Is Your Website ADA Compliant?

by James Henry Dunne, Esq.
New York Attorney and Counselor-at-Law

631-749-5071
www.JHDunneLaw.com

10 Steps To Avoid Joining the Long List of Businesses Embroiled in Costly ADA Lawsuits 
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​On Monday, October 7, 2019, the U.S. Supreme Court rejected an appeal from Domino's Pizza, confirming that the pizza chain must proceed in defending itself against a lower court lawsuit where a blind man alleged that the chain's website and mobile app were not accessible to people with disabilities, and therefore not in compliance with the guidelines of the Americans with Disabilities Act (ADA). 
Courts have been split over whether the ADA applies to websites. Domino's has argued that the ADA does not apply to its online platform and should only apply to its brick and mortar stores. There is a lack of clarity surrounding ADA compliance and websites, meaning this case has the potential to set a precedent regarding what exactly a “place of public accommodation” is, yielding a profound impact on the hospitality industry, as well as all small businesses conducting trade online. 
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Dominos argued that the law would present an unreasonable burden on their digital presence: “Each defendant must figure out how to make every image on its website or app sufficiently accessible to the blind, how to render every video or audio file sufficiently available to the deaf, or how to provide content to those who cannot operate a computer or mobile phone.” 

Title III of the ADA, first enacted in 1990 under then President George H.W. Bush, brought about sweeping change to our country, and ushered in significant modifications to restaurant and hotel facilities, along with many other industries, ultimately helping improve accessibility standards for the disabled. “Drive-by” lawsuits were common in the years following the enactment of the ADA. Hospitality businesses could be targeted by literally driving by a business, visually assessing the potential accessibility of the operation to anyone with a physical disability and filing suit. 

As time passed, technology advanced and consumer demands evolved. The brick-and-mortar operations became ADA compliant, but their websites were coming under increasing scrutiny to provide the same accessibility as their physical spaces. With so much being transacted and promoted online, from reservations, to food ordering, additional services, menus, products, job postings, and more, accessibility for the disabled has become more of a contentious matter. 

Now, with the ease of the internet at everyone’s fingertips, a website can be targeted by a potential litigant by simply surfing the web to see if screen reading technology is able to fully access and interpret the website, possibly rendering the website and business, a place of public accommodation, inaccessible. Now, "surf-by" accessibility lawsuits abound. 

The hospitality industry in particular has been bombarded with individual and class action suits. It is being argued that people with disabilities (more than 61 million American citizens) are entitled to the full and equal enjoyment that a place of public accommodation provides to its customers because the online website of a business is a "place of public accommodation." 

The ADA Prohibits Discrimination Against the Disabled: 
"No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S. Code §​12182. 

A “place of public accommodation” is now being broadly interpreted and expanded to include website and social media. In other words, if a disabled individual cannot utilize your website like everyone else, similar to their rights when accessing your physical location, it is being argued that the appropriate accommodations have not been made. Title III of the ADA does not provide civil penalties for violations of the act but does permit private rights of action and allows individuals to bring enforcement actions and seek injunctive relief. 

Since these suits attacking large and well-known hospitality companies have been prevalent for several years now (in 2016, for example, lawsuits against restaurant chains alone included Capital Grille, Del Frisco’s Grille, Olive Garden, Outback Steakhouse, and PF Chang’s, among others, alleging that some or all of the companies’ websites are inaccessible to the blind and visually impaired.), large restaurant and hotel companies have mostly made the updates and continue to monitor their sites to be within compliance.

Now that those large companies have mostly done so, litigants and law firms are pursuing smaller operators with class actions suits. Over 2000 lawsuits have been filed in 2019 alone, with months remaining until the new year. 

10 Steps You Can Take 
The WCAG provides the guidelines you are expected to adhere to. You should share these with your website designer to ensure compliance before a suit is potentially filed. Furthermore, website accessibility evaluation tools are available to help steer your designer. These software programs and online services will help your site designer determine if web content meets accessibility guidelines. It should be noted that even if you are in the midst of a suit, you should still remediate the issue to reduce potential damages and to avoid ‘piling on’ of additional legal action. 

The WCAG highlights the following primary categories related to your website (and mobile app).

Basically, the guidelines seek to ensure that your website is: 
> Perceivable;
> Operable;
> Understandable; and 
> Robust. 

Perceivable:
1- Text Alternatives for Relevant Images: include text explaining any relevant, non- decorative content. Text should be coded so that it can be converted into braille, speech, or enlarged text;
2- Colors: ensure that colors have enough contrast. Color should not be the only way to convey information or prompting the user; 
3- Subtitles for Pre-Recorded Video: include captions for pre-recorded video content, and make sure that any prompts using sound can also be followed using text. 

Operable:
4- Keyboard Accessible: content can be operated using a keyboard interface;
5- Time Limits Adjustable: users should be able to turn off or adjust time limits;
6- Flashing Content: web pages must not contain anything that flashes more than 3 times per second. Avoid flashing content to be sensitive to users with epilepsy or who may otherwise be susceptible to seizures. 

Understandable:
7- Language: the language of each page can be determined by a computer program;
8- Predictability: web pages appear and operate in a predictable way;
9- Input Assistance: assist users if an input error is detected on something they submit on the website or app. 

Robust:
10- Compatibility with Assistive Technologies: make websites as compatible as possible with screen readers and other disability assistive technologies. 

Additional Recent Case Law and Considerations:
It should be noted that some recent lawsuit decisions in the Southern District of New York have begun to give some hope to hospitality and other businesses with an online presence, but operators are certainly not out of the weeds regarding website compliance. 

Mendez v. Apple, Inc. 18-cv-07550 (LAP) (S.D.N.Y. March 28, 2019)
Diaz v. Kroger Co., No. 18 Civ. 7953, 2019 U.S. Dist. LEXIS 93177, *7 (S.D.N.Y. June 4, 2019) 

The takeaway from these cases, in short, is that both defendants successfully argued that they had already begun to undertake steps in compliance with the WCAG standards BEFORE the lawsuit was filed. Furthermore, they successfully argued that their website was currently in compliance, the issues in the claim were remedied, and that the companies would continue to keep their websites in compliance in the future. 

Nonetheless, litigation still abounds, since many hospitality and other businesses are not addressing the WCAG standards or simply fall short. You will need to pay costly legal fees if you are not in compliance if sued. If a lawsuit is indeed threatened or filed, settlement is often a less costly and time-consuming option. 

Final Thoughts:
To avoid riding the rough seas of website compliance litigation, consider the following:
√ Even if your website, when designed, was in compliance, it may not be up-to-date with newer softwares enabling the disabled to seamlessly access it, or up-to-date with revisions to your site or your web hosts upgrades.
√ Have an audit of your website by a reputable web development company, having them follow the WCAG guidelines.
√ While likely not ideal to your business model, note that websites that are purely and simply informational are less likely to face litigation, since they are not offering goods and services (as opposed to website where reservations are made, orders placed, goods are sold, jobs posted, etc.).
√ Taking prompt remedial steps to comply with the WCAG’s accessibility standards before an action arises is essential to avoid a costly payout. 

Disclaimer: Viewing of this blog post / article or contacting James Henry Dunne, Esq. does not imply or create an attorney-client relationship.  The synopsis above is not exhaustive. You should consult with your attorney for a comprehensive review and analysis of whether or not you are in compliance with the ADA / WCAG guidelines and the measures you should take to avoid litigation.