Website Accessibility Lawsuits: Disabled Prospective Employees Sue for Inaccessible Online Application Processes

By Christine Samsel Attorney, Brownstein Hyatt Farber Schreck | December 30, 2018

Co-authored by Jonathan Sandler, Shareholder, Brownstein Hyatt Farber Schreck

While most employers are used to addressing requests for accommodations from employees with disabilities, they may be surprised to learn that they may be targets for failing to provide accommodations before employment actually begins. But they are targets, in the context of one of the fastest-growing areas of litigation for the plaintiffs' bar-websites.

We previously wrote about the susceptibility of the hospitality industry to lawsuits under the Americans with Disabilities Act ("ADA") related to website accessibility, a relatively new trend. Those claims typically are based upon potential patrons' inability to access features of a facility's website (i.e., due to incompatibility with screen reader software), the failure to identify accessible features or amenities on the websites (e.g.,disabled accessible rooms, pool lift, etc.), or the inability to book accessible rooms online.

Recently, though, website accessibility lawsuits have begun to crop up in a different context-claims by prospective employees for inaccessible online job search and application processes that render them unable to browse and apply for open positions. In just the first nine months of 2018, dozens of cases have been filed against a variety of companies for inaccessible job search and application processes, often in state court, and particularly in California. A plaintiffs' lawyer who specializes in accessibility lawsuits indicated that Virginia and Florida will be the next targets for these types of cases.

Why Are So Many of these Cases Being Filed Now?

Under the Obama administration, the Department of Justice ("DOJ") expressed its intention to adopt the WCAG-2.0, Level AA guidelines, a set of standards developed through a private group, the World Wide Web Consortium, to make web content more accessible to people with disabilities. At that time, the DOJ commenced the rulemaking process to issue regulations regarding websites, and it is likely that this rulemaking process had a chilling effect on website accessibility lawsuits. However, with the DOJ's December 2017 withdrawal of its Advanced Notices of Proposed Rulemaking related to website accessibility (purportedly to evaluate whether promulgating such regulations was necessary and appropriate), the floodgates were opened, and website accessibility lawsuits are now proliferating as plaintiffs' attorneys seek to fill the void.

What is the Risk?

It is estimated that one in four employers lack fully accessible online job search and application systems. Given that companies are increasingly turning to technology and online tools for these purposes, and sometimes as the sole method of searching and applying for open positions, this area of potential exposure merits prompt attention.

What makes these new lawsuits different from the recent spate of website accessibility cases is the recourse available to the claimants. The majority of website accessibility actions filed by potential patrons seek redress under Title III of the ADA, related to public accommodations, which requires that businesses take affirmative, proactive measures to ensure that individuals with disabilities are afforded equal access to their goods and services. Plaintiffs can obtain attorneys' fees and costs and injunctive relief for violations of Title III.

In addition, claims often are asserted under related state laws that may sweeten the pot by providing for monetary damages as well. For instance, in California, the Unruh Civil Rights Act (the "Unruh Act") and the Disabled Persons Act ("DPA") add further layers of exposure; ADA violations constitute per se violations of the Unruh Act and the DPA, which-unlike the ADA-permit monetary relief for violations (actual damages and up to three times the actual damages for each violation, but in no case less than $4,000 per offense, and punitive damages), plus recovery of attorneys' fees, among other things. (Cal. Civ. Code §§ 51-52, 54-55.32.)

By contrast, in website accessibility cases brought by prospective employees, the plaintiffs assert claims such as disability discrimination and failure to accommodate under federal and state employment statutes. Title I of the ADA prohibits covered entities from discriminating against individuals with disabilities with respect to employment, which includes job application procedures, and requires that employers consider disabled individuals for employment on an equal basis with nondisabled individuals.

Most states have similar antidiscrimination laws that plaintiffs can invoke, such as the California Fair Employment and Housing Act ("FEHA"), which provides the potential for substantial damages, in addition to the Unruh Act and DPA. Some of these lawsuits incorporate tort claims such as negligent or intentional infliction of emotional distress. Plaintiffs in these actions assert that they are disabled individuals who wish to enter the workforce and are prevented from doing so-or affirmatively discouraged from doing so-due to inaccessible features of the prospective employers' online job search and application processes. In some of the cases, plaintiffs assert that the online system is the only way to browse available jobs and apply for a position with the employer.

There is an additional duty imposed on employers under applicable law in these types of cases. Qualified individuals with disabilities have the right to request reasonable accommodations to provide them with an equal opportunity to apply for job openings. Employers must provide reasonable accommodations unless doing so would impose an undue hardship (significant difficulty or expense) on the operation of the business, which would be a difficult burden for employers to meet in this context.

Notably, the employer need not provide the specific accommodation requested by the individual, but it must provide an accommodation that effectively enables the disabled individual to apply for the position in a timely manner. Determination of an effective accommodation is generally made after an "interactive process" between the employer and the individual. The failure of the employer to engage in the interactive process in a good faith, timely manner may form the basis of a separate legal claim, as well as supporting a claim for discrimination based on failure to consider a disabled applicant for hire.

For any such claims under Title I of the ADA, and many state laws (such as California's FEHA), aggrieved individuals must exhaust their administrative remedies before they may file a lawsuit in court. Specifically, the individual must file an administrative charge with the appropriate agency, receive a Notice of Right to Sue, and file a lawsuit within a specified period of time thereafter. Often, Notices of Right to Sue are mere formalities, issued immediately upon the request of the complainant.

What is Required Under the Law?

Frustratingly, there are no established legal standards for website accessibility. As noted above, the DOJ had indicated an intent to adopt WCAG 2.0 as the standard for compliance, but the DOJ has since declined to act. Plaintiffs' attorneys have focused on WCAG-2.0 as well, but with ongoing updates to that standard (WCAG-2.1 recently was adopted), the appropriate standard may be a moving target.

As discussed above, under Title I of the ADA, employers are not required to implement the specific accommodation requested by prospective applicants (i.e., full accessibility of online job search and application processes) as long as there are effective alternatives. Accommodations that may be requested and/or determined to be appropriate in this context include providing readers, interpreters or similar assistance in the application process, providing information regarding available positions in a format accessible to individuals with vision or hearing impairments (e.g., in Braille, via TDD, etc.), and ensuring that testing sites or application kiosks are accessible to wheelchair-bound individuals. Consider the alternatives carefully, though; in some of the recently filed matters, plaintiffs have asserted that the accommodations offered, such as requiring them to divulge their personal data such as social security number to a stranger-i.e., an employee who would input the information into the entity's online application system-did not constitute reasonable accommodations.

The U.S. Department of Labor's Office of Federal Contract Compliance Programs ("OFCCP"), which has enforcement jurisdiction over government contractors, has issued "Disability Issues Related to Online Application Systems: Frequently Asked Questions " (the "FAQ") that provides generally-applicable guidance on accessibility for job applicants. The OFCCP recommends reviewing and modifying online application systems to ensure accessibility to disabled individuals. However, the FAQ notes that, if the entity typically offers applicants various methods to apply for positions and all methods are treated equally, the entity may not need to ensure that its online application system is fully accessible.

If the online application system is the exclusive or primary method to apply for positions, though, the employer must either ensure that the system is accessible or that there is an alternate method by which potential applicants can submit applications in a timely manner, including a method by which the applicant can contact the employer (other than through an inaccessible online system) to request any reasonable accommodation needed to apply. The employer may not, though, have a separate application system available solely to disabled applicants; this could constitute an unlawful pre-employment inquiry into the applicant's disability.

The Department of Justice has issued informal guidance that appears to suggest that companies that do not ensure their job postings are readable with screen reading software used by disabled individuals may be in violation of Title I of the ADA. (See DOJ Blog, "Ensuring Access to Jobs for People with Disabilities," May 12, 2015, found at https://www.justice.gov/archives/opa/blog/ensuring-access-jobs-people-disabilities.) The DOJ highlighted compliance with WCAG-2.0 as an effective method to maximize accessibility.

And back in December 2003, the Equal Employment Opportunity Commission issued an Informal Discussion Letter noting that inaccessible online application systems may give rise to viable claims under Title I of the ADA. The EEOC encouraged employers to "use a variety of methods to expand the pool of applicants considered for vacant positions." (EEOC Informal Discussion Letter dated Dec. 17, 2003, found at https://www.eeoc.gov/eeoc/foia/letters/2003/ada.html. )

Thus, while there may be effective alternative accommodations, the safest course of action would be to ensure that online job search and application processes are accessible. And given the state of the law, compliance with current WCAG 2.0 (or 2.1), Level AA, would be the best practice.

What Should Companies Do?

  • Review online job posting and job search functions, as well as online application processes, including linked documents (such as pdfs), linked third-party sites and mobile apps, for accessibility. Given that WCAG-2.0, Level AA, is the most widely used standard (at least as of today), that should be the minimum goal. Periodically reevaluate online processes to ensure continued accessibility in the face of changes in technology. These steps are particularly important if your job search and application process is solely or primarily online.
  • Examine agreements with third-party platform providers, and update them as appropriate to address accessibility issues, including ongoing updates. Consider contractually shifting liability for noncompliance to the platform provider.
  • Ensure that you prominently post methods of requesting accommodations on the website and elsewhere (e.g., in job postings, in the online application process, in written employment applications, on-site at the property, etc.). Any alternative accommodations (such as providing human assistance to complete an application) must be effective and reasonable. Legal counsel can assist in making this assessment. Ensure that on-site representatives are trained to respond appropriately to requests for accommodations.
  • If you receive a formal or informal request to engage in the interactive process, whether verbal or written, act quickly, preferably after consultation with legal counsel. Often, these are precursors to lawsuits. Prompt action may resolve the issue short of litigation. Likewise, if a formal lawsuit is received, prompt action can minimize potential exposure.

Mr. Sandler Jonathan Sandler is in his element in front of a jury or a judge. An experienced trial litigator, he is a vigorous advocate for his clients? interests who knows when and how to take a case to trial. Mr. Sandler is well versed in complex commercial litigation and specializes in business, healthcare, real estate, negligence, fraud and employment matters. With numerous jury and court trials completed throughout Southern California, he has litigated a wide range of matters. These matters include business disputes, consumer protection matters, water disputes, employment disputes, trade secret disputes, real estate disputes involving commercial properties, residential properties and neighboring properties, and health care disputes involving managed care liability, first- and third-party health service contract disputes, payor/provider contracting disputes involving statewide agreements, and ERISA and Medicare preemption. Mr. Sandler can be reached at jsandler@bhfs.com or 310-564-8672  

Ms. Samsel Christine Samsel is a highly respected labor and employment attorney with Brownstein Hyatt Farber Schreck. Ms. Samsel advises employers on virtually every aspect of employment law, from advice and counseling, training and contract negotiation to litigation. She conducts due diligence for companies and investors with respect to labor and employment issues in corporate transactions and financial restructuring. Ms. Samsel regularly negotiates and drafts high-level executive employment agreements and ancillary documents. She assists companies in establishing employment policies, conducting employee / management training, negotiating severance agreements, conducting internal investigations and audits, and implementing reductions in force. Christine Samsel can be contacted at 303-223-1133 or csamsel@bhfs.com Extended Biography

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