From Disability Rights Education and Defense Fund, Arlene Mayerson, Directing Attorney, will share the important lessons she learned from working as the NAD’s lawyer in the groundbreaking accessibility cases against Netflix, Harvard and MIT.

1. VIDEO
ACCESSIBILITY
ARLENE B. MAYERSON, DIRECTING ATTORNEY
DISABILITY RIGHTS EDUCATION AND DEFENSE FUND
(DREDF)
www.DREDF.org
October 17, 2017
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2. 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

3. 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 ).
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4. COMMUNICATION ACCESS
Non-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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5. .
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).
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6. .
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7. ENUMERATED PUBLIC
ACCOMMODATIONS 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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8. (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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9. 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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10. 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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11. 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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12. Netflix’ Statements
Watch what you want,
when you want
by streaming instantly
over the Internet
right to your TV.
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13. 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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15. NETFLIX DECISION
Judge 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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16.  Hulu
 Vudu
 Amazon
 Go-Go
 Apple iTunes
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17. 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.
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18. 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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19. 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 dismiss
The Court denied the motions to dismiss the
lawsuits, paving the way for litigation to
proceed. Settlement discussions are underway.
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20. 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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21. 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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22. 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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