A website is a critical tool for nearly every business. It’s a powerful way to attract new customers and sell products or services. That is why many businesses devote substantial resources to ensuring their websites are current, user friendly, and secure. Many companies, however, fail to make their website accessible to those with disabilities, such as the blind or deaf. This common mistake has resulted in a drastic spike in lawsuits in what is arguably the fastest growing type of litigation in New York state.
The Americans with Disabilities Act (ADA) prohibits discrimination against persons with disabilities in various aspects of public life, including employment and access to public facilities. Most businesses ensure that their brick-and-mortar stores and corporate offices are ADA-accessible by providing familiar accommodations such as handicapped parking spots, ramps or elevators at entrances and exits, and by making restrooms wheelchair accessible. However, many organizations overlook their website and do not give any consideration to whether it is ADA compliant.
Title III of the ADA applies to private entities that own, lease, lease to, or operate a place of public accommodation. A place of public accommodation is a facility whose operations affect commerce and that fits within one of a dozen categories, including places of lodging, establishments serving food and drinks, places of entertainment and public gathering, service establishments such as medical and dental offices, sales or rental establishments, and many others. Because the ADA was first enacted in 1990, just after the World Wide Web was first invented and well before e-commerce, it does not address whether a website is a place of public accommodation and, therefore, subject to the ADA.
While the ADA does not specifically address websites, the U.S. Department of Justice (DOJ) has taken the position that websites are a place of public accommodation subject to Title III of the ADA. Recognizing the rapid growth of e-commerce and the inaccessibility of most websites, the DOJ began the process of developing rules for website accessibility in 2010. Many businesses wanted rules published, if for no other reason than to provide clear guidance regarding their responsibilities in this developing area. For the past seven years, the DOJ repeatedly delayed the process and never issued any rules. On July 20, 2017, the DOJ officially placed its rulemaking for ADA website accessibility on its inactive list.
Even though no formal rules have been issued, the DOJ has opined that a website is accessible under the ADA if it complies with the Level AA standards of the Web Content Accessibility Guidelines (WCAG) 2.0. In fact, the DOJ has entered into numerous settlements and consent decrees with both private companies and local governments requiring that their websites comply with WCAG 2.0. Thus, a company whose website complies with WCAG 2.0 faces a substantially reduced risk of litigation based on website accessibility.
The requirements of WCAG 2.0 are too exhaustive and technical for this article. However, an example of a common issue that renders many websites inaccessible is helpful to an understanding of what is at issue. For instance, many websites require the use of a mouse to complete a transaction, or to access or submit certain information. This may preclude a blind person from being able to fully use the website in the same manner as other consumers. If WCAG 2.0 standards are implemented, this barrier will have to be removed, giving a blind person full access to all website functions using just the keyboard.
A challenge for many companies is that their internal IT staff is not trained in website accessibility and may lack the skills to implement WCAG 2.0 changes. Others do not own or operate their websites, but rely on third-party website developers. Unfortunately, many website developers are also not trained in ADA-accessibility issues, or familiar with WCAG 2.0, and their contracts limit their liability. Ultimately, companies may have to contract with specialized vendors to make their websites WCAG 2.0 compliant.
Businesses must take this issue seriously. The number of lawsuits being filed for website inaccessibility is rapidly growing, particularly in New York. Law firms often rely on a single plaintiff, who is typically blind, to sue numerous entities under the ADA and related state and city laws. In some cases, these law firms rely on the same plaintiff to file multiple lawsuits against various entities in a short period of time. These lawsuits are often essentially “cut and paste” actions, containing almost identical allegations.
Business owners are understandably frustrated, and question whether some of these lawsuits are filed for the honorable purpose of ensuring ADA compliance, or just an attempted money grab. Thus, many companies have vigorously challenged these lawsuits and attempted to have them dismissed at the outset. But those efforts have largely failed, particularly in New York state.
In July of this year, a federal judge in the Southern District of New York (located in Manhattan) denied a motion by the popular hamburger chain Five Guys to dismiss a lawsuit alleging that its website was inaccessible to the disabled. The plaintiff in that case alleged that she attempted to buy a cheeseburger on Five Guys’ website using a screen reader, but was prevented from adding the toppings of her choice to the burger because the website lacked the necessary software requirements. The plaintiff alleged that because she could not place a proper order due to the website’s limitations, the company violated Title III of the ADA as well as New York State and New York City law. The court determined that Five Guys’ website is subject to the ADA and related state and city laws, all of which require accessibility for the disabled. The case is ongoing and a final determination on liability has not been reached.
The Five Guys case is not unique. A similar decision was issued on Aug. 1, 2017, by a federal judge in the Eastern District of New York, which is based in Brooklyn. In that case, the plaintiff alleged that he was unable to use a website owned by Blick Art Materials, LLC to purchase art materials. The court determined that the plaintiff has a right to effective access to the company’s website to make purchases, learn about products and enjoy other goods and services provided to the general public on the website. This case is also still in active litigation.
These court decisions are not dispositive, and those companies may ultimately succeed in defending the actions brought against them. This is a developing area of the law, and there is no statute or regulation that explicitly requires companies to make their websites WCAG 2.0 compliant. However, compliance with this standard is the best way to insulate a business against an ADA-accessibility lawsuit and, more importantly, will ensure that disabled members of our community have equal access to websites.
Businesses with public websites should take action now, not wait for a demand letter or lawsuit. It is much more cost effective to make ADA accessibility part of your website-development process, and to establish a plan to make your current website WCAG 2.0 compliant. Website accessibility planning should also include a review of contracts with website developers, and a review of insurance policies with experienced legal counsel, to ensure that responsibility for ADA compliance is adequately addressed.
Robert C. Whitaker, Jr. is a partner in the Labor & Employment practice group at Hancock Estabrook, LLP in Syracuse. Contact him at (315) 565-4500, or email: email@example.com.