Getting the Dreaded Plaintiff's Letter: Businesses Being Sued for the Accessibility of Their Websites
A rash of lawsuits are being filed around the country against businesses and retailers, claiming their websites are not accessible to those with visual or hearing impairments. These lawsuits are being filed under Title III of the Americans with Disabilities Act ("ADA"). Title III of the ADA requires equal access for persons with disabilities in places of public accommodation. This is not a new provision of the ADA, but the focus on websites has been a relatively recent development. Lawsuits under Title III historically have focused on physical barriers to a retailer's physical location such as a lack of handicap ramps on sidewalks, whether entry doors are wide enough to accommodate a wheelchair, and any other physical characteristic of the property that might make it difficult for a disabled person to access.
This is not to say that Title III claims targeted at website accessibility are new. The first such lawsuit was filed in 2000 against Bank of America. For many years, the lawsuits targeting websites were limited to larger retailers and businesses such as Safeway and Target. Since 2015, however, more than 300 federal lawsuits have been filed against businesses for website accessibility issues, many of which involved small and medium-sized businesses.
Claims brought under Title III are subject to a very different recovery scheme than a standard disability discrimination claim under the ADA. The upside to a Title III claim is that the plaintiff bringing the claim cannot recover money damages. They are limited solely to injunctive relief, i.e., requiring the business to make changes to eliminate the barriers. The downside to Title III claims (and likely the reason we have seen such an influx of cases filed in recent months) is that attorney's fees are recoverable for the prevailing plaintiff.
In our experience, these Title III website accessibility lawsuits are being handled primarily by two law firms located in Pittsburgh, Pennsylvania and California. Prior to filing a lawsuit, businesses are receiving letters from these firms demanding certain changes to the website to comply with the World Wide Web Consortium’s ("W3C") Web Content Accessibility Guidelines ("WCAG 2.0 AA") and also payment of attorney's fees. These letters are being sent to entities all over the East Coast. If the parties are unable to reach a prior resolution, these firms are retaining local counsel licensed in that state to file a federal lawsuit.
These lawsuits are particularly frustrating for companies because there is little guidance from the federal government on standards for website accessibility. Nor should businesses expect to see guidance anytime soon. In February 2017, the Department of Justice pushed out the date for providing website accessibility regulations until 2018, at the earliest.
So what should a business do?
Companies should review websites now, before receiving a demand letter. Updating the website before receiving a threatened lawsuit can serve as a great defense if a claim is ever made about the website.
To review a website, we would recommend engaging a website consultant, expert or web designer familiar with ADA accessibility issues. Be sure any contract obligates the consultant or web designer to produce an ADA-compliant website. Businesses also should consider requiring compliance with the WCAG 2.0 AA standards, as these are the standards being identified by plaintiff's counsel filing these suits.
Indeed, there are some groups who will help create an ADA compliant website and then will certify its continued compliance, including making any additional changes to ensure compliance, for an agreed upon period of time. If businesses are not able to pay the costs of a consultant, there are some online tools that can scan websites to identify potential issues. One of the online tools we have seen used by plaintiff's counsel filing these claims is the "web accessibility evaluation tool," available at here
The evaluation should not be limited solely to the computer-based website. If there are applications for cell phones, tablets, or other devices, one should ensure those formats also are ADA complaint. The obligation to ensure website accessibility is something that is ongoing. Companies should plan continual maintenance and website upkeep. Additionally, we would recommend updating the website to provide a place for persons to provide feedback if they encounter any website accessibility issues.
If one is not able to get ahead of the curve and receives a demand letter claiming the website is not ADA compliant, don’t panic, but do call counsel. This area of law is constantly evolving and differs greatly state-by-state based on how courts are addressing these issues in the absence of approved federal regulations. Counsel can negotiate an appropriate resolution and ensure plaintiff's counsel are not overreaching in their demands.
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