Hope everyone had or is having a happy holiday. Also, baseball season is underway. The Chicago White Sox are up-and-coming, but their time may not be yet. The Chicago Cubs going into the season are one of the top three to go to the World Series. The Atlanta Braves are not going to be so good. Good luck to your team. Also, if you have Villanova to win it all, congrats! What a great team and a great start to the year for the City of Philadelphia!

Today’s blog entry is analyzing an Amicus brief filed by numerous folks with respect to the decision in Robles, discussed here, and Winn-Dixie, discussed here, where the lower courts disposed of the matter favorably to the plaintiff with respect to accessibility of websites. The Amicus brief was filed by numerous trade associations, including: Restaurant Law Center; American Bankers Association; American Hotel and Lodging Association; American Resort Developers Association; Asian American Hotel Owners Association; Chamber of Commerce of the United States; International Council of Shopping Centers; National Association of Convenience Stores; National Association of Realtors; National Association of Theater Owners; National Federation of Independent Businesses; National Multifamily Housing Council; and the National Retail Federation. The brief I am analyzing is the one filed in the Winn-Dixie case where the lower court said that WCAG 2.0 was the accessibility standard that had to be met. Virtually an identical brief was filed in Robles.

I thought it would be fun to highlight the arguments and then next to the argument explain whether I buy it or not. So, the categories of argument and conclusions are different than our usual ones.

I

Argument

  1. If the court affirmed the lower court’s decision at issue on this appeal the members of the various trade associations will be forced to do the impossible and try to comply with nonexistent, undefined, and potentially ever-changing standards of website accessibility.
  2. I’m buying sort of: I agree that complying with the lower court’s decision means complying with undefined, and potentially ever-changing standards of website accessibility. While I agree that the standards are undefined and potentially ever-changing, I don’t agree that standards are nonexistent. That is, in this particular case, the lower court went with Web Content Accessibility Guidelines 2.0. Also, when it comes to title III accessibility, the standard is meaningful access, a standard that does exist.
  3. Businesses are now subject to repeated lawsuits concerning their related noncompliance with nonstatutory, nonregulatory, nonbinding accessibility standards.
  4. I’m buying. Meaningful access comes from the common law and there are no regulations dealing with website accessibility.
  5. The District Court’s decision is inconsistent with the actual language of title III and its implementing regulations, which limits the term “place of public accommodation,” to physical establishments.
  6. I’m not buying. As we have discussed numerous times in our blog, such as here, whether a physical establishment is necessary for it to be considered a place of public accommodation under title III is very much open to interpretation for the reasons discussed in those blog entries. Also, the ADA itself makes clear that it is supposed to evolve with technology.
  7. Businesses can try in good faith to modify the websites to allow access to persons with disabilities, but the lack of definite regulations and agency guidance means there is no safe haven for compliance. Such uncertainty not only violates basic principles of administrative law, but also contravenes fundamental notions of due process as no definitive guidance instructs businesses how to operate ADA compliant websites.
  8. I’m not buying: Lawyers love certainty, but there is rarely a true safe haven. With respect to it violating administrative law, I don’t see how. True, regulations are proposed, go through a period of commenting, and then are issued in final form. Here regulations were proposed, but then dropped. If the lack of regulations is a problem and the regulations should not have been dropped under the law, why isn’t a writ of mandamus being sought to compel the federal government to issue the regulations it started (more on that later). With respect to due process, this isn’t a criminal situation. The case law is clear that what is required is meaningful access. So, everybody knows exactly what standard needs to be satisfied to comply with the ADA even if there are dozens of different ways to satisfy that standard. If persons with disabilities are involved in the website design process, it should be fairly obvious as to whether the website is meaningfully accessible to persons with disabilities. I do want to add that when it comes to website accessibility, be sure to assess it for voice dictation, screen reader compliance, and accessibility for the deaf/Deaf/hard of hearing.
  9. While the statute does not define the term “place,” the term is best read as referring to, “a physical environment,” according to Merriam-Webster.com
  10. Not buying: “place,” can have different meanings. I went online to the same dictionary cited in the brief, Merriam-Webster.com. It is true that #1a talks about “a physical environment.” However, #1b refers to a, “place” as meaning, “a way for admission or transit.” Using a public accommodation’s website is certainly a way for admission or transit to that particular public accommodation.
  11. Place equates with physical facilities in 42 U.S.C. §12181(7). Further, had Congress intended title III to apply to all businesses offering goods and services to the public, it would not have limited the defined list of public accommodations to only those offered at a place
  12. Not buying: As many decisions have mentioned, travel services are listed as one of the places of public accommodations, and they have never required a person to access a physical facility in order to use those services.
  13. 28 C.F.R. §36.104 defines a place of public accommodation as a facility. Further, facility refers to all or any portion of building, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walk, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located.
  14. I’m not buying necessarily: The reference to this particular Code of Federal Regulations is on the surface appealing. However, it ignores 28 C.F.R. §36.102(b), which makes clear that the requirements for places of public accommodations to comply with the ADA extend beyond the matter of simple physical places.
  15. Websites are not located in any particular physical place or facility, and therefore, are not places of public accommodation under title III. Although a chat room or other online form might be referred to metaphorically as a location or place, a physical presence is necessary to constitute a place.
  16. I’m not buying: As we have discussed numerous times before, this very much depends upon the jurisdiction you are in. It certainly is not a slam dunk that a physical place is necessary in order to be covered by title III of the ADA. Further, as we have discussed earlier, the term “place,” is subject to different definitions.
  17. The Department of Justice at 28 C.F.R. §36, Appendix A, has taken the position that title III covers access to websites of public accommodations. Such informal statements are not entitled to the force and effect of law. Regardless, DOJ has been inconsistent in its own position and has admitted that there is uncertainty regarding the applicability of the ADA to websites.
  18. I’m not buying and I’m buying: It is true that the Department of Justice has taken the position that title III covers access to websites of public accommodations. They also in an Amicus brief took that position as well and we discussed that Amicus brief here. Whether the Appendix and the Amicus brief are entitled to deference is very much an open question. See this blog entry for example. Finally, saying that there is uncertainty regarding the applicability of the ADA to websites does nothing more than acknowledge the reality of the current state of the case law.
  19. While Congress may amend the ADA to define a website as a place of public accommodation, it has not yet done so.
  20. I’m buying: This is the strongest argument against websites being a place of public accommodations. Congress did have the opportunity to amend the ADA when it did the amendments to the ADA that ultimately passed. Congress in passing the amendments, did not eliminate the word “place,” from title III of the ADA nor did they redo the definition so that it was clear that physical facilities did not generally have to be involved. Under our system of government, it is up to Congress to make the laws and here they passed up a chance to redefine things. On the other hand, courts have said that just because Congress doesn’t do something, that doesn’t mean that congressional intent can be inferred from that nonaction. Finally, travel services, as mentioned above, does appear in the list of public accommodations.
  21. Courts analyzing whether websites are subject to title III of the ADA break down into two different approaches: spirit of the law and Nexus.
  22. I’m not buying: I don’t like the names of the categories. I would prefer “focus on public accommodations,” and “gateway.” Also, there are two other categories as well, and they are: physical places only, and an outlier, which we discussed in the Robles blog entry, that a person has to be able to go into the store itself even if the website is a gateway before they can bring a title III suit.
  23. Spirit of the law cases ask whether businesses offer goods or services to the public via any platform and are focused on achieving a particular result, rather than effectuating the clear text of the ADA.
  24. I’m not buying: Again, I don’t like the term “spirit of the law.” I would prefer, “focus on public accommodation.” What this line of cases does is focus on whether a public accommodation is involved i.e. it asks if one of the categories in 42 U.S.C. 12181(7) are in play. If they are, then the website must be meaningfully accessible to persons with disabilities. I also disagree that the cases are focused on results any more than any other decision by any other judge. If you are a judicial realist, you would argue that every decision of a judge is focused on results. I get judicial realism on some level, studied it in college, but as a lawyer that is difficult to square with what you do as a lawyer in the first place or why you continue in the business. If law is so arbitrary, then one has to question the credibility of the whole process.
  25. Under the nexus approach, a business violates title III only when it impedes a disabled individual’s full and equal enjoyment of the goods and services offered at that business physical establishment.
  26. I’m not buying: As mentioned above, I prefer gateway rather than nexus. Gateway is easier to understand and less legalistic. This line of cases is looking to see if there is a connection between the website and what is offered in the stores. If there is, then title III applies. Further, the Amicus brief confuses the categories by referring to the outlier case that says you actually have to be in the store physically in addition to accessing the website in order for the gateway theory to apply. It doesn’t work that way. They are two different theories.
  27. The same defendant may get different results depending upon the jurisdiction the case is litigated in. For example, Netflix had that happen to them in California and in Massachusetts.
  28. I’m buying: This is absolutely true. However, why not have the defendant engage in preventive law so that the problem doesn’t occur. Also, if a lack of regulations is a problem, why not, as mentioned above, seek a writ of mandamus compelling regulation to be issued or bring political pressure so that the regulations get done.
  29. Existing regulations currently contain no provision governing the accessibility of websites or online content.
  30. I’m buying: As mentioned in the brief, in 2010, a notice of proposed rulemaking was issued, but the Trump administration put it all on the inactive list.
  31. Given that no regulations currently impose clearly defined obligations regarding website accessibility, businesses are simply not on notice as to what title III may require of them.
  32. I’m not buying: The case law is clear that what is required is meaningful access. Instead of looking at this as a problem, businesses can look at it as an opportunity. That is, the lack of regulations give businesses all kinds of possibilities to get to meaningful access without being put in the straitjacket of regulations. So, the standard is clear. How you get there is another matter. Since the standard is clear, I’m not buying the due process argument. Again, this is not a criminal situation, which to my mind makes all the difference in the world with respect to the due process concerns.
  33. Web Content Accessibility Guidelines are a set of non-mandatory accessibility guideline developed by the web accessibility initiative, a subgroup of the World Wide Web consortium. It is a private-sector international community member organization where full-time staff and the public work together to develop web standards.
  34. I’m buying: Even so, why not use it as a matter of preventive law?
  35. While the DOJ has referenced the WCAG guidelines, that did not turn them into mandatory rules nor into any rules entitled to deference. Further, WCAG have different categories of compliance, and so, a business would not know what level of compliance to meet. §508 also has its own regulations. So, which one does a business use?
  36. I’m buying but: I can’t argue with this. However, it doesn’t take away from the fact that the standard required by the ADA is meaningful access and that WCAG or §508 can be used as a preventive law matter. As mentioned above, the lack of regulations can be an opportunity for businesses rather than an obstacle. It all depends how you look at it.
  37. The never ending uncertainty underscores the importance of creating website accessibility guidelines through proper notice and comment rulemaking and not through litigation.
  38. I’m buying: But whose fault is that? That is, as court decisions have mentioned the lack of action by the federal government should not give businesses a get out of jail free card to ignore the accessibility of their businesses to persons with disabilities. Again, the standard is there; it’s just how you get there depends.

II

Conclusions:

  1. When I stepped away from drafting this blog entry, I got to thinking why a writ of mandamus wouldn’t work. That is, some kind of motion to compel the Department of Justice to formulate regulations. The reason it won’t work is because you can’t have it both ways. If the ADA does not apply to websites, then the Department of Justice does not have any reason to issue regulations in the first place since it is out of their jurisdiction. However, if the ADA does apply to websites, then the DOJ is mandated to issue regulations carrying out the ADA and they have not done so in this case. You can’t have it both ways. That is, you can’t argue that the ADA does not apply to the web but DOJ has to issue regulations. How can that be if the ADA doesn’t apply to website to begin with?
  2. Meaningful access is the standard. So, businesses and their coders should take this as an opportunity to work with the disability community (make sure you include voice dictation and screen reader users as well as the deaf/hard of hearing), to come up with creative ways to make sure that their websites are accessible to people with disabilities.
  3. The strongest argument industry has against website accessibility is that Congress passed up a chance when it amended the ADA to include the Internet and places of public accommodations. At the time of the amendments, the Internet was around for sure. That said, as courts have said, there can be lots of reasons why Congress doesn’t act. Also, the ADA was specifically intended to evolve with technology.
  4. It isn’t at all clear that title III of the ADA is entirely focused on facilities as the brief claims.
  5. What is a “place,” is the $64,000 question. Even the same dictionary has different definitions that can take you to very different places (pun intended). As mentioned above, DOJ has suggested that there are situations where a place of public accommodation may not be a physical facility. See this blog entry.
  6. I prefer to think of the possible approaches to website accessibility and the courts as being: physical place only; focus on place of public accommodation; gateway; and you have to be able to show that you have been physically in the store before you can go after Internet inaccessibility (the last one being a complete outlier). The trend has been the gateway approach, but that may be changing to a focus on public accommodation approach.
  7. WCAG and even §508 standards are a good place to look at for building a preventive law system for your website.
  8. Interesting that the brief never mentioned the primary jurisdiction doctrine. That may be because in light of the Trump administration withdrawing the regulations, I don’t see how such an argument could be credible. See this blog entry.

 

3 Responses to To Buy or Not: The Amicus Brief in Robles and Winn-Dixie

Great analysis, even though I don’t agree with all of it. The reason Congress required in the ADA that construction standards be promulgated and delayed enforcement until after they were published was that otherwise businesses would not know their obligation and would be subject to precisely the kind of varying results we are now seeing in the website cases. Without the Standards a very weak plaintiff could claim that a ramp with a slope of more than 2% made a sidewalk inaccessible and get past summary judgment to trial. A very short plaintiff could claim that signs conforming to the current standards were too tall for him and push on to a trial at which experts would argue about what “accessible” means. Instead of that situation we have the Standards, which define the statutory requirement and mean that any business knows that if it complies it will not be subject to suit based on the subjective experience of individual plaintiffs. The website problem is no different except for the politics. DOJ knew that it would never get Congress to amend the ADA to cover websites and that it was itself incompetent to promulgate regulations applicable to rapidly changing technologies. It was finally on the way to adopting WCAG 2.0 when the political winds shifted and an anti-regulation attorney general scrapped the regulations without thinking about the consequences for the businesses he thought he was going to protect. This leaves us with the situation that even perfect WCAG 2.0 AA compliance is no defense to an ADA lawsuit because the plaintiff’s subjective experience of accessibility is all that matters. More important, in certain respects WCAG 2.0 AA does not guarantee equal access. Navigation via screen reader is always slower than navigation based on visual cues because a sighted individual can see all the visual cues on a page far more quickly than a screen reader can read all the tags. Without a safe harbor of some kind any blind user can claim that the website should be somehow redesigned to make his/her access just as speedy as that of a sighted user.

This wouldn’t be so important if we didn’t have serial litigants filing strike suits to make legal fees. Because the serial litigation business model is based on the inability of the defendant to obtain dismissal or summary judgment and the lack of standards guarantees there will never be a dismissal or summary judgment businesses are subject to being held up over and over again regardless of the perfection of the website with respect to WCAG 2. 0 AA or even AAA. If they decide to duke it out they could be subject to inconsistent injunctions as different judges adopt different standards of accessibility.

There isn’t an easy answer given the political dysfunction that has spread from Congress to the administration and Department of Justice. It will take a defendant with the courage and resources to push the matter to the Supreme Court before we have a definitive set of rules that businesses can hope, at least, will let them both serve their customers and avoid litigation.

The Eleventh Circuit has removed the case from its oral argument calendar because Winn-Dixie’s operator, Southeastern Groceries, Inc. filed for Chapter 11 bankruptcy.

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