Passed in 1990, the Americans With Disabilities Act was drafted shortly before the dot.com boom of the late 1990s and early 2000s—years before the legal landscape would change to include new types of disputes involving websites and mobile apps.
The ADA has a long history of preventing discrimination in employment, public facilities, and guaranteeing physical access to public accommodations and commercial facilities. (See, e.g., 28 C.F.R. 36, App’x A.) And although public access and employment discrimination cases continue to be filed, a new breed of disputes focused on the e-economy are becoming more and more prevalent.
This new breed of cases present new challenges and risks to companies. They take themes from traditional public access cases and apply them to the digital economy, primarily websites and mobile apps with a commercial purpose. According to one website, more than 2,200 ADA cases related to websites were filed in 2018 alone. In this article, we will examine trends in ADA cases that implicate e-commerce.
Booking Hotel Rooms
One line of cases focuses on the process by which a disabled hotel patron can find and book an ADA-compliant, accessible hotel room on the hotel’s website. The theory is that a disabled guest must be able to find, assess, and book an accessible room in the same manner and efficiency as a guest booking an ordinary room. See, e.g., Poschmann v. Coral Reef of Key Biscayne Inc., 2018 BL 228904 (S.D. Fla. May 23, 2018); Brooke v. A-Ventures LLC, 2017 BL 419911 (D. Az. Nov. 22, 2017).
The key to these cases is not whether a hotel has ADA-compliant rooms, or even whether they can be booked on a website. Instead, the hotel’s ADA-compliant rooms must be readily bookable in the same manner as ordinary, non-ADA accessible rooms. Courts have found this theory viable and even awarded attorneys’ fees and costs. See Pioschmann, 2018 BL 228904 at *16 (granting summary judgment to the plaintiff and scheduling briefing on an award of attorneys’ fees).
Another common category of class actions targets websites that are not accessible via a screen reader. See Gorecki v. Dave & Buster’s Inc., 2017 BL 405502 (C.D. Cal. Oct. 10, 2017). A cottage industry of individuals who scan websites to identify sites that are not compliant with screen readers has developed over the past 12 to 18 months. They will then file lawsuits in mass against companies whose websites, they allege, are not compatible with screen reading technologies.
Lawsuits relying on this theory have been around for more than a decade. See Access Now Inc. v. Southwest Airlines Co., 385 F.3d 1324 (11th Cir. 2004). But a recent explosion in these filings has surged over the past couple of years and courts have awarded fees and costs on successful claims. See, e.g., Kang v. Forever 21 Retail, Inc., No. 1:19-cv-007700 (D. De. April 28, 2019); Garey v. Cafepress Inc., No. 1:19-cv-00375 (S.D.N.Y. Jan. 14, 2019).
Nearly All Cases Filed in New York, Florida
The vast majority of new ADA website-accessibility lawsuits have been filed in New York and Florida, with those two states accounting for approximately 2,100 of the 2,200 lawsuits filed in 2019. That should not come as a surprise, as Florida and New York are hotbeds of consumer class actions generally.
New York federal courts and the Second Circuit Court of Appeals are generally viewed as favorable to consumer class actions. The Eleventh Circuit is viewed as somewhat hostile to employment discrimination actions, but Florida district courts—the Southern District of Florida in particular—are among the leaders in the nation for a variety of consumer class actions. South Florida also has a significant number of well-funded and aggressive consumer class action attorneys. Additionally, both New York and Florida allow for damages for ADA-style claims under state law. See, e.g., Brown v. Mermaid Plaza Assocs. LLC, 2018 BL 280236 (E.D.N.Y. March 8, 2018); Fla. Stat. § 760.11.
Colorado, California, Texas, and South Carolina also permit civil damages for ADA-type claims in certain circumstances. See C.R.S. § 24-34-602; Cal. Civil Code §54(a)(1); Tex. Hum. Res. Code § 121.004; S.C. Code Laws, §§ 43-33-540 and 43-33-570.
The biggest surprise thus far is the near absence of website-accessibility claims filed in California federal courts. But we expect that to change in the near future after the Ninth Circuit’s decision in Robles v. Domino’s Pizza.
In Robles, the Ninth Circuit held that the ADA is not void for vagueness as applied to website-accessibility claims and allowed a case to go forward alleging that the defendant’s website and mobile app were not accessible. That decision, which reversed the Central District of California, could very well open the floodgates to a wave of ADA class-action filings in California.
How to Prepare
The bottom line is that companies should prepare for the onslaught of website-accessibility lawsuits now. This not only includes consulting with technical experts to analyze compliance with regulations and Web Content Accessibility Guidelines 2.0, but also with attorneys who can offer litigation strategies to anticipate gaps in compliance that a clever consumer-protection attorney might exploit in a class action lawsuit.
In developing areas of the law such as this, it is important to work with attorneys and experts who have the ability to predict possible next waves in litigation so that companies can proactively address potential vulnerabilities before cases start being filed.
Doing so requires collaboration between litigation attorneys, compliance attorneys and personnel, and technical experts to dissect existing websites and look for ways clever class action attorneys could claim that a particular protected group might have difficulty using or accessing the website.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Petrina H. McDaniel is a partner in Atlanta with Squire Patton Boggs’ Litigation and Data Privacy & Cybersecurity practices. McDaniel is a commercial litigator and Certified Information Privacy Professional (CIPP/US) whose practice uniquely blends complex litigation, regulatory compliance, and privacy counseling.
Daniel L. Delnero is a senior attorney in Squire Patton Boggs’ global Litigation Practice, based out of its Atlanta office. He specializes in representing companies facing high-stakes consumer class action litigation.