The Americans with Disabilities Act (ADA) continues to be one of the most hotly contested and among the most frequent source of federal lawsuits. The issue of accessibility, what is and is not accessible to people with disabilities, keep on roiling federal courts across the United States.
2019 was no exception. Thousands of ADA cases filled the federal dockets, with no end in sight. As 2020 proceeds, expect this trend to continue, with more records broken for the most litigated subjects.
Website and Mobile App Accessibility
As has been true for the past several years, website and mobile app accessibility lawsuits just kept on coming in 2019, exceeding the total number of cases filed in prior years. 2019 continued this trend, with more than 2,000 new website accessibility lawsuits filed throughout the country. Nearly 10 new website accessibility cases, on average, were filed each business day of 2019.
Federal courts in New York, California, and Florida again saw the largest number of new cases filed. Illinois and Pennsylvania federal courts trailed the big three for fifth and fourth place respectively.
In 2019, the United States Supreme Court decided not to review the case of Robles v. Domino’s Pizza, a website accessibility case from California. The Court’s action, coupled with the U.S. Justice Department’s ongoing decision not to guide businesses through the maze of website accessibility decision making, will undoubtedly foster further lawsuit increases. Without High Court or DOJ guidance, the rules of website and app accessibility are mostly left to be decided by individual courts on a case by case basis.
In addition to the omnipresent accessible website lawsuits, 2019 saw the continuation of several ADA litigation trends and the start of some new areas of concern.
Online Hotel Reservations and Accessible Hotel Rooms: Several cases were filed against hotels claiming that hotel reservation websites did not provide adequate information about accessible rooms and hotel common areas. Although providing such facilities is ADA required, how much information about them must be provided online is more nebulous. Plaintiffs with disabilities also filed lawsuits alleging that accessible hotel rooms are not being made available for reservation by travel agency and other third party reservation websites.
Effective Communication Lawsuits
Cases continue to be filed by deaf and hard of hearing people against local and state governments, health care providers, and more claiming they did not provide people with ADA required effective communications. Whether such communications are legally “effective” depends upon various factors such as the communication abilities of the deaf person and the complexities and length of the communications at issue. Many cases were filed claiming that Video Remote Interpreting through a laptop or mobile device did not function properly, thus allegedly depriving deaf people of the effective communications required by law.
Increasing Focus on Improving Accessibility for Blind Customers
A possible new trend appeared to spread among federal courts last year – whether gift cards must also be provided in Braille. The allegations in most of these cases are essentially identical; deciding if a business a business that sells gift cards must also offer them in Braille versions for customers who are blind or low vision and communicate by reading Braille. The Braille gift card claim is relatively new and somewhat unproven as an ADA violation. 2020 may reveal more about the claim’s legal viability and the emergence of a new ADA growth litigation trend.
Accessibility Regarding Physical Spaces
The ADA provides literally thousands of physical space accessibility requirements for local/state governments and public places, from the height of a water fountain’s water stream to the width and placement of accessible parking spaces. These cases continued in 2019 and will do so indefinitely as ADA compliance with the law’s myriad physical space requirements continues to lag. Parking space cases remain among the most frequent claims filed alleging physical space disability discrimination.
Accessible Hotel Rooms: The ADA mandates hotels to provide accessible rooms in various room types; king beds, two queen beds, suites, and rooms with kitchen facilities. The ADA requires that people with disabilities have equivalent room choices and selections compared to people without disabilities. Lawsuits alleging that such rooms are not provided or offered to people with disabilities are similarly expected to continue in 2020.
Service Animals under the ADA
Organizations continue providing much ammunition for ADA discrimination lawsuits related to service animals. Some organizations and businesses, for example, require documentation about a service animal’s training and continue not to train employees adequately so that they know how to respond legally to a customer with a service animal. Simply put, the ADA neither requires nor permits documentation about a service animal’s training to qualify as a service animal.
An October 2019 Department of Justice service animal settlement with a Virginia hotel is instructive here.
According to the settlement agreement:
“On or about October 1, 2018, as the complainant attempted to check into the Hotel, the desk clerk requested to see documentation regarding the complainant’s service dog. The complainant informed the desk clerk that the ADA prohibited the Hotel from requesting such documentation. Both the Hotel desk clerk and Hotel manager insisted that service dogs were not permitted without documentation. The complainant left the Hotel and found a hotel in Newport News, Virginia, which permitted his service dog without requiring any documentation.
Because of the denial of access to the Hotel, the complainant felt humiliated by Hotel staff and experienced emotional distress.
Landmark admits that the Hotel did request documentation for the complainant’s service dog and did not permit the complainant to check in without such documentation.”
As with all situations involving legal requirements, it is always about the policies and training that organizations and businesses provide. The better the training, the clearer and more compliant the policies that are put in place, the less risk of a lawsuit or federal enforcement. These axioms and best practices are invariably valuable concerning ADA compliance.
The ADA remains a treasure trove of lawsuit possibilities. This law will continue to be a valuable repository of potential legal claims. But now, organizations and businesses should be alerted to their need to become more proactively adept at meeting the recurrent onslaught of disability discrimination allegations.
© Bruce L. Adelson 2020. All Rights Reserved The material herein is educational and informational only. No legal advice is intended or conveyed.
Bruce L. Adelson, Esq., is nationally recognized for his compliance expertise. Mr. Adelson is a former U.S Department of Justice Civil Rights Division Senior Trial Attorney. Mr. Adelson is a Department of Family Medicine faculty member at Georgetown University School of Medicine where he teaches organizational culture, implicit bias, cultural and civil rights awareness.
Mr. Adelson’s blogs are Bromberg exclusive.