ADA and Disability Law

Our colleagues  at Epstein Becker Green has a post on the Retail Labor and Employment Law blog that will be of interest to our readers in the financial services industry: “NYC Commission on Human Rights Issues Guidance on Employers’ Obligations Under the City’s Disability Discrimination Laws.”

Following is an excerpt:

The New York City Commission on Human Rights (“Commission”) recently issued a 146-page guide titled “Legal Enforcement Guidance on Discrimination on the Basis of Disability” (“Guidance”) to educate employers and other covered entities on their responsibilities to job applicants and employees with respect to both preventing disability discrimination and accommodating disabilities. The New York City Human Rights Law (“NYCHRL”) defines “disability discrimination” more broadly than does state or federal disability law, and the Guidance is useful in understanding how the Commission will be interpreting and enforcing the law. …

Read the full post here.

Our colleague  at Epstein Becker Green has a post on the Hospitality Labor and Employment Law blog that will be of interest to our readers in the financial services industry: “The Generally Prevailing Website Accessibility Guidelines Have Been Refreshed – It’s Time to Officially Welcome WCAG 2.1.”

Following is an excerpt:

After nearly ten years, on Tuesday, June 5, 2018, the World Wide Web Consortium (the “W3C”), the private organization focused on enhancing online user experiences, published the long awaited update to its Web Content Accessibility Guidelines 2.0 (“WCAG 2.0”), known as the WCAG 2.1.  Those who have been following along with website accessibility’s ever-evolving legal landscape are well aware that, despite not having been formally adopted by regulators for the vast majority of the private sector, compliance with WCAG 2.0 at Levels A and AA has become the de facto baseline for government regulators, courts, advocacy groups, and private plaintiffs when discussing what it means to have an accessible website. …

Read the full post here.

Our colleague Joshua A. Stein, a Member of the Firm at Epstein Becker Green, has a post on the Retail Labor and Employment Law blog that will be of interest to many of our readers in the financial services industry: “Start Spreading the News – EDNY Denies Motion to Dismiss Website Accessibility Complaint.”

Following is an excerpt:

While the ADA finished celebrating its 27th anniversary at the end of July, for plaintiffs looking to bring website accessibility complaints in New York the party is still ongoing.  Following on the heels of last month’s decision of the U.S. District Court for the Southern District of New York in Five Guys, Judge Jack B. Weinstein of the U.S. District Court for the Eastern District of New York, in Andrews vs. Blick Art Materials, LLC, recently denied a motion to dismiss a website accessibility action, holding that Title III of the ADA (“Title III”), the NYS Human Rights Law and the New York City Human Rights Law all apply to websites – not only those with a nexus to brick and mortar places of public accommodation but also to cyber-only websites offering goods and services for sale to the public. …

Read the full post here.

Our colleague Joshua A. Stein, a Member of the Firm at Epstein Becker Green, has a post on the Retail Labor and Employment Law blog that will be of interest to many of our readers in the financial services industry: “Latest Website Accessibility Decision Further Marginalizes the Viability of Due Process and Primary Jurisdiction Defenses.”

Following is an excerpt:

In the latest of an increasing number of recent website accessibility decisions, in Gorecki v. Hobby Lobby Stores, Inc. (Case No.: 2:17-cv-01131-JFW-SK), the U.S. District Court for the Central District of California denied Hobby Lobby’s motion to dismiss a website accessibility lawsuit on due process and primary jurisdiction grounds.  In doing so, the Hobby Lobby decision further calls into question the precedential value of the Central District of California’s recent outlier holding in Robles v. Dominos Pizza LLC (Case No.: 2:16-cv-06599-SJO-FFM) which provided businesses with hope that the tide of recent decisions might turn in their favor. …

Read the full post here.

Our colleague Joshua A. Stein, a Member of the Firm at Epstein Becker Green, has a post on the Retail Labor and Employment Law blog that will be of interest to many of our readers in the financial services industry: “Nation’s First Website Accessibility ADA Trial Verdict Is In and It’s Not Good for Places of Public Accommodation.”

Following is an excerpt:

After years of ongoing and frequent developments on the website accessibility front, we now finally have – what is generally believed to be – the very first post-trial ADA verdict regarding website accessibility.  In deciding Juan Carlos Gil vs. Winn-Dixie Stores, Inc. (Civil Action No. 16-23020-Civ-Scola) – a matter in which Winn-Dixie first made an unsuccessful motion to dismiss the case (prompting the U.S. Department of Justice (“DOJ”) to file a Statement of Interest) – U.S. District Judge Robert N. Scola, Jr. of the Southern District of Florida issued a Verdict and Order ruling in favor of serial Plaintiff, Juan Carlos Gil, holding that Winn-Dixie violated Title III of the ADA (“Title III”) by not providing an accessible public website and, thus, not providing individuals with disabilities with “full and equal enjoyment.”

Judge Scola based his decision on the fact that Winn-Dixie’s website, “is heavily integrated with Winn-Dixie’s physical store locations” that are clearly places of public accommodation covered by Title III and, “operates as a gateway to the physical store locations” (e.g., by providing coupons and a store locator and allowing customers to refill prescriptions). …

Read the full post here.

On October 11, 2016, the United States Court of Appeals for the Seventh Circuit vacated the July 28, 2016 decision of a Seventh Circuit panel holding that sexual orientation discrimination is not sex discrimination under Title VII (discussed in our August 2, 2016 article) and granted rehearing en banc.  En banc oral argument is scheduled for November 30, 2016.

Employers Under the Microscope: Is Change on the Horizon?

When:  Tuesday, October 18, 2016    8:00 a.m. – 4:00 p.m.

Where:  New York Hilton Midtown, 1335 Avenue of the Americas, New York, NY 10019

Epstein Becker Green’s Annual Workforce Management Briefing will focus on the latest developments in labor and employment law, including:

  • Latest Developments from the NLRB
  • Attracting and Retaining a Diverse Workforce
  • ADA Website Compliance
  • Trade Secrets and Non-Competes
  • Managing and Administering Leave Policies
  • New Overtime Rules
  • Workplace Violence and Active-Shooter Situations
  • Recordings in the Workplace
  • Instilling Corporate Ethics

This year, we welcome Marc Freedman and Jim Plunkett from the U.S. Chamber of Commerce.  Marc and Jim will speak at the first plenary session on the latest developments in Washington, D.C., that impact employers nationwide.

We are also excited to have Dr. David Weil, Administrator of the U.S. Department of Labor’s Wage and Hour Division, serve as the guest speaker at the second plenary session. David will discuss the areas on which the Wage and Hour Division is focusing, including the new overtime rules.

In addition to workshop sessions led by attorneys at Epstein Becker Green – including some contributors to this blog! – we are also looking forward to hearing from our keynote speaker, Former New York City Police Commissioner William J. Bratton.

View the full briefing agenda here.

Visit the briefing website for more information and to register, and contact Sylwia Faszczewska or Elizabeth Gannon with questions.  Seating is limited.

Our colleagues Joshua Stein, co-chair of Epstein Becker Green’s ADA and Public Accommodations Group, and Stephen Strobach, Accessibility Specialist, have a post on the Retail Labor and Employment Law blog that will be of interest to many of our readers in the financial services industry:  “DOJ Refreshes Its Efforts to Promulgate Title II Website Accessibility Regulations and Other Accessible Technology Updates – What Does It All Suggest for Businesses?”

Following is an excerpt:

On April 28, 2016, the U.S. Department of Justice, Civil Rights Division, withdrew its Notice of Proposed Rulemaking (NPRM) titled Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities.  This original initiative, which was commenced at the 20th Anniversary of the ADA in 2010, was expected to result in a final NPRM setting forth website accessibility regulations for state and local government entities later this year. Instead, citing a need to address the evolution and enhancement of technology (both with respect to web design and assistive technology for individuals with disabilities) and to collect more information on the costs and benefits associated with making websites accessible, DOJ “refreshed” its regulatory process and, instead, on May 9, 2016, published a Supplemental Notice of Proposed Rulemaking (SNPRM) in the federal register. …

The questions posed in the SNPRM indicate that DOJ is considering many of the issues that Title III businesses have been forced to grapple with on their own in the face of the recent wave of website accessibility demand letters and lawsuits commenced on behalf of private plaintiffs and advocacy groups.  It would be a positive development for any eventual government regulations to clearly speak to these issues.  Conversely, it may be even longer before we see final regulations for Title III entities. …

While most current settlement agreements regarding website accessibility focus on desktop websites, many businesses are anticipating that the next target for plaintiffs and advocacy groups will be their mobile websites and applications.  Such concern is well founded as recent DOJ settlement agreements addressing accessible technology have included modifications to both desktop websites and mobile applications.

Read the full post here.

Frank C. Morris, Jr.
Frank C. Morris, Jr.

In recent years, employers have increasingly turned to web based recruiting technologies and online applications. For some potential job applicants, including individuals with disabilities, such as those who are blind or have low vision, online technologies for seeking positions can prove problematic. For example, some recruiting technologies and web-based job applications may not work for individuals with disabilities who use screen readers to access information on the web. The U.S. Department of Labor’s Office of Disability Employment Policy (ODEP) recently announced the launch of “TalentWorks.” TalentWorks is a free online resource intended to assist employers in providing accessibility in their web based job applications and recruiting technologies for job seekers with disabilities.

TalentWorks can provide background information on accessibility and e-recruiting in addition to tips for providing online job applications, digital interviews, pre-employment tests and resume upload programs that are accessible. The tool was created by DOL’s ODEP’s Partnership on Employment and Accessible Technology (PEAT). The PEAT developed the tool after a national survey of people with disabilities found 46% of the respondents rated their most recent online job application experience as “difficult as to impossible.”

Employers would be well advised to review TalentWorks in connection with their online recruiting efforts because if their online recruiting tools are not accessible to individuals with disabilities, they may be targeted for alleged Americans with Disabilities Act (ADA) violations by individuals, advocacy groups for the disabled and the EEOC – particularly if they do not provide alternative, regularly used, legitimate methods for job application. Moreover, federal contractors now have specific affirmative action goals for individuals with disabilities. In any audit of a contractor by DOL’s Office of Federal Contract Compliance Programs (OFCCP), it is likely that OFCCP will scrutinize whether the contractor’s avenues for job applications, including online recruiting, is accessible to individuals with disabilities. Further, a contractor may not be able to meet its goals for hiring of people with disabilities if their application process is not accessible.

The U.S. Department of Justice (DOJ) has investigated a number of cities and universities for alleged ADA violations in connection with their application, recruitment and training processes. DOJ’s enforcement activities have resulted in various settlement agreements requiring the cities (see page 4) and universities involved to make their application processes accessible to individuals with disabilities (See specifically Paragraph 22).

In light of such potential claims, we are working with employers on assessing their online recruiting and application processes, as well as their websites, to enhance accessibility and reduce potential exposure to ADA claims. With DOL’s focus on this issue with TalentWorks, it is clear that this is an issue that will continue to attract increasing attention and enforcement activity.

Our colleague Joshua A. Stein has a Retail Labor and Employment Law Blog post that will be of interest to many of our financial services industry readers: “Defending Against Website Accessibility Claims: Recent Decisions Suggest the Primary Jurisdiction Doctrine Is Unlikely to Serve As Businesses’ Silver Bullet.”

Following is an excerpt:

For businesses hoping to identify an avenue to quickly and definitively defeat the recent deluge of website accessibility claims brought by industrious plaintiff’s firms, advocacy groups, and government regulators in the initial stages of litigation, recent news out of the District of Massachusetts – rejecting technical/jurisdictional arguments raised by Harvard University and the Massachusetts Institute of Technology – provides the latest roadblock. …

These recent decisions reveal a reluctance among the courts to dismiss website accessibility actions on technical/jurisdictional grounds.  Taken along with the expanding number of jurisdictions who subscribe to legal theories accepting that Title III covers website accessibility (whether adopting a nexus theory or broadly interpreting the spirit and purpose of the ADA) and it is becoming increasingly clear that many businesses will have a difficult time ridding themselves of website accessibility claims in the early stages of litigation.  Of course, these decisions have been quick to note they do not foreclose a variety of potentially successful defenses that may be asserted later in the litigation – e.g., undue burden, fundamental alteration, and the provision of equivalent/alternative means of access.  While, to date, the existing website accessibility case law has not focused on when these defenses might prevail, with the recent proliferation of website accessibility demand letters and litigation, businesses should soon find themselves with greater guidance from the courts.  In the interim, the best way to guard against potential website accessibility claims continues to be to take prophylactic measures to address compliance before you receive a demand letter, complaint, or notice of investigation.

Read the full post here.