Since the Americans with Disabilities Act (ADA) was passed in 1990, businesses have been vulnerable to “drive-by lawsuits” alleging that their facilities are physically inaccessible to disabled customers or guests. The new trend in ADA litigation is the “surf-by” lawsuit—disabled individuals who sue under the ADA because a business website they visited was allegedly inaccessible to them. The U.S. Department of Justice also has been aggressively enforcing website inaccessibility violations even though it won’t issue regulations until 2018.
If you’re still not convinced that the threat of website accessibility lawsuits is real, consider that in March, a California trial court became the first in the nation to rule on summary judgment that a retailer’s website violated the ADA and California’s anti-discrimination law (the Unruh Act). The court determined that the website was inaccessible to visually impaired individuals. The judge slapped the retailer with $4,000 in statutory damages under the Unruh Act, ordered it to either modify or remove the website, and awarded the plaintiff its attorneys’ fees, which are estimated to be in the six-figure range.
What can business owners do to prevent being sued for website accessibility violations? Start with these steps:
- Determine if the ADA applies to you. Title I of the ADA applies to private employers with 15+ employees. Covered employers may not discriminate against employees with disabilities and must make reasonable accommodations for them. In addition, accessibility may be an issue for business websites that allow job applicants to apply online. Title II applies to State and local governments. Under Title III, the website of an organization that qualifies as a “public accommodation” must be accessible to individuals with disabilities. Courts are split on whether “pure Internet” organizations (i.e., those without a bricks-and-mortar presence) are subject to website accessibility requirements.
- Identify accessibility issues. If the ADA applies to you, determine if your website poses accessibility problems to disabled individuals. The DOJ has not yet officially adopted rules for website accessibility, but is considering two sets of standards – the Web Content Accessibility Guidelines (WCAG) 2.0 created by the World Wide Web Consortium and the Electronic and Information Technology Accessible Standards published by the U.S. Access Board for compliance with Section 508 of the Rehabilitation Act. Common accessibility barriers include lack of closed-captioning for audio and video content, a site navigation structure unfriendly to keyboard-only users, and failure to provide descriptive text for images and non-text content.
- Get expert help. Web accessibility standards are highly technical. Consider consulting an IT expert with web accessibility experience to help you identify accessibility problems and solutions. You should also consult a lawyer with ADA experience to help you evaluate and mitigate legal risk, or to devise a defense strategy if you’ve already received a demand letter threatening litigation.
