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Gil v. Winn Dixie Appeal

Here is the Southern District of Florida, this past year has been filled with a monumental increase in Americans with Disabilities Act (“ADA”) Title III cases focused on businesses’ web sites.  Ever since the Gil v. Winn Dixie trial, businesses that maintain a web site have been subject to lawsuits (sometimes repeatedly) over their web sites not being accessible under the ADA.  Plaintiffs have been targeting big businesses, small businesses, mom and pop businesses, basically any business that maintains a web site that connects, in even minimal fashion, to its physical location.

Businesses that want to avoid litigation or simply improve accessibility of their web site for visually impaired customers (or other disabled customers) are in a conundrum since there are no federal regulations that set forth the minimum requirements for a web site to comply with the ADA.  Rather, federal courts have generally seemed inclined to impose Web Content Accessibility Guidelines (“WCAG”)  2.0 AA as the accessibility standard in their Court orders finding that businesses must make their web sites accessible.

In the Gil case, Winn Dixie appealed the District Court ruling to the United States Court of Appeals for the Eleventh Circuit.  Oral argument in the Gil case recently took place on October 4, 2018, and you can listen to it here (30 minutes long).

I was particularly interested in the due process argument regarding the WCAG standards during the appellate oral argument in Gil.   Appellate counsel for Winn Dixie argued that there was no fair notice to Winn Dixie as to which regulations might apply to a particular web site which creates a due process issue for businesses across the country.

The appellate judges seemed very interested in how businesses can comply with WCAG 2.0 standards since it is an ever changing standard.  The appellate judges also questioned how businesses can comply with WCAG 2.0 since the standards are more guidance than standards with no hard and fast rules (unlike the ADA regulations for physical spaces).  One of the panel judges during oral argument raised the below question.

How does a company ever know its in violation if it doesn’t know the standard?

Department of Justice Letter

Also, of interest in this arena, the Department of Justice (“DOJ”) has responded, in letter form, to questions from members of Congress about web site accessibility litigation.

The DOJ made some important points in its recent letter.

First, the DOJ reiterated and confirmed its position that the ADA applies to the web sites of businesses that are considered public accomodations.

The Department first articulated its interpretation that the ADA applies to public accommodations’ websites over 20 years ago. This interpretation is consistent with the ADA’s title III requirement that the goods, services, privileges, or activities provided by places of public accommodation be equally accessible to people with disabilities.

Second, the DOJ makes that point that even though there are no specific web site accessibility regulations promulgated by the Federal government a public accomodations’ web site still needs to be accessible.

Additionally, the Department has consistently taken the position that the absence of a specific regulation does not serve as a basis for noncompliance with a statute’s requirements.

Third, the DOJ did provide a little positive news for businesses.  The DOJ letter states that businesses have flexibility in making their websites accessible.  And, most importantly, a business’ “failure” to comply with WCAG 2.0 AA or any other voluntary standard does not necessarily mean that a web site is ADA non-compliant.  It will be interesting to see if any forthcoming judicial rulings adopt this language in permitting businesses to meet their ADA obligations in more flexible ways.

Absent the adoption of specific technical requirements for websites through rulemaking, public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication. Accordingly, noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.

Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

There has been a lot of press lately on animals (and humans) behaving badly on airplanes.  Some of the problems in the friendly skies relate to the huge increase in passengers bringing on animals they claim to be emotional support animals (“ESAs”).  See my prior post for details.

Congress is now considering changes to the Air Carrier Access Act of 1986 to deal with the problem of pets pretending to be ESAs.  Senator Richard Burr (R-N.C.) has proposed to tighten up the law so only “service animals,” as defined by the Americans with Disabilities Act (“ADA”), could fly uncaged in an airplane cabin.

The ADA’s definition of service animals is much narrower than the Air Carrier Access Act and restricts service animals to dogs (with one exception for miniature ponies) and the dog has to be individually trained to provide an actual service or perform tasks for the disabled person.

U.S. airlines flew 751,000 comfort pets last year, an 80 percent jump from the previous year, according to an informal survey by industry group Airlines for America. Those animals include dogs and cats, yes. But also rabbits, ducks, parakeets and monkeys.

All those animals on planes have created safety issues for other passengers which have included bites and attacks by the animals, increased allergic responses, and even simply creating risks by having unsecured cargo in the cabin.  Moreover, with no empty seats on flights these days having pets on laps (including large pets) has created conflict between passengers and between passengers and the crew.

The proposed legislation would also:

  • Create a criminal penalty for claiming that a pet is a service animal and for falsely claiming disability needs; and
  • Require federal agencies to establish a minimum standard of service-animal behavior training for the animals.

While some states have considered or passed legislation imposing criminal penalties for passing off a pet as a service animal, Congress has previously held back in doing so until now.

Additionally, imposing a standard of training for service dogs would be a major change to Federal law.

Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Life moves pretty fast. If you don’t stop and look around once in a while, you could miss it.

That’s a quote from Ferris Bueller, but these days the sentiment is equally applicable to Americans with Disabilities Act (“ADA”) Title III litigation in Florida.  Just a few months ago, I was posting about ADA Title III web site accessibility lawsuits and making your web site accessible for the visually impaired.  Now, the Plaintiffs’ Bar has moved on to the next wave of ADA Title III litigation.

The latest trend is ADA Title III litigation focused on hotel web sites and this type of litigation combines elements of past ADA Title III litigation in that it deals with the physical space at the hotel (ADA accessible rooms) as well as how those rooms are described on the hotel’s reservation system (which often, if not always, includes a web site) and how the rooms are reserved and held for guests.

These cases are being brought pursuant to 28 CFR 36.302(e) which provides:

(1) Reservations made by places of lodging. A public accommodation that owns, leases (or leases to), or operates a place of lodging shall, with respect to reservations made by any means, including by telephone, in-person, or through a third party –

(i) Modify its policies, practices, or procedures to ensure that individuals with disabilities can make reservations for accessible guest rooms during the same hours and in the same manner as individuals who do not need accessible rooms;

(ii) Identify and describe accessible features in the hotels and guest rooms offered through its reservations service in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs;

(iii) Ensure that accessible guest rooms are held for use by individuals with disabilities until all other guest rooms of that type have been rented and the accessible room requested is the only remaining room of that type;

(iv) Reserve, upon request, accessible guest rooms or specific types of guest rooms and ensure that the guest rooms requested are blocked and removed from all reservations systems; and

(v) Guarantee that the specific accessible guest room reserved through its reservations service is held for the reserving customer, regardless of whether a specific room is held in response to reservations made by others.

(2) Exception. The requirements in paragraphs (iii), (iv), and (v) of this section do not apply to reservations for individual guest rooms or other units not owned or substantially controlled by the entity that owns, leases, or operates the overall facility.

(3) Compliance date. The requirements in this section will apply to reservations made on or after March 15, 2012.

At present, even though these regulations went into effect in 2012, there is limited case law interpreting how these regulations will be applied to hotels and other vacation rental facilities that are considered public accommodations.   As such, best practices would require hotels to follow the regulations as written.

It should also be noted that Plaintiffs’ attorneys will likely eventually sue regarding individual units that are rented by owners on a VRBO or Air BnB type platform.  Individual units are not exempt from the obligations set forth in subsections (i) and (ii).

Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori has in-depth experience counseling companies regarding ADA online access and defense of ADA website accessibility cases.  Dori also defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Another so called emotional support animal (“ESA”) has acted out again, this time biting a child on a SouthWest flight.  SouthWest is now examining its animal policies.

See my prior post regarding Delta airlines tightening up its ESA policy.

Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

The answer appears to be yes (I did 30 seconds of Google research to find peacocks flying), peacocks can fly but not on United.

As a follow up to my recent post regarding Delta airlines tightening up its emotional support animal (“ESA”) policy, one of my colleagues alerted me to a news story about an emotional support peacock.   The peacock was denied boarding, but there are some fun photos.

Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

I’ve posted several times, here, here, here, and here regarding the dilemma of service dogs and emotional support animals (“ESA”).

I was interested to see that Delta has recently tightened up its rules for service dogs and ESAs who fly on its planes.

Delta, as of March 1, 2018, will require the following:

  • All customers traveling with a service or support animal must show proof of health or vaccinations of the animal 48 hours in advance of the flight.
  • In addition to the current requirement of a letter prepared and signed by a doctor or licensed mental health professional, those with psychiatric service animals and emotional support animals will also need to provide a signed document confirming that their animal can behave properly (not aggressive and won’t pee on the plane).

Delta has picked up on what many airline passengers these days have suspected and that is that many passengers flying with ESAs are gaming the system to fly animals not normally allowed on-board (including turkeys, pigs, flying sugar gliders, etc.) or to avoid the fee associated with flying a pet.

Additionally, Delta is also facing a lawsuit from a passenger who was bitten in the face by a 50 pound dog who was flying in the lap of a middle seat passenger who claimed the dog was an ESA.  Besides the risk of severe dog bite, having an unrestrained 50 pound dog riding in the lap of a middle seat passenger simply creates safety risks on a plane.  Most airlines strongly recommend that babies over 40 pounds have their own airline seat even if the child is under the age of two (when most airlines permit babies to fly for free in the lap of an adult).

Businesses, including airlines who must comply with the Air Carrier Access Act (which require accommodation of ESAs not required by other land-based businesses), are increasingly facing dilemmas on how to accommodate real service animals (which are limited under the ADA to dogs or miniature ponies) and not running afoul of the ADA while managing the needs of other customers and their obligations under various health code requirements.

Businesses are damned if they do (bites, dog’s peeing on the floor [which I recently witnessed at a popular West Palm Beach restaurant]) and damned if they don’t (ADA lawsuits and bad publicity).  The dog that mauled the Delta passenger belonged to a military veteran and we all know that a business that excludes such a dog from their premises will draw negative publicity as being anti-military, anti-veteran and anti-disabled.

Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

I’ve posted several times, here, here, here, and here regarding the dilemma a business owner faces when a customer enters the premises with a dog.  Is it a service dog, is it an emotional support animal (“ESA”), what are my obligations under the health code and my obligations to other customers, etc.?

Now comes news of a new service called dog parker which is providing climate controlled, web camera equipped metal boxes around New York that members can use to leave their dog in a safe environment for short periods of time (i.e. to run into the drug store or pick up take out).

What do you think of this idea?

Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

I’ve been posting about the problems companies face when a customer wants to bring in a fake service dog, see my recent posts here, here and here.

One of the biggest issues for companies is figuring out which dogs are fake service dogs and which dogs are real service dogs without running afoul of the American with Disabilities Act (“ADA”).   Now comes news of a blind man’s service dog being bitten by another dog on the Sacramento Light Rail.  Initially, the owner of the “bad dog” claimed it was a service dog, but after police told him they had the incident on video he admitted the dog was a pet.

Businesses are really in a catch 22, if employees improperly question a real service dog owner they can be in violation of the ADA.  However, this type of incident, if it had happened within a private business, might have created a premises liability situation that would have negatively impacted the business.  The owner of the real service dog could have been hurt and/or sued the business for damages/injuries to his real service dog.

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

 

I’ve posted before, here and here, regarding the dilemma business owners have when faced with a customer with a dog (fake service dog) or a customer with an animal (emotional support animal – which are not afforded the same protections as service dogs).  Many business owners simply don’t know how to respond or respond incorrectly (and generate bad press for themselves).  Many customers are fed up with fake service dogs everywhere and they resent businesses that do nothing as well and that means companies often can’t win.

Yesterday, there was an interesting article/editorial in The Hill regarding a proposal for creating a national certification database for service dogs.

What are your thoughts on a national certification program for service dogs?

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Following up on my earlier post regarding fake service dogs, news from up north that Massachusetts is also considering a law to penalize those that pass off pets at service dogs.

The bill would makes passing a pet off as a service dog a civil infraction, carrying a $500 fine.

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.