nexus

What’s a Nexus Anyway?

October 22, 2018 by William Goren 1 Comment

As I have mentioned before, I am not afraid to blog on cases discussed by fellow bloggers. Recently, Richard Hunt, whose blog appears on my blog roll, discussed a whole bunch of cases. Many of those cases I have put in my to blog pipeline, and two of which are the subject of today’s blog. Both cases involve website accessibility. One involves a credit union and the other involves General Nutrition Corporation. The cases are Jones v. Lanier Federal Credit Union, 2018 U.S. Dist. LEXIS 171060 (N.D. GA, September 26, 2018), and Gomez v. General Nutrition Corp., 2018 U.S. Dist. LEXIS 49655 (S.D. Fla. 2018), also here. Gomez is a published decision. With respect to Jones, in the interest of full disclosure, local counsel on the case was James Radford and his firm Radford and Keebaugh, from Decatur Georgia. I know James and his partner, Regan Keebaugh, and refer many cases to them. I am not sure whether Jones will be published. As usual, the blog entry is divided into categories and they are: Jones facts; Jones court’s reasoning; Jones takeaways; Gomez facts; Gomez court’s reasoning; and Gomez takeaways. Of course, the reader is free to focus on any or all of the categories.

Jones Facts

The facts are straightforward. Plaintiff uses a screen reader, and the defendant operates a website providing information about its location, services and amenities. When plaintiff tried to access the website, he found empty or missing form labels, empty links containing no text, and redundant links thereby denying him the full use and enjoyment of the credit union’s facilities and services. Plaintiff sought an injunction as well as attorney’s fees.

Jones Court’s Reasoning

Membership in the credit union is not a prerequisite for standing.
Plaintiff suffered a concrete injury when he attempted to access the website but was unable to fully and effectively utilize it.
Plaintiff adequately pled a threat of future discrimination by defendant when he alleged an intent to return to the website, whereupon he will face barriers to access because he is visually-impaired.
The injury plaintiff seeks to address is not the inability to access defendant’s services. Rather, it is the inability to access defendant’s website. So, an order by the court requiring defendant to remove the barriers facing the plaintiff when attempting to use defendant’s website would address that injury.
Defendant’s physical locations are public accommodations.
Regardless of whether the theory is that a website can be considered a public accommodation without a connection to a physical place or whether a sufficient nexus must exist, plaintiff’s case goes forward either way.
A nexus exists because: 1) the website provides goods and services such as information concerning the locations it operates and information and descriptions of its amenities and services, privileges, advantages and accommodations; 2) the website allows user to find locations for them to visit; and 3) plaintiff alleged he was deterred from visiting the physical locations that plaintiff has as a result of using the website.
With respect to a nexus, the website is heavily integrated with and in many ways operates as a gateway to defendant’s physical store locations, and plaintiff cannot fully and equally enjoy those goods and services offered by the defendant because of the website’s inaccessibility.
With respect to the due process argument under the void for vagueness doctrine since no regulation for website accessibility exist or are forthcoming, the court found that the ADA is not so unclear as to be unconstitutionally vague even without the benefit of DOJ regulations. Further, plaintiff is not seeking an injunction imposing WCAG 2.0, rather plaintiff seeks to require defendant’s compliance with the ADA without dictating how the defendant has to comply with the statute. Accordingly, the requested relief does not violate due process.
In a footnote, the court notes that being a tester does not preclude standing under the ADA.
In another footnote, the court questioned whether the nexus test is the proper test for figuring out website accessibility.

III

Jones Takeaways

As Richard Hunt has discussed numerous times in his blog, some courts are buying that you can’t get to first base in a website accessibility case unless there is some probability that you could actually take advantage of that particular place of public accommodation. This court was having none of it.
In a footnote, this court makes clear that while it believes a gateway exists sufficient to find standing, it prefers the approach that a website may be considered a public accommodation without a connection to a physical place.
The court was also having none of the argument that the lack of DOJ regulations violates due process. The critical factor is that the defendant has flexibility with respect to ADA compliance, but that the ADA must be complied with.
Just because plaintiff is a tester, doesn’t affect standing one way or the other.
When I first started dealing with website accessibility issues, I was of the opinion that flexibility for defendants is great, and that regulations only take away that flexibility. However, for the reasons that Richard has mentioned in his blog on more than one occasion, I have come around to the position that DOJ regulations if gone through the proper rulemaking process whereby all views are considered would bring needed sensibility to the area. Without such regulations, it is completely up to each court to figure out what meaningful accessibility is and that is going to vary from judge to judge and plaintiff to plaintiff.

Gomez Facts

Gomez is legally blind and uses screen reading software to access the Internet. The summer of 2017, plaintiff visited the website of the General Nutrition Company. That website allows customers to purchase General Nutrition Company’s goods and services as well as view any promotions and deals offered at that time. It also provides a store locator. When Gomez visited the website, he could not access many of its features, such as adding items to its online shopping cart, accessing the store locator, or reading the deals and promotions. The inaccessibility was due to the mislabeling of the online content so that his screen reader did not work properly. While the website did not include a statement regarding defendant’s commitment to ADA compliance, in its terms and conditions, it did provide a phone number for customers to call if they needed additional assistance. As recently as June 2018, defendant’s expert using automated accessibility tests AChecker and WAVE found zero errors and no known problems with the website. However, plaintiff’s expert found errors that could prevent a user from selecting a product and completing a purchase. Plaintiff filed a motion for summary judgment and a motion to exclude the testimony and opinions of defendant’s expert.

Gomez Court’s Reasoning

When it comes to injunctive relief, plaintiff must show a sufficient likelihood that he will be injured by such conduct in the future. Plaintiff has done that because he faces barriers to access the website and thereby suffered a concrete injury. Further, if the problems are not addressed, he will suffer that same injury in the future.
Plaintiff’s status as an ADA tester has nothing to do with his standing.
As we have discussed previously here, in the 11^th Circuit, title III covers both tangible and intangible barriers, and that whatever goods and services the public accommodation offers as part of its place of public accommodation, the public accommodation cannot discriminate against people on the basis of disability, even if those goods and services are intangible.
Courts in the 11^th Circuit have found that websites are subject to the ADA if a nexus between the website and the physical premises of a public accommodation can be established.
Few courts have defined nexus precisely. As we have discussed previously here and here for example, where a website is heavily integrated with physical store locations and operate as a gateway to the physical store location, courts have found that the website is a service of the public accommodation and covered by the ADA. That is, the ADA prohibits a retailer’s website from impeding a person with a disability’s full use and enjoyment of the brick-and-mortar store.
Just providing information may not be enough to establish a nexus. However, citing to various cases, the ability to pre-order or purchase products probably does create a sufficient nexus between the website and the physical store.
Looking at the various decisions as a whole, a number of factors exist for determining whether a website has a sufficient nexus to the physical stores. Those factors are: 1) whether the website provides a service of the public accommodation like the ability to purchase or preorder products; 2) whether the alleged barrier to access prevents the full use and enjoyment of services of the public accommodation; 3) whether the website provides more than just information about the store; 4) whether the website impedes access to the physical location; and 5) whether the website facilitates the use of the physical stores.
In this situation, GNC’s website is a service facilitating the use of the physical store, and therefore, it is a place of public accommodation. More specifically, the ability to purchase products remotely is a service of the physical stores. Further, by providing information about promotions and deals in addition to information about store information, the website operates as a gateway to physical stores.
Defendant’s expert lacked specialized knowledge or experience on website accessibility. Further, his professional training and experience is in e-commerce, which is only tangentially related to web accessibility. Defendant’s expert does not know the success criteria of the accessibility checking software relied on by the defendant. Further, defendant’s expert does not usually run those tests personally himself.
Defendant’s expert not only based his opinion upon reliable principles or methods but also on the input he had received from people over 20+ years of just interaction. That kind of interaction cannot be tested or peer-reviewed, has no known rate of error, and defendant put forth no evidence that such a technique is accepted in the relevant scientific community.
While testimony on website accessibility would be helpful to deciding the case, defendant’s expert lack of experience in web accessibility and the unreliability of his opinions outweigh any potential helpfulness.
Plaintiff’s expert tested the website and found that it had 77% and 64% compliance on success levels AA and A and that such errors could prevent a user from selecting a product and completing the purchase.
While the court can grant summary judgment to plaintiff as to liability, it cannot grant summary judgment as to the remedy for two reasons. First, plaintiff has provided no support that WCAG 2 .0 is an appropriate remedy. Second, even if that was the appropriate remedy, the record is silent as to which success level is most appropriate.
In a footnote, the court noted that the defendant has been hauled into court regarding website accessibility before. That case settled. As part of that settlement, the defendant agreed to take commercially reasonable steps to improve accessibility for individuals using screen readers. Further, that agreement stated that the defendant may use WCAG 2.0 level AA or other applicable authority as a reference for making such improvements.
In another footnote, the court noted that plaintiff’s expert may very well be qualified to talk on matters within his expertise, such as the costs to implement accessibility measures but that does not help with regard to ADA compliance.
In yet another footnote, the court found highly persuasive the number of cases adopting WCAG 2.0 success level AA as the appropriate standard to measure accessibility.

Gomez Takeaways

Plaintiff prevailed on summary judgment, which is not a frequent occurrence at all.
When it comes to website accessibility, there are three things a business needs to be concerned about. In particular, the website needs to be meaningfully accessible to persons with disabilities using screen readers, voice dictation technology, and to the Deaf/hard of hearing, if audio is involved.
This case is the first one I am aware of that has reviewed the case law to figure out just what factors the courts consider when determining whether a nexus exists. Lawyers may find this analysis very helpful in the future. As discussed in the opinion, these factors are individual and not in combination. That is, you get a nexus if any of the factors are met.
One wonders how this particular judge, Marcia Cooke of the Southern District of Florida, would have dealt with Jones because of her reference that just providing information may not be enough to establish a nexus.
Liability and a remedy are not the same thing.
As Richard Hunt has mentioned previously in his blog entries, relying on widely available Internet checking tools for accessibility may not be enough. The key is whether the individual with the disability has meaningful access.
The court acknowledged that expert testimony on website accessibility if the expert was properly qualified could be very helpful.
If you are looking for signals, the footnotes mentioned in the Gomez takeaways section above, are definitely important reading.
The Winn-Dixie decision that will come down from the 11^th Circuit will definitely impact both of the cases we discussed today.

In the Middle District of Florida, Curiosity isn’t Enough to get by a Motion to Dismiss When it Comes to Website Accessibility

October 9, 2018 by William Goren 1 Comment

Yesterday, I celebrated my birthday. It turns out that both my wife and my daughter had the day off. So, I got some time with the family and some alone time, including watching the Braves lose unfortunately. Still, a great season for the Braves. If you still have a team in the hunt, good luck!

One of the things that I do is a great deal of legal consulting. That includes this blog and training. It also includes serving as an expert witness, consulting expert, or consultant on litigation when it comes to ADA compliance. The Expert Institute is running a best legal blog contest, and I would appreciate your vote if you have the time to do so. Of course, I so much appreciate you voting for me with respect to the ABA 100. I should find out about that around Thanksgiving. Thanks again for all your support and your readership. I wouldn’t do this otherwise.

Today’s blog entry explores whether curiosity is sufficient to get you pass a motion to dismiss when it comes to website accessibility. The Middle District of Florida in Price v. Everglades College Inc. says it is not. I fully expect this case to be appealed in light of how progressive the 11^th Circuit has been lately when it come to the rights of persons with disabilities. Also, I note that last week the 11^th Circuit heard argument in the Winn-Dixie case (the lower court decision we discussed here).

As usual, the blog entry is divided into categories and they are facts; court’s reasoning granting the motion to dismiss; deep dive into court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.

Facts Taken Directly from the Court Opinion

“The Complaint states that the Plaintiff, who is visually impaired, “is a prospective student who is interested in attending the Keiser University by taking classes at its Daytona Beach campus location.”¹²² Doc. 1 ¶ 24. The Plaintiff allegedly called the Defendant²²³ in order “to inquire about Admission to the Keiser University, requirements for admissions, available courses, and accommodations for his disability.” Id. ¶ 25. The Plaintiff claims that the “Defendant’s representative failed to fully assist Plaintiff and referred him to its Website.” Id. The Plaintiff apparently attempted to utilize the Defendant’s website using screen reader software, but because the software was unable to access various electronic documents on the website, the Plaintiff states that he could not find out information necessary to apply to Keiser; research available degree types, pre-requisites, and course descriptions; view the course catalog; and view available accommodations that Keiser could offer him for his disability. Id. ¶ 29.”

The defendant filed a motion to dismiss.

Court’s Reasoning Granting the Motion to Dismiss

Citing to a Middle District of Florida case, the court says that a website itself is not a public accommodation for purposes of the ADA.
Citing to Rendon v. ValleyCrest Productions, Limited, an 11^th Circuit case from 2002, the court says that the ADA covers both tangible and intangible barriers to enjoyment of public accommodations.
The court notes disagreement among the district courts with respect to website accessibility, but goes on to say that it appears to it that the majority of courts agree that websites are not covered by the ADA unless some function on the website hinders the full use and enjoyment of a physical space. In particular, the court cites to Gomez v. Bang and Olufsen Am., Inc., which we discussed in this blog entry.
A plaintiff alleging an inaccessible website impedes access to a physical location must establish some nexus between the website and the physical place of public accommodation.
All the ADA requires is if a public accommodation chooses to have a website, the website cannot impede a disabled person’s full use and enjoyment of the brick and mortar place of public accommodation.
While a nexus is obviously a requirement, alleging the mere existence of some connection or link between the website and the physical location is not sufficient to survive a motion to dismiss.
District Courts in the 11^th Circuit distinguish between the inability to use a website to gain information about a physical location and the inability to use a website that impedes access to enjoy a physical location by holding, that the inability to use a website to gain information is not sufficient to state a claim under the ADA.
To hold otherwise, would mean that all websites with any nexus to a physical public accommodation must be formatted in such a way that they are accessible to screen reader software. District courts have been unwilling to take such a leap and neither will this court.
Plaintiff alleged only facts indicating his inability to gain information about the location, rather than his access to enjoyment of the University itself. The plaintiff did not make any allegation that he was unable to apply to the University, pay tuition, or use the student portal on the website.
The court dismissed the complaint without prejudice. Therefore, the plaintiff has 21 days from the date of the order to file an amended complaint.

III

Deep Dive

It is absolutely true that the 11^th Circuit has held that the ADA covers both tangible and intangible barriers to enjoyment of public accommodations. However, reading Rendon v. Valleycrest Productions, Limited reveals that what they were referring to with respect to intangible barriers was practices, policies, and procedures. In that case, they held that the practices, policies, and procedures screened out persons with disability from being able to participate in the game show. Rendon at its core is really a screen out case. As such, Rendon could be used to support the plaintiff on appeal.
Interestingly enough, there is no mention of Haynes v. Dunkin’ Donuts LLC in the decision. Admittedly, Haynes is unpublished, but in the 11^th Circuit, citing to unpublished decisions is permissible when that decision is very much on point, which is the case here.
The court doesn’t quite get it right how Internet accessibility jurisprudence is evolving. As we have talked about in our blog, there are several possibilities when it comes to website accessibility litigation and they are: 1) a place of public accommodation must be a physical space; 2) the Internet is always subject to the ADA; 3) an Internet site is subject to the ADA if it acts as a gateway to a brick-and-mortar store; and 4) the Internet site is subject to the ADA if one of the activities and 42 U.S.C. §12181(7) is involved. As we have discussed here and here, the trend is headed towards #4.
The Bang and Olufsen case, which we discussed here, is a real outlier. There is a difference between that holding and between the cases holding that a gateway to the physical place of public accommodation must exist for the ADA to apply to the Internet site. There is also a difference between the holding in Bang and Olufsen and the 11^th Circuit holding in Haynes v. Dunkin’ Donuts, LLC, discussed here, which focuses on whether the website was facilitating the use of the place of public accommodation.
The inability to use a website to gain information about a physical location being insufficient for coverage under the ADA does in fact screen out people with disabilities in that how are they going to find out about something they are curious about if the site is inaccessible?

Takeaways

I fully expect the plaintiff to either appeal this decision to the 11^th Circuit or to take advantage of amending the complaint within 21 days of the order in order to satisfy the concerns of the court. If an amended complaint does not satisfy the court, I definitely would expect an appeal.
As I mentioned above, Winn-Dixie was argued last week and the decision there will very much impact this particular case.
The Southern and Middle District of Florida and other District Courts in the 11^th Circuit are clearly lagging behind the 11^th Circuit jurisprudence.
If there is a moral of the story, setting forth enough facts to give the court a very specific idea as to what is going on is always a good approach. That is, pure notice pleading is not recommended. The closer you get to fact-based pleadings, the better off you are going to be.
A close read of Rendon reveals that that case can be used to support the plaintiff as well as the defendant.
The court’s reliance on Bang and Olufsen is interesting in light of the fact that particular case is very much an outlier.
Richard Hunt, who blog can be found in my blog roll, in one of his recent blog entries, discussed why the lack of regulations for website accessibility even if it offers businesses more flexibility, is a disaster. I commend readers to its reading.

To Buy or Not: The Amicus Brief in Robles and Winn-Dixie

April 4, 2018 by William Goren 3 Comments

Hope everyone had or is having a happy holiday. Also, baseball season is underway. The Chicago White Sox are up-and-coming, but their time may not be yet. The Chicago Cubs going into the season are one of the top three to go to the World Series. The Atlanta Braves are not going to be so good. Good luck to your team. Also, if you have Villanova to win it all, congrats! What a great team and a great start to the year for the City of Philadelphia!

Today’s blog entry is analyzing an Amicus brief filed by numerous folks with respect to the decision in Robles, discussed here, and Winn-Dixie, discussed here, where the lower courts disposed of the matter favorably to the plaintiff with respect to accessibility of websites. The Amicus brief was filed by numerous trade associations, including: Restaurant Law Center; American Bankers Association; American Hotel and Lodging Association; American Resort Developers Association; Asian American Hotel Owners Association; Chamber of Commerce of the United States; International Council of Shopping Centers; National Association of Convenience Stores; National Association of Realtors; National Association of Theater Owners; National Federation of Independent Businesses; National Multifamily Housing Council; and the National Retail Federation. The brief I am analyzing is the one filed in the Winn-Dixie case where the lower court said that WCAG 2.0 was the accessibility standard that had to be met. Virtually an identical brief was filed in Robles.

I thought it would be fun to highlight the arguments and then next to the argument explain whether I buy it or not. So, the categories of argument and conclusions are different than our usual ones.

Argument

If the court affirmed the lower court’s decision at issue on this appeal the members of the various trade associations will be forced to do the impossible and try to comply with nonexistent, undefined, and potentially ever-changing standards of website accessibility.
I’m buying sort of: I agree that complying with the lower court’s decision means complying with undefined, and potentially ever-changing standards of website accessibility. While I agree that the standards are undefined and potentially ever-changing, I don’t agree that standards are nonexistent. That is, in this particular case, the lower court went with Web Content Accessibility Guidelines 2.0. Also, when it comes to title III accessibility, the standard is meaningful access, a standard that does exist.
Businesses are now subject to repeated lawsuits concerning their related noncompliance with nonstatutory, nonregulatory, nonbinding accessibility standards.
I’m buying. Meaningful access comes from the common law and there are no regulations dealing with website accessibility.
The District Court’s decision is inconsistent with the actual language of title III and its implementing regulations, which limits the term “place of public accommodation,” to physical establishments.
I’m not buying. As we have discussed numerous times in our blog, such as here, whether a physical establishment is necessary for it to be considered a place of public accommodation under title III is very much open to interpretation for the reasons discussed in those blog entries. Also, the ADA itself makes clear that it is supposed to evolve with technology.
Businesses can try in good faith to modify the websites to allow access to persons with disabilities, but the lack of definite regulations and agency guidance means there is no safe haven for compliance. Such uncertainty not only violates basic principles of administrative law, but also contravenes fundamental notions of due process as no definitive guidance instructs businesses how to operate ADA compliant websites.
I’m not buying: Lawyers love certainty, but there is rarely a true safe haven. With respect to it violating administrative law, I don’t see how. True, regulations are proposed, go through a period of commenting, and then are issued in final form. Here regulations were proposed, but then dropped. If the lack of regulations is a problem and the regulations should not have been dropped under the law, why isn’t a writ of mandamus being sought to compel the federal government to issue the regulations it started (more on that later). With respect to due process, this isn’t a criminal situation. The case law is clear that what is required is meaningful access. So, everybody knows exactly what standard needs to be satisfied to comply with the ADA even if there are dozens of different ways to satisfy that standard. If persons with disabilities are involved in the website design process, it should be fairly obvious as to whether the website is meaningfully accessible to persons with disabilities. I do want to add that when it comes to website accessibility, be sure to assess it for voice dictation, screen reader compliance, and accessibility for the deaf/Deaf/hard of hearing.
While the statute does not define the term “place,” the term is best read as referring to, “a physical environment,” according to Merriam-Webster.com
Not buying: “place,” can have different meanings. I went online to the same dictionary cited in the brief, Merriam-Webster.com. It is true that #1a talks about “a physical environment.” However, #1b refers to a, “place” as meaning, “a way for admission or transit.” Using a public accommodation’s website is certainly a way for admission or transit to that particular public accommodation.
Place equates with physical facilities in 42 U.S.C. §12181(7). Further, had Congress intended title III to apply to all businesses offering goods and services to the public, it would not have limited the defined list of public accommodations to only those offered at a place
Not buying: As many decisions have mentioned, travel services are listed as one of the places of public accommodations, and they have never required a person to access a physical facility in order to use those services.
28 C.F.R. §36.104 defines a place of public accommodation as a facility. Further, facility refers to all or any portion of building, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walk, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located.
I’m not buying necessarily: The reference to this particular Code of Federal Regulations is on the surface appealing. However, it ignores 28 C.F.R. §36.102(b), which makes clear that the requirements for places of public accommodations to comply with the ADA extend beyond the matter of simple physical places.
Websites are not located in any particular physical place or facility, and therefore, are not places of public accommodation under title III. Although a chat room or other online form might be referred to metaphorically as a location or place, a physical presence is necessary to constitute a place.
I’m not buying: As we have discussed numerous times before, this very much depends upon the jurisdiction you are in. It certainly is not a slam dunk that a physical place is necessary in order to be covered by title III of the ADA. Further, as we have discussed earlier, the term “place,” is subject to different definitions.
The Department of Justice at 28 C.F.R. §36, Appendix A, has taken the position that title III covers access to websites of public accommodations. Such informal statements are not entitled to the force and effect of law. Regardless, DOJ has been inconsistent in its own position and has admitted that there is uncertainty regarding the applicability of the ADA to websites.
I’m not buying and I’m buying: It is true that the Department of Justice has taken the position that title III covers access to websites of public accommodations. They also in an Amicus brief took that position as well and we discussed that Amicus brief here. Whether the Appendix and the Amicus brief are entitled to deference is very much an open question. See this blog entry for example. Finally, saying that there is uncertainty regarding the applicability of the ADA to websites does nothing more than acknowledge the reality of the current state of the case law.
While Congress may amend the ADA to define a website as a place of public accommodation, it has not yet done so.
I’m buying: This is the strongest argument against websites being a place of public accommodations. Congress did have the opportunity to amend the ADA when it did the amendments to the ADA that ultimately passed. Congress in passing the amendments, did not eliminate the word “place,” from title III of the ADA nor did they redo the definition so that it was clear that physical facilities did not generally have to be involved. Under our system of government, it is up to Congress to make the laws and here they passed up a chance to redefine things. On the other hand, courts have said that just because Congress doesn’t do something, that doesn’t mean that congressional intent can be inferred from that nonaction. Finally, travel services, as mentioned above, does appear in the list of public accommodations.
Courts analyzing whether websites are subject to title III of the ADA break down into two different approaches: spirit of the law and Nexus.
I’m not buying: I don’t like the names of the categories. I would prefer “focus on public accommodations,” and “gateway.” Also, there are two other categories as well, and they are: physical places only, and an outlier, which we discussed in the Robles blog entry, that a person has to be able to go into the store itself even if the website is a gateway before they can bring a title III suit.
Spirit of the law cases ask whether businesses offer goods or services to the public via any platform and are focused on achieving a particular result, rather than effectuating the clear text of the ADA.
I’m not buying: Again, I don’t like the term “spirit of the law.” I would prefer, “focus on public accommodation.” What this line of cases does is focus on whether a public accommodation is involved i.e. it asks if one of the categories in 42 U.S.C. 12181(7) are in play. If they are, then the website must be meaningfully accessible to persons with disabilities. I also disagree that the cases are focused on results any more than any other decision by any other judge. If you are a judicial realist, you would argue that every decision of a judge is focused on results. I get judicial realism on some level, studied it in college, but as a lawyer that is difficult to square with what you do as a lawyer in the first place or why you continue in the business. If law is so arbitrary, then one has to question the credibility of the whole process.
Under the nexus approach, a business violates title III only when it impedes a disabled individual’s full and equal enjoyment of the goods and services offered at that business physical establishment.
I’m not buying: As mentioned above, I prefer gateway rather than nexus. Gateway is easier to understand and less legalistic. This line of cases is looking to see if there is a connection between the website and what is offered in the stores. If there is, then title III applies. Further, the Amicus brief confuses the categories by referring to the outlier case that says you actually have to be in the store physically in addition to accessing the website in order for the gateway theory to apply. It doesn’t work that way. They are two different theories.
The same defendant may get different results depending upon the jurisdiction the case is litigated in. For example, Netflix had that happen to them in California and in Massachusetts.
I’m buying: This is absolutely true. However, why not have the defendant engage in preventive law so that the problem doesn’t occur. Also, if a lack of regulations is a problem, why not, as mentioned above, seek a writ of mandamus compelling regulation to be issued or bring political pressure so that the regulations get done.
Existing regulations currently contain no provision governing the accessibility of websites or online content.
I’m buying: As mentioned in the brief, in 2010, a notice of proposed rulemaking was issued, but the Trump administration put it all on the inactive list.
Given that no regulations currently impose clearly defined obligations regarding website accessibility, businesses are simply not on notice as to what title III may require of them.
I’m not buying: The case law is clear that what is required is meaningful access. Instead of looking at this as a problem, businesses can look at it as an opportunity. That is, the lack of regulations give businesses all kinds of possibilities to get to meaningful access without being put in the straitjacket of regulations. So, the standard is clear. How you get there is another matter. Since the standard is clear, I’m not buying the due process argument. Again, this is not a criminal situation, which to my mind makes all the difference in the world with respect to the due process concerns.
Web Content Accessibility Guidelines are a set of non-mandatory accessibility guideline developed by the web accessibility initiative, a subgroup of the World Wide Web consortium. It is a private-sector international community member organization where full-time staff and the public work together to develop web standards.
I’m buying: Even so, why not use it as a matter of preventive law?
While the DOJ has referenced the WCAG guidelines, that did not turn them into mandatory rules nor into any rules entitled to deference. Further, WCAG have different categories of compliance, and so, a business would not know what level of compliance to meet. §508 also has its own regulations. So, which one does a business use?
I’m buying but: I can’t argue with this. However, it doesn’t take away from the fact that the standard required by the ADA is meaningful access and that WCAG or §508 can be used as a preventive law matter. As mentioned above, the lack of regulations can be an opportunity for businesses rather than an obstacle. It all depends how you look at it.
The never ending uncertainty underscores the importance of creating website accessibility guidelines through proper notice and comment rulemaking and not through litigation.
I’m buying: But whose fault is that? That is, as court decisions have mentioned the lack of action by the federal government should not give businesses a get out of jail free card to ignore the accessibility of their businesses to persons with disabilities. Again, the standard is there; it’s just how you get there depends.

Conclusions:

When I stepped away from drafting this blog entry, I got to thinking why a writ of mandamus wouldn’t work. That is, some kind of motion to compel the Department of Justice to formulate regulations. The reason it won’t work is because you can’t have it both ways. If the ADA does not apply to websites, then the Department of Justice does not have any reason to issue regulations in the first place since it is out of their jurisdiction. However, if the ADA does apply to websites, then the DOJ is mandated to issue regulations carrying out the ADA and they have not done so in this case. You can’t have it both ways. That is, you can’t argue that the ADA does not apply to the web but DOJ has to issue regulations. How can that be if the ADA doesn’t apply to website to begin with?
Meaningful access is the standard. So, businesses and their coders should take this as an opportunity to work with the disability community (make sure you include voice dictation and screen reader users as well as the deaf/hard of hearing), to come up with creative ways to make sure that their websites are accessible to people with disabilities.
The strongest argument industry has against website accessibility is that Congress passed up a chance when it amended the ADA to include the Internet and places of public accommodations. At the time of the amendments, the Internet was around for sure. That said, as courts have said, there can be lots of reasons why Congress doesn’t act. Also, the ADA was specifically intended to evolve with technology.
It isn’t at all clear that title III of the ADA is entirely focused on facilities as the brief claims.
What is a “place,” is the $64,000 question. Even the same dictionary has different definitions that can take you to very different places (pun intended). As mentioned above, DOJ has suggested that there are situations where a place of public accommodation may not be a physical facility. See this blog entry.
I prefer to think of the possible approaches to website accessibility and the courts as being: physical place only; focus on place of public accommodation; gateway; and you have to be able to show that you have been physically in the store before you can go after Internet inaccessibility (the last one being a complete outlier). The trend has been the gateway approach, but that may be changing to a focus on public accommodation approach.
WCAG and even §508 standards are a good place to look at for building a preventive law system for your website.
Interesting that the brief never mentioned the primary jurisdiction doctrine. That may be because in light of the Trump administration withdrawing the regulations, I don’t see how such an argument could be credible. See this blog entry.

nexus

Footer