Website accessibility lawsuits (i.e., lawsuits alleging discrimination on the basis that websites contain access barriers that limit navigation for disabled people) increased 177% percent from 2017 to 2018 alone. These website accessibility lawsuits have been brought under Title III of the Americans with Disabilities Act ("ADA"), which prohibits discrimination on the basis of a disability "in the full and equal enjoyment of the goods [and] services . . . of any place of public accommodation." The Department of Justice ("DOJ") has recently affirmed its position that websites are places of public accommodation. On the litigation front, there is a split of opinion among federal courts as to whether a website alone (i.e., one not connected to a brick-and-mortar store) is a place of public accommodation. Notwithstanding the foregoing, regardless of where a company is located, all entities with an online presence should build/review their websites with an eye directed towards ADA compliance.
Why has the number of website accessibility lawsuits increased so exponentially?
The explosion of website accessibility lawsuits in recent years can be largely attributed to: (1) the fact that the ADA was enacted in 1990, at a time when "access barriers" were understood to mean physical barriers to access and not "access barriers" to website content; and (2) the lack of published guidance from the DOJ.
In the offline/physical space, the ADA and DOJ provide very specific standards requiring physical commercial locations to accommodate disabled individuals beyond simply "equal access." However, because the DOJ continues to abstain from providing specific compliance guidance for websites, courts are left to interpret what "equal access" means in the context of website accessibility lawsuits.
Website accessibility lawsuits are typically brought on the basis of unequal access, such as where a screen reader cannot read text on a website. In the most extreme of cases, any minor website coding error may be a violation of the ADA. For example, if a website has an image that the alt-text (which is the HTML coding describing the image) describes as a cat, but the image is actually that of a dog—this may violate the ADA, it is argued, because this results in unequal access (the sighted person can see the dog, but the blind person only hears "cat").
Avoiding Website Accessibility Lawsuits
While we have seen lawsuits based on minor coding and/or alt-text errors (i.e., image of "dog," but coded "cat"), the majority of cases contain a bit more substance (i.e., those that involve the checkout feature, problems with the shopping cart, and overall navigation issues). While the only sure-fire way to avoid a website accessibility lawsuit is to have a fully-compliant website that conforms to the current version of the Web Content Accessibility Guidelines ("WCAG")—a set of accessibility standards created by the World Wide Web Consortium ("WC3"), at a minimum all websites should:
- include a skip to content feature at the top of each page;
- provide a 24/7 toll-free telephone number (that can be read by screen readers) serviced by a live customer service representative who can provide access to all website information and functions; and
- enable screen readers to read the most important text relevant to the featured products/services and allow users to buy (or subscribe to) those products/services.
In our experience of defending website accessibility lawsuits, few of our clients were aware that their websites were inaccessible to the disabled. Unfortunately, because the ADA is a strict liability standard, ignorance of the law is not a recognized defense.
Companies facing website accessibility lawsuits often have to deal with negative press and unnecessary legal fees. Given the substantial risk, it is imperative for companies to have experienced website auditors and lawyers review their websites for compliance.
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