Written by Sara C. Purvin, Esq
Dominos, Toys ‘R' Us, and even Beyoncé have been sued over website accessibility. So what does it mean for a website to be inaccessible and what can you do to protect your business?
240 website discrimination suits were filed nationwide in 2015 and 2016 combined. Yet in 2018 alone that number had ballooned to at least 2,285, with the majority of those filed in New York and Florida. The estimates for 2019 are even higher.
Due to the scrapping of guidance attempts at the federal level, there is no absolute legal standard for when a website complies with the Americans with Disabilities Act (ADA). Now some plaintiffs' attorneys have taken advantage of that, and have filed hundreds of identical complaints on local businesses claiming discrimination against their clients who might live hundreds of miles away. These lawsuits often settle for less than the cost of litigation. Yet at $8,000 - $20,000 per case, and over 300 cases at a time, some plaintiffs' attorneys are making serious money. Some major businesses have settled with one plaintiff only to be sued a second or third time by others.
These suits have not only affected businesses, but county and municipal governments who have scrambled to spend hundreds of thousands of dollars to bring their websites in line, make archived PDFs readable by screen readers, or given up and taken down their websites entirely.
The Department of Justice published revised regulations for the ADA on September 15, 2010, which made a number of significant changes affecting businesses of public accommodation. Every website may possibly be considered a business of public accommodation and fall under the purview of the ADA. In 2016 the DOJ filed an amicus brief supporting the idea that websites are regulated by the ADA. The Department of Justice issued an advance notice of proposed regulations for ADA-compliant websites in 2010, but these efforts were scrapped in an effort to protect businesses from over-regulation. Unfortunately, ten years later, there is little to no consensus as to what constitutes ‘compliance' with these changes when it comes to the digital realm.
Most website ADA claims involve visually-impaired plaintiffs who cannot access site content with screen-reading software. That content might involve text that is presented as a flattened picture and can't be highlighted or read by screen reading software, or photos that have no alternative descriptive text yet are intrinsic to understanding the meaning of the site. Imagine trying to order food without being able to read the menu, trying to order a shirt without knowing what is written across it, or having no ability to choose your airline flight on your computer or your phone.
However, increasingly, 'surf by' or ‘click by' plaintiffs have argued in court that the ADA requires more of websites than mere readability. Rather, they have claimed that the ADA requires places of public accommodation, including restaurants, movie theaters, and hotels, to outline an infinite amount of accessibility information, on not only their own sites, but on any third party sites on which they advertise. Not only is there always one more piece of information that could be added, but small businesses often have no control over what information is listed on large aggregate sites like hotels.com, priceline, expedia, or various airline websites.
If there is no agreed-upon standard for what constitutes compliance, can any physical business with a website be safe from ‘surf by' discrimination cases?
In traditional ADA cases, defendants often try to prove that their actions to come into compliance have rendered the plaintiff's case moot. Given structural changes to a building, it is easy for a defendant to demonstrate that the alleged wrongful behavior has been corrected and is unlikely to recur. The mootness standard was developed by the Supreme Court in a landmark environmental case wherein an alleged bad actor had argued that by merely halting their dumping of hazardous material, they had rendered the case moot. Clearly it is not enough merely to stop taking an illegal action if that action can be resumed at any time. (Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000).)
Unfortunately, website cases do not involve any structural changes to a building, but rather software and coding that plaintiffs argue a company can change or update on a whim. How then can a defendant meet "the formidable burden of demonstrating that it is absolutely clear the alleged wrongful behavior could not reasonably be expected to recur"? (Wu v. Jensen-Lewis Co., 345 F. Supp. 3d 438 (S.D.N.Y. 2018).)
Companies spend significant time, energy, and money updating their websites and bringing them into compliance. Why would any company update their website and then make the extremely illogical move of downgrading their new website to make it non-complaint? If anything, compliance is good for a business as it increases their audience of potential customers. Reverting their site would serve not only to open businesses up to discrimination litigation, but to cut themselves off from future revenue sources. At least one New York website defendant has now been granted an order to dismiss for mootness, and others are sure to follow. Kroger has successfully argued that changes to their website were substantial enough to bring it into compliance. (Diaz v. Kroger Co., No. 18 Civ. 7953, 2019 U.S. Dist. LEXIS 93177, *7 (S.D.N.Y. June 4, 2019).)
However, the issue is more complicated when it comes to descriptions of physical accessibility features. Until recently, New York Courts had rarely grappled with the unanswered question of how much accessibility information is enough accessibility information. Without a uniform federal standard for what constitutes compliance with the ADA, Courts are extremely hesitant to dismiss a plaintiff's federal discrimination claim as moot.
Rather than risk costly and uncertain litigation, defendant corporations often settle these claims out of court, essentially paying a ransom to plaintiffs' attorneys who have filed hundreds of identical complaints against New York City hotels and restaurants. Unfortunately, settling with one plaintiff doesn't mean that a business won't get sued again for the same issue.
These cases not only put a financial burden on small businesses and our court systems alike, but they also color the way the public sees discrimination claims in general. Everyone deserves full inclusion in our society, rather than being designed out of participation at places of employment, movie theaters, hotels, and, unfortunately, the new Hunter's Point Queens public library.
The most successful arguments for mootness in Website ADA cases involve showing what efforts at compliance your business made before the complaint was filed. That means the best thing you can do to protect your business is to bring your site into compliance now, before you become targeted for a website discrimination suit.
WCAG 2.0 is an industry-standard for digital and website accessibility. While this standard has not been adopted by the federal government, in the absence of a legal standard, showing that your business has complied with, or made an effort to comply with, this demonstrable industry standard can be persuasive. Make sure your website is readable by ensuring that you can highlight and copy all text on your website, provide ‘alt text' to all important photos, and ensure that you can reach every item on your website using the keyboard.
For hotels and other service industry businesses, ADA compliance means including accessibility information on your site including: a description of where to locate your accessible entrance, whether you have ADA compliant guest rooms or seats available, and whether there are fully accessible restrooms at your location.
For all service industry-related websites I strongly recommend including the business phone number on the website and indicating that guests can call with any further accessibility inquiries. Not only is it an extremely easy, and essentially free, way to protect your business in the event of litigation, it will increase your customer base by offering customers a way to know ahead of time that your establishment is there to welcome them in a comfortable environment that can serve their needs.
If you've already been sued for noncompliance, though, another winning strategy defendants have taken is to replace the entire website with a new one complying with plaintiff demands, and arguing that the case should be dismissed as moot. (Carroll v. New People's Bank, Case No. 1:17CV00044 (W.D. Va. Apr. 5, 2018).)
Sara C. Purvin, Esq. is an Associate Attorney at Michael F. Schwartz Law who trained with the U.S. Attorney's Office EDNY Human Rights Division
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