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OCTOBER 19, 2017

Will Trump DOJ side with disabled plaintiffs in AD

Alison Frankel

(Reuters) - Businesses are not at all happy about a boom in suits by disabled consumers who claim corporate websites are insufficiently accessible under the Americans with Disabilities Act. These cases have mushroomed since 2015. Disabled plaintiffs, many of them represented by the same handful of firms, filed 240 suits in 2015 and 2016, according to a Wall Street Journal report on the trend last November. This year, the number of new ADA website accessibility cases has already topped 400, according to the Florida Justice Reform Institute.

The Florida group, which bills itself as a coalition of “concerned citizens, small business owners and business leaders,” is urging the 11th U.S. Circuit Court of Appeals to squelch these cases now. So is an unusually diverse collection of more than a dozen business groups, including the Restaurant Law Center, the American Bankers Association, the National Association of Realtors and the U.S. Chamber of Commerce. They argue in newly filed amicus briefs backing the supermarket chain Winn-Dixie that the text of the ADA, most recently revised in 2010, says nothing about whether business websites must accommodate disabled customers, yet some federal courts – including the Miami federal judge who ruled last year that Winn-Dixie must revise its website to make it accessible to a visually impaired customer (2017 WL 2547242) - have read such an obligation into the statute.

Those rulings “have created significant confusion regarding the circumstances under which websites may fall within (the ADA’s) reach and, more specifically, what measures businesses must take to ensure their websites meet any supposed accessibility requirements,” the Restaurant Law Center and its fellow amici said in their brief in the Winn-Dixie appeal. “If this court affirms the lower court’s decision at issue on this appeal, (businesses) will be forced to do the impossible and try to ‘comply’ with nonexistent, undefined and potentially ever-changing standards of website accessibility.” (Making Internet content accessible for the visually impaired, via screen readers that translate content into synthesized speech, is not a trivial expense; Winn-Dixie, for instance, had already earmarked $250,000 for the project even before it was sued.)

Judges have been forced to interpret the statute because the Justice Department, which Congress charged with implementing the ADA, has failed to engage in formal rulemaking, according to Winn-Dixie’s business amici. DOJ issued an advance notice of proposed regulations for ADA-compliant websites all the way back in 2010. But the Justice Department never managed to produce a formal proposal for website accessibility standards. Instead, DOJ staked out a position by filing statements of interest in ADA cases across the country.

“The DOJ claims the ADA governs websites, not because the statute states as such, nor because the DOJ has duly amended the ADA regulations to include coverage of websites, but because the DOJ has decreed it so in litigation,” wrote K&L Gates in the Florida Justice Reform brief.

In the Winn-Dixie case – the first ADA website accessibility suit to be decided after a bench trial – the Justice Department did indeed file a statement of interest in the lower court, backing plaintiff Juan Carlos Gil. The Civil Rights Division’s disability rights section argued that under the ADA, grocery store websites, like the websites of all places that accommodate the public, must be accessible to blind people. DOJ acknowledged that it was engaged in rulemaking on the issue, but said its longstanding position has been that the ADA’s text and legislative history indicate the law encompasses websites as well as physical locations.

The DOJ’s statement of interest in the Winn-Dixie case in federal district court was filed in December 2016. You can probably guess why I’ve mentioned that date: It precedes Donald Trump’s inauguration as president and Jeff Sessions’ confirmation as U.S. attorney general.

The Justice Department that vigorously supported disabled plaintiffs in ADA website accessibility litigation, in other words, was not the same DOJ that exists today. The Trump administration has already abandoned Obama-era positions in litigation involving workplace discrimination against gay and lesbian employees and mandatory arbitration provisions barring employees from bringing classwide claims. Will the Justice Department drop its support for disabled plaintiffs suing businesses for failing to make their websites accessible?

There are already signs that the Trump administration is reconsidering the issue. Angelo Amador of the Restaurant Law Center pointed out to me that the Obama administration repeatedly moved the deadline for proposing regulations to make business websites comply with the ADA, promising in its final regulatory guidance to issue a proposal in 2018. But the Trump administration’s first guidance on its regulatory agenda indicated that no rule is in the offing. The advance notice proposal has been moved to the inactive category, which, Amador said, is an indication that the Trump DOJ has different ideas than the previous administration.

I sent a detailed email to the Justice Department, asking what position, if any, it expected to take in the Winn-Dixie appeal at the 11th Circuit. I didn’t hear back. I also didn’t receive a reply to an email sent to Juan Carlos Gil’s law firm, the Law Offices of Scott R. Dinin.

Litigation over business website accessibility for the disabled is only going to get more heated. As Amador of the restaurant trade group noted, the 9th Circuit is also poised to hear a case involving a website that supposedly fails to accommodate visually impaired customers. Unlike U.S. District Judge Robert Scola in the Winn-Dixie case, U.S. District Judge James Otero of Los Angeles held last March in Robles v. Dominos Pizza (2017 WL 1330216) that until the DOJ or Congress sets formal website accessibility standards, defendants’ due process rights preclude ADA claims. The plaintiff in the Domino’s case, who also claimed the pizza chain’s mobile app does not comply with the ADA, has filed a notice of appeal. The Restaurant Law Center is already working on its amicus brief in that case, Amador said.