WEBSITES AND DISABILITY ACCESS - A new liability

Over the past several years, hundreds companies have been sued based upon claims that their websites are not accessible to persons with disabilities. Is this a real risk? Are these suits frivolous? What can you do to protect your website from such claims and resulting liability?

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Background

These claims arise under the Americans with Disabilities Act (ADA), signed into law in 1990 – before the advent of the Internet. Title III of the ADA prohibits discrimination on the basis of disability in “places of public accommodation.” The original intent of “places of public accommodation” was to apply to physical places open to the public, like restaurants, bars, hotels, stores and other commercial locations. Websites, of course, were never contemplated, and certainly are not mentioned anywhere in the ADA.

The Department of Justice has not yet issued rules for website compliance with the ADA, but this has not stopped the flurry of law suits. The DOJ anticipates issuing guidelines in 2018 (but this date is likely to be pushed further out). Nevertheless, it is prudent for websites to consider taking precautions in order to avoid being the target of an action.

What can you do?

A look at plaintiff’s actions and suggestions from the DOJ indicate that the prevailing view is that a website will be considered ADA compliant if the website follows the Web Content Accessibility Guidelines (“WCAG-2.0”) Level AA. The WCAG-2.0 provides specifications for making websites accessible to people with a wide variety of disabilities, including font alternative options such as size, speech, audio, video, and color contrasts). See here for the details of WCAG-2.0.

Modify your site. There are websites that perform compliance testing, and you can test out your website in a few seconds for free online. However, you will still need someone with good WCAG-2.0 knowledge to suggest and make the changes. Making a reasonable effort to accommodate will already provide a good faith effort defense – which might allow you to dissuade would-be plaintiffs. Depending upon the website complexity and size, performing modifications for compliance with WCAG-2.0 can range from $30,000 to $250,000, plus annual maintenance costs.

Insurance. Check to see if your insurance covers disability claims based upon accessibility discrimination claims for websites.

Who are the likely targets?

Suits have targeted websites of restaurants, airlines, tax preparers, motel chains, and skin care products, to name a few. So the potential description of target sites is broad. Banks are also becoming a major target. The circuit courts are split on whether a website needs to have a nexus to a physical location in order to be considered a place of public accommodation under the ADA. So the first line of attack for plaintiffs will be websites that have a nexus to a physical location and are actually a means for accessing the physical location (think retail establishments, restaurants, etc.).

What’s the legal process if your site gets sued?

Defendants will receive a letter from plaintiff’s counsel stating that the firm represents a person with a disability who tried to use the plaintiff’s website. The letter will state that the website was not accessible and violated the ADA. The letter will offer to work with the plaintiff to remedy the non-compliance, proposes a consent decree, and demands payment of significant legal fees, that would, not surprisingly, be less than the cost to defend the suit.

Should you defend or settle?

Unfortunately, defending an ADA action is usually more expensive that settling. That’s the business model. However, in addition to the high attorney’s fees, the cost of compliance needs to be taken into account to determine whether to defend or settle. A word of caution, a recent case held that a confidential settlement did not bar future claims. Therefore, settlements should be public or subject to a consent decree requiring that the website become compliant. A website legally required to proceed with compliance will be a much less attractive target for additional actions.

 

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William Galkin manages GalkinLaw. Mr. Galkin has dedicated his legal practice to representing Internet, e-commerce, computer technology and new media businesses across the U.S. and around the world. He serves as a trusted adviser to both startup and multinational corporations on their core commercial transactions.

  
                                                                                                         
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