Yes, seriously. This is no longer a remote threat cautioned by overzealous lawyers. This is now a real threat that business owners should address now. If you own and/or operate a business, and the business has a website that markets its goods or services, you could be liable for violating the Americans with Disabilities Act (“ADA”) if your website is not accessible to disabled users. That means ensuring that your website content can be converted to audio or text depending on the user’s disability. This can be accomplished through the use of conversion software—something you’ve probably never heard of because you delegated website management to someone else. Recent court rulings from various jurisdictions—including a particularly alarming ruling out of Florida—have ordered businesses to make their websites accessible and held business owners liable for the disabled plaintiff’s attorney fees.
Concerned enough to learn more? You should be.
The ADA Compliance Problem
Website accessibility lawsuits come on the heels of a flurry of ADA accessibility lawsuits that targeted brick-and-mortar businesses; Jaburg Wilk defended many of these lawsuits. The plaintiff was the same in each case—a “tester,” also known as a professional plaintiff, paid by a lawyer to file hundreds of lawsuits with the purported objective of increasing ADA compliance. Thousands of businesses nationwide were targeted by these lawsuits, with millions of dollars paid in settlements, attorney fees, and property-remediation costs. So, what have attorneys behind these tester plaintiffs done when their accessibility lawsuits were tossed by courts across the country? Answer: Sue businesses based on the inaccessibility of their websites. And, in light of several recent court opinions, they have found some success.
The most notable, recent website accessibility case is Gil v. Winn-Dixie. In that case, Mr. Gil, who is blind, alleged he could not access several features on Winn-Dixie’s website, including online coupons, the prescription refill service, and the store locator. For those unfamiliar, Winn-Dixie is a grocery store common in the Southeastern United States. Mr. Gil alleged that the website was incompatible with his screen-reader, a device which, when linked with a compatible website, converts text to audio so he has full access to all website content. Winn-Dixie conceded its website was not fully accessible but argued a website is not a “place of public accommodation” and, thus, did not fall within the ADA. The court was not persuaded by the argument, holding that because Winn-Dixie’s website was “heavily integrated” with its physical stores and served as a “gateway” to those stores, the inaccessibility of Winn-Dixie’s website denied Mr. Gil “full and equal enjoyment” of Winn-Dixie’s goods and services. This denial of full and equal access constituted a violation of the ADA. As a result of the violation, Winn-Dixie was ordered to (1) bring its website into compliance with the Web Content Accessibility Guidelines (“WCAG”), the current industry standard, and (2) pay Mr. Gil’s attorney fees.
The Winn-Dixie opinion has sent a ripple through the business community. And it should. No longer must a business owner only be concerned with “drive-by” plaintiffs, targeting only physical locations; the threat is now from plaintiffs who can visit thousands of websites in a few days from the comfort of their living-room sofa. Even more alarming is that a plaintiff could potentially sue a business in a plaintiff-friendly jurisdiction of their choice—such as Florida or California—due to the limitless reach of the internet. In other words, even where a company might transact business primarily in one state, the company is at risk of being sued in other jurisdictions if its website is accessed by disabled users in other states.
The Solution
If your business is a public accommodation (hint: most businesses are) that operates in a physical location and has a website, best practices are to ensure your website meets the accessibility requirements set forth in the WCAG. While the ADA has not been formally amended to include “websites” as places of public accommodation, the Department of Justice thinks they are and has intervened in numerous lawsuits in support of the plaintiff. And, of course, several courts across the country have agreed. Bottom line: there is enough plaintiff-friendly legal authority to motivate plaintiff attorneys to continue filing and winning such lawsuits.
How do you determine if your website is accessible, and if it’s not, what do you do about it?
1. Conduct a Website Audit
The issue is whether the “source code” underlying a website is compatible with screen-reader and other technology used by the disabled (including text-to-audio conversion for the blind and audio-to-text conversion for the deaf). There are several reputable companies that offer auditing services, which require an analysis of the source code, testing of website features, and identification of necessary code modifications to meet the WCAG. Note: Not all auditors have intimate knowledge of the WCAG; be sure to engage an expert auditor familiar with WCAG standards. Contact legal counsel experienced in ADA accessibility to help identify an appropriate auditor and coordinate the audit.
2. Consult Legal Counsel to Evaluate the Audit
If your website does not meet the standards of the WCAG, the audit will identify areas to be modified. Counsel can assist in evaluating the scope and cost of the modifications, and whether such modifications should be implemented or whether the specific circumstances of your business and website could potentially excuse compliance (see #3 below).
3. Make Changes Unless Not “Readily Achievable” To Do So.
Generally, you should make the recommended changes to your website. However, certain exceptions may apply depending on the cost of implementing the changes. Costs often depend on the amount of source code powering your website. Changes can be implemented by the outside audit company or by your own in-house IT specialist. Re-writing source code in compliance with the WCAG is too complex for most web designers. Cost is relevant to this consideration because, if the cost is great enough, the modifications may not be “readily achievable,” as defined by the ADA. The readily achievable standard is vaguely defined as “easily accomplishable without much difficulty or expense.” Importantly, if you find yourself making a readily achievable argument, then you’ve probably already been sued and are asking a judge to make that determination. At that point, you’ve already spent thousands in attorney fees and you’ll probably spend thousands more to conclude the case. And, if you lose the argument, you’ll be out the cost of updating your website—not to mention paying a great deal more for your opponent’s attorney fees.
4. Don’t Forget Your Employees
Employers are also obligated under the ADA to provide reasonable accommodations to disabled employees to ensure they can carry out their job duties. Review those portions of your website or intranet that are accessible only to employees to determine whether accommodations or adjustments may be necessary.
ADA Website Compliance FAQ’s and Misconceptions
In defending ADA lawsuits, these are the questions we hear most often:
“I don’t sell anything on my website. I only provide information on what services/products are offered at my store/physical location. So why do I need an accessible website?”
Online sales are not necessary to mandate website accessibility. The Plaintiff in Winn-Dixie wasn’t trying to buy anything on the website, only load coupons for use at a later store visit and re-fill a prescription that had to be picked up in the store. The Winn-Dixie Court concluded the store’s website had to be accessible because it was “heavily integrated” with and served as a “gateway” to the physical location. While the precise scope of this standard is yet to be fully defined and the inquiry is highly circumstantial, it’s likely enough that your website allows users to experience in some capacity the goods or services available at your physical location. Even if your website arguably does not fit this standard, the increasing prevalence of the internet and the direction of the law makes it best practices to ensure compliance. And, if past conduct of serial plaintiffs is any indication, the mere possibility of an ADA violation may be enough to put a target on your website.
“If someone with a disability can’t access something on my website, all they have to do is call the business to tell us what they want, or they can simply come in to the store and we will help them. Isn’t that enough of an accommodation?”
No. The ADA guarantees full and equal enjoyment of all that your business has to offer, not “close enough.” That said, if something prevents a business from having an accessible website (such as undue financial hardship), then reasonable accommodations are required—at a minimum.
"I own a small business, so making my website accessible is too expensive for me. Aren’t I exempt?”
No, but it may not be readily achievable to make such changes (see discussion above). However, this is a tough standard to meet, and it will likely require defending a lawsuit to prevail on this defense. The court will look at your total revenue, your other business expenses (e.g., if you had money for an expansion six months ago, why don’t you have money to make your website accessible?), and whether your competitors have accessible websites. Note that in order to assert the readily achievable defense, you will still need a cost-estimate from an accessibility auditor.
The Takeaway Message
If you have a business with a physical operation and a website—even if you don’t offer internet sales—having a website that meets the Web Content Accessibility Guidelines is now best practices. Failing to comply is risky in the current legal climate, especially considering the cost of defending an accessibility lawsuit would likely exceed the cost of modifying your website. And, if you lose in court, you’ll have to make your website accessible anyway.
With the allure of attorney-fee awards incentivizing opportunistic plaintiff attorneys, more ADA lawsuits alleging website inaccessibility are sure to come. Internet usage and online shopping will only increase with time, thus keeping this issue distinctly in the legal spotlight. Business owners would be wise to bite the bullet and address website accessibility now, before your card is pulled.
