By Shira Blank and Joshua Stein: For More Info, Go Here…
As summer kicks into high gear, and the Americans with Disabilities Act’s 30th anniversary looms large at the end of this month, businesses in many jurisdictions are in the process of gradually reopening to the public.
And if the long and difficult spring wasn’t trying enough, businesses now face yet another challenge — balancing maintaining the safety of employees and patrons against complying with Title III of the ADA, and applicable state and local laws, which can significantly vary depending on the jurisdiction.
While in many ways the world keeps changing, some things never do — namely, the plaintiffs bar’s continued pursuit of ADA lawsuits involving both brick-and-mortar locations and digital technology. Moreover, the COVID-19 pandemic has also brought new issues to the forefront — including the filing of some lawsuits alleging novel theories.
Below, we round up some of the many accessibility issues that businesses should keep in mind as they navigate through this new era in hopes of successfully reopening in the new normal.
With businesses increasingly relying on technology, lawsuits regarding accessible technology begin to surge again.
Through personal experience, most businesses are all too aware of the seemingly endless stream of lawsuits filed against companies for their alleged failure to provide websites that are accessible to individuals who are blind/have low vision or are deaf/hard of hearing. Although the number of federal lawsuits has arguably plateaued to some extent, the number of cases pursued in California state court, and through private demand letters, most certainly has not.
As plaintiffs counsel now argue that in this time of COVID-19 website accessibility is more urgent than ever, companies’ risks of website accessibility lawsuits are greater than ever.
This risk is only heightened — particularly for those operating in California — following a slew of recent decisions, including one from the California Court of Appeals just last month in Martinez v. San Diego County Credit Union reversing a trial court’s decision which found that a credit union’s website, which allowed users to find its physical banking location, was not a place of public accommodation.
In its decision, the appellate court reaffirmed that under California state law — the Unruh Civil Rights Act — where a business has a nexus between its website and a physical place of public accommodation, it is required to make the website accessible to individuals who are blind or have low vision, which is consistent with the position taken by California federal courts when considering the same issue under Title III.
The obligation to provide accessible technology to individuals with disabilities goes beyond website accessibility. For example:
- Businesses must provide accessibility when relying upon the use of touchscreen devices. Depending upon the purpose of the device — e.g., for cashless methods of payment — this may involve substantial conformance with the Web Content Accessibility Guidelines 2.1 at Levels A and AA, but it might also involve providing audio-enabled guidance, braille/tactile keypads and/or swipe gesture-enabled operations, as well as mounting such devices at appropriate heights, within necessary reach ranges, and with sufficient clear floor space.
- If attempting to utilize touch-free methods for opening doors, businesses need to do so in a way that maintains access for individuals using mobility devices, such as wheelchairs — e.g., via the use of motion-sensor devices.
- For individuals who are deaf or hard of hearing, businesses should provide captioning or transcripts for videos, and consider policies for methods of providing access to captioning for older videos.