The internet has dramatically enhanced the way that people interact with each other and the way that public entities and private companies do business with consumers. It has also led to a rise in lawsuits against businesses alleging that their websites fail to comply with the requirements of The American with Disabilities Act of 1990 (“ADA”).
The ADA is a civil rights law that prohibits discrimination based on an individual’s disability. In addition to requiring covered employers to provide reasonable accommodations to employees with disabilities, it also imposes accessibility requirements on public accommodations to provide qualified individuals with disabilities equal access to their programs, services or activities unless doing so would fundamentally alter the nature of business or would otherwise pose an undue burden on the organization.
Apart from discrimination lawsuits filed by employees, the litigation related to the ADA has historically centered around the accessibility rules for physical locations. In recent years, however, there has been a dramatic increase in ADA claims against businesses with an online presence, claiming that the websites or mobile applications are inaccessible to users with disabilities. The ADA does not explicitly address online compliance, despite having been amended in 2008. Nevertheless, there appears to be a consensus that the ADA applies to online access even in the absence of clear appellate authority.
In 2010, the United States Department of Justice (DOJ) announced that it intended to promulgate requirements for website accessibility under Title III, but in the decade since this announcement, no such guidance has ever been issued. In September 2018 the DOJ said that it was “evaluating whether promulgating specific web accessibility standards through regulations is necessary and appropriate to ensure compliance with the ADA.” It reiterated the long-standing DOJ position that the ADA applies to public accommodations’ websites and that the absence of a specific regulation does not serve as a basis for noncompliance with the ADA’s requirements.
Whether a website must comply with the ADA and, if so, how the website can achieve compliance is largely dependent on where the website owner is sued. In the New York federal courts, for instance, the judges have rejected businesses’ arguments that they should not be subject to suit because there are no applicable standards for websites. New York courts have also been receptive to claims filed against businesses with no real connection to New York other than that their websites are accessible to residents of New York. Finally, unlike some other courts, New York courts have not required that the website relate to an entity that maintains a physical place of public accommodation (i.e., a brick and mortar store).
California has its own statute, the Unruh Civil Rights Act, which enables plaintiffs to recover damages “in no case less than $4,000…for each and every offense”; i.e., for each alleged attempt by a disabled person to attain access to an inaccessible location, as well as potentially three times the actual damages for each violation. There is a tsunami of website claims in California because in 2019 the Ninth Circuit Federal Appeals Court, which includes California, ruled in Robles v. Domino's Pizza that the ADA applies to all websites and mobile apps. California state courts, on the other hand, have held that the ADA applies to online websites only where they are connected to a physical place of “public accommodation”. That concept was recently echoed by the Eleventh Circuit (the Federal Appeals Court for Georgia, Alabama, and Florida) which held that a website would violate Title III only where it creates an “intangible barrier” to accessing goods/services in a physical, brick and mortar location. See, Gil v. Winn-Dixie Stores, No. 17-13467 (11th Cir. Apr. 7, 2021) (finding inaccessibility of website irrelevant where site did not include e-commerce platform).
Given the lack of standards, in many cases it is virtually impossible to defend an ADA website lawsuit in jurisdictions such as New York or California. There is no agreement on what standard(s) to apply or what constitutes compliance.
Many of the businesses being sued had addressed ADA compliance, only to be accused of not being compliant based on results they achieved using substandard or outmoded software. Few businesses are willing to roll the dice and fight these cases to the point of resolution when it is much easier and less expensive to settle early. Typically, these cases settle for between $7,000 and $20,000, and the defense costs can be minimal if settlement is addressed early in the litigation.
Under the ADA, damages are not recoverable. Cases brought under the ADA are all about the attorneys’ fees that can be recovered. Many state and local laws may also provide a damages remedy on top of the fee remedy. In addition to the fees, as part of a settlement, the business must commit to bring its website into compliance, which often entails hiring a consultant to scan the business’ current website to identify areas that may require re-coding to ensure it can be read by assistive software or screen reading devices – an expense not covered by insurance.
If you receive a lawsuit alleging that your website is inaccessible to those with disabilities, contact your broker as soon as possible in order to report the claim to your insurance carrier. While Employment Practices Liability Policies which provide third-party coverage will not cover the expenses associated with modifying your website to make it compliant with the ADA, the policy will cover the costs to defend the claim, as well as any award of attorneys’ fees that may be awarded to plaintiffs under applicable state statutes.
*Written in collaboration with Peter T. Shapiro, Partner at Lewis Brisbois Bisgaard & Smith LLP