|August 18, 2014|
Previously published on August 14, 2014
While plaintiff's lawyers have been busy the past two years filing lawsuits around the United States alleging violations of the Americans with Disabilities Act (ADA) related to physical barriers—including a wave of class action lawsuits against banks for inaccessible ATMs and against retailers for inaccessible point of sale devices ("POS devices")—these lawyers are now turning their attention to company websites. Since May 2014, there has been a dramatic increase in the number of lawsuits and demand letters alleging that businesses have denied access to visually impaired customers by having websites that are inaccessible to them in some manner. Although the focus thus far has been primarily on website access for the visually impaired, website access issues may also arise for persons with mobility and hearing disabilities.
Unlike the ATM and POS matters, where hundreds of class action lawsuits were filed before the businesses were even notified of the alleged ADA violations, certain plaintiffs' law firms are now sending demand letters to businesses, contending they will pursue a lawsuit unless the business agrees to enter into a "structured negotiations agreement." Attached to these demand letters is a report prepared by a third-party vendor, which provides examples of the alleged inaccessible areas of the business' website.
Website accessibility lawsuits are likely to be much easier for plaintiff's lawyers to initiate than other ADA claims since the lawyers do not have to leave the comfort of their offices to inspect an actual physical location. This is one reason why the flurry of lawsuits and demand letters is anticipated to continue—they require very little leg work.
Another reason that website claims are likely to increase significantly is due to the absence of clarity in this area of the law. The Department of Justice (DOJ) has delayed issuing regulations on website accessibility for several years, and it recently announced a further postponement of proposed regulations until March 2015. Despite there not being specific ADA website standards, the DOJ has emphasized that businesses should make electronic information and technology accessible to the disabled, and it has been aggressive in its enforcement of website accessibility. While no specific ADA guidelines exist yet, the DOJ has signaled that it will likely adopt a set of guidelines known as the Web Content Accessibility Guidelines (WCAG), developed by a private industry group. The Department of Transportation has already adopted WCAG guidelines as the standard for airline carriers.
Businesses that may encounter these types of lawsuits may want to ensure they have an accessible website. However, given the unknowns in this area of the law and the fact that website content can change on a daily or even hourly basis, this may not be easy. Even the most vigilant businesses may find themselves a defendant in a lawsuit or on the wrong end of a demand letter.