A recent wave of lawsuits and demand letters alleging violations of the Americans with Disability Act has begun hitting businesses across the United States. Their new target: company websites. Last year, plaintiffs filed over 800 federal lawsuits — many of which were filed as class actions — in which they alleged businesses were violating the ADA by not providing websites that were accessible to disabled individuals and, in particular, those with visual or hearing impairments. Such filings have continued into 2018, as have demand letters sent by law firms and advocacy groups, informing companies that their websites are not compliant with the ADA and demanding that they be fixed immediately or else face a lawsuit.
Websites as “places of public accommodation”
Title III of the ADA prohibits discrimination based on disability in places that are open to the public and requires companies to make reasonable accommodations to eliminate barriers to accessibility. Title III applies to most businesses, including hotels, restaurants, stores, office buildings, and medical, law and accounting offices. Since the ADA was enacted in 1990, we have all become accustomed to seeing the signs that a company has taken steps to make their business more accessible — from wheelchair ramps to wider doorways to handicap parking spaces. What many companies may not be aware of is the fact that the Department of Justice, disability advocacy groups, plaintiffs’ law firms, and many courts are taking the position that a company’s website is also a place of public accommodation that must be accessible for individuals with disabilities.
Many businesses use their websites as a major way they interact with the customers, potential customers, and job applicants. People with disabilities access websites in a variety of ways, and common website problems may create barriers for these individuals. For example, a blind person may use screen-reading software, which reads the text of the website out loud to the individual. If the website has used images to convey information without using text alternatives, the screen reading software cannot convey that information and the blind person will not be able to use the website.
Private companies won’t find a law or regulation on the books that says they have to make their website accessible, but the Department of Justice (DOJ), which is responsible for enforcement of the ADA, has taken the stance since 2003 that all websites need to be accessible for disabled persons. Unhelpfully, the DOJ has repeatedly failed to promulgate an official rule addressing website accessibility for private companies, leaving companies without any official guidance. The DOJ was expected to promulgate a rule requiring websites for private companies to be compliant with the “World Wide Web Consortium’s Web Content Accessibility Guidelines Level AA” — otherwise known as WCAG 2.0 AA. Instead, at the end of 2017, the DOJ withdrew its proposed rule on website accessibility, but at the same time, it announced that it had “long considered” websites to be covered by Title III of the ADA.
WCAG 2.0 is a set of guidelines for making websites accessible to all. The focus is on ensuring that the website is perceivable, operable, and understandable for those with impairments. This includes, for example, providing text alternatives to any non-text images and providing captions for audio content. WCAG 2.0 is split into three levels of conformance — A, AA, and AAA — with A being the minimum level and AAA being the maximum level. The federal government and some state governments have adopted the middle level, AA, as the level of accessibility that their own government websites must meet. Without any better guidance from the DOJ to go by, most businesses presume WCAG 2.0 AA compliance is the proper level of accessibility for their websites as well.
Lawsuits abound, despite no formal rules for businesses to follow
Disability advocacy groups and plaintiffs’ law firms are not waiting for companies to make their websites accessible on their own initiative. The lack of an official rule on website accessibility does not stop individuals claiming they were denied access to a company’s website from suing under Title III of the ADA. Hundreds of such lawsuits have been filed across the county in the last few years as class actions. This includes lawsuits filed against Hobby Lobby Inc., Winn Dixie Stores, Inc., CVS Pharmacy, Inc., Target, Inc., and many others. Under Title III of the ADA, plaintiffs can only seek an injunction, not monetary damages. The lawsuits seek a court order that requires the company’s website to comply with accessibility standards (usually, WCAG 2.0 AA standards). However, plaintiffs can seek attorneys’ fees under the ADA. Moreover, some states and local jurisdictions have accessibility laws (such as the New York State and New York City human rights laws) that allow plaintiffs to seek additional remedies on top of an injunction, including compensatory damages.
Without a U.S. Supreme Court or even many circuit court rulings on the issue, the courts are splitting in their interpretations of the ADA, with differing views on whether online-only companies without a physical location are covered, and whether providing a non-online alternative is sufficient (such as a restaurant that has both online and telephone ordering options). The vast majority of rulings have been in favor of plaintiffs, not businesses.
In the meantime, Congress is considering a bill that would make it more difficult for plaintiffs to file all types of ADA lawsuits, including those regarding website accessibility. The ADA Education and Reform Act (HR 620), which has passed the House, would require a potential plaintiff to send a business a pre-suit notice of the alleged access barriers and would give the company time to fix the problem before the plaintiff could file a lawsuit. The bill also requires the DOJ to develop a program to educate property owners about the ADA’s requirements. The Senate has yet to take any action on HR 620.
As if ADA Title III requirements weren’t enough to worry about, plaintiffs’ firms are now sending letters to employers demanding that online employment applications must also be accessible to blind or disabled job seekers under Title I of the ADA, which prohibits discrimination in hiring decisions. So far, there is no court guidance on this issue. In the meantime, businesses that are already working toward accessibility for customers on their websites may want to consider increasing accessibility for employment applicants as well.
Companies must carefully consider many circumstances when deciding whether to redesign their website to address accessibility concerns. For legal assistance on website accessibility and other ADA issues, please contact the author or your McAfee & Taft labor and employment attorney.