As spring and April approach, we are almost one quarter of the way through 2018. By now, with about three months under our belts, we can discern clear Americans with Disabilities Act (ADA) trends and developments to enable informed estimates of what the rest of the year may hold.
One fact is very clear – The number of ADA court cases keeps growing. According to a recent Forbes article, businesses continue to find themselves as defendants in cases claiming that business websites discriminate against disabled people because the websites are not legally “accessible,” for example, to deaf and blind people who use the Internet.
Understanding the Provisions of the ADA
Under the ADA, businesses, other than federally subsidized health care providers and insurers, are covered by ADA Title III. Local and state government agencies, plus hospitals and clinics that accept federal assistance, such as Medicaid and most Medicare reimbursement, are covered by ADA Title II. The law and standards under Titles II and III are different, with ADA Title II applying more broadly than Title III and covering more organizations and their programs and services.
As Forbes stated:
“In just a few months, 2018 has continued to see the onslaught of ADA Title III lawsuits that 2017 saw. The lawsuits brought by plaintiffs against retailers claim the businesses violate the ADA by not having handicap-accessible websites. Cases are brought by both deaf and blind plaintiffs.”
The increasing number of ADA related lawsuits
In 2017, according to Forbes, ADA website accessibility lawsuits increased by almost 20% compared to the lawsuits filed in 2016. By all indications, the number of these cases is likely to grow even more in 2018, with several industries being targeted for their websites. One industry, banks, financial services, and credit unions, is a big focus in 2018 for people claiming website accessibility discrimination.
According to the Credit Union National Association (CUNA):
“Leah Dempsey, CUNA senior director of advocacy and counsel, said credit unions are facing more than threats, as law firms have moved on to seeking litigation against credit unions they say are not in compliance.
“If you settle with one law firm, nothing precludes you from getting hit with another threat, from a different or even the same law firm,” she said. “CUNA is looking for opportunities for our legal advocacy team to get involved, and we need to hear from you if those opportunities arise.”
Jared Ihrig, CUNA’s chief compliance officer, recommended credit unions conduct an ADA compliance audit of their websites and other digital content, post an accessibility statement on their websites and implement a long-term accessibility strategy among other strategies.”
The federal courts are also witness to increasing numbers of cases by deaf patients against health care providers. Many of these cases claim that deaf patients were not given sign language interpreters to communicate with their doctors and nurses. These patients allege that not providing sign language interpreters is disability discrimination.
The case of Marisa Felix
One brand new case, filed in early March 2018, is an example of health care sign language interpreter litigation.
According to the Hartford (CT) Journal-Inquirer:
“A deaf Windsor resident filed a lawsuit against Hartford HealthCare Inc. this week after she says her rights were violated during a stay at Hartford Hospital.
The woman, Marisa Felix, was unable to effectively communicate with hospital staff during a 12-day stay at the facility because her requests for sign language interpreters were denied, according to a statement from Disability Rights Connecticut, a nonprofit group.
The organization said Felix therefore was denied the ability to “participate in her own health care. “Felix was unable to provide details about her complex medical history, and was prevented from access to communication relating to tests, procedures, diagnoses, medications, and instructions for her follow up care,” the statement continues.
Disability Rights Connecticut said hospital staff instead relied on gestures to communicate with Felix, as well as “other ineffective means of communication.”
Citing the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973, the organization said the hospital’s actions were illegal.
According to one of Felix’s lawyers, Nancy Alisberg, the hospital wantonly violated these laws. Alisberg pointed to a legal settlement between the Connecticut Association of the Deaf and several Connecticut hospitals, including Hartford Hospital, as evidence of this. The Connecticut Association of the Deaf argued that hospitals are legally required to provide interpreters to deaf patients.
“As one of the hospitals involved in a landmark settlement in 1998 on this exact issue, Hartford Hospital is well aware of its obligations to ensure effective communication with the deaf community under the ADA” she said.
Hartford HealthCare declined to comment on the lawsuit, saying it is company policy not to comment on pending litigation.”
In Felix’s complaint filed with the federal court, she alleges the following: “Defendant never provided qualified sign language interpreters over the course of the 12 days that Ms. Felix was in the hospital. Instead, hospital staff attempted to communicate with Mrs. Felix by speaking to her, observing her gestures and giving her paperwork. These attempts at communication were ineffective because Ms. Felix uses sign language as her primary mode of communication. Hospital staff also attempted to use Ms. Felix’s son to communicate with her.”
Determining the methods to use in communicating with someone who is deaf, hard of hearing, blind, or low vision will depend upon each individual and each situation. Whether or not a sign language interpreter is provided to speak with a patient, for example, is not the end of the story. More factors and more communication methods are in play.
Defining the meaning of an auxiliary aid
According to the U.S. Department of Justice, for example:
“The ADA uses the term “auxiliary aids and services” (“aids and services”) to refer to the ways to communicate with people who have communication disabilities.
For people who are blind, have vision loss, or are deaf-blind, this includes providing a qualified reader; information in large print, Braille, or electronically for use with a computer screen-reading program; or an audio recording of printed information. A “qualified” reader means someone who is able to read effectively, accurately, and impartially, using any necessary specialized vocabulary.
For people who are deaf, have hearing loss, or are deaf-blind, this includes providing a qualified notetaker; a qualified sign language interpreter, oral interpreter, cued-speech interpreter, or tactile interpreter; real-time captioning; written materials; or a printed script of a stock speech (such as given on a museum or historic house tour).”
Finally, a February 2018 court decision may have significant implications for organizations nationwide.
The case of Hernandez v. AutoZone, Inc.
In Hernandez v. AutoZone, Inc., Hernandez claims “…AutoZone’s centralized maintenance policies are inadequate to detect and remedy accessibility barriers in its parking lots and walkways.” He alleges that the company’s policies are discriminatory and discriminate against all customers with disabilities nationwide, at any AutoZone store. Hernandez filed a class action lawsuit, seeking to represent all disabled customers of AutoZone in the United States.
The court agreed, ruling that Hernandez’s claims that AutoZone “… applies a uniform set of maintenance policies to all of the stores it owns and that these policies do not specifically address ADA compliance. … Here, Hernandez has submitted proof … that AutoZone’s company-wide maintenance procedures have no mechanism for identifying and remedying accessibility barriers in its parking facilities despite its knowledge that these accessibility barriers arise through the natural deterioration of surfaces and building materials. He has therefore shown that the defendant used discriminatory procedures affecting each member of the proposed class.”
The AutoZone case likely will have big national ripple effects, impacting all businesses and organizations that own, operate, or lease several different locations in one state or multiple states. The case already shows the importance of having policies and practices that address federal requirements.
2018 has been a busy ADA year in the courtroom. All signs point to this trend continuing and accelerating as the year progresses.
**Read some of Bruce Adelson’s other blog posts to learn about more developments in language access law, and be sure to contact us if you’re interested in a consultation about your own organization’s compliance with federal language access law.
© Bruce L. Adelson, special for Bromberg. 2017 All Rights Reserved The material herein is educational and informational only. No legal advice is intended or conveyed.
Bruce L. Adelson, Esq, CEO of Federal Compliance Consulting LLC is nationally recognized for his compliance expertise concerning many federal laws. Mr. Adelson is a former U.S Department of Justice Civil Rights Division Senior Trial Attorney.
Mr. Adelson teaches cultural and civil rights awareness at Georgetown University School of Medicine in Washington, D.C.