SAN FRANCISCO – Website operators that fail to comply with Americans with Disabilities Act regulations making them accessible to the blind and people with other disabilities have been increasingly targeted in lawsuits.
Many of those same attorneys are now filing claims under California's fair employment legislation alleging the blind and partially blind are being discriminated against regarding access to online job applications.
The lawsuits, including ones filed last week in Orange County and San Diego Superior courts, argue that blind people who wanted to enter the workforce could not apply using the defendant's online application.
They claim this is in violation of California's Fair Employment and Housing Act, which is the state's equivalent of Title 1 of the Americans with Disabilities Act. Lawsuits also are being filed under the federal legislation.
Some of the plaintiff lawyers involved in the Title 111 cases are now turning their attention to the California employment act, according to Kristina Launey, a defense attorney with the Seyfarth Shaw law firm.
"They are claiming the Fair Employment Act by failing to have an online website to use, by not being accessible, and that it is not a level playing field," Launey told the Northern California Record.
"We have been seeing this for many years, filing lawsuits ... claiming denied equal access under ADA Title 111."
In a post , Launey and co-author Myra Villamor wrote, "because it is an extension of the tsunami of website accessibility demand letters and lawsuits pursued under Title III, involving the same technological and other issues, as well as the same plaintiffs and plaintiffs’ attorneys."
They noted that there is a difference in the standards that apply to employment law and those lawsuits under Title 111, or the state equivalent, the Unruh Civil Rights Act.
The legal standard is different because under Title 111 businesses must take "affirmative, proactive measures to ensure individuals with disabilities are afforded equal access to their goods and services."
But under the employment act, the employer is not obliged to provide the employee or applicant with a "requested accommodation" as long as measures in place are effective.
Defense law firm Sheppard Mullin Richter & Hampton LLP, in a post, noted there is a wave of lawsuits targeting businesses at the federal level, under Title 1 of the ADA.
Informal guidelines have been issued by the Department of Justice, which, the firm argues, "appears to suggest companies that do not program their job postings to be readable with screen reading software may violate Title I of the ADA which prohibits discrimination in hiring decisions. "Potential plaintiffs that are blind and/or visually impaired may use this guidance to argue that this is discriminatory because they are denied the opportunity to browse or apply for open positions."
There were moves by the Justice Department to introduce a rule to codify website accessibility regulations. But this is not moving forward. Some defense lawyers fear that without a rule there will more lawsuits filed and that courts will hand down different decisions depending on the jurisdiction.
Overall, in 2017, plaintiffs filed approximately 800 lawsuits in federal court alleging they were discriminated against because of their inability to access websites.
Most were filed in New York and Florida, with a total of 670. Nine were filed in federal court in California and over 100 were filed in state court.