Back in the early 2000s, a federal judge in Florida decried that certain aspects of the Americans with Disabilities Act (ADA) created a “cottage industry” where lawyers would be able to make significant money bringing lawsuits against restaurants and other commercial establishments for not being handicap accessible. The law’s original intent was to ensure that all members of the public, no matter if they have certain disabilities or not, are able to receive the same type of access and protection against discrimination. However, over the last 15 years this law has been used by a number of attorneys around the country as a way to collect legal fees, no matter if the commercial property is ADA compliant or not.
Thousands of restaurants around the country have faced litigation over this issue. As we become more and more reliant on technology, e-commerce has moved front and center. To this end, a number of lawyers began filing suits against restaurants claiming their websites are not ADA compliant. Section III of the Act specifies that a place of public accommodation must make “reasonable modifications” to its business policies and procedures when necessary to serve customers with disabilities.
Restaurants, as a place of public accommodation, might have all of their guest-facing technology fall under this particular section of the ADA accessibility requirements. These technologies could include websites, apps, pdfs and other electronic content. Most of the courts that have seen this issue come before them have ruled in favor of websites and other technologies falling under the ADA and must be able to be accessed by those with disabilities, primarily those who are visually impaired.
The problem has arisen that there is very little clarity from either the courts or the legislature on how to be compliant. For instance, the courts are divided over whether all commercial websites are subject to the ADA or whether just websites associated with brick-and-mortar businesses must be ADA compliant. Our partners at the National Restaurant Association are working with the Department of Justice to gain clarity, but specific guidelines for businesses have not yet been released by the Trump Administration.
This has led to an incredibly difficult position for many business owners to be in. These men and women have to abide by regulations but they have no idea on what they need to be compliant. All they have to go by is what has come out in decisions and attempts to ensure their guest facing technology is as accessible as possible.
Most of the lawsuits that have been filed deal with sensory issues, navigation, graphics, fonts, images, multi-media, coding and more. The NYS Restaurant Association was recently informed of a lawsuit involving a member that claims a visually impaired individual was unable to access the company’s operating hours and address. Many attorneys are using this law as a catchall and incorporating all aspects of a company’s technological communications so it is important to remain vigilant across all platforms.
Since we have so little guidance we are urging restaurants to be as proactive as possible when it comes to their electronic accessibility. If you have questions about if you are in compliance please reach out to a legal professional who will be able to assist you and get you the answers that you need. The World Wide Web Consortium recently published an updated version of the Web Content Accessibility Guidelines which aims to make websites as accessible to blind and visually-impaired people as possible. These guidelines may be a large help in identifying areas of your website that need to be improved.
As these lawsuits become more commonplace, it’s important that you don’t become reactionary and wait for this dangerous litigation to arrive at your front door. If you have any questions please do not hesitate to reach out to the NYS Restaurant Association at 800.452.5212 or visit www.nysra.org – we are here to help you succeed.