Fredrikson & Byron PA
Steven E. Helland.
USA December 28 2015
Patagonia, Ace Hardware, Aeropostale, Bed Bath & Beyond and Estee Lauder are the most recent companies sued by blind plaintiffs, alleging that the retailers websites are not accessible to the blind as required by the Americans with Disabilities Act (ADA).
Lawsuits previously filed have included well-known companies such as JC Penny and Home Depot. Details of these lawsuits are included in the article ADA Website Accessibility Lawsuits Mount, by Alexis Kramer, 12/23/15, in BNA Electronic Commerce & Law Report.
45 Lawsuits. Hundreds of Demand Letters.
The BNA article reports that over 45 website accessibility cases under the ADA have been filed with courts within the past year (2015). Other reports, validated in part by our own experience at Fredrikson & Byron representing multiple website operators, suggest that plaintiff firms have sent out hundreds of demand letters to website operators around the country, seeking remedial actions and financial payment.
In the recent Patagonia case, the plaintiffs are represented by Pittsburgh, Pennsylvania law firm Carlson, Lynch, Sweet & Kilpela. They allege that the retailers website is not accessible to blind or visually impaired persons using screen reader technology to access websites. View the complaint here (opens in new tab/window).
Screen reader technology converts text to audio, and thus reads or narrates the contents of a web page to a visually impaired user. The Complaint argues that the Patagonia website failed to use various screen-reader-friendly features, such as alt-text, to provide a text equivalent for every image, photo, or other non-text element on the website. The Complaint also proposes that the web content Accessibility Guidelines WCAG 2.0 AA (opens in new tab/window) provides the legal standard for what is required by website operators.
What Does the Law Require?
While the ADA 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, 42 U.S. Code § 12182(a), what this means for website operators remains an open issue.
Government regulations from the U.S. Department of Justice were expected to be issued this year that would clarify what is necessary for website compliance, but on November 19, 2015 the Department of Justice announced they would not be issuing regulations until years into the future. It appears that plaintiff law firms have taken sweeping and aggressive action in light of this legal uncertainty.
Tips for Website Operators:
In light of the uncertain state of the law, the following actions may reduce risk for website operators, even though such actions may not be legally required:
- Consider adding alt-text and other features that make a website more accessible to those using screen-reader technology.
- Consider reviewing the WCAG 2.0 standards, and engaging a website accessibility consultant to help with this process.
- Consider enhancing your telephone customer support.
Fredrikson & Byron PA – Steven E. Helland