Article contributed by Richard P. Kaye and Stephania C. Sanon, Ellenoff Grossman & Schole LLP
Website accessibility is a hot topic right now which means you should be checking if your website is compliant with Title III of the Americans with Disabilities Act (ADA). If your website is not accessible to individuals with disabilities, you might get slapped with an unwanted and expensive lawsuit.
Title III applies to private places of “public accommodation” and prohibits them from discriminating against individuals with disabilities. Examples of public accommodations include privately-owned, leased or operated facilities like hotels, restaurants, retail stores, doctor’s offices, golf courses, private schools, health clubs, movie theaters, and so on. Title III is unique from other anti-discrimination statutes in that it requires (with limited exceptions) businesses to take affirmative, proactive measures to ensure individuals with disabilities are afforded equal access to their goods and services.
You might be asking yourself why ADA website compliance is such a big deal now. The uptick in these types of cases is due in large part to the internet becoming an integral part of mainstream American life—individuals rely on the internet to do just about everything from making dinner reservations at their favorite restaurants and ordering catering services to paying bills and planning trips.
Website compliance is simply the latest frontier for Title III ADA cases; the plaintiffs in these cases, typically visually impaired, argue that websites of certain companies are not accessible to them because the sites lack the proper software to enable them to have equal access to the goods and services being offered. Although plaintiffs are entitled only to injunctive relief (i.e., an order from the Court directing a business to become ADA compliant), these cases are flooding federal court dockets largely because of the relative ease in proving a violation has occurred under the statute and the availability of legal fees to the prevailing plaintiff.
For Plaintiffs’ attorneys’ this is a potential gold mine. In order for plaintiffs’ attorneys to “win” these cases and collect their attorneys’ fees, they need only show that their client attempted to use a business’ website once, but was prevented from enjoying full access of the site’s goods and service because it lacked the proper software to make it accessible to individuals who are legally blind or visually impaired. Moreover, these lawsuits usually threaten a potential class action in an effort to maximize attorneys’ fees and often include claims for monetary damages under state and local anti-discrimination laws.
As attorneys with experience in handling both physical accessibility and website cases, we are seeing an increasing number of the website accessibility cases. The plaintiffs’ bar has taken the position that the ADA applies to websites in the same way it applies to traditional brick and mortar stores. These cases are often brought by individuals who are legally blind or visually impaired alleging that a company has discriminated against them by failing to make its website accessible via readily available technological updates. After all, the web is largely an optical-based medium. The theory is relatively new, but unsurprising in light of the internet’s growing ubiquity. While the text of the ADA itself makes no mention of websites or the internet, many courts have taken the position that a website is a place of “public accommodation” much like traditional brick and mortar establishments, and as such businesses must take measures to make their websites accessible to the visually impaired.
Some courts have expressed doubts about the application of the ADA to website accessibility, reasoning that there needs to be some nexus to the business’ physical location given the statute’s focus on physical “places” of public accommodation. Others have voiced concern over the fact that the federal agency tasked with enforcing Title III of the ADA, the Department of Justice (“DOJ”), has not officially issued definitive guidelines on what standards businesses should use to make their websites compliant.
However, many federal courts throughout the nation, including those sitting in California, Florida, and New York, have allowed cases to proceed on the basis that the ADA may be applicable to websites. In the Eastern District of New York, for example, United States District Judge Weinstein issued a decision in Andrews v. Blick Art Materials, No. 17-CV-767 (E.D.N.Y. Aug. 1, 2017), clearly holding that websites are places of public accommodation. While the case is not binding on other cases brought in New York or other states, it certainly has some precedential value, particularly since the decision was well-reasoned and comes from a highly regarded jurist.
So what do you need to do to make your website ADA compliant?
Follow the guidelines that are laid out in the Web Content Accessibility Guidelines (WCAG) 2.0 published by the World Wide Web Consortium (W3C) —these guidelines specify how to make web content accessible to individuals with disabilities and will likely be adopted by the DOJ to some extent. By way of example, the standards include the use of “alt-text” features which allow screen reader technology to convert text to audio and provide captions for video with audio.
To ensure you are compliant (not many are) or are taking the proper steps to become compliant, you should confer with knowledgeable counsel who have handled website accessibility cases. We can assist your business in retaining a third-party vendor who specializes in ADA accessibility compliance to determine how to upgrade your website to achieve compliance and avoid unnecessary expense and protracted litigation down the road.
Richard P. Kaye, a member of Ellenoff Grossman & Schole LLP, leads the firm’s litigation department. He represents clients in a wide range of business and real estate matters in state and federal courts, as well as alternative dispute resolution forums. He acts as outside general counsel for numerous companies and has represented numerous clients in the defense of cases brought under the Americans with Disabilities Act.
Stephania C. Sanon is an Associate in the Labor and Employment law practice group. Ms. Sanon represents and advises clients in a variety of labor and employment matters. She handles a broad range of cases, from individual employment disputes to multi-plaintiff and class action litigation. She has also represented clients in the defense of website accessibility cases brought under the ADA and relevant state and local statutes.
Richard P. Kaye (firstname.lastname@example.org) and Stephania C. Sanon (email@example.com) can be reached via phone at 212-370-1300.