Chances are you’ve recently been inside a store, restaurant, movie theater or other place open to the public, during which you’ve likely noticed features designed to make the building accessible for people with disabilities. Things like automatic doors, railings, chairlifts, wheelchair ramps and handicap accessible restrooms. The requirement that places open to the public be accessible for disabled persons is a mandate of Title III of the Americans with Disabilities Act (ADA), which among other things prohibits discrimination against the disabled in places of “public accommodation.”
While it is easy to think of a building as a place of public accommodation, many federal courts recognize websites as being places of public accommodation as well (though others have found that places of public accommodation must be physical sites). Thanks to this recognition, there has been a sharp uptick in recent years in the number of ADA lawsuits challenging the accessibility of websites. While this article primarily focuses on web users with visual impairments and the need to accommodate such limitations, it is important to note that when it comes to making a website ADA compliant, a website must be accessible not only to people with visual handicaps, but with hearing, motor skill and other limitations. ADA compliance in the digital world extends not only to websites, but to smartphone applications as well.
While most ADA lawsuits are brought by disabled people with legitimate concerns that their rights under the law to equal access have been ignored, unfortunately there are some enterprising disabled folk who use this law to make a living. In the past, these professional plaintiffs would team up with attorneys, scout out places of public accommodation that they could not access (for example, a store with steps at the entrance and no wheelchair ramp), and then bring suit alleging violation of the ADA. Now that more and more physical places open to the public have become accessible due to increased awareness of ADA obligations, stricter code requirements and greater enforcement, finding non-compliant public places is becoming harder and harder. Accordingly, the latest trend is for visually impaired or blind individuals to surf the Internet, find websites they cannot access using screen reader software (discussed below), and then bring lawsuits alleging ADA violations. The list of companies that have been the subject of such lawsuits is quite long, and includes such well-known names as Target (no pun intended), Panera Bread, Reebok and even the U.S. Government.
Many of these plaintiffs and their attorneys are happy to make a quick buck, and agree to settle their claims shortly after filing suit. Website owners often elect to settle, simply because it’s cheaper than spending money on legal fees. For those that choose to fight, the results have been a mixed bag. Several companies have prevailed on their lawsuits, particularly those located in jurisdictions where the courts don’t consider websites places of public accommodation. Others have racked up huge sums in legal fees attempting to get the claims dismissed pre-trial, only to quietly settle later on after the court has rejected their efforts. To date only one company, Winn-Dixie Supermarkets, has litigated an ADA website accessibility case all the way to trial, and they did so without success in June of this year.
Private lawsuits are not the only thing companies with publicly accessible websites have to worry about. They must also contend with enforcement actions instituted by the Department of Justice (DOJ), the government agency responsible for enforcing compliance with the ADA. The DOJ has pursued charges against a number of high-profile companies in recent years regarding website accessibility, including H&R Block in 2014 and Carnival Cruise Line in 2015. Both companies ultimately elected to settle with the government and make costly changes to their websites, apps and other online tools.
So how does one avoid their company being the subject of such a lawsuit? The first thing you should do is arrange with your IT person to place a phone number on the website that can be accessed using the screen reader software I alluded to earlier. Screen reader software takes the text a sighted person sees on their video screen, and converts it into either synthesized speech, or displays the information on a braille display that a visually impaired or blind user can read with his or her hands. The phone number should be accompanied by a screen reader compliant notation stating that by calling the number, the user will be connected with a customer service agent who will read them the information on the website, and assist with placing an order should they choose to do so. This strategy may deter lawsuits, or even defeat them in certain jurisdictions (Domino’s Pizza prevailed in such a lawsuit, based in part on the court’s determination that the company met its ADA obligations by providing a 24-hour toll-free phone number that enabled blind customers to order by phone).
To best protect against lawsuits, however, your company should take the steps necessary to make its website compatible with screen reader software for the visually impaired, and to optimize the site so that it is accessible by people with other types of disabilities. This is a task best left to a web designer knowledgeable about the ADA and related website compliance rules. While there are countless talented designers in the field, many lack this important knowledge, so selecting a qualified one is important. Once you have selected a qualified web professional, you’ll want them to conduct a full audit of your website with the goal of pinpointing any content that is non-compliant, and formulating an overall plan to optimize the content that is there, make it accessible, and bring the website into full compliance.
In conclusion, ADA compliance is the law, and the law is beginning to catch up to digital places of public accommodation (i.e. your website). Maintaining a non-compliant website in today’s litigious environment is risky. With many of the big boys of business having already been hit with ADA accessibility lawsuits and having made modifications to their websites in response, the plaintiffs behind these lawsuits are no doubt beginning to turn their attention to other lesser-known entities. One may very well be paying a visit to your website as you read this article. So I ask, does your company’s website comply with the Americans with Disabilities Act?
Roberta C. Pike, Esq., Kenneth R. Tuch and Laurence I. Cohen, Esq. are partners with Pike, Tuch & Cohen, LLP, with offices located at 1921 Bellmore Avenue, Bellmore, New York 11710. The firm specializes in commercial and employment litigation, including misclassification, wage and hour, employment practices, franchising and business practice matters, and transactional matters. The foregoing is provided solely as general information, is not intended as legal advice, and may not be applicable within your jurisdiction or to your specific situation. You are advised to consult with your attorneys for guidance before relying upon any of the information presented herein.