Last year over 2,000 website accessibility claims were filed under the Americans with Disabilities Act and experts expect the number to rise.
Winn-Dixie, Netflix, J.Crew, and Target are only a few of the companies who have been sued under the ADA for non-complaint websites.
In 2017, Juan Carlos Gil, a Florida resident, is one of many visually impaired individuals that filed over 70 lawsuits alleging he was wrongfully denied access to a number of websites, in violation of the Americans with Disabilities Act (“ADA”).
In the first case of its kind to go to trial, a federal judge found Winn-Dixie, a large grocery chain whose company website is heavily integrated with physical store locations, had indeed discriminated against Gil based on his disability because the company website did not have an ability to be accessed by screen reading software.
After the Winn-Dixie decision, the website accessibility lawsuits have only continued to mushroom. The Bureau of Internet Accessibility estimates that the number of cases filed in federal court almost tripled from 2017 to 2018, from approximately 814 to 2,258, with the majority of cases filed in New York and Florida.
Companies like J.Crew, Peet's Coffee, and Netflix, have been caught in the wave of website accessibility lawsuits, as have celebrities like Beyoncé. According to court papers, a class-action lawsuit was filed in January of this year against Beyonce.com, on behalf of a blind woman who alleged that she was unable to buy a hoodie because the performer’s website did not have an ability to be accessed by screen reading software.
What is the ADA?
Signed by President George H.W. Bush in 1990, Title I, Title II, and Title III of the ADA protects people with disabilities by ensuring equal access in several areas, including employment, transportation, public accommodations, communications and access to state and local government programs and services.
Traditionally, disabled individuals have used the ADA to compel places of public accommodation (e.g., restaurants, clothing stores, grocery stores, theaters, and department stores) to make their commercial premises physically accessible to those with all forms of disabilities -- by creating independent access to all public areas, in compliance with the ADA Accessibility Guidelines (ADAAG). Examples of readily achievable remediations are adding ramps, widening doors, accessible tables, or even adding braille to restroom signs. However, with the advent of the Internet in the early 2000s, the ADA has evolved. A common misconception is that facilities that existed prior to the 1990 enactment of the ADA are “grandfathered in” and need not comply. However, that is not the case. All commercial facilities must comply with Title III, in compliance with the ADAAG.
Since the ADA preceded the glory days of the Internet, the legislation did not foresee how ubiquitous the Internet would become and because many businesses and consumers have become unnecessarily reliant on the World Wide Web over the last two decades, lawmakers on Capitol Hill have questioned whether the protections of the ADA should also apply to the Internet, as people with disabilities may not have the same access as their neighbors or friends do.
To put it in perspective, not having access to a website could mean that a visually impaired person might not be able to find the nearest “Trader Joe’s” because their screen readers (such as JAWS) cannot view Google Maps or utilize a website's search bar. It could also mean that a deaf individual might not be able to enjoy the latest music video by the Backstreet Boys (yes, they are still around) because the chip does not contain subtitles or captions, or attend a concert in person, because the venue's website is not accessible.
While the current debate does not question whether or not the ADA should cover the Internet, because the courts have decided that it does, federal courts are split on whether individuals can sue websites that do not have a nexus to a physical place where goods and services are sold.
For instance, the Ninth Circuit concluded that a blind person could not sue the e-commerce giant eBay under the ADA because the company did not have a physical space where sales occurred. The Second and Seventh Circuits, have not concurred, and have held that the ADA applies to websites that conduct business online and there need not be any connection to an actual place (think Netflix or YouTube).
Future of the ADA
Since 2010, The Department of Justice has promised that it would revisit the ADA's general requirements in order to provide more clarity to businesses who have an online presence. The DOJ and various courts have applied the WCAG as the governing guideline in their lawsuits, but that standard is not enacted as law.
However, until the DOJ provides definitive guidance, lawsuits will continue to be the barometer by which to interpret the statute. As a rule of thumb, the best way for companies to lower the probability of an ADA claim is to make their websites accessible by retaining a qualified technical consultant who is well versed with the requirements of Website Accessibility Content Guidelines (WCAG) and discussing these issues with legal counsel familiar with the updated laws and regulations.
As the Queen of hip-hop once sang, “the truth of the matter is that replacing you [your website]” might not be so bad.