Eversheds Sutherland (US) LLP

The onslaught of class action lawsuits alleging violations of the Americans with Disabilities Act (ADA), based on the alleged failure to maintain ADA compliant websites that are accessible to the blind and visually impaired, highlighted in previous legal alerts, has continued unabated. According to a recently published New York Times article, approximately 432 website ADA accessibility class actions have been filed in the first eight months of this year. This number represents a nearly two-fold increase over the estimated 250 lawsuits filed in all of 2015 and 2016 combined. While these lawsuits have traditionally been aimed at companies in the retail and hospitality industry, more recent suits have expanded to focus on the insurance, financial and educational sectors. 

As discussed in our earlier legal alert, The New York Times article highlighted the growing number of ADA accessibility cases and focused on several recent class actions filed against eight colleges and universities in New York state. While educational institutions such as Harvard, MIT and Berkeley have faced ADA class actions in the past, these suits focused generally on online course content that was allegedly inaccessible to students with visual or auditory impairments. The recent suits against institutions, including Fordham University and Hofstra University, however, do not focus on inaccessible course materials, but rather on alleged website barriers that prevented the plaintiff (a visually impaired prospective student) from obtaining information about enrollment. These cases illustrate the broader trend of plaintiffs moving beyond retail establishments to attempt to enforce ADA compliance on all entities with a web presence. 

The increasing number of website accessibility lawsuits and the expanded targets for these suits may be the result of recent plaintiff successes in other ADA class actions. Title III of the ADA, 42 U.S.C. § 12182(a), prohibits discrimination against disabled individuals, including the blind and visually impaired, in places of public accommodation. Interpretations have varied among federal courts on whether websites constitute a place of public accommodation resulting in a circuit split regarding whether a website must have a nexus with a “physical place of public accommodation” to fall within the scope of the ADA. While most website accessibility suits are resolved privately, the circuit split, and the requirement in some circuits that a nexus exist between the website and a physical storefront, has provided some uncertainty for plaintiffs should their cases proceed to litigation. 

A number of recent decisions, however, have emboldened plaintiffs in both circuits that require a nexus with a physical storefront and in circuits where a nexus is not required. As highlighted in a previous legal alert, in June 2017, the US District Court for the Southern District of Florida issued a verdict in a first-of-its-kind ADA website accessibility trial. The court ruled that grocer Winn-Dixie’s website constituted a place of public accommodation under the ADA, because the offering of certain services related to Winn-Dixie’s stores, including the ability to download coupons, refill prescriptions or find store locations, created a sufficient nexus to Winn-Dixie’s physical store locations. 

More recently, in Andrews v. Blick Art Materials, LLC, the US District Court for the Eastern District of New York issued a decision finding that the Blick Art Materials website, which has no connection to a physical store, was a place of public accommodation under the ADA even though there was no nexus between the website and a physical storefront. 17-CV-767 (August 1, 2017). The Blick decision echoes similar findings in cases against Five Guys Burgers and Hobby Lobby, pending in the US District Courts for the Southern District of New York and the Central District of California, respectively. While these decisions are not binding precedent on the recently filed New York cases, they may indicate a trend that is likely to encourage plaintiffs to pursue these suits. 

The large number of ADA website accessibility lawsuits filed this year alone illustrates the potential risks that any company with a website offering is “a place of public accommodation.” The steady source of attorneys’ fees these suits provide to plaintiffs’ counsel, the relative ease with which allegedly offending sites can be identified, and recent plaintiff-friendly decisions from various courts make it likely that these actions will continue to be filed. 

As companies bring their websites into compliance, either voluntarily or following legal action, plaintiffs are expanding the scope of their targets to new industries and businesses. Accordingly, it is important for companies to understand the need for ADA compliance and the pitfalls posed by non-compliance in an effort to limit the risk of potential litigation.

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