ADA website accessibility lawsuits are on the rise against businesses across the U.S.
Q: By now, most businesses have already installed handicap parking spaces and wider doorways as a way to make their facilities more accessible. So can they finally stop worrying about accessibility lawsuits under the Americans with Disabilities Act?
A: Unfortunately, they may not be out of the woods yet. A recent wave of lawsuits and demand letters has been hitting businesses across the United States, alleging that businesses are violating Title III of the Americans with Disabilities Act (ADA) by not providing websites that are accessible to disabled individuals, including those with visual or hearing impairments.
Q: Is this a new law about websites?
A: No, the ADA was enacted in 1990 and mentions nothing about websites. However, the U.S. Department of Justice has taken the stance since 2003 that all websites of companies that are places of public accommodation, including hotels, restaurants and stores, must be accessible for disabled persons. Unhelpfully, the DOJ has not issued an official rule addressing website accessibility for private companies, leaving companies without any official guidance. The DOJ was expected to issue a rule requiring websites for private companies to be compliant with the “World Wide Web Consortium’s Web Content Accessibility Guidelines Level AA” — otherwise known as WCAG 2.0 AA. Instead, at the end of 2017, the DOJ withdrew its proposed rule on website accessibility, but at the same time, it announced that it had “long considered” websites to be covered by Title III of the ADA. The lack of an official rule on website accessibility doesn’t stop individuals claiming they were denied access to a company’s website from suing under Title III of the ADA. Hundreds of such lawsuits have been filed across the county in the last few years, many as class actions. Plaintiffs suing under this law can only seek an injunction, such as a court order requiring the company redesign its website, and not monetary damages. However, plaintiffs can seek attorneys’ fees under the ADA.
Q: What is “WCAG 2.0?”
A: WCAG 2.0 is a set of guidelines for making websites accessible to all. People with disabilities access websites in a variety of ways, and common website problems may create barriers for these individuals. For example, a blind person may use screen-reading software, which reads the text of the website out loud to the individual. If the website has used images to convey information without using text alternatives, the screen reading software cannot convey that information and the blind person won’t be able to use the website. WCAG 2.0 recommends, for example, providing text alternatives to any non-text images and providing captions for audio content.
Q: What are the courts saying about website accessibility?
A: Without a U.S. Supreme Court or even many circuit court rulings on the issue, the courts are splitting in their interpretations of the ADA, with differing views on whether online-only companies without a physical location are covered, and whether providing a non-online alternative is sufficient (such as a restaurant that has both online and telephone ordering options). The vast majority of rulings have been in favor of plaintiffs, not businesses.
Q: What are other businesses doing about this problem? A: For some businesses, it makes good business sense to redesign their website to increase the functionality and accessibility of their websites to comply with WCAG 2.0 standards before they are hit with a demand letter or lawsuit, but many factors weigh into this consideration. Companies facing this decision should consult legal counsel for assistance.