On July 31, 2018, the Department of Justice (DOJ) and the Department of Labor (DOL) signed an agreement that sets guidelines for inter-agency collaboration to combat suspected employer non-compliance with immigration laws. The agencies have agreed to share resources, including records, and education and training where necessary, and refer cases to one another when an agency learns of employer non-compliance. Continue Reading DOJ and DOL Combine Forces to Combat Employment Discrimination Against U.S. Workers

Recently, the District Court for the Southern District of Florida held in Gil v. Winn-Dixie Stores, Inc., that Winn Dixie’s website violated Title III of the Americans with Disabilities Act (“ADA”), and awarded the plaintiff attorneys fees and injunctive relief. Many believe this to be the first trial regarding website accessibility to date. While this opinion is not binding on any other district—or even other judges within the Southern District of Florida—it is intriguing for several reasons.

Title III of the ADA prohibits the owner of a place of public accommodation from discriminating “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation . . . .” In this particular case the plaintiff, an individual who is legally blind and has cerebral palsy, alleged he could not access online digital coupons, refill his prescriptions, or locate nearby stores.

Reason 1: The court found that Winn-Dixie violated the rights guaranteed to a disabled individual under Title III of the ADA by not providing services it offers through its website in an effective, accessible format for the plaintiff. This opinion comes at a time when other courts have recently provided defendant-friendly language in dismissing website accessibility lawsuits. Winn-Dixie determined that “[w]here a website is heavily integrated with physical store locations and operates as a gateway to the physical store locations,” a website is a service of a public accommodation and is covered by the ADA.

Reason 2: The court endorsed the Worldwide Web Consortium’s (W3C) Web Content Accessibility Guidelines 2.0 (WCAG 2.0) as the standard of accessibility; an endorsement not widely seen in case law given the lack of official regulations on website accessibility for public accommodations. The DOJ has expressed its preference for these standards in advance notices of proposed rulemaking dating back to 2010, but has yet to issue any regulations on website accessibility. These standards were required by the injunction included in the opinion, with deadlines for compliance to be agreed upon by the parties.

Reason 3: The court confirmed that “where a website is wholly unconnected to a physical location, . . . the website is not covered by the ADA.” This is in line with the majority of circuits, which require that a place of public accommodation must be a physical place. In jurisdictions requiring that a public accommodation be a physical place, courts employ a “nexus analysis,” which allows courts to determine that a website is subject to the ADA without having to determine that a website is in and of itself a public accommodation. The takeaway here is that in those jurisdictions that require a public accommodation be a physical place (Third, Sixth and Ninth Circuits), a website that is not connected to a business with a physical location, but whose services exist solely online is likely not going to be subject to the ADA.

Reason 4: The opinion is also significant for what it did not discuss—the auxiliary aid requirement.  In website accessibility suits in the past, defendants have argued that having a live, in-person representative, who could field phone calls from disabled individuals experiencing accessibility problems, was an appropriate auxiliary aid under the flexible regulations currently in place. A California court recently noted, “Plaintiff has failed to articulate why either Defendant’s provision of a telephone hotline for the visually impaired . . . does not fall within the range of permissible options afforded under the ADA.” In Winn-Dixie, this issue was not squarely before the court. The court noted Winn-Dixie spent $2 million in 2015 to open its current website, and spent $7 million in 2016 to remake the website for its online rewards program, “Plenti.” Moreover, Winn-Dixie’s vice president of IT, Application and Delivery testified that it was feasible for the website to be modified to be accessible to the disabled. Winn-Dixie submitted that it would cost $250,000 to integrate the WCAG 2.0 standards. A third party website accessibility testing company estimated the cost at $37,000. Either way, given the recent, large expenditures on its website, Winn-Dixie could not claim it would be an undue burden to bring its website into compliance.

Reason 5: The court did not require its website to be compatible will all varieties of screen reader software on the market, but only the main screen reader software programs, such as NVDA or JAWS. It is the responsibility of those less widely used screen reader programs to make themselves compatible. The court came to the same opinion with internet browsers, and noted that the main stream browsers such as Google Chrome, Internet Explorer, and Safari, already comply with WCAG 2.0 standards.

Winn-Dixie is likely the first of what could be many trial orders on Web Accessibility in the coming year. While most of these cases settle after the motion to dismiss or summary judgment stage, the ever increasing number of filings and the lack of DOJ guidelines on web accessibility ensure that these issues will continue to be relevant.

Today’s post is authored by Drew Rawl, a commercial litigator in our Greenville, SC office. Read Drew’s past blogs on this subject.

Recently, the SC Employers’ Blog alerted you to a rising trend where serial claimants send demand letters to various private companies alleging the company’s website discriminates against individuals who are blind or visually impaired. That blog discussed a proposed Department of Justice (“DOJ”) rule, which would clearly define accessibility guidelines for public accommodations under Title III, and it was thought that the DOJ would implement those rules in 2018.

All recent signs are now suggesting otherwise. A recent Executive Order seems to put the DOJ rulemaking on website accessibility on hold for the foreseeable future. On January 20, 2017, all administrative agencies were temporarily “frozen” via a White House Memorandum, in order for the new agency heads appointed by President Trump to review all policies and proposed rules, and determine what agency initiatives would be continued or disbanded. On January 30, the President issued Executive Order 13771 titled “Reducing Regulation and Controlling Regulatory Costs.” This Order was issued to manage “costs associated with the governmental imposition of private expenditures required to comply with Federal regulations.”

Executive Order 13771 sets forth three guidelines for federal agencies moving forward:

  1. For every new regulation issued, at least two prior regulations must be identified for elimination. In addition, the cost of planned regulations should be prudently managed and controlled through a budgeting process, according to the order.
  2. Second, the order requires that the “total incremental cost of all new regulations, including repealed regulations, should be no greater than zero, unless otherwise required by law or consistent with advice provided in writing by the Director of the Office of Management and Budget (“Director”).”
  3. Finally, any new incremental cost associated with a new regulation shall be offset by the elimination of existing costs associated with at least two prior regulations. This imposes a cap on the cost for new regulations in 2017 at $0.

For 2018 and beyond, each agency head shall identify the incremental cost for each regulation, the offsetting regulations, and provide the agency’s best approximation of the total costs or savings associated with each new regulation or repealed regulation. Under this order, the Director is required to identify a total amount of incremental costs that will be allowed for each agency when issuing new regulations and repealing regulations for the next fiscal year during the Presidential budget process.

This then begs the question, “What does this mean for DOJ’s proposed rulemaking regarding website compliance under the ADA?” The DOJ clearly feels that websites are subject to the ADA, but given the constraints imposed on future rulemaking by Executive Order 13771, the DOJ will have to carefully select what regulations it chooses to roll out in the future. This means the general accessibility mandate required by the ADA is likely to be the law for the foreseeable future. As explained in our previous blog post, the general accessibility mandate, or the “auxiliary aid requirement,” requires that a public accommodation take necessary steps to ensure no individual with a disability is excluded, denied services, segregated or otherwise treated differently, unless the public accommodation can demonstrate that taking those steps would fundamentally change the nature of the goods or be unduly burdensome. What type of auxiliary aid will suffice is still to be determined through case law or any forthcoming rulemaking, whenever that may be.

On March 20, the Central District of California recently dismissed a case due in part to the DOJ’s failure to specify what an accessible website is under the ADA. The Court in Robles v. Dominos Pizza, LLC, No. CV 16-06599 SJO (SPx) (C.D. Cal. Mar. 20, 2017) granted Dominos motion to dismiss on the grounds that Plaintiff’s attempted imposition of the WCAG 2.0 Standards “flies in the face of due process.” The court referenced the DOJ’s prolonged rulemaking process for the ADA’s website accessibility standards and noted the questions the DOJ raised more than seven years ago are still unanswered. To require Dominos to comply with the WCAG 2.0 standards “without specifying a particular level of success criteria and without the DOJ offering meaningful guidance on this topic” violates Dominos’ due process rights. The court dismissed the plaintiff’s causes of action without prejudice, pursuant to the primary jurisdiction doctrine. Generally speaking, a court invoking the primary jurisdiction doctrine is deferring to the expertise and uniformity of the relevant agency, rather than rendering a decision on the matter that would have the effect of creating law.

The Robles court briefly discussed auxiliary aids, but provided no guidance on whether what Dominos was using sufficed. Dominos included on their website (after the suit was filed) “accessibility banners that direct[s] users who access the website using a screen reader with the statement: ‘If you are using a screen reader and are having problems using this website, please call 800-254-4031 for assistance.’” This number was staffed by a live representative who provided blind or visually impaired individuals with assistance. The court did not rule on whether this was an appropriate auxiliary aid, but did note, “Plaintiff has failed to articulate why either Defendant’s provision of a telephone hotline for the visually impaired or it’s compliance with a technical standard other than the WCAG 2.0 does not fall within the range of permissible options afforded under the ADA.” Other agencies and companies have employed live phone representatives in a similar manner. While this seems to be ensuring “effective communication” between the public accommodation and the disabled individual, we have yet to find a case where a court has explicitly approved this under the law.

As the amount of website accessibility cases increase, we can only expect increased pressure on the DOJ to issue clear and defined rules on website accessibility.

Today’s blog post is authored by Drew Rawl, a commercial litigator based in our Greenville office.

On February 22, 2017, the Department of Justice and the Department of Education issued a “Dear Colleague” letter withdrawing the statements of policy and guidance issued by the Department of Education on January 7, 2015 and the Departments of Justice and Education on May 13, 2016. In the February 22, 2017 letter, the Office of Civil Rights division of both Departments stated that the previous guidance to schools regarding access to restrooms for transgender students was being withdrawn because of the “primary role of states and local school districts in establishing educational policy.”  Further clarification by the White House Press Secretary, Sean Spicer, indicates that President Trump believes the issue of transgender access to restrooms under Title IX is a states’ rights issue and not a federal government issue.  Secretary of Education, Betsy Devos, issued a statement on February 22, 2017, reiterating that the Department of Education would continue to enforce non-discrimination provisions of Title IX.

Approximately six months earlier, in a case of first impression, the Fourth Circuit Court of Appeals held a transgender student can maintain a claim under Title IX if a school refuses to give him access to the bathroom that corresponds to his gender identity.   G.G. Ex. Rel. Grimm v. Gloucester Cty. School Board, No. 15-2056 (4th Cir., April 19, 2016). In so holding, the Fourth Circuit addressed the meaning of the word “sex,” stating a “hard and fast binary division on the basis of reproductive organs is not universally descriptive.”  The Fourth Circuit Court of Appeals is the first federal appellate court to hold transgender students have a cause of action under Title IX if a school denies restroom access on the basis of gender identity vs. biological identity.  The Fourth Circuit opinion deferred to the May 13, 2016 letter from the Departments in rendering its opinion and it is an unknown as to whether the Court would have reached the same conclusion in light of the Departments’ 2017 retraction of that guidance.[1]

Why does this matter to employers, at least those under the Fourth Circuit’s jurisdiction, which includes South Carolina, Virginia, West Virginia, North Carolina and Maryland? The Fourth Circuit relied on definitions of “sex” under Title VII to reach its conclusion regarding the definition of “sex” not being based on biological organs. Title VII is the federal statute applicable to employers and employees, and it prohibits employers from discriminating against employees on the basis of their gender.  The opinion offers insight into how the Fourth Circuit might view a decision when faced with the issue of how an employer treats transgender employees.  And while this Fourth Circuit opinion is under review by the United States Supreme Court, a reversal would only pertain to the Fourth Circuit’s specific holding in the case, and would not impact the message employers can take from the opinion’s dicta regarding the definition of “sex.”

Thus, employers should continue to adopt, implement and follow gender-neutral best practices. We are often asked what this means regarding restroom access.  OSHA Sanitation Standard 1910.141(c)(1)(ii) requires that employers offer toilet facilities for each sex and permit them reasonable access. OSHA issued guidance regarding the issue of transgender restroom access, recommending, among other things, single occupancy, gender neutral or multiple occupancy lockable stalls.  OSHA’s core principle in its guidance was expressed: “All employees, including transgender employees, should have access to restrooms that correspond to their gender identity.” Many employers don’t have the ability to redo their facilities to accommodate the OSHA recommendation. However, actions employers can take include adopting gender neutral policies and practices, and requiring a workplace environment that is accepting and not hostile to any employee on the basis of gender identity. In today’s highly charged political climate, this can prove difficult.

 

[1] The Fourth Circuit gave the May 13, 2016 letter “controlling” deference under the doctrine of Auer v. Robbins, 519 U.S. 452 (1997).