways® and hoverboards fall into the category of OPDMD, which is defined broadly as “any mobility device powered by batteries, fuel, or other engines… that is used by individuals with mobility disabilities for the purpose of locomotion, including golf carts, electronic personal assistance mobility devices… such as the Segway™ PT, or any mobility device designed to operate in areas without defined pedestrian routes, but that is not a wheelchair.”

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Segways® and Hoverboards as Title III Mobility Devices

The DOJ guidance outlines five factors that covered entities should consider when determining whether people with mobility disabilities may use a particular OPDMD type in a facility: 1. The type, size, weight, dimensions and speed of the device;

2. The facility’s pedestrian traffic;

• This may vary by day, week, month or year.

3. The facility design and operational characteristics;

• Ex: indoor vs. outdoor, size and placement of furniture and other stationary devices

4. Whether legitimate safety requirements can be established permitting safe operation of another OPDMD in that facility; and

• Ex: speed limits, no permitted use on escalators.

5. Whether the use of that OPDMD creates a substantial environmental harm or conflicts with federal land management laws.

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Segways® and Hoverboards as Title III Mobility Devices Note: The safety risks relied upon in limiting or prohibiting OPDMD use must be based on “actual risks,” and not speculation or stereotypes on how any particular device might potentially be operated. • The DOJ has stated that based on these

factors, “devices such as Segways® can be accommodated in most instances.”

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Segways® and Hoverboards: Current Case Law

• There is little case law guidance on a covered entity’s obligations to accommodate Segways®, and there have been no published opinions to date addressing the recently popularized hoverboard.

• Much of the developed case law has centered on theme-park patrons’ challenges to Segway-bans at popular parks.

– Baughman v. Walt Disney World Co., 685 F.3d 1131 (9th Cir. 2012): The Ninth Circuit held that a theme park patron's request to use a Segway® for transportation in park was a necessary and reasonable modification of park's policies, practices, or procedures, as required to support claim for discrimination in place of public accommodation under ADA; court agreed that using the Segway® would make it easier for patron to visit the theme park's attractions, concessions, and facilities, and would allow her to be at eye-level with other guests and staff, rather than having everyone look down at her. The court reversed and remanded, but declined to hold that Disney must uniformly permit Segways® at its parks.

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Segways® and Hoverboards: Current Case Law • Ault v. Walt Disney World Co., 692 F.3d 1212

(11th Cir. 2012): A class of past and future Disney customers sued, challenging Disney’s ban on all two-wheeled vehicles in all of its parks and hotels. The parties settled. Under the terms of the settlement, Disney was permitted to maintain its ban on Segways® and, in return, promised to develop a four-wheeled, electric stand-up vehicle (“ESV”) for customers who require a stand-up mobility device because they are unable to utilize a sitting mobility device.

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Segways® as Title III Mobility Devices: Current Case Law • McElroy v. Simon Prop. Grp., Inc., No. 08-4041-RDR,

2008 WL 4277716 (D. Kan. Sept. 15, 2008): Plaintiff, a disabled shopping mall patron and Segway® user, was granted a temporary restraining order enjoining mall from exercising its Segway® use policy. Mall’s policy allowed the use of Segways® if the user was disabled and agreed to sign an agreement to indemnify the mall for all liability and suits resulting from injuries caused by the Segway®. The court held that the indemnification provisions were unconscionable and overreaching, noting that no other mall patron was required to sign such an agreement to gain entry.

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ADA SERVICE ANIMALS

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ADA Service Animal Fun Facts • Only dogs and miniature horses

• You can only ask two questions and only if the disability and the need for the animal are not obvious. Is the animal required because of a disability and what tasks or work has it been trained to perform?

• Crime deterrence is not considered work or tasks nor is emotional support

• No requirement to provide care services for the animal - this is the obligation of the owner or handler.

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ADA Service Animal Fun Facts • Must be harnessed, leashed or tethered at all times unless these

devices would interfere with the work the animal does or the individual’s disability prevents him/her from using these devices, in which case the animal must be under voice or signal control. So the animal cannot be allowed to roam free.

• The animal can go in all areas of a facility where the public is normally allowed to go with few exceptions. For example, hospitals can exclude them from operating rooms or other areas where they may compromise a sterile environment but not patient rooms or other testing rooms, such as for x-rays or MRIs; restaurants can keep them out of the kitchen. DOJ has conceded that they can be kept out of a pool for health reasons.

• Fear of allergies by others is not a basis to exclude a service animal or to isolate a disabled person. Hospitals can require private rooms for a patient with a service animal but cannot charge the patient for the room even if private rooms are typically more expensive. Restaurants cannot force customers with service animals to sit in specified sections of the dining room.

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ADA Service Animal Fun Facts • There can be no breed or size restrictions except for

miniature horses where reasonable restrictions on size and weight under the circumstance could be imposed.

• Can impose reasonable rules about where to walk the animals and requirements for clean-up of animal waste.

• Cannot charge any kind of fee for a service animal, as they are just one variation of a assistive device, not a pet, but their owners can be charged if they actually cause damage to a facility, so long as other customers or patrons are similarly charged for damage.

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ADA Service Animal Fun Facts • Can be excluded from a facility if the animal is out of

control or disruptive and the animal’s handler cannot control it or the animal is not housebroken.

• Because of the broader protections under the Fair Housing Act (“FHA”) which allows for so called emotional support or comfort animals, some disabled customers have become confused over their rights to have a comfort animal accompany them everywhere.

• Emotional support animals or comfort animals can be almost any kind of animal, including dogs, cats, rabbits, birds (so far case law has excluded snakes), which provide some sort of emotional support or therapy for individuals with psychological or emotional disabilities.

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ADA Service Animal Fun Facts • The FHA allows emotional support animals only in housing

facilities. Other types of public accommodations such as hospitals, business offices, hotels, restaurants, and sports facilities do not have to permit emotional support animals to accompany a person with a disability.

• This creates unique problems for timeshare resorts and condotels. The Department of Housing and Urban Development which enforces the FHA has refused to abandon its position that timeshare resorts and condotels can be covered by the FHA requirements. Under the FHA, the focus has been on whether a comfort animal or an emotional support animal is “necessary” to afford a person with a disability an equal opportunity to use and enjoy the dwelling is reasonable in that it does not impose undue financial or administrative burdens on the housing provider or results in a fundamental alteration of the business operation.

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ADA Service Animal Fun Facts • Unless the person’s disability is obvious and the requested

accommodation is apparent in its relationship to that disability, a housing provider may ask for information confirming that the person has a disability, a description of the needed accommodation and a statement concerning the relationship between the disability and the requested accommodation. The information can come from a doctor or other medical professional, a support group, a counselor, or a social service agency.

• Most important best practice continues to be staff training to recognize and deal appropriately with service animals on the property and to know what questions can be asked and under what circumstances an animal can be denied or removed. Dealing with the emotional support animal issue can take a special sensitivity and diplomacy.

• Staff needs to understand that no special certification can be required, not even certification that the animal has had rabies or other required shots or treatments.

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READILY ACHIEVABLE BARRIER REMOVAL

25 YEARS LATER

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Readily Achievable Barrier Removal Physical Structures and Programs and Services • Readily achievable barrier removal – easily accomplishable

and able to be carried out without much difficulty or expense.

• Defenses include: Not readily achievable, technically infeasible, creates an undue burden or fundamentally alters the business, is not an alteration (something which affects usability).

• Pre 2010 Standards - Elements must comply with 1991 Standards until or unless modified after March 14, 2012.

• Post 2010 Standards – All amenities must comply with 2010 Standards. Other elements must comply with 2010 Standards if not previously modified to 1991 Standards or if modified after March 14, 2012.

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Readily Achievable Barrier Removal Physical Structures and Programs and Services • Special Rules for Timeshare and Condotel Resorts

where the guest rooms or units are not owned or substantially controlled by the entity that owns, leases or operates the overall facility and the physical features of the guest room interiors are controlled by their individual owners; units are not subject to alterations or barrier removal requirements, even if the owner rents the unit out to the public through a transient lodging rental program.

• Yes, pool lifts must be permanent; No, they cannot be shared.

• Single Family Homes ??? 42

Readily Achievable Barrier Removal Physical Structures and Programs and Services • Use of Testers in ADA barrier cases has been

approved by courts. Permits plaintiffs to sue who have no intent to return to the property and who stop by or drive by for the sole purpose of suing.

• Elements required to be accessible and usable must be maintained in working condition except for isolated or temporary interruptions for repairs or maintenance.

• Accessible shuttle bus services must generally address the needs of disabled customers in the same manner and to the same extent as non-disabled customer. (times, geographic area, cost, reservations, etc.)

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Readily Achievable Barrier Removal Physical Structures and Programs and Services • Communication is part of barrier removal – sign

language interpreters, closed captioned video, etc. may be required to serve disabled customers at the cost of the business.

• Best practice – do an audit of your physical structure; develop a plan to remove barriers over time; hire architects and contractors who know the ADA standards; consider how vision or hearing or mobility impaired persons could use your service or products and be prepared to make adjustments.

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RELATIVE OBLIGATIONS OF EACH PARTY SUCH AS

LANDLORD AND TENANT (WHO CAN BE SUED)

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Obligations of Liable Parties or Who can be Sued Who is Responsible? • Who can be sued for violating the ADA?

• Potentially liable parties include owners, operators, landlords, tenants, developers, architects, general contractors, subcontractors, design professionals, construction managers.

• Important to have targeted indemnity provisions in agreements which sort out and allocate the various responsibilities, obligations and liabilities under the ADA.

• However, courts have held that owners of public accommodations are liable for unlawful discrimination under the ADA regardless of intent and therefore they cannot contract away their obligations through indemnities or otherwise.

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Obligations of Liable Parties or Who can be Sued Who is Responsible?

• The Supreme Court of Nevada and the Federal 4th District Court of Appeal (Maryland, Virginia, West Virginia, North and South Carolina) have recognized in two cases involving suits against architects that except for the landlord/tenant relationship, no provision exists in the ADA or its regulations permitting indemnification to reallocate liability.

• These courts proffer that claims of indemnification are preempted because indemnifications would diminish the owners’ incentive to comply with the ADA and therefore frustrate the goal of preventing disability discrimination. Permitting an owner through an indemnification claim to cover its losses diminishes the owner’s incentive to ensure compliance with the ADA. Each entity, subject to the ADA, has a non-delegable duty to comply with the law.

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Obligations of Liable Parties or Who can be Sued Who is Responsible?

• Under these cases, an indemnification clause could be deemed to be either pre-empted by the ADA or void as against public policy. These courts basically ignored the concept of fairness to the owner who hired and relied on the expertise of an architect or designer to keep them out of trouble.

• However, well drafted indemnification clauses may still prevail in other jurisdictions.

• Contracts should also contain representations and warranties regarding each party’s obligation to comply with and knowledge of the requirements of the ADA. Although reps and warranties in an agreement might provide another avenue to seek reimbursement from a party who fails to fulfill its obligations under the contract, the courts above found that a breach of contract or negligence claim is nothing more than an indemnification claim, especially if the indemnified party is seeking to recover 100% of its losses based on the breach of contract or negligence.

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Obligations of Liable Parties or Who can be Sued Who is Responsible?

• Keep in mind that allocation of liability among the parties has no impact on unrelated third parties such as disabled patrons and their lawyers.

• Leases can still include enforceable indemnifications due to the express authorization in the ADA. However, a report from the House of Representatives contains a statement that landlords have independent obligations to comply with the ADA and this cannot be eliminated by contract. So even in this context, a party cannot seek indemnification for its own failure to comply with the law. For example, a landlord’s suit against tenants for an ADA violation in the common area was not successful.

• Since the language of the ADA states that landlords and tenants are both responsible for compliance with the ADA, courts have held both landlord and tenant are liable for violations of the law to the third party, but the lease could allow each party to be indemnified for that portion of its losses caused by the other party’s failure to comply with its obligations under the lease and the law.

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Obligations of Liable Parties or Who can be Sued Who is Responsible?

• Another way to deal with indemnification obstacles is to demand that all indispensable parties be joined in ADA access lawsuits which could draw in architects and contractors and others separately as part of the claim.

• Allocation of defense obligations may also be a way to shift some costs such as legal fees to other parties to as agreement. Since attorneys’ fees are often one of the largest costs of monetary outlay connected with these types of lawsuits, even if an indemnification provision is not successful, an agreement to pay the defense cost may be.

• Best practice – in addition to indemnities and reps and warranties in agreements, hire reputable partners on projects who know the law, always include other protections like bonds or insurance, do your own regular inspections, know the law, keep records of recommendations for compliance which are ignored by the real decision makers.

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ADA DEFENSE STRATEGIES

AND BEST PRACTICES

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Know Your Risk

• 8% rise in ADA Title III lawsuits in 2015 • Approximately 4800 lawsuits filed nationwide • States with most cases filed are FL, CA, NY, TX,

and AZ

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Know the Law • No such thing as “grandfather clause” under the ADA • Date of construction/alteration dictates applicable standards

– NEW CONSTRUCTION/ALTERATION— On or after January 26, 1993 and before September 15, 2010 (1991

Standards) On or after September 15, 2010 and before March 15, 2012 (1991 or

2010 Standards) On or after March 15, 2012 (2010 Standards)

• Element-by-Element Safe Harbor. There is a general "safe harbor" under which elements that were built or altered in compliance with the 1991 Standards would not be required to be brought into compliance with the 2010 Standards until the elements were subject to a planned alteration.

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Available Remedies in Website Accessibility Lawsuits

• Injunctive Relief • Attorneys’ Fees and Costs • Monetary damages- only available in

actions brought by the Attorney General in cases of general public importance or if a “pattern or practice” of discrimination is alleged

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Defense Strategies

• Audit your facility/identify the risks • Put a plan in place • Hire appropriate consultants/experts • Move quickly if sued

– Moot the issues – Limit the attorneys’ fees

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ADA AMENDMENTS

H.R. 3765

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The ADA Education and Reform Act of 2015 House Bill 3765, drafted by our partner, Brian Blair, has been introduced by representatives Ted Poe of Texas, David Jolly of Florida and Doug Collins of Georgia and has been referred to the Judiciary Committee. The purpose of the bill is:

• To direct the disabilities rights section of the Department of Justice to develop a program to educate state and local governments and property owners on effective and efficient strategies for promoting access to public accommodations.

• To prohibit any civil action regarding architectural barriers to access unless the plaintiff has provided to the owner or operator of the accommodation a written notice specific enough to allow such owner or operator to identify the barrier and sixty (60) days for the owner or operator to provide a written description outlining improvements that will be made to remove the barrier and one hundred twenty (120) days after notice for the owner or operator to remove the barrier or make substantial progress in removing the barrier.

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The ADA Education and Reform Act of 2015 Continued…

• To require that any demand letter or other form of pre-suit notification specify in detail the circumstances under which an individual was actually denied access to a public accommodation, the address of the property, the specific sections of the ADA alleged to have been violated, a statement as to whether a request for assistance in removing an architectural barrier was made and a statement as to whether the barrier is permanent or temporary.

• Failure to comply is an unfair and deceptive trade practice.

• To require creation of a model program for alternative dispute resolution to resolve claims of architectural barriers in public accommodations to promote access quickly and efficiently without the need for costly litigation.

• Does not address the attorney fee issue.

• Write your senators and representatives in support of the bill as a fair resolution of the proliferation of costly ADA access claims. One bill tracking service gives this a 2% chance of being passed.

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These materials have been prepared by Baker & Hostetler LLP for informational purposes only and are not legal advice. The information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this information without seeking professional counsel. You should consult a lawyer for individual advice regarding your own situation.