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Website Accessibility Lawsuits Under the ADA On the Rise

    By: Joseph Lynett, Esq.
    Joseph.Lynett@ jacksonlewis.com

    For years lawsuits under Title III of the ADA concerning places of public accommodation were confined to brick and mortar physical barriers, such as steps that prevented entry into a store, excessive slopes in parking lots that were dangerous and access routes that were too narrow for individuals in wheelchairs to use.  Now, in the e-commerce age, entrepreneurial, and some would say predatory, plaintiff’s attorneys are filing literally hundreds of lawsuits complaining that businesses websites are not accessible to vision impaired users in violation of Title III.

    Though the ADA was enacted before web as we know it today existed, most courts who have decided the issue have held that websites are covered under Title III and must be accessible to disabled users.  But rules, let alone clear rules, on how to make websites accessible to avoid violating Title III have yet to be established. For instance, the courts are divided about whether all commercial websites are subject to the ADA, or just those associated with brick-and-mortar businesses. Under President Obama, the Department of Justice took the broader position, but it did not issue any actual regulations providing specific guidance to businesses. Those are now expected in 2018. In the meantime, as recently noted in the Los Angeles Times, millions of businesses with websites have the worst of both worlds: mandates without directions.

    Few businesses understand the potential legal risks until they are sued.  Just a few years ago website accessibility lawsuits were uncommon.  According to the federal court dockets, in 2016 more than 260 website accessibility lawsuits were filed.  Based on the number of cases we are seeing from clients and insurance companies, we expect that in 2017 significantly more cases will be filed.  The main industries targeted are in the retail and hospitality sectors.            

    To underscore the legal risk, just last month, a Florida Federal Court Judge held the first trial in the history of the ADA concerning an allegedly inaccessible website.  The Court issued a 13-page Verdict and Order finding that grocer Winn-Dixie violated Title III of the ADA by having a website that was not useable by plaintiff Juan Carlos Gil to download coupons, order prescriptions, and find store locations.  The Court ordered injunctive relief, including a draft three-year injunction and awarded Mr. Gil his attorneys’ fees and costs.  Although the decision is not binding on any other federal courts or judges it is significant because it is the first decision to hold, after a full trial, that a place public accommodation violates Title III of the ADA by having an inaccessible website.  To the extent that businesses are considering whether to settle or litigate these cases, this Court’s decision we believe may embolden plaintiffs’ attorneys to file more of these cases going forward.              

    The take-away is that businesses need to understand that their websites create legal risk under the ADA.  Under Title III of the ADA, a prevailing plaintiff is entitled to recover reasonable attorneys’ fees and cost, which can be up to six-figures depending on the defense strategy that is pursued.  Defense costs can equal this amount.  Under certain state public accommodation laws, like New York and California, compensatory damages and mandatory damage awards can also be imposed.  A simple step towards compliance is to run an accessibility scan of the web pages using a free on-line tool to evaluate accessibility found at www.wave.webaim.org.  The report will show areas of the web page that may not be accessible and recommend a solution.