Private entities with automated scheduling or customer service systems should assure that disabled callers can navigate such systems, or risk violating the Americans with Disabilities Act ("ADA"). Title III of the ADA covers private entities providing goods and services to the public and it classifies such entities as "public accommodations." Disparate treatment of the disabled arising from a public accommodation's scheduling system runs afoul of Title III and may result in serious financial penalties and adverse public relations.

According to rules recently promulgated by the U.S. Department of Justice ("DOJ"), 28 C.F.R. § 36.303, when a public accommodation uses an automated-attendant system for receiving and directing incoming telephone calls, that system must provide effective real-time communication with individuals using auxiliary aids and services, including text telephones ("TTYs") and all forms of Federal Communications Commission-approved telecommunications relay systems, such as Internet-based relay systems. The Disability Rights Section of the DOJ recently stepped up enforcement of this and other pertinent regulations, reaching settlement agreements with companies whose telephonic scheduling systems allegedly led to difficulties for individuals with disabilities.

In a recent settlement agreement between the DOJ and one company, the DOJ pursued the position that the company's alleged refusal to communicate through relay services constituted discrimination against those with hearing impairments. This and other claims were resolved in a multimillion dollar lawsuit. The DOJ also reached a settlement agreement with Megabus USA, LLC, and Megabus Northeast, LLC (collectively "Megabus"). Megabus customers with mobility impairments allegedly could not view the bus schedules for wheelchair-accessible buses online; rather, they were forced to use the telephonic reservation system to obtain the schedules and consequently incurred a nominal reservation fee not imposed on online customers. The agreement required Megabus to publish on its website the schedules of wheelchair-accessible buses so that patrons using wheelchairs would not incur the fee that non-disabled patrons could avoid.

The DOJ's examination of Megabus, and both its online and telephonic appointment-scheduling systems, points to an important issue: the automated-attendant system regulations take the position that public accommodations must make all scheduling and customer service systems accessible. The DOJ's position now appears to be that, if a business offers its clientele the opportunity to schedule appointments or access customer service via the Internet and telephone, the business must ensure that both systems are accessible for customers with disabilities. Failing to comply with this requirement may prove both costly and publicly embarrassing.

Business websites raise a related issue. Today, of course, companies spanning the gamut of activities make web-based marketing a major focus of activity. In fact, many businesses advertise that first access to goods and services, or the best deals, are only available via the business's website. Businesses that do so should assess the accessibility of their websites. The DOJ has published an Advance Notice of Proposed Rule Making regarding Accessibility of Web Information and Services (75 Fed. Reg. 43460). Private litigants, including advocacy groups for individuals with sight impairments, have already challenged many businesses' website operations, relying on Title III of the ADA. There are thus likely future challenges from the DOJ and private litigants over businesses' technological systems for various kinds of customer contact. This is a rapidly evolving area and covered entities with public accommodation obligations should review their customer service and scheduling systems and websites to assess accessibility for individuals with sight or hearing impairments. We are providing guidance to health care, hospitality, and financial service clients, among others, on these emerging issues.