In order to properly defend against ADA website accessibility lawsuits you must understand the requirements of the law and take proactive steps to ensure your website adheres to them.
The number of website accessibility lawsuits filed under Title III of the ADA in 2018 reached more than 2,250 in total. This is an increase of 177 percent over the 814 lawsuits from the year before.
It's anticipated that the number of such lawsuits will drastically increase in California in 2019 after the 9th U.S. Circuit Court of Appeals overturned a lower court's decision to dismiss a website accessibility lawsuit against Domino's.
Your Website May be Subject to ADA Title III
While it may not seem apparent to computer users without disabilities, the fact is that many websites are difficult, if not impossible, to access if one has certain disabilities. Of the more than 2,200 lawsuits filed last year, 11 percent of those were filed against food service establishments. Everyone needs food and almost everyone likes to eat, so these websites should be accessible to everyone.
According to an article at Modern Restaurant Management,
"Common website accessibility issues can include individuals with vision or hearing impairments who may require assistive devices and specialized software to access the internet. For those with a visual impairment, this may include software that enables them to magnify the content of a webpage, reads the content to them or enables them to use a braille reader. Some individuals cannot use a mouse and can only navigate with a keyboard, touchscreen or voice recognition software. For those with hearing impairments, the issue is often that audio content on the website does not include closed captioning or images do not include captions."
When designing a website, it should not only accommodate these impairments, but also recognize the current adaptive software and technology that can be used to achieve the desired results.
The Web Content Accessibility Guidelines (WCAG) provide web designers with standards for making web content more accessible for website visitors with disabilities. The DOJ has stated that websites which comply with the standards of the WCAG 2.0 AA are considered “accessible.”
Prior cases have established that this is the standard the DOJ has used in its settlement agreements and consent decrees with businesses. In addition, it'is also the standard adopted in January 2017 for federal government websites. Consequently, companies that follow these standards should have a defensible position in case of a lawsuit.
An article in the New York Law Journal notes that,
"In sum, Title III of the ADA states in pertinent part: 'No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to) or operates a place of public accommodation.'"
Although the language in the ADA’s text does not address websites specifically, the U.S. Department of Justice (DOJ), which is responsible for regulating and enforcing the ADA, has always viewed websites that offer goods or services to consumers to be “places of public accommodation,” and must, therefore, be accessible to the disabled.
The New York Law Journal article goes on to state that,
"The DOJ, and now many courts, have accepted the Web Content Accessibility Guidelines (WCAG) 2.0, which were developed by the World Wide Web Consortium, as the applicable standard for website accessibility compliance, although many have rightly complained that guidelines provide insufficient clarity for remediation and ongoing compliance purposes."
Defensive Steps for California Business Owners
Because the likelihood of being on the receiving end of a complaint, companies should take the stance that an ADA website lawsuit must be proactively avoided. In addition, having experience legal counsel can help to resolve any claims that are made efficiently and economically
The author of the New York Law Journal article offers these practical actions that businesses can take include:
Assume your company will be sued. Pretty much any business with a website, especially one that offers products of services online, is a target.
Once received, do not ignore a complaint. Timeliness is crucial for an effective defense. "Most cases in which the target entity has a clearly non-compliant website settle within two to six months..."
Consult knowledgeable counsel regarding available defenses. Fortunately numerous prior defendants have spent time and money to test the boundaries and best defense strategies for ADA website claims.
Understand the nuances of the settlement process. "...there are many negotiable terms that can provide a defendant with added layers of protection from ongoing compliance obligations, future claims of breach of the settlement agreement or follow on claims by other plaintiffs."
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