What are you doing to make your website more accessible? You better do something, or you may have to face a lawsuit.
Thanks to a 2017 decision by the Department of Justice (DOJ), legal challenges over website accessibility for disabled individuals are a rising threat to companies with an internet presence.
The federal law governing website accessibility is Title III of the Americans with Disabilities Act (ADA), enacted to prevent discrimination against people with disabilities in places of “public accommodation” such as offices, retail outlets, and events.
Passed in 1990, before the advent of the Internet, the law says nothing about websites. However, the DOJ has made it clear that it considers a company’s website to be a place of “public accommodation” subject to the ADA, and it announced in 2015 that it would propose website accessibility standards under Title III by 2018.
Then, in December 2017, the DOJ withdrew all pending ADA Title III rulemakings, saying that it is evaluating how best to address the availability of next-generation services that provide text, pictures, and video capabilities.
In this regulatory void, the number of website accessibility lawsuits filed by the plaintiff’s bar and disabled advocacy groups against private companies has skyrocketed.
THE FUNDAMENTAL FACTS
According to the law firm of Seyfarth Shaw, the number of ADA Title III lawsuits filed in federal court in 2018 hit a record high of 10,163–up 34 percent from 2017 and triple the number of cases filed in 2013. California, New York, and Florida led the pack by a wide margin as the states with the most Title III lawsuits, with Texas, Georgia, Pennsylvania, Arizona, Massachusetts, New Jersey, and Alabama making the top ten. Seyfarth Shaw noted that its statistics do not even include the number of filings under state anti-discrimination laws, which it does not track.
Actual and potential defendants include companies across the whole range of industries. The law firm of Ballard Spahr recently reported accessibility claims against mortgage websites that allegedly hinder disabled individuals from accessing applications and other online content. The National Association of Federal Credit Unions (NAFCU) said that hundreds of credit unions in 26 states received demand letters in 2017-2018 from law firms representing disabled clients who allegedly could not access the credit union’s website. The National Association of Realtors® (NAR) has noted that letters to real estate brokerages from law firms threatening website accessibility litigation are plentiful.
WHAT’S AT STAKE?
Plaintiffs cannot sue for monetary damages under the ADA, but they can seek a court order requiring the company to redesign its website. The court’s ruling for plaintiffs typically need businesses to implement the Web Content Accessibility Guidelines (WCAG) 2.0, Level AA, a universally accepted set of guidelines for accessible online content.
Plaintiffs also can seek reimbursement of attorneys’ fees. Seyfarth Shaw says that a majority of federal courts have not been willing to grant early motions to dismiss, and advises that defendants who are unwilling to settle should prepare to go through discovery and summary judgment, if not a trial.
LEGAL DEFENSES ARE DWINDLING
Many defendants have filed motions to dismiss based on a denial of due process, pointing to the lack of DOJ regulatory guidance. Some district courts have agreed. This argument was rejected in January 2019 by the Ninth Circuit Court of Appeals in Robles v. Domino Pizza, which found that Domino’s has been on notice of DOJ’s position that its website must effectively communicate with disabled customers since 1996. The court also found that the district court erred in applying the “primary jurisdiction” doctrine, under which courts do not decide cases where enforcement agencies with particular expertise should weigh in first.
Some district courts also have dismissed website accessibility cases in which the plaintiff has not alleged that barriers on the website impeded access to an actual physical place. But appeals courts in recent cases (like the Ninth Circuit in Domino’s and the Eleventh Circuit Court of Appeals in Haynes v. Dunkin’ Donuts) have taken the position that the ADA is not limited to tangible barriers that disabled persons face but can extend to intangible barriers, such as online services of a physical location.
A January 2019 National Law Review article written in the aftermath of the Dunkin Donuts case concluded that “[t]he arguments available to businesses seeking to dispose of website accessibility claims at the outset of litigation as a matter of law are dwindling, which may result in opportunistic plaintiffs’ attorneys filing even more claims regarding website accessibility.”
REDUCE LEGAL RISKS
Given this recent spike in lawsuits, it’s advisable to assess your website’s compliance with Title III of the ADA now, with the assistance of legal counsel experienced in website accessibility issues. Not only can you reduce your legal risks, but you will be accommodating a potentially valuable segment of the marketplace.