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Is Your Webinar ADA Compliant?

August 17, 2020

By: Drew Sorrell & Andrew Kelly

As a result of the COVID-19 pandemic, many businesses are relying on webinars as a tool to both stay in touch with clients and continue marketing efforts while practicing social distancing. However, is it possible that your company’s webinar may run afoul of the Americans with Disabilities Act (“ADA”)?

Pursuant to Title III of the ADA, “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”

While the ADA does not specifically list websites, webinars or other electronic intangibles as places of “public accommodation,” federal circuit courts are currently split on whether they should be included within the ADA’s definition of this term. As of the date of this posting, the Third, Fifth, Sixth and Ninth Federal Circuits have held that the term “public accommodation,” as used in the ADA, is limited to physical structures or accommodations, while the First, Second and Seventh Federal Circuits have held that the definition is not so limited.

Although the Eleventh Circuit—which has jurisdiction over Florida, Georgia and Alabama—has so far not taken a side in the Circuit-split, the Eleventh Circuit held in Rendon v. Valleycrest Productions, Ltd., 294 F. 3d 1279 (11th Cir. 2002) that an “intangible barrier” to a place of public accommodation (and the services or products offered therein), may give rise to an actionable discrimination claim under Title III of the ADA. This decision paved the way for website-based Title III discrimination claims in the Eleventh Circuit. Based on this ruling, it is quite possible that a plaintiff could allege sufficient facts to establish that a webinar functioned as an intangible barrier to a place of public accommodation.

At least one federal district court (i.e., a federal court with jurisdiction over a part of a state, in this case Utah) has addressed the issue of a company’s failure to provide auxiliary services to disabled individuals in the context of a webinar. In Jensen v. United First Fin., No. 2:09-CV-00543 DAK, 2009 WL 5066683 (D. Utah 2009), a group of hearing-impaired plaintiffs alleged that the defendant, who provided training webinars for its independently contracted sales representatives at hotels, convention centers and other rented facilities, failed to provide auxiliary services to the hearing impaired in connection with the webinars.

While the Jensen court did not go so far as to rule that the lack of auxiliary services provided to deaf webinar participants constituted a violation of Title III, the court did deny the defendant’s motion to dismiss, stating that “there may…be a nexus between the provisions of the webinars and video training services and the allegedly discriminatory policies and procedures complained of by the plaintiffs.” Therefore, the Jensen court found that “plaintiffs [could] possibly prove at least one set of circumstances in which…relief may be granted.”

Again, depending on where you consider the webinar “to be” (a challenging question itself), proactive measures that may prevent webinar-based ADA litigation include: (i) inquiring as part of the webinar registration process whether the participant will need any ADA related accommodations, (ii) supplying webinar transcripts, (iii) providing subtitles for the webinar, (iv) providing a sign language translator for the webinar, and (iv) reaching out in advance to disabled participants to obtain any questions the individual may wish to pose during a question-and-answer portion of the webinar. Despite these measures, this is still a developing area of the law, and the risk of a potential webinar-based ADA lawsuit is unique to each particular set of circumstances. Webinar hosts are encouraged to contact an attorney with ADA litigation experience to better understand and mitigate the risk of a potential Title III lawsuit.


This article is informational only. You should consult an attorney before acting or failing to act. The law may change rapidly and no warranty is given. LOWNDES DISCLAIMS ALL IMPLIED WARRANTIES AND WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. ALL ARTICLES ARE PROVIDED AS IS AND WITH ALL FAULTS. Consult a Lowndes attorney if you wish to establish an attorney/client relationship.
Drew

Drew Sorrell's practice focuses on complex commercial issues, relating to both litigation and contract/policy drafting.


Drew has years of experience litigating business matters, intellectual property/patent infringement disputes, data breach/privacy issues, wire fraud (spoofing/spear phishing), business torts/disputes, insurance coverage, personal injury and employment litigation. Likewise, he has significant experience drafting and negotiating software licenses (SaaS), Internet service provider agreements, data privacy/breach policies and procedures, employment/services agreements as well as the indemnity and insurance coverage related to those agreements.

Initially, Drew began his legal career as a judicial clerk to Senior United States District Judge John H. Moore II, in Jacksonville, Florida, and then practiced with an AmLaw top 10 firm in Manhattan primarily in their litigation department. After spending some time as an assistant county attorney responsible for litigation, he joined Lowndes and is currently chair of the firm’s multi-discipline Cybersecurity, Privacy & eDiscovery Group.

A founding member of the Sedona Conference Group 11 (Privacy/Data Security), Drew is frequently asked to speak and write on legal and ethical issues arising from technology, including unfair and deceptive trade practices, data breach, privacy, data governance, and technology contract drafting. He is also currently serving as chair of the Orange County Bar Association Intellectual Property Committee.

Drew has argued to the United States Court of Appeal for the Eleventh Circuit, at the federal level, and the Fifth District Court of Appeal at the state level. He is admitted to The United States Supreme Court Bar, as well as the Florida, New York and District of Columbia Bars. He is admitted to practice before all federal district courts in Florida as well as the Southern District of New York.

Born in Florida, Drew roots for his adopted football team—the FSU Seminoles (because neither Rollins nor George Washington has a football team). He is a proud father of two sons who play basketball and soccer, make great grades and generally keep him very busy in his spare time.

Andrew

Andrew is an associate in the firm’s Real Estate Group. In this role, he focuses his legal practice on real estate development, finance and transactions, condominiums, property owners’ associations, commercial leasing, commercial lending and title insurance.


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