ADA in Action
While the DOJ is not expected to release official guidelines for ADA compliance until at least 2018, numerous businesses in a variety of sectors have already received complaints that have resulted in large payouts, with or without going to court. Below are several recent examples.
Netflix + Closed Captions
In 2012, The National Association of the Deaf, the Western Massachusetts Association of the Deaf and Hearing Impaired, and an individual named Lee Nettles filed suit against Netflix in Massachusetts federal court, claiming the streaming service was not accessible to people with disabilities. Specifically, the plaintiffs alleged that Netflix failed to provide closed captioning on the majority of the movies and television shows it offered via its “Watch Instantly” service.
After the court rejected Netflix’s defense that the ADA is precluded by the Twenty-First Century Communications and Video Accessibility Act of 2010, Netflix settled with the Defendants. As part of the settlement, Netflix agreed to caption 100% of its content by 2014. Netflix also agreed to a hefty payout – $755,000 to the plaintiffs’ attorneys in addition to $40,000 for the terms of the agreement to be implemented over four years.
Around the same time, a similar case was filed in federal court in the Northern District of California. In this court, Netflix fared much better. The court dismissed the case and the ninth circuit court of appeals affirmed. The court held that Netflix did not fall within the ADA’s definition of public accommodation, saying that because “Netflix’s services are not connected to any ‘actual, physical place,’ Netflix is not subject to the ADA.”
Classroom Technology at Miami of Ohio
In a case out of Ohio, a student at Miami University filed suit against the school claiming that Miami’s technology in classrooms and on its website was not accessible to people with disabilities. The case was originally filed as Dudley v. Miami University. The Department of Justice intervened in the case to ensure that resolution would benefit all Miami University students. In December, 2016, the DOJ and the University resolved the matter with a consent decree. Pursuant to the consent decree, Miami will pay $25,000 to compensate those students with disabilities, and make significant improvements to technology across campus. Such improvements include ensuring that its web content and learning management systems comply with WCAG 2.0 AA standards and meeting with every disabled student once per semester to develop an accessibility plan.
A Claim Against Domino’s Gets Dismissed
A recent case in California provides a more hopeful decision for businesses worried about ADA website lawsuits. On March 20, 2017, a judge in the Central District of California dismissed a suit brought against Domino’s Pizza that had alleged the popular pizza chain’s website was not in compliance with the ADA. Plaintiffs premised their claims on the fact that the site was not compliant with WCAG.
However, the court did not buy this argument and held that it would be a violation of Domino’s due process rights to be held to these standards when the DOJ has articulated what a business’s obligations are when it comes to the ADA. The judge made clear that his decision was a call to action to lawmakers: “The Court concludes by calling on Congress, the Attorney General, and the Department of Justice to take action to set minimum web accessibility standards for the benefit of the disabled community, those subject to Title III [of the ADA], and the judiciary.”
The Price is Right Gets Up-to-Date
In 2008, after several persons in wheelchairs filed complaints against the popular television show The Price is Right, the Department of Justice commenced a civil action to enforce Title 3 of the ADA. During the course of the investigation, the DOJ revealed that www.priceisright.com was not accessible to all people with disabilities. In 2011, the show reached a settlement agreement binding it to modify its physical studio as well as its website. According to the terms of the agreement, the show would provide training to its internet personnel in order to make www.priceisright.com accessible to people with disabilities. Further, the show agreed to undertake a Website Accessibility Assessment, which would evaluate its website under the standards of Section 508 of the Rehabilitation Act of 1973. These standards require, for example, text equivalents for all images, text that is compatible with assistive technology, and capabilities to manipulate colors and font settings for individuals with low vision or color blindness. Finally, the show compensated two of the original individual complainants $10,000 each and paid $25,000 as a civil penalty to the United States Treasury.
Visually Impaired + Applying to Law School
In 2009, the National Federal of the Blind filed a lawsuit against the Law School Admission Council (LSAC) and several law school defendants, alleging that each maintained websites that were “inaccessible to blind individuals using screen reader technology.” Plaintiffs alleged that this made it impossible for blind students to independently apply for law schools. In a consolidated settlement agreement, the defendants decided to bring their websites into compliance with the nonvisual requirements of WCAG 2.0, level AA. The National Federation for the Blind would conduct semi-annual accessibility testing and be compensated at a rate of $300 per hour, not exceeding $10,000 per year. The LSAC also agreed to pay plaintiffs $320,000 to partially reimburse their attorneys’ fees.
H&R Block Improves Accessibility
In 2013, the tax preparation company H&R Block was sued in Massachusetts federal court by the National Federation of the Blind and two of its members. Later that year, the Department of Justice intervened. The parties entered into a consent decree in March, 2014. The consent decree included, but was not limited to, the following: H&R Block would ensure that its website and mobile apps complied with the WCAG 2.0 AA standards by January 1, 2015, and the company was obligated to designate an employee as a Web Accessibility Coordinator. Further, H&R Block paid $22,500 to each of the two individual defendants and paid a civil penalty of $55,000 to the DOJ.
McDonald’s Faces a Complaint
On April 23, 2017, a blind individual named Sean Gorecki filed a complaint in the Northern District of Illinois against McDonald’s Corporation, claiming that the restaurant’s website is not accessible to visually impaired or blind customers. The results of this lawsuit are yet to be seen.
For assistance responding to demand letters, or for more information on tools for evaluating your website and bringing it into ADA compliance, please contact Jane Gleaves.