In a big win for employers, a three-judge panel of the Sixth Circuit struck back against the notion that, under the 2008 expansion of the ADA, nearly every medical condition requiring work restrictions is a qualifying disability. Instead, the Court held that an employee must show that he or she is limited in performing a class or a broad range of jobs to show a limitation in the major life activity of working.

Michael Booth injured his neck at work in 2004. When he returned to work, he was limited in his ability to reach overhead and in the amount of time he could flex or extend his neck. The employer accommodated his restrictions by moving him to a different assembly line where he worked for nearly a decade. In 2015, Booth repeatedly requested a transfer to a material handling position that he viewed as less stressful, easier, and simpler, but the employer denied the request due to his restrictions. Around the same time, the employer restructured Booth’s assembly line to add two additional duties. Booth alleged that his restrictions prevented him from performing the additional duties. The employer sent him for a reassessment of his ability to work. After re-evaluation by a doctor, all but one of Booth’s restrictions was removed, and Booth was cleared to perform all tasks on his assigned assembly line.

Booth sued, alleging that the re-evaluation and the failure to transfer him were discriminatory under the ADA. The employer asserted that Booth was not disabled and could not make a claim under the ADA. The trial court agreed and awarded the employer summary judgment. Booth appealed.

Recall that the ADA requires that an employee show that: (1) the employee is disabled; (2) the employee was qualified for the position with or without accommodation; (3) the employee suffered an adverse employment action; (4) the employer knew or had reason to know about the disability; and (5) the position remained open while the employer sought other applicants or the individual was replaced. To show that an employee is disabled, the employee must have a physical or mental impairment that substantially limits one or more major life activities, has a record of a disability, or is regarded as having such an impairment. Working is one example of a major life activity. In 2008, Congress amended the ADA to cover a broader range of individuals and to make clear that an impairment only needs to substantially limit one major life activity.

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The Sixth Circuit held that simply showing a limitation in performing a particular job is not enough to demonstrate that an employee has a “disability” under the ADA. An employee who alleges an impairment in the major life activity of working must show that he/she is limited in the ability to perform a class of jobs or a broad range of jobs.

The case is Booth v. Nissan North America, Inc., No. 18-5985 (6th Cir. June 7, 2019).

Website accessibility seems to be a topic that companies choose to ignore until it is too late. Is your website compliant, and does it need to be?

Jamie LaPlante, a frequent lecturer across the country on the issue of website and app accessibility, outlines the legal background, statutory coverage, application of the ADA to websites and apps, standards for accessibility, recent law and the consequences of the failure to comply.

Public Accommodations Law – Background

There are two different laws at issue: the Americans with Disabilities Act (ADA) and Section 508 of the Rehabilitation Act. Within the ADA, there are three different sections to consider: Title I (employment law), Title II (state and local government entities), and Title III (private entities). Title I only concerns website and app accessibility issues as they relate to employees, not the public. Notably, the only official regulatory standards for website accessibility are under Section 508, which applies only to the federal government and its agencies. For most private companies, as well as state and local government, the water is pretty murky on coverage and what is required for compliance.

By way of background, the ADA was passed in 1991 and said nothing about the Internet, websites, or mobile applications (“apps”). When it was amended in 2010, website and app accessibility were ignoreRelated imaged. The ADA broadly requires equal opportunity to individuals with disabilities to participate in and benefit from all aspects of American civic and economic life. This would seemingly include readers and adaptive software for web browsing. The Department of Justice was scheduled for many years to issue regulations regarding website accessibility and private businesses. In 2017, those efforts were officially taken off the regulatory agenda.

 Is Your Website Covered?

To be a place of public accommodation, the business must (1) affect commerce and (2) be in one of twelve categories listed in the ADA. Those twelve categories are:

  1. Places of lodging,
  2. Establishments serving food or drink,
  3. Places of exhibition or entertainment,
  4. Places of public gathering,
  5. Sales or rental establishments,
  6. Service establishments,
  7. Stations used for specified public transportation,
  8. Places of public display or collection,
  9. Places of recreation,
  10. Places of education,
  11. Social service center establishments, and
  12. Places of exercise or recreation.

If the website, and the goods or services it provides, does not fit in one of the twelve categories, it is not covered. The website or app must be doing something more than just advertising. Yet actually web-based sales are not required. Generally, except in certain federal circuits, the website or app must be integral to what is done in the physical business locations, even if the business is not “selling” over the Internet. There are a few areas of the country where pure e-commerce—those without any physical locations—are covered as places of public accommodation.

How Does the ADA Apply to Websites and Apps?

With the rise in e-commerce, more commerce is done online versus in physical locations. PlacesImage result for website accessibility of public accommodation are required to have disabled parking, accessible restrooms, etc. to

enable the disabled to have full access to the goods and services offered there. Plaintiffs and advocacy organizations sought to apply law for accessibility related to accommodating the disabled in their access to physical locations to virtual business locations on the Internet.

What is the Standard?

As applied to physical locations of public accommodations, there are voluminous regulations clearly addressing the height, slope, number, etc. of each element of the location. Unfortunately, there is no clear standard for websites and apps. Courts have zeroed in on the Web Content Accessibility Guidelines (“WCAG”) 2.0 Level AA as the consensus standard for now, but there is no regulation mandating this standard. The WCAG is a voluntary standard developed by W3C, an international consortium that develops website standards. Compliance with WCAG 2.0 AA enables a disabled user using assistive technologies to experience the website as close as possible to non-disabled users. As it is the only standard with any credibility out there, it is the best option for businesses to use for compliance with the ADA.

The Law

Businesses can be sued wherever they have customers, solicit business, or have physical locations. In the 3rd, 4th, 5th, 6th, 9th, and 11th circuits, courts require that the website have some connection to a physical location. In the 1st, 2nd, and 7th circuits (Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, Vermont, New York, Indiana, Illinois, and Wisconsin), purely e-commerce websites and apps can be sued.

While you might be waiting for clear regulations from the federal government, courts have held that the Department of Justice’s failure to issue regulations is not a valid reason to delay compliance efforts. Judgments have been rendered against businesses for their failure to comply—even in the absence of regulations.

Further, you may be surprised to learn that signing a settlement agreement with one plaintiff or preparing a plan to comply with WCAG 2.0 AA over a period of time does not prevent an adverse judgment for the continued failure to comply with website accessibility. The only clear way to avoid liability for website or app accessibility is to get into full compliance—likely with WCAG 2.0 Level AA. (Note that WCAG 2.1 was issued in 2018, although we have yet to see any courts order compliance with the updated standard.)

Ignoring Compliance Is Not a Good Strategy—the Risks

The risks of a failure to comply are significant. A business can face a court order to make the website(s) or app(s) accessible within a certain period of time, as well as state law damages, attorney’s fees, costs, and expert costs. It is better to assess your risk and address any compliance issues before you are sued or receive a demand letter.