I know I promised that I would not have a blog this week. However, with the bat mitzvah a week from today, I am going out of my mind. Believe it or not, blogging relaxes me. Also, my wife and daughter are out shopping for the bat mitzvah leaving me alone with my miniature poodle. So, why not. But before moving on to the blog entry, it is that time of the year again to request your vote for the ABA Top 100. I have been fortunate to be an ABA top 100 legal blawg for the last three years and would love to be part of it again. This year your vote is even more important because what the ABA has done is extend the top 100 to law firm sites, podcasts, etc. as well as blogs. That means there may be a lot less blogs in the top 100 than there used to be. So, if you are inclined and enjoy this blog, please fill out the form and vote here.
Today’s case, a link to that case can be found courtesy of Epstein Becker Green’s Lexology entry here, came to my attention from Seyfarth Shaw’s blog, one of the blogs in my blogroll, and represents a contrary view to the cases that I discussed in this blog entry. As is usual, the blog entry is divided into categories and they are: facts; court’s reasoning due process; court’s reasoning primary jurisdiction; and takeaways. The reader is free to focus on any or all of the categories.
The facts are pretty straightforward. A legally blind individual Jaws user could not fully access the Hobby lobby website. As a result; he could not use the find a store location feature, and the gift card page, in addition to being confusing, did not allow him to purchase products from the website as the checkout feature did not work properly. Hobby Lobby moved to dismiss on due process grounds and on the primary jurisdiction doctrine. The court did not buy Hobby Lobby’s arguments and reasoned as follows:
Court’s Reasoning Due Process
- Hobby Lobby’s physical stores are a place of public accommodation.
- The parties agreed that for purposes of the motion to dismiss that the website was a service, privilege, or advantage of the physical stores and therefore subject to the ADA.
- In a footnote, the court notes that Hobby Lobby at summary judgment intends to argue that the website operates independently from its stores and so therefore, is not subject to the ADA.
- The lack of specific regulation does not eliminate Hobby Lobby’s obligation to comply with the ADA. While regulations amplify and augment statutory requirements, they do not displace statutory mandates.
- DOJ has consistently over the years, including as far back as 1996, has affirmed that title III applies to websites meeting the definition of a public accommodation.
- DOJ has also filed numerous amicus briefs and statements of interest in many lawsuits reiterating its position that the ADA applies to websites meeting the definition of a public accommodation and has initiated enforcement action to force compliance.
- Back in 2010, DOJ issued an advanced notice of proposed rulemaking on website accessibility and noted in that document it was of the view the ADA’s broad and expansive nondiscrimination mandate extended to goods and services provided by covered entities on websites over the Internet.
- The notice of proposed rulemaking specifically mentioned web content accessibility guidelines.
- Title III’s prohibition on discrimination on the basis of disability and its requirement to provide appropriate auxiliary aids and services, including where necessary to ensure effective communication, imposes an affirmative obligation on places meeting the definition of a public accommodation to ensure individuals with disabilities have as full and equal enjoyment of their websites as individuals without disabilities.
- The prohibition against discrimination in the enjoyment of goods, services, facilities or privileges means that whatever goods or services a place of public accommodation provides, it cannot discriminate on the basis of disability in providing enjoyment of the goods and services.
- Due process argument doesn’t work because it has been clear for some time that a place of public accommodation must have its website accessible to persons with disabilities and persons with disabilities must have equal enjoyment of the website as individuals without disabilities.
- Hobby Lobby is free to decide how to comply with the ADA since the DOJ has not imposed any specific compliance means. Just because there is flexibility in figuring out how to comply with the statute, that is an entirely different question from whether compliance is mandated in the first place. Accordingly, for due process purposes, the notice is whether Hobby Lobby knew it had to comply with the ADA and not whether it knows how it must comply with the ADA.
- Hobby Lobby arguments in some ways are premature as they go to the crafting of a remedy. When it come to the remedies point in time, the court will consider carefully what level of accessibility applies to the website.
- Plaintiff is not asking the court to fashion a remedy adopting a specific technical rule, but rather is asking the court to require Hobby Lobby to comply with DOJ’s directive that individuals with disabilities have equal enjoyment of its website as individuals without disabilities.
- Neither of the requirements for the primary jurisdiction doctrine are present in this case (the promotion of uniformity in determining administrative questions, and the need for highly specialized expertise).
- The potential for delay while the federal administrative rulemaking process proceeds is great. That is, since the DOJ issued the notice of proposed rulemaking in 2010, it hasn’t taken any further action towards promulgating specific accessibility requirements and no reason exists to believe DOJ will issue rules anytime in the near future.
- Within the same District of California, you have cases going both ways.
- On the plaintiff’s side, this case makes an important distinction that due process notice is not the how to comply but whether to comply at all. Clearly, there was plenty of notice that compliance was required.
- The case references Target and so presumably falls within the gateway theory of when a website must be accessible to persons with disabilities. Gorecki, the case that is the subject of this blog entry, doesn’t explicitly say how it goes about deciding whether the website is a place of public accommodation. The gateway theory does mean that even if the website is independent of its stores, it still may nevertheless be acting as a gateway to the stores. It will be interesting to see what the court does with this on summary judgment.
- The court was simply not willing to give a get out of jail free card to the defendant just because DOJ has not issued any regulations on the subject and is not likely to issue any regulations soon.
- 42 U.S.C. §12182(b)(1)(A)(ii) states, “It shall be discriminatory to afford an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals.” The effect of this clause is to bring into question the general requirements that title II and title III require meaningful access. Meaningful access might mean something less than being equal to what is afforded to individuals without disabilities. This court is essentially saying that this provision of the ADA and the proposed regulations implementing this statutory provision trumps meaningful access.
- On the defense side, if you get hit with a website accessibility lawsuit, your approach would be: 1) argue that the website is not a place of public accommodation; 2) argue due process; and 3) argue primary jurisdiction doctrine. On the plaintiff’s side you want to use this case to argue that due process and the primary jurisdiction doctrine are not applicable.
- With respect to whether the website is a place of public accommodation, that, as we have discussed in numerous blog entries, will depend upon the jurisdiction you are in. As mentioned in those entries, such as here, the trend is very much the gateway theory.
- If you are on the defense side, don’t go assuming that the Supreme Court is going to take a narrow reading and necessarily find in your favor. The Supreme Court frequently decides for persons with disabilities, especially outside of the employment context. In fact, in the last term, the Supreme Court came down with three decisions favoring the person with a disability, all of them we discussed in this blog.
- One of the things about people with disabilities, is that we silo. That is, for example, a deaf person is frequently most comfortable associating with other deaf/Deaf individuals and the same goes for other disabilities. As a result, a person of one kind of disability doesn’t always think about the other kinds of disabilities. So, when I read effective communication in this case, I was a bit startled because I don’t instinctively think of communication that way. That said, certainly a blind person using Jaws is trying to communicate with a place of business when doing so. Arguably, that is something that would fall within the effective communication rule, which we have discussed numerous times in this blog, such as here.
- Justice Gorsuch is very skeptical of the power of the administrative state and would be very unlikely to be receptive to the primary jurisdiction doctrine. He might be more receptive to due process claims, but the key there will be seeing whether he buys off on the distinction that notice pertains to compliance at all and not the how of compliance. I know he has been off to a very conservative start, but a reading of his jurisprudence over time suggests that he will not always be that way depending upon the nature of the case before him.
Have a great Fourth of July everyone and don’t forget to vote for this blog for the ABA 100.