Plaintiffs’ Firms and Department of Justice Are Taking Notice Monday, February 1, 2016
For years, we have been documenting the rise in wage/hour class action lawsuits and precautionary steps your organization may take to mitigate the risks and liability inherent in those claims. And, while wage/hour lawsuits continue to be filed at record rates, the plaintiffs’ bar is now flirting with a new type of class action lawsuit which poses a threat to any employer that operates a website. These lawsuits allege that company websites are inaccessible to the blind and/or visually impaired and therefore violate Title III of the Americans with Disabilities Act (ADA) and various states laws.
Title III prohibits discrimination against individuals “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.” Title III requires “reasonable modification” of “policies, practices, and procedures” and the provision of “auxiliary aids” to ensure effective communication with the disabled. A flurry of recent lawsuits and attorney demand letters allege that websites violate Title III because they are not accessible to the visually impaired; for example, that they are not compatible with screen-reading software that describes images on the website, that they require the use of a mouse instead of making all functionality available from a keyboard, or that video content does not contain an audio description.
Because these lawsuits are relatively new, courts are split as to whether Title III applies only to websites that have a sufficient nexus to a company’s physical locations, or whether it applies to websites in and of themselves. Most of these cases are in the early stages of litigation and, so far, provide little substantive guidance on what steps, if any, businesses must take to make their websites compliant with Title III.
Demand Letters and Threatened Lawsuits
Despite the uncertainty of their theory, including whether such cases are appropriate for class certification, some Plaintiffs’ law firms are sending out demand letters in droves warning that if businesses do not enter into a settlement agreement (often enclosed) and agree to use their consultant to make the website accessible and pay their attorney’s fees, they will file a lawsuit. These letters also often demand that the business conduct monthly testing of their websites for five years following settlement to ensure compliance. These threats are not idle the law firms sending these letters have filed numerous lawsuits in the past year, including one recently against the National Basketball Association. The Plaintiff in that case has filed similar lawsuits against other large entities, including Foot Locker, Brooks Brothers, the Hard Rock Café and Pep Boys.
Attempting to avoid these lawsuits by simply enhancing your business website’s accessibility is, unfortunately, no panacea as the Plaintiffs may still contend that the enhancements are insufficient, nor are such enhancements an easy or inexpensive task. The costs to retain a consultant to modify a website per the Plaintiffs’ lawyers contentions can be hundreds of thousands of dollars, and the Plaintiffs may contend that your business still has not done enough.
Department of Justice Enforcement Actions
Muddying the waters even more, the Department of Justice (DOJ) recently announced that it would delay issuing guidance for making websites accessible until 2018. The DOJ has, however, suggested that it will require compliance with privately designed standards called the Web Content Accessibility Guidelines (“WCAG”) 2.0 in its enforcement actions. WCAG requirements include providing text alternatives for non-text content so it can be changed into other forms (such as large print, braille or speech symbols), alternatives for time-based media, captioning live audio content, allowing users to pause or hide auto-updating information and providing descriptive titles for web pages.
The DOJ is aggressively pursuing enforcement actions against businesses with websites that it deems inaccessible to the blind and visually impaired. For example, in November 2014, the DOJ entered into a settlement agreement with Peapod, the grocery delivery website, after alleging that the company’s website was inaccessible to individuals with certain disabilities. The settlement agreement required Peapod to ensure that its website and mobile applications comply with WCAG. The agreement also required, among other things, that Peapod create a web accessibility coordinator position to ensure compliance, retain an independent website accessibility consultant to evaluate the accessibility of the website and mobile applications annually, and train its IT staff on website accessibility. The DOJ’s apparent enforcement stance is troubling as the costs of compliance could cause an undue hardship to small and medium-sized businesses. Of course, there remains the possibility that Congress will step in to clarify what modifications are required to make a website accessible to the blind or visually impaired.
Practical Steps to Consider
Litigating these cases can be costly. In DOJ enforcement actions alone, damages can include attorney’s fees and monetary and civil penalties if the DOJ concludes that the business has engaged in a pattern and practice of discrimination. Some state laws create an additional basis for penalties, like Californias Unruh Civil Rights Act, which allows for up to $4,000 per violation. Private actions, which can be brought separately at the same time as DOJ actions, can result in equal or greater damages.
In the face of this uncertainty, businesses with customer-facing websites should consider auditing their websites with the help of their counsel and possibly a consultant to determine if their website is accessible to the blind and/or visually impaired. This audit would assess the costs and feasibility of making modifications to the website, including WCAG compliance. Even businesses that do not constitute “public accommodations” under Title III should consider an assessment, as web accessibility could be considered a reasonable accommodation for employees and applicants under the ADA.
Proper education and training of the company’s IT department and website developers in website accessibility is also important. Businesses should also review contracts with third-party web-related vendors to make sure that any web content they provide is accessible.
Finally, websites and mobile applications should include a way for users to give feedback if they encounter problems