The 11th Circuit Holds Prior Settlement in Website Access Case Does Not Moot Identical Second Lawsuit Seeking the Same Injunctive Relief

Retailers and other companies have been besieged by lawsuits alleging that their websites are not accessible to visually impaired users in violation of the Americans with Disabilities Act (“ADA”) and similar state laws. Some companies have been sued multiple times by different plaintiffs represented by different lawyers, even though the companies had previously agreed in earlier settlements to ensure that their websites are accessible to the visually impaired.

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Congress Attempts to Offer Relief to Businesses Faced with ADA Access Lawsuits

Title III of the Americans with Disabilities Act (ADA) requires “places of public accommodation,” such as retail businesses and restaurants, to be accessible to persons with disabilities. Common architectural features that permit access include handicap parking, curb cuts, wheelchair ramps and other design modifications. The ADA provides a private right of action to force a non-compliant establishment to make the necessary physical alterations to allow access. If the lawsuit is successful, the ADA provides for reasonable attorneys’ fees—a prospect that has fueled the proliferation of ADA lawsuits.

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Careful, Your Website is Showing! Retailers Should Start Preparing for Website Accessibility Class Actions

Retailers have been the predominant targets of a recent wave of demand letters claiming that their websites and mobile applications unlawfully discriminate against disabled customers. These demands come on the heels of the Department of Justice’s (DOJ) confirmation that, in 2018, it will propose accessibility standards for private businesses, based on the accessibility standards it has already proposed for public entities. Even with two months left in the year, 2016 has already seen more single-plaintiff and class action lawsuits actually filed against retailers on this issue than ever before. In the face of an increasingly active plaintiffs’ bar, any retailer with a commercial website or mobile application—especially those operating in California, New York, or Pennsylvania, where the majority of these suits have been filed—should take notice and prepare accordingly.

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Accessibility of Retailer Websites Under the Americans with Disabilities Act (ADA)

By Thomas J. Barton

Title III of the ADA provides that “no individual shall be discriminated against on the basis of disabilities in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or any accommodations of any place of public accommodation….” 42 U.S.C. §12812(a). When the ADA was enacted in 1991, Congress contemplated physical access to places of public accommodation, such as hospitals, schools, housing, restaurants, and retail stores. At that time, Congress did not foresee the rise of the internet or the proliferation of sales of goods and services through retail websites, and therefore did not provide any guidance as to whether or the extent to which retail websites were governed by the ADA’s accessibility requirements.

Originally initiated by the National Federation for the Blind and other advocacy groups, a cottage industry has sprung up challenging accessibility to retail websites by the blind and visually impaired. Every major retailer has been or will soon be subject to these claims. The plaintiffs’ law firms that regularly bring these cases use a handful of blind or visual impaired individuals on a repeating basis.

These lawsuits, which have been filed against retailers such as Sears, Footlocker, Target, and Toys R Us, allege that experts working on behalf of their blind and visually impaired clients have investigated the company websites and have identified limitations and obstacles in the ability of a blind or visually impaired individual to navigate the websites effectively with screen readers or other assistive devices. The failures include the failure of the website to provide alternative explanations of “non-text content,” such as illustrations, and alternatives to non-text prompts or navigational features. The plaintiffs allege that websites are in fact places of public accommodation under the ADA and seek attorneys’ fees and broad remedial relief that requires significant changes to the website’s format, program and content that permit access by the blind and visually impaired.

But the “fix” is easier said than done. First, the courts have not definitely ruled that websites are places of public accommodation covered by Title III, and even presuming they are, there are no current regulations defining the level of accessibility. The plaintiffs’ bar has assumed that the Web Content Accessibility Guidelines (WCAG) AA 2.0, published by the World Wide Web Consortium, are the appropriate compliance standard under the ADA because the United States Department of Justice has adopted the WCAG standards for federal agencies and federal contractors. Also, the Department of Justice has indicated that it intends to issue proposed rules for the private sector, but this proposed rulemaking, now scheduled for July 2016, has been postponed several times in recent years, and many believe that it will be delayed again.

Second, the WCAG’s are themselves vague, subject to broad interpretation and, in many cases difficult to implement. This problem is further compounded when one attempts to apply these standards under the ADA’s language that speaks to “reasonable access,” “alternative means of compliance,” and “under burden.” The truth is that the vast majority of websites are not 100 percent compliant, and none will be because the websites are constantly changing and adding additional content. For example, retailers are increasingly using third-party content, which is often not accessible to the visually impaired.

To illustrate this point, the websites of the National Federation for the Blind (NFB) and the law firms that bring these cases are themselves far from 100 percent compliant. Software programs that are used to conduct preliminary evaluations of websites typically give the website a score or grade. NFB’s website scored a “C+” at one time but has since improved. No website of which this author knows has scored an “A.” Given that 100 percent compliance is not practical, what level of compliance is sufficient? The courts have yet to address this question because very few cases have been litigated on the merits.

When litigating these lawsuits, retailers should consider the appropriate level of achievable compliance and the timeframe involved. Engaging with knowledgeable internal IT personnel or with external IT consultants is important to do at the outset. The cases are as much or more about the technical aspects of website compliance and implementation as they are about the law.
In these lawsuits, the plaintiffs typically propose broad remedial relief that includes development of compliance policies, training, on-going monitoring, and appointment of outside consultants. Each of these individual components has to be considered carefully.

These lawsuits are often brought as individual actions, presumably to permit a quick settlement and to avoid the challenges posed by Rule 23 class certification standards and court approval. Nonetheless, as individual actions, there is no legal bar to additional lawsuits by other individuals. However, the settlements can be confidential.

These lawsuits are not just about remedial relief; they are also about legal fees. In some cases, plaintiffs’ counsel proposes an attorneys’ fee award that is based on the number of URLs or websites, rather than on the reasonable amount of attorney time that would be involved in bringing the case to settlement, which is the appropriate legal standard. Their theory is that the plaintiffs’ attorneys have to pay for future monitoring of the website(s) to ensure compliance with the settlement terms.

Given the nuances of such claims, retailers are well-advised to use experienced counsel that is familiar with these lawsuits to handle the defense.

Takeaways

  • Seemingly, the courts will likely eventually find that private retail websites are places of public accommodation under the ADA, even though such a result was never considered by Congress when the ADA was enacted.
  • Although the plaintiffs’ bar has “assumed” that the courts will require compliance with the WCAG 2.0 AA, it is far from clear what will constitute compliance in a particular case.
  • Retailers that have not faced this issue should conduct evaluations of their websites to determine their levels of compliance, the costs, and the realistic time frames for any remediations. Retailers should use the appropriate legal and IT expertise.
  • Latent privacy claims may surround notice and acceptance of the websites’ terms and conditions of use.

Although some retailers are currently being assailed, the claims will no doubt expand to the education, finance, professional services, and healthcare industries, all of which should conduct a similar analysis of their websites.

Reducing Discretionary Bonus May Constitute Adverse Employment Action

By William R. Horwitz

According to the U.S. Court of Appeals for the Second Circuit, a District Court erred when it held that reducing an employee’s discretionary bonus cannot constitute an “adverse employment action” – a necessary element of a discrimination claim. The Second Circuit issued its decision last week in Davis v. New York City Dep’t of Educ., 2015 WL 6118183 (2d Cir. Oct. 19, 2015). In Davis, the District Court had relied on Seventh Circuit precedents in reaching its holding, but the Second Circuit clarified that those precedents “are not the law in this circuit.” Although Davis is a disability discrimination case, the Second Circuit signaled that the same principle applies to other types of discrimination cases as well.

The Law

The Americans With Disabilities Act (the “ADA”) prohibits an employer from discriminating “against a qualified individual on the basis of a disability in regard to … employee compensation … and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a).

The Facts

In December 1998, plaintiff Catherine Davis began her employment with defendant New York City Department of Education (the “DOE”). She began as a substitute teacher and later worked as a health teacher. From 2002 to 2009, she worked at a New York City junior high school. Under a collective bargaining agreement between the DOE and Davis’s labor union, the school had the discretion to award bonuses to teachers from money the school received from the DOE for high student achievement.

In October 2008, Davis was injured in a car accident and took an unpaid medical leave of absence for several months. When the school later awarded bonuses to teachers for student achievement, a union representative indicated that Davis’s award would be divided between Davis and the substitute teacher who covered her classes during her leave. Davis received a $1,000 bonus, while other teachers received $3,000 bonuses. Davis filed a charge with the Equal Employment Opportunity Commission (“EEOC”) alleging disability discrimination. The EEOC issued a Right to Sue Letter and Davis filed a lawsuit in the U.S. District Court for the Eastern District of New York.

The District Court

In her lawsuit, Davis alleged that the DOE violated the ADA by reducing her bonus because of her disability. The DOE filed a Motion for Summary Judgment, seeking dismissal of the lawsuit. The DOE argued that reducing Davis’s bonus was appropriate in light of her absence and the fact that the substitute teacher deserved a share of the bonus. The District Court granted the motion and dismissed the lawsuit. According to the District Court, reducing the bonus from $3,000 to $1,000 did not constitute an adverse employment action under the ADA, because the DOE had the discretion to decide the amount of the award. Davis appealed.

The Second Circuit

The Second Circuit explained that, in order to establish a claim under the ADA, a plaintiff must establish that: (1) the ADA applies to the employer; (2) the plaintiff has a disability or is perceived to have a disability; (3) the plaintiff was otherwise qualified to perform the essential functions of the job with or without reasonable accommodation; (4) the plaintiff suffered an adverse employment action; and (5) the employer took the adverse employment action because of the plaintiff’s disability. In order to establish the last element, a plaintiff must demonstrate that the adverse employment action occurred under circumstances that give rise to an inference of discrimination.

The Second Circuit further explained that Courts consider ADA claims under a burden shifting analysis. Under this approach, if a plaintiff can produce “minimal evidentiary support for the claim of discriminatory motivation,” the burden shifts to the employer “to articulate a non-discriminatory reason for the adverse employment action.” If the employer can articulate this justification, the burden shifts back to the plaintiff to demonstrate that the employer was motivated, at least in part, by discrimination.

The Second Circuit observed that courts have not developed a “bright-line rule” for identifying whether an employment action is an adverse employment action sufficient to provide a basis for a discrimination claim. Generally speaking, according to the Second Circuit, in order to constitute an adverse employment action, the employer’s conduct toward a plaintiff must be “materially adverse” with regard to the terms and conditions of the plaintiff’s employment. It must be more than an inconvenience or a modification of job duties.

The Second Circuit rejected the District Court’s conclusion that reducing non-discretionary bonuses cannot constitute an adverse employment action. The Second Circuit likewise rejected the Seventh Circuit caselaw upon which the District Court had relied. The Second Circuit explained, “[t]he fact that the employer has discretion whether to grant bonuses or raises does not support the conclusion that an employer may freely allocate them on the basis of racial or religious bias, or disability discrimination.” The Second Circuit observed that, in the context of at-will employment, most terms and conditions of employment are subject to the employer’s discretion. The Court listed the following examples of employment actions falling within the discretion of the employer: “[d]eciding which applicant to hire, which employee-at-will to promote, which one should receive additional responsibilities or which one should be fired.” The Second Circuit explained, “[t]he fact that the employer had the right to allocate a bonus on any ground that does not violate the law does not mean that the employer had the right to allocate it on a ground that did violate the law.”

Notwithstanding the District Court’s error, the Second Circuit concluded that the District Court had properly dismissed the lawsuit because, even though Davis could have established that she experienced an adverse employment action, she could not have established that discrimination was a motivating factor in the DOE’s bonus decision. The Second Circuit emphasized the following undisputed facts: (1) Davis missed work for several months; (2) while Davis was absent, she did not contribute to the success that earned bonuses for the teachers; (3) the school needed a substitute teacher during Davis’s absence; and (4) the substitute teacher contributed significantly to the school earning the bonus. Thus, the Second Circuit concluded that plaintiff could not demonstrate that discrimination was a motivating factor in the DOE’s failure to pay Davis a higher bonus. The Second Circuit affirmed the dismissal of the lawsuit.

Conclusion

In Davis, the Second Circuit joined another Circuit, the U.S. Court of Appeals for the District of Columbia Circuit, in holding that the reduction of a discretionary bonus may constitute an adverse employment action. Although Davis was a disability discrimination lawsuit, the Second Circuit will clearly apply the same principle in other types of discrimination cases. It is unclear whether the Seventh Circuit precedents with which the Second Circuit disagreed will remain good law. Regardless, to minimize risk, prudent employers in the Seventh Circuit and elsewhere should ensure that they can justify even discretionary decisions with legitimate, non-discriminatory reasons.

Philadelphia Pregnancy Accommodation Law: Notice Requirement Begins on April 20, 2014

By: DeMaris E. Trapp

On January 20, 2014, Philadelphia Mayor Michael Nutter signed into effect an amendment to the city’s Fair Practices Ordinance: Protections Against Unlawful Discrimination that expressly includes pregnancy, childbirth, or a related medical condition among those categories protected from unlawful discrimination.

The city law covers employers who do business in Philadelphia through employees or who employ one or more employees.  Before this amendment, employers’ obligations under city, state, and federal antidiscrimination laws only required them to treat employees with pregnancy-related issues no worse than any other disabled employee with respect to accommodations.  Now employers are not only prohibited from denying or interfering with an individual’s employment opportunities on the basis of pregnancy, childbirth, or related medical conditions, but employers also are required to make reasonable accommodations on these bases to an employee who requests it.  The legislation’s non-exhaustive examples of reasonable accommodations include restroom breaks, periodic rest for those who stand for long periods of time, assistance with manual labor, leave for a period of disability arising from childbirth, reassignment to a vacant position, and job restructuring.  Employers have an affirmative defense under the law for failing to accommodate an employee if such accommodations would cause an undue hardship.

Employers should take note that this law increases the burden on them to provide reasonable accommodations, since examples like reassignment and job restructuring have traditionally not been required under similar federal and state laws that mandate accommodations for individuals with disabilities.  Thus, employers should review their policies and other written materials regarding employee accommodations to ensure that they reflect the increased protections afforded by the amendment.  Employers were required to provide written notice to its employees of the protections under this amendment by April 20th or post the notice conspicuously at its place of business in an area accessible to employees.  The Philadelphia Commission on Human Relations has provided a model notice to employees, which can be found at: http://www.phila.gov/HumanRelations/PDF/pregnancy_poster.pdf.