On June 29, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit heard the National Federation of the Blind’s (NFB) challenge to a Department of Transportation (DOT) Final Rule regarding air carriers’ duty to provide blind-accessible kiosks at domestic airports. The NFB’s complaint alleged, among other reasons, that the DOT’s Final Rule constituted discrimination against disabled individuals, since it does not require air carriers to make all airport kiosks accessible to the blind. Though the D.C. Circuit did not address the NFB’s arguments on the merits and dismissed the challenge, this case is a strong indication of increased attention on ensuring that public accommodations are accessible to blind and visually impaired individuals, especially in the realm of technology.
Disability Rights, Public Accommodations, and Technology in Context
Patterns in class action litigation and enforcement actions show an increased focus on ensuring that public accommodations, from airport kiosks to websites for government agencies to online retailers, are accessible to blind and visually impaired individuals. Companies that fail to accommodate blind and visually impaired individuals in accessing online content may face liability from class action suits under the Americans with Disabilities Act (ADA)1 and other laws. In 2010, the Department of Justice (DOJ) issued an advance notice of proposed rulemaking,2 stating that the DOJ was considering amending its regulations to require public websites that provide products and services to the public be made accessible and usable by disabled individuals, which suggests an expansive view of what constitutes a place of public accommodation.
No organizations, including government agencies, are exempt from accessibility requirements under the ADA. In October 2015, the American Council of the Blind and three blind government contractors reached a landmark settlement in litigation with the General Services Administration (GSA) to ensure that the federal government website, SAM.gov, is accessible to blind federal contractors.3 This agreement emphasizes that all types of entities may face exposure to litigation and enforcement actions from alleged violations of accessibility requirements under the ADA and other laws. In the private sector, dozens of class action suits against various companies have been filed across the country, alleging that the company websites lack the technology to be accessible to blind and visually impaired individuals and thus violate the ADA.
The DOT Final Rule at Issue
On December 12, 2013, a DOT Final Rule4 became effective which requires that covered air carriers purchase blind-accessible kiosks until at least 25% of the automated kiosks at each location in domestic airports are accessible. The NFB filed its complaint in district court 71 days (11 days after the 60-day cutoff for such a challenge) after the DOT issued the Final Rule, stating that the DOT rule failed to comply with the Air Carrier Access Act of 1986 (ACAA), which prohibits air carriers from “discriminat[ing] against any otherwise qualified handicapped individual” on the basis of disability.5 The district court found that it lacked jurisdiction over the matter, because under 49 U.S.C. § 46110(a), the DOT’s Final Rule was an “order” that only the Court of Appeals had jurisdiction to review.
The D.C. Circuit’s Ruling
The D.C. Circuit found that first, the district court lacked jurisdiction over the NFB’s complaint; and second, the NFB’s untimely filing was not excused by reasonable grounds. The jurisdictional issue centered upon whether a final rule issued by the DOT constituted an order under section 46110(a), which states that a person challenging “an order issued by the Secretary of Transportation … may apply for review of the order by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit.”6 The D.C. Circuit found that section 46110(a) vests review of the DOT Final Rule in its exclusive jurisdiction and thus denied NFB’s petition for a writ of mandamus. The court further found that NFB’s uncertainty over the jurisdictional issue did not constitute reasonable grounds to excuse its tardy filing of the complaint. As a result, the D.C. Circuit dismissed the NFB’s challenge of the DOT Final Rule.
Implications
The D.C. Circuit’s recent decision in National Federation of the Blind, et al. v. United States Dept. of Transportation did not reach the NFB’s arguments on the merits regarding whether the DOT’s Final Rule, which does not require air carriers to make all airport kiosks accessible to the blind, constitutes discrimination against visually impaired individuals. Instead, the court found that the NFB’s challenge to the DOT Final Rule was barred, because the complaint was filed in the incorrect forum and was untimely without reasonable grounds. Though the impact of this decision is limited in scope, it highlights the increased attention on ensuring that public accommodations, from airports to government agencies to websites for online retailers, are accessible to blind and visually impaired individuals. To minimize exposure to class action suits and enforcement actions, a company should consider whether blind and visually impaired individuals are able to access all of the company’s associated technologies that may be considered public accommodations.
1 See 42 U.S.C. § 12182(a) (2013) (emphasis added) (stating “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to) or operates a place of public accommodation.”).
2 Nondiscrimination on the Basis of Disability; Accessibility of Web Information & Serv of State & Local Gov’t Entities & Pub. Accommodations, 75 Fed. Reg. 43460 (proposed Jul. 26, 2010) (to be codified at 28 C.F.R. pt. 35-36).
3 Settlement Agreement, American Council of the Blind v. GSA, No. 1:14-cv-00671-BAH (D.D.C. 2015). Sutherland represented the plaintiffs on a pro bono basis.
4 See Nondiscrimination on the Basis of Disability in Air Travel: Accessibility of Web Sites and Automated Kiosks at U.S. Airports (Final Rule or Rule), 78 Fed. Reg 67,882, 67,883 (Nov. 12, 2013).
5 The Air Carrier Access Act of 1986 (ACAA), Pub. L. No. 99-435, 100 Stat. 1080.
6 49 U.S.C. § 46110(a) (emphasis added).
