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After keeping us waiting with baited breath for several years, the Eleventh Circuit finally broke its silence – issuing its long-anticipated ruling in Gil v. Winn-Dixie Stores, holding that websites are not covered as places of public accommodation under Title III of the Americans with Disabilities Act (“Title III” or “ADA”).  In doing so, the Court reversed and vacated the district court’s decision finding that defendant, Winn-Dixie Stores, violated Title III by failing to maintain a website that is accessible to individuals, who are blind or have low vision.

Unfortunately, to the extent that businesses, individuals, and disability rights advocates were hoping that this decision would help provide some much needed definitive guidance in this area of the law, they are all undoubtedly disappointed.  While the decision should diminish plaintiffs’ abilities to successfully mount website accessibility challenges against certain types of businesses/websites in the Eleventh Circuit, it does little to immediately change the current state of the law at the national level.

Notwithstanding, the collective 61-page majority and dissenting opinions, do contain additional analysis into this ever-developing area.  Below are three critical takeaways from this long-awaited decision, as well as our thoughts in looking ahead.

Takeaway #1: According to the Eleventh Circuit, Websites Are Not Places of Public Accommodation Under The ADA

The majority opinion reached its decision by adopting an extremely strict interpretation of the ADA – diverging from many district and appeals courts in other circuits – holding that websites do not qualify as “places of public accommodation” (“PPA”) under Title III, and accordingly, the plaintiff’s inability to access the site, in and of itself, is not a Title III violation.

As drafted, Title III applies to PPA, which, as the Court correctly notes, are expressly defined as physical, tangible, places, like retail stores, hotels, restaurants, and theaters.  Notwithstanding the ADA’s examples of PPA, to date, a number of courts in other Circuits have nevertheless found that businesses must make their websites accessible under Title III, by utilizing one of two theories:

  • the “spirit of the law” theory, which posits that, because the ADA is a broad-reaching civil rights law meant to provide individuals with disabilities with full and equal access to various facets of society, it follows that the ADA must be read to evolve as society and technology evolve, and websites offering goods and services to the public are the modern equivalents of many of the brick and mortar PPA defined in the original text and regulations governing the ADA and, therefore, access must be provided; or
  • the “nexus” theory, which provides that websites that have a “nexus” to physical PPA, must be accessible to individuals with disabilities, because they are an extension of the goods/services/amenities being offered by the clearly-covered PPA.

Here, the majority outright rejected the “spirit of the law” approach as being contrary to the plain and unambiguous text of the ADA and, moreover, chose not to adopt the “nexus” theory (prevalent in the Ninth Circuit’s decision in Robles v. Domino’s), noting it was not something that had been previously followed in the Eleventh Circuit.

Instead, the Eleventh Circuit held that the impetus is on Congress to amend the ADA if its protections should be extended to websites, and absent Congress broadening the definition of PPA to include websites, it declined to “extend ADA liability to the facts presented to [it] here.”

Takeaway #2: The Eleventh Circuit Entertains an Alternative Theory of Potential Liability Under Title III, But Finds That It Still Doesn’t Result in Winn-Dixie’s Website Violating Title III

Having rejected the two theories noted above, the Appellate Court adopted an alternative, “third” theory of liability – the “intangible barrier” theory.  Specifically, the Court held that if a website is inaccessible to individuals with disabilities, that website would violate Title III only where it creates an “intangible barrier” to accessing goods/services in a physical, brick and mortar location.  The Court found that the inaccessibility of Winn-Dixie’s website did not present an “intangible barrier,” because it has a “limited use;” it is not the sole access point to the company’s stores, and it does not prevent the plaintiff from enjoying or accessing the goods/services that Winn-Dixie offers in its stores.  (Indeed, the Court noted that the plaintiff had admittedly shopped at one of Winn-Dixie’s stores for years before he brought his lawsuit).  Critically, the Court noted that Winn-Dixie’s website does not allow users to make purchases on the site; to the contrary, any purchases are made at the stores, and it held that anything a user could do on the website, it could also do at the stores.

Importantly, the majority was not swayed by the plaintiff’s arguments that the website’s inaccessibility forced him to confront additional inconveniences that individuals without disabilities, who could use the website, would not encounter (e.g., longer in-person wait times to pick up medications; inability to independently access coupons at home), and rejected his contention that these inequities denied him full and equal enjoyment of the grocery store or met the “intangible barrier” test.

Takeaway #3: This Decision’s Implications Are Limited

Ultimately, while this decision is sure to garner a significant amount of coverage, and does certainly make it harder to bring website accessibility claims under the ADA in the Eleventh Circuit, for the near-term future, it is unlikely to have a significant impact on this area of the law at a national level.

Although the majority held that Winn-Dixie did not violate Title III by maintaining an inaccessible website, it took great care to mention more than once that the fact that the website did not contain an e-commerce component linked to the store was a factor in reaching its decision.

Undoubtedly, the decision provides businesses with ammunition to aggressively fight back against cases filed in the Eleventh Circuit where: (i) a business is cyber-only and entirely unconnected to a physical PPA; or (ii) the website in question is predominantly informational and does not contain an e-commerce component.  Given that a significant number of website accessibility lawsuits and demand letters continue to emanate from Florida, this should provide relief to Florida businesses that fit into one of these two categories.

As noted above, the Eleventh Circuit’s decision is inconsistent with those in several other circuits and district courts, and accordingly, is unlikely to deter plaintiffs from simply switching forums and asserting claims in jurisdictions that have adopted more pro-plaintiff theories of the law, such as New York, Massachusetts, Vermont, or California, where Title III and/or state/local law currently require accessible websites.

Looking Ahead

Plaintiff’s counsel in this case has vowed to appeal to the Supreme Court.  While the Supreme Court previously rejected Domino’s efforts to seek review of its case in the Ninth Circuit, it is possible that the tension between the two cases will finally be enough for the Court to grant certiorari.

Separately, while recent efforts over the past six months have proven unsuccessful, there is bipartisan interest among some members of Congress to amend the ADA to expressly address digital accessibility.  Similarly, we anticipate that if Congress confirms Kristen Clarke to serve as the head of the U.S. Department of Justice’s Civil Right Division (“DOJ”), DOJ’s Disability Rights Section is apt to work with the U.S. Access Board to reignite prior efforts under the Obama Administration to promulgate and adopt federal regulations governing website and mobile application accessibility.  Interested parties should keep an eye out for announcements of such developments this July around the anniversary of the ADA and will, of course, report on any such announcements.

In the interim, as we’ve noted for years, the best way to currently avoid falling prey to website accessibility lawsuits like Gil v. Winn-Dixie Stores and Robles v. Domino’s’s is to achieve substantial conformance with the Web Content Accessibility Guidelines (“WCAG”) 2.1 Levels A and AA (as confirmed via human-based auditing from both the code and user perspectives), maintain internal digital accessibility policies and corporate governance procedures, include website accessibility obligations in all contracts with third-party vendors, provide training to relevant employees regarding developing, operating, and maintaining an accessible website, and ensure that these efforts are ongoing, and not simply one-time efforts.

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Our colleagues Denise Dadika and Vidaur Durazo of Epstein Becker Green have a new post on the Health Employment and Labor blog that will be of interest to our readers: “Changing Floors: Minimum Wage Increases for Health Leaders to Consider”.

The following is an excerpt:

2021 is set to be a landmark year for the number of jurisdictions raising wage floors across the country. According to a National Employment Law Project report, as of January 1, 2021, 20 states and 32 municipalities raised their minimum wage. By the end of 2021, the report tracks that as many as 24 states and 50 municipalities will increase wages for the lowest-paid workers.

Perhaps as a reaction to the steadily growing Fight for $15 movement or in response to the COVID-19 pandemic, 40 cities and counties will have met or exceeded a $15 minimum wage by the end of 2021. Eight states — California, Connecticut, Illinois, Florida, Maryland, Massachusetts, New Jersey, and New York — and the District of Columbia, will raise their state minimum wage to $15 or higher by 2026. Florida voters’ recent approval of a ballot initiative to raise the state’s minimum wage to $15 by 2026 may evidence a shift of public support for an increased minimum wage. Indeed, a 2019 Pew Research Center survey revealed that upwards of two thirds of Americans support a $15 minimum wage. President Biden also supports increasing the minimum wage to $15, and while Congress unsuccessfully sought to include a provision to raise the federal hourly minimum wage from $7.25 to $15 in the recent American Rescue Plan COVID-19 stimulus bill, we expect further action to increase the federal minimum wage.

Click here to read the full post on the Health Employment and Labor Blog.

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On June 15, 2020, and June 24, 2020, New York Governor Andrew Cuomo issued two Executive Orders (“EO”) numbers 202.45 and 205, which address COVID-19 travel-related restrictions. EO 202.45 temporarily modifies New York State’s pandemic-related Sick Leave Law to prohibit employees from receiving paid sick leave benefits if, as of June 25, 2020, they travel to a “restricted state” for non-work related reasons and contract COVID-19. EO 205 (the “Travel Advisory”) imposes a 14-day quarantine requirement on travelers from a “restricted state” entering New York. For the purposes of both orders, a “restricted state” is a state with a COVID-19 positive test rate higher than 10 per 100,000 residents, or higher than a 10% test positivity rate, over a seven day rolling average, based on data provided by the states.

The list of “Restricted States” is posted on New York’s COVID-19 Travel Advisory website. Data is reviewed weekly to determine whether a particular state should be added or deleted from the list.  As of July 14, 2020, the following 22 states have been designated “restricted states”:

Alabama Kansas Oklahoma
Arkansas Louisiana South Carolina
Arizona Minnesota Tennessee
California Mississippi Texas
Florida New Mexico Utah
Georgia North Carolina Wisconsin
Iowa Nevada
Idaho Ohio

The Travel Advisory requires travelers to quarantine for 14 days from the date they were in a restricted state.  The quarantine mandate does not apply, however, to individuals who have passed through restricted states for a “limited duration,” i.e., less than 24 hours. Examples of “limited duration travel” include “stopping at rest stops for vehicles, buses, and/or trains; or lay-overs for air travel, bus travel, or train travel.”

Quarantine Requirements

Pursuant to the Travel Advisory, the New York Department of Health (“DOH”) released Guidance providing the following requirements for a quarantined individual:

  • The individual must not leave the quarters that they have identified as suitable for his or her quarantine.
  • The individual must be situated in separate quarters with a separate bathroom facility for each individual or family group that is quarantined, with access to a sink, soap, paper towels and, in any shared bathroom, cleaning supplies (e.g., household cleaning wipes and bleach).
  • The quarters must have a supply of face coverings, to be worn if the individual becomes symptomatic.
  • The quarantined individual must implement a self-screening procedure in his or her separate quarters for monitoring temperature and the development of other COVID-19 symptoms.
  • The individual must self-quarantine from household members as soon as he or she develops a fever (100.0° or higher) or other COVID-19 symptoms, such as in a separate room with a door. Given that an exposed person might become ill while sleeping, the exposed person must sleep in a separate bedroom from other household members.
  • Food must be delivered to the quarantined person’s quarters, and garbage must be bagged and left outside for routine pick up (special handling is not required).
  • A household member or other person must be designated to notify a nearby medical facility, if the individual begins to experience more than mild symptoms and appears to require medical assistance.
  • The quarters must be secure against unauthorized access.

 Limited Exemption for “Essential Workers”

The Guidance provides a limited exception for “essential workers,” based on the duration of time they spend in restricted states, as well as the intended length of time they plan to be in New York. An “essential worker” is (1) any individual employed by an entity included in the Empire State Development Essential Business list; or (2) “any individual who meets the COVID-19 testing criteria, pursuant to their status as either an individual who is employed as a health care worker, first responder, or in any position within a nursing home, long-term care facility, or other congregate care setting, or an individual who is employed as an essential employee who directly interacts with the public while working,” under the DOH May 31, 2020 Protocol for COVID-19 Testing, or (3) “any other worker deemed such by the Commissioner of Health.”

The Guidance does not state how the exceptions for essential workers are limited based on the duration of time in restricted states. It does, however, specify the requirements for essential workers based on how long they remain in New York and establishes varying requirements for “Short Term” (i.e., less than 12 hours), “Medium Term” (i.e., less than 36 hours) and “Long Term” (i.e., several days) stays. By way of summary:

  • Short Term travelers (e.g., essential workers delivering goods, awaiting flight layovers and other short duration activities) should stay in their vehicle and/or limit personal exposure by avoiding public spaces, monitor their temperature and signs of symptoms, wear a face covering when in public, maintain social distance, clean and disinfect workspaces, and avoid extended periods in public, contact with strangers and large congregate settings.
  • Medium Term travelers (e.g. essential workers delivering multiple goods, awaiting a longer flight layover or other medium duration activities) should monitor their temperature and signs of symptoms, wear a face covering when in public, maintain social distance, clean and disinfect workspaces, and avoid public spaces as well as extended periods in public and congregate settings.
  • Long Term travelers (e.g., essential workers working on longer projects, fulfilling extended employment obligations and other longer duration activities) should seek diagnostic testing within 24 hours of arrival to ensure they are not COVID-19 positive; in addition, for at least 7 days they must avoid extended periods in public, contact with strangers and large congregate settings; and for at least 14 days they should monitor temperature and signs of symptoms, wear a face covering when in public maintain social distance, and clean and disinfect workspaces.

Upon their return to New York, essential workers based in New York who travel to a restricted state, must, along with their employers, comply with previously issued DOH guidance for employees returning to work after a suspected or confirmed case of COVID-19 or after close contact with a person with COVID-19, unless the DOH guidance is superseded by specific industry guidance.

Amendment of New York State’s Sick Leave Law

EO 202.45 temporarily modifies New York State’s Sick Leave Law for COVID-19 to make employees who voluntarily travel to a restricted state after June 25, 2020 ineligible for New York paid sick leave benefits, unless the travel was taken “as part of the employee’s employment or at the direction of the employee’s employer.” The Sick Leave Law already exempted employees who traveled to countries with a level two or three travel health designation from the Centers for Disease Control and Prevention.

Sometimes a crisis can be an opportunity to embrace new technologies and changes that were already on the horizon – albeit at a much more expedited pace.  As employees are required to work remotely and practice social distancing due to the COVID-19 pandemic, the federal government and several state governments (including New York and New Jersey) are moving (New York more quickly than New Jersey) to enable remote online notarization and keep businesses operating.

A Potential Federal Solution

On March 18, 2020, Senator Kevin Kramer, R-N.D. and Mark Warner, D-Va, introduced legislation that would allow immediate nationwide use of remote online notarization in response to the Covid-19 outbreak.  Senate Bill 3533, the Securing and Enabling Commerce Using Remote and Electronic Notarization Act of 2020 (the “SECURE Act”) was introduced as bipartisan legislation to authorize and establish minimum standards for electronic and remote notarizations that occur in or affect interstate commerce.  If the SECURE Act becomes law, it will authorize every notary in the US to perform remote on-line notarizations using audio-visual communications and tamper-evident technology in electronic notifications and provide fraud prevention through use of multifactor authentication.

Currently, only twenty-three states allow notaries to conduct remote notarizations: Arizona, Florida, Idaho, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington and Wisconsin.

Until the Covid-19 outbreak forced non-essential businesses to close and employees to work from home, neither New York nor New Jersey permitted remote on-line notarization of documents.

New York Moves Swiftly To Allow Remote Notarizations Through April 18, 2020

New York Governor Andrew Cuomo issued an executive order allowing notarizations using audio-video technology in place of physical appearance under certain conditions. This option allows New York Notaries and signers to practice the necessary “social distancing” required to reduce risk of contracting COVID-19. The order is in effect through April 18, 2020.

To use audiovisual technology to communicate during the notarization, the Notary and signer must comply with the following requirements:

  • The person seeking the Notary’s services, if not personally known to the Notary, must present valid photo ID to the Notary during the video conference. The signer may not present ID prior to or after the notarization.
  • The video conference must allow for direct interaction between the person and the Notary (e.g. no pre-recorded videos of the person signing).
  • The person must affirmatively represent that he or she is physically located in the State of New York.
  • The person must transmit by fax or electronic means a legible copy of the signed document directly to the Notary on the same date it was signed.
  • The Notary may notarize the transmitted copy of the document and transmit the same back to the person.
  • The Notary may repeat the notarization of the original signed document as of the date of execution provided the Notary receives such original signed document together with the electronically notarized copy within thirty days after the date of execution.

New Jersey Is On The Right Track, But Moving Too Slowly

On March 19, 2020, the New Jersey Legislature passed bill A-3864 https://www.njleg.state.nj.us/2020/Bills/A4000/3864_I1.HTM which awaits signature by Governor Murphy and will allow remote notarization.  However, once signed by the Governor, the bill does not take effect for 90 days.  In addition, the New Jersey law does not apply to wills or family law matters (divorce, adoption, etc.).

Until Bill 3864 is signed by Governor Murphy and becomes effective, notaries in New Jersey have been instructed to perform “window-separated signings”.  This means that the Notary and signor must be able to communicate with each other by sight and sound through the window and by normal means.  Cell phones, FaceTime, Skype, Zoom or any other electronic communication tools may not be used for a “window-separated signing.”  The Notary must follow all federal, state and local guidelines for social distancing, health protection and sanitization when meeting with signers and handling documents, IDs or other materials. As Covid-19 continues to tear through New Jersey and the United States as a whole, “window-separated signings” is not a practical solution and provides little comfort to notaries and signers alike.

While the US as a whole has been moving towards remote notarization for years, state by state, this crisis could be the impetus for a national resolution.

With the start of the New Year, employers in the hospitality sector should prepare for new state- and local- minimum wage increases for their non-exempt employees.  To help multi-jurisdictional employers easily navigate these changes, we have prepared the chart below, which summarizes the new minimum wage rates that have taken effect on January 1, 2020, unless otherwise indicated.  Check back here in June for a summary of the new minimum wage rates that will take effect July 1, 2020.

Jurisdiction Current Minimum Wage New Minimum Wage
Alaska $9.89 $10.19

Albuquerque NM

(No Benefits)

 $9.20 $9.35
Albuquerque NM (Benefits) $8.20 $8.35
Arizona $11.00 $12.00
Arkansas $9.25 $10.00
Belmont CA $13.50 $15.00
California (≥ 26 employees) $12.00 $13.00
California (≤25 employees) $11.00 $12.00
Colorado $11.10 $12.00
Cupertino CA $15.00 $15.35
Daly City CA $12.00 $13.75
El Cerrito CA $15.00 $15.37
Flagstaff AZ $12.00 $13.00
Florida $8.46 $8.56
Illinois $8.25 $9.25
Las Cruces NM $10.10 $10.25
Los Altos CA $15.00 $15.40
Maine $11.00 $12.00
Maryland (≥ 15 employees) $10.10 $11.00
Maryland (≤ 14 employees) $10.10 $11.00
Massachusetts $12.00 $12.75
Menlo Park CA $12.00 or $11.00 $15.00
Michigan $9.45 $9.65
Minnesota $9.86 $10.00
Missouri $8.60 $9.45
Montana $8.50 $8.65
Mountain View CA $15.65 $16.05
New Jersey (≥ 5 employees) $10.00 $11.00
New Jersey (employers with fewer than 6 employees, agricultural employers, and seasonal employers) $8.85 $10.30
New Mexico $7.50 $9.00
Nevada (employees who receive qualified health benefits) $7.25 $8.00
Nevada (employees who do not receive qualified health benefits) $8.25 $9.00
New York (employers outside of NYC, Long Island, and Westchester County) $11.10 $11.80 (Effective 12/31/19)
New York (Fast Food) $12.75 $13.75 (Effective 12/31/19)
New York (Long Island & Westchester County) $12.00 $13.00 (Effective 12/31/19)
New York City (≤ 10 employees) $13.50 $15.00 (Effective 12/31/19)
Oakland CA $13.80 $14.14
Ohio $8.55 $8.70
Palo Alto CA $15.00 $15.40
Petaluma (≥ 25 employees) $12.00 $15.00
Petaluma (≤ 24 employees) $11.00 $14.00
Portland ME $11.11 $12.00
Redwood City CA $13.50 $15.38
Saint Paul MN (≥ 10,001 employees) $9.86 $12.50
San Diego CA $12.00 $13.00
San Jose CA $15.00 $15.25
San Mateo CA $15.00 $15.38
Santa Clara CA $15.00 $15.40
SeaTac WA $16.09 $16.34
Seattle WA (500+ employees) $16.00 $16.39
Seattle WA (≤ 500 employees) $15.00 $15.75
Sonoma CA (≥ 26 employees) $12.00 $13.50
Sonoma CA (≤ 25 employees) $11.00 $12.50
South Dakota $9.10 $9.30
South San Francisco $12.00 or $11.00 $15.00
Sunnyvale CA $15.65 $16.05
Tacoma WA $12.35 $13.50
Vermont $10.78 $10.96
Washington $12.00 $13.50

 

As expected given the extreme volume of website accessibility lawsuits filed over the last few years, in the first few weeks of the new year, United States’ Circuit courts have finally begun to weigh in on the law as it pertains to the accessibility of websites and mobile applications, and the results are generally disappointing for businesses.

Background

The U.S. Department of Justice (“DOJ”) has long taken the position that Title III of the Americans with Disabilities Act (“Title III”, “ADA”) applies to both websites and mobile apps, however, its withdrawal of Advanced Notice of Proposed Rulemaking (“ANPRM”) on December 26, 2017 and its September 25, 2018 letter (which effectively passed the onus to Congress to issue legislation on website accessibility standards), have prompted an onslaught of private demand letters and lawsuits filed in both state and federal court against businesses based on the theory that their websites are inaccessible to individuals with disabilities. As those who have confronted these lawsuits may know, the current state of the law has led to businesses being subject to duplicative actions in different jurisdictions, primarily, New York, California, and Florida. Last fall, both the Ninth and Eleventh Circuit courts held oral argument on website accessibility cases, with both panels expressing similar concerns about the current uncertainty in the law and how one can achieve and confirm a sufficient level of accessibility.

The Ninth Circuit Reverses Domino’s

Yesterday, in Robles v. Domino’s Pizza, the Ninth Circuit held that Title III applies to both websites and mobile applications. This decision reversed the district court’s dismissal of a class action lawsuit which asserted that Domino’s Pizza violated the ADA and California’s Unruh Civil Rights Act (UCRA) by failing to make its website and mobile app accessible to individuals who are blind or visually impaired. While the district court’s decision in Robles was always considered an outlier, the Circuit Court’s decision is significant because the Ninth Circuit considered, and rejected, defenses which have traditionally been advanced by businesses that have litigated website accessibility matters. For example, the Court refused to accept as a matter of law/summary judgment that providing a telephone hotline is sufficient alternative method for a company to satisfy its obligations under Title III to customers who are blind or have low vision (noting it was an issue of fact that required specific and contextual supporting factual evidence). The Court also rejected the concept that imposing liability in this context violates companies’ due process rights because DOJ has failed to issue clear technical standards for compliance.

At the outset, the Ninth Circuit agreed with the district court that Domino’s is a “place of public accommodation” and accordingly, the ADA applies to its website and mobile app, thereby requiring it to provide auxiliary aids and services to make its visual materials available to individuals who are blind. Drawing upon prior district court decisions from within the Ninth Circuit, the Court focused on the “nexus” between Domino’s website and mobile app and its physical restaurants, and found that the alleged inaccessibility of the website and app unlawfully prevents customers from accessing the goods and services at Domino’s physical locations. Notably, the Ninth Circuit declined to determine whether the ADA covers websites or mobile apps whose inaccessibility does not impede access to the goods and services at a physical location, reinforcing courts in the circuit’s position more narrowly construing the ADA to apply only to websites with a nexus to a brick-and-mortar location (as opposed to the more expansive positions taken by district courts in Massachusetts, New York, and Vermont).

The Circuit Court also noted that after the plaintiff filed the lawsuit, Domino’s website and mobile app began displaying a telephone number to assist customers who are visually impaired and who use a screen reading software. The Ninth Circuit held that a company’s use of a telephone hotline presents a factual issue, and, simply having a hotline, without any discovery regarding its effectiveness, is insufficient to award summary judgment to a company and determine that it has complied with the ADA. (This underscores that proving the sufficiency of an alternative means of access to a website – short of making the website itself accessible – could prove to be a costly endeavor.)

Citing DOJ’s failure to issue technical standards and withdrawal of ANPRM, Domino’s had argued that: (i) imposing liability would violate due process because it lacks fair notice of the technical standards that it is required to abide by; and (ii) the complaint was subject to dismissal under the doctrine of primary jurisdiction pending DOJ’s resolution of the issue. The Ninth Circuit rejected both arguments. First, the court held that DOJ’s failure to issue guidance on the specific standards or regulations does not eliminate a company’s obligation to comply with the ADA and its obligation to provide “full and equal enjoyment” to individuals with disabilities. Second, the Ninth Circuit held that the district court erred by invoking the doctrine of primary jurisdiction in order to justify its dismissal of the complaint without prejudice pending DOJ’s resolution of the issue. The court found that DOJ’s withdrawal of ANPRM meant that undue delay in resolving this issue “is not just likely, but inevitable,” which required the court to weigh in.

The Robles court did not rule on whether Domino’s website and mobile app comply with the ADA, and did not provide any guidance on how a company’s website or mobile app would comply with the ADA.

The Fourth Circuit Places Minor Restrictions On Standing

Two weeks ago, in Griffin v. Department of Labor Federal Credit Union, the Fourth Circuit considered another defense that has been increasingly asserted by businesses: whether plaintiff has standing to sue. In Griffin, the court rejected the plaintiff’s standing to bring a lawsuit against a Credit Union where he was not eligible for membership, he had no plans to become eligible to be a member, and his complaint contained no allegation that he was legally permitted to use the site’s benefits. The court also held that plaintiff’s status as a tester was insufficient to create standing where he was unable to plausibly assert that returning to the website would allow him to avail himself of its services. Unfortunately, this is an exceedingly narrow holding which should do little to undercut the rampant stream of filings by serial ADA website plaintiffs, as the heightened standard for joining a credit union would not apply to most other industries/websites. Therefore, while technically a victory for businesses, this decision did not issue the significant blow to serial plaintiffs that defendants had hoped would provide a clear defense moving forward.

Looking Ahead

We next await the holding of the 11th Circuit in Winn-Dixie. Unfortunately, it does not appear that, under this administration, we should expect DOJ to promulgate website accessibility guidelines. Similarly, with the government currently shut down (and other issues likely considered more pressing to the general public upon its reopening), it is extremely unlikely that Congress will amend the ADA or promulgate new legislation clarifying these issues in the near future.

Therefore, for the time being, businesses should expect to continue to face the seemingly endless stream of serial plaintiff website accessibility demand letters and lawsuits. As we have repeatedly noted, the best way to avoid falling prey to such a suit is to achieve substantial conformance with WCAG 2.1 Levels A and AA (confirming such status by human-based code and user/assistive-technology testing). Moreover, based upon the scope of the Ninth Circuit’s decision in Domino’s, these matters may soon expand to include mobile apps as well. Therefore, to the extent businesses had, to date, treated mobile application accessibility as a best practice, they should now consider the issue with increased urgency.

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).  This line of reasoning follows the “nexus theory” body of law that has been developing over the past several years.  Based upon this conclusion, Winn-Dixie was ordered to: (i) bring its website into conformance with the WCAG 2.0 Guidelines; (ii) develop and adopt a website accessibility policy (publishing aspects of it upon the website); (iii) provide website accessibility training; (iv) conduct regular ongoing compliance audits; and (v) pay Plaintiff’s reasonable attorney’s fees and costs.  The parties were left to negotiate the exact timeframe for each requirement.

While this post-trial verdict does not have precedential value in other matters, it does raise a variety of points that businesses should consider as they continue to confront the still-increasing number of website accessibility demand letters and lawsuits:

  • The Court applied the nexus theory to the Winn-Dixie website even though customers could not make purchases directly through the website.  The Court deemed the ability to obtain coupons and link them to customer discount cards (for use in stores), refill prescriptions (for in-store pick up), and the presence of the store locator sufficient services for a nexus to exist between the brick and mortar locations and the website;
  • By applying the nexus theory, the Court was able to avoid having to rule on whether a website is a public accommodation in and of itself (a point of law courts remain split on);
  • The Court adopted the WCAG 2.0 Guidelines as the standard of website accessibility, thus following DOJ, the recently refreshed standards for Section 508 of the Rehabilitation Act, the Air Carrier Access Act, and countless private settlements between businesses and advocacy groups or private plaintiffs reached over the past 5 years;
  • The Court gave heavy weight to the testimony of an “accessibility consultant” who had conducted an audit of the Winn-Dixie site and testified very favorably for the Plaintiff that he did not believe that remediation process would be terribly difficult;
  • Relying upon the accessibility consultant’s representations, the Court went far beyond the scope of most existing website accessibility agreements by holding Winn-Dixie must require that any third-parties – including tech-giants such as Google – who are responsible for aspects of the website to also conform to the WCAG 2.0 while operating as part of the Winn-Dixie website;
  • The Court was unmoved by Winn-Dixie’s estimates that the remediation work to bring the website into conformance with WCAG 2.0 could cost upwards of two hundred and fifty thousand dollars ($250,000), and did not believe that such an amount would constitute an undue burden, noting that in the preceding 2 years the company had spent a total of approximately nine million dollars ($9,000,000) to launch a new website and then modify that new website to roll out a new customer rewards system; and, finally, in the one somewhat helpful piece for businesses;
  • The Court noted that in making a website accessible, a business need not ensure that it is accessible on all browsers and when read by all screen reader programs, provided that it is accessible on “main browsers” (e.g., Google Chrome, Internet Explorer, and Apple Safari) when read by “main screen reader programs” (e.g., JAWS and NVDA).

Given the Trump Administration’s edict against the promulgation of new regulations (without first eliminating multiple existing similar regulations) it is increasingly unlikely that DOJ will issue private sector website accessibility regulations in the near future.  Therefore, businesses can expect advocacy groups and private (often serial) plaintiffs to continue to threaten and/or bring website accessibility actions under both the ADA and corresponding state laws.  With that in mind, this verdict serves as a strong reminder of the risks of litigating a website accessibility matter, at least in situations where there is a reasonably clear nexus between a brick and mortar place of public accommodation and the website.

On April 18, 2017, the Equal Employment Opportunity Commission (“EEOC”) filed a putative class action against the SLS Hotel South Beach in Miami, Florida (“Hotel”), alleging that the Hotel violated Title VII by firing black Haitian dishwashers who worked in the kitchen and serviced several restaurants in the Hotel – including the Bazaar by Jose Andres, Katsuya and Hyde Beach – and replacing them with white and Hispanic workers, who were supplied by a staffing agency, National Service Group (“NSG”).

This case highlights one of the EEOC’s asserted priorities in its strategic plan for the next six years, to address discrimination in “complex employment relationships” focusing on “temporary workers, staffing agencies, independent contractor relationships, and the on-demand economy.” Here, although a staffing agency made the decision regarding who to hire to replace the terminated employees, the EEOC has stated that an employer may not shield itself from liability for discrimination simply by authorizing an agent to make its hiring or firing decisions, if those decisions are discriminatory.

The Complaint against the Hotel was filed by the EEOC after fifteen former employees lodged charges of discrimination with the EEOC based on their race, color and national origin, and the EEOC issued Letters of Determination after finding reasonable cause to believe that discrimination occurred. The Complaint asserts that black Haitian employees were treated worse than their Hispanic counterparts at the Hotel.  Among the allegations in the Complaint are that black Haitian employees were reprimanded for speaking Creole while Hispanic employees were not reprimanded for speaking Spanish; that black Haitian employees were referred to as “slaves” by other employees, including managers; and Haitian employees were forced to carry heavy items up the stairs, while Hispanic employees were not asked to perform those same tasks.  Further, the Complaint alleges that the Hotel decided to outsource staffing to NSG, but it did not encourage or notify its black Haitian employees to apply for positions with the agency.  Rather, according to the Complaint, black Haitian employees were provided a settlement agreement in English, though many cannot read the language, and were told they would only receive their final paycheck upon signing the agreement.  A press release from the EEOC further contends that the black Haitian workers were replaced “with light-skinned Hispanics.” For its part, the Hotel has spoken out against the allegations, contending that it conducted an investigation as soon as it received notice of the charges and found no evidence of wrongdoing.  Chief Legal Officer for the Hotel, James L. Greeley, stated that the Hotel has been cooperating with the EEOC, engaging in good faith attempts to resolve this matter, and will continue to fully defend the Hotel against false claims.

On March 23, 2016, the North Carolina Legislature passed House Bill 2, the “Public Facilities Privacy and Security Act” (“HB2”), that overturned a Charlotte ordinance extending anti-discrimination protections to lesbian, gay, bisexual, and transgender (“LGBT”) individuals and allowing transgender persons to use the bathroom of their choice. Instead, HB2 requires individuals to use public bathrooms that match the gender listed on their birth certificates. A swift public outcry followed, with many celebrities denouncing the law and canceling appearances in North Carolina, companies threatening to boycott, and the American Civil Liberties Union filing a lawsuit challenging HB2 as unconstitutional and for violating federal law. North Carolina officials have refused to disavow HB2 and, on May 9, filed a lawsuit against the federal government seeking a ruling that HB2 is not discriminatory. The Justice Department has countersued, alleging that HB2 violates Title VII of the Civil Rights Act of 1964 (“Title VII”). Regardless of the ultimate outcome of these lawsuits, it is clear that discriminating against LGBT individuals has real consequences, from both a business and legal perspective. What should retailers know and, more importantly, do to survive in this current environment?

At a minimum, retailers should familiarize themselves with their state’s employment nondiscrimination laws (if any) that apply to private employers. Twenty states (including California, Illinois, New Jersey, and New York) and the District of Columbia have passed employment non-discrimination laws that prohibit discrimination by private employers based on both sexual orientation and gender identity. Two states (New Hampshire and Wisconsin) have such laws covering sexual orientation only. These laws protect LGBT persons from discrimination in hiring and in the workplace.

Retailers also are encouraged to review their municipality’s nondiscrimination laws and regulations, if any. For example, New York City law prohibits gender identity discrimination, and the New York City Commission on Human Rights recently announced guidance (“NYC Guidance”) that makes clear what constitutes gender identity and gender expression discrimination under the NYC Human Rights Law. The NYC Guidance warns employers and business owners that they may violate New York City law if they intentionally fail to use a transgender employee’s preferred name, pronoun, or title, or refuse to allow a transgender employee to use single-sex facilities, such as bathrooms or locker rooms, and participate in single-sex programs consistent with their gender identity.

Retailers also should know that the EEOC has aggressively pursued transgender discrimination claims on theories of sex stereotyping and gender nonconformity under Title VII, which bars employers from discriminating against employees on the basis of their sex.[1] In cases involving government employees, the EEOC has held that: (i) an employer’s restriction on a transgender woman’s use of a common female restroom facility constituted illegal sex discrimination under Title VII,[2] (ii) an employer’s intentional references to a transgender female as “he” may constitute sex-based discrimination and/or harassment,[3] and (iii) a transgender employee stated a valid Title VII sex discrimination claim based on his allegation that his employer took over a year to correct his name in the company’s computer system.[4]

The EEOC has taken further action against private companies. For example, it recently entered into a consent decree with a Minnesota financial services company for allegedly refusing to let a transgender employee use the women’s restroom and subjecting her to a hostile work environment.[5] In another action, a Florida eye clinic paid $150,000 to settle an EEOC lawsuit that sought relief for an employee who was allegedly discriminated against when transitioning from male to female.[6]

In light of this climate, retailers are encouraged to accommodate the needs of transgender workers proactively rather than reactively responding to potential claims of discrimination. Retailers, particularly those operating in states with anti-discrimination laws that cover sexual orientation and/or gender identity, should implement a policy designed to foster workplace inclusion. Retailers can avoid significant business and legal risk if they follow these two directives:

  • Call transgender employees by their preferred names, pronouns, and titles, and promptly update internal databases (pay accounts, training records, benefits documents, etc.) with this information upon an employee’s request. The NYC Guidance, for example, advises employers to use the employee’s preferred name regardless of whether the employee has legally changed his or her name “except in very limited circumstances where certain federal, state, or local laws require otherwise (e.g., for purposes of employment eligibility verification with the federal government).” This is a sound policy that retailers beyond New York City should consider following. In addition, employers may choose to offer new business cards and email aliases for their employees.
  • Provide transgender employees access to bathrooms that correspond to their gender identity. On May 3, the EEOC issued a “Fact Sheet” stating that the denial of equal access to a bathroom corresponding to an employee’s gender identity qualifies as sex discrimination prohibited under Title VII and that contrary state law is no defense. The Fact Sheet encourages employers to refer to the more comprehensive “Guide to Restroom Access for Transgender Workers,” which was issued by the Occupational Safety and Health Administration (“OSHA”) and offers model practices for restroom access for transgender employees. Like the EEOC, OSHA advises that “all employees should be permitted to use the facilities that correspond with their gender identity.” Where possible, employers should provide employees with additional options, including single-occupancy gender-neutral (unisex) facilities and use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.

While the North Carolina Legislature has rolled back protections for the LGBT community, the media attention surrounding HB2 has been largely negative and has affected the businesses of companies operating in the state. Given the number of other states that have enacted laws expressly prohibiting sexual orientation and/or gender identity discrimination, the federal government’s enforcement position, and changing public opinion on the issue, retailers are on notice that such discrimination may have negative business or legal ramifications.

A version of this article originally appeared in the Take 5 newsletter “Five New Challenges Facing Retail Employers.”

[1] See “Five EEOC Initiatives to Monitor on the Agency’s Golden Anniversary” (June 22, 2015) (noting EEOC’s increased emphasis on transgender protections), available at http://www.ebglaw.com/news/five-eeoc-initiatives-to-monitor-on-the-agencys-golden-anniversary/.

[2] Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Mar. 27, 2015).

[3] Jameson v. U.S. Postal Service, EEOC Appeal No. 0120130992, 2013 WL 2368729 (May 21, 2013)

[4] Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120133123, 2014 WL 1653484 (Apr. 16, 2014).

[5] EEOC, Press Release, “Deluxe Financial to Settle Sex Discrimination Suit on Behalf of Transgender Employee” (Jan. 21, 2016), available at https://www.eeoc.gov/eeoc/newsroom/release/1-21-16.cfm.

[6] EEOC, Press Release, “Lakeland Eye Clinic will Pay $150,000 to Resolve Transgender / Sex Discrimination Lawsuit” (April 13, 2015), available at https://www.eeoc.gov/eeoc/newsroom/release/4-13-15.cfm.

Imagine that an employee asks to come to your office to address concerns about workplace harassment. Pursuant to the company’s open door and non-harassment policies, you promptly schedule a meeting. When the employee arrives, she sits down, sets her smartphone on the desk facing you, and turns on the video camera before beginning to speak. Can you instruct her to turn off the recording device? Can you stop the meeting if she refuses? Would the answer change if the recording was surreptitious?

The answer to questions like these have become more blurry since the decision last year by the National Labor Relations Board (“Board”) in Whole Foods Market, Inc.[1] Conventional wisdom before Whole Foods supported the view that, as a general rule, employers were on safe ground prohibiting audio or video recording in the workplace. In Whole Foods, however, the Board held that an employer may not lawfully adopt a work rule prohibiting employees from workplace recording, if the employees are acting in concert for mutual aid and protection and the employer cannot demonstrate an overriding business interest.

According to the Board, it is unlawful for an employer to prohibit employees from recording images of protected picketing and documenting unsafe equipment or workplace conditions. Similarly, an employer may not prohibit an employee from recording discussions with others about terms and conditions of employment or documenting inconsistent application of employer rules. Perhaps most troubling, even if the conversation or event that the employee wishes to record is not legally protected, the Board has ruled that an employee may record evidence to preserve for later use in administrative or judicial forums in employment-related actions. Get the picture?

Presently, the Whole Foods decision is on appeal before the U.S. Court of Appeals for the Second Circuit. Until then, employers have a few options to address recording devices in the workplace:

  • End the meeting. Employers that do not want conversations with their employees recorded could simply decline to participate in any conversation in which an employee is knowingly recording. This option, however, has several risks, particularly in a harassment scenario where the employer’s liability hinges on whether it took prompt remedial measures that were reasonably calculated to stop the allegedly unlawful conduct.
  • Narrowly tailor the rule. An employer can ensure that its ban on workplace recording is not so overly broad that employees would reasonably construe it to prohibit protected concerted activity. For example, the recording prohibition could be limited to legitimate business interests, such as recording trade secrets, proprietary processes, confidential technology, medical privacy, and information about vendors, customers, and suppliers.
  • Carve out “two-party consent” states. Some states, such as California, Florida, Massachusetts, Pennsylvania, and Washington, require the consent of both parties to a conversation before recording. Those states potentially could be carved out with a revised narrow rule prohibiting workplace recording.
  • Say “cheese” (but not much more). Perhaps the least risky option might be to rescind all rules prohibiting recording in the workplace, assume that everything is being recorded at all times, and act accordingly. If a workplace recording situation arises, an employer could address it on a case-by-case basis and determine whether the conduct violated another existing policy (e.g., anti-harassment) and whether the recording was otherwise protected by law. Another approach that an employer should consider is, in meetings, giving employees an opportunity to say what they wish to say while recording but keeping its own remarks to a minimum. An employer should take the comments under advisement and then respond in writing.

A version of this article originally appeared in the Take 5 newsletter “Five New Challenges Facing Retail Employers.”

[1] See Clare O’Connor, Does Jimmy John’s Non-Compete Clause For Sandwich Makers Have Legal Legs? Forbes (Oct. 15, 2014), http://www.forbes.com/sites/clareoconnor/2014/10/15/does-jimmy-johns-non-compete-clause-for-sandwich-makers-have-legal-legs/; see also Steven Greenhouse, Noncompete Clauses Increasingly Pop Up in Array of Jobs, New York Times (June 8, 2014) http://www.nytimes.com/2014/06/09/business/noncompete-clauses-increasingly-pop-up-in-array-of-jobs.html?_r=0.