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Recently on March 18, 2022, the U.S. Department of Justice (DOJ) issued a “Web Accessibility Guidance” statement for state and local governments and public accommodations (including businesses) under Titles II and III of the Americans with Disabilities Act (ADA).

A copy of the Guidance document can be found here.

In the Guidance, the DOJ clarifies once again that the ADA applies to websites: “the Department’s longstanding interpretation of the general nondiscrimination and effective communication provisions applies to web accessibility.”

The Guidance also provides some examples of website accessibility barriers, including poor color contrast, lack of text alternatives for images, lack of labels for forms, and mouse-only navigation design. Continue ›

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On April 11, 2022, San Francisco District Attorney Chesa Boudin and Los Angeles District Attorney George Gascon filed a lawsuit against Potter Handy for allegedly filing thousands of fraudulent Americans with Disabilities Act claims. The complaint can be found here.

The 58-page complaint alleges that Potter Handy filed thousands of ADA lawsuits on behalf of three primary serial litigants Brian Whitaker, Orlando Garcia, and Scott Johnson (whom the complaint designates as “Serial Filers”) against small businesses, primarily owned by minorities and immigrants, to pressure these owners for quick settlements between $10,000 and $20,000.

The complaint alleges that “[c]onservatively assuming an average settlement figure of $10,000 per case, Defendants have extracted over $5,000,000 from California’s small businesses from the cases filed on behalf of just one of their Serial Filers in just over two years.” The complaint further alleges that “it is reasonable to assume Potter Handy has drained tens of millions of dollars from California’s small businesses during the statute of limitations period alone.” Continue ›

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There has been a sharp rise in the number of Americans with Disabilities Act (ADA) lawsuits filed in 2020 and 2021 thus far alleging a lack of compliant passenger loading zones. Many of these lawsuits have been filed against hotels in California throughout the state. The lawsuits are generally filed by serial ADA plaintiff Theresa Brooke. She is generally represented by attorney Peter Strojnik.

All hotels should be aware of the law and potential for litigation. The ADA requires if any passenger loading zones are offered to guests, there must be at least one passenger loading zone provided for people with disabilities. Below is an excerpt from the most recent ADA Standards (the 2010 ADA Standards) for reference.

2010 ADA Standards Re Passenger Loading Zones:

209.2 Type. Where provided, passenger loading zones shall comply with 209.2.

209.2.1 Passenger Loading Zones. Passenger loading zones, except those required to comply with 209.2.2 and 209.2.3, shall provide at least one passenger loading zone complying with 503 in every continuous 100 linear feet (30 m) of loading zone space, or fraction thereof. Continue ›

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Title III of the ADA allows customers and visitors to sue businesses and landlords for disability discrimination in court. The alleged violations range from everything from parking lot slope to website design. What should you do if you’ve been sued under Title III of the ADA?

  1. Take a deep breath.

Title III ADA cases are very seldom “bet the business” size cases. They can generally be resolved through settlement negotiations or court motions without threatening continued operation of the business. But you need to take action as soon as you’re aware of the lawsuit or threatened lawsuit.

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Many hotels are not aware that the ADA imposes several requirements during the reservations process, including posting descriptions of the hotel’s physical accessibility features on its online reservations system.  Starting around early 2018, serial ADA plaintiffs have filed significantly more lawsuits against hotels regarding this issue.

In addition to the many physical accessibility requirements at places of lodging (hotels), such as accessible parking and accessible guest rooms, the ADA also requires places of lodging to take certain actions during the reservations process to help individuals with disabilities obtain an accessible guest room.  Specifically, places of lodging are required to do the following:

  • Ensure individuals can reserve accessible guest rooms in the same manner and time as other guests;
  • Provide descriptions of accessible features of the hotel and guest rooms as part of any reservations process (such as website booking);
  • Ensure that the hotel’s accessible guest rooms are held for individuals with disabilities and not rented out to those not requesting an accessible room (unless all non-disabled rooms have been booked); and
  • Once reserved, ensure that the accessible guest room is hard booked and not rented to anyone else.

These requirements derive from 28 C.F.R. § 36.302(e)(1), which is provided in full below.

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Soon businesses with an online presence will be required to make their websites accessible to persons with disabilities or face litigation in state and federal court. The Americans with Disabilities Act (ADA) already requires businesses with a physical presence to comply with exacting and numerous standards (e.g., door width, counter height, sidewalk slope, etc.)  The Department of Justice will soon expand these standards to include strict requirements for website accessibility. Here are five essential facts for any business with a website:

  • Some courts have interpreted the ADA as requiring web accessibility today. (g. National Federation of the Blind v. Target Corp., (ND CA 2006) 452 F. Supp. 2d 946).  Courts are divided on whether companies with an exclusively online presence must make their websites accessible.  Earlier this year, a Vermont District Court ruled that Scribd, a California-based digital library that operates reading subscriptions on its website and mobile apps, was required to comply with Title III of the ADA by making its website and mobile apps accessible to blind subscribers.  National Federation for the Blind v. Scribd, 2015 WL 1263336 (D. Vt. March 19, 2015).  More recently, the 9th Circuit Court of Appeals in Cullen v. Netflix, Inc., Case No. 5:11-cv-01199-EJD (2015) affirmed its prior ruling that online-based retailers without retail facilities do not have to make their websites accessible to blind customers under the current standards of the ADA. Courts are currently resolving differences while awaiting further DOJ action. 
  • Plaintiff-side law firms are sending complaint letters to businesses complaining of online discrimination and demanding payments of approximately $25,000. 
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