CITY OF MIAMI SUED FOR ADA VIOLATIONS

J. Courtney Cunningham PLLC has commenced litigation against the City of Miami under the ADA and the Rehabilitation Act for failure to provide auxiliary aids and services to a deaf resident of the Miami. The Plaintiff wanted to be able to understand the video content on the City of Miami website which he could see but not hear. He asked Miami to provide closed captions for the videos and it never responded to his request except to say that they might provide closed captions, "in the future" if money was committed in the City of Miami's budget. We sued to correct this clear violation of the ADA and Rehabilitation Act. Look for future updates in this blog.

EXHAUSTION OF REMEDIES UNDER CVAA?

A Southern District judge has ruled that a deaf person who requested closed captions for a school district's website videos, must exhaust administrative remedies under the Twenty First Century Communications and Video Accessibility Act (CVAA). I represent the plaintiff. I want to thank William Goren, Esq. for writing about the case in his blog, Understanding the ADA. Click here to read his blog post on the case.

WHAT ABOUT THE CVAA?

The 21st Century Communications and Video Accessibility Act (CVAA) was passed in 2010 and its regulations went into effect in 2012. A portion of the law deals with closed captioning on videos shown on the internet. There seems to be some confusion over exactly type of video the CVAA covers. The CVAA is not intended to cover every video shown on the internet. It is intended to cover video content that was previously shown on television with closed captions. Federal courts have correctly ruled on the limits of the CVAA. In a major case dealing with video content and closed captioning, a Massachusetts federal court found that the CVAA covers video content that was (1) previously shown on television; (2) with closed captions; (3) after the CVAA regulations were finalized on January 13, 2012. National Association of the Deaf v. Netflix, Inc., 869 F.Supp.2d 196, 208 (Dist. Ct. of Ma. 2012).

INACCESSIBLE COLLEGE ONLINE COURSES

More and more college courses are available online. Sometimes, that might be the only way to take the course. If a person with hearing disabilities encounters inaccessible courses and/or video, they must request accommodations-auxiliary aids and services-under the ADA or the Rehabilitation Act of 1973. If a student has a hearing disability, they should inform the office on campus that is responsible for handling disability issues to seek the services that they might need. Most colleges and universities would know their responsibilities and therefore provide the accommodations. But, sometimes they don't. The U.S. Department of Education and the U.S. Department of Justice have overlapping jurisdiction and both agencies have been involved in helping students get the needed aids and services. Either of those agencies can assist or a private attorney can help. Don't sit on your rights. Get the help you need to succeed.

DOES THE ADA ALLOW PLAINTIFFS TO RECOVER COMPENSATORY DAMAGES?

Yes, it does. Under Title I which covers employment, Plaintiffs can recover damages for wage loss. Under non-employment situations, damages are also recoverable for pain and suffering because of the discriminatory act. However, municipal entities such as cities and counties are not subject to punitive damages-i.e., those damages which are imposed to punish the entity.

YOUR RIGHTS UNDER SECTION 504 OF THE REHABILITATION ACT

The Rehabilitation act of 1973, Section 504, has many of the same protections and guarantees as the ADA. But, the Rehabilitation Act applies to public or private sector entities which are recipients of federal financial assistance. The Rehabilitation Act generally covers companies that do business with the federal government or public sector entities.

WHAT IS DIGITAL DISCRIMINATION?

Digital discrimination happens every day. It happens most often when people with disabilities encounter difficulties interacting or engaging with digital content. Web based or digital content is the text, audio, video, pictures, found on websites or blogs. If a website or app has video content, but it's not accessible to a disabled user, then it's likely that digital discrimination has occurred.

Simple changes can make user experiences better for people with disabilities. For example, if video content is closed captioned, then the deaf or low hearing can understand and use video. If websites are coded properly, then screen readers for the blind or people with low vision can still get access to valuable information on the web. Additional consideration should be paid to proper color contrast for people with color blindness.

YOUR RIGHTS UNDER THE ADA

The Americans with Disabilities Act covers three areas. Title I covers employment discrimination. This can involve all aspects of employment, recruitment and accommodations. Title II covers states and local government, including educational institutions. Actions under Title II can be filed by private plaintiffs or a complaint can be filed with the United States Department of Justice. Title III covers private sector businesses and non-profits.

Title II guarantees that people with disabilities have the same right to participate in services, activities or programs of a public entity in the same fashion as people who are not disabled. This can happen when the person with a disability is provided with a reasonable accommodation which allows them to participate. This requirement applies to activities or programs that occur on the web or at a government facility.

Title III guarantees that people with disabilities have equal access to the goods, services, facilities, privileges, advantages, accommodations of any place of accommodation. A place of accommodation covers most American businesses. Federal courts cases and U.S. Department of Justice consent decrees have found that websites and digital products are places of accommodation.