08.03.2016

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Updates

As retailers enter the holiday season amid a period of increased compliance lawsuits related to the Americans with Disabilities Act (ADA), we offer some timely ways to steer clear of potential ADA pitfalls. 

Title III of the ADA generally requires that “places of public accommodation” provide access for those with disabilities to the goods and services they offer.  This requirement applies not only to physical spaces but can apply to the virtual world as well—both interactive kiosks and websites.  Below are six areas to review.

1. Make sure your physical space is accessible.  Opening a new store?  Expanding a parking lot?  Adding displays?  Allegations of ADA violations in parking lots, restrooms and dressing rooms tend to attract the most ADA lawsuits.  Consider changing architectural features, such as round doorknobs, narrow aisles, sloping walkways, stairs or noncompliant restrooms, that interfere with the ability of people with disabilities to access the goods or services provided by your business. 

Be sure there is an accessible route of travel extending from the street or parking lot through your public retail space.  Sales merchandise and displays, even temporary displays, should not block this accessible route.  Parking lots should include an appropriate number of accessible parking spaces on level ground that are appropriately marked and adjacent to the accessible route of travel.  ADA requirements may differ depending on the construction date of your facility, specifically before or after January 1992.  Even if your space was ADA compliant when it was constructed, alterations and remodeling may trigger an obligation to comply with more recent ADA regulations. 

2. Train customer service personnel.  A good way to reduce the risk of unhappy customers and, consequently, lawsuits is if your customer service personnel are ready, willing and able to assist customers who may have difficulty navigating your store, website or kiosks.  The U.S. Department of Justice (DOJ) encourages consultation with individuals with disabilities to determine what type of auxiliary aid or service may be needed.  Training customer service personnel can help make them aware of the requirements under the law and the types of issues that may arise.      

3. Check point-of-sale devices.  More lawsuits are being filed against retailers that allege blind or visually impaired people cannot independently use a key pad on a point-of-sale (POS) device to enter a debit personal identification number (PIN).  While there are no specific technical requirements under federal law for POS devices in retail establishments, California requires that all check-out locations with flat-screen POS devices have a permanently attached tactile keypad. 

The DOJ has argued that a retailer who offers customers the opportunity to use a debit card with a POS device must offer some type of auxiliary aid or service that would allow the disabled individual to use the debit card payment option.  The DOJ further argued that even if a retailer can accept alternative forms of payment from the blind or visually impaired person, that is not enough.  To clarify, the DOJ’s position is that processing a debit card transaction as a credit card transaction without the use of a PIN number is not sufficient.  Instead, the DOJ stated that some options for retailers using POS devices include:  (1) a POS device with a tactile keypad or (2) screen reader software running on a tablet or mobile device to conduct a debit card transaction with headphones. 

4. Review websites for accessibility.  Lawsuits have also increased in the area of website accessibility for websites offering goods or services to consumers.  The DOJ takes the position that websites offering goods or services to consumers are places of public accommodation and must be accessible to the disabled.  The ADA and its regulations do not specifically address websites.  The DOJ, however, says that websites offering goods or services to consumers must be accessible by complying with guidelines from Web Content Accessibility Guidelines (WCAG) 2.0.  To minimize risk, a review of the accessibility of a website offering goods or services to consumers and consulting with specialized ADA technology experts and experienced counsel is recommended.

5. Evaluate use of technology.  The ADA requires that public accommodations provide auxiliary aids and services necessary to ensure “effective communication” with individuals with disabilities.  As an example of “effective communication,” a restaurant must ensure that an employee is available to explain a menu to a blind customer but does not need to make the menu available in Braille.  The guidelines are meant to be flexible so that an appropriate aid or service is provided, given the nature of what is being communicated and how the disabled individual communicates. 

Recently, the DOJ has argued that “effective communication” means that auxiliary aids and services must be offered to the blind or visually impaired, specifically arguing that the modification of technological devices is required to protect the privacy and independence of the individual with a disability.  Plaintiffs’ attorneys are also using this point to argue that a retailer’s use of digital platforms, such as interactive kiosks, means that the retailer should be required to use additional digital technology to facilitate “effective communication” with disabled individuals. 

6. Review insurance coverage.  Insurance coverage for ADA claims can be found within multiple types of insurance policies.  Retailers should review their entire insurance portfolio to determine the extent of coverage that they have and make adjustments if necessary prior to the holiday season.  This review should include, but not be limited to, the following:  Commercial General Liability policies (CGL policies), Employment Practice Liability policies (EPL policies), Errors and Omissions policies (E&O policies) and policies where the company is an additional insured. 

With the dramatic increase in ADA litigation, many insurance carriers have added additional exclusions, and retailers’ policies this year may have significantly less coverage than the year before.  Regardless, there are still strong coverage options available for little or no additional premiums if negotiated.  The two general policies with the most fruitful coverage are CGL and EPL policies.  Retailers should pay close attention to any ADA exclusions in CGL polices that limit claims for (1) emotional distress under bodily injury coverage and (2) discrimination under personal injury coverage.  Similarly, retailers should ensure their EPL policies contain a “third-party liability” endorsement and do not contain ADA exclusions.

Although these are the most likely sources for coverage, as discussed above, coverage can be found in other policies as well, and a retailer’s entire portfolio should be reviewed.  If retailers are unable to assess whether their company has adequate protection after a review of their policies, retailers should reach out to coverage counsel and their broker to ensure they are properly insured.  If retailers have questions about ADA requirements as they apply to their businesses and services, they should make time before seasonal crowds gather to consult with experienced counsel and specialized ADA consultants.

© 2016 Perkins Coie LLP