The Americans with Disabilities Act (“ADA”) and similar laws and regulations requiring accessibility for individuals with disabilities are among the least understood of all civil rights laws. Many businesses may be unaware of their accessibility obligations and out of compliance without knowing it, but even with the best intentions, any noncompliance presents potential liability. Our clients are concerned about the possibility of lawsuits (ranging from the “drive by” variety to class actions), advocacy group initiatives, and government enforcement. We draw on our experience and network of connections to practically, creatively, and efficiently address their concerns.
Our clients value the protection we provide by guiding them to full compliance with applicable federal, state, and local accessibility laws, and having experienced representation in case of challenge. We help them appropriately navigate their way through government investigations, advocacy group efforts, and individual and collective/class action lawsuits, either to get claims dismissed or to resolve matters on the most favorable possible terms.
The surest and easiest way to avoid adverse outcomes in accessibility matters is to prevent them before they arise by operating businesses in compliance with the law and its implementing regulations and standards. We help clients review their own accessibility—both physical and digital—to identify and address potential compliance gaps. These can involve entrances, stairs, elevators, bathrooms, and other accommodations in a physical space; accessibility for individuals with disabilities (e.g., who are blind or deaf) on websites, mobile applications and other audiovisual or interactive resources; unidentified issues created by the adoption of new technology; and more. Furthermore, we help create, implement, train on, and monitor compliance with policies, practices, and procedures regarding accessibility to help organizations adopt an inclusive, and accessibility-forward, culture. Establishing appropriate governance, and identifying and remediating potential gaps in accessibility on their own can not only save businesses a lot of time, trouble, and cost, but also avoid unwanted negative publicity.
Taking proactivity to the next level, our attorneys have a strong sense of where accessibility laws and regulations are moving, allowing our clients to stay ahead of developing trends, respond to unexpected and cutting-edge situations, and manage risks more effectively in the long term.
Disability discrimination complaints under Title I of the ADA were common even before the COVID-19 pandemic, exposing employers to risk of substantial financial and reputational damage. Employers are forced to grapple with the very individualized, context-specific, obligation to provide reasonable accommodations. The pandemic has only increased these pressures, by forcing employers to face evolving issues and potential liability under the ADA ranging from the appropriate application of health and safety measures (e.g., face coverings, vaccinations) to the explosion of reasonable accommodations claims (e.g., telework, flex-time, leave) all while having to adapt to ever-evolving guidance from government regulators and decisions of first impression from courts across a variety of jurisdictions.
Our advice covers reasonable accommodations and return-to-work issues, as well as harassment, employee discipline, separation, discharge, and more. Employers rely on us to help them comply with the requirements of ADA Title I, minimize their legal risks, train their employees, and represent them in employee lawsuits and EEOC charges.
Digital Accessibility – Websites, Mobile Applications, and More
As society becomes increasingly dependent on the digital sphere, there is increasing focus on the accessibility of technology, particularly websites and mobile applications. As this space continues to await government regulation, it is also the source of constant risk of litigation and regulatory enforcement actions. Businesses need their online presences to be as accessible as their physical premises, yet achieving that level of compliance can be even more complicated. Providing digital accessibility for users with vision, hearing, mobility, intellectual, or other communication disabilities is now a part of staying both compliant and competitive, and our clients rely upon our knowledge and adaptability to get them there. We conduct multifaceted audits in-house to determine any areas of risk or liability, suggest mitigation solutions, and offer counseling to ensure continued compliance. Beyond websites and mobile applications, accessibility must also be taken into account when adopting new technologies, even when manufacturers may not initially provide “out of the box” solutions. Our team can help businesses balance their practical business needs with achieving accessibility.
We have successfully defended clients across all major industries against ADA and state/local accessibility and disability discrimination litigation by drawing upon our agency experience in drafting and enforcing accommodation guidelines, our considerable experience with regular plaintiff’s counsel and advocacy groups, and our extensive knowledge of how courts approach these unique types of cases. Defending clients doesn’t just mean in court: we also act as liaison between clients and advocacy groups to resolve litigations before getting to court.
When faced with a regulatory agency investigation for an accessibility complaint, businesses rely on our team to bring about a favorable resolution and avoid the damages, civil penalties, and reputational harm of a major enforcement action. Remediation plans arising out of agency investigations can be more sweeping than those arising from settlement agreements with traditional plaintiffs or even advocacy groups, so we work with investigators to try to resolve matters efficiently, reasonably, and with an eye toward unique industry/business needs to minimize the burden to our clients.
- Established COVID-19-friendly accessibility policies, practices, and procedures, and related training programs, pertaining to social-distancing, mask and vaccination policies, and the adoption of new contact-free technology, for clients across industries, including, sports leagues, clubs, and stadiums/arenas, cruise lines, high-end retail chains, hotels, and fitness chains.
- Defeated class action lawsuits alleging that global retailers’ failure to provide Braille gift cards violated federal, state, and local accessibility laws. We established not only that the claims had no basis in the law/regulations but that our clients also sufficiently provided access in other ways. We got the cases dismissed, helping set industry precedent that the ADA does not require retail stores to provide Braille gift cards.
- Defeated a class action lawsuit brought against a national theater production company alleging that the company’s online “no outside food/drink” policy violated federal, state, and local accessibility laws. We established that the client could never have violated the law because it offered a way for individuals to request accommodations or modifications to policies, practices, and procedures, and the plaintiff never took advantage of that opportunity to engage the client.
- Resolved a significant regulatory accessibility investigation for a global cruise line. We reached a comprehensive, landmark agreement to enhance his client’s existing accessibility policies, practice, and procedures. In our extensive negotiations with the regulators, we offered new and creative approaches to resolving concerns that were supported by architectural designs and economic data. We continue to manage the related long-term compliance program, overseeing audits, developing policies and training, and providing day-to-day and long-term planning counseling.
- Resolved a relentless onslaught of website accessibility and mobile application accessibility lawsuits and demand letters for hundreds of clients, including global high-end retail companies, technology firms, sports and media companies, and hotels. We promptly negotiated cost-effective resolutions to the cases and demand letters with highly advantageous terms to allow our clients to focus their time and resources on enhancing their accessibility compliance.
- Serves as accessibility counsel for national sports leagues and related clubs, and stadiums/arenas/theaters, providing guidance in all facets of their business, from their policies to adoption of new technology, to hosting major public events, the COVID-19 pandemic, location auditing, and compliance training.
- Successfully defended a major retailer in a lawsuit over a claim of disability discrimination. The plaintiff alleged that his employer, our client, ignored work restrictions that he needed after returning to work after a surgery. The court granted our motion to dismiss without prejudice for failure to state a claim upon which relief may be granted.