Surf-By Lawsuits: Is Your Company’s Website ADA Compliant?

Title III of the Americans with Disabilities Act (ADA) provides “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation by any person who owns, leases (or leases to) or operates a place of public accommodation.” Historically, a “place of public accommodation” was interpreted to refer to a physical location (i.e. a brick and mortar retail location or a park). While the ADA limits liability to injunctive relief and attorneys’ fees for prevailing parties, these lawsuits present significant risks for businesses.

In recent years, the number of ADA lawsuits has skyrocketed, especially in Florida, Texas, Arizona, Georgia, and California. Many of these lawsuits have been referred to as “drive-by” lawsuits because they are filed by disabled individuals who simply drive by a store, restaurant, or some other place of public accommodation, spot accessibility issues (such as a handicap parking sign that is too low or a ramp that is too steep), and then sue the establishment without any warning. Often times, the disabled individual or “tester” has never even patronized the business. These cases seldom go to trial; instead, they settle because it is cheaper for the business to make the construction fix and pay off the plaintiff’s attorney than to incur the costs of defending a federal lawsuit.

Surf-By Lawsuits

As the number of drive-by lawsuits under the ADA has risen, plaintiff’s attorneys and disability rights advocacy groups have set their sights on a new target – your company’s website. These individuals troll your company’s website (or mobile app) to determine if it is fully accessible to the disabled. The checklist can be daunting:

• Are all the photos embedded with alternative text that can be read aloud by software for the visually impaired? 
• Are all the videos captioned and do they include embedded soundtracks with descriptions of what is going on for the hearing impaired? 
• Are all the features accessible by keyboard (and not just the mouse) for the mobility impaired?

All companies who use websites to sell products or services are at risk. Indeed, in the past year, a handful of law firms have sent thousands of letters to private businesses alleging ADA violations based on the argument that their websites are not sufficiently accessible to individuals with disabilities. These letters usually claim that unless the company modifies its website to meet the standards set forth in the Web Content Accessibility Guidelines (WCAG 2.0 AA) created by the Web Accessibility Initiative of the World Wide Web Consortium, the company will continue to violate the ADA and a lawsuit will be brought. The WCAG 2.0 AA standards are a set of technical standards, developed by individuals and organizations from around the world, with a goal of providing a single shared standard for web content accessibility. The demand letter then asks the company to pay a settlement (based on the alleged fees and costs incurred by the attorney) and agree to modify its websites and permit the plaintiff’s experts to assist and monitor the website’s compliance with the WCAG 2.0 AA standards. Often, these demand letters are accompanied by a form settlement agreement.

No Consistent Precedent

Because the ADA was passed in 1990, a year before the Internet became publicly available, Congress could not have known the extent to which online shopping would dominate today’s commerce. The ADA provides little, if any, guidance as to whether company websites constitute “public accommodations” under the ADA, and courts have not provided much clarity on this issue either, as different jurisdictions have come to varying conclusions. These disparate conclusions fall under three general categories: (1) websites are not physical locations like the examples listed in the statute, so they cannot be public accommodations under the ADA; (2) websites may constitute public accommodations if there is a nexus between the website and a physical location; or (3) websites themselves constitute public accommodations under the ADA, even if the websites do not have a nexus to a physical location. The Department of Justice, however, which is tasked with enforcing the ADA, has taken the position that all websites must be accessible to consumers with disabilities even if they are not tied to a physical place of business that is open to the public.

Issues Encountered In Accessing Websites

People with sight, hearing, or mobility disabilities may have difficulty accessing certain parts of websites and mobile apps unless certain accommodations are made. Just as businesses may need to make adjustments to their physical location so that disabled customers have easy access to the premises, companies may need to adjust certain aspects of their websites so that individuals with disabilities can take full advantage of all the features and services.

According to demands of disabled users, in order for a website to be accessible, it must use fewer pictures, present text in a format that is compatible with text-reading software, and employ design that allows for easy navigation. However, features that make a website more accessible for one disabled group are bound to be objectionable to another.

As a result, the WCAG 2.0 AA recommends that websites:

• Provide text alternatives for any non-text content so that it can be changed into other forms people need, such as large print, braille, speech, symbols, or simpler language; 
• Provide alternatives to prerecorded video-only and audio-only content; 
• Create content that can be presented in different ways without losing information or structure; 
• Make it easier for users to see and hear content by separating foreground from background; and 
• Make all functionality available from a keyboard.

What Should Your Company Do To Make Sure Its Website Is ADA Compliant?

The fastest, most reliable way to ensure that your website is in compliance with the ADA is to contact a qualified web design agency and have them perform an audit of all your online properties. Before hiring an agency, make sure the agency is fully conversant on ADA website compliance. A qualified web design firm will be able to identify any potential violations of the ADA and outline a plan for updating your online content and properties.

What Should Your Company Do If It Receives An ADA Complaint?

In the event that your company receives a demand letter or a complaint from an attorney or a disability rights advocacy group, you should immediately contact your lawyer. ADA claims can be complex and costly, and your counsel will have ways to minimize your risk and exposure.