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ADA Claims Against Public Entities “Exploding”

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ADA Claims Against Public Entities “Exploding”

It’s well known that public entities offering insurance operate with a number of inherent challenges: dated technology, complex reporting structures, regulatory reporting burdens and more.  But now public entities have an additional challenge.  According to an article written by Jerry Stovall, Jr., an attorney with Breazeale Sachse & Wilson LLP, claims against public entities under ADA website accessibility standards are “exploding.”

It’s no longer the case that only businesses are overwhelmed with litigation related to disabled individuals who claim inaccessibility to the business’s property or even website.  According to Stovall, plaintiffs are now “targeting cities, towns, and counties, arguing that their websites are inaccessible, most often for the visually or hearing impaired.”

Although the ADA only allows such a plaintiff injunctive relief, as opposed to damages, adds Stovall, it also allows him to recover his attorneys’ fees. Further, New York and California, two states with the greatest number of ADA accessibility lawsuits, also allow plaintiffs to recover monetary damages.

Title II Of The ADA

Stovall points to Title II of the ADA, which prohibits a “public entity” from discriminating against “a qualified individual with a disability,” on account of the individual’s disability. The ADA regulations state that “a public entity shall take the appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others.”

Accessibility

Further, “a public entity shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity” (28 C.F.R. § 35.160(a)).

Such auxiliary aids and services may include, but are by no means limited to, qualified interpreters on-site or through video remote interpreting services; real-time closed captioning; and closed caption decoders (28 C.F.R. § 35.104). Adding to this complexity, the specific type of auxiliary aid needed may vary on a case-by-case basis, as individuals with various disabilities may require different accommodations.

Risk of Liability to Municipalities

“Among the issues raised by recent lawsuits are a plaintiff’s inability to attend or otherwise participate in a town board or city council meeting due to that person’s disability, and the need to watch the meeting on the town’s website,” notes Stovall. “Without closed captioning, for example, a hearing-impaired person would not be able to participate in the meeting.”

Web Accessibility

Although there is no explicit requirement to livestream or simulcast a municipality’s council meetings, a municipality does have a duty to provide auxiliary aids to disabled persons attempting to take part in the meetings.”

Stovall says that although there is no blanket requirement that every city needs to livestream and provide real time captioning for their meetings, or to provide any specific auxiliary aides to use its website, the proliferation of municipal website lawsuits presents a real risk of liability.

Municipalities are advised to work with their IT departments or otherwise to take proactive steps to ensure that their websites are accessible to those with visual, hearing, and muscular impairments.

Image courtesy of Global Reach Internet Productions