Lawsuits filed by vision-impaired plaintiffs alleging access barriers to digital content on websites and mobile applications are the new darling in the ADA litigation world.
These claims allege violations of Title III of the Americans With Disabilities Act, and they are being filed at a rapid rate—in 2015, more than 240 businesses were sued in federal court for alleged accessibility barriers on their websites. Defendants ran the gamut from large national retailers to small mom-and-pop operations.
So far, most cases seem to deal only with barriers for low-vision or blind individuals, but those involving hearing-impaired individuals cannot be far behind. Once retailer, restaurant, and hotel websites have been redeveloped, the service industry -- real estate developers, health care providers, banks, and such professional service providers as law firms and accounting firms – may be the next target.
The risk of litigation is real. Today, nearly every business hosts a website, and most have applications for mobile devices, but they often overlook compliance with Title III of the ADA. Many of those websites and apps cannot accommodate the tools used by blind and low-vision individuals to access digital content. That means that the websites and mobile applications are inaccessible to the more than 7 million blind and visually impaired consumers in the U.S.
Title III applies to any “place of public accommodation,” as defined in 42 U.S.C. §12181(7). Courts have struggled with whether Title III applies to websites, and that has led to the question of whether a website should be considered a public accommodation under the law.
Circuit courts have taken two positions. The Third, Sixth, Ninth, and Eleventh Circuits have found that websites are not places of public accommodation, limiting the definition of a public accommodation to a brick and mortar store or other physical location unless there is a nexus between the website and an actual physical location.
According to these decisions, web-based businesses like eBay would not be covered, but businesses such as Wal-Mart would be. The First, Second, and Seventh Circuits have found websites to be places of public accommodation regardless of their nexus to a physical location.
As a result, businesses that operate nationally and get sued for ADA website accessibility in more than one jurisdiction may face different results in different circuits. Any governmental entity, or any recipient of federal funding, must maintain its websites in a manner that is accessible to the visually impaired.
Adding to the confusion is that neither the ADA language nor the Department of Justice addresses websites and mobile applications. The standard for website accessibility and compliance has become the World Wide Web Consortium’s (W3C) Web Content Accessibility Guidelines 2.0 (WCAG), Level AA, which are likely to be adopted by the DOJ in its ADA regulations.
Under the ADA, plaintiffs can only obtain injunctive relief and attorney’s fees and costs, including expert fees. Ostensibly, the goal of the lawsuits is an injunction requiring companies to comply with website accessibility guidelines. This usually means websites and apps must be compatible with assistive technologies such as screen reader software, large-print software, and braille output devices – tools that help blind or low-vision individuals navigate digital content.
Most of the lawsuits resolve through private settlements, often fairly quickly. Terms may include the payment of attorney’s fees and costs, including expert costs; nominal consideration to the plaintiff for a release of claims and confidentiality; a timeline for redevelopment of the website or app; and an agreement to commit to future monitoring. Quick settlements may lead to lower legal fees, which may provide funds that can be invested in the redevelopment of the website or app.
Given the current legal environment, the lack of clear statutory guidance, and the DOJ's aggressive enforcement actions, businesses should make sure their websites and apps conform to the accessibility standards, especially where litigation costs exceed the cost of compliance. This can be accomplished by hiring consultants to audit the websites and apps to make sure that they comply with the law.
Once deficiencies are identified, changes can be made, and a website accessibility policy statement should be published on the website. The policy should provide for regular accessibility testing to make sure the website or app remains in compliance with the law.