By now, most are well aware that federal anti-discrimination law includes the Americans with Disabilities Act (ADA),1 as well as the Americans with Disabilities Act Amendments Act of 2008 (ADAAA),2 which offer substantial protections for those with qualifying disabilities in areas including public accommodation, commercial facilities, telecommunications, and employment.3 “As a result of . . . bipartisan efforts, on July 26, 1990, President George H.W. Bush signed the [ADA] into law. Upon doing so, [he] remarked that the [ADA] ‘represents the full flowering of our democratic principles’ and ‘promises to open up all aspects of American life to individuals with disabilities.'”4 The ADA is enforced by the U.S. Equal Employment Opportunity Commission (EEOC), although the Department of Justice and the U.S. Attorney General are responsible for creating and publishing rules and regulations concerning Title II (State and Local Governments) and Title III (Public Accommodations and Commercial Facilities).5 Some states, such as New York, have similar protections for those with qualifying disabilities.6 In New York, the Division of Human Rights has responsibilities very similar to the EEOC.7
The topic of numerous articles and cases in recent years has been the expansion of protections to include the accessibility of web pages and internet resources when it comes to those with qualifying disabilities under the ADA or relevant state laws8 – an area complicated by the fact that there is currently no uniform guidance, and no specific rules for websites promulgated by the Department of Justice.9 This article collects cases and commentaries, with a particular eye toward informing attorneys, managing partners and law firm administrators/marketing directors. The question explored: If your law firm utilizes a website, but that website is not accessible to those with a certain disability – for instance, it is not enhanced and accessible to the hearing impaired (if there is an audio component) or the visually impaired (lacking a screen-reader function) – is the firm, through its website, in violation of the ADA or New York State law, and potentially subject to litigation and liability10 Title III of the ADA applies to commercial and private websites, particularly if they affect interstate commerce.11
THE RELEVANT GUIDANCE -A DIVIDE IN NEED OF A BRIDGE
According to A Guide to Disability Rights Laws, published by the U.S. Department of Justice, Civil Rights Division, Disability Rights Section, in July 2009:
To be protected by the ADA, one must have a disability or have a relationship or association with an individual with a disability. An individual with a disability is defined by the ADA as a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment. The ADA does not specifically name all of the impairments that are covered.
Title III covers businesses and nonprofit service providers that are public accommodations, privately operated entities offering certain types of courses and examinations, privately operated transportation, and commercial facilities. Public accommodations are private entities who own, lease, lease to, or operate facilities such as restaurants, retail stores, . . . [professional] offices, . . . and recreation facilities including sports stadiums and fitness clubs. Transportation services provided by private entities are also covered by title III.
Public accommodations must comply with basic nondiscrimination requirements that prohibit exclusion, segregation, and unequal treatment. They also must comply with specific requirements related to architectural standards for new and altered buildings; reasonable modifications to policies, practices, and procedures; effective communication with people with hearing, vision, or speech disabilities; and other access requirements.12
Given recent caselaw, it appears that two general categories may be carved out at the beginning of the analysis: (a) one having a business/service that is operated solely online via website/internet, or (b) a website business/service that has some “nexus” to a brick-and-mortar location. This distinction exists because of a very real, and troublesome, Circuit split.13 In Haynes v. Hooters of Am., LLC, the plaintiff, a blind business patron, attempted to utilize the website of the restaurant operator utilizing screen reader software. However, the website was not compatible with the software plaintiff used. Plaintiff thereafter brought suit, alleging violations of Title III of the ADA14.Defendant argued that another lawsuit had already been filed against it on nearly identical grounds, and that it was already updating its website to bring it into legal compliance. Because of that, the U.S. district court dismissed plaintiff Haynes’ suit. On appeal, the 11th Circuit vacated and remanded. Not only did the court hold that Haynes was not a party to the prior suit, and therefore could not monitor or enforce the agreement for updating of the website, there was nothing in the record showing that Hooters had updated its website. Therefore, the issues were still “live.”15 Furthermore, the 11th Circuit held that “Haynes requested in his complaint that the district court direct Hooters to continually update and maintain its website to ensure that it remains fully accessible. Accordingly, even if Hooters’ website becomes ADA compliant, Haynes seeks injunctive relief requiring Hooters to maintain the website in a compliant condition. Thus, . . . there is still a live controversy about whether Haynes can receive an injunction to force Hooters to make its website ADA compliant or to maintain it as such.”16 In Haynes, the business in question had brick-and-mortar locations, supplemented by the website at issue, and plaintiff’s action challenging the lack of ADA compliance by that website presented “live” questions in the opinion of the 11th Circuit.
However, in Morgan v. Joint Admin. Bd., Ret. Plan of the Pillsbury Co., the lawsuit was filed under the ADA by retired disabled persons challenging a retirement plan negotiated to include differing benefits depending upon whether one retired “early” at age 55, at the “normal” retirement age of 65, or “early” due to disability. Among the holdings of the 7th Circuit Court of Appeals, for purposes of this article, was the following:
The plaintiffs have, however, another string to their bow. They appeal to the public accommodations provisions of the Act (Title III), which forbid discriminating against disabled persons with respect to access to places of public accommodation . . . . The defendant asks us to interpret “public accommodation” literally, as denoting a physical site, such as a store or a hotel, but we have already rejected that interpretation. An insurance company can no more refuse to sell a policy to a disabled person over the Internet than a furniture store can refuse to sell furniture to a disabled person who enters the store . . . . The site of the sale is irrelevant to Congress’s goal of granting the disabled equal access to sellers of goods and services. What matters is that the good or service be offered to the public.17
The 7th Circuit had previously held, in Doe v. Mutual of Omaha, that:
The core meaning of [Title III, section 302(a)], plainly enough, is that the owner or operator of a store, hotel, restaurant, dentist’s office, travel agency, theater, Web site, or other facility (whether in physical space or in electronic space) . . . that is open to the public cannot exclude disabled persons from entering the facility and, once in, from using the facility in the same way that the nondisabled do.18
Similarly, in the U.S. District Court for the District of New Hampshire (in an unpublished opinion), the court denied a defendant’s motion to dismiss a challenge to its website wherein defendant argued it lacked a “nexus with a physical ‘brick-and-mortar’ location” and therefore did “not constitute a ‘public accommodation.'”19 However, the same court acknowledged the deepening Circuit split, between those decisions in the First and Seventh Circuits on the one hand, and those in the Third, Fifth, Sixth and Ninth Circuits on the other,20 wherein “the majority of Courts of Appeals that have addressed this issue require a ‘public accommodation’ to be an actual, physical space or have a nexus to an actual, physical space, such that stand-alone websites may not be considered ‘public accommodations.'”21 It is important to note, though, that even those courts requiring the establishment of a “nexus” do thereafter hold that websites having such nexus must be compliant with Title III of the ADA, for use by persons with and without disabilities alike.22
In New York State, while there appears to be little case law directly on point, the cases that exist line up with the holdings of the federal courts in the First, Second and Seventh Circuits.23 First, New York courts have held that provisions of the New York State Human Rights Law “must be liberally construed to accomplish the purposes of the statute”; and indeed the provisions of both the State and New York City laws are “construed ‘broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.'”24 Furthermore, as recently as August 2017, it was stated that “[w]hether a website itself is a ‘place of public accommodation’ or an ‘accommodation, advantage, facility or privilege’ of a retail store appear[ed] to be an issue of first impression under the NYSHRL.”25 The Andrews court made clear, though, that “[o]ver time, the New York State Legislature has ‘repeatedly amended the statute to expand its scope,’ specifying that the list of places of public accommodation ‘is illustrative, not specific.’ . . . ‘This history provides a clear indication that the Legislature used the phrase place of public accommodation in the broad sense of providing conveniences and services to the public and that it intended that the definition of place of accommodation should be interpreted liberally.'”26
The Andrews court, citing to both the U.S. Power Squadrons case in New York, and the case of National Organization for Women, Essex County Chapter v. Little League Baseball, Inc., in New Jersey, held that a place of “public accommodation” need not have a fixed location or real estate, such that in New York, “place” is “a ‘term of convenience, not limitation.'”27 Ultimately, in Andrews, the U.S. District Court for the Eastern District of New York, looking to New York law as construed and interpreted consistent with the ADA, determined that “[t]hrough plaintiff’s assertion that he is unable to use the website due to his disability, he has stated a claim that [defendant] . . . violated the NYSHRL,” and defendant’s motion to dismiss the discrimination claim was denied.28
CONCLUSION – A “COMPLIANT” WEBSITE?
If your law firm – like virtually all 21st Century law firms – utilizes a website as part of your business and marketing activities, what then can we take from the above discussion in this area that has deeply divided courts across the nation? In the opinion of this author, there are two very important points not to be ignored or minimized.
(1) If your firm has a brick-and-mortar physical location, as many if not most do, then the law appears clear across all jurisdictions under the ADA (and those applying New York law) that your website must be fully compliant with Title III of the ADA and the provisions of the New York State Executive Law (Human Rights Law) and Civil Rights Law for unimpeded use by all persons regardless of disability.29 Your website must, for instance, be compatible with screen readers for the visually impaired, or with similar services and products for the hearing impaired, as but one example for compliance.30 Some would argue that the benefits to law firms extend beyond avoidance of liability – “There is a strong business case to be put forward for pursuing web accessibility for your law firm in 2018. The benefits go beyond minimizing litigation risk, to include corporate social responsibility, financial returns, and benefits to the technical aspects of your firm’s digital presence.”31
(2) If your law firm is completely virtual, and has no “nexus” to a physical real estate or brick-and-mortar location, then you should be certain to identify the holdings of the courts (and the provisions of the state/local statutes) in your jurisdiction/Federal Circuit, such that you do not run afoul of the protections of the ADA when it comes to users qualifying for accommodations when accessing your website and web services.
The above is meant to provide food for thought and consideration, at least until some future time when the Supreme Court of the United States might resolve the enduring Circuit split, or the Department of Justice re-starts rule-making under the ADA to specifically address websites. In the meantime, owners of websites may look to the Web Content Accessibility Guidelines (WCAG 2.0) provided by the World Wide Web Consortium (W3C). The WCAG is purely advisory in nature, and provides four Principles of Guidance for law firms, including: “WCAG Principle 3: Understandable: The information and operation of the website’s user interface must be understandable. This means that the content on your site should appear in a predictable and standard way that is intuitive for readers, and readable and understandable for assistive devices.”32 Employing all of the WCAG Principles may simply not be cost effective for solo, small and medium size firms, but again the Principles are not mandatory – and, indeed, courts have held that the WCAG 2.0 can be utilized as an equitable remedy for non-compliance, but not as a basis for initial liability in the case of an alleged ADA violation; it is guidance in the absence of DOJ rule-making.33 One may also look to the supplementary WCAG 2.1 (June 5, 2008) for further guidance (WCAG 2.1 augments, but does not replace or supersede, WCAG 2.0).34 While advisory, the WCAG are considered by some to be the “gold standard,”35 and perhaps may be thought of in a similar fashion to the Sedona Conference principles and best practice guidelines issued prior to the Federal Rules of Civil Procedure and Federal Rules of Evidence amendments that specifically addressed eDiscovery and electronically stored information.36
In closing, keep one final issue in mind: Acting contrary to (1) or (2) supra, or the guidance of WCAG – resulting in discriminatory impact on some Internet users – might not only result in violations of law and concomitant civil liability, but also in violations of ethical rules possibly resulting in professional discipline in those jurisdictions having adopted the specific language of ABA Model Rule 8.4(g).37 Be forewarned, be cautious, and beware.
- 104 Stat. 327 – Americans with Disabilities Act of 1990; Pub. Law 101-336 (101st Congress), see https://www.govinfo.gov/content/pkg/STATUTE-104/pdf/STATUTE-104-Pg327.pdf; see https://www.govinfo.gov/app/details/STATUTE-104/STATUTE-104-Pg327/context/; see 42 U.S.C. §§ 12101, et seq.↵
- 122 STAT. 3553; Pub. Law 110-325 (110th Congress), see https://www.govinfo.gov/content/pkg/PLAW-110publ325/pdf/PLAW-110publ325.pdf. Of note, President George H.W. Bush signed the original ADA. into law in 1990 (https://www.eeoc.gov/eeoc/history/35th/milestones/1990.html), and his son, President George W. Bush signed the ADAAA into law in 2008 (https://adata.org/ada-timeline/ada-amendments-act-adaaa-signed).↵
- “Nearly 1-in-5 people have a disability.” L. Foley & C. McNamara, Why Law Firms Should Make Web Accessibility a Priority in 2018, The Nat’l Law Rev. (June 4, 2018) (online), https://www.natlawreview.com/article/why-law-firms-should-make-web-accessibility-priority-2018 (citing U.S. Census Bureau Report (2016)). In contrast, it is reported that one-half of 1% of law firm partners and associates have disabilities. J. Tashea, For Law Firms on the Web, Online Accessibility for the Disabled Is Good Business, ABA Journal (May 21, 2019, online). This is offered as one potential reason for why the issue of law firm website accessibility is usually not a top-of-the-agenda issue in the legal profession. Id.↵
- See https://www.ada.gov/2010_regs.htm.↵
- See New York State Human Rights Law (Executive Law), §§ 290, et seq.↵
- See https://dhr.ny.gov/law#HRL293.↵
- For 2018, it was reported that 1,471 lawsuits were filed in the federal courts of just New York State claiming that websites violated provisions of the ADA. That was out of 2,285 total lawsuits challenging the ADA compliance of websites in just seven states that year – California, Florida, Georgia, Massachusetts, New York, Pennsylvania, and Texas. As a comparison, in those same states in 2017, only 814 cases were filed alleging ADA violations by websites. See J. Grant, ADA Website Accessibility Suits Flood NY Federal Courts, Report Says, N.Y.L.J. at 1 (Jan. 18, 2019).↵
- See M. Stark, Navigating the Murky Waters of ADA Compliance in the Internet Age, N.Y. L.J. at 4 (May 22, 2019) (with reference to 42 U.S.C. § 12181(7); 28 C.F.R. § 36.104). See also 28 C.F.R. § 36.302.↵
- “To state a claim under Title III, [plaintiff] must allege (1) that she is disabled within the meaning of the ADA; (2) that defendants own, lease, or operate a place of public accommodation; and (3) that defendants discriminated against her by denying her a full and equal opportunity to enjoy the services defendants provide.” Camarillo v. Carrols Corp., 518 F.3d 153, 156 (2d Cir. 2008) (citing, inter alia, 42 U.S.C. § 12182(a); Molski v. M. J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007); Powell v. Nat’l Bd. of Med. Exam’rs, 364 F.3d 79, 85 (2d Cir. 2004)); see also Juscinska v. Paper Factory Hotel, LLC, 2019 WL 2343306 at *3 (S.D.N.Y. June 3, 2019).↵
- See Del-Orden v. Bonobos, Inc., 2017 WL 6547902 at *7–*10 (S.D.N.Y. Dec. 20, 2017).↵
- U.S. Dep’t of Justice, A Guide to Disability Rights Laws (July 2009), https://www.ada.gov/cguide.htm#anchor62335 (emphasis added) (although not specifically enumerating websites).↵
- See, inter alia, Haynes v. Hooters of Am., LLC, 893 F.3d 781 (11th Cir. 2018). Cf. Morgan v. Joint Admin. Bd., Ret. Plan of the Pillsbury Co., 268 F.3d 456 (7th Cir. 2001).↵
- See 42 U.S.C. §§ 12181, et seq.; Haynes, 893 F.3d at 783.↵
- Haynes, 893 F.3d at at 784.↵
- Morgan, 268 F.3d at 459 (citing, inter alia, 42 U.S.C. § 12182(a); Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 558–59 (7th Cir. 1999); Carparts Distr. Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, Inc. 37 F.3d 12, 19 (1st Cir. 1994)).↵
- Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557 (7th Cir. 1999) (citing Carparts) (emphasis added). See also Nat’l Fed. of the Blind v. Scribd Inc., 97 F. Supp. 3d 565 (D. Vt. 2015); Nat’l Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196 (D. Mass. 2012).↵
- Access Now, Inc. v. Blue Apron, LLC, 2017 WL 5186354 (D.N.H. Nov. 8, 2017) (unpublished) (citing Carparts and Morgan).↵
- Although the Blue Apron court did not specifically include the Second and Eleventh Circuits in the breakdown, we know that the courts in the Second Circuit have aligned with the First and Seventh, while the courts in the Eleventh Circuit have aligned with the Third, Fifth, Sixth and Ninth. See J. Tashea, supra, ABA Journal. Furthermore, the American Bar Association House of Delegates (of which this author is a former member) passed Resolution 116C at the 2018 Annual Meeting – aligning itself with the First, Second and Seventh Circuits, and “urg[ing] all courts and other appropriate government entities to interpret Titles II and III of the Americans with Disabilities Act (ADA) to apply to technology, and goods and services delivered thereby, regardless of whether the technology exists solely in virtual space or has a nexus to a physical space, subject to all statutory requirements, limitations, exceptions, exemptions, and defenses . . . .” See L. Rawles, House Resolutions Decry Over-Discipline in Schools, Urge Tech Access for Those with Disabilities, ABA Journal (Aug. 7, 2018, online); text of ABA Revised Resolution 116C (2018) (emphasis added), https://www.americanbar.org/content/dam/aba/images/abanews/2018-AM-Resolutions/116c.pdf.↵
- Blue Apron, LLC, 2017 WL 5186354 at *4 (citing, inter alia, Magee v. Coca–Cola Refreshments USA, Inc., 833 F.3d 530, 534 (5th Cir. 2016); Earll v. eBay, Inc., 599 Fed. Appx. 695, 696 (9th Cir. 2015) (“We have previously interpreted the term ‘place of public accommodation’ to require ‘some connection between the good or service complained of and an actual physical place’”); Ford v. Schering–Plough Corp., 145 F.3d 601, 612–14 (3d Cir. 1998) (“rejecting the reasoning in Carparts and holding that ‘public accommodation’ does not refer to non-physical access”); Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1013–14 (6th Cir. 1997)).↵
- See Fuller v. Smoking Anytime Two, LLC, 2018 WL 3387692 (S.D. Fla. July 11, 2018) (“Plaintiff . . . adequately alleged a nexus between Defendant’s website and its physical stores because the website is ‘heavily integrated with’ and ‘operates as a gateway to’ those stores,” such that defendant’s motion to dismiss was denied). See also Gil v. Winn Dixie Stores, Inc., 242 F. Supp. 3d 1315 (S.D. Fla. 2017).↵
- Note that while under New York law damages awarded to successful plaintiffs challenging limitations to website accessibility are reportedly limited (capped at $500), there is no limit on the attorneys’ fees awarded to a prevailing plaintiff. See J. Grant, supra, N.Y.L.J. As anyone involved in litigation is aware, attorneys’ fees alone can embody a substantial sum. There is also the matter of equitable, injunctive relief and concomitant costs.↵
- Cahill v. Rosa, 89 N.Y.2d 14, 20 (1996) (citing, inter alia, N.Y. Exec. Law § 300; U.S. Power Squadrons v. State Human Rts. Appeal Bd., 59 N.Y.2d 401 (1983)); Williams v. N.Y.C. Trans. Auth., 171 A.D.3d 990, 992, 97 N.Y.S.3d 692, 695 (2d Dep’t 2019); see also Mohammed v. Great Atlantic & Pacific Tea Co., Inc., 44 Misc. 3d 396, 398, 986 N.Y.S.2d 796, 798 (Sup. Ct. N.Y. Co. 2014) (looking to N.Y. Exec. Law §§ 291, et seq., and N.Y.C. Admin. Code §§ 8-107, et seq.). See also N.Y. Civil Rights Law § 40-c. Federal cases have likewise held that “[i]n general, the ADA must be broadly construed as it was designed to ‘provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.’” Juscinska, 2019 WL 2343306 at *2 (citing Noel v. N.Y.C. Taxi & Limousine Comm’n, 687 F.3d 63, 68 (2d Cir. 2012)).↵
- Andrews v. Blick Art Materials, LLC, 268 F. Supp. 3d 381 (E.D.N.Y. 2017).↵
- Id. (citing Cahill).↵
- Id. at 399–400 (citing U.S. Power Squadrons, 452 N.E.2d at 1203; Nat’l Org. for Women, Essex Cty. Ch. v. Little League Baseball, Inc., 127 N.J. Super. 522, 318 A.2d 33, 37 (N.J. App. Div. 1974)).↵
- Id. at 400. Cf. Price v. City of Ocala, Fla., 375 F. Supp. 3d 1264, 1269, 2019 WL 1811418 at *3 (M.D. Fla. Apr. 22, 2019).↵
- In the very recent Juscinska case, a plaintiff with cerebral palsy brought suit against a hotel owner/operator alleging violations of Title III of the ADA, as well as the N.Y.S. and N.Y.C. Human Rights Laws, alleging that the hotel’s website did not provide room accessibility information for disabled guests, but provided full online service to the non-disabled. The Court, in denying defendant’s motion to dismiss, noted: Here, as alleged in the Complaint, Plaintiff was not able to browse Defendant’s website and make a reservation with the same efficiency, immediacy, and convenience as those who do not need accessible guest rooms . . . . Plaintiff was unable to discern the accessible features of rooms that would meet her needs . . . . Defendant’s website did not provide Plaintiff with the opportunity to evaluate the suitability of common areas and the amenities Defendant provides to its guests . . . . Taking the facts in the Complaint as true, it is plausible that, at the time Plaintiff visited Defendant’s website, it was not compliant with the ADA as interpreted by the DOJ. Juscinska, 2019 WL 2343306 at *3. Furthermore, the Court disagreed with defendant that the hotel’s 24/7 telephone line, to which prospective guests could pose questions, was an acceptable auxiliary aid and service that would moot plaintiff’s claims. Id. at *4 (“at this stage, the mere availability of a phone service does not mean that Plaintiff has or is treated the same as other individuals. The ability and ease in which someone can research and reserve a room in a hotel is a service. In her Complaint, Plaintiff sufficiently alleges that she was denied that service based on her disability”). But cf. Price v. Escalante – Black Diamond Golf Club LLC, 2019 WL 1905865 at *7-*8 (M.D. Fla. Apr. 29, 2019): [A]t least this much appears clear: websites themselves are not “places of public accommodation,” and a plaintiff must allege a nexus between a website and a “place of public accommodation.” . . . So the Court rejects without further discussion Price’s argument that Black Diamond’s website is a place of public accommodation . . . . Instead, the crux of this issue is whether Price alleged that the inaccessible portions of the website “hinders the full use and enjoyment” of Black Diamond’s facilities . . . . The answer to that question is no . . . . Price has not alleged how the inability to access the July 2017 newsletter in December 2018 hinders Price’s full use and enjoyment of Black Diamond’s facilities. Absent such allegations, the Court concludes that Price failed to state a claim.) (citations omitted).↵
- There are opinions by commentators concerning how a firm might make its website compliant with the law. Some argue that there is no such thing as “ADA compliant law firm websites” because there is currently no rule or regulation under the ADA specifically speaking to ADA compliance by websites. D. Jaffe, Law Firm Website Accessibility and ADA Compliance, LawLytics, https://www.lawlytics.com/blog/ada-compliance/ (Jan. 26, 2019). While that is technically true, the author of this article would at least caution readers that compliance with caselaw/common law requirements set forth in particular jurisdictions for website accessibility under state and federal law is mandatory, and failure to comply in those jurisdictions may well result in liability. Even so, it is not an insurmountable obstacle for a website to become compliant in most circumstances, and many times an easy fix may be employed – particularly because if the website is compliant with the relevant jurisdiction’s caselaw guidance and the text of the ADA statute, the website owner/operator has flexibility in the specific measures taken. Id. (citing Sept. 25, 2018 letter from U.S. Dep’t of Justice to Members of Congress).↵
- L. Foley & C. McNamara, supra, The Nat’l Law Rev. (June 4, 2018).↵
- D. Jaffe, supra, LawLytics (the article also provides guidance on 22 points of interest with which all attorneys should be familiar concerning website accessibility).↵
- See id.; Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 904–08 (9th Cir. 2019). See also L. Foley & C. McNamara, supra, The Nat’l Law Rev. (June 4, 2018).↵
- See https://www.w3.org/TR/WCAG21/; M. Stark, supra, N.Y.L.J.↵
- See J. Tashea, supra, ABA Journal.↵
- See American Bar Association Model Rule of Prof’l Conduct 8.4(g) (“It is professional misconduct for a lawyer to: . . . . (g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.”) (emphasis added); N.Y. Rule of Prof’l Conduct 8.4(g), (h) (although N.Y.’s Rule 8.4(g) appears to have slightly altered the wording from the ABA Rule to specifically address discrimination in the practice of law and employment contexts, N.Y. Rule 8.4(h) speaks to an attorney engaging “in any other conduct that adversely reflects on the lawyer’s fitness as a lawyer.” Clear violation of the ADA or N.Y.S./N.Y.C. Human Rights Law by an attorney discriminating against users of a firm’s website may fall dangerously close to that line – if not over it).↵