By Richard Hunt
Hunt Huey PLLC

The latest iteration of the Web Content Accessibility Guidelines became effective with the publication of version 2.1. on June 5, 2018. The newest version adds an additional 17 success criteria for compliance with WCAG, 12 of which are part of success level 2, the level that has become a de facto standard for the ADA. I’ve shared my thoughts on how this may change the ADA litigation landscape elsewhere. In this blog I’d like to consider the deeper questions posed by this revision: Who gets to decide what discrimination means?

It is worthwhile to start with a look at the stated purpose of the ADA itself. The declaration of policy in 42 U.S.C. §12101 never uses the word “accessible” and refers to “access” only with respect to public services. The focus of the ADA is discrimination, and standards for accessibility are only part of Congress’ intent to “to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities.” (42 U.S.C. §12101(b)(2)).

The first of these standards concerned physical accessibility and took the form of the ADAAG, a set of construction requirements that are “as precise as they are thorough” according to the Ninth Circuit Court of Appeals. The original standards were replaced and expanded by the 2010 Standards now in effect, but a facility built when the old ADAAG were in effect still meets the requirements of the ADA. If you do it right the first time, you don’t have to keep re-doing it as standards for accessibility change.

This is notable because it is an example of the kind of compromise built into the ADA. Not making a facility accessible according to statutory standards is “discrimination” as defined in the ADA, but the statute was not intended to require that businesses perpetually update their physical premises as standards change. There are other compromises as well. The required door widths, slopes, and so forth are all based on what is accessible to most disabled individuals; not all. Those compromises were worked out over many years through the regulatory process with input from disability rights advocates, technical experts and the affected businesses. More recently adopted standards for ATM’s, movie theaters and the like were worked out the same way, balancing the degree of access with the cost of existing technology. In every case businesses were allowed lead times of many years to adapt to the new standards. No one was expected to become accessible overnight.

Until, that is, the Department of Justice decided that the internet should be accessible and that the ADA was the means to enforce that accessibility. DOJ prosecuted internet access cases long before it had begun work on accessibility standards for the internet, and then deep sixed regulations that were almost complete for political reasons. The business community, usually not anxious to be regulated, is now trying to persuade Congress to force DOJ to publish regulations in order to end the chaos brought on by a lack of standards.

In the meantime, we have the Web Content Accessibility Guidelines, now in version 2.1. They are published by the World Wide Web Consortium, a private organization made up of tech companies and academics from around the world. The Guidelines were developed with input from experts in accessibility, but not, it appears, members of the business community most affected by the Guidelines; that is, people who sell things on the internet or use web sites in support of ordinary physical businesses. The Guidelines were intended to be private and non-binding, so naturally they do not take into directly into account either the time or cost of implementation; after all, if there were no ADA a business could take as long as it needed to implement them, and could limit its implementation if cost were an issue. They are being used as government regulations without the process and compromises that such regulations ordinarily require.

This is not the fault of W3C of course. It is merely fulfilling its mission of providing web standards, with accessibility standards being just one such standard. It is disturbing though that an international NGO with no political or financial accountability has been delegated the job of regulating American business by the political paralysis of DOJ and the Congress and the willingness of the Courts to entertain website accessibility lawsuits. For businesses the only effective response is to assume that WCAG 2.1 will be the basis of a new round of lawsuits claiming that the definition of “discrimination” under the ADA was changed overnight by the publication of WCAG 2.1, and to begin updating their websites accordingly.

You can learn more at accessdefense.com or by contacting the author.

Akerman LLP has added a team of real estate, land use and zoning partners headed by veteran lawyer John “Jack” George in the firm’s Chicago office, according to a release.

A former assistant attorney general and assistant corporation counsel for the City of Chicago, Jack George joins from Schuyler, Roche & Crisham P.C., where he served as president and a member of its board of directors. Akerman also added Kathleen “Kate” Duncan and Chris Leach from Schuyler and Meg George from Neal & Leroy LLC.

In the release, the firm said:

The distinguished team has handled some of the largest and most complex zoning projects in the Chicagoland area, including the redevelopment of the landmark Old Chicago Post Office and the premier Rehabilitation Institute of Chicago, as well as the development of the $1 billion Wolf Point project along the Chicago River. Together, the four partners bolster Akerman’s core strength in the commercial real estate sector and they arrive at a time when the firm plans to more than double the size of its office in the region. Since its 2014 opening in Chicago, the office has grown nearly seven-times larger to more than 50 lawyers.

“Jack has been instrumental in shaping the Chicago skyline and he is one of the most highly respected land use and zoning lawyers in the market,” said Richard Bezold, chair of Akerman’s Real Estate Practice Group, which is ranked sixth by Law360 among the largest teams of real estate lawyers in the United States. “Jack, Kate, Chris and Meg are skilled at cutting through the regulatory thicket of land development and their ability to secure vital property deals for U.S. and multinational clients is unparalleled. They will be a tremendous resource for our clients in what continues to be a dynamic commercial real estate market.”

Jack George
Jack George brings more than 40 years of experience to his real estate, land use and zoning practice. He is a valued leader among his peers and clients because he develops relationships built on trust and a deep knowledge of real estate law. He has been instrumental in shaping the Chicago skyline, and has worked on notable development projects that have included complex elements such as zoning map amendments, planned development applications and condemnation matters. Jack George is a former assistant attorney general and assistant corporation counsel for the City of Chicago. He knows how to navigate clients through city and state laws, and has handled a broad range of litigation in state and federal courts, as well as proceedings before administrative tribunals and arbitrations.

Jack George has received high rankings by prominent legal guides for his unmatched knowledge of land use and zoning laws, and he is a leader across professional and community organizations, including his role as board member and general counsel of Little City Foundation; past president of the Celtic Lawyers Association; and advisory board member of Xavier University.

Meg George
Meg George has experience with real estate and municipal law matters including the acquisition, sale and development of real estate, land use and zoning, licensing, permitting, subdivision and other real estate matters. She has long represented the interest of numerous owners of shopping centers, convenience stores, hospitals, hotels, residential, commercial and mixed use buildings, office complexes, open space/conservation areas, schools, and libraries in the City of Chicago and suburban villages. Active in the community, George is a LEED accredited professional, whose dedication to building green communities led her to assist in drafting Chicago’s sustainability matrix for the city’s Sustainability Task Force.

Kate Duncan
For more than a decade, Kate Duncan has concentrated her practice in zoning, land use and real estate law on behalf of developers, institutions and homeowners. She brings to her clients the added benefit of close and trusted working relationships with city officials and staff, as well as an in-depth understanding of how the city interprets land use and zoning codes. Duncan has successfully represented clients obtaining planned developments, zoning amendments, special uses, variations, subdivisions, vacations, dedications and various municipal licenses.

In addition to private practice, Duncan is the former chair of the Illinois State Bar Association’s Alternative Dispute Resolution Section Council and serves as commissioner of the zoning board of Appeals for the Village of Barrington, Ill.

Chris Leach
Chris Leach has more than 20 years of experience representing property owners, developers, and business owners in zoning and land use matters, as well as real estate, liquor and business licensing. He has represented clients before municipal plan commissions, planning departments, zoning board of appeals, zoning committees, and community groups and organizations. He also has successfully represented clients in obtaining approvals of planned developments, zoning changes, special uses, variations, subdivisions, vacations and dedications.

FisherBroyles, LLP has a warning for employers dealing with an employee who is doing — or is suspected of doing — illegal drugs: Situations of this kind are fraught with potential for large legal fees, company embarrassment, and major diversion of management time if you become involved in formal proceedings — even if you eventually win.

Drugs permeate our society. It’s on the news, in social media, and all over movies and television. It may also be in your workplace when you discover that your awesome SVP Frank Fantastic’s belief-suspending prior year’s sales record might be due to — or despite — a little cocaine habit combined with his daughter’s ADHD meds.

Some questions you want to consider — do you know this hotshot is doing illegal drugs or abusing alcohol or prescription drugs, or do you just suspect? Is Frank’s employment terminable at will or only for cause if he is a party to an employment contract? Is a substance addiction a “disability” under the Americans with Disabilities Act?

While the answers to such questions depend on the particular facts in each situation, one thing we can tell you is tread lightly, navigate carefully. You want to minimize involvement in such proceedings if at all possible.

The firm offers advice on how to proceed: maintain a clear anti-drug policy, manage the situation with care, review employment agreement, remember that the ada protects recovering addicts, and be proactive in future employment agreements. The article expands on each of those points.

Read the article.