Let’s say your company develops or buys a piece of software that is really nifty, easy to use, effective, and full of all kinds of bells and whistles. The only problem is that the product is not accessible to persons with disabilities, such as those who use voice dictation and/or screen readers. This article explores what liabilities your company faces in this situation. Before going further, it is important to note a couple of things. First, software that is accessible to screen readers used by the blind (software, such as JAWS, that allow the screen to be read to the user) will not necessarily be accessible to a person using voice dictation software. (The leading one is Dragon NaturallySpeaking, which I have used for years. I also have used for years a supplemental program from a company called Knowbrainer that allows me to enhance Dragon NaturallySpeaking by giving me the ability to have all kinds of commands that promote efficiency of use across a range of software and also allows me to drastically cut down on my mouse use). Second, it is possible that the software, Internet site, or product may be designed in a way that is accessible for users with disabilities, but there may be problems if the user has multiple disabilities. For example, a user might need to use both voice dictation and captioning at the same time and the product, Internet site, or software may be such that both functions cannot operate simultaneously.
Section 508 of the Rehabilitation Act
With respect to this product that your company has developed, you shouldn’t plan on trying to sell it to the federal government. Section 508 of the Rehabilitation Act, 29 U.S.C. section 794d, mandates that the federal government use accessible technology and that mandate applies to technology it procures as well. There aren’t many ways a federal department or agency can escape this obligation. They could argue that there is an undue burden, but section 508 specifically says that it has to be an undue burden imposed on the department or agency for that to apply. (29 U.S.C. § 794d(a)(1)(A)). Second, the agency might claim that an accessible product is not commercially available, but that isn’t going to work either because under 36 C.F.R. section 1194.2(b), the agency is prohibited from claiming a product as a whole is not commercially available because no product in the marketplace meets all the standards. In such a case, the agency has to procure a product that best meets the standards. Therefore, if the federal government procures an inaccessible product, it runs the real risk of violating section 508 of the Rehabilitation Act. True, a private cause of action is not available for violation of section 508, Latham v. Brownlee, 2005 U.S. Dist. LEXIS 3745, 16 Am. Disabilities Cas. (BNA) 1065 (W.D. Tex. Mar. 3, 2005), but it is possible for the aggrieved individual to file an administrative complaint per 29 U.S.C. sections 794d(f)(1)(A), (f)(2). Finally, it is important to note that section 508 does not work like section 504 of the Rehabilitation Act, where an entity is on the hook if it takes federal funds. Rather, section 508 strictly applies to the federal government and to contractors only with respect to that product if they are also using it as part of the contract (36 C.F.R. § 1194.2(c)).
Must the Internet Be Accessible to Comply With the Americans With Disabilities Act?
Let’s say this particular software or product is something you are using for your Internet site. Let’s also say that your company is entirely on the Internet. Now that your Internet site is not accessible to persons with disabilities, do you have a problem?
I have written over the years several times about the Internet and whether it needs to be accessible to persons with disabilities. That discussion appears in my book. I also wrote an article on whether colleges and universities home pages need to be accessible to people with disabilities (helpful reading for those interested in how title II of the ADA might apply to electronic space), and an article on whether law firms must have their website accessible to people with disabilities. Finally, I wrote an in-depth article on this very topic in January of this year for GPSolo eReport. As mentioned in those writings, there are several lines of thought on this. First, one line of thought is that the ADA always applies to electronic space (Doe v. Mutual of Omaha Insurance Company 179 F.3d 557 (7th Cir. 1999)). Second, another line of thought is that the ADA applies only in physical space (Access Now, Inc. v. Southwest Airlines Company 227 F. Supp. 2d 1312 (S.D. Fla. 2002); Jancik v. Redbox Automated Retail, LLC, 2014 U.S. Dist. LEXIS 67223 (C.D. Cal. May 14, 2014)). A third line of thought is that the Americans with Disabilities Act applies to the Internet where the Internet is a gateway to a brick-and-mortar store. (See National Federation of the Blind v. Target Corporation 452 F. Supp. 2d 946 (N.D. Cal. 2006); See also, Jancik, above)). Finally, a fourth line of thought is that so long as the Internet site could be considered a place of public accommodation per 42 U.S.C. section 12181(7), then it is subject to title III of the ADA (Nat’l Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196 (D. Mass. 2012). Finally, it is clear that the Department of Justice is of the view that the Internet is subject to the ADA. (See, for example, this blog entry of mine.) Therefore, in short, if this inaccessible product that you have developed or bought is having to be used by the general public through your Internet site, you are probably at considerable risk of violating Title III of the ADA.
Nondelegable Duty (Much of This Section, With Some Modifications, Is Taken From a Blog Entry of Mine)
But you say you are too smart to get saddled with an inaccessible product without redress. That is, you anticipated this. So, when you procured the product or software from the company, you had an agreement drawn up whereby they agreed to indemnify you should the product or software prove inaccessible, and you are sued for that reason. The company you purchased the product or software from also said they were on the case and that you had nothing to worry about. Well, it turned out that you did. Now what? People who are covered by the Americans with Disabilities Act (ADA) have an obligation to comply with its myriad requirements. The question becomes, can that obligation be delegated to someone else?
The answer to this question may depend upon the jurisdiction. Why the answer would be no can be found in Rolf Jensen and Associates, Inc. v. Eighth Judicial District Court of the State of Nevada, 282 P.3d 743 (Nev. 2012). The facts of this case were in 2002, Mandalay Corporation entered into a contract with Rolf Jensen and Associates Inc. to provide consulting services regarding construction of an ADA-compliant expansion to the Mandalay Bay Resort and Casino in Las Vegas. The contract contained a provision providing that Rolf Jensen would indemnify Mandalay for damages arising from any act, omission, or willful misconduct by Rolf Jensen in its performance of its obligations. Once the expansion was constructed, the Department of Justice began an investigation of numerous violations of the ADA arising from the buildout not being done in accordance with the Americans with Disabilities Act architectural guidelines. That led to Mandalay entering into a comprehensive settlement agreement with the Department of Justice requiring them to bring the resort into compliance with the Americans with Disabilities Act. Mandalay estimated that the retrofit would cost more than $20 million. Mandalay, per the clause in its contract, brought a suit seeking indemnification. Rolf Jensen maintained that the District Court was required to grant its motion for summary judgment because Mandalay’s claims were preempted by the ADA and sought a writ of mandamus from the Nevada Supreme Court to effectuate that.
In agreeing with Rolf Jensen, the Supreme Court of Nevada reasoned as follows. First, the Nevada Supreme Court said that this was a situation involving conflict preemption because it was not a situation in which congressional enactments so thoroughly occupy a legislative field or touch on a field in which the federal interest is so dominant that Congress effectively leaves no room for the state to regulate conduct in that field, “field preemption.” (See also this blog entry, where I discuss the Air Carrier Access Act for a discussion of field preemption). In conflict preemption, the question is whether in view of the federal law’s purpose and effects, the state law claims contained in the suit (in this suit indemnification, breach of contract, breach of express warranty, and negligent misrepresentation) pose an obstacle to the accomplishment of congress’s objectives in enacting the federal law, in this case the ADA.
Second, because this was a case of conflict preemption, the Nevada Supreme Court turned to what it saw as the goals of the Americans with Disabilities Act. They said that the goal of the ADA is not only to remedy discrimination against persons with disabilities, but also to prevent it. To ensure that, the ADA comprehensively covers discriminatory practices persons with disabilities face in major areas of public life, including access to public accommodations. The ADA also focuses on prevention as well. That is, the ADA provides that where a facility is not constructed to be readily accessible to individuals with disabilities, the owner, regardless of intent, is liable for unlawful discrimination.
Third, excepting landlord-tenant relationships, no provisions exist within the ADA or its accompanying regulations permitting indemnification to reallocate liability between various entities subject to ADA.
Fourth, the Nevada Supreme Court reasoned that claims of indemnification and the like are preempted because they diminish the owner’s incentive to comply with the ADA, thereby frustrating Congress’s goal of preventing disability discrimination. In reaching this conclusion, they relied heavily on a Fourth Circuit case, Equal Rights Center v. Niles Bolton Associates, 602 F.3d 597, 602 (4th Cir. 2010), which held that permitting an owner through an indemnification claim to recover its losses lessens the owner’s incentive to ensure compliance with the ADA and the Fair Housing Act. In other words, each entity subject to the Americans with Disabilities Act has a nondelegable duty to comply with that law. To allow it to switch the obligation to comply onto someone else means the individual having the obligation to comply with the ADA will not be accountable for discriminatory practices. Or, to put it another way, to allow such claims would allow owners to contractually maneuver themselves into a situation where they could ignore their nondelegable responsibilities under the ADA by placing the burdens of compliance on someone else.
Fifth, the remedial scheme set forth in the ADA does not provide for a right to indemnification.
Sixth, the Nevada Supreme Court disagreed for several reasons with Mandalay’s argument that permitting indemnification claims would have the overall effect of promoting ADA compliance by encouraging owners to seek advice from ADA consultants and therefore should be permitted. First, they said owners are motivated to seek advice on ADA compliance in order to aid in their duty to construct facilities in compliance with the law. To say businesses contract with consultants only in order to obtain indemnification should something go wrong simply diminishes to the extreme the role qualified consultants play in an owner’s effort to meet ADA requirements. Second, allowing such behavior has a debilitating effect on ADA compliance. Third, the owner of Mandalay, a highly sophisticated entity with ultimate authority over all construction decision, is in the best position to prevent violations of the ADA. Lastly, Rolf Jensen still did have liability for their actions, but the liability extended to the individual with disabilities rather than to Mandalay.
Finally, Mandalay claimed that their claims were not really indemnification claims at all, but rather the seeking of separate and distinct relief for Rolf Jensen’s breach of its contractual and professional obligations. The Nevada Supreme Court disagreed and said simply that such claims would be a subterfuge for indemnification and, for all the reasons discussed here, were preempted by the ADA. Accordingly, they held that the lower court had no choice, quite literally, to grant Rolf Jensen’s motion for summary judgment and issue the writ of mandamus (a writ that compels the performance of a governmental act).
So, what are you to do after Rolf Jensen? Basic preventive law before this decision would say any time you hire someone to develop a product or software product that will be in compliance with the Americans with Disabilities Act, you should put in the contract an indemnification clause, much like the clause that Mandalay had in its contract. However, this decision calls into question as to whether such a clause would either be held to be preempted by the Americans with Disabilities Act or be held to be void against public policy. If you are in Illinois, you might try to rely on two cases involving attorneys suing for wrongful discharge and claim that if indemnification was not allowed, then there would be no reason to hire such people to ensure ADA compliance (an argument that proved persuasive to the Illinois Supreme Court). In the attorney discharge cases, the Illinois Supreme Court said allowing an attorney to sue for wrongful discharge would jeopardize the attorney-client relationship. (See Balla v. Gambro, Inc. 145 Ill. 2d 492 (1991); see also Jacobsen v. Knepper and Moga P.C. 185 Ill. 2d 372 (1998)). That is, why hire such a person at all if it would just come back to bite you? That said, the states that have considered whether an attorney can sue for wrongful discharge have uniformly disagreed with the reasoning of the Illinois Supreme Court (Sheppardize Balla v. Gambro and General Dynamics Corporation v. Superior Court 7 Cal. 4th 1164 (1994), to see that the California view is prevailing and that the Illinois view is restricted to Illinois). In short, if you are in Illinois, it makes sense to try the indemnification language. If you are in another state, the indemnification language may run into the same trouble it ran into in Nevada. Assuming such an indemnification clause will fail, what is the company to do? A couple of possibilities include: hiring a person to independently double-check the work of the contractor; or having your in-house counsel or other in-house personnel work with the contractor and any other consultants to ensure that the product or software is done in the way that is supposed to be done. True, such a process increases the costs to the company. However, doing so helps ensure that the company’s nondelegable duty is satisfied and also increases the probability that the Americans with Disabilities Act will be fully complied with.
Finally, what if this inaccessible product or software is something that has to be used by your employees, and one of your employees uses voice dictation technology or a screen reader and cannot use this product in a meaningful way? In that situation, you now have the real risk of violating Title I of the ADA. (For a fuller examination of employment issues and the ADA, see the first five chapters of my book, Understanding the Americans with Disabilities Act, 4th ed., ABA, 2013.)
Does the ADA Apply?
The first question is whether you are even subject to the ADA at all. An entity is subject to Title I of the ADA per 42 U.S.C. section 12111(5)(A) if it has 15 or more employees. Chances are the business you represent will meet this threshold. If you take federal funds, your business would be subject to virtually identical rules as the ADA by way of section 504 of the Rehabilitation Act regardless of the number of employees that your business has.
Does a Disability Exist?
The ADA, at 42 U.S.C. section 12102(1), states that a person has a disability if he or she (1) has a physical or mental impairment that substantially limits one or more of life’s major activities; (2) has a record of such an impairment regardless of whether the person currently is substantially limited in a major life activity; or (3) is regarded as having such an impairment.
The question then follows whether the impairment substantially limits one or more of life’s major activities. This is actually two questions: First, what does it mean to be “substantially limited” in a major life activity, and, second, what are “major life activities”? With respect to a substantial limitation in a major life activity, the U.S. Equal Employment Opportunity Commission (EEOC) in its final regulations, 29 C.F.R. section 1630.2(j), implementing the amendments to the ADA defines substantial limitation as being a matter of whether the person is substantially limited in a major life activity as compared to most people in the general population (the ADA was amended in 2009, and those amendments went into effect in January 2011).
Just what is a major life activity? The amendments to the ADA do define a major life activity. Those major life activities, which can be found at 42 U.S.C. section 12102(2), include: (1) caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working; and (2) the operation of major bodily functions, such as but not limited to the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. The EEOC in its final regulations at 29 C.F.R. section 1630.2(I)(i),(ii) added the major life activities of sitting, reaching, and interacting with others.
What if, hypothetically, the employee took medicine for their disability, and the medicine went a long way toward solving the problem? Should the medicine be factored into the determination of whether the employee has a disability under the ADA? The answer, under 42 U.S.C. section 12104(E)(i), (ii), is no; mitigating measures are not factored into whether a person has a disability unless those mitigating measures are eyeglasses that fully correct vision.
Is the Person Qualified?
To qualify for protection under the ADA, it isn’t enough for a person simply to have a disability as the law defines that term. In the employment context, that person must also be qualified for the job. Per 29 C.F.R. section 1630.2(m), a person with a disability is qualified under Title I of the ADA if the person satisfies the requisite skill, experience, and education requirements of the position and can, with or without reasonable accommodations, perform the essential functions of the job. Of course, this definition raises two questions. First, what is the essential function of the job? Second, what is a reasonable accommodation?
Turning to the first question, what is an essential function of the job, the EEOC gives a list. In particular, the EEOC says at 29 C.F.R. section 1630.2(n) that it will look to the following factors:
- The employer’s judgment as to which functions are essential;
- The written job descriptions prepared before advertising or interviewing applicants for the job;
- The amount of time spent on the job performing the function;
- The consequences of not requiring the incumbent to perform the function;
- The terms of a collective bargaining agreement;
- The work experience of past incumbents in the job; and/or
- The current work experience of incumbents in similar jobs.
Applying these factors can get complicated, but it doesn’t have to be that way. Think of essential functions as any elements of the job that are fundamental to achieving the job’s purpose. Those elements that are not fundamental can be classified as marginal. So, now you have to ask yourself, what are the things that are fundamental to achieving the job’s purpose for this particular employee? Is it fundamental for this particular employee to have to be able to use that product or software? If so, can it be done with or without reasonable accommodation?
What Is a Reasonable Accommodation?
This brings us to the question of what is a reasonable accommodation. Under the ADA, 42 U.S.C. section 12112(b)(5)(A), a reasonable accommodation is anything that does not constitute an undue hardship. Thus, it becomes important to know what an undue hardship is. Undue hardship can either be financial or logistical. An undue financial hardship is almost impossible to show because undue hardship in the financial sense, according to the EEOC under 29 C.F.R. section 1630.2(p)(2)(ii), (iii), is measured against the entire operations of the employer and not just one department. With respect to logistical undue hardship, I find it is helpful to think of it in terms of the concept of fundamental alteration to the nature of the business, program, or activity that is found: in Rehabilitation Act case law over the years; in the final regulations implementing Title II of the ADA, 28 C.F.R. § 35.130(b)(7); and in Title III of the ADA, 42 U.S.C. section 12182(b)(2)(A)(ii),(iii).
If there is a lesson here, it is that a business should not blindly rely on assurances of others with respect to ADA compliance, and should do everything it can to ensure that its technology is accessible to persons with disabilities. Failure to do so is: bad business sense as it decreases the potential base of your customers; possibly forecloses contracting with the federal government; and subjects the business to liability under title III and title I of the ADA.
Of course, nothing in this article is meant to constitute legal advice. For that, a lawyer knowledgeable in this field should be consulted.