activities. Slide 49: Website Access Case law is still developing; not many cases specific to the hospitality industry Courts: Website with a nexus to a physical place of public accommodation must be made accessible because the website is a “service” ADA applies to the goods and services “of” a place of public accommodation or the services, programs, and activities “of” a public entity, rather than only the goods and services provided “at” or “in” a place of public accommodation or facility of a public entity. Hotels and restaurants must make websites accessible so that individuals with disabilities can have equal access to information hosted on websites such as hotel reservations, restaurant menus, directions, and more. See Nat’l Federation of the Blind v. Target Corp., 452 F. Supp. 2d 946, 953 (N.D. Cal. 2006) (finding in a website-access case that "[t]o limit the ADA to discrimination in the provision of services occurring on the premises of a public accommodation would contradict the plain language of the statute"); Rendon v. Valleycrest Productions, Ltd., 294 F.3d 1279 (11th Cir. 2002) (finding that discrimination did not have to occur on-site in order to violate the ADA). Slide 50: Website Access Other courts: Whether a website is a “place of public accommodation” depends on if it forms a “nexus” with a brick-and-mortar business. Access Now v. Sw. Airlines, 227 F. Supp. 2d 1312 (S.D. Fla. 2002) Southwest’s website was not subject to Title III of the ADA because it did not form a nexus with a place of public accommodation. Court emphasized that Southwest’s online ticket counters did not exist in any particular geographical location. But see Nat’l Ass’n of the Deaf, et al. v. Netflix, Inc., 896 F.Supp.2d 196 (D. Mass. 2012) Court held that Title III applied to Netflix, a business housed entirely online. Slide 51: Website Access Stay tuned… DOJ is expected to issue a Notice of Proposed Rulemaking (“NPRM”) later this year. DOJ has stated that the NPRM will “propose the scope of the obligation to provide accessibility when persons with disabilities access public websites, as well as propose the
Henderson v. Thomas, 2012 WL 6681773 (M.D. Ala. Dec. 21, 2012) Prisoners with HIV brought a class action lawsuit on behalf of all current and future inmates of the Alabama Department of Corrections (“ADOC”) alleging discrimination on the basis of HIV status. Alleged excluded from participation in kitchen jobs within ADOC and food-service jobs in work-release programs. Interpreting Title II of the ADA and the Rehabilitation Act, the court held that the defendant’s policies were “obviously irrational” in light of the fact that the “science is unanimous: there is no risk of HIV spreading through food.” Note: EEOC guidance emphasizes that HIV is not listed on the CDC list or in the FDA Food Code as a disease transmissible through the food supply, and reminds employers that fear about HIV or AIDS, or concern about others’ reactions, does not justify rescinding a job offer. How to Comply with the Americans with Disabilities Act: A Guide for Restaurants and Other Food Service Employers Slide 67: Harassment 5 Factors in Disability Harassment Claims: Plaintiff is a qualified individual with a disability Plaintiff was subjected to unwelcome harassment The harassment was based on plaintiff’s disability The harassment was sufficiently severe or pervasive to alter a term, condition, or privilege of employment, and Some factual basis exists to impute liability for the harassment to the employer (i.e. the employer knew or should have known of the harassment and failed to take prompt, remedial action) Slide 68: Harassment Navarre v. White Castle System, 2007 WL 1725382 (D. Minn. June 14, 2007) Employee with ADHD and Tourette’s syndrome alleged that he was subjected to unlawful verbal and physical harassment. Court found that he presented sufficient evidence to overcome White Castle’s motion for summary judgment. Presented evidence that his coworker pushed, shoved, and threatened to punch him. Also that coworker called him words such as “retard” “[expletive] stupid,” and asked him if he was “dropped on his [expletive] head.” Court rejected White Castle’s argument that these words were not intended to be literal, but rather were words “so commonly used as terms of derision that they carry no natural association with an actual disability.”