As I have discussed before, over the past few years there has been a significant expansion in accessibility cases brought under Title III of the ADA (and related state and local accessibility statutes) with the focus of the litigations transitioning from brick and mortar issues to accessible technology.  As businesses continue to compete to provide customers and guests with more attractive services and amenities, we have seen increased utilization of technology to provide those enhanced experiences.  However, in adopting and increasingly relying on new technologies such as websites, mobile applications, and touchscreen technology (e.g., point of sale devices, beverage dispensers, check-in kiosks) accessibility is often overlooked because of the lack of specific federal standards in most contexts.  In turn, regulators, advocates, and ambitious plaintiff’s firms across the country have pursued actions in virtually all industries attacking the inaccessibility of various technology, under theories that inaccessible technology denies individuals with disabilities full and equal enjoyment of the offered goods/services/amenities and/or requires the business to provide access via auxiliary aids and services.  With the rise in accessible technology litigation, we are finally beginning to see greater guidance from the courts regarding the scope of businesses’ obligations in these contexts.  The two recent decisions discussed below– one in New York and the other in California – do just that.

Flexibility When Utilizing Touchscreen Technology In Certain Contexts

The recent ruling by the U.S. District Court for the Southern District of New York in West v. Moe’s Franchisor, LLC, provides businesses utilizing touchscreen technology to provide certain types of goods and services to its patrons with a possible roadmap for avoiding liability under Title III.  This litigation stemmed from Moe’s Restaurant installation of “Freestyle” drink dispensers that provide customers with the ability to select from over 100 distinct beverages using a touchscreen interface.  Plaintiffs, who are blind, could not utilize the dispensers and, after failing to secure assistance from an employee of the restaurant, needed to rely upon other customers for assistance with the device.  As a result of their experience, plaintiffs filed a class action lawsuit alleging that the inaccessibility of the touchscreen drink dispensers (the “Freestyle Dispensers”) violated Title III of the ADA and the New York State and New York City Human Rights Laws.  Specifically, plaintiffs alleged the Dispensers should have provided adaptive technology, such as tactile/Braille controls and a screen reader that provided audible instructions, as auxiliary aids and services.

In granting Moe’s motion to dismiss, the Court agreed with Moe’s argument it had appropriately met Title III’s obligation that places of public accommodation provide auxiliary aids and services to patrons with disabilities.  In meeting this flexible obligation, while the place of public accommodation is encouraged to consult with the individual with a disability, Title III leaves the ultimate determination of what auxiliary aid/service is appropriate up to the place of public accommodation provided the option adopted is effective.  The Court noted that one type of auxiliary aid/service expressly contemplated by Title III’s governing regulations is the provision of employees trained to read menus to guests who are blind.  To that end, the Court concluded that “nothing in the ADA or its implementing regulations supports Plaintiffs’ argument that Moe’s must alter its Freestyle machines in a way that allows blind individuals to retrieve beverages without assistance.”  While the Court conceded that providing accessible Freestyle Dispensers to enable independent usage by guests with disabilities might be feasible and/or preferable, because Moe’s trained its employees to provide assistance to guests with disabilities who had difficulties operating the Freestyle Dispensers, plaintiffs failed to establish a claim that Moe’s violated Title III or the equivalent state/city laws.  (The fact that in one instance Plaintiffs did not promptly obtain such assistance was insufficient to alter this conclusion.)

This decision, while only directly applicable to businesses in the SDNY’s jurisdiction, certainly provides support for the argument that even when adopting the use of accessible technology, a business may not always have to provide directly accessible technology in lieu of offering the prompt assistance of well-trained employees (and ideally indicating the availability of such assistance via accessible signage).  One important note of caution, however, in reaching its conclusion, the Court took care to distinguish that its decision might have been different if the technology being considered touched upon plaintiffs’ legitimate privacy concerns (e.g., a financial transaction).  Therefore, businesses should pause before seeking to apply the teachings of this decision to devices such as touchscreen point-of-sale/debit card technology (indeed, California has a state law expressly requiring accessible point-of-sale devices).

Website Accessibility Obligations Continue to Become More Certain

In a decision on the opposite end of the country last month that will not be met with the same reaction by businesses, the San Bernardino Superior Court in California held that a retailer violated the ADA (and the Unruh Act under California law) because its website was inaccessible to individuals who are blind or have low vision.  The decision in Davis v. BMI/BND Travelware, granting summary judgment to the plaintiff, is particularly noteworthy because prior decisions addressing the issue have occurred pre-discovery when considering motions to dismiss.

The Court, concluding that Plaintiff was denied full and equal enjoyment of the goods and services of defendant’s luggage business, based its decision that Title III applied to defendant’s website on the fact that the plaintiff demonstrated that he sought goods and services from a place of public accommodation and a sufficient nexus exists between defendant’s retail store and its website, which – by being inaccessible – directly impeded his ability to access defendant’s goods and services.  On the basis of this ruling, the Court ordered the defendant to: (i) either make its website “readily accessible to and usable by visually impaired individuals” or to terminate the website; and (ii) pay $4,000 in statutory damages under the Unruh Act on the grounds that, “the undisputed evidence is that plaintiff’s access to the website was prevented by the defendant at the time the website was designed.”  (However, the Court also refused to grant additional statutory damages for subsequent unsuccessful attempts to access the website.)

This decision reflects the latest in a series of rulings on website accessibility that increasingly reject arguments that business establishments with websites do not have an obligation under Title III and state/local laws to make the websites accessible.   Of course, as we’ve noted in the past, these decisions do not foreclose a variety of potentially successful defenses that may be asserted in later stages of a litigation – e.g., undue burden, fundamental alteration, and the provision of equivalent/alternative means of access.  As an increasing number of website accessibility cases proceed through litigation, businesses should soon have further guidance from the courts.  In the interim, the best way to guard against potential website accessibility claims continues to be to take prophylactic measures to address compliance before you receive a demand letter, complaint, or notice of investigation.