The COVID-19 pandemic has driven even more commerce to online platforms and away from brick-and-mortar stores. This shift is likely to amplify litigation regarding website compliance under the Americans with Disabilities Act (the “ADA”).

Drive-By Litigation

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. In recent years, the ADA has been interpreted 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.

Plaintiff attorneys have developed a cottage industry over the last several years by filing thousands of lawsuits alleging that company websites are not accessible to the blind or visually impaired. In 2016 there were 262 website accessibility cases; by 2019 that number had risen to 2235. Often 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. Florida is a breeding ground for this drive-by litigation, and while the original targets were often large corporations, plaintiffs have moved on to small, locally-owned businesses.

What constitutes an ADA-compliant website?

It is now generally settled in Florida that if a business operates a brick-and-mortar facility that is open to the public, then its website is part and parcel of a public accommodation and also subject to ADA requirements. The real problem is the lack of guidance as to what constitutes “website compliance.”

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. Neither Congress nor the Department of Justice has clarified the scope of the ADA in terms of website accessibility.

WCAG 2.0

In the void created by the absence of government regulations, courts have turned to private industry and associations for an applicable standard. The Worldwide Web Consortium’s Web Content Accessibility Guidelines 2.0 has emerged as the benchmark. Under WCAG 2.0, 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 way to avoid liability 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 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.”

Take-Away

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 website. The effectiveness of these alternatives is yet to be determined, and until Congress acts, businesses seeking to minimize litigation risk should ensure compliance with WCAG 2.0 or at least work towards that goal.

Businesses who have received a demand related to their website, or who would like guidance on how to best avoid a lawsuit in this context, may contact us by phone at 239-344-1100.