Q&A: Best Practices for Avoiding a Winn-Dixie Type ADA Lawsuit as Told by Bobby Silverstein
Updated: January 4, 2018
Major corporations are being forced to challenge their policies and practices regarding accessibility.
In recent months, Winn-Dixie and Hobby Lobby were tried and condemned for having inaccessible websites. Both must now comply with WCAG 2.0 standards.
But while there have been major wins for accessibility, there have also been setbacks through other rulings.
With so much discrepancy between court rulings, it can be a challenge for organizations to understand how accessibility laws apply to them.
In a webinar presented by Bobby Silverstein, a nationally-recognized disability attorney and one of the architects of the ADA, Bobby dissected the impact of Winn-Dixie and other such rulings and their implications for the future of accessibility.
Below is a snippet of the Q&A from the webinar highlighting how organizations can be more proactive with their accessibility efforts.
What is the correct way to describe the significance of the Winn-Dixie ruling?
BOBBY SILVERSTEIN: It is the first non-jury trial that made a decision. A lot of the other court cases and appellate decisions deal with motions to dismiss or motions for summary judgment, saying that this is not an issue that needs to be addressed or does need to be addressed. So they were motions to dismiss or motions for summary judgment. This case actually went to trial.
How might regulations placed under rulings like the Winn-Dixie case impact post-secondary educational institutions?
BOBBY SILVERSTEIN: Some institutions of higher education are state universities. They would be subject to Title II of the ADA. We’ve been talking today mostly about Title III, which was the private institutions of higher education.
There were 171 settlement agreements between the Department of Justice. Well, a number of those were with institutions of higher education. There are a number of court cases that deal with institutions of higher education. I recently went to the federal Department of Education website and downloaded 11 settlement agreements between the Department of Education office for civil rights and institutions of higher education, all requiring that websites, online courses, mobile apps, and other forms of ICT that are purchased and used by these institutions of higher education be accessible to and usable by people with disabilities. And the standard used was, not surprising, WCAG 2.0 A and AA.
Are technology platforms considered a public accommodation under the ADA if they don’t own or sell the underlying goods and services? Or must a company be actually providing the goods and services directly?
BOBBY SILVERSTEIN: To me, that’s one of the reasons why some of these courts have come up with what I consider erroneous decisions. The platform is not the issue. In other words, the question was, is the platform a public accommodation? Another similar question is, is the website a public accommodation? That’s, in my opinion, not the issue for analysis under Title III or Title II of the ADA.
The issue is, what is the method of administration used by the public entity or the public accommodation for communicating information?
“ The platform is not the issue…The issue is, what is the method of administration used by the public entity or the public accommodation for communicating information?”
If the method of administration is a platform, a particular one, or a particular website designed by somebody else, you cannot adopt a method of administration that has a discriminatory effect. You cannot contract or make an arrangement with somebody else if the result is discrimination.
So when you contract with somebody to provide a particular platform or develop a website, it’s on you, the entity, to make sure that there is effective and meaningful opportunity for all, including people with disabilities. So the answer is the contractor who developed the platform, when you enter into a contract with them, should include a provision that requires that the platform meets ADA Title II, Title III requirements of accessibility for people with disabilities.
It’s not whether the website must be accessible as a public accommodation. It’s if a public accommodation chooses to communicate and sell its goods and services or provide other privileges or advantages over the internet, you have to ensure that you have a meaningful opportunity for all, including people with disabilities.
What approaches had you tried that have worked in getting an organization to comply with the ADA a priority, in particular, leadership?
BOBBY SILVERSTEIN: I would contact peatworks.org. They would have specific strategies to answer that question. For me, the question, again, the short answer to that question is the notion of universal design, the notion that if you’re trying to sell a good and service, you want to reach the greatest number of people to sell your product or to sell your service. And universal design, accessible design means that you will reach the greatest number of people.
How do these ADA rulings apply to the development of educational multimedia resources for an educational institution?
BOBBY SILVERSTEIN: It applies directly. And there are 11 settlement agreements, many of which deal with online courses. And the Department of Justice, of the ones that I made reference to, many of them apply to online courses as well.
“Universal design, accessible design means that you will reach the greatest number of people.”
Now, you should know that on the peatworks.org website there is a comprehensive review of all of these settlement agreements, these 171 settlement agreements. So you can go on the peatworks.org website, you can find which settlement agreements deal with online courses, which deal with websites, what’s the standards, who has to provide training or feedback. And not only do you have general, you have a specific link to the paragraph in the settlement agreement that deals with these issues.
So online courses have specifically been addressed by multiple settlement agreements, both by DOJ and the Department of Education, and in a number of court cases as well. And all of these, again, are reference in the peatworks.org.
Can you comment on how this applies to an organization’s social media site?
BOBBY SILVERSTEIN: I am not an expert on social media. But again, if a company taking the general proposition that if you use social media for purposes of advertising or selling your goods or services, then the social media platform should be accessible to and usable by everyone, including people with disabilities.
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