Just about every limousine and luxury ground transportation company has a website, including those whose advertisements appear in this publication. It is clear from the look of many of those websites that plenty of thought, effort and expense went into their development and layout… and that’s certainly understandable.
In today’s highly competitive business environment, having a cutting-edge website is an important and indispensable tool for inter alia attracting customers, booking reservations, and providing notice of privacy policies and terms. However, some of the people who may be looking at your website are not prospective customers looking to book a ride. Rather, they’re prospective plaintiffs looking to “take your company for a ride” by bringing a lawsuit against it for violating the Americans with Disabilities Act (ADA).
The ADA is a law that most in this industry have at least some familiarity with. Among other things, it prohibits businesses that provide services to the public from discriminating against people with disabilities. This law is the reason why, when you visit places of “public accommodation” such as stores, movie theaters and restaurants, you almost universally see features designed to make the building and surrounding areas accessible for people with disabilities (features like automatic doors, railings, chairlifts, wheelchair ramps, and handicap accessible restrooms).
While it is easy to think of a building as a place of public accommodation, many federal courts recognize websites on the Internet 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 an explosive growth 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 as well. ADA compliance in the digital world extends not only to websites, but to smartphone applications as well.
Many ADA lawsuits are brought by disabled people with legitimate concerns that their rights under the law to equal access have been ignored. Unfortunately, however, there are also more than a few enterprising disabled people who use this law to make their living. In the past, these “professional plaintiffs” or “testers” 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 more difficult. Accordingly, the modern-day trend has been 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, Domino’s Pizza and Reebok.
Many of the plaintiffs and attorneys behind these lawsuits 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 less expensive than the cost to defend a claim. 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 do not 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.
There is hope that the tide may be turning against professional ADA plaintiffs with the recent grant of certiorari by the U.S. Supreme Court in a case titled Acheson Hotels, LLC v. Laufer. This case will determine whether a “tester” plaintiff with hundreds of ADA lawsuits under her belt possesses standing to challenge a place of public accommodation’s failure to provide an accessible website where the plaintiff lacks any real intention of patronizing that business. In other words, the high court will examine whether a mere technical violation of the ADA is sufficient, or whether the plaintiff must demonstrate that she actually intended to do business with the website operator and suffered some type of damages as a result of that company’s non-compliance with the ADA in order to pursue her case.
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 past years regarding website accessibility, including H&R Block and Carnival Cruise Line. Both companies ultimately elected to settle with the government and make changes to their websites, apps and other online tools.
So how does one avoid their company being the subject of such a lawsuit? To best protect against lawsuits, 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. Screen reader software takes the text and images that 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. To work properly, the website being read must have certain features. For example, the text must be capable of being read (certain fonts and font sizes are incompatible), and images must be properly embedded with “alt text” that describes what the image consists of (for example, “image of bridesmaids in front of a stretch limousine”).
Overhauling a website to make it ADA compliant is a complex task best left to a web designer knowledgeable about the ADA and related website compliance rules. While there are countless talented web designers, 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 the meantime, you should make sure that at the very least you have a phone number on the website that can be accessed using screen reader software, along with a 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).
In conclusion, maintaining a non-compliant website in today’s litigious environment is risky. With many of the biggest names in 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 lesser-known entities. I have already handled (and settled) a few of these lawsuits on behalf of various businesses, including transportation company clients. While website compliance is neither easy nor cheap, it’s the law, and it’s the only way to ensure that when a professional plaintiff visits your website and tests it out, he or she doesn’t find a sitting duck ready for their next lawsuit.
