Maryland Business Law Blog

Do Businesses Need to Make Their Web Sites Accessible to the Disabled?

Posted by Jeanine Gagliardi on Tue, 10/23/2012 - 04:00

Title III of the Americans with Disabilities Act (“ADA”) prohibits places of public accommodation from discriminating against individuals with disabilities. There are twelve categories of enterprises that qualify as places of public accommodation. They include places of entertainment, places of recreation, sale and rental establishments, and service establishments. Title III requires such places to comply with accessibility requirements and provide equal access to individuals with disabilities. One issue faced by businesses that operate only on the Internet is whether their web sites are "places of public accommodation". That is, must they be accessible to persons with disabilities?

In a June 2012 opinion, the United States District Court for the District of Massachusetts became the first court to hold that a web site-only business may be a place of public accommodation that is covered by the ADA. The plaintiffs, an individual and associations for the deaf and hearing impaired, sued Netflix. The plaintiffs claimed that Netflix’s failure to provide closed captioning for all of the content on its video streaming web site violates the ADA.

Netflix moved for judgment on the plaintiffs’ claim on grounds that a web site is not a place of public accommodation. The court rejected Netflix’s argument. Finding that Netflix’s video streaming site may fit within at least one of the categories identified in the ADA, the court held that it may be a place of public accommodation.

In reaching its conclusion, the court recognized two things. One, the purpose of the ADA is to make the same things available to individuals with disabilities that are available to other members of the general public. Two, limiting the scope of the ADA to physical structures, “in a society where business is increasingly conducted online,” would contravene this purpose.

In an opinion issued one month later, the United States District Court for the Northern District of California disagreed. This court, relying on prior decisions by California courts, held that places of public accommodation under the ADA are limited to physical structures.

These two cases illustrate the unsettled nature of the law concerning web sites and the ADA. Although the Department of Justice has been in the process of issuing regulations since 2008, the government has yet to issue any guidance to businesses. Online businesses should stay tuned for developments, as the developments may substantially affect their exposure to liability. In the meantime, entities that operate on the Internet should be wary of conducting business on web sites that are not accessible to individuals with disabilities.

May You Discriminate Based on "Personal Appearance"?

Posted by Edward Sharkey on Wed, 10/17/2012 - 14:29

The hiring practices of a Boston-based coffee shop could be the impetus behind creation of the country’s newest protected class in employment discrimination cases: unattractive people. Earlier this year, the Equal Opportunity Employment Commission (“EEOC”) began investigating the coffee shop for what is being called a “beauty bias”. The coffee shop allegedly only hires young, attractive, female employees to staff roughly 30 locations throughout Massachusetts and Rhode Island.

The EEOC is a federal agency responsible for investigating and prosecuting violations of federal anti-discrimination statutes. The most important of these statutes as they relate to employment discrimination is known as Title VII. Title VII prohibits workplace discrimination based on “race, color, religion, sex or national origin,” unless a “bona fide occupational qualification” is at stake. In recent years, Title VII has also been expanded by the EEOC and by courts to cover sexual harassment allegations and gender identity.

The EEOC has yet to levy any charges against the coffee shop, and, as of this writing, physical attractiveness (or lack thereof) is not protected under Title VII. Businesses must be careful, however, when using looks as a factor in employment decisions: courts and the EEOC have, in the past, been sympathetic to plaintiffs’ arguments that attractiveness standards can be a guise for more invidious forms of discrimination based on race or national origin.

Businesses also need to be aware of state laws on the subject. In Washington, D.C., businesses are explicitly prohibited from making employment decisions (such as refusing to hire, firing, promoting, or assigning employees) based on personal appearance. Under the D.C. statute, employers may only discriminate on personal appearance if the discrimination is a “business necessity.”

Our firm continues to monitor developments in this area. If you have a question about this or any related issue, please feel free to give us a call.

May an Employer Restrict Employees' Use of Social Media?

Posted by Jeanine Gagliardi on Fri, 10/05/2012 - 04:00

One of the rights afforded to employees by the National Labor Relations Act is to communicate with others regarding wages and working conditions. An employer is not allowed to have a rule that could reasonably be construed by employees as prohibiting such communications. A recent decision by the National Labor Relations Board, the federal agency tasked with enforcing the Act, reminds employers that they must take care to ensure that their social media policies do not violate the Act in this manner.

In the matter, the Board filed a complaint against Costco, charging, among other things, that Costco’s “Electronic Communications and Technology Policy” violates the Act. After a hearing, an Administrative Law Judge found that two provisions of the Policy could reasonably be construed as precluding discussion about wages and working conditions and, for this reason, violate the Act. One provision required employees to ensure that all information relating to Costco, its employees, and its operation is “secure, kept in confidence, and not disseminated or misused.” The other precluded employees from sharing, transmitting, storing, or removing payroll information without company approval.

Costco filed exceptions to the Judge’s decision. The Board reviewed the matter and issued an opinion. The Board affirmed that the two provisions violate the Act because they are written so broadly that an employee could reasonably construe them as prohibiting discussion about wages and working conditions. The Board then held that a third provision violated the Act. That provision stated that an employee could be disciplined for posting electronic statements “that damage the Company.” Costco was ordered to rescind or modify the provisions and notify employees of policy updates, including by posting a notice.

The key point for employers is that social media policies may not intrude upon employees' rights to communicate about wages and working conditions. One way to narrow an otherwise broad policy is to add language that limits or clarifies the policy's application in a way that informs employees they are not restricted from communicating in ways protected by the Act.

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