VIDEO ACCESSIBILITY

ARLENE B. MAYERSON, DIRECTING ATTORNEY

DISABILITY RIGHTS EDUCATION AND DEFENSE FUND

(DREDF)www.DREDF.org

October 17, 2017

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AGENDA• Non-Discrimination on the Basis of

Disability

• Section 504 of the Rehabilitation Act

• Americans With Disabilities Act

• Web Access

• Netflix litigation

• MIT/Harvard litigation

• Other Applications 2

M

The purpose of both the

AMERICANS WITH DISABILITY ACT (ADA)

and SECTION 504 OF THE REHABILITATION

ACT

is to provide a coherent framework, and

consistent and enforceable standards for the

elimination of discrimination against

people with disabilities.

• Section 504 covers all entities that receive

Federal Financial Assistance.

• The ADA covers all governmental entities

regardless of the receipt of Federal Financial

Assistance (Title 2) and private places of public

accommodation (Title 3 ).3

COMMUNICATION ACCESSNon-discrimination not only prohibits outright

exclusion, segregation and prejudice, but also

requires removing physical and communication

barriers.

1.Title III defines discrimination to include…

[the] provision of the opportunity for

individuals who are deaf or hard of hearing to

participate in or benefit from the goods,

services, facilities, privileges, advantages, or

accommodations that is not equal to, or as

effective as, what is provided to others. 42 U.S.C. § 12182(b)(1)(A)(i)-(iii).

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.2. Title III further defines discrimination to include

“a failure to take such steps as may be

necessary to ensure that no individual with a

disability is excluded, denied services,

segregated or otherwise treated differently than

other individuals because of the absence of

auxiliary aids and services.”

42 U.S.C. § 12182(b)(2)(A)(iii).

3. [A]uxiliary aids and services” include “effective

methods of making aurally delivered materials

available to individuals with hearing

impairments,” 42 U.S.C. § 12103, such as “open

and closed captioning,”

28 C.F.R. § 36.303(b)(1).5

.

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ENUMERATED PUBLICACCOMMODATIONS IN ADA

PLACE OF PUBLIC ACCOMMODATION means a facility, operated

by a private entity, whose operations affect commerce and

fall within at least one of the following categories:

(1) An inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of the establishment as the residence of the proprietor;

(2) A restaurant, bar, or other establishment serving food or drink;

(3) A motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;

(4) An auditorium, convention center, lecture hall, or other place of public gathering;

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(5) A bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;(6) A laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;(7) A terminal, depot, or other station used for specified public transportation;(8) A museum, library, gallery, or other place of public display or collection;(9) A park, zoo, amusement park, or other place of recreation;(10) A nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;(11) A day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and(12) A gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation. 42 U.S.C. § 12181 (7)

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Why Netflix case is a Game Changer

New and Revolutionary Way to Deliver Entertainment

ANY TIME ANY PLACE

First case to directly hold that an Internet only business is covered by Title III of the ADA.

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Netflix Arguments

• No PLACE of public accommodation.

• ADA was intended to increase access to activities in the community for people with disabilities.

• Therefore, it follows that the term PLACES OF PUBLIC ACCOMMODATION

contemplated a physical structure in the community in which people gather.

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Making the Case

• Internet not contemplated in 1990.

• Activities listed in Title III now take place on Internet.

• Netflix is providing a service, not just passing through a good.

• Integration still implicated, even though the entertainment is primarily private.

• Peer communications, family and friends gatherings at home.

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Netflix’ Statements

Watch what you want,

when you want

by streaming instantly

over the Internet

right to your TV.

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NETFLIX• Netflix revolutionizes the way people watch TV shows and

movies

• Unlimited Movies and TV Shows Streaming Instantly

• More than 33 million streaming members.

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NETFLIX DECISIONJudge Ponsor denied the motion, stating that it would be

“irrational to conclude” that: “places of public accommodation are

limited to actual physical structures… In a society in which

business is increasingly conducted online, excluding businesses

that sell services through the Internet from the ADA would run

afoul of the purposes of the ADA and would severely frustrate

Congress’s intent that individuals with disabilities fully enjoy the

goods, services, privileges and advantages, available

indiscriminately to other members of the general public.”

Moreover, Judge Ponsor stated that the fact that the ADA

“does not include web-based services as a specific example of a

public accommodation is irrelevant” since such web-based

services did not exist when the ADA was passed in 1990 and

because “the legislative history of the ADA makes clear that

Congress intended the ADA to adapt to changes in technology.”

National Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp. 2nd 196 (D. Mass. 2014)

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Hulu

Vudu

Amazon

Go-Go

Apple iTunes

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Education Institutions and MOOCS

• Like Netflix did for entertainment,

Massive Open On-line Courses

(MOOCS) have revolutionized

education.

• Courses and presentations that were

previously only available to students

attending institutions of higher

education are now available to the

public.17

Harvard and MIT• Recognizing that the leaders of any industry

set the standards for all, the NATIONAL

ASSOCIATION FOR THE DEAF (NAD) approached

Harvard and MIT to set a standard for

captions in their public offerings.

• After negotiations failed, NAD filed cases

under Section 504 (both Harvard and MIT

receive Federal Financial Assistance) and

Title 3 of the ADA (educational institutions).

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The Complaint:This case concerns whether MIT should provide

CLOSED CAPTIONING for thousands of online

videos that it makes available to the public on

the Internet. MIT variously states that its online

content is “open and available to the world”,

“widely available to everyone”, and available

“for anyone with access to the Internet.”

Millions of viewers have watched these videos.

HARVARD & MIT filed motions to dismissThe Court denied the motions to dismiss the

lawsuits, paving the way for litigation to

proceed. Settlement discussions are underway.

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In November 2016 , Judge Mastroianni from the Federal District Court of Massachusetts held:

• Plaintiffs’ theory of discrimination – that the deaf and hard of

hearing lack meaningful access to the aural component of the

audiovisual content [MIT] makes publicly available online – fits

squarely within the parameters of Section 504 as delineated by

the Court. There is nothing novel about premising Section 504

liability on a federal fund recipient’s failure to provide the deaf

and hard of hearing with meaningful access to aural

communications.”

• “…key principles of Federal disability discrimination law: the

obligation to provide an equal opportunity to individuals with

disabilities to participate in, and receive the benefits of, the

educational program, and the obligation to provide

accommodations or modifications when necessary to ensure

equal treatment,” in the context of the use of emerging

technologies.”

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OTHER RECENT CASES• First Web Access Trial: Winn Dixie

• Surviving Motions to Dismiss: Hobby Lobby, Five

Guys Restaurant Chain, Blick Art Materials

• From Blick:

“Today, internet technology enables individuals to

participate actively in their community and engage

in commerce from the comfort and convenience of

their home. It would be a cruel irony to adopt the

interpretation of the ADA espoused by Blick, which

would render the legislation intended to

emancipate the disabled from the bonds of

isolation and segregation obsolete when its

objective is increasingly within reach.”Judge Jack Weinstein in Andrews v. Blick Art Materials.

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OTHER AREAS• Health Care

• Transportation

• Public Benefits

• Public Education

• Financial Institutions

• See, https://www.ada.gov/access-technology/

for other cases and settlements by the

Department of Justice.

• See also,

http://www.peatworks.org/resources/policy/D

OJSettlements/List

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