For years, businesses treated Title III of the Americans with Disabilities Act as an afterthought. However, of late, businesses nationally are suffering an accelerating legal assault through lawsuits targeting their websites, apps and other electronic touchpoints, made all the more difficult to defend given the absence of any regulatory guidance from the Justice Department.
Title III, in non-technical terms, bars discrimination against disabled persons in retail, hospitality, entertainment, transportation, and other public places. The Justice Department, in turn, typically sets out detailed and fairly understandable rules on ensuring access to persons with disabilities. These regulations address largely predictable matters such as the height of counters or bathroom mirrors, parking lot slopes, and bathroom design.
Now, plaintiffs are challenging company websites and app designs. In many U.S. district courts, ADA filings dominate the docket. Virtually any electronic touchpoint available to consumers is now at high risk of being the subject of a suit. Moreover, while visual and aural disabilities are the current focus of these lawsuits, it is possible that these litigations will implicate other disabilities.
Website, App Class Actions on the Rise
Plaintiffs’ counsels are challenging the design of websites and mobile apps with more and more vigor, and even asserting class actions to enforce such rights. Plaintiffs’ firms commonly file suits against dozens of businesses each month, and frequently under the same plaintiff’s name and without the plaintiff having any good faith intention to purchase goods or services through the defendant’s website or otherwise patronize the business.
This newly emboldened Plaintiff’s bar is seeking to persuade courts to aggressively re-imagine the ADA by asserting that electronic touchpoints, such as websites, are covered by the ADA either independently or, at a minimum, much like a parking lot, as a gateway to the company’s physical retail presence.
In particular, Plaintiff’s counsels are demanding that all such touchpoints be restructured to ensure that visually impaired and hearing impaired consumers have full and complete ability to use such touchpoints. Further, Plaintiffs are pushing the boundaries by seeking to hold businesses accountable even where there is little to no nexus between a virtual presence and the actual physical place of public accommodation.
Website Purposes Are Evolving
Although, businesses have maintained websites for some time, historically, businesses’ websites were only informational. Presently, though, websites serve a variety of purposes.
E-Bay’s and Amazon’s only presence was online (although that is changing). Other businesses provide alternative services, such as online ordering that also can be done in the physical store.
However, websites also now may provide special or useful benefits, such as loyalty programs or coupons. Smartphones now provide complementary services to websites, including couponing, scanning, special apps for visits, and mobile-specific websites.
Further, electronic touchpoints, such as electronic kiosks, are moving into the stores themselves, as labor costs increase. We already have seen in the financial industry that banks are utilizing interactive teller machines inside retail banks, in their drive-through lanes and just outside the facilities.
Critical Business Issues
If these other electronic touchpoints are covered by the ADA, businesses are likely to face critical business issues.
First, electronic touchpoints are centralized touchpoints. In the old days, ADA issues at one location did not impact other locations. Now, if a website or loyalty program is unlawful, it can affect the company’s central revenue flow and company-wide operations.
Second, also unlike the physical issues, compliance overlaps with central marketing issues. For example, the color scheme of a website may relate to its accessibility for people with visual disabilities.
Third, because the Justice Department has not issued regulations providing guidance to businesses for managing accessibility issues, there are no agency-mandated standards against which to measure compliance. There also is no reason to expect the DOJ to promulgate regulations in the foreseeable future.
The DOJ already has withdrawn an initial attempt to promulgate regulations governing access to electronic touchpoints, and in late 2018, wrote to the House of Representatives suggesting the need for legislative, not regulatory, action, referring to “Congress’ ability to provide greater clarity through the legislative process.” Certain private organizations have established standards, and many businesses have adopted these standards (as have some courts), but they are not the law in any sense.
To make non-compliance even more costly, California and other states provide a per-violation penalty, which is recoverable without proof the plaintiff suffered any actual damage and attorneys’ fees.
Multiple touchpoints could lead to huge exposure in penalties and attorneys’ fees if just a few aggressive Plaintiffs repeatedly access electronic touchpoints. Thus, if businesses do not pay attention, a lawsuit could result in significant financial exposure, interference with core marketing decisions, and a reduction in revenue.
Courts Weigh In
So, what have courts said? While no court has ruled that all electronic touchpoints are covered, many courts have been receptive to a “gateway” theory holding that if you need to access the electronic touchpoint to obtain the consumer benefit available at a physical location, the electronic touchpoint is covered by the ADA.
Other courts have flatly denied that electronic touchpoints are covered. So long as the legal landscape remains unsettled and these lawsuits persist, businesses cannot simply ignore Title III of the ADA.
In the past, businesses with a retail or public presence would, from time to time, face lawsuits over alleged non-compliance with specific brick and mortar regulatory requirements such as bathroom design and parking configuration.
Additionally, businesses, particularly small businesses, often groaned at the expense of repeated or frivolous suits aimed at the business’ physical location. Yet, prior to the application of Title III to electronic touchpoints, Title III was not a C-Suite issue.
Certainly, most businesses did consider preventing discrimination an upper management issue, and one of moral importance to their central mission, but the individual Title III cases themselves were handled at a lower level. With the new electronic targets, compliance has now reached the top executives’ desks. And, in states with per-violation penalties, these challenges could mean a “bet the farm” risk.
With this background, what are our recommended best practices? Number one, be proactive and, without delay, establish a high-level position with responsibility for ADA compliance, where feasible, including forward-facing policy statements and procedures addressing both physical and electronic issues.
This position should be anchored in a positive mission to prevent discrimination and manage risk. Absent a point person, ADA issues tend to drift unattended within an organization.
Number two, ideally contemporaneously with number one and also without delay, businesses should engage IT, legal and other professionals familiar with the legal landscape in their jurisdiction and the predominant standards set by private organizations for ADA accessibility.
Under the guidance of the point person and retained professionals, organizations must test, audit and update their websites, apps, and any other electronic touchpoints available to the public.
Finally, as a company updates its touchpoints or develops new touchpoints, the point person for compliance should be part of the update and development teams. Mobile-ordering apps, in-store smartphone applications, electronic couponing, electronic kiosks and to-be-developed concepts likely all are coming to retail business.
As such, all companies should take a proactive approach to ADA compliance as the physical and electronic nature of retail commerce further blend together.
Arlene Kline is a partner in Akerman’s West Palm Beach office, where she defends labor and employment matters on behalf of banking, hospitality, healthcare, manufacturing, media, distribution, transportation, software and non-profit sector clients.
Jeffrey Mayer is a partner in Akerman’s Chicago office with extensive experience defending businesses facing labor, employment, and discrimination claims, including experience aggressively defending multi-location and class action Title III discrimination claims.
Jeffrey S. Horton Thomas is a partner Akerman’s Los Angeles office, where he counsels and defends employers in federal and California employment litigation, with particular expertise in disability accommodation and sex harassment and discrimination issues.