Online accessibility issues fuel new ADA litigation

Posted: April 13, 2018

The Americans with Disabilities Act has made public accommodations like retail stores more accessible to people with disabilities. Which raises the question – would those retail stores’ websites be considered public accommodations?

That’s one of the issues at the heart of increasing ADA litigation around online accessibility. The law firm Seyfarth Shaw law firm counted 814 federal cases filed last year, 115 cases in the state of California’s courts, and six in New York’s state courts.

The first cases were filed in 2000, according to the Los Angeles Times, long after the ADA law was written for a world that had yet to experience anything like Amazon.com. Companies that have been named as defendants include Nike, Burger King, Hershey, Lord & Taylor and Pandora, according to CBS.

Key accessibility concerns center around the visual and hearing impaired. Images on the internet pose problems for the blind as do videos without captions for the deaf. Timeouts in online banks can prevent a blind person from completing his or her transaction.

“So far, Web accessibility lawsuits have concerned the vision- and hearing-impaired, but future cases could be brought on behalf of plaintiffs diagnosed with dyslexia, ADD/ADHD, narcolepsy, cognitive impairments, paralysis and many other conditions,” writes Mark Pulliam in the LA Times.

Key questions involve:

  • Whether a website is a public accommodation.
  • Whether it must have a real-world nexus to qualify as such.
  • Whether third-party guidelines should have any weight in the courts.
  • How much costly website development is fair to require of smaller businesses.
  • And how much pre-litigation warning of an accessibility issue is fair, if any.

A loss for Winn-Dixie

The Department of Justice said in 2010 it would provide guidance but has yet to come through with guidelines or regulations. In lieu of those, plaintiffs and courts have looked to Web Content Accessibility Guidelines (WCAG) of the World Wide Web Consortium (WC3).

In the first of these online accessibility cases to go to trial, Winn-Dixie was required to adhere to the WCAG guidelines after a blind man filed suit against the grocery chain. Because the Winn-Dixie site is “heavily integrated” with its stores, it is a public accommodation, SUS District Judge Robert N Scola Jr. ruled. He didn’t say whether the website in and of itself would be a public accommodation.

“Although Winn-Dixie argues that [plaintiff] Juan Carlos Gil has not been denied access to Winn-Dixie’s physical store locations as a result of the inaccessibility of the website, the ADA does not merely require physical access to a place of public accommodation,” Scola wrote. “Rather, the ADA requires that disabled individuals be provided ‘full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.’”

It’s fair to expect this litigation around web accessibility to increase, just as ADA litigation has overall.

Writes Pulliam, “In the process of making a website accessible, questions invariably proliferate. Do certain color combinations violate the ADA because they confound the colorblind? Are certain layouts inaccessible if they’re confusing to users with a limited field of vision? Do the accessibility requirements apply only to the websites themselves, or do they also apply to Web content, such as advertising on a third party’s website? Will website hosts be responsible for the compliance of third-party sites? Must archived Web content be revised to comply? What about mobile apps? Do temporary technical bugs in an otherwise compliant website constitute a violation? What physical and mental conditions will require accommodation?”

Great questions. As long as development costs are tenable, what business wouldn’t want to engage these customers?