Case 1:20-cv-09083 Document 1 Filed 10/29/20 Page 1 of 25
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`Plaintiffs,
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`CLASS ACTION COMPLAINT
`AND
`DEMAND FOR JURY TRIAL
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`JOSUE ROMERO, on behalf of himself and
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`all others similarly situated,
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`INTRODUCTION
`Plaintiff JOSUE ROMERO, on behalf of himself and others similarly situated,
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`v.
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`MICROSOFT CORPORATION,
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` Defendant.
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`1.
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`asserts the following claims against Defendant MICROSOFT CORPORATION as
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`follows.
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`2.
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`Plaintiff is a visually-impaired and legally blind person who requires screen-
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`reading software to read website content using his computer. Plaintiff uses the terms
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`“blind” or “visually-impaired” to refer to all people with visual impairments who
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`meet the legal definition of blindness in that they have a visual acuity with
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`correction of less than or equal to 20 x 200. Some blind people who meet this
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`definition have limited vision. Others have no vision.
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`3.
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`Based on a 2010 U.S. Census Bureau report, approximately 8.1 million people in
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`the United States are visually impaired, including 2.0 million who are blind, and
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`according to the American Foundation for the Blind’s 2015 report, approximately
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`400,000 visually impaired persons live in the State of New York.
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`Case 1:20-cv-09083 Document 1 Filed 10/29/20 Page 2 of 25
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`4.
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`Plaintiff brings this civil rights action against Defendant for its failure to design,
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`construct, maintain, and operate its website to be fully accessible to and
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`independently usable by Plaintiff and other blind or visually-impaired people.
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`Defendant’s denial of full and equal access to its website, and therefore denial of
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`its goods and services offered thereby, is a violation of Plaintiff’s rights under the
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`Americans with Disabilities Act (“ADA”).
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`5.
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`Because Defendant’s website, www.xbox.com (the “Website” or “Defendant’s
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`website”), is not equally accessible to blind and visually-impaired consumers, it
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`violates the ADA. Plaintiff seeks a permanent injunction to cause a change in
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`Defendant’s corporate policies, practices, and procedures so that Defendant’s
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`website will become and remain accessible to blind and visually-impaired
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`consumers.
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`JURISDICTION AND VENUE
`This Court has subject-matter jurisdiction over this action under 28 U.S.C. § 1331
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`6.
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`and 42 U.S.C. § 12181, as Plaintiff’s claims arise under Title III of the ADA, 42
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`U.S.C. § 12181, et seq., and 28 U.S.C. § 1332.
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`7.
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`This Court has supplemental jurisdiction under 28 U.S.C. § 1367 over Plaintiff’s
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`New York State Human Rights Law, N.Y. Exec. Law Article 15, (“NYSHRL”) and
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`New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq.,
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`(“NYCHRL”) claims.
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`8.
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`Venue is proper in this district under 28 U.S.C. §1391(b)(1) and (2) because
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`Defendant conducts and continues to conduct a substantial and significant amount
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`of business in this District, and a substantial portion of the conduct complained of
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`Case 1:20-cv-09083 Document 1 Filed 10/29/20 Page 3 of 25
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`herein occurred in this District because Plaintiff attempted to utilize, on a number
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`of occasions, the subject Website within this Judicial District.
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`9.
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`Defendant is subject to personal jurisdiction in this District. Defendant has been
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`and is committing the acts or omissions alleged herein in the Southern District of
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`New York that caused injury, and violated rights the ADA prescribes to Plaintiff
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`and to other blind and other visually impaired-consumers. A substantial part of the
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`acts and omissions giving rise to Plaintiff’s claims occurred in this District: on
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`several separate occasions, Plaintiff has been denied the full use and enjoyment of
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`the facilities, goods and services offered to the general public, on Defendant’s
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`Website in New York County. These access barriers that Plaintiff encountered have
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`caused a denial of Plaintiff’s full and equal access multiple times in the past, and
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`now deter Plaintiff on a regular basis from accessing the Defendant’s Website in
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`the future.
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`10.
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`This Court is empowered to issue a declaratory judgment under 28 U.S.C. §§ 2201
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`and 2202.
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`THE PARTIES
`Plaintiff JOSUE ROMERO, at all relevant times, is a resident of Brooklyn, New
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`11.
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`York. Plaintiff is a blind, visually-impaired handicapped person and a member of
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`member of a protected class of individuals under the ADA, under 42 U.S.C. §
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`12102(1)-(2), and the regulations implementing the ADA set forth at 28 CFR §§
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`36.101 et seq., the NYSHRL and NYCHRL.
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`12.
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`Defendant is and was at all relevant times a Washington Corporation doing business
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`in New York.
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`13.
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`Defendant’s Website, and its facilities, goods, and services offered thereupon, is a
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`public accommodation within the definition of Title III of the ADA, 42 U.S.C. §
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`12181(7).
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`NATURE OF ACTION
`The Internet has become a significant source of information, a portal, and a tool for
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`14.
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`conducting business, doing everyday activities such as shopping, learning, banking,
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`researching, as well as many other activities for sighted, blind and visually-
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`impaired persons alike.
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`15.
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`In today’s tech-savvy world, blind and visually-impaired people have the ability to
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`access websites using keyboards in conjunction with screen access software that
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`vocalizes the visual information found on a computer screen or displays the content
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`on a refreshable Braille display. This technology is known as screen-reading
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`software. Screen-reading software is currently the only method a blind or visually-
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`impaired person may independently access the internet. Unless websites are
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`designed to be read by screen-reading software, blind and visually-impaired
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`persons are unable to fully access websites, and the information, products, goods
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`and contained thereon.
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`16.
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`Blind and visually-impaired users of Windows operating system-enabled
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`computers and devices have several screen reading software programs available to
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`them. Some of these programs are available for purchase and other programs are
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`available without the user having to purchase the program separately. Job Access
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`With Speech, otherwise known as “JAWS” is currently the most popular, separately
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`purchased and downloaded screen-reading software program available for a
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`Windows computer.
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`17.
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`For screen-reading software to function, the information on a website must be
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`capable of being rendered into text. If the website content is not capable of being
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`rendered into text, the blind or visually-impaired user is unable to access the same
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`content available to sighted users.
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`18.
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`The
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`international website standards organization,
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`the World Wide Web
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`Consortium, known throughout the world as W3C, has published version 2.0 of the
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`Web Content Accessibility Guidelines (“WCAG 2.1”). WCAG 2.1 are well-
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`established guidelines for making websites accessible to blind and visually-
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`impaired people. These guidelines are universally followed by most large business
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`entities and government agencies to ensure their websites are accessible.
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`19.
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`Non-compliant websites pose common access barriers to blind and visually-
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`impaired persons. Common barriers encountered by blind and visually impaired
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`persons include, but are not limited to, the following:
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`a.
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`b.
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`A text equivalent for every non-text element is not provided;
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`Title frames with text are not provided for identification and
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`navigation;
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`c.
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`d.
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`Equivalent text is not provided when using scripts;
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`Forms with the same information and functionality as for sighted
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`persons are not provided;
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`e.
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`Information about the meaning and structure of content is not
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`conveyed by more than the visual presentation of content;
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`f.
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`Text cannot be resized without assistive technology up to 200%
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`without losing content or functionality;
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`g.
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`If the content enforces a time limit, the user is not able to extend,
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`adjust or disable it;
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`h.
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`i.
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`Web pages do not have titles that describe the topic or purpose;
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`The purpose of each link cannot be determined from the link text
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`alone or from the link text and its programmatically determined link
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`context;
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`j.
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`One or more keyboard operable user interface lacks a mode of
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`operation where the keyboard focus indicator is discernible;
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`k.
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`The default human language of each web page cannot be
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`programmatically determined;
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`l.
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`When a component receives focus, it may initiate a change in
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`context;
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`m.
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`Changing the setting of a user interface component may
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`automatically cause a change of context where the user has not been advised
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`before using the component;
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`n.
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`Labels or instructions are not provided when content requires user
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`input, which include captcha prompts that require the user to verify that he
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`or she is not a robot;
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`o.
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`In content which is implemented by using markup languages,
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`elements do not have complete start and end tags, elements are not nested
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`according to their specifications, elements may contain duplicate attributes,
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`and/or any IDs are not unique;
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`p.
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`Inaccessible Portable Document Format (PDFs); and,
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`q.
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`The name and role of all User Interface elements cannot be
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`programmatically determined; items that can be set by the user cannot be
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`programmatically set; and/or notification of changes to these items is not
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`available to user agents, including assistive technology.
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`STATEMENT OF FACTS
`Defendant’s Barriers on Its Website
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`20.
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`Defendant is a video game console company, and owns and operates the website,
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`www.xbox.com (its “Website”), offering features which should allow all
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`consumers to access the goods and services and which Defendant ensures the
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`delivery of such goods throughout the United States, including New York State.
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`21.
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`Defendant operates and distributes its products throughout the United States,
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`including New York.
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`22.
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`Defendant offers the commercial website, www.xbox.com, to the public. The
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`website offers features which should allow all consumers to access the goods and
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`services whereby Defendant allows for the delivery of those ordered goods to
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`consumers throughout the United States, including New York State. The goods and
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`services offered by Defendant include, but are not limited to the following: the
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`ability to browse video game consoles for purchase and delivery, view accessories,
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`obtain defendant’s contact information, and related goods and services available
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`online.
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`23.
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`It is, upon information and belief, Defendant’s policy and practice to deny Plaintiff,
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`along with other blind or visually-impaired users, access to Defendant’s website,
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`and to therefore specifically deny the goods and services that are offered to the
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`general public. Due to Defendant’s failure and refusal to remove access barriers to
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`its website, Plaintiff and visually-impaired persons have been and are still being
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`denied equal access to Defendant’s Website, and the numerous goods and services
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`and benefits offered to the public through the Website.
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`24.
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`Plaintiff is a visually-impaired and legally blind person, who cannot use a computer
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`without the assistance of screen-reading software. Plaintiff is, however, a proficient
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`JAWS screen-reader user and uses it to access the Internet. Plaintiff has visited the
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`Website on separate occasions using the JAWS screen-reader.
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`25.
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`During Plaintiff’s visits to the Website, the last occurring in October 2020, Plaintiff
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`encountered multiple access barriers that denied Plaintiff full and equal access to
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`the facilities, goods and services offered to the public and made available to the
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`public; and that denied Plaintiff the full enjoyment of the facilities, goods and
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`services of the Website.
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`26. While attempting to navigate the Website, Plaintiff encountered multiple
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`accessibility barriers for blind or visually-impaired people that include, but are not
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`limited to, the following:
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`27.
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`Lack of Alternative Text (“alt-text”), or a text equivalent. Alt-text is an invisible
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`code embedded beneath a graphical image on a website. Web accessibility requires
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`that alt-text be coded with each picture so that screen-reading software can speak
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`the alt-text where a sighted user sees pictures, which includes captcha prompts. Alt-
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`text does not change the visual presentation, but instead a text box shows when the
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`cursor moves over the picture. The lack of alt-text on these graphics prevents screen
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`readers from accurately vocalizing a description of the graphics.
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`28.
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`Empty Links That Contain No Text causing the function or purpose of the link to
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`not be presented to the user. This can introduce confusion for keyboard and screen-
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`reader users;
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`29.
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`Redundant Links where adjacent links go to the same URL address which results
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`in additional navigation and repetition for keyboard and screen-reader users; and
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`30.
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`Linked Images Missing Alt-text, which causes problems if an image within a link
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`contains no text and that image does not provide alt-text. A screen reader then has
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`no content to present the user as to the function of the link, including information
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`contained in PDFs.
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`31.
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`As a result of visiting Defendant’s Website and from investigations performed on
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`his behalf, Plaintiff is aware that the Website includes at least the following
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`additional barriers blocking his full and equal use:
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`a. Site element like text describing products and information is not
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`accessible when navigating with a keyboard. The links associated with
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`the information is accessible however, did not describe the purpose of
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`the link.
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`b. Site element like images located in the Screenshot section of the
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`webpage had images that were mislabeled and thus provided no useful
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`information to the user.
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`c. Site function like Pre-Order link to the Xbox Series S has two payment
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`options which are not labeled to integrate with a screen reader.
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`Defendant Must Remove Barriers To Its Website
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`32.
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`Due to the inaccessibility of Defendant’s Website, blind and visually-impaired
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`customers such as Plaintiff, who need screen-readers, cannot fully and equally use
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`or enjoy the facilities, products, and services Defendant offers to the public on its
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`Website. The access barriers Plaintiff encountered have caused a denial of
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`Plaintiff’s full and equal access in the past, and now deter Plaintiff on a regular
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`basis from visiting the Website, presently and in the future.
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`33.
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`These access barriers on Defendant’s Website have deterred Plaintiff from learning
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`about those various video game consoles for purchase and delivery, and enjoying
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`them equal to sighted individuals because: Plaintiff was unable to determine and or
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`purchase items from its Website, among other things.
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`34.
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`If the Website was equally accessible to all, Plaintiff could independently navigate
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`the Website and complete a desired transaction as sighted individuals do.
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`35.
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`Through his attempts to use the Website, Plaintiff has actual knowledge of the
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`access barriers that make these services inaccessible and independently unusable
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`by blind and visually-impaired people.
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`36.
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`Because simple compliance with the WCAG 2.1 Guidelines would provide Plaintiff
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`and other visually-impaired consumers with equal access to the Website, Plaintiff
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`alleges that Defendant has engaged in acts of intentional discrimination, including
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`but not limited to the following policies or practices:
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`a.
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`Constructing and maintaining a website that is inaccessible to
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`visually-impaired individuals, including Plaintiff;
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`b.
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`Failure to construct and maintain a website that is sufficiently intuitive
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`so as to be equally accessible to visually-impaired individuals, including
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`Plaintiff; and,
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`c.
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`Failing to take actions to correct these access barriers in the face of
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`substantial harm and discrimination to blind and visually-impaired
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`consumers, such as Plaintiff, as a member of a protected class.
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`37.
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`Defendant therefore uses standards, criteria or methods of administration that have the
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`effect of discriminating or perpetuating the discrimination of others, as alleged herein.
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`38.
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`The ADA expressly contemplates the injunctive relief that Plaintiff seeks in this
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`action. In relevant part, the ADA requires:
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`In the case of violations of . . . this title, injunctive relief shall include an order to
`alter facilities to make such facilities readily accessible to and usable by individuals
`with disabilities . . . Where appropriate, injunctive relief shall also include requiring
`the . . . modification of a policy . . .
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`42 U.S.C. § 12188(a)(2).
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`39.
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`Because Defendant’s Website have never been equally accessible, and because
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`Defendant lacks a corporate policy that is reasonably calculated to cause its Website
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`to become and remain accessible, Plaintiff invokes 42 U.S.C. § 12188(a)(2) and
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`seeks a permanent injunction requiring Defendant to retain a qualified consultant
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`acceptable to Plaintiff (“Agreed Upon Consultant”) to assist Defendant to comply
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`with WCAG 2.1 guidelines for Defendant’s Website. Plaintiff seeks that this
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`permanent injunction requires Defendant to cooperate with the Agreed Upon
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`Consultant to:
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`a.
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`Train Defendant’s employees and agents who develop the Website
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`on accessibility compliance under the WCAG 2.1 guidelines;
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`b.
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`Regularly check the accessibility of the Website under the WCAG
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`2.0 guidelines;
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`c.
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`Regularly test user accessibility by blind or vision-impaired persons
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`to ensure that Defendant’s Website complies under the WCAG 2.1
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`guidelines; and,
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`d.
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`Develop an accessibility policy that is clearly disclosed on Defendant’s
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`Websites, with contact information for users to report accessibility-related
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`problems.
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`40.
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`If the Website was accessible, Plaintiff and similarly situated blind and visually-
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`impaired people could independently view service items, shop for and otherwise
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`research related goods and services available via the Website.
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`41.
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`Although Defendant may currently have centralized policies regarding maintaining
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`and operating its Website, Defendant lacks a plan and policy reasonably calculated
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`to make them fully and equally accessible to, and independently usable by, blind
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`and other visually-impaired consumers.
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`42.
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`Defendant has, upon information and belief, invested substantial sums in
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`developing and maintaining their Website and has generated significant revenue
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`from the Website. These amounts are far greater than the associated cost of making
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`their Website equally accessible to visually impaired customers.
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`43. Without injunctive relief, Plaintiff and other visually-impaired consumers will
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`continue to be unable to independently use the Website, violating their rights.
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`CLASS ACTION ALLEGATIONS
`Plaintiff, on behalf of himself and all others similarly situated, seeks to certify a
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`44.
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`nationwide class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind
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`individuals in the United States who have attempted to access Defendant’s Website
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`and as a result have been denied access to the equal enjoyment of goods and services,
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`during the relevant statutory period.
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`45.
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`Plaintiff, on behalf of himself and all others similarly situated, seeks certify a New
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`York State subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind
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`individuals in the State of New York who have attempted to access Defendant’s
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`Website and as a result have been denied access to the equal enjoyment of those
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`services, during the relevant statutory period.
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`46.
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`Plaintiff, on behalf of himself and all others similarly situated, seeks certify a New
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`York City subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind
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`individuals in the City of New York who have attempted to access Defendant’s
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`Website and as a result have been denied access to the equal enjoyment of goods and
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`services offered, during the relevant statutory period.
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`47.
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`Common questions of law and fact exist amongst Class, including:
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`a.
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`Whether Defendant’s Website is a “public accommodation” under
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`the ADA;
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`b.
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`Whether Defendant’s Website is a “place or provider of public
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`accommodation” under the NYSHRL or NYCHRL;
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`c.
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`Whether Defendant’s Website denies the full and equal enjoyment
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`of
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`its products,
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`services,
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`facilities, privileges, advantages, or
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`accommodations to people with visual disabilities, violating the ADA; and
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`d.
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`Whether Defendant’s Website denies the full and equal enjoyment
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`of
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`its products,
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`services,
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`facilities, privileges, advantages, or
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`accommodations to people with visual disabilities, violating the NYSHRL
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`or NYCHRL.
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`48.
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`Plaintiff’s claims are typical of the Class. The Class, similarly to the Plaintiff, are
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`severely visually impaired or otherwise blind, and claim that Defendant has
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`violated the ADA, NYSYRHL or NYCHRL by failing to update or remove access
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`barriers on its Website so either can be independently accessible to the Class.
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`49.
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`Plaintiff will fairly and adequately represent and protect the interests of the Class
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`Members because Plaintiff has retained and is represented by counsel competent
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`and experienced in complex class action litigation, and because Plaintiff has no
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`interests antagonistic to the Class Members. Class certification of the claims is
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`appropriate under Fed. R. Civ. P. 23(b)(2) because Defendant has acted or refused
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`to act on grounds generally applicable to the Class, making appropriate both
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`declaratory and injunctive relief with respect to Plaintiff and the Class as a whole.
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`50.
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`Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because
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`fact and legal questions common to Class Members predominate over questions
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`affecting only individual Class Members, and because a class action is superior to
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`other available methods for the fair and efficient adjudication of this litigation.
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`51.
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`Judicial economy will be served by maintaining this lawsuit as a class action in that
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`it is likely to avoid the burden that would be otherwise placed upon the judicial
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`system by the filing of numerous similar suits by people with visual disabilities
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`throughout the United States.
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`FIRST CAUSE OF ACTION
`VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq.
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`52.
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` Plaintiff, on behalf of himself and the Class Members, repeats and realleges every
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`allegation of the preceding paragraphs as if fully set forth herein.
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`53.
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`Section 302(a) of Title III of the ADA, 42 U.S.C. § 12101 et seq., provides:
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`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.
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`42 U.S.C. § 12182(a).
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`54.
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`Defendant’s Website is a public accommodations within the definition of Title III
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`of the ADA, 42 U.S.C. § 12181(7). The Website is a service that is offered to the
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`general public, and as such, must be equally accessible to all potential consumers.
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`55.
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`Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to
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`deny individuals with disabilities the opportunity to participate in or benefit from
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`the products, services, facilities, privileges, advantages, or accommodations of an
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`entity. 42 U.S.C. § 12182(b)(1)(A)(i).
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`56.
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`Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to
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`deny individuals with disabilities an opportunity to participate in or benefit from
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`the products, services, facilities, privileges, advantages, or accommodation, which
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`is equal to the opportunities afforded to other individuals. 42 U.S.C. §
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`12182(b)(1)(A)(ii).
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`57.
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`Under Section 302(b)(2) of Title III of the ADA, unlawful discrimination also
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`includes, among other things:
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`[A] failure to make reasonable modifications in policies, practices, or procedures,
`when such modifications are necessary to afford such goods, services, facilities,
`privileges, advantages, or accommodations to individuals with disabilities, unless
`the entity can demonstrate that making such modifications would fundamentally
`alter the nature of such goods, services, facilities, privileges, advantages or
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`Case 1:20-cv-09083 Document 1 Filed 10/29/20 Page 16 of 25
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`accommodations; and 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, unless the entity can demonstrate that taking such steps would
`fundamentally alter the nature of the good, service, facility, privilege, advantage,
`or accommodation being offered or would result in an undue burden.
`
`42 U.S.C. § 12182(b)(2)(A)(ii)-(iii).
`
`58.
`
`The acts alleged herein constitute violations of Title III of the ADA, and the
`
`regulations promulgated thereunder. Plaintiff, who is a member of a protected class
`
`of persons under the ADA, has a physical disability that substantially limits the
`
`major life activity of sight within the meaning of 42 U.S.C. §§ 12102(1)(A)-(2)(A).
`
`Furthermore, Plaintiff has been denied full and equal access to the Website, has not
`
`been provided services that are provided to other patrons who are not disabled, and
`
`has been provided services that are inferior to the services provided to non-disabled
`
`persons. Defendant has failed to take any prompt and equitable steps to remedy its
`
`discriminatory conduct. These violations are ongoing.
`
`59.
`
`Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and
`
`incorporated therein, Plaintiff, requests relief as set forth below.
`
`SECOND CAUSE OF ACTION
`VIOLATIONS OF THE NYSHRL
`Plaintiff, on behalf of himself and the New York State Sub-Class Members, repeats
`
`60.
`
`and realleges every allegation of the preceding paragraphs as if fully set forth herein.
`
`61.
`
`N.Y. Exec. Law § 296(2)(a) provides that it is “an unlawful discriminatory practice
`
`for any person, being the owner, lessee, proprietor, manager, superintendent, agent
`
`or employee of any place of public accommodation . . . because of the . . . disability
`
`of any person, directly or indirectly, to refuse, withhold from or deny to such person
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`any of the accommodations, advantages, facilities or privileges thereof.”
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`
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`62.
`
`Defendant’s Website and its’ sale of goods to the general public, constitute sales
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`establishments and public accommodations within the definition of N.Y. Exec. Law
`
`§ 292(9). Defendant’s Website is a service, privilege or advantage of Defendant.
`
`63.
`
`Defendant is subject to New York Human Rights Law because it owns and operates
`
`its Website. Defendant is a person within the meaning of N.Y. Exec. Law § 292(1).
`
`64.
`
`Defendant is violating N.Y. Exec. Law § 296(2)(a) in refusing to update or remove
`
`access barriers to its Website, causing its Website to be completely inaccessible to
`
`the blind. This inaccessibility denies blind patrons full and equal access to the
`
`facilities, services that Defendant makes available to the non-disabled public.
`
`65.
`
`Under N.Y. Exec. Law § 296(2)(c)(i), unlawful discriminatory practice includes,
`
`among other things, “a refusal to make reasonable modifications in policies,
`
`practices, or procedures, when such modifications are necessary to afford facilities,
`
`privileges, advantages or accommodations to individuals with disabilities, unless
`
`such person can demonstrate that making such modifications would fundamentally
`
`alter the nature of such facilities, privileges, advantages or accommodations being
`
`offered or would result in an undue burden".
`
`66.
`
`Under N.Y. Exec. Law § 296(2)(c)(ii), unlawful discriminatory practice also
`
`includes, “a refusal to take such steps as may be necessary to ensure that no
`
`individual with a disability is excluded or denied services because of the absence
`
`of auxiliary aids and services, unless such person can demonstrate that taking such
`
`steps would fundamentally alter the nature of the facility, privilege, advantage or
`
`accommodation being offered or would result in an undue burden.”
`
`
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`67.
`
`Readily available, well-established guidelines exist on the Internet for making
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`websites accessible to the blind and visually impaired. These guidelines have been
`
`followed by other large business entities and government agencies in making their
`
`website accessible, including but not limited to: adding alt-text to graphics and
`
`ensuring that all functions can be performed using a keyboard. Incorporating the
`
`basic components to make its Website accessible would neither fundamentally alter
`
`the nature of Defendant’s business nor result in an undue burden to Defendant.
`
`68.
`
`Defendant’s actions constitute willful intentional discrimination against the class
`
`on the basis of a disability in violation of the NYSHRL, N.Y. Exec. Law § 296(2)
`
`in that Defendant has:
`
`a.
`
`constructed and maintained a website that is inaccessible to blind
`
`class members with knowledge of the discrimination; and/or
`
`b.
`
`constructed and maintained a website that is sufficiently intuitive
`
`and/or obvious that is inaccessible to blind class members; and/or
`
`c.
`
`failed to take actions to correct these access barriers in the face of
`
`substantial harm and discrimination to blind class members.
`
`69.
`
`Defendant has failed to take any prompt and equitable steps to remedy their
`
`discriminatory conduct. These violations are ongoing.
`
`70.
`
`Defendant discriminates, and will continue in the future to discriminate against
`
`Plaintiff and New York State Sub-Class Members on the basis of disability in the
`
`full and equal enjoyment of the products, services, facilities, privileges, advantages,
`
`accommodations and/or opportunities of Defendant’s Website under § 296(2) et
`
`seq. and/or its implementing regulations. Unless the Court enjoins Defendant from
`
`
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`Case 1:20-cv-09083 Document 1 Filed 10/29/20 Page 19 of 25
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`continuing to engage in these unlawful practices, Plaintiff and the Sub-Class
`
`Members will continue to suffer irreparable harm.
`
`71.
`
`Defendant’s actions were and are in violation of New York State Human Rights
`
`Law and therefore Plaintiff invokes his right to injunctive relief to remedy the
`
`discrimination.
`
`72.
`
`Plaintiff is also entitled to compensatory damages, as well as civil penalties and
`
`73.
`
`74.
`
`75.
`
`fines under N.Y. Exec. Law § 297(4)(c) et seq. for each and every offense.
`
`Plaintiff is also entitled to reasonable attorneys’ fees and costs.
`
`Under N.Y. Exec. Law § 297 and the remedies, procedures, and rights set forth and
`
`incorporated therein Plaintiff prays for judgment as set forth below.
`
`THIRD CAUSE OF ACTION
`VIOLATION OF THE NEW YORK STATE CIVIL RIGHTS LAW
`Plaintiff, on behalf of himself and the New York State Sub-Class Members, repeats
`
`and realleges every allegation of the preceding paragraphs as if fully set forth herein.
`
`76.
`
`Plaintiff served notice there