Your most likely lawsuit?

NZGF2688As originally published in Artisan Spirit – fall 2019.

The internet is an amazing thing — especially when you pair it with a paid subscription service.  And I’m not talking about the kind of service that would have your Human Resources department (or your spouse) up in arms.  I’m talking about a legal news service.  Let me explain.

My firm subscribes to a few legal research services.  I won’t name them, but these are basically information aggregators that pull together case filings and similar legal developments from all over the United States (and beyond) and make them searchable by way of a reasonably clunky user interface.  By using that same interface you can enable a search that will deliver to your email inbox every single morning a list (and summary) of new cases that have been filed involving any topic of your choosing.  And so I did.

Every morning, one of the first emails I receive is a list of all the cases that have been filed in the past 24 hours involving spirits, distilleries, or something sufficiently confusing to the search engine that it “thinks” the case might involve hooch.  Of course sometimes it is wrong; it turns out there are a remarkable number of practicing attorneys in California and Texas who are named Brandy, and based on my inbox they seem to be quite busy in their work.

But of course I’m not trying to learn what cases Brandy (though I hear she may be a fine girlsorry, couldn’t resist) might bring.  I’m trying to keep my finger on the pulse of liability trends in the industry for the benefit of clients.  And with all that as background, let me ask you a question.  What type of claim do I see brought against spirits companies more frequently than any other type?  I think the answer might surprise you.

By far, the most common claim to land in my inbox has nothing whatsoever to do with trademark issues or TTB compliance, dram shop liabilities or defaults under contracts.  The most common claim relates to… disability accommodation.  Specifically, the claims are brought under the provisions of the Americans with Disabilities Act (the “ADA”) or some similar state act.

The ADA was enacted in 1990.  Broadly speaking, the ADA seeks to protect individuals with disabilities from suffering discrimination in employment, access to public services or access to public accommodations in the private sector.  And it is this third aim — found in Title III of the ADA — which gives rise to the suits that fill my inbox.  To understand the risk here, an understanding of the relevant terms is helpful.

Under the ADA, “public accommodations” are defined to mean any private entities that own, operate or lease places of public accommodation.  Not super helpful, is it?  Thankfully the law goes a bit further to include examples such as stores and shops, restaurants, bars, service establishments, hotels, theaters, recreation facilities, private museums and schools.  Unpacked, that means that your distillery tasting room — where consumers can sample product, perhaps buy a bottle (or several) and pick up some awesome merch — is a public accommodation.  It makes no difference that your facility is privately owned (i.e., not part of a government building).  And it makes no difference (for this purpose) whether you own or lease the facility.  Your tasting room is a public accommodation and must comply with the requirements of the ADA.  If you fail to toe the line, then an aggrieved party (either an individual with a disability who wishes to bring suit under the ADA or an attorney with the U.S. Department of Justice) can take you to court and make you comply.

So what does compliance mean?  Like all good legal questions, the answer is “it depends.”  In this case, the answer could depend on whether your facility is new or existing construction, as well as the specific nature of the disability you’re seeking to accommodate.  Let’s take those in reverse order.

Under the ADA, accommodation must be made for an “individual with a disability” — defined to be a person who: (i) has a physical or mental impairment that substantially limits one or more major life activities; (ii) has a record of such an impairment; or (iii) is regarded as having such an impairment.  Note that this last prong of the test means that the person concerned need not have — or have ever had — a disability.  Simply believing that the person has a disability is enough to trigger application of the ADA.   Title III of the ADA further provides some examples of the types of physical and mental impairments that may constitute a disability (including — interestingly enough for our purposes — alcoholism) and indicates that a “major life activity” includes things like walking, seeing and hearing.

Taken together, these factors can make it challenging — though not impossible — to comply.  Let’s consider an example.  Charlene Blankenship is 63 years old and uses a wheelchair for mobility.  She drives a customized minivan which allows her to access the vehicle without leaving her chair but which requires a four-foot buffer zone on the side of the vehicle for its electric liftgate.  Recently, as she poured the last drops from a bottle of whiskey produced at a multi-acre industrial facility in Tennessee, she thought to herself that she really should try some of a new locally produced craft whiskey that a friend had mentioned.  So later that week she boarded her van and set off across town to the small distillery.

Charlene’s troubles began as soon as she arrived.  The distillery’s parking lot had no spaces that could accommodate her van.  So she circled the lot a few times and ultimately had to make do with a space that didn’t quite fit her vehicle.  Luckily, the space was adjacent to another empty space, so she was able to exit her van in her chair.  But the difficulties didn’t stop there.  The parking space she’d managed to find was across the lot from the distillery entrance, forcing Charlene to make an arduous trek across the lot — across several lanes of traffic — in her wheelchair.  In an effort to avoid potentially becoming a hood ornament for a passing motorist, more than a few of whom she thought might have been overserved in the tasting room, she took the most direct route across parking lot — only to find when she arrived at the sidewalk that there was a very high curb blocking her way.  She retraced her route, and found a curb cut that allowed her to gain access to the sidewalk and was pleased to see that it led to a ramp allowing her to avoid the steps leading to the distillery’s front door — conveniently equipped with an electric assist that allowed her to open it by pressing a button.

When Charlene entered, the smell of the distillery was delicious.  Not only did the aromas of whiskey welcome her, they were mingled with the scent of barbeque.  Her friend hadn’t mentioned it, but this distillery was doing double-duty.  As a combined distillery and restaurant, it was making quite a name for itself in the local food scene.  Charlene was thrilled; the only thing she enjoyed more than whiskey was brisket.  Today was going to be a good day.

But the olfactory promise made to Charlene remained unfulfilled.  The tasting room — doubling in this instance as a dining room for the restaurant — had a great many beautiful marble-topped high tables with stools for patrons.  From the vantage point of her chair, however, Charlene could only see the underside of the tables.  There was no accessible seating for her — no table that would accommodate her chair.  Having had enough, Charlene turned her wheelchair back around and headed for the door — back across the parking lot — and to her vehicle.  Unfortunately, the space beside her van was no longer empty; a car parked in the adjacent space now prevented her from using her liftgate.  She was trapped in the parking lot — angry, thirsty and without the benefit of barbecue.

So what went wrong here?  And perhaps more importantly for the purpose of our example, does anyone under the ADA have any liability stemming from Charlene’s frustration?  The lack of accessible parking is a concern.  Any parking lot constructed since the ADA became effective should have been built with a minimum number of accessible spaces.  But Charlene’s failure to immediately locate a curb cut may not be a problem; by including at least one cut-out it appears that some accommodation was made with respect to wheelchair access.  The ramp and the electric door assist are also evidence of attempts to comply.  But the tables are, unfortunately, another compliance failure.  And the fact is it only takes one failure for someone to bring a complaint.  Indeed the majority of the cases that land in my inbox only cite one failure or another as opposed to multiple mistakes.

In our example, Charlene now has the opportunity not to simply tell all her friends about her disappointing trip to the distillery, but also to bring a civil lawsuit against the distillery — and its landlord if it doesn’t own the property itself.  And rest assured there are plaintiff’s lawyers looking for these cases because the ADA allows a successful plaintiff to recover attorneys fees for bringing the suit.  So, the distillery in our example may have the opportunity to pay for Charlene’s lawyer as well as its own when it defends the suit.

Of course it would be bad enough if the ADA only required accommodation in the context of physical facilities.  But the emerging trend in this area of law actually relates to the online world; that same internet that brings me news of cases being brought is actually driving some of the cases.  Courts have held that websites are themselves “public accommodations” under the ADA.  And, as one might expect, this has led to cases being filed alleging that business’ websites aren’t ADA compliant when they aren’t equally accessible by individuals with visual, auditory or physical impairments.

Unfortunately, while there are guidelines in place to help businesses know how wide they must make their doorways in order to provide reasonable accommodation to individuals in wheelchairs, there are relatively few guidelines that exist to help businesses ensure that their websites are in compliance with the ADA.  Indeed, as of the date of this writing, the Department of Justice had not adopted any such guidelines (although it has confirmed its agreement with the proposition that websites are public accommodations under the law).

In seeking to ensure website compliance, many companies are following guidelines put forward by the World Wide Web Consortium (W3C).  The W3C is a group of over 400 businesses and governmental agencies throughout the world, including key players in the tech industry who are almost certainly responsible for the cell phone in your pocket, the operating system on which it runs and/or the wireless network to which it links.  The group works to develop and implement standards all across the web.  To that end, it developed and promulgated its Web Content Accessibility Guidelines (WCAG).  While the Department of Justice previously suggested that compliance with WCAG would be sufficient for businesses to avoid liability, the Department’s most recent statements have backed away from an explicit endorsement of that standard — although it is perhaps unclear whether that indicates that a higher standard will be required or whether a lower standard might suffice.

WCAG itself is periodically updated — most recently with WCAG 2.1 — and contains multiple levels of guidelines, designated A, AA and AAA — each of which add in additional “success criteria” that must be achieved for compliance with the particular level.  While research suggests that compliance with WCAG 2.0 level A or AA is sufficient to demonstrate compliance — and indeed settled cases seem to suggest that this is an appropriate level of compliance — there is no guarantee that a court or the Department of Justice would agree with that approach.  Therefore, businesses that seek to comply are left with a difficult choice of balancing the cost of compliance against the uncertainty of what legal standard might actually be imposed.  The most prudent approach in that situation is the most conservative — adopt the strictest standard and assume that the cost of noncompliance would eventually outstrip the cost of bringing your website up to code (if you’ll pardon the pun).

A business might be excused for asking what, exactly, does it mean to make a website accessible to the visually impaired.  In general, compliance in this area can mean having a website that allows for someone with a visual impairment to use screen-reading technology to convert the website into speech.  That technology exists, but if the website includes a photo without an associated caption, the assistive technology will not help the individual; it will not recognize the photo and the content will be lost.  Similarly, if the background and foreground colors on your site are too similar, the palette may frustrate the technology and cause it to fail.  Addressing these types of missteps are relatively simple ways to improve compliance.

A more challenging example can be found in the context of making the website accessible to individuals with hearing impairment, as in the recent experience of the University of California.  As a government agency its obligations under the ADA are found in a different section of the statute than those applicable to privately held businesses — but the basic obligations are the same.  Recently, the university was ordered to bring its website into ADA compliance by providing written captions for some 20,000 video files located on its website.  This task proved too arduous for the university to achieve in a timely fashion — and so the choice was made to simply remove the videos from the website rather than risk an ADA violation.

Finally, keep in mind that navigating a website by means of a mouse or trackpad alone may also pose an impediment to consumers with physical impairments.  To be WCAG compliant you should consider designing your site so that it may be navigated entirely by the use of the keyboard.

If your distillery has a website (and it should), then you need to consider ADA compliance as part of your broader suite of information technology compliance.  Just as you would be mindful of customer data and payment card industry standards, you should be careful to ensure that your website — like your physical facility — can be accessed by members of the public who are entitled to accommodations under the ADA.  By doing this, you decrease the risk of ending up the subject of a lawsuit and one of my emails.

And one last thing — ADA related — please do remember when you’re checking for ID before serving samples in your tasting room — that some people who are entitled to drink can’t actually get a driver’s license because they’re not permitted to drive (e.g., people with visual impairments).  If you refuse to serve someone because they can’t produce a driver’s license — but they can produce other valid proof of age — that’s a violation of the ADA too.

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