In 2020, the Americans with Disabilities Act turns 30. President George H.W. Bush signed it into law in 1990 to ensure civil rights for individuals with disabilities. Chia-Yi Hou at The Hill published a nice 30-year ADA recap here.
The ADA is much more than just employees with disabilities.
When most of you think of the ADA, you probably imagine accommodating someone at work with a disability. That’s part of Title I of the ADA. But, the ADA has more than one section. For example, Title II of the ADA prohibits discrimination against qualified individuals with disabilities in all programs, activities, and services of public entities.
But today, we’re going to focus on Title III of the ADA. Title III makes it unlawful for private places of public accommodation to discriminate against individuals with disabilities. For example, if you operate a retail business, the parking lot in which your store operates should have a certain number of handicap spots in the parking lot. There’s much more to it than that. And the government has a slew of regulations and rules to ensure that individuals with disabilities can access your brick and mortar.
ADA and website accessibility.
In recent years, however, ADA Title III lawsuits have transcended situations involving physical barriers to entry. Now, there is a new target: your business’ website.
Think back to 1990 when the ADA became law, what the heck was a website? It didn’t exist. And, since then, the government has yet to issue any guidance in this area. Indeed, the state of play involving ADA Title III claims against websites has been described as muddy, murky, and tangled, with many questions remaining.
And not just any ol’ website…
Like, do Pornhub, YouPorn, and RedTube have to include closed-captions to provide users who are deaf or hard of hearing with “the same and equally accessible experience as non-deaf or hard of hearing individuals to watch videos by reading the captioned text?” That’s the question that a plaintiff, a deaf individual, is asking in a newly-filed lawsuit in a NY federal court. In his complaint, the plaintiff alleges that the parent company of these adult websites violated federal, state, and local law by failing to include closed captions in various videos including but not limited to, videos entitled “Hot Step Aunt Babysits Disobedient Nephew – Sofi Ryan – Family Therapy,” “Sexy Cop Gets Witness To Talk,” and “Daddy 4K – Allison Comes To Talk About Money To Her Boys Naughty Father.”
Actually, the plaintiff has filed this lawsuit not only on his own but on behalf of others similarly situated. Yes, this is a class action. No, please don’t email me about how you can join the class.
Employer takeaways.
Instead, you can email me if you have questions about website accessibility and the ADA. My firm has worked with several companies dealing with these issues, albeit on a more PG-13 level. Our team has counseled clients both proactively and, unfortunately, after they’ve been hit with the ADA lawsuit. Indeed, one of my partners is litigating perhaps the highest-profile website accessibility case in the country. So, if you need help, just holler.
(A tip of the cap for this post to Howard Stern and Robin Quivers who discussed the Pornhub lawsuit yesterday on The Howard Stern Show.)