Updates on the Accessibility Front

Recent Happenings in APRM June 2014 Supreme Court Permits Lanham Act Challenge to Beverage Label Regulated by the FDA Highlights from ACI's 2014 Consumer Products Regulatory & Litigation Program Updates on the Accessibility Front Substantial Harm to Consumer Product Sector Expected Under Proposed Prop 65 'Reforms' New Opportunity to Influence CPSC's Proposed Certificates of Compliance Rules DOJ and FTC State that Antitrust is Not a Roadblock to Cybersecurity Information Sharing

DOJ's Recently Articulated Position on the Accessibility of Point-of-Sales Devices

In January 2014, a blind patron sued Lucky Brand Dungarees Stores, Inc., d/b/a Lucky Brand Jeans (Lucky Brand) for discrimination when he was not able to use Lucky Brand's point-of-sale (POS) device to independently complete a debit purchase because Lucky Brand used a POS device that used a visual touch screen that was not discernible to blind individuals and lacked a tactile keypad for entering a Personal Identification Number (PIN). The plaintiff filed a class action under Title III of the Americans with Disabilities Act (ADA) in the U.S. District Court for the Southern District of Florida. The Department of Justice (DOJ) filed a Statement of Interest in this case responding to two arguments advanced by Lucky Brand in a motion to dismiss.

Lucky Brand had argued that: (1) there is no requirement within the ADA and its regulations mandating that POS devices have the capabilities requested by the plaintiff; and (2) since blind customers can purchase items by using cash, credit, or by processing their debit card as a credit card, there was no discrimination under the ADA merely because the plaintiff could not use the POS device to use his debit card as a debit card. In its Statement of Interest, DOJ responded that the plaintiff's complaint alleges a valid claim of discrimination under Title III as he was not provided the same ability to independently access the debit card payment option provided to others.  

With respect to Lucky Brand's first argument, DOJ noted that the ADA Standards for Accessible Design are only one component of Title III; ultimately, Title III's general prohibition against discrimination and requirement that public accommodations ensure effective communications controls. Understood more broadly, DOJ's position appears to be that merely because there is an absence of specific technical standards or regulatory provisions addressing the accessibility of new technology does not mean that the technology is outside the scope of Title III.

With respect to Lucky Brand's second argument, DOJ argued that the assertion that there was no discrimination because the plaintiff could pay by other means fails. Simply described, Lucky Brand communicates with its customers to complete purchases with a debit card via a POS device. Since the ADA prohibits outright exclusion as well as unnecessary differential treatment, it is not sufficient that customers who are blind can complete their purchase through other means. DOJ also recognized the potential that, in order to use the debit option, individuals who are blind may seek the assistance of a third party to whom they must divulge their confidential PIN. In order for auxiliary aids and services be considered effective, DOJ argued that they must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability. In short, full and equal enjoyment under Title III requires more than a customer being able to complete a transaction – it requires that a customer be able to securely and independently complete a transaction by any payment option that is available as a matter of course to others.

Recent Consent Decree Regarding Website and Mobile Applications Provides Insight

Late last year, DOJ moved to intervene in a class action suit brought by the National Federation of the Blind on behalf of two of its members and itself against HRB Digital LLC and HRB Tax Group, Inc. in the U.S. District Court for the District of Massachusetts. The plaintiffs had alleged that the defendants' website contains barriers that prevent full and equal use by blind persons, in violation of Title III of the ADA and Article 114 of the Massachusetts Constitution, as enforced through the Massachusetts Equal Rights Act.

In its motion to intervene, DOJ noted that the United States had a significant interest in this lawsuit as DOJ anticipated that the lawsuit "will help define the application of the ADA to public accommodations' websites, an area in which few courts have thus far opined." According to its Complaint in Intervention, the inaccessibility of the H&R Block website prevents people with disabilities from, among other things, independently preparing and filing taxes online, downloading tax preparation software, finding tax professionals, obtaining information from the website's blog, and obtaining information from instructional videos. In December 2013, the court granted the United States' motion to intervene.

On March 6, 2014, the parties filed a Joint Motion for Entry of Consent Decree indicating that they had resolved all issues in this litigation by consent decree. The Consent Decree requires the defendants to take a number of steps, including, but not limited to:

• Meeting deadlines by which the defendants must make the website, an online tax preparation tool, mobile applications, and third-party plug ins and content conform to, at a minimum, the Web Content Accessibility Guidelines 2.0 Level A and AA Success Criteria (WCAG 2.0 AA).
• Designating a Website Accessibility Coordinator who is knowledgeable about the Consent Decree, WCAG 2.0, and web accessibility generally.
• Adopting and implementing a Web Accessibility Policy that is approved by the private plaintiffs and the United States.
• Appointing a Web Accessibility Committee charged with monitoring and maintaining conformance of the website, mobile applications and the online tax preparation tool with WCAG 2.0 AA.
• Soliciting feedback from visitors to the website on how the accessibility of the website, the online tax preparation tool, and mobile applications can be improved.
• Providing mandatory web accessibility training to all employees who write or develop programs or code for, or who publish content to, the website, the online tax preparation tool, or mobile applications.
• Modifying bug fix policies, practices, and procedures to include elimination of bugs that create nonconformance with WCAG 2.0 AA.

The Consent Decree provides a good roadmap of steps that DOJ expects companies to be taking to ensure the accessibility of their websites and mobile applications. Given that the release of proposed regulations regarding the accessibility of public accommodations' websites has been delayed (as discussed below), consent decrees such as this one may provide the best source of information about how DOJ expects companies to satisfy Title III of the ADA.

DOJ Release of Proposed Regulations on Website Accessibility Delayed

DOJ has pushed back the projected date for when it will publish proposed rulemaking on technical requirements for website accessibility under Titles II and III of the ADA. The federal government recently announced that DOJ is delaying release of proposed rulemaking for state and local government websites from December 2013 to August 2014 and for public accommodations websites from April 2014 to March 2015.