Quarles & Brady LLP
Pamela M. Ploor.
USA December 22 2015
The Internet revolutionized how businesses sell their goods and services. A standard tool in a company’s marketing and sales toolbox is its website.
There are increasing demands by plaintiffs’ lawyers on businesses to ensure their websites are accessible to individuals with disabilities under the Americans with Disabilities Act (ADA) or face a lawsuit. These demands often take the form of a letter alleging the company’s website violates the ADA, demanding changes to the website, and offering a choice between negotiating a payment to avoid litigation or being sued. This usually feels like a “stick-up” to companies that never heard of accessibility in websites or gave a thought to whether the ADA applies to their websites. By being aware of the ADA’s accessibility obligations and how those may relate to websites, companies may limit their liability and protect themselves from being the next victim of a corporate “stick-up.”
The Americans with Disabilities Act was passed by Congress in 1990. The ADA prohibits discrimination against persons with disabilities in employment and in public accommodations, and requires that places of public accommodation be accessible to persons with disabilities. This means doors must be wide enough for a wheelchair, Braille should be used for signs, and other similar requirements. You still may be wondering how that has anything to do with a website.
Well, on July 26, 2010, the Department of Justice (DOJ) issued an Advance Notice Of Proposed Rulemaking (NPRM) to establish requirements for making the goods and services offered by public accommodations via the Internet accessible to individuals with disabilities. The DOJ never finalized the proposed rules. Rather, the DOJ repeatedly delayed the finalization of the rules. In its fall 2015 regulatory agenda, the DOJ again delayed the rulesthis time pushing back the finalization until 2018: “Consequently, the Department has decided to extend the time period for development of the proposed title III website accessibility rule and include it among its long-term rulemaking priorities. The Department expects to publish the title III website accessibility NPRM during fiscal year 2018.” The DOJ’s failure to finalize regulations has not stopped it from participating in lawsuits and stating that websites must become accessible under the ADA. The courts are split on that issue, however.
Under the ADA, a private party may sue a company for having a website that is not accessible. Given the split among the courts, some companies may have defenses to such a complaint. In 2006 the National Federation of the Blind of California and some individuals brought a class action lawsuit against a national retailer alleging its web site was not accessible to persons with disabilities.
In 2008, the national retailer negotiated a $6 million settlement of the class action. The settlement required the retailer to, among other things, meet identified assistive technology guidelines, to ensure that blind users of screen reader software could acquire the same information and engage in the same transactions online that were available to sighted online guests with substantially equivalent ease of use, to confer regularly with the National Federation of the Blind on its recommended updates to the retailer’s accessibility guidelines, to allow accessibility monitoring, and to agree to annual technical assessment by a consultant.
A tipping point has been reached. Plaintiffs’ lawyers are increasingly issuing letters accusing companies of having websites that violate the ADA and demanding money if the companies don’t want to be sued for violating the ADA. A form settlement agreement that gives plaintiff’s lawyers a basis to request payment of their attorney’s fees and control over the modifications relating to accessibility on the company’s website often accompanies the letter. Sometimes the plaintiffs’ attorneys also allege violations of federal and/or state law relating to data privacy concerning the website.
Despite the lack of any legal holding expressly requiring that websites comply with the accessibility demands of the ADA, many companies are settling rather than litigating the issue because of litigation costs. A company that receives a letter alleging its website violates the ADA should consider possible defenses when conferring with its legal counsel before ponying up the dough. All companies should examine the accessibility of their websites by working with their website vendors and reviewing their websites against an accessibility standard, such as Web Content Accessibility Guidelines (WCAG) 2.0. Companies should consider bringing the most highly visited parts of their websites into compliance and ensure new pages are accessible.
These accessibility demands and lawsuits are not going away. They will only increase, especially when the DOJ issues its long-anticipated and overdue regulations. Don’t further delay. Put on your action item list for 2016 to examine the accessibility of your website.
Quarles & Brady LLP – Pamela M. Ploor