The Americans with Disabilities Act (the “ADA”) has been a tremendous source of litigation since its passage nearly thirty years ago. The ADA was originally put in motion to provide equal access to physical locations and services. It generally requires establishments to provide people with disabilities easy access to a business. But in 2016, the ADA began to include websites. The ultimate goal of the ADA is to eliminate exclusivity and offer an equal experience to all people. Thus, the logic goes, businesses should be inviting to everybody via physical location and website.
Over the past year, plaintiff attorneys have developed a cottage industry by filing thousands of lawsuits alleging that company websites are not accessible to the blind or visually impaired. From 2017-18, lawsuits targeting website compliance have increased by 177%, with more than 2,000 filed in 2018. Often times the same disabled individual (with the same attorney) will file these claims. They seek an injunction to make the company’s website ADA accessible and attorneys’ fees. A nominal settlement will quickly follow (typically a few thousand dollars) with the vast majority of this going to the attorney. Florida is a breeding ground for this drive-by litigation, and it is frustrating the federal courts. See Price v. Escalante – Black Diamond Golf Club LLC, No. 5:19-CV-22-OC-30PRL, 2019 WL 1905865, at *1 (M.D. Fla. Apr. 29, 2019).
Lack of Guidance
It is now generally settled (at least in the Eleventh Circuit) that if a business operates a brick-and-mortar facility which is open to the public, then its website is part and parcel of a public accommodation and also subject to ADA requirements. The problem arises from a lack of guidance as to what constitutes “website compliance.”
As noted, the ADA focuses on discrimination that occurs in person or through a personal interaction, such as wheelchair accessibility. There is plenty of guidance, and generally clear standards, in this context. But neither Congress nor the Department of Justice (the primary federal government agency responsible for enforcing the ADA) have clarified the scope of the ADA in terms of website accessibility.
Courts Have Turned to Private Industry Standards
In the void created by the absence of government regulations, courts have turned to private industry and associations for an applicable standard. Gil v. Winn Dixie, out of the Southern District of Florida, is the first reported ADA website accessibility case to go to trial. 257 F. Supp. 3d 1340, 1342 (S.D. Fla. 2017). There, the court found that Winn Dixie’s website was a place of public accommodation subject to the ADA because it was largely integrated with its physical store locations. After reaching this threshold issue, the court reviewed the website to determine if it was compliant. The court relied on the Worldwide Web Consortium’s Web Content Accessibility Guidelines 2.0 (“WCAG”) as the applicable benchmark, noting that “WCAG is the industry standard for accessibility.”
WCAG 2.0 outlines four principles for website design. In short, websites must be:
- Perceivable – which means users must be able to perceive the information being presented-
- Operable – which means that users must be able to operate the interface;
- Understandable – which means that users must be able to understand the information as well as the operation of the user interface; and,
- Robust – which means that users must be able to access the content as technologies advance.
The best defense, of course, is to ensure a compliant website. But this can be expensive. WCAG 2.0 has many specific requirements, and given the breadth of content offered on most websites, compliance will almost always require analysis by a consultant or expert. Further, this can be a recurring expense on the balance sheet, as any updates or changes to the website would also require review.
In a recent letter on this topic, the DOJ suggested that it does not view compliance with every aspect of WCAG 2.0 as required under the ADA. Instead, “public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication.” Some businesses have used this as an opening to adopt lower cost options, such as offering a phone number to provide the kind of information otherwise available on their websites. The effectiveness of these alternatives is yet to be determined. At the moment, and until Congress acts, businesses seeking to minimize litigation risk should ensure compliance with WCAG 2.0, or at least work towards that goal.
Like their predecessor “testers,” plaintiffs who file these website claims tend to be repeat or serial filers. As opposed to their predecessors, however, they do not have to actually visit the company facility (or even leave their house). They can instead access the company’s website from wherever they are, often accompanied by an expert who can document any problems with the website. Consequently, these cases are often “ready-to-roll” upon filing. Given this, it is best to address any such claims promptly with the benefit of counsel familiar with these issues.
Henderson Franklin and its team of employment attorneys stand ready to assist clients facing this new wave of ADA litigation. If you have any questions or concerns, please feel free to contact us by phone at 239-344-1100.