In the last few years, many businesses have been the unhappy recipient of a lawsuit filed by someone who claims to be blind or visually impaired, alleging that the company’s website violates the Americans with Disabilities Act (“ADA”) because it fails to work with “screen-reader” technology used to navigate the internet, such as JAWS or VoiceOver. But screen reader technology is only one accessibility issue facing businesses with a website or an app. Such online platforms also need to address color contrast, closed captioning for audio, and text-based alternatives for video and graphics, in addition to others.
When the pandemic put a temporary pause on the filing of new lawsuits, many lawyers had both diminishing profits and time on their hands to peruse websites, leading to an increase in these types of cases. The latest available statistics from 2020 show over 3,500 such cases filed in New York alone. Retail businesses are currently the biggest target, accounting for almost 50% of cases, but other sectors are vulnerable too, including hotels, restaurants, and even bowling alleys and art galleries. Companies that have been fortunate enough not to be sued yet should conduct an audit of their websites and apps now and take steps to head off potential claims.
The Law
Title III of the ADA requires “places of public accommodation” to provide equal access to everyone regardless of disability. The people who file these lawsuits take the position that websites are, legally, places of public accommodations. The courts, however, are split on this, depending on the jurisdiction where a lawsuit is filed. Some federal district courts take the position that a website standing alone, without a connection to a brick and mortar establishment, is not a place of public accommodation. Others do not require such a connection to find that a website has violated the ADA and/or state or local disability accommodation laws. And because websites are available in every state, a business that is based in any state could still be sued in another based on its website if it makes sufficient online sales or otherwise has minimum contact with the state to support jurisdiction. Thus, even if a website is compliant in one jurisdiction, it may be found to be non-compliant in another.
The ADA was passed in 1990, before there was an internet. Even more than thirty years later, there are no federal standards governing website compliance with the law. The U.S. Department of Justice (“DOJ”) is tasked with enforcing the ADA, yet it has not promulgated any rules governing website or app accessibility. In the absence of governmental authority, litigants and courts look to the Web Content Accessibility Guidelines (“WCAG”), published by the Web Accessibility Initiative of the World Wide Web Consortium, the main international standards organization for the internet. Although WCAG has not been adopted by the DOJ, and thus does not have the force of law, it is the de facto benchmark by which website accessibility is measured because there simply are no other generally accepted standards.
The Lawsuits
The ADA does not provide for money damages to aggrieved plaintiffs, although some analogous state and local antidiscrimination laws do. Instead, the ADA provides for only injunctive relief and attorneys’ fees. Consequently, the same handful of attorneys often file hundreds of lawsuits in the name of the same plaintiffs against different companies. Depending on jurisdiction, the average settlement of such lawsuits can range between $7,500 and $15,000, to compensate the plaintiff for their attorney’s fees and those of an “expert” that they often claim to have paid to conduct an audit of the website to look for errors.
These attorneys know that this amount is almost always less expensive than the legal fees of litigation. But settling a case early, before discovery and depositions have been held, means that the company writing the check will never know if the person suing them actually exists. This financial calculus creates an opportunity for unscrupulous attorneys to perpetrate fraud by filing and settling cases in the name of people who are unaware of the lawsuit. See https://www.justice.gov/usao-sdny/pr/attorney-charged-filing-fraudulent-lawsuits-under-americans-disabilities-act
Businesses Can Take Steps to Protect Themselves
Every company with a website or an app should immediately have an audit done to ensure compliance with the WCAG. There are many companies that will audit and provide updates to websites, but businesses should be wary of audits that find a few accessibility barriers but note overall substantial compliance, and deem the website compliant. The ADA is effectively a strict liability statute, such that any barrier to access is a technical violation. Attorneys who file website lawsuits will not be deterred by substantial compliance, but will focus on any single barrier that does exist.
Thus, if an audit uncovers any accessibility barriers, whether the visitor is using a desktop computer or a smart phone, businesses are well-advised to have their website developer update the code and take such other steps as may be necessary to completely remove the barriers. One potential deterrent to these suits is to have an accessibility statement prominently displayed on the homepage. If a business engages a website accessibility monitoring company, they may provide an accessibility “widget,” the presence of which on the website may also deter a lawsuit. However, full compliance requires updates of a website’s HTML, CSS, and JavaScript, among others.
Whether to settle a lawsuit is always a business decision, and economic considerations usually favor a quick settlement. ADA website lawsuits are a maddening nuisance for many companies. While there is no surefire way to prevent all lawsuits, there are steps businesses can take to protect themselves.
If you have questions about the information in this Legal Alert, please contact Valerie K. Ferrier, Co-Chair of Kane Kessler’s Labor & Employment Law Department, at vferrier@kanekessler.com or 212-519-5107.