ADA and Disability Law

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.

Our colleague Frank C. Morris, Jr., a Member of the Firm in the Litigation and Employee Benefits practices, in the firm’s Washington, DC, office, was quoted in “Retaliation, ADA Charges Rise” by Allen Smith.  The article discusses the uptick in retaliation charges which have been filed and includes tips for employers on how to reduce the likelihood that they will get hit with those types of charges.

Following is an excerpt:

ADA cases today are more often about what took place in the interactive process for identifying a reasonable accommodation than about whether a disability is covered by the law. So, employers should have protocols in place on how to respond to accommodation requests and should document those efforts. This is “incredibly important” if there is litigation, Morris said.

If there is an agreement on an accommodation, put it in writing and have the employee sign the document, he recommended.

Remember that under the ADA, the accommodation obligation is ongoing. “Just because you’d done everything right in 2015 doesn’t mean you don’t need to do everything right in 2016,” he said. Things change, and the employer should be ready to start the accommodation conversation on fresh footing if the employee requests a new accommodation.

Joshua A. Stein

Frustrating news has emerged from Washington D.C. as the recently-published federal government’s Fall Semiannual Regulatory Agenda revealed that the long-anticipated U.S. Department of Justice’s (“DOJ”) Notice of Proposed Rulemaking (“NPRM”) for regulations governing website accessibility for places of public accommodation under Title III of the Americans with Disabilities Act (“Title III”) would not be issued in the Spring of 2016 as most recently anticipated and would instead be delayed until fiscal year 2018.  DOJ now intends to issue a NPRM governing website accessibility for state and local governments under Title II of the ADA in early 2016 and then hopes that that process will create the necessary infrastructure to develop and promulgate similar regulations for entities governed by Title III.

Such news is particularly troubling given the recent surge in website accessibility actions brought against places of public accommodation and business establishments operating exclusively in cyberspace by private plaintiffs, advocacy groups, and regulators at the federal, state, and local levels.  Indeed, notwithstanding DOJ’s latest delay, there is no indication that the federal government intends to cease its quest to have places of public accommodation provide accessible websites.  Relying upon Title III’s overarching civil rights obligations – most importantly that places of public accommodation provide “full and equal enjoyment” of its goods, services, etc. – DOJ continues to seek website accessibility provisions as part of its settlement agreements with a wide variety of places of public accommodation.  DOJ has even gone so far as to file Statements of Interest in private litigations ongoing between both Harvard University and the Massachusetts Institute of Technology and the National Association of the Deaf in the U.S. District Court for Massachusetts opposing their efforts to have the lawsuits dismissed or stayed pending DOJ’s completion of the rulemaking process.  (3:15-CV-30023 (D.Mass) and 3:15-CV-30224 (D.Mass))

The limited number of judicial decisions addressing the applicability of Title III to the websites of places of public accommodation and online businesses do not provide a clear road map for businesses due to the existence of a split body of case law.  The current law falls along three primary lines:  (i) Title III’s application is limited to actual physical places and cannot apply to websites absent an amendment to Title III or the issuance of new regulations; (ii) Title III applies to websites when there is a nexus between a physical place of public accommodation and the goods and services offered on its website; and (iii) Title III applies to even online-only businesses because Title III must be read broadly to promote the ADA’s goal of allowing individuals with disabilities to fully and equally enjoy and participate in society and, therefore, it must evolve to apply to new technologies.  The limited body of case law to date has developed primarily in the preliminary motion to dismiss phase and, therefore, the viability of various potential affirmative defenses or what it means for a website to be accessible has not be sufficiently analyzed by the courts.

Further complicating the landscape, since DOJ announced its previous delay of the regulations (then into April 2016) this past spring, businesses across most industries – including retail, hospitality, financial services, and sports and entertainment – have been deluged with demand letters from industrious plaintiffs’ firms seeking to take advantage of the regulatory uncertainty and limited case law.  Understanding that the costs of litigating a developing area of the law may prove significant and the return uncertain, many businesses are opting to reach amicable resolutions to these matters rather than explore more aggressive litigation positions.  To the extent others hoped that DOJ guidance would soon stem the tide of these demand letters, this most recent development is disheartening news.  Businesses hoping to avoid such letters are best served by taking prophylactic actions to address the accessibility of their websites.

For more on these issues see:

http://www.hospitalitylaboremploymentlawblog.com/2015/06/articles/ada/doj-further-delays-release-of-highly-anticipated-proposed-website-accessibility-regulations-for-public-accommodations/

http://www.technologyemploymentlaw.com/ada-and-disability-law/access-board-seeks-to-revise-accessibility-standards-for-information-and-communications-technology-of-federal-agencies-and-certain-technology-manufacturers-moving-to-functionality-based-approach/

http://www.ebglaw.com/joshua-a-stein/news/key-issues-facing-places-of-public-accommodation-at-the-25th-anniversary-of-the-ada/

 

In the wake of the U.S. Supreme Court’s decision in Young v. UPS, [1]  the EEOC has modified those aspects of its Enforcement Guidance on Pregnancy Discrimination and Related Issues (“Guidance”) that deal with disparate treatment and light duty.

Under the prior guidance, issued in 2014, the EEOC asserted that a pregnant worker could prove a violation of the Pregnancy Discrimination Act (“PDA”) simply by showing that she was “treated differently than a non-pregnant worker similar in his/her ability or inability to work.”  The 2014 guidance also took the position that an employer could not refuse to offer a pregnant worker an accommodation by relying on a policy that provides light duty only to workers injured on the job.  The Supreme Court, however, was highly critical of and rejected this interpretation of the PDA, finding that it would require employers who provide a single worker with an accommodation to provide similar accommodations to all pregnant workers, irrespective of other criteria.

Thus, in the Guidance the EEOC deleted that language and an entire section that discussed its interpretation of “Persons Similar in Their Ability or Inability to Work.”  The EEOC has updated its discussions about disparate treatment and light duty work assignments for pregnant workers by adopting the Supreme Court’s holding that a plaintiff may establish a prima facie case of pregnancy discrimination by following the McDonnell Douglas burden-shifting framework (i.e., by showing that she is pregnant, that she sought accommodation which was not granted, and that the employer accommodated others similar in their ability or inability to work).  Further, a plaintiff may show that the legitimate, non-discriminatory reasons for the employer’s actions – even if supported by a facially neutral policy – were pretextual by showing the employer’s policies caused a “significant burden” on pregnant workers without reasons that were “sufficiently strong to justify the burden.”

To illustrate, the Guidance states that a practice of providing light duty to a large percentage of non-pregnant employees, while failing or refusing to provide light duty to a large percentage of pregnant workers, might demonstrate that the policy significantly burdens pregnant employees.  The Guidance, however, fails to specify what it considers a “large percentage,” and provides no detail or examples as to what reasons might be sufficiently strong to justify such a burden.

This is the second time in two years that the EEOC has updated its enforcement guidance in this area.  Last year, the EEOC revamped the Guidance to provide an overview of coverage under the PDA, to address the impact of the inclusion of pregnancy-related impairments under the Americans with Disabilities Amendments Act of 2008, and to address other benefits that must be provided to pregnant workers.  These aspects of the Guidance remain unchanged.

Employers should take note of the EEOC’s increased scrutiny of facially neutral policies that may impose significant burdens on pregnant workers.  The EEOC’s current Strategic Enforcement Plan identifies the accommodation of pregnancy-related limitations as an emerging issue that will be prioritized, and the updated Guidance on this subject is evidence of the agency’s focus in this area.

[1] Young v. UPS, 135 S. Ct. 1338 (2015).

My colleague Laura A. Stutz  at Epstein Becker Green has a Retail Labor and Employment Law blog post that will be of interest to employers doing business in New York City: “New York City Investigation of Hiring Practices:.

Following is an excerpt:

New York City’s Commission on Human Rights is now authorized to investigate employers in the Big Apple to search for discriminatory practices during the hiring process. This authority stems from a law signed into effect by Mayor de Blasio that established an employment discrimination testing and investigation program.  The program is designed to determine if employers are using illegal bias during the employment application process.

Read the full original post here.

My colleague Nathaniel M. Glasser recently authored Epstein Becker Green’s Take 5 newsletter.   In this edition of Take 5, Nathaniel highlights five areas of enforcement that U.S. Equal Employment Opportunity Commission (“EEOC”) continues to tout publicly and aggressively pursue.

  1. Religious Discrimination and Accommodation—EEOC Is Victorious in New U.S. Supreme Court Ruling
  2. Transgender Protections Under Title VII—EEOC Relies on Expanded Sex Discrimination Theories
  3. Systemic Investigations and Litigation—EEOC Gives Priority to Enforcement Initiative
  4. Narrowing the “Gender Pay Gap”—EEOC Files Suits Under the Equal Pay Act
  5. Background Checks—EEOC Seeks to Eliminate Barriers to Recruitment and Hiring

Read the Full Take 5 here.

My colleague Joshua A. Stein at Epstein Becker Green has a Hospitality Labor and Employment Law blog post that will be of interest to many of our readers: “DOJ Further Delays Release of Highly Anticipated Proposed Website Accessibility Regulations for Public Accommodations.”

Following is an excerpt:

For those who have been eagerly anticipating the release of the U.S. Department of Justice’s proposed website accessibility regulations for public keyboard-4x3_jpgaccommodations under Title III of the ADA (the “Public Accommodation Website Regulations”), the wait just got even longer.  The recently released Spring 2015 Unified Agenda of Federal Regulatory and Deregulatory Actions reveals that DOJ’s Public Accommodation Website Regulations are now not expected until April 2016.  This delay moves back the release date nearly a year from what most had previously anticipated; this summer in advance of July’s 25th Anniversary of the ADA.  While there was no public statement explaining the release, most insiders believe it has to do with the difficulty of appropriately quantifying the costs and benefits of complying with any promulgated regulations – a necessary step by DOJ for such a rulemaking.

Read the full original post here.

To register for this complimentary webinar, please click here.

I’d like to recommend an upcoming complimentary webinar, “EEOC Wellness Regulations – What Do They Mean for Employer-Sponsored Programs? (April 22, 2015, 12:00 p.m. EDT) presented by my Epstein Becker Green colleagues Frank C. Morris, Jr. and Adam C. Solander.

Below is a description of the webinar:

On April 16, 2015, the Equal Employment Opportunity Commission (“EEOC”) released its long-awaited proposed regulations governing employer-provided wellness programs under the American’s with Disabilities Act (“ADA”). Although the EEOC had not previously issued regulations governing wellness programs, the EEOC has filed a series of lawsuits against employers alleging that their wellness programs violated the ADA. Additionally, the EEOC has issued a number of public statements, which have concerned employers, indicating that the EEOC’s regulation of wellness programs would conflict with the regulations governing wellness programs under the Affordable Care Act (“ACA”) and jeopardize the programs currently offered to employees.

During this webinar, Epstein Becker Green attorneys will:

  • summarize the EEOC’s recently released proposed regulations
  • discuss where the EEOC’s proposed regulations are inconsistent with the rules currently in place under the ACA and the implications of the rules on wellness programs
  • examine the requests for comments issued by the EEOC and how its proposed regulations may change in the future
  • provide an analysis of what employers should still be concerned about and the implications of the proposed regulations on the EEOC’s lawsuits against employers

Who Should Attend:

  • Employers that offer, or are considering offering, wellness programs
  • Wellness providers, insurers, and administrators

To register for this complimentary webinar, please click here.

My colleagues Frank C. Morris, Jr., Adam C. Solander, and August Emil Huelle co-authored a Health Care and Life Sciences Client Alert concerning the EEOC’s proposed amendments to its ADA regulations and it is a topic of interest to many of our readers.

Following is an excerpt:

On April 16, 2015, the Equal Employment Opportunity Commission (“EEOC”) released its highly anticipated proposed regulations (to be published in the Federal Register on April 20, 2015, for notice and comment) setting forth the EEOC’s interpretation of the term “voluntary” as to the disability-related inquiries and medical examination provisions of the American with Disabilities Act (“ADA”). Under the ADA, employers are generally barred from making disability-related inquiries to employees or requiring employees to undergo medical examinations. There is an exception to this prohibition, however, for disability-related inquiries and medical examinations that are “voluntary.”

Click here to read the full Health Care and Life Sciences Client Alert.

While 2014 was certainly a noteworthy year under Title III of the Americans with Disabilities Act (“Title III”), July 26, 2015, will mark the 25th anniversary of the ADA (“25th Anniversary”), an event that will almost certainly be celebrated with significant developments impacting the scope of Title III’s coverage. The U.S. Department of Justice (“DOJ”), charged with regulating Title III, is expected to advance and finalize regulations affecting a variety of industries, including, in some instances, financial services. Additionally, it would be reasonable to expect advocacy groups and plaintiffs—buoyed by these looming developments and emboldened by the 25th Anniversary—to continue the path followed over the past year, aggressively pursuing an expansive interpretation of Title III in “cooperative” agreements and litigation.

Contemplating what lies ahead is best done in tandem with an eye towards the year that was. While the year 2014 saw a variety of developments under Title III which targeted specific industries, one – relating to website accessibility – had potentially broader implications arguably impacting any entity covered by Title III, including financial services.

Website Accessibility

Over the past decade, website accessibility has become one, if not the most, prominent issue under Title III, as regulatory agencies at both the state and federal level and experienced advocacy groups have challenged the inaccessibility of websites under Title III and related state and local accessibility laws with increasing frequency. The legal landscape regarding this issue remains conflicted as courts have split over the issue of whether the term “Places of Public Accommodation” applies to websites and, if so, to what extent.

Generally, the division among courts has created three lines of thought: (i) the ADA must be read broadly to successfully achieve its purpose, allowing individuals with disabilities to fully and equally participate in society and, therefore, websites must be made accessible under Title III; (ii) the ADA must be read as it is written and, because “Places of Public Accommodation” are plainly defined with an extensive list of solely physical locations, the ADA must be amended, or new regulations promulgated, before Title III can apply to websites; and (iii) Title III applies to websites of Places of Public Accommodation to the extent there is a nexus between the goods and services provided by the brick-and-mortar Place of Public Accommodation and the website.

Notwithstanding this tension among the courts, DOJ—relying upon Title III’s overarching “full and equal enjoyment” obligation—has long taken a strident position that Title III, as currently drafted, unquestionably applies to the websites of Places of Public Accommodation. In addition, to further strengthen its position and to remove ambiguity about what constitutes an accessible website under Title III, since the summer of 2010, DOJ has been taking the steps necessary to promulgate regulations specifically addressing the requirements for website accessibility for public accommodations. At the time of this writing, the most recent estimates project that the next step in this rulemaking will occur this summer, shortly before the 25th Anniversary.

Separately, the U.S. Access Board continues to work on promulgating a revised version of Section 508 of the Rehabilitation Act of 1973, which addresses, among other accessible information and technology, website accessibility for federal agencies and the contractors of federal agencies in certain specific contexts. At the time of this writing, the most recent estimates project the next step in this rulemaking to occur sometime in early 2015. Previously, in December 2013, the U.S. Department of Transportation issued an amendment to the Air Carrier Access Act of 1986 (“ACAA”) placing accessibility obligations on public-facing websites of covered airlines and airports. 49 U.S.C. §41705; 14 C.F.R. Part 382.

Despite the fluid state of this issue on both the judicial and regulatory front, over the past year, both DOJ and advocacy groups, such as the National Federation of the Blind and the American Counsel for the Blind, have continued to press the issue, utilizing the threat of litigation and/or investigation to prompt website accessibility agreements with notable entities in a variety of industries. These agreements involved, among others, H&R Block, Peapod, Safeway, eBay, multiple colleges and universities (e.g., Florida State University, the University of Montana, and the University of Cincinnati), and other facilities, including hospitals and fashion retailers. In recent years certain Offices of the State Attorney General (e.g., New York State) have also pursued settlement agreements involving website accessibility in industries including financial services.

Fortunately, for those looking for guidance on how to make their websites accessible now or to take steps to prepare for the eventual finalization of DOJ’s looming regulations, there is a fairly clear path. Both the pending regulations and settlement agreements entered into by DOJ and advocacy groups generally define the appropriate level of website accessibility by referencing the Website Content Accessibility Guidelines (“WCAG”) 2.0, Levels A and AA, prepared by the Website Accessibility Initiative (“WAI”) of the World Wide Web Consortium (“W3C”). Places of Public Accommodation that wish to assess the accessibility of their websites and/or take steps to enhance their accessibility should engage in a user-based and programming-based dual-pronged audit of their websites against WCAG 2.0, Levels A and AA.