GrayRobinson E-Lert: New Title III Americans with Disabilities Act Lawsuits are Focusing on Commercial Websites

MIAMI, FL – September 9, 2016 – Lawsuits filed by vision impaired plaintiffs alleging barriers to access to digital content on websites and mobile applications pursuant to Title III of the Americans With Disabilities Act ("ADA") are the new darling in the ADA litigation world, and Florida is second only to California in the number of ADA lawsuits filed regarding website compliance. These claims are being filed at such a rapid rate that it is almost inevitable that companies and businesses will soon find themselves targeted in one of these lawsuits. For example, in 2016, in the Southern District of Florida alone, approximately 80 such cases have been filed so far with new filings appearing weekly. To date, the cases seem to deal only with barriers for low vision or blind individuals, but those regarding hearing impaired individuals cannot be far behind.

Despite that the risk of litigation is real, in today's world, e-commerce is ubiquitous and unavoidable in a competitive market. Regardless of size, nearly every business worldwide hosts a website offering its goods and services online and most have also developed applications for mobile devices. Often overlooked in the website and mobile application development process is compliance with Title III of the ADA. Specifically, many websites and mobile applications are improperly structured or coded to accommodate the specialized tools used by blind and low vision individuals to access digital content, thereby rendering the digital content inaccessible to the more than 7 million blind and visually impaired consumers in the United States.

Title III of the ADA applies to any private entity that is considered a "place of public accommodation" as that term is defined in 42 U.S.C. §12181(7). Nationwide, courts have struggled with the question of whether Title III of the ADA applies to websites. Naturally, this has led to a split in authority regarding whether a website is a public accommodation as defined in Title III of the ADA. Specifically, the circuit courts that have considered ADA website accessibility cases have taken one of two positions. Some circuits, including the Eleventh Circuit (and, surprisingly, the Ninth Circuit), have found that websites themselves are not places of public accommodation, limiting the definition of a public accommodation to a brick and mortar store or other physical location, unless there is a nexus between the website and the goods and services provided therein and an actual physical location. Therefore, under this reasoning, web-based businesses like eBay would not be covered under Title III in these circuits, but businesses that offer goods and services online and at a physical location, like Walmart, would be covered entities. Other circuits have found websites to be places of public accommodation regardless of their nexus to a physical location. As a result, it is possible that a business that operates nationally and that gets sued for ADA website accessibility in more than one jurisdiction, can face different results in different circuits. It is also worth noting that any governmental entity (state, local, or federal) or any recipient of federal funding is required to maintain its websites completely accessible to the visually impaired.

Adding to the confusion in litigating these cases is the fact that neither the statutory language of the ADA nor the regulations of the Department of Justice ("DOJ") specifically address websites and mobile applications. Instead, the de facto standard for website accessibility and compliance has become the World Wide Web Consortium’s (W3C) Web Content Accessibility Guidelines 2.0 (WCAG), Level AA, which are likely to be adopted by the DOJ in its ADA regulations. 

Under the ADA, prevailing private plaintiffs can only obtain injunctive relief and attorneys’ fees and costs, including expert fees. Ostensibly, the goal of the lawsuits is to seek an injunction requiring the company to come into compliance with the aforementioned guidelines for website accessibility. This usually requires redevelopment of a website and/or mobile application to be compatible with commercially available assistive technologies (like screen reader software, large-print software, and braille output devices, for example) that assist the blind or low vision individual in navigating digital content on websites or mobile applications.  

Given the current legal environment, businesses utilizing the Internet as a portal to the general public for the sale of goods and services should conform their websites to the accessible standards, especially where the cost of litigation exceeds the cost of compliance. The first step in assuring website compliance is to hire a third-party consultant to perform an audit of the company’s or business’s website and mobile application to ensure that the website and mobile application comply with the WCAG. Once deficiencies are identified, the company or business should adopt and implement a website accessibility policy and publish a website accessibility statement prominently on its website, directing end-users to the accessibility information and/or plan for the website and mobile application. The policy should provide for regular accessibility testing to ensure that the website or mobile application (and its various updates) remains substantially usable by screen reader software using the latest released version of commonly used internet browsers.