Can My Website Subject My Business to Liability Under the Americans With Disabilities Act (ADA)?

Dorsey & Whitney LLP

It may come as a surprise that the answer to the above question is yes, or so a number of plaintiffs claim in lawsuits that have been filed recently in the U.S. More specifically, in the U.S. District Court for the Western District of Pennsylvania, dozens of cases have been filed by plaintiffs against large national businesses such as the NBA, Brooks Brothers, Toys “R” Us and others asserting that their websites violate the ADA because they fail to provide reasonable accommodations to disabled persons.  Many of these cases remain pending, although others have settled.  Many other companies continue to receive demand letters presenting proposed settlement agreements involving payments in lieu of hefty fines or damages awards, which the recipients of these letters are being “asked” to sign, or face the initiation of litigation against them.

You might be thinking – how can my company’s website violate the ADA? Isn’t that statute limited to things like the installation of ramps in stores, Braille instructions on ATM machines, and things like that?  The reality is that the answers aren’t so clear.

As a general matter, the ADA prohibits discrimination against people with disabilities, including in places of public accommodation. A website is, arguably, a place of public accommodation, at least to the extent it is interactive and offers goods and services to the public, just like a physical store would.  The argument made by the plaintiffs in these cases is that a company’s retail website must be as compliant with the ADA as a retail store would be, and if a person suffering from a visual disability cannot readily access the site, in the way that a person without a visual disability could, then an ADA violation has occurred.

Many commercial websites that offer goods or services to the public are, in the view of these plaintiffs, not ADA-compliant. Indeed, it is alleged in these cases that the company websites at issue are not configured to support assistive technologies that would make their content accessible to the visually impaired and others with disabilities.  The plaintiffs are generally demanding that the defendants modify their sites to bring them into compliance with what plaintiffs perceive the ADA to require.  In many instances, these changes are extensive and expensive.  Thus, not only do defendants in these cases face lawsuits and attendant legal costs, but the ADA compliance costs plaintiffs would have defendants incur are substantial.  And, of course, plaintiffs are also seeking attorney’s fees.

As of now, what the sponsor of a commercial website that offer goods and services to the public has to do to comply with the ADA is uncertain, and that lack of clarity has given rise to extensive and costly litigation. The defendants in these cases argue that the sort of accommodations sought by plaintiffs are unreasonable; in some cases, smaller businesses with modest websites would have to abandon the Internet if the changes sought by plaintiffs were implemented.  Even larger companies would have to question maintaining their online presence if they had to undertake the sort of costly changes demanded in these cases.

This situation will not be clarified any time soon, given that the U.S. Department of Justice recently announced that it will not publish website accessibility regulations until 2018.   As a result, the potential for commercial websites offering goods and services to give rise to expensive claims is very real.  So what should a website operator do?  First, have your site checked to see if it supports assistive technologies and, if it doesn’t, see if there are ways to improve accessibility.  (There are vendors that can be engaged to address these issues, although their pricing can very significantly.)  Second, make sure your privacy policies and terms of use are up to date and include provisions that could be used to assist in defending against these types of claims.  Third, make sure you have an insurance policy that will cover this type of liability and if your current policy doesn’t, look into obtaining additional coverage.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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