For the past several years, we have seen a steep increase in litigation in the hospitality industry brought under Title III of the Americans with Disabilities Act (ADA). These suits often contend that certain aspects of buildings, bathrooms and parking lots do not comply with the Act’s detailed regulations for building standards. Title III requires private businesses toaccommodate disabled patrons who visit their property by removing barriers to their goods and services, if such removal would be “readily achievable.” Readily achievable means the barrier removal is easily accomplishable and is able to be carried out without much difficulty or expense. This is generally determined by looking at the nature and cost of barrier removal in context of the financial resources of the business.
Some plaintiffs’ lawyers have found a lucrative niche with this litigation, engaging the services of “testers” who are private citizens that go from business to business looking for ADA violations. Restaurants are frequent targets of these efforts. The law does not require that businesses be notified of any alleged violations in advance of being served with a lawsuit. Hence, most businesses are caught off guard and end up spending thousands of dollars in attorneys’ fees to resolve these cases, when the cost of actual compliance is very low. Often, there are no damages for the actual plaintiff in the case. Rather, the plaintiff’s lawyers capitalize on the fact that no advance notice is required because the statute provides for their attorneys’ fees and costs.
Take stock of your company’s present website accessibility for those with disabilities, develop and implement a plan of action for compliance …
For the past few years, a new twist has been on the rise. Businesses are being sued under this same section of the ADA for websites that are allegedly inaccessible to people with disabilities, meaning that these testers are not necessarily visiting the brick-and-mortar establishment, but rather surfing on the internet looking for those businesses that have websites that are not accessible for people with disabilities.
In 2018, ADA website litigation increased 181 percent over 2017. According to UsableNet, more than 2,200 lawsuits were filed in federal courts nationwide in 2018, and 11 percent of the lawsuits were food service establishments. The most cases were filed in New York and Florida. This is not because companies in those states are committing more infractions; it’s more a symptom of the active plaintiffs’ bars in those states where the same attorneys are filing multiple suits. Indeed, many companies that are sued operate in multiple states and even internationally.
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.
To understand how we’ve gotten to this increased litigation today, one must understand the history behind it. In 2010, the Department of Justice (DOJ) provided an Advance Notice of Proposed Rulemaking (ANPRM) on Accessibility of Web Information and Services. The purpose is “to establish requirements for making the goods, services, facilities, privileges, accommodations or advantages offered by public accommodations via the internet, specifically at sites on the internet, accessible to individuals with disabilities.” Although the comment period closed in January 2011, the DOJ never published clear guidance or final regulations for the private sector.
In fact, in late 2017, the DOJ rescinded two ANPRMs related to website accessibility under Title II (state and local governments) and Title III (private businesses open to the public). This clearly did not deter private litigation, given the increases seen in the past year.
Even while the DOJ’s proposed regulations were pending, courts allowed litigation of Title III claims to proceed. The lack of a regulatory process for ADA website compliance was not a defense that web content was not covered by Title III. The DOJ has taken the position for more than 20 years that websites are subject to the ADA. The lack of clarity from the DOJ has left the determinations up to the courts, which are not all on the same page when it comes to compliance. These cases are often costly and time-consuming to defend.
In light of the DOJ’s rescinding the proposed rules, in the summer of 2018, 103 members of the House of Representatives asked the U.S. Attorney General to “state publicly that private legal action under the ADA with respect to websites is unfair and violates basic due process principles in the absence of clear statutory authority and issuance by the department of a final rule establishing website accessibility standards.” In fall 2018, the DOJ declined to endorse such a statement, but did state, “Absent the adoption of specific technical requirements for websites through rulemaking, public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication. Accordingly, noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.”
… and engage a third party who is well-versed in ADA website compliance to implement and document the compliance efforts.
At the heart of the DOJ’s proposed regulations were the Web Content Accessibility Guidelines (WCAG). These guidelines provide web designers with standards for making web content more accessible to those with disabilities. The DOJ made it increasingly clear over the last several years that it considers a website “accessible” if it complies with the standards of the WCAG 2.0 AA. This is the standard the DOJ has used in its settlement agreements and consent decrees with businesses. It is also the standard adopted for federal government websites in January 2017. Therefore, businesses that follow these standards should have a defensible position in litigation.
However, the DOJ’s statement in fall 2018 leaves open that businesses can still be in compliance with the ADA even without fully adopting the WCAG. Nonetheless, the burden remains on the business to prove that individuals with disabilities are able to access its goods, services and benefits through the website, or in some alternative way. Plaintiffs’ lawyers will undoubtedly continue to tout that the WCAG is the exacting standard to apply, and businesses that are not technologically savvy or do not have a dedicated web designer will be significantly challenged to demonstrate to the contrary.
The top business sectors that have been the most ready targets of this litigation are: retail; food service; travel/hospitality; banking/financial services; and entertainment and leisure. If your business has a website, it is wise to take steps to ensure it is reasonably accommodating those with disabilities. Take stock of your company’s present website accessibility for those with disabilities, develop and implement a plan of action for compliance and engage a third party who is well-versed in ADA website compliance to implement and document the compliance efforts.
If your business posts online menus, accepts orders, permits customer reviews or testimonials, takes reservations, provides addresses and directions to brick-and-mortar locations, accepts job applications, includes answers to frequently asked questions, has email or chat features, etc., consult with a web designer about ways to make these aspects accessible to those with disabilities who visit your website. It is both the right and legal thing to do, and it could save your business the unwanted expense and stress of litigation.