Title III

Over the past several years, we have written extensively about employers’ obligations to make their websites accessible for individuals with visual, hearing and physical impairments. In the past, we have counseled employers who are considered a “place of public accommodation” (such as a hotel, restaurant, place of recreation, doctor’s office, etc.) to at the very least do some due diligence to determine whether their websites are accessible for disabled users, so that those individuals can use and navigate those websites and/or purchase goods sold on Website Accessibility Picture the websites. (For more information about the developing law on this issue, check out our prior posts here and here.) Now, for the first time, a U.S. Court of Appeals has ruled on this issue and has confirmed that so long as there is a “nexus” between a company’s website and a physical location (which is typically the case), a company must make its website accessible or risk significant legal exposure for violating the Americans with Disabilities Act (“ADA”).

(As a reminder, although not the subject of this blog post, we have also written about a second consideration here regarding website accessibility that applies only to hotels and other places of lodging and currently is the subject of a tremendous amount of litigation. Specifically, the implementing regulations of Title III of the ADA require a hotel’s website to provide information regarding various accessibility features at its property, so that a mobility impaired individual can determine whether he or she can navigate the public areas and guestrooms at the property.).

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As many followers of this blog are aware, a significant portion of our practice focuses on defending businesses against lawsuits alleging violations Title III of the Americans with Disabilities Act (“ADA”), which prohibits discrimination against individuals on the basis of disability with regard to their participation and equal enjoyment in places of public accommodation, such as hotels, spas, stores, restaurants, and gyms. Title III issues have become increasingly important the last few years with the substantial increase in the number “drive-by” plaintiffs, individuals who often allege violations and commence litigation against businesses without even stepping foot on their property. Many of these plaintiffs have filed tens or even hundreds of such lawsuits in various states, costing employers substantial sums of money in both renovation costs and attorneys’ fees.

As a result of these perceived abusive litigation tactics, Representatives Ted Poe (R-TX), Doug Collins (R-GA) and David Jolly (R-FL) recently introduced “The ADA Education and Reform Act of 2015.” If signed into law, the bill would curb abusive ADA lawsuits by implementing clear, unambiguous rules for identifying and correcting ADA access violations prior to permitting a plaintiff to commence litigation.

Specifically, the measure would require a disabled individual who has encountered barriers to access to provide specific details about the purported denial of access, including the specific sections of the ADA that were violated and whether the barrier to access was temporary or permanent. The bill also provides the employer with a cure period in which it would have the opportunity to set forth a written description of improvements to remove the barrier, and then implement the improvements. If a business fails to correct an identified ADA violation during this cure period, then the aggrieved individual would still have right to seek legal recourse.

Notably, the bill also instructs the U.S. Judicial Conference, in conjunction with property owners and representatives of the disability rights community, to develop a model program to promote the use of alternative dispute resolution to resolve potential claims, with the purpose of alleviating costly litigation and/or lengthy, drawn-out settlement negotiations between the parties.

While employers would undoubtedly welcome the passage of the bill, as it would create disincentives for filing frivolous ADA lawsuits, it is unlikely that it will garner enough bi-partisan support to be enacted into law. The simple introduction of this bill, however, is a positive sign for employers, and should, at the very least, increase general awareness regarding serial plaintiffs and abusive litigation practices. We will keep you apprised of further developments as they become available.