Who does Title III apply to?
Title III of the ADA applies to private entities and covers:
(1) places of public accommodation;
(2) commercial facilities; and
(3) examinations and courses related to applications, licensing, certification or credentialing for secondary or postsecondary education, professional, or trade purposes.
A place of public accommodation is defined as a place maintained by a private entity whose operations affect commerce, and that falls within one of twelve enumerated categories (not discussed here).
There are inconsistent interpretations among courts regarding whether private websites are considered places of public accommodation subject to the accessibility requirements of Title III and if so, to what standard they are subject. While more specific criteria for accessibility of websites are expected next year, the DOJ has not yet published any clear regulations on the issue.
The court’s decision in Gil v. Winn-Dixie Stores, Inc. offers insight into the direction that the law may be heading. The plaintiff, a visually impaired individual, alleged that the defendant food store’s website was inaccessible to him. The court undertook to determine if the website was subject to the requirements of the ADA. If the website was a place of public accommodation, the court reasoned that it would be subject to the ADA. Although Winn-Dixie does not offer any products for sale directly through its website, the website does permit customers the opportunity to access digital coupons and refill prescriptions.
Many individuals with auditory, visual, or other related disabilities often use assistive technology to help them operate computers and mobile devices and easily access the same information that is available to users without disabilities. The plaintiff in the Winn-Dixie case used assistive software, but he was still unable to access 90% of the tabs on Winn-Dixie’s website, including information such as store locations and hours.
Ultimately the court determined that since the website is “heavily integrated” with Winn-Dixie’s physical store locations and operates as a gateway to them, the website constituted a place of public accommodation and is subject to the requirements of the ADA. The court determined that the online pharmacy, access to digital coupons, and ability to locate stores and hours were considered “services, privileges, advantages, and accommodations” offered by Winn-Dixie’s physical store locations, and as such, the ADA requires that disabled individuals are provided “full and equal enjoyment” of both the website and the stores.
The court’s decision confirms that websites with any public interaction will be considered a place of public accommodation and thus subject to the ADA. Essentially, if a website interacts with the public, it is likely a place of public accommodation. These interactions may be direct, such as e-commerce sales. As in the Winn-Dixie case they may also be less direct such as access to coupons, information regarding store locations and hours, and access to any other tab or page found on the website containing information about products or services that are associated with the physical store.
What is Required?
The court adopted the Web Content Accessibility Guidelines (WCAG) as the accessibility standard for websites. The WCAG is a set of accessibility guidelines created by the World Wide Web Consortium (W3C) which is the primary international standards organization for the Internet. It was compiled based on the expert opinions of the W3C staff, member organizations, and interest groups. The consortium is led by Tim Berners-Lee, the inventor of the World Wide Web, and W3C CEO, Jeffrey Jaffe. The court noted that the internet provides the public with information that is easily accessible to viewers at any time. The ADA’s purpose is to ensure disabled users are afforded an opportunity, equal to that of users without disabilities, to access the goods, services, facilities, privileges, advantages, or accommodations provided on websites.
So How Does a Business with a Website Comply?
There are several steps a business can take to protect itself. The first is to make sure its website is accessible. Acknowledge the potential use of assistive technology by disabled viewers and create websites that are compatible by doing things such as:
Businesses should be aware that these suggestions may be referred to for guidance, but do not encompass the entirety of the accommodations Title III of the ADA may require. It is strongly recommended that businesses operating websites conform with the WCAG in an effort to ensure that disabled individuals receive the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a website.
What Happens if a Website Does Not Comply?
Businesses should be proactive in bringing their website into compliance despite the current lack of formal regulations. Disabled persons encountering an inaccessible website may retain counsel to send out threatening demand letters to a website operator or file a lawsuit. As one of few decisions on the issue, Gil v. Winn-Dixie Stores, Inc. will serve as persuasive precedent to courts confronted with the issue in the near future.
Websites that fail to comply may find themselves:
In addition to protecting against the risk of liability, modifying websites to increase accessibility to disabled viewers potentially expands a business’ market to promote its products or services to new customers who previously could not adequately access information about the business.
For any questions, feel free to contact Hillary Hughes at hhughes@gsblaw.com or at 212.965.4527, Nancy Cooper at ncooper@gsblaw.com or at 503.553.3174, or your attorney for more information on the applicability and requirements of these new guidelines.
This alert was prepared with the assistance of Meghan O’Brien, a legal extern and law student at New York Law School.
Author Pages
Hillary Hughes – Owner, Garvey Schubert Barer
Nancy Cooper – Owner, Garvey Schubert Barer
Service charges, administrative charges, surcharges, house fees—whatever you call those charges assessed for food and beverage service in restaurants and in hotels—the rules about how they need to be disclosed to guests and how they must be allocated are propagating. More and more cities, municipalities and other local legal bodies are taking on service charges in detailed laws, and we expect more to come.
Interest in this issue at all levels of lawmaking seems to be increasing as living wage/minimum wage raise efforts become more and more popular throughout the country. Many such efforts result in laws that also affect how service charges may be collected, distributed and how they must be disclosed to consumers. In other words, the locus for relevant law in this area has shifted significantly from the state to the county or city level.
For example, over the last couple years, the California cities of Emeryville, Los Angeles, Oaklandand Santa Monica have each addressed service charges, either generally or in hotel-specific ordinances. An amendment to a New York state labor law, effective in 2011, included a requirement that all disclosures about service charges be in 12-point font that was stuck between a rebuttable presumption that a service charge is a gratuity and how to handle tips paid with credit cards.
It’s a good idea to keep an eye on legislative efforts to raise the minimum wage across the country because, as mentioned, sometimes other important things are added when the relevant laws are passed. We are developing resources to keep track of all these various and sundry city, county and state changes in this area and encourage all hospitality industry members to do the same.
Click here for the original article.
]]>Ridesharing giant Uber raised $2.1 billion in its most recent round of funding, buoyed by a valuation of more than $65 billion – a remarkable ascendance for the five-year-old company. Its success has attracted a wave of new entrants seeking to gain a foothold in this burgeoning market. But the road to a share of the sharing economy is fraught with legal peril.
One of the new contenders is SafeHer, a by-women-for-women ridesharing company that positions itself as a secure alternative to market leaders like Uber and Lyft. SafeHer’s business model responds to growing concerns over allegations of rape and sexual violence against female passengers in Uber vehicles, and Uber’s opacity in dealing with these incidents. Uber has facedmounting criticism of its protocols for screening its drivers, whom Uber continues to classify as independent contractors instead of employees. SafeHer would staff its fleet exclusively with female drivers, and would serve only female clientele. If SafeHer’s plans come to fruition, hoteliers will be able to add value for female guests by including the service in their repertoire of concierge offerings.
Formerly known as Chariot for Women, SafeHer had announced plans to launch operations across all 50 states on April 19 of this year. But for those of us who have followed the legal tribulations of other ridesharing companies, the delay of its launch did not come as a surprise. SafeHer is not the first ridesharing company to champion a women-centered business model. But the companies that have preceded SafeHer have been thwarted by legal obstacles and threats.
Ironically, the stumbling blocks that loom largest in SafeHer’s path are federal, state and local anti-discrimination laws — laws that were passed with many of the same objectives that underlie SafeHer’s business model. SafeHer, with its goals of helping women drivers break into thehistorically male-dominated taxi industry, and providing women passengers with the same expectations of physical safety as their male counterparts, seems to be consistent with at least the spirit of anti-discrimination laws.
But whether SafeHer’s “by women for women” business plan is in keeping with the letter of these laws is a thornier question, complicated by differences in the state and local variants of civil rights statutes. A business operated exclusively “by women” risks violating the employer-related provisions of anti-discrimination laws, which generally prohibit hiring on the basis of gender. And SafeHer’s “for women” policy could run afoul of related provisions that outlaw discrimination in public accommodations.
At the federal level, the governing statute is the Civil Rights Act of 1964. Title II of the Civil Rights Act does not prevent public accommodations from discriminating on the basis of gender – this is exclusively the province of state and local government. Title VII of the Act, on the other hand,imposes strict limitations on gender-based hiring, which apply even to well-intentioned forms of discrimination.
These limitations can be overcome if an employer demonstrates that gender is a “bona fide occupational qualification,” but this exception has been applied sparingly to cases where gender bears directly on an individual’s ability to perform a job. Courts have held, most famously in the context of flight attendants, that “customer preference” for employees of a certain gender does not elevate gender to the status of a BFOQ. Several skeptics and commentators have expressed doubts about the upsot of these cases for SafeHer’s business model.
But where “customer preference” is guided by gender-specific concerns about safety and privacy, federal courts have upheld gender-based hiring practices under the BFOQ rule in a number of contexts. For instance, courts have approved of:
SafeHer’s might be able to overcome a Title VII challenge by analogizing to these precedents. Because the company’s underlying objective is to promote rather than undermine gender equality, SafeHer could find a sympathetic judge or jury willing to extend the BFOQ line of cases to its business model. The company’s troubles, however, would not end there.
Most states and major cities have enacted their own anti-discrimination laws, augmenting the protections afforded by the Civil Rights Act. This article will not attempt to summarize all of these laws and their differences, for there are too many to mention. But by way of example, New York State, Washington State, New York City, and Seattle have all enacted laws that prohibit gender-based discrimination in places of public accommodation, a subject on which federal law is silent. And while Title VII applies only to employers with 15 or more employees, the New York State andCity laws apply to employers with as few as four employees, the Washington statute applies to employers with eight or more employees, and Seattle’s ordinance applies to virtually all employers (anyone having “one or more” employees).
All four of these laws have exceptions that, like the BFOQ provisions of the Civil Rights Act, could be interpreted to permit “pro-equality” discrimination. The Washington statute expressly permits employers to implement discriminatory policies if “appropriate for the practical realization of equality of opportunity between the sexes,” and permits gender discrimination in public accommodations for the purpose of curbing “behavior or actions constituting a risk to property or other persons.” The New York State and City laws carve out exceptions for public accommodations based on “bona fide considerations of public policy.”
Each of these provisions could be construed to provide a safe harbor for businesses like SafeHer, which employ benevolent discrimination in pursuit of larger social goals of gender equality. The trouble is that there may be no way of knowing without testing these laws one by one. State and local anti-discrimination laws vary widely in their history, text and application. There is no guarantee that this patchwork of state and local laws would be applied or interpreted consistently from one jurisdiction to the next.
Against this fragmented backdrop, SafeHer’s ambition to mount a coordinated nation-wide launch might be a bridge too far for a young company backed by a single angel investor. A more modest launch, targeting a handful of states and cities with favorable anti-discrimination laws, could get SafeHer off to a stronger start, with less potential exposure, and better hopes of setting good precedent.
Click here for the original article.
]]>