My daughter started high school today! City Schools of Decatur always start school on August 1. They operate on a six weeks on and one week off system with two months for summer vacation. They also get two weeks for Christmas. It took some getting used to, but I like it, and the kids appreciate a break every six weeks. Also, if you have not voted yet for understanding the ADA’s inclusion in the ABA blog 100 for this year, please do so. The link for voting can be found here, and you have until August 7 to vote. Your vote is much appreciated as is your readership.

 

You never know about a blog entry. Until about a 3 hours ago, I was thinking of blogging on some State developments with respect to the blowback against fake service dogs, and I still may do that at some point this week depending on my schedule. At any rate, I definitely have a discussion of the blowback against fake service dogs in my pipeline to blog about. However, I just saw in my Law 360 feed an unpublished decision from the 11th Circuit came down yesterday on whether the Internet is a place of public accommodation. The case is Haynes v. Dunkin’ Donuts LLC. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.

I

Facts

The plaintiff is blind. In order to use the Internet, he relies on screen reading software, JAWS. One day he attempted to go to the website for Dunkin’ Donuts but the website was not compatible with his or any other screen reading software. In particular, he could not use screen reading software to locate the physical Dunkin’ Donuts store locations or purchase gift cards online. Dunkin’ Donuts filed a motion to dismiss, which was granted by the District Court, and plaintiff appealed.

II

Court’s Reasoning Reversing and Remanding District Court’s Granting of Motion to Dismiss

  1. Per 42 U.S.C. §12182(b)(2)(A)(iii), discrimination includes when a place of public accommodation fails to take steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services.
  2. The prohibition on discrimination is not limited to tangible barriers that persons with disability face but extends to intangible barriers as well.
  3. Previously, the 11th Circuit has held in Rendon v. Valleycrest Productions, Limited that a telephone selection process that discriminated against the Deaf stated a claim for relief under the ADA because the inaccessibility of the telephone selection process prevented the plaintiff from accessing a privilege to be a contestant on the show afforded by the television studio.
  4. The website appears to be a service facilitating the use of Dunkin’ Donuts shops, which are places of public accommodations.
  5. Whatever goods and services Dunkin’ Donuts offers as a part of a place of public accommodation, it cannot discriminate against people on the basis of disability even where those goods and services are intangible.
  6. The alleged inaccessibility of Dunkin’ Donuts’ website denies the plaintiff access to the services of the shops available on Dunkin’ Donuts’ website, which includes information, among other things, about store locations and the ability to buy gift cards online. Such a failure to make those services accessible to the blind can be said to exclude, deny, or otherwise treat blind people differently than other individuals because of the absence of auxiliary aids and services.
  7. Per 28 C.F.R. §36.303(b)(2), screen reader software is given as an example of an auxiliary aid or service.

III

Takeaways

  1. This decision is not published. So, you will need to check your jurisdiction with respect to its citability.
  2. In a footnote, the court specifically leaves for summary judgment Dunkin’ Donuts’ argument that Dunkin’ Donuts website is not a service, privilege, advantage, or accommodation of Dunkin’ Donuts physical places of public accommodation because it is merely the franchisor of Dunkin’ Donuts shops. As this case goes forward, the parties would do well to keep in mind the litigation that has been going on with respect to joint employers and franchisors, such as McDonald’s. Many of my fellow bloggers (including Jon Hyman, Eric Meyer, and Robin Shea), have discussed that area of litigation. You can find all of their blogs in my blog roll.
  3. We have discussed whether Internet sites are places of public accommodations numerous times in this blog. As you may recall, the cases break down typically into: 1) the Internet is never a place of public accommodation; 2) the Internet is always a place of public accommodation; 3) the Internet is a place of public accommodation when it acts as a gateway to a physical place; 4) the Internet is a place of public accommodation if what is happening on that Internet site meets one of the categories laid out in 42 U.S.C. §12181(7); and 5) the Internet is a place of public accommodation only if it can be shown that the person with a disability would actually visit the physical store;. It is interesting that the decision does not mention any of the decisions in categories 1-5 of this paragraph. For that matter, the court does not discuss the recent United States Supreme Court decision in South Dakota v. Wayfair. 
  4. Lawyers love parameters that they can get their hands on. I am not sure this case offers much in that way. That said, in light of the recent Supreme Court decision mentioned in ¶ 3, the best preventive law approach involves asking whether the Internet site is engaged in any of the categories in 42 U.S.C. §12181(7), and if so, getting that website accessible to persons with disabilities. Remember, the standard is meaningful access (WCAG 2.0 AA is the gold standard), and don’t forget about voice dictation technology as well as screen reading technology. Also, don’t forget about making sure that the website works with individuals with multiple disabilities.
  5. The District Courts within the 11 Circuit are a mixed bag for people with disabilities, but as of late, persons with disabilities are faring very well at the 11th
  6. In the case we are discussing here, the court assumed that a place of public accommodation is involved and then proceeds to say a claim exist because a privilege, service, or advantage is involved. Further, that privilege, service, or advantage is treating people with disability differently than people without disabilities. It is going to be really interesting to see how the District Court rules on Dunkin’ Donuts’ future summary judgment motion.
  7. The blog entry where we discussed South Dakota v. Wayfair also has a discussion of Haynes V. Hooters. As far as I can tell, the plaintiff in Haynes v. Hooters and in the case discussed in this blog entry are one and the same.

Lastly, if you haven’t voted yet for understanding the ADA’s inclusion in the ABA 100, please do so!

For those who have children starting school eminently or, like myself, have children already starting school, good luck on the school year!

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