As a society, we have become dependent on the internet for retail purposes. Companies from Amazon to Winn-Dixie sell their products on websites aimed at consumers and those websites are critical to revenue. Internet retail isn’t limited to Fortune 1000 companies. Even small businesses are building websites to reach more customers over a broader geographic territory. In recent years, there has been an explosion of litigation of website accessibility lawsuits against companies of all sizes in a variety of industries. By some estimates, the number of federal lawsuits filed under Title III of the Americans with Disabilities Act (“ADA”) increased by 177 percent in 2018, with at least 2,285 lawsuits filed claiming that websites violated the ADA because they are not accessible to persons with disabilities.1 Filings from 2019 are expected to break the previous year’s record by exceeding 3,000 website accessibility cases.
These lawsuits claim that the internet is a place of public accommodation subject to the requirements of the Title III of the ADA and similar state laws, like California’s Unruh Civil Rights Act. In particular, Title III plaintiffs claim that internet websites must be accessible to persons with visual, auditory or other disabilities. Most of the lawsuits have been filed by visually impaired customers who claim that the ADA and state law requires that websites be compatible with screen-reader software, such as JAWS or NVDA.
Are Websites Places of Public Accommodation?
It depends on what Court hears the claim. Whether websites are places of public accommodation subject to the requirements of the ADA and similar state laws, is a hotly contested topic. The Circuit Courts are split as to whether, an internet business with no brick and mortar location is subject to the ADA. The Third, Sixth, Ninth and Eleventh Circuits hold that “the inaccessible website of a brick-and-mortar retailer store could run afoul of the ADA if the website’s inaccessibility interferes with the ‘full and equal enjoyment’ of the goods and services offered at the physical store, but a business that operates solely through the Internet and has no customer-facing location is under no obligation to make their website accessible."2 On the other hand, courts in the First, Second and Seventh Circuits have held that a website, by itself, can be a place of public accommodation subject to the ADA.3
How Many Times Can a Business Be Sued After It Settles with One Plaintiff?
The answer depends on the forum and the state of completion of remedial action. Whether a business can be liable in subsequent lawsuits if it has already settled with another plaintiff in a previous lawsuit and agreed to bring its website into compliance is another hotly contested issue in this arena. The issue is a real concern for businesses that have not yet upgraded their website to comply with the ADA, as it is not uncommon for an internet retailer to be served with several demand letters and/or lawsuits in a short period of time from different plaintiffs claiming ADA and state law violations. Our clients often ask: “How many times do I have to defend this same claim?”
Under the ADA, a plaintiff can be awarded injunctive relief and attorney’s fees and costs (but not damages) to effectuate accommodations to its website necessary to ensure that barriers to accessibility are removed. If a defendant has already settled the same or similar claim with another plaintiff and agreed to undertake remedial measures or has implemented such measures voluntarily, the ADA claims of subsequent plaintiffs may be moot. Some courts have required proof that compliance work has been completed to support application of the mootness doctrine.4
However, current compliance may not operate as a bar to liability under state law. For example, California’s Unruh Act, California Civil Code, section 51, et seq., provides for a minimum of $4,000 statutory damages for each incident of discrimination, including incidents that occurred before the website was brought into compliance with state law, plus reasonable attorney’s fees and costs. Because they can recover damages in compensation for previous incidents of discrimination in the form of website inaccessibility and are not limited to injunctive relief to remedy ongoing violations, California plaintiffs often seek to recover statutory damages and attorney’s fees and costs for a violation that occurred before website remediation was completed plus attorney’s fees and costs.
What Are the Standards for Compliance?
There is no legislation that directly sets out the technical requirements for website accessibility. The U.S. Department of Justice ("DOJ") has stated that “the ADA applies to public accommodations’ websites,” but it has not clarified exactly what standards websites must meet to comply with the law. In the absence of clear guidance, courts have frequently looked to the Web Content Accessibility Guidelines ("WCAG") 2.1, which were originally promulgated to provide guidance to federal contractors.
Remedial action sufficient to satisfy WCAG 2.1 is sometimes costly. Yet, courts have been largely unreceptive to arguments that the cost burden is unreasonable. In one recent example, a Florida District Court found the cost of remediation to a large retailer to be “of no moment:”
“The Court finds that whether the cost to modify the website is $250,000 or $37,000 is of no moment. Though that higher cost seems high, it pales in comparison to the $2 million Winn–Dixie spent in 2015 to open the website and the $7 million it spent in 2016 to remake the website for the Plenti program."5
Managing Litigation Risk for Website Accessibility Claims
- Assess your risk.
- Consider the following factors:
- Location: Brick and mortar locations, the delivery of products or the performance of services heighten a company’s exposure.
- Industry: Retail, food service, hospitality, banking and entertainment industries are popular targets.
- Current website structure: Sites with e-commerce functions that don’t currently comply with WCAG standards are especially vulnerable.
- Audit your website’s compliance with WCAG 2.1.
- Create a remediation plan, if needed, to implement upgrades on a timeline that is reasonable for your business.
- Notify users that you are working to upgrade your website to improve accessibility if remediation is necessary. Provide a 24/7 telephone line to assist users while remediation is underway.
- Plan for future compliance by working with website accessibility experts to train your customer care team, respond to customer feedback, and institute a process for future updates.