In addition to ongoing privacy and security related issues, one of the hot spots for litigation has been the accessibility of websites. In this post, we will lay out the current legal landscape and what the ADA requires. We will also provide practical next steps to help your company not only manage its compliance requirements, but also leverage your website to produce a more inclusive customer experience.
The Legal Landscape.
Lawsuits filed against business owners because their websites are not compliant with the American with Disabilities Act (ADA) are increasing at an alarming rate. While the number of actual lawsuits has increased, the number of threatened lawsuits is even greater.
Although the ADA requirements for public places are quite clear, there are no specific guidelines written into the ADA that refer to websites, despite websites also being classified as public places. In fact, mobile applications, websites, or other digital content are not specifically mentioned in the ADA.
The central issue in considering ADA website matters is whether website operators are operating “a place of public accommodation.” When the law was enacted in 1990, it included a list of 12 different types of places of public accommodation, including a catch-all for “other sales or rental establishments.” Courts have taken three positions on this issue.
- Some courts claim that the ADA applies to all commercial sites because the law was intended to protect disabled individuals from having a more difficult time doing business.
- Some courts take the position that if the website has a “nexus” or connection to a physical location, then the ADA applies.
- The third position is that the ADA does not apply to websites and only applies to physical locations.
The World Wide Web Consortium (W3C) published its Web Content Accessibility Guidelines (WCAG 2.0 A and AA Success Criteria) which the DOJ and others use as a baseline for assessing website accessibility. The DOJ adopted the WCAG 2.0 AA Success Criteria for federal agencies under Section 508 of the Rehabilitation Act. Additional guidelines were later announced in WCAG 2.1. WCAG 2.1 expands the guidance provided in WCAG 2.0 to include more coverage of mobile accessibility and provisions for users with low vision and cognitive and learning disabilities. (Note: WCAG 2.1 is not required by government agencies or under Section 508.) The DOJ has not officially adopted any formal standards for website accessibility in the private sector, but existing requirements of the ADA already apply.
To promote compliance with its requirements, the ADA permits disabled persons to bring a lawsuit to remedy the violation. The ADA allows winning plaintiffs to recover reasonable attorneys’ fees and costs. A plaintiff’s typical claim is that the plaintiff tried to complete a transaction on the business’s website, but was prevented from doing so by a feature of the website that presents an access barrier. Increasingly, courts are taking the position that the ADA should broadly apply to require accommodation and not exclude it and this is especially true in California, where these lawsuits are most prevalent. In California, a violation of the ADA is also a violation of the Unruh Civil Rights Act (UCRA) and the California Disabled Persons Act (CDPA). A plaintiff cannot collect damages under both state statutes.
The UCRA states that “all persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, or medical condition are entitled to the full and equal accommodations, advantages, facilities, privileges or services in all business establishments of every kind whatsoever.” Cal. Civil Code §51(b). Under the UCRA, a plaintiff can collect damages in the amount of three times the amount of actual damages, but in no case less than $4,000 for each offense.
The CDPA states “Individual with disabilities shall be entitled to full and equal access, as other members of the general public, to accommodations, places of Disabled Accessibility Workshop accommodation, amusement, or resort, and other places to which the general public is invited…” Cal. Civil Code §54(a)(1). Under the CDPA, a plaintiff can collect damages in the amount of three times the amount of actual damages, but in no case less than $1,000 for each offense.
Often, business owners are compelled to settle lawsuits quickly to avoid paying their own attorney fees, as well as potentially being court ordered to pay Plaintiff’s attorney fees if the Plaintiff prevails. This is primarily because general commercial liability policies do not cover a lawsuit on this issue without an ADA rider.
What to Do Next: Just. Get. Started.
Aside from avoiding costly litigation, implementing technology to increase website accessibility and include all potential customers is simply good business. Moving forward, take the time to evaluate your website(s) and develop a plan to address any accessibility issues.
- Check out the prior article authored by me and my colleague, Scot Ganow for additional information on what the ADA requires.
- Contact your legal counsel to perform an audit of your website, to ensure your website achieves WCAG 2.1 AA criteria.
- If your website falls short, consider implementing an accessibility statement, stating the improvements the business plans to make and what customers can do if they have an accessibility concern.
Acting quickly and following these steps will help your business avoid being a target. Taft’s Privacy and Data Security Practice stands ready to assist and will continue to provide updates in this evolving area.