The
ADA Title III year in review: trends, hot topics, and what’s in store for 2014
Seyfarth Shaw LLP
Minh N. Vu and Kristina M. Launey
January 16 2014
Now
that we are all back in work mode, we thought it would be useful to take a
quick look at some of the major ADA Title III trends and highlights of 2013 and
how they will impact the coming year.
Digital
Accessibility. We saw a definitive
uptick in the number of issues relating to the accessibility of electronic
information technology by individuals with disabilities. Individuals with sight disabilities
complained that they could not access the websites of businesses, or that they
had trouble using mobile applications that were not fully compatible with the
screen readers provided on their mobile devices. The enforcement agencies in Massachusetts and
New York took a keen interest in these issues, which resulted in some
businesses agreeing to make their websites and mobile applications accessible
to people with disabilities. Private
litigants and advocacy groups were also successful in persuading businesses to
voluntarily make their websites accessible.
The
Department of Transportation (DOT) issued its final regulations under the Air
Carrier Access Act, requiring airlines to make their websites accessible to
people with disabilities by complying with Levels A and AA success criteria of
the Web Content Accessibility Guidelines (WCAG) 2.0 within the next few
years. The DOT’s adoption of this
standard suggests to us that the Department of Justice (DOJ) will also propose
this standard for the websites of public accommodations. When those proposed regulations will come out
is still uncertain, but we predict it will be sometime in 2014.
Perhaps
the most significant news in the area of website accessibility is that DOJ
sought to intervene in a private class action brought against a public
accommodation for not having an accessible website. While DOJ has always pressured businesses
behind the scenes to make their websites accessible, this is the first enforcement
suit of its kind, filed before DOJ has even issued proposed regulations
defining what constitutes an accessible website. The proposed complaint cites to the WCAG 2.0
as a well-accepted industry guideline, further persuading us that the DOJ will
in fact adopt this set of guidelines as its legal standard when it finally
issues its proposed rule.
Businesses
are taking note of the increased private and governmental enforcement activity
relating to websites and digital accessibility more generally. We are seeing businesses be more proactive
about this issue and trying to include accessibility in new websites, new web
pages, and new contracts with partners that are involved with development of
website content. This is a smart move,
as digital accessibility will almost certainly continue to be a hot area in
2014.
Pool
Lift Lawsuits Against Hotels. If you
stayed at a hotel with a swimming pool or spa in 2013, you might have noticed
that the swimming pool and/or spa had a crane-like device with a seat installed
next to it. These devices are used by
people with mobility disabilities to get in and out of a pool or spa. The DOJ’s 2010 ADA Title III regulations
required these lifts to be installed in existing public accommodations
facilities by January 31, 2013, unless doing so was not readily
achievable. As we predicted, within
several months after the deadline, plaintiffs’ attorneys began filing a flurry
of lawsuits in Ohio and Indiana alleging that certain hotels did not have pool
lifts, even though some actually did. We
anticipate that more lawsuits of this type will be filed in 2014.
Point
of Sale Device Class Actions. In the
second half of 2013, a number of major retailers across the United States were
hit with class actions filed in the Western District of Pennsylvania by a blind
plaintiff alleging that he and other blind people are being denied access
because they cannot use Point of Sale (POS) devices that do not have a tactile
keypad for inputting personal identification numbers. Although the ADA Title III regulations do not
specifically address POS devices and their accessibility to the blind, tactile
keypads on POS devices have been required in California for several years. We will report on developments in these
pending cases as they arise.
New
California Accessibility Standards.
Effective January 1, 2014, the 2013 California Building Code’s (“CBC”)
requirements were substantially revised and reorganized to be more consistent with the federal 2010 ADA Standards for Accessible Design
(“ADA 2010 Standards”). However, many substantial differences remain, so
businesses in California should take care to comply with both the ADA 2010
Standards and CBC, or if the standards conflict, with the stricter – meaning
that which provides greater access. Businesses should also remain mindful of the
other California distinction – statutory
damages of $1000-$4000 per violation – which makes vigilant compliance with the
CBC and 2010 ADA Standards that much more important to California businesses.
New
Mobile Apps that Rate the Accessibility of Businesses. In 2013, entrepreneurs with disabilities
launched two new mobile applications — AbleRoad and AccessMap — that allow the
public to rate and review how accessible business establishments are to people
with disabilities. We reported on these
applications and will continue monitoring to see how they develop and whether
they will become a litigation research tool for serial plaintiffs and their
lawyers.
Challenges
in Renovations Due to Changes in the 2010 Standards. Effective March 15, 2012, all public
accommodations and commercial facilities had to start complying with the 2010
ADA Standards in constructing new facilities and altering existing ones, subject
to very limited exceptions. In 2013, we
began seeing some of the challenges the new standards present as hotels
renovate spaces that are compliant with the prior set of ADA Standards but must
now be brought up to the 2010 ADA Standards because they are being
altered. For example, the 2010 ADA
Standards require different bathroom configurations in accessible guestrooms
than the 1991 Standards and some hotels are finding it very difficult and/or
expensive to make those bathrooms comply with the 2010 Standards. This issue will continue to be a problem in
2014 and for many years to come.
We
thank you for your readership last year and look forward to bringing you more
ADA Title III News and Insights in 2014.
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