[Athen] In the NEWS - website accessibility

[Laurie Vasquez]

*Lack Of Website Accessibility Regulations Is No Bar To Suit, Another Judge
Affirms
<http://www.adatitleiii.com/2016/02/lack-of-website-accessibility-regulations-is-no-bar-to-suit-another-judge-affirms/>*

By Minh Vu <http://www.seyfarth.com/MinhVu> on February 26th, 2016 Posted
in Department of Justice <http://www.adatitleiii.com/doj/>, Lawsuits,
Investigations & Settlements
<http://www.adatitleiii.com/lawsuits-investigations-settlements/>,
Legislative/Regulatory
Actions <http://www.adatitleiii.com/legislative-actions/>, Title III Access
<http://www.adatitleiii.com/title-iii-access/>, Website
<http://www.adatitleiii.com/website-2/>

[image:
http://www.adatitleiii.com/files/2016/02/iStock_000078379951_Full-300x225.jpg]
<http://www.adatitleiii.com/files/2016/02/iStock_000078379951_Full.jpg>There
is more bad news for businesses that thought that they could wait for the
Department of Justice (DOJ) to issue specific regulations before making
their websites accessible to individuals with disabilities.  Federal
Magistrate Judge Robertson in the District of Massachusetts recently denied
motions by Harvard
<http://www.adatitleiii.com/files/2016/02/NAD-v.-Harvard-Motion-to-Dismiss.docx>
 and MIT <http://www.adatitleiii.com/files/2016/02/Doc-51.pdf> to dismiss
or stay website accessibility class action lawsuits, and recommended that
the lawsuits move forward to discovery.  The judge found that the existing
law and regulations provide a basis for the deaf advocates’ claim that the
universities violated Title III of the Americans with Disabilities Act
(ADA) and Section 504 of the Rehabilitation Act by failing to provide
closed captioning for thousands of videos on their websites. The judge
rejected the universities’ arguments that the court dismiss or stay the
case while DOJ works on its proposed rules for website accessibility,
finding that the court did not need the agency’s expertise to adjudicate
the cases.  The judge did, however, give weight to the DOJ’s interpretation
of the ADA expressed in its Statement of Interest filed in the Harvard
<http://www.ada.gov/briefs/harvard_soi.pdf> and MIT
<http://www.ada.gov/briefs/mit_soi.pdf>lawsuits.

The Magistrate Judge’s recommendation will not be a final order of the
court until U.S. District Court Judge Mastroianni adopts it.  Even after
adoption, the decision will not be a finding that the universities have
violated the law or that they must caption all videos on their websites.
The ruling would simply allow the cases to move forward to discovery.  As
Judge Robertson noted, the schools will have an opportunity to assert
various defenses later in the case.  For example, Harvard and MIT might
show that they provide access to their videos in some alternative,
equivalent matter.  They might also seek to establish that providing closed
captioning for some or all videos on their websites would constitute an
undue burden or fundamentally alter the nature of the goods and services
that they offer.

There are many takeaways from Judge Robertson’s 45-page opinion, but we see
two very basic, practical points:

   - Judges, at least thus far, have not been receptive to the argument
   that there is no obligation to make websites accessible until DOJ issues
   regulations on the subject. In 2015, a federal judge in Pittsburgh also
   denied a defendant bank’s motion to dismiss or for a stay of awebsite
   accessibility case
   <http://www.adatitleiii.com/files/2016/02/Order-Denying-Motion-to-Dismiss.pdf>,
   without any discussion or explanation.
   - Courts seem reluctant to dismiss website accessibility lawsuits at the
   beginning of the case. This means that the cases will likely continue to
   discovery and cause defendants to incur potentially substantial costs of
   defense, even if the defendants ultimately prevails on the merits.

The Harvard and MIT decisions will undoubtedly fuel the continuing
explosion of website accessibility cases.  We are working to determine how
many such suits have been filed and will report it to you as soon as we
have it.

Edited by Kristina M. Launey <http://www.seyfarth.com/KristinaLauney>.
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