Is your website accessible to people who have hearing and/or vision impairments? Accessible websites include such features as subtitles for audio files, alternative text for images, and coloring visible to color-blind individuals. If not, you too could be a defendant in one of the rapidly increasing lawsuits concerning website inaccessibility for disabled people.
Last year saw a 15% increase in website compliance lawsuits from 2020, and nearly 500 of the more than 4,000 lawsuits filed in 2021 were against companies that previously had been sued for website compliance violations. E-commerce has become the primary way many individuals engage with businesses, leading to a rise in these legal claims.
Businesses operating websites and mobile apps must consider the following issues regarding the Americans with Disabilities Act to manage the risks of legal action due to an alleged lack of accessibility.
ADA Title III
Title III of the Americans with Disabilities Act requires that “places of public accommodation” provide “equal access” to their goods, services, and facilities to disabled individuals. At the time the ADA was enacted, places of public accommodation typically were physical locations, such as restaurants or storefronts. But as we have changed how we engage with businesses, courts have increasingly found that websites are “places of public accommodation.”
Compliance has been a challenge, however, because neither Title III nor its implementing regulations state how a website must be coded to comply with the law, and there is no consistency among courts about the scope of the ADA’s application to websites. ADA website compliance lawsuits are therefore extremely easy targets for plaintiffs’ lawyers and a headache for businesses that must comply.
It was not until 2010 that the Department of Justice attempted to address how websites must comply with the ADA, but this effort stalled. In 2017, the Trump administration withdrew the rule entirely, leaving business and individuals with lack of clear guidance.
This lack of clear guidance persists. Despite this, courts continue to grapple with interpreting the law’s unclear requirements, often coming to inconsistent conclusions depending on the jurisdiction. Unfortunately, typical physical jurisdictional limitations do not apply, and plaintiffs can file lawsuits in the more plaintiff-friendly jurisdictions, such as California and New York, regardless of whether the business has a physical presence in those states.
One issue that remains is to what extent a stand-alone website, unassociated with a physical location, is covered by the ADA. As referenced, traditionally, Title III of the ADA applies to physical places of public accommodation.
Not wanting to stretch the statute beyond its plain meaning, many courts have required that a business have a public-facing brick and mortar presence before its website can be subject to the ADA. This issue, however, has not been consistently resolved, and courts within the First, Fourth, and Seventh Circuits have not required a physical storefront to render a business subject to the ADA, recognizing the increased reliance on e-commerce.
While there is no legally enforceable statutory or regulatory guidance, the Web Content Accessibility Guidelines, developed by a private institution, have emerged as a widely acceptable standard for judging website compliance with the ADA. Some courts have stated that if the website is compliant with the content accessibility standard, that satisfies the requirements of the ADA, but, again, not all courts have held that and the ADA itself does not say it.
Other issues relate to standing of the plaintiffs to bring a claim. Many of these lawsuits are filed by “tester” plaintiffs who repeatedly search for non-compliant websites and file suits against businesses that are not in compliance. Some courts have required evidence that the plaintiff actually intended to use the services of the website, and some courts have not.
In Harty v. W. Point Realty, Inc., 28 F.4th 435, 443 (2d Cir. 2022), the US Court of Appeals for the Second Circuit found the plaintiff lacked standing, reasoning that he “does not allege anywhere in his complaint that he was using the website to arrange for future travel. On the contrary, he acknowledges that his review of West Point Realty’s website was done in his capacity as a ‘tester’ of ADA compliance, not as a prospective traveler seeking a wheelchair-accessible hotel in West Point.”
Obviously, plaintiffs prefer to file suit in plaintiff-friendly jurisdictions. For example, New York courts have not required that a business have any physical location in New York to be sued there for website non-compliance with the ADA.
Penalties Under Federal and State Laws
The penalties themselves under the ADA for noncompliance are relatively minor, but plaintiffs’ attorneys are entitled to fees, which increases the costs to businesses faced with demand letters or lawsuits. Not only is the federal ADA a financial threat, but several states have also enacted similar laws to the ADA that have even more severe penalties.
For example, California’s Unruh Civil Rights Act applies to websites of businesses that do not necessarily have a physical location, and unlike the ADA, California Unruh plaintiffs can recover damages in addition to attorney’s fees. New York state and New York City Human Rights Law provides for compensatory damages, civil penalties and fines, and attorneys’ fees
New Types of Claims
ADA lawsuits for website accessibility continue evolve. Newer claims have focused on mobile apps and even games. Some lawsuits are targeting informational websites.
For example, in the Covid-19 pandemic, the Justice Department went after websites associated with pharmacies, grocery stores, supermarkets, and the like whose websites had barriers to accessibility for vaccine information and appointments.
While the legal landscape remains confusing, the best thing businesses can do to protect themselves is ensure their website and/or mobile apps are compliant with the latest version of the guidelines. Quickly resolving demand letters and lawsuits appears to be the most popular response to these claims. This remains the case for the time being, because although this issue is ripe for the US Supreme Court to provide guidance, the court declined to consider an ADA website accessibility case from the US Court of Appeals for the Ninth Circuit (the Domino’s Pizza case) in 2019. Legislative change could resolve many of these issues, as well, but again, it remains to be seen if and when this would happen.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Emma Redden is a senior associate in Baker Donelson’s Labor & Employment Group. She represents companies before state and federal courts, the EEOC, and the DOL, defending them against allegations of discrimination, harassment, retaliation, wage and hour violations, and others.