2016 saw a very large number of lawsuits, particularly class actions, which pertained to alleged violations of the Americans with Disabilities Act (ADA) and whether certain companies’ web content was accessible to disabled people in a way that comports with the Act’s requirements. See, e.g., Lewis Wiener & Alexander Fuchs, “Trending: ADA Website Accessibility Lawsuits,” Law360, Dec. 15, 2016, at https://www.law360.com/articles/871491/trending-ada-website-accessibility-lawsuits (last visited Jun. 27, 2017). This article examines this litigation trend and assesses the issues at play in determining whether a given web site is compliant with the ADA.
As legal analysts explain, “Over the past year, over 240 lawsuits, most of them class actions, have been filed against companies, principally in the retail, hospitality and financial services industries, alleging violations of the Americans with Disabilities Act for failure to maintain websites that are accessible to the blind and visually impaired. The trend is likely to continue into 2017. The steady shift in our economy from traditional brick-and-mortar stores to online commerce has brought increased attention to website accessibility. Given the increasing number of website accessibility suits, companies that maintain a web presence must understand the requirements of the ADA and ensure their websites are ADA compliant.” Id.
Given that such lawsuits were numerous in 2016 and that this trend is considered likely to continue in the years to come, it is important to parse out the legal issues involved in cases of this kind, and attorneys in the field would be well-served, as would companies who are potential defendants in such litigation, to seek the guidance of expert witnesses in the industry who can assess issues of compliance and the ADA. Specifically, medical experts, experts on the ADA, technology and website experts, and the like are all extremely valuable in providing assistance to both prospective plaintiffs and defendants in cases of this nature. The difficulty lies in determining what it takes to meet the ADA’s mandates, and that task is made substantially easier by expert witness evidence and opinions.
The ADA prohibits discrimination against disabled parties in “places of public accommodation.” It is noteworthy that “[a]s originally enacted, the ADA did not expressly include websites as places of ‘public accommodation,’ principally because the internet was in its infancy at the time. Over the ensuing years, as the internet has become ubiquitous and a seemingly unlimited number of goods and services have been made available online, courts have interpreted places of ‘public accommodation’ to include websites.” Id. Specifically, many of the lawsuits that have been brought of late focus on the accessibility of web content towards the blind and visually impaired. See id.
Also of import is that there is somewhat of a division among certain federal circuit courts, which means that attorneys will require the guidance of experts in their particular jurisdiction. For example, the Seventh Circuit has held that “websites without connections to physical commercial entities are nevertheless ‘places of public accommodation’ for purposes of the ADA.” Id. On the other hand, the Ninth Circuit has “adopted a more restrictive definition of ‘place of public accommodation,’ requiring a nexus between the website and the service of a physical ‘place of public accommodation’ like a brick-and-mortar store. Even employing the more restrictive definition, however, a website inaccessible to visually impaired individuals may still violate the ADA if the website provides unequal access to the ‘services’ that may be available at a physical location.” Id. What is important to note is that both circuits do appear, in many (if not most) instances, to make companies vulnerable to ADA-based litigation if they have a web presence.
Accordingly, is important for companies and attorneys in the field to have familiarity with ways to make a website accessible to disabled individuals and in compliance with the ADA. The reason this issue is so tricky is that it is not always clear when a website is accessible enough. The US Department of Justice does offer some guidance in this respect, by expressing that websites should incorporate certain screen reader technology in order to be accessible to the blind and visually impaired. See id. However, “[e]ven websites that may have been designed initially to be compatible with screen reader software may become inaccessible when new features are added or the website is updated. Department of Justice technical guidelines concerning how websites should comply with the ADA, originally set for release in 2010, have been delayed until 2018.” Id. Because of the delay in DOJ guidance, potential defendants may be somewhat in the dark as to precisely what they must do to meet the requirements of the ADA and avoid lawsuits by disabled individuals. Moreover, “[t]he lack of guidance on website compliance and relative ease in identifying inaccessible sites has led to the proliferation over the past year of class action enforcement suits on the part of private individuals. In 2016 alone, multiple lawsuits have been filed…alleging that some or all of the companies’ websites are inaccessible to the blind….240 companies…faced website accessibility lawsuits over the past year. These suits, driven in large part by the relatively quick and easy settlements that plaintiffs’ counsel have been able to obtain, expose companies to damages, potentially costly litigation and injunctive actions and are red flags to Department of Justice officials tasked with enforcing the ADA.” Id.
Whenever there is a lack of official guidance by a government agency, the courts are often forced to fill in and make judgments that interpret the laws, as applied to a particular set of facts, as best as they can. In such cases, judges and juries will undoubtedly be guided by expert testimony on both sides in order to determine whether or not a given website comports with the ADA.
Also of note is that this trend is likely to continue and that “[t]he large number of ADA website accessibility lawsuits recently filed illustrates the potential risks faced by any company offering ‘a place of public accommodation’ online. The steady source of attorneys’ fees these suits provide to plaintiffs’ counsel and the relative ease with which allegedly offending sites can be identified make it likely that these actions will continue to be filed. As large companies bring their sites into compliance, either voluntarily or following legal action, plaintiffs may begin to focus on smaller online retailers or mobile applications. Accordingly, it is important to understand the need for ADA compliance and the pitfalls posed by noncompliance in an effort to limit the risk of potential litigation.” Id.
Until 2018, when the DOJ issues new guidelines on this matter, it is extremely likely that litigation of this type will proceed. Even if such guidelines are issued, the courts will still be tasked with interpreting them. This set of circumstances virtually guarantees substantial numbers of lawsuits of this type and that attorneys on both sides will be quite occupied with this issue over the years to come. Accordingly, both attorneys and corporations with a web presence will require expert witnesses to help them navigate this somewhat murky legal question, and their guidance may make the difference in the outcome of many such cases.