Evolving Application of the ADAAA

Most franchisees are familiar with the Americans with Disabilities Act as Amended (ADAAA) either in its Title III context, which prohibits disability discrimination in places of public accommodation (i.e., restaurants or retail stores), or in its Title I context, which prohibits disability discrimination in employment, including the job application process.  As our society has transitioned into the non-physical realm for business and commerce, the reach of the ADAAA has also continued to evolve.

Traditionally, Title III has applied to actual physical locations. For example, franchisees must ensure an individual in a wheelchair can access the restroom or allow a vision impaired individual to use a service animal in facilities where animals are generally not allowed. However, over the past decade, federal courts have wrestled with whether Title III should extend to non-physical places. Non-physical places are electronic spaces, such as websites, electronic applications, or streaming services. Some courts have held that Title III only applies to physical places; others have held that Title III extends to non-physical places; and still others have held that there must be a connection between the non-physical and a physical place. Therefore, different standards have been adopted across the country.

The Department of Justice (DOJ), which enforces Title III, has indicated the agency will not issue regulations addressing website accessibility until 2018. However, not to be deterred by itself, the DOJ has moved forward with intervening in civil actions to obtain consent judgments against places of public accommodation.  A consent judgment is issued by a judge based on an agreement between the parties to a lawsuit to settle an existing matter.  These judgments have even extended to businesses without a physical location based on the DOJ’s assertion that the business’ website was not ADA-compliant.

The Equal Employment Opportunity Commission (EEOC), which enforces Title I, likewise, has not issued an official position regarding website accessibility.  In its Strategic Enforcement Plan for FY 2013-2016, one of its national priorities continues to be eliminating barriers to recruitment and hiring, which includes restrictive application processes. However, it remains to be seen whether the EEOC will try to enforce any specific website standards against employers.

The Department of Labor (DOL) has been taking proactive steps to assist employers by partnering with the Partnership on Employment and Accessible Technology (PEAT). PEAT recently conducted a survey which indicated disabled job applicants found online job applications difficult or nearly impossible to complete. In early 2016, the DOL, through PEAT, began offering free software called “Talent Works.” This software provides assistance to employers to ensure their online applications are accessible to applicants with disabilities and can be found at http://www.peatworks.org.

While this area of law continues to evolve, franchisees should be proactive.

Franchisees should also find out what steps, if any, their vendors are taking to ensure ADA compliance as well. Franchisees should not wait until a lawsuit is filed or a charge of discrimination is received to evaluate this emerging issue.