Proactive Planning for Website Accessibility Today Can Avoid Disruption Later

Website accessibility lawsuits are on the rise. This article examines the reasons for these suits, explains the state of the law, and provides some advice about how businesses can protect themselves from potential claims and resolve claims efficiently when they do come.

When building a website, businesses naturally focus on delivering information about, and providing functionality that enables users to purchase, their product or service. Businesses often fail to consider whether their websites are reasonably accessible to disabled individuals who may wish to receive the same information and purchase those same items. Failure to consider that issue not only represents a loss of potential customers but also is a potential legal liability under the Americans with Disabilities Act of 1990 (ADA) and related state human rights laws.

Uncertainty Concerning Website Accessibility Standards

Under Title III of the ADA, individuals may not be discriminated against regarding their full and equal enjoyment of goods, services, facilities, or accommodations at any “place of public accommodation.” Enacted in 1990, prior to the advent of the internet, the ADA primarily addresses physical accessibility at places of public accommodation. Extensive regulations and a well-developed body of case law provide places of public accommodation with guidance about what they need to do to be accessible, addressing issues such as curb cuts, ramps, braille, auditory cues, and others. However, no statutes or regulations provide clear guidance on whether or when websites are considered places of public accommodation or what websites must do to comply with the ADA.

In 2010, the Department of Justice (DOJ) began the process of creating such regulations, but the notice of proposed rulemaking was withdrawn in December 2017. A bill called the Online Accessibility Act was introduced during the 116th Congress and was reintroduced in the 117th Congress. This bill makes it clear that websites are required to be accessible under the ADA, would establish standards for what accessibility means, and would require that compliance be “substantial” as opposed to complete or perfect. Most significant, it is intended to substantially reduce the amount of private litigation by requiring plaintiffs to exhaust administrative remedies before filing suit and pleading their claims with particularity if they do file suit.

Website Accessibility Lawsuits

In the absence of clear guidance, enterprising plaintiffs’ lawyers have created a cottage industry of sorts. Typically, a plaintiff is a sight-impaired individual who navigates the web utilizing screen-reader technology, by using software such as Job Access with Speech (JAWS) or by using features integrated in their mobile devices, such as the accessibility function on iPhones. The typical legal complaint alleges that such a sight-impaired individual was unable to access a business's website because the site does not reasonably function with such software.

The cases are brought on behalf of individuals but can also be brought as putative class actions. They often come with little or no warning. A business will sometimes receive a demand letter, sometimes identifying a specific client, sometimes not, outlining alleged violations and threatening to take legal action if demands are not met. The typical demand is for a business to agree to make its website accessible within a certain time frame, typically within one year, and for a payment to cover the claimant's attorneys’ fees and expert fees. Title III of the ADA does not provide for compensatory damages, only injunctive relief and attorneys’ fees, but many state law equivalents do permit recovery of compensatory damages. In some cases, plaintiffs seek more comprehensive reforms, including periodic compliance monitoring after remediation has been completed.

In other instances, a business will be served with a filed lawsuit without ever having been made aware of a potential problem. The claimant typically alleges that he or she was interested in purchasing the business's goods or services but was prevented from doing so by alleged barriers on the website. A frustrated business may run a search and find that the named plaintiff has filed dozens of cases against other businesses, making substantially the same allegations. The claims often seem “cookie cutter,” particularly when brought by the same plaintiffs’ attorney. However, the fact that certain plaintiffs and firms are repeat filers does not create a defense for businesses; courts have held that these types of cases are permissible, so long as the plaintiff satisfies the minimal pleading requirements for stating a claim.

Application of the ADA to Websites

Typically, one of the first questions a business will ask is whether the ADA applies to its website, since a website is not a place of public accommodation in the same sense that a physical store is. The courts have not been uniform in their answers.

Some courts, for example, the 2nd Circuit, hold that the ADA is adaptable. The legislative goal is to provide reasonable access to people with disabilities, and given the realities of modern business, websites themselves have become places of public accommodation. Thus, to serve its remedial purpose, the ADA applies to websites.

Other courts, the 9th and 3rd Circuits, for example, hold that websites themselves are not places of public accommodation. However, if a business uses a website in connection with a physical location from which it sells goods and services, that is enough to make the website subject to the ADA. The legal reasoning is that the website is simply a means by which the business markets and sells its goods and services from its physical location, and the “nexus” between the physical location and the website brings the website into the ambit of the ADA.

As a concrete example, take two businesses who were actual targets of these types of claims: Netflix and Domino's. In “website-as-a-place-of-public accommodation” jurisdictions, both Netflix and Domino's would be subject to liability under the ADA if they had an inaccessible website. In “nexus” jurisdictions, however, the ADA would not apply to Netflix because it is a web-only business. Domino's, however, could still face ADA liability for its website because the website is used by customers to order pizzas from physical pizza stores.

To complicate things further, the 11th Circuit has recently carved out a third view. In Gil v. Winn-Dixie, the court found that a website “in and of itself” is not a place of public accommodation, because the ADA lists only physical locations as places of public accommodation. Thus, presumably, Netflix would not be subject to the ADA in the 11th Circuit. The 11th Circuit then considered the nexus argument, under which Winn-Dixie would be liable pursuant to the ADA because the alleged inaccessibility of its website presented an intangible barrier to equal access to the services of the physical stores. The 11th Circuit rejected the nexus test. Instead, the court found that the Winn-Dixie website was a “limited use website” not a point of sale, and that the plaintiff could reasonably access Winn-Dixie's services by going to the store in person. The court also distinguished a prior case, Rendon v. Valleycrest Productions, in which it had held that an inaccessible phone service did violate the ADA because it was the only way for people to make use of the service.

Thus, in most cases, the answer to the question of whether the ADA applies to a public-facing website is likely going to be yes. It will almost certainly be yes in website-as-a-place-of-public accommodation jurisdictions. In other jurisdictions, the answer is still likely to be yes because most web-based businesses also have physical presences. Even in the 11th Circuit, if the website operates as a point of sale for a physical location, as is often the case, it is likely that the ADA will be held to apply. In any event, plaintiffs’ attorneys understand the different standards and can choose to file in jurisdictions favorable for the facts of their case. Thus, any business that becomes the target of such an ADA complaint is unlikely to be able to defend on the basis of not being a place of public accommodation.

Accessibility Standards for Websites

What, then, must a business do to comply with the ADA? In the absence of clear statutory or regulatory guidance, some businesses have challenged these cases on due process grounds, arguing that it is unfair to hold them to an unspecified legal standard. These challenges have uniformly failed. Courts have consistently held that the absence of specific regulatory guidance does not absolve businesses from the ADA’s general statutory demand that places of public accommodation be accessible.

In Robles v. Domino's, for example, the 9th Circuit observed that the ADA has always required places of public accommodation to provide auxiliary aids and services to facilitate access to their goods and services. Further, since 1996, the DOJ has publicly announced its position that the ADA applies to the websites of places of public accommodation. Thus, courts deem businesses to be on notice that a public-facing website must provide people with disabilities reasonable access to the goods and services it offers.

The absence of clear regulatory guidance has resulted in numerous ADA lawsuits with demands that businesses demonstrate “substantial compliance” with industry guidelines. These guidelines are published by the World Wide Web Consortium (W3C), an international community dedicated to developing standards to foster web access for all.

W3C publishes the Web Content Accessibility Guidelines (WCAG), a comprehensive set of technical standards designed to allow persons with disabilities to navigate a website. WCAG standards are primarily designed to ensure that alt-text is available for videos and images, that links are navigable by sight-impaired users, and that pop-ups and other common web features do not prevent screen readers from accessing information on a webpage. The WCAG standards are updated periodically, with WCAG 2.1 having been adopted in 2018. A W3C has published a draft of WCAG 2.2.

Decisions When Presented with an Accessibility Lawsuit

A business faced with an ADA lawsuit or demand letter has several questions to navigate:

• Do I respond at all?
  • Since this is a volume business model for many plaintiffs’ lawyers, there is usually some basis to hope that there will be no follow-up after an initial demand letter. Responding may only signal to the plaintiff that they have a “live one on the hook,” while nonresponse may cause a plaintiffs’ lawyer to focus on more active matters. On the other hand, responding proactively and offering the plaintiffs’ lawyer a quicker, cheaper path to resolution can often result in a reduced settlement payment.
• Do I litigate or settle?
• Do I want to invest in a test case about whether my website is subject to the ADA?
  • Doing so is likely to be an uphill battle, and the legal expenses will almost certainly exceed the cost of settlement. Given the technical nature of these lawsuits and the uncertainty about how to demonstrate accessibility, they are not well suited for a motion to dismiss or an early summary judgment motion on other grounds. This means that a business will have to invest significant money in defending a case through a trial that it is not certain to win.
• Do I want to claim that I am already WCAG compliant?
  • Do I have the evidence to prove it?
  • Will the plaintiffs’ attorney even give my evidence real attention, or are they just looking for quick settlements, with little focus on actual merits?
• Do I agree to remediate? o How do I accomplish that?
  • Can I remediate in-house?
  • Do I need to hire a consultant?
  • How long will it take?
  • How much will it cost?
• Do I have insurance coverage for this?
• Does a developer who coded my website have an obligation to indemnify me for this?
  
  

In most cases, the pragmatic choice is to negotiate a settlement amount and agree to bring the website into WCAG compliance. Just as an industry has evolved around bringing these lawsuits, so too has an industry evolved around providing remediation services.

There are two broad routes a business can choose: hire someone to recode its website or pay for a widget or overlay that allows users to toggle to an accessible version of an existing website. In the latter case, the widget will then automatically detect and correct WCAG issues. The effort and cost needed to comply with WCAG standards will depend on the content in a given website. The solution a business ultimately chooses should be made only after it talks to multiple service providers about the benefits and downsides of each option. The business should also consider whether the service provider will guarantee future compliance and provide indemnity against future ADA claims.

Protecting Against Future Website

Perhaps the most frustrating element of these cases is that resolving one case does not prevent future cases from being brought. There is no guaranteed safe harbor. Achieving full WCAG compliance may deter other claimants from filing suit, but it is not a silver bullet that will insulate a business from future lawsuits. The next plaintiff may simply not agree that the remediation has resulted in full WCAG compliance. Some plaintiffs have expressed doubts that websites using widget overlays provide meaningful access.

A settlement agreement with an individual plaintiff binds only that plaintiff. Nothing prevents a subsequent plaintiff from alleging that he or she encountered some different access barrier, or even the same barrier, prior to the remediation taking place. A business would then face the same frustrating set of decisions about how to handle the new case.

The only measure that could afford businesses greater peace of mind is if the DOJ resumes the rule-making process and issues clear regulations governing the websites of places of public accommodation. Businesses would then have a clearer sense of what they need to do to comply with the ADA, and possibly even a safe harbor provided by law.

Until that happens, one strategy businesses can consider is including an accessibility statement on their website. This would be a short statement that either the website is committed to accessibility or that the website is in the process of implementing updates to make it WCAG compliant.

This strategy carries potential risks and benefits. On the one hand, such a statement signals to potential plaintiffs that a business has already been the subject of an ADA lawsuit and may have reached a resolution. This would make a new case less likely to succeed, since fees can be recovered under the ADA only if the lawsuit spurs a change in the business. Other plaintiffs’ attorneys, however, may see such a statement as an admission that work remains to be done to make a website accessible, and thus tantamount to an admission of ADA liability.

Maintaining Website Accessibility

Businesses should be aware that accessibility is an ongoing process. Websites are constantly recoded or updated, with new content or features being added. Just because a website is 100 percent WCAG 2.1 Level AA compliant today does not mean that will be true tomorrow or that it will still comply with the next iteration of WCAG guidelines. It is incumbent upon businesses to test and retest their accessibility scores to ensure that they meet the minimum accessibility requirements that plaintiffs seek. This will put businesses in the best position to defend against an ADA lawsuit or demand.

Reprinted with permission from the August 26, 2021, issue of Bloomberg Law. © 2021 The Bureau of National Affairs, Inc. All Rights Reserved.