By Conner G. Eversole at Fairfield & Woods, P.C
Website Accessibility
The COVID-19 pandemic brought about historic changes to the way we live and work. It particularly affected the ways breweries, restaurants, alcohol suppliers, and the service industry yielded their available e-commerce tools to connect with customers. Many in the service industry have been forced to lean heavily on their websites and mobile apps, which continues to evolve as we enter a “post-COVID” landscape. This increase in online use—by businesses and customers alike—has created a corresponding upswing in lawsuits alleging violations of Title III of the Americans with Disabilities Act (ADA).
Title III of the ADA requires that “places of public accommodation”—public-facing businesses that fall within at least one of 12 categories, including hotels, restaurants, movie theaters, and grocery stores—provide “equal access” to their goods, services, and facilities to individuals with disabilities. Websites and mobile apps are widely considered “places of public accommodation” under the ADA, and must be made equally accessible by all those living with a disability. According to the Centers for Disease Control and Prevention, an estimated 26% of Americans (or 1 in 4) are currently living with disabilities*, which correlated to more than 11,400 filed ADA Title III lawsuits in 2021—a 320% increase since 2013**. And the number of ADA Title III lawsuits continues to increase.
Common Elements in Title III Lawsuits
The ADA was enacted in 1990 to provide a “clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” While websites and mobile apps are not mentioned anywhere specifically in Title III or its regulations, the phrase “auxiliary aids and services” is defined to include “accessible electronic and information technology,” which includes websites, mobile apps, and online job applications. Plaintiffs who file a website accessibility lawsuit typically base their claims on two legal theories. The first is based on Title III’s “equal access” and general nondiscrimination mandate. The second is based on the more specific requirement that places of public accommodation provide auxiliary aids and services as may be necessary (at no extra charge) to ensure
effective communication with individuals with disabilities.
The problem businesses face, however, is that courts (and plaintiffs) disagree on what “accessible” means. The guidelines most often referenced by courts around the country, including Colorado, is known as the Web Content Accessibility Guidelines (WCAG) 2.0 and 2.1 Level AA. These rules, developed by the private international World Wide Web Consortium (W3C), have emerged as the benchmark standard. The consensus is that if businesses adhere to this standard in developing, coding, and maintaining websites and mobile apps, their websites will be accessible to almost all individuals with disabilities. The WCAG is even a legal requirement under some federal laws, such as Section 508 of the Rehabilitation Act, the Air Carrier Access Act, and section 1557 of the Affordable Care Act. Many Colorado courts have adopted the WCAG 2.0 Level AA as the accessibility standard for compliance in fashioning injunctive relief under the ADA.
For brick-and-mortar stores, businesses have been able to rely on the ADA to set clear and unambiguous accessibility standards. Businesses found out of compliance with these standards can expect to be penalized by the Department of Justice (DOJ), which is tasked with enforcing the ADA. Unfortunately, no such standard exists in the ADA for online accessibility, and despite numerous requests, the DOJ has refused to clarify any such standards (other than to say a business’s website must be accessible to individuals with disabilities***).
What Courts Are Saying
Due to there being no codified language in the ADA regarding the standards for online accessibility, very few cases are litigated to judgment, though several themes relating to website and mobile app accessibility are emerging. Most website accessibility cases settle before claims make their way to the courts because the cost of defending these lawsuits is usually far higher than the cost of settlement (even when a business may have valid defenses). In civil cases, a defendant in a website accessibility lawsuit must consider its own defense costs, plus the risk it will also be forced to pay the plaintiff should the court rule in their favor (and the plaintiff’s attorney fees). A defendant may also be forced to pay any fines levied by the DOJ for noncompliance, as determined by the court.
One thing is clear: federal courts do not agree on how to interpret the ADA when it comes to website accessibility. The lawsuits, which have typically been filed by a small handful of litigious plaintiffs who bring dozens, sometimes hundreds of lawsuits against businesses around the country, generally include claims that a visually or hearing-impaired individual was prevented from accessing the services provided on a website. Typically, claims involve allegations that the website lacks one or more of the following:
- compatibility with screen reader technology, which reads the text of a website
aloud; - alternative text embedded in images, preventing screen reader technology from
audibly describing the images; - descriptive link titles for hyperlinks, preventing screen reader technology from
audibly describing where a hyperlink leads; and, - keyboard navigation, preventing guests from maneuvering throughout the website
without a mouse.
The lawsuits, often filed in California, New York, or Florida federal courts (as they have additional state laws on website accessibility), generally allege the plaintiff encountered “barriers which limited [the] accessibility to the goods and services offered on the website.” According to plaintiffs, the absence of these accessibility features prevented them from, among other things, learning about pricing, new products, purchasing merchandise, gaining early access to news and merchandise, and learning of events via the website.
Is Your Website ADA Compliant?
For guidance on how to make websites accessible, owners can refer to the Web Content Accessibility Guidelines 2.0 and 2.1 Level AA****. WCAG 2.0 outlines four main principles for website accessible design; the site must be perceivable, operable, understandable, and robust. This means the information presented on a website must be perceivable to users (e.g., incorporating the use of captions or audible screen-readers); users must be able to operate and navigate the site easily (e.g., utilizing assistive technologies); users must be able to understand the information presented on the site (i.e., understand not only the content, but how to operate the website); and the website must be robust and current (i.e., users must be able to access the content as technologies advance).
Businesses should be proactive to avoid ADA website accessibility lawsuits. If you don’t already have one, a company-wide website accessibility policy should be created and implemented for every business. Such a policy should provide guidelines for training employees in the ADA’s requirements, soliciting feedback from clients and website users, providing a platform for user complaints and requests for accommodations, outlining procedures for quickly responding to accessibility issues, and providing alternative ways for users to access information. It is also prudent to hire a web designer or digital marketing team familiar with the WCAG to perform a periodic review and audit of your website and complete updates to ensure it is compatible with existing accessibility laws.
The Future of Title III Website Lawsuits
Website accessibility law continues to develop, but slowly. There are only a few appellate decisions, and each one generates more questions from businesses eager for guidance in this uncertain landscape. A few things are clear, however. Plaintiffs will continue filing these types of lawsuits against any business with an online presence, including websites that: i) only provide information (e.g., news and pharmaceutical websites); ii) are investor-facing websites; iii) are B2B websites; and, iv) websites unconnected to physical locations where goods and services are offered. Plaintiffs are also expanding their lawsuits to other digital assets, such as mobile apps and games. These areas are all uncharted territories for the courts, and they represent opportunities for industrious lawyers and plaintiffs to litigate. Digital accessibility is here to stay, and businesses should proactively consider accessibility when acquiring, building, and maintaining their digital assets.
Therefore, it is incumbent upon businesses to take proactive steps toward making their websites as accessible as possible to avoid website accessibility lawsuits. It should come as no surprise that updating your website to comply with recommended accessibility requirements can be a costly technological and financial undertaking. Making these important updates, however, could prevent a lawsuit against the business owner for violations of the ADA. Most importantly, if you receive a legal demand letter, or are served with court documents (like a complaint), promptly reach out to an attorney to discuss next steps.
Conner G. Eversole is a member of the real estate practice group of Fairfield & Woods, P.C. Conner focuses his
practice on commercial real estate transactions, working with clients on their leasing, licensing, foreclosure,
easement, business formation, and negotiation matters. He earned his J.D. degree from the University of Tulsa
College of Law.
* “Disability Impacts ALL of Us,” U.S. Centers for Disease Control and Prevention (October 28, 2022),
https://www.cdc.gov/ncbddd/disabilityandhealth/infographic-disability-impacts-all.html.
** “Record Number of Lawsuits Filed Over Accessibility for People with Disabilities” by Matt Gonzales, SHRM.org,
accessed Nov. 28, 2022 (https://www.shrm.org/resourcesandtools/hr-topics/behavioral-competencies/global-and-
cultural-effectiveness/pages/record-number-of-lawsuits-filed-over-accessibility-for-people-with-disabilities.aspx).
*** Guidance on Web Accessibility and the ADA, U.S. Dep’t of Justice (March 18, 2022),
https://beta.ada.gov/resources/web-guidance/.
**** https://www.w3.org/WAI/standards-guidelines/wcag/.
