BY: CATHERINE LOSEY
Private businesses are not required to have a website, but most businesses cannot thrive without an online presence. Unfortunately, business owners across the United States are in the crosshairs for a deluge of lawsuits regarding website accessibility — with potential big-dollar consequences. Understanding these issues will help business owners consider taking proactive steps to help mitigate the risk of being sued.
What is the ADA and why is it being applied to websites?
Title III of the Americans with Disabilities Act (ADA) protects disabled individuals from discrimination by places of public accommodation. Physical accommodations for the disabled, such as wheelchair ramps and disabled parking places, have become commonplace since the law was passed in 1990. However, when a business receives a demand letter or service of process for a lawsuit alleging violation of the ADA because its website is not ADA-compliant, this often comes as a surprise.
The bevy of case law popping up on website ADA compliance issues has caused confusion for businesses. Courts and the U.S. Department of Justice continue to shape the debate over whether websites are places of public accommodation under the ADA.
A 2017 ruling from a federal court in the Southern District of Florida in the case of Gil v. Winn-Dixie Stores Inc. found that the grocery store chain Winn-Dixie had violated Title III of the ADA. The court noted that the Winn-Dixie website was heavily integrated with and operated as a gateway to the Winn-Dixie physical store locations. Winn-Dixie has appealed the case to the 11th Circuit Court of Appeal.
In another 2017 case from the Southern District of Florida, Gomez v. Bang & Olufsen America Inc., the court dismissed a plaintiff’s ADA lawsuit because he had not sufficiently alleged that the company’s website impeded his personal use of the company’s retail location. The case was dismissed without prejudice and administratively closed.
Even a company with a strictly online presence may face litigation because some courts have applied the ADA to websites that offer direct goods or services despite not having a physical location. For example, a federal district court in Vermont found that the digital library website and mobile application for a company called Scribd, which operates a reading subscription service, was a place of public accommodation under Title III of the ADA.
To date, there is no “bright-line test,” or clearly defined rule or standard, to determine whether a website is ADA compliant.
Moreover, the Department of Justice withdrew pending regulations regarding website accessibility and has yet to issue regulations imposing ADA compliance requirements. The lack of federal ADA regulations for websites, and the potential for the attorney representing the disabled plaintiff to receive attorneys’ fees, has created the perfect litigious storm.
What Should a Company Do to be Prepared?
Despite this uncertainty, there are proactive steps your business can take to be ahead of the curve. If your company is undertaking a website or mobile application redesign, you can discuss with your developers the process and costs of making sure the finished product conforms to the WCAG standards. WCAG was developed through the Web Accessibility Initiative (WAI), which is part of the World Wide Web Consortium (W3C), an international community that develops standards for the web. The WCAG encompasses a wide range of recommendations for making web content more accessible to individuals with disabilities.
You should be sure any promise of conforming to these standards is incorporated into the contract’s warranties and representations. Additionally, you’ll want to review indemnification provisions in agreements with the website and application designers to determine whether they adequately anticipate concerns with ADA compliance.
If a website or application redesign is not in the works, then your company could review your website for potential access barriers and research the cost of compliance. Because technology is constantly evolving, you also may consider creating an action plan to monitor and evaluate access barriers and budget for associated costs of compliance. Beyond the issue of risk mitigation, you should consider the potential impact of losing customers because your website is not accessible to people with disabilities.
ADA website litigation will continue to affect businesses large and small. Consultation with technology professionals and legal counsel who have experience with ADA compliance will help you evaluate risks, discuss options and protect the interests of your company.