Your Business Website (or App) Could be Putting You at Risk of U.S. Litigation

Businesses with a website or online application presence in the United States are increasingly finding themselves embroiled in litigation, including class actions, under a pre-internet era law called the Americans with Disabilities Act (ADA). The issue arises when a website isn’t accessible to seeing and hearing impaired persons. The majority of ADA lawsuits involving websites settle relatively quickly; nevertheless, it is always in business’ best interest to avoid litigation when possible. By implementing certain measures on the front end, a company can curtail such a lawsuit and ensure its website is accessible to all.

What is the Americans with Disabilities Act?

The ADA is a U.S. federal statute signed into law in 1990 that bans discrimination on the basis of disability in public accommodation, on the job, and through public services, transportation and telecommunications. Specifically, Title III of the ADA (42 U.S.C. § 12182 (a)) provides that an individual shall not be discriminated against because of a disability when it comes to the full and equal enjoyment of goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by a person who owns, leases, or operates a place of public accommodation. Title III further requires that covered entities provide auxiliary aids and services to ensure that individuals with disabilities are not excluded from accessing the services of a place of public accommodation.

While the courts have routinely held that Title III applies to business websites and applications,  they are currently split on what precisely constitutes Title III’s “public accommodation” in the cyber world. Some circuits apply Title III only to websites with a nexus to a physical location, e.g. when the site allows ordering from a physical restaurant or store, while others apply it to any website that provides services regardless of a nexus to a physical location. Lawsuits typically arise when a plaintiff cannot access a website or app and therefore sues a company under Title III seeking an injunction ordering the business to make its website accessible. In addition to injunctive relief, plaintiffs are allowed court costs and attorneys’ fees under the ADA but not personal damages. Therefore, many plaintiffs also sue under various state statutes such as California’s Unruh Act, which allows for statutory damages of $4,000 per violation and up to three times the actual damages.

The Spike in ADA Website Lawsuits

A culmination of events has caused a drastic spike in ADA website lawsuits. In 2010, in response to growing concerns by businesses, the U.S. Department of Justice (DOJ) announced that it would provide guidance for website accessibility; however, the plan was scrapped due to cited budget shortfalls. Then in October of last year, the U.S. Supreme Court denied certiorari in Robles v. Domino’s Pizza, LLC. In Robles, the 9th Circuit Court of Appeals upheld the district court’s ruling that Domino’s Pizza’s website and phone application must be fully accessible to and independently usable by blind or visually-impaired persons since the site and app connect customers to goods and services provided by Domino’s physical restaurants. Further, it held that liability under the ADA did not violate Domino’s Fourth Amendment right to due process and the lack of specific regulatory guidelines did not eliminate Domino’s statutory duty. The Supreme Court’s refusal to hear an appeal and the lack of regulatory guidance strengthened plaintiffs’ outlook in such ADA lawsuits.   

WCAG as Guidelines

As seen in the Robles case, with a statutory duty but no real controlling guidance, it can be difficult for business to know how to ensure their websites are ADA compliant. The majority of courts have held that defendants can prove they are compliant by following the Web Content Accessibility Guidelines (WCAG) 2.0, which are guidelines produced by a consortium of interested parties through the Web Accessibility Initiative (WAI). The WAI provides a quick reference guide here. The guidelines are utilized to make web content accessible to people with disabilities by, for example, including text pop-ups as a user rolls over images with sound or providing an option to view a website without flashing or bright light for those with epilepsy, etc.

The WCAG guidelines contain multiple levels of accessibility (A, AA, AAA), and courts have discretion in determining what level constitutes full compliance. So far, most seem to be in agreement that at least level AA (with AAA being the highest level) should be reached. Businesses can utilize their internal IT departments and online tests to see where their websites fall short and to make the proper adjustments, but there are also third-party vendors that will make assessments and complete remediation at a cost. Companies should be aware, however, that there is no recognized certification that can be utilized as evidence in court.

What to Expect Next and How to Mitigate Risk

Interestingly, the United States Court of Appeals for the Eleventh Circuit, in Juan Carlos Gil v. Winn-Dixie Stores, Inc. issued a long-awaited decision on April 7, 2021 overturning the trial court’s finding that Winn Dixie violated the ADA because its website was not accessible via screen reader software utilized by seeing-impaired persons. The trial court held that the website was heavily integrated with Winn Dixie’s physical stores and was therefore a place of public accommodation. The April 7 Court of Appeals decision reversed that ruling and found that the website was not a place of public accommodation nor did it pose an intangible barrier to access the goods, services or privileges of the physical stores because the goods and services could not be purchased on the website and anything the website provided could be obtained in-store. The 11^th circuit expressly declined to follow the 9^th Circuit Robles decision, and the now deepened circuit split raises the likelihood that the U.S. Supreme Court will grant certiorari if and when such a case is again presented to it.

In sum, ADA website litigation does not show signs of slowing and with the recent 11^th Circuit decision, the current state of the law remains vague at best. This means business’ best defense is to, either in house or through a third-party vendor, run a test of compliance with the WCAG guidelines, remediate any shortfalls, maintain accessibility through frequent trainings for those in charge of website content and run regular audits. Not only will this reduce the risk of costly legal issues, but it also ensures businesses do not lose potential clients or customers simply because they cannot access the goods or services.