Article contributed by Valerie Bluth, Ellenoff Grossman & Schole LLP
With the new year officially underway, hospitality employers should be aware that website accessibility lawsuits still loom large. The Americans with Disabilities Act (“ADA”) prohibits discrimination against disabled members of the public in the “full and equal enjoyment” of the goods and services of any “place of public accommodation.”
Most often, website accessibility lawsuits are brought by visually- or hearing-impaired individuals alleging that a website lacks the proper software or components, such as a screen reader or closed captioning on video, to allow them to have equal access to the goods or services being offered on the website.
Much has been made of recent court cases around the country that have dismissed website accessibility cases at the outset, holding that websites are not “places of public accommodation” covered by the ADA, including a case out of the Eleventh Circuit Court of Appeals and two from the Eastern District of New York (“EDNY”). However, the holdings in these cases are limited, and may have given hospitality employers a false sense of security.
In 2021, two EDNY judges held that only businesses not associated with a brick-and-mortar location (“Web-Only Businesses”) were found not to be covered by the ADA. However, these holdings would not apply to restaurants, bars or other hospitality businesses that have a physical location. Further, these decisions are of limited effect outside of the EDNY (which covers Brooklyn, Queens, Staten Island, Nassau and Suffolk counties) – multiple judges in the Southern District of New York (“SDNY”), which covers New York, Bronx, Westchester, Dutchess, Orange, Putman and Rockland counties, have held that the ADA does apply to Web-Only Businesses – and have no effect on any business that does have a brick-and-mortar component, such as restaurants, grocery and other retail stores, hotels, and the like.
Finally, the EDNY judges relied on the 2021 Eleventh Circuit Court of Appeals decision that held a website was not a place of public accommodation within the meaning of Title III of the ADA in reaching a similar conclusion, but that Eleventh Circuit decision was actually vacated just last month – meaning that case is no longer good law. As such, even the EDNY cases are based on case law outside the New York federal courts that is no longer precedential.
Perhaps more importantly, plaintiffs’ lawyers are not dissuaded by these recent decisions and continue to file website accessibility lawsuits at a rapid clip. In fact, it has been reported that nearly 700 website accessibility lawsuits were filed in New York federal courts in the last quarter of 2021 alone. And, plaintiffs’ lawyers are wise to the split between the EDNY and SDNY – almost 90% of these cases were filed in the SDNY. This sort of forum shopping is permissible, and so long as the individual resides in and/or the business is located within the SDNY’s geographic purview, there is no basis to have the case dismissed on jurisdictional grounds alone.
Whether websites are a place of public accommodation that must comply with the ADA continues to be litigated across the country and in New York, and the split between the EDNY and SDNY decisions is ripe for resolution by the Second Circuit Court of Appeals. But, until there is a definitive answer to the question of whether websites are subject to the ADA, Web-Only Businesses are not nearly out of the woods, and should not cling to a false hope that a website accessibility case cannot brought against the company, or if such a case is filed, that it will be subject to quick dismissal.
Accordingly, businesses should take this opportunity to review the Website Content Accessibility Guidelines (WCAG) 2.1 requirements, as well as applicable state laws, such as the California Unruh Act, and ensure their website is in compliance. Businesses should also take note, however, that most plaintiffs’ attorneys are not swayed by the business’s use of a “website accessibility overlay,” and do not consider the use of these overlays a defense to website accessibility claims.
These cases are largely driven by attorneys’ fees, and are difficult to defend without expending significant resources. As such, hospitality businesses would be remiss not to take the time to make website accessibility a top, and ongoing, priority.
Valerie Bluth is a Partner in the Labor & Employment Group at Ellenoff Grossman & Schole LLP. For more than ten years, Ms. Bluth has exclusively represented and advised clients in employment-related matters, with a particular focus in the hospitality industry. Above all, Ms. Bluth works tirelessly to ensure clients are in compliance with an ever-changing landscape of federal, state and local employment laws, especially with respect to pay practices and employment policies, and to devise practical solutions for any employment problems that might arise. Ms. Bluth can be reached at (212) 370-1300 or email@example.com.