Lawsuits Highlight Looming Requirements for Handicapped-Accessible Websites

October 26, 2017 | Shari Claire Lewis | Nancy A. Del Pizzo | Privacy, Data & Cyber Law

Today, most businesses are e-businesses, and all e-businesses should take note. There has been an explosion in the number of lawsuits filed in the Federal Courts seeking damages and injunctive relief under Title III of the Americans With Disabilities Act, 42 U.S.C. § 12182(a) (the “ADA”) based on alleged failures to provide accommodations that enable disabled visitors to access and use websites. While it is difficult to definitively quantify, some sources report that in excess of 700 federal lawsuits have been filed since 2015, with more than 400 of those filed in 2017 alone. The vast majority of these suits have focused on retailers and restaurants, but the claims are  not limited to those types of enterprises. Indeed, the New York Times recently reported that eight lawsuits were filed against New York colleges by a blind plaintiff who claimed that each school’s website was inaccessible and in violation of the ADA. Undoubtedly, there are also unknown numbers of cases making their way through the state courts, regulatory agencies and private claims that have been settled in response to pre-suit demand letters. It would be foolhardy not to recognize this burgeoning trend in potential litigation that could embroil any company or individual with a commercial website or offering political or social discourse through the Internet.

The trend is, perhaps, not entirely unexpected given the “virtual” marketplace’s growing prominence in the American economy and the characterization of the Internet as the 21st Century “virtual street corner” for the exchange of ideas. The question is what, if anything, need a company do to avoid becoming a target for litigation or having to defend itself should a claim be brought. That answer is far from clear.

By way of background, Title III of the ADA prohibits discrimination on the basis of disability in the activities of “places of public accommodations,” that is, businesses that are generally open to the public and fall into 12 broad categories. The categories include places of lodging, food service, exhibition, entertainment, sales, recreation, provision of professional and non-professional services (including healthcare and lawyers) and, most generally, places of “public gathering.”

In today’s environment, it has been successfully argued that many, if not all, commercial Internet presences qualify either directly as “public accommodations” or as a result of a “nexus” between the business’s physical location and website presence. In Andrews v. Blick Art Materials, LLC, No.: 17-cv-767, 2017 WL 3278898 (E.D.N.Y. Aug. 1, 2017), a judgment was entered against the retailer requiring it to make its website accessible or abandon the website’s use in its entirety. In Gil v. Winn Dixie Stores, Inc., 242 F.Supp.3d 1315 (S.D. Fla. 2017), the defendant was ordered not just to address accessibility issues in its own website content, but also the accessibility of third-party websites to which it linked, as well as pay plaintiff’s attorneys fees.

However, this is not the law throughout the United States. As the Blick court noted, the U.S. Court of Appeals in the Third, Sixth, Ninth and Eleventh Circuits have held that “places of accommodation” under the ADA must be “physical structures,” and “discrimination only exists if the discriminatory conduct has a nexus to the goods and services of a physical location.” See Blick, 2017 WL 3278898 at *4. Yet, since the earliest iteration of Internet law, the absence of any geographical boundary for website access has challenged application of established legal principles to the Internet. Unlike a patron of a brick-and-mortar enterprise, a website visitor may be located anywhere in the entire nation or even abroad. It is thus often difficult to predict whether the location of the website user or the website operator will define the federal or state law to be applied in any given circumstance.

Adding to the unsettled nature of the law is the absence of any regulatory guidance as to what may or may not be sufficient to meet the accessibility requirements of Title III. There are federal requirements applicable to federal websites only. See Federal Acquisition Regulation, United States Access Board Section 508 (governing electronic and information technology procured by the federal government.) However, the federal government has declined to issue any regulation concerning electronic accessibility in the private sector. Indeed, this July, the Department of Justice placed web regulation on it “inactive agenda” list.

Another potential source of guidance is the Web Content Accessibility Guidelines (“WCAG2”). WCAG2 is a private initiative intended to help websites become user-friendly to persons with disabilities. The WCAG2 offers standards for three levels of accessibility, (A, AA and AAA). As such, it is not now known which, if any, of those levels will be found to be “reasonable” in the context of any specific application or website. Plainly, until regulations are enacted by law, what is “reasonable” will largely be left to litigants to argue after they have been threatened with a suit or already been sued.

In our litigious society, it may be both reckless and bad business to do nothing while waiting for definitive standards to be enacted. Improved accessibility for the disabled individuals could increase web traffic and utilization, thereby potentially improving the website’s value as well as company good will. Conversely, other institutions have made the hard choice to remove certain website content or functionality when they determined that the cost of rendering it accessible outweighed the potential value of its continued presence. The problem of online accessibility should be addressed proactively and through a combination of technological and legal approaches. There are a variety of tools available that are designed to assist in assessing whether issues exist as to the accessibility of any given website. Website designers can likewise design features into new and upgraded existing websites that aid in making a website ADA-compliant by providing methods to assist disabled visitors to navigate and use the website. From a legal perspective, there may be terms governing website use as well as website vendors that may help to address the issue.

Finally, it is worth noting that, in the eventuality of a lawsuit, proactive good-faith efforts to provide ADA compliance will likely assist in establishing “reasonableness” even if those efforts eventually fall short of a later established standard.

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