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Disability suits over website access surge

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More courts are ruling against companies over the issue of website accessibility, while the number of lawsuits filed against them continues to grow dramatically.

Plaintiff attorneys have been encouraged in particular by a U.S. District Court ruling in Miami in Juan Carlos Gil v. Winn-Dixie Stores Inc. that, following a trial, held the supermarket chain was obligated to provide an accessible website to a legally blind plaintiff under the Americans with Disabilities Act (see related story).

In addition to the basic issue of accessibility, courts disagree whether, under the ADA, only companies that have “brick and mortar” facilities are obligated to provide accessible websites or if the law applies to web-only businesses as well.

Complicating the situation, experts say, is the federal government’s failure to date to develop promised clear guidelines on this issue, which has left the law’s interpretation up to courts that have released divergent rulings on the issue.

Experts say although the Obama administration promised regulation in this area in 2010, it never followed through, nor is any rule expected from the U.S. Department of Justice under the Trump administration, which has put the issue on its “nonactive” list.

For now, many firms concerned about the issue are complying with the World Wide Web Consortium’s voluntary, privately developed Level AA Success Criteria of the Web Content Accessibility Guidelines 2.0, although alternatives, such as 24/7 phone access, may be considered acceptable as well, experts say.

The basic issue is disabled users’ ability to easily access company websites. Experts say the cost of achieving this can vary widely. It is relatively inexpensive for firms that are starting from scratch, but it can become considerably more complicated — and expensive — for complex existing sites.

The screen readers that enable the blind to read websites operate as an interface between the computer’s operating system, its applications and the user, according to the New York-based American Foundation for the Blind.

The user sends commands by pressing different combinations of keys on the computer keyboard or braille display to instruct the speech synthesizer what to say and to speak automatically when changes occur on the computer screen.

Although the ADA covers a wide range of disabilities, the clear majority of the litigation over website accessibility has focused on those who are visually impaired, experts say.

Many firms still do not have accessible websites, said William D. Goren, a Decatur, Georgia-based attorney and ADA consultant. These are cases where website designers are “trying to design something that looks really cool” but “don’t think about how people with disabilities must have to use it,” he said.

The general legal trend is pro-plaintiff, say observers.

“The pendulum is certainly shifting” toward rulings that say a company’s website needs to be accessible under the Title III of the ADA, said Steve A. Miller, regional managing partner with Fisher Phillips L.L.P. in Chicago.

Title III prohibits discrimination on the basis of disability in places of public accommodation.

A court ruling on the issue “really depends on what court you’re in and which judge you get,” said Kristina M. Launey, a partner with Seyfarth Shaw L.L.P. in Sacramento, California. But each pro-plaintiff ruling “emboldens plaintiff attorneys to push harder.”

Meanwhile, encouraged by the Winn-Dixie ruling, more plaintiff firms are filing suit, although there is no requirement that courts in other jurisdictions follow the decision, experts say.

The number of suits filed in federal court over accessibility surged this year. This doesn’t include cases filed in state court nor demand letters sent by plaintiffs to firms that are resolved without litigation.

“It’s not just the volume. You’re seeing a huge increase in the number of players in the space,” said Joshua A. Stein, a member of law firm Epstein Becker & Green P.C. in New York.

Increasingly, he said, plaintiff attorneys who had not operated in this space before are now filing copycat cases, he said. This can make it more difficult for defendants because, unlike the firms that had specialized in this area, these attorneys do not understand the litigation’s substance, he said.

Another issue facing defendants, he said, is that in cases where there have been settlements, the company is given, for instance, 18 months to modify its website, but then additional lawsuits are filed against it even before it can introduce the agreed-upon changes.

There has also been a piling-on of cases, “where the same businesses are being sued multiple times across the country by different plaintiffs and firms,” said Joseph J. Lynett, a principal with Jackson Lewis P.C. in White Plains, New York.

Observers say the problem is the lack of federal guidance. “There are multiple benefits to having regulation in this area,” said Mr. Lynett. Not only would it add clarity to the accessibility standard, but once it is introduced there is usually a 12- to 18-month compliance period that “essentially closes the courthouse door” to plaintiffs filing suit, he said.

And while the ADA’s Title III prohibits discrimination on the basis of disability in the activities of places of “public accommodation,” the issue of whether the 1990 law applies to website-only companies remains unsettled, observers say.

“A small majority of the courts of appeal have looked at this and have said in order for a website to be considered a place of public accommodation, it must have some nexus or connection to a physical location,” which derives from the ADA’s 1990 passage, when banks and retail stores “were expressly included in what constituted a place of public accommodation,” said Mark T. Phillis, a shareholder with Littler Mendelson P.C. in Pittsburgh.

Meanwhile, litigation is expected to continue, said Mr. Lynett. “I don’t see any reason why the plaintiffs bar is going to stop feeding from the trough here,” he said.