Brick-and-Mortar Businesses Without Accessibility Features on Websites Will Continue to Get Sued

A recent Federal Case highlights why businesses with physical locations must make sure that their websites are accessible to people with disabilities (e.g., screen readers).

Jose Mejia, who is legally blind, sued High Brew Coffee after their website prevented him from using his screen-reading software, making it impossible for him to complete his purchase. He claimed this was disability discrimination under Title III of the Americans with Disabilities Act (“ADA” or “Title III”), which prohibits discrimination on the basis of disability in places of public accommodation. (42 U.S.C. § 12182(a)).

Mejia claimed that accessibility issues with High Brew’s website constitute disability discrimination under Title III, as they prevented him from shopping as a sighted customer would. High Brew argued that because its website wasn’t tied to a physical location, it didn’t count. The Court sided with High Brew, ruling that websites without a physical counterpart aren’t subject to Title III in New York.

The opinion is a reminder that businesses with both websites and physical locations are still exposed to a discrimination case. This means that if your company operates a website tied to a physical store, you may face legal repercussions if it does not comply with accessibility standards. It's important to note that, while not available under Title III, emotional distress damages - that’s fancy lawyer talk for potential big bucks - are recoverable under the New York State Human Rights Law, Executive Law § 296(2)(a), and New York City Human Rights Law, New York City, N.Y., Code § 8-107(4) in these cases.

And for anyone like Mejia who has run into accessibility barriers on a website connected to a physical location, it’s worth contacting an attorney. You may have a case under the ADA & New York laws that protect against disability discrimination.

National Disability Employment Awareness Month - Are Your Accommodation Rights Being Violated?

On September 30, 2024, President Biden officially proclaimed October as National Disability Employment Awareness Month while promoting inclusive workplaces. 

This year's focus is advancing access and inclusion which aligns with the core principles of the Americans with Disabilities Act. The ADA eliminated the barriers individuals with disabilities faces, including employment. The ADA requires employers to provide reasonable accommodations and ensure that job opportunities are accessible to those with disabilities. This allows the over 61 million Americans living with a disability the opportunity to be included, participate, and be respected in the workforce.  

Remember, employers don't have a choice; if an accommodation is wrongfully denied, the employee can sue for back pay, front pay, emotional distress damages, punitive damages and attorneys' fees. 

If you'd like to read President Biden's proclamation, click here. 

National Guard Leave & Employment Protection in NYS Signed into Law

Effective on 9/27/2024, a new NYS law, A3710, extends employment protections to all active duty members of the national guard.

The law's justification explains the need for the law, as follows: "The Uniformed Services Employment and Reemployment Rights Act does not apply when a National Guard member is called up by the governor to serve state active duty to respond to state emergencies such as fires, hurricanes, tornadoes, and floods."

Under the law, service members are guaranteed re-employment in the same position or a position of similar prestige and pay, unless it is impossible or unreasonable for the employer to offer this.

Active duty national guard members called into service by NYS or another state must apply for re-employment within 90 days after being relieved from such service.

The law provides for compensation of lost wages and benefits if an employer breaches the law.

EEOC's Disabled Federal Employee Retention Report - Discrimination Issues Lower Job Retention

The Equal Employment Opportunity Commission (EEOC) released a Retention of Disabled Employee Report with recommendations for federal agencies to improve retention of disabled employees in federal public sector jobs.

The Report is based on 3 years of data & recommends that Fed Agencies should have: 

1. Disability accommodation procedures that comply with federal law;
2. Compliance procedures for processing personal assistance services requests; & 
3. Systems for processing such requests & publicizing them to employees & applicants on their website.

Importantly, the Report highlights the need for reasonable accommodations to not be denied for costs & if denied, the employee should be notified of the reason for the denial & their rights. 

In contrast, the Report found that Fed Agencies that focused on personal assistance services and reasonable accommodations had better employee retention.

New Deed Type - Major Real Estate / Estate Planning Law - Real Property Law 424

As of July 19, 2024, there is now a new deed type in New York State and it is already impacting homeownership and estate planning.

Simply, this new "Transfer on Death Deed Law," eliminates the need for probating real estate, is much less expensive than a trust, and is revocable, unlike a life estate with a remainder interest. In fact, all it takes is a recorded deed form, that was signed before two witnesses, and notarized. The form can be found here.

By executing a Transfer on Death Deed, property owners, including individual and joint owners of real property as well as corporations, can now initiate the automatic transfer of real property upon their death without needing to execute a will, trust, or life estate deed.

Per the statue, a Transfer on Death Deed must include:

(front of form)
REVOCABLE TRANSFER ON DEATH DEED
NOTICE TO OWNER
You should carefully read all information on the other side of this
form. You may want to consult a lawyer before using this form.
This form must be recorded before your death, or it will not be
effective.
IDENTIFYING INFORMATION
Owner or Owners Making This Deed:
____________________________________________________
Printed name Mailing address
____________________________________________________
Printed name Mailing address
Legal description of the property:
____________________________________________________
PRIMARY BENEFICIARY
I designate the following beneficiary if the beneficiary survives me.
____________________________________________________
Printed name Mailing address, if available
ALTERNATE BENEFICIARY - Optional
If my primary beneficiary does not survive me, I designate the following
alternate beneficiary if that beneficiary survives me.
____________________________________________________
Printed name Mailing address, if available
TRANSFER ON DEATH
At my death, I transfer my interest in the described property to the
beneficiaries as designated above. Before my death, I have the right to
revoke this deed.
SIGNATURE OF OWNER OR OWNERS MAKING THIS DEED
____________________________________________________
Signature Date
____________________________________________________
Signature Date
SIGNATURE OF WITNESSES
____________________________________________________
Signature Date
____________________________________________________
Signature Date
____________________________________________________
NOTARY ACKNOWLEDGMENT
(insert notary acknowledgment for deed here)
(back of form)
COMMON QUESTIONS ABOUT THE USE OF THIS FORM
What does the Transfer on Death (TOD) deed do?
When you die, this deed transfers the described property, subject to any
liens or mortgages (or other encumbrances) on the property at your
death. Probate is not required. The TOD deed has no effect until you
die. You can revoke it at any time. You are also free to transfer the
property to someone else during your lifetime. If you do not own any
interest in the property when you die, this deed will have no effect.
How do I make a TOD deed?
Complete this form. Have it acknowledged before a notary public. Record
the form in each county where any part of the property is located. The
form has no effect unless it is acknowledged and recorded before your
death.
Is the "legal description" of the property necessary?
Yes.
How do I find the "legal description" of the property?
This information may be on the deed you received when you became an
owner of the property. This information may also be available in the
county clerk's office of the county where the property is located. If
you are not absolutely sure, consult a lawyer.
Can I change my mind before I record the TOD deed?
Yes. If you have not yet recorded the deed and want to change your mind,
simply tear up or otherwise destroy the deed.
How do I "record" the TOD deed?
Take the completed and acknowledged form to the county clerk's office of
the county where the property is located. Follow the instructions given
by the county clerk to make the form part of the official property
records. If the property is in more than one county, you should record
the deed in each county.
Can I later revoke the TOD deed if I change my mind?
Yes. You can revoke the TOD deed. No one, including the beneficiaries,
can prevent you from revoking the deed.
How do I revoke the TOD deed after it is recorded?
There are three ways to revoke a recorded TOD deed:
(1) Complete and acknowledge a revocation form and record it in each
county where the property is located.
(2) Complete and acknowledge a new TOD deed that disposes of the same
property and record it in each county where the property is located.
(3) Transfer the property to someone else during your lifetime by a
recorded deed that expressly revokes the TOD deed. You may not revoke
the TOD deed by will.
I am being pressured to complete this form. What should I do?
Do not complete this form under pressure. Seek help from a trusted
family member, friend, or lawyer.
Do I need to tell the beneficiaries about the TOD deed?
No, but it is recommended. Secrecy can cause later complications and
might make it easier for others to commit fraud.
I have other questions about this form. What should I do?
This form is designed to fit some but not all situations. If you have
other questions, you are encouraged to consult a lawyer.

16. Form of revocation. The following form may be used to create an
instrument of revocation under this section. The other subdivisions of
this section shall govern the effect of this, or any other instrument
used to revoke a transfer on death deed.
(front of form)
REVOCATION OF TRANSFER ON DEATH DEED
NOTICE TO OWNER
This revocation must be recorded before you die, or it will not be
effective. This revocation is effective only as to the interests in the
property of owners who sign this revocation.
IDENTIFYING INFORMATION
Owner or Owners of Property Making This Revocation:
____________________________________________________
Printed name Mailing address
____________________________________________________
Printed name Mailing address
Legal description of the property:
____________________________________________________
REVOCATION
I revoke all my previous transfers of this property by transfer on death
deed.
SIGNATURE OF OWNER OR OWNERS MAKING THIS REVOCATION
____________________________________________________
Signature Date
____________________________________________________
Signature Date
SIGNATURE OF WITNESSES
____________________________________________________
Signature Date
____________________________________________________
Signature Date
NOTARY ACKNOWLEDGMENT
(insert notary acknowledgment here)
(back of form)
COMMON QUESTIONS ABOUT THE USE OF THIS FORM
How do I use this form to revoke a Transfer on Death (TOD) deed?
Complete this form. Have it acknowledged before a notary public. Record
the form in the public records in the county clerk's office of the
county where the property is located. The form must be acknowledged and
recorded before your death, or it has no effect.
How do I find the "legal description" of the property?
This information may be on the TOD deed. It may also be available in the
county clerk's office of the county where the property is located. If
you are not absolutely sure, consult a lawyer.
How do I "record" the form?
Take the completed and acknowledged form to the county clerk's office of
the county where the property is located. Follow the instructions given
by the county clerk to make the form part of the official property
records. If the property is located in more than one county, you should
record the form in each of those counties.
I am being pressured to complete this form. What should I do?
Do not complete this form under pressure. Seek help from a trusted
family member, friend, or lawyer.
I have other questions about this form. What should I do?
This form is designed to fit some but not all situations. If you have

other questions, consult a lawyer.

 

Closing Attorneys Can Get Referrals from Associates who are Brokers

The NYSBA just released Ethics Opinion 1273 which opines that "[a] lawyer may accept real estate clients referred by an associate in the lawyer’s firm who is also a licensed real estate broker, provided the lawyer does not share legal fees or real estate commissions with the broker/associate and the lawyer obtains the client’s informed consent, confirmed in writing."

However, attorneys should remember that Rule 1.0(j) defines "informed consent" to "denote[] the agreement by a person to a proposed course of conduct after the lawyer has communicated information adequate for the person to make an informed decision, and after the lawyer has adequately explained to the person the material risks of the proposed course of conduct and reasonably available alternatives."

Consequently, simply alerting the client of the situation is not enough. There must be "adequate" explanation of the risks and other options - which theoretically includes hiring an attorney from another firm.

While this opinion will likely be well received by brokers and transactional attorneys alike, it's still filled with a litany of problems because any scorned client is going to claim that they did not receive an adequate explanation to make an informed choice. It's also important to note that the opinion is about the associate referring her client's to the attorney, but what about referring the other side of the deal? That's not addressed by the opinion and it's theorized that would be non-waivable because of the concurrent conflict of interest, but who knows.