Enacted in 1990, and amended multiple times since, the The Americans with Disabilities Act (ADA) was created to ensure equal access for people with a wide range of disabilities. Title III of the ADA applies to “public accommodations,” which essentially means businesses that are open to the public must provide equal access to persons with disabilities.
Unfortunately, the ADA and state counterparts have been abused by a small but prolific band of plaintiffs and their attorneys to file thousands of mercenary lawsuits (or just as often letters threatening lawsuits unless they are paid off). These threats and lawsuits are calculated to be cheaper to settle than to litigate. The surest sign of their abusiveness is that the lawsuits do not focus on the main target of the ADA: businesses to which the law expressly applies. Rather they focus on the businesses for which it is unclear whether the ADA applies and for whom there are no regulations specifying what they must do. While the headline cases typically involve large corporations, the overwhelming bulk of cases are against small mom and pop businesses who cannot afford to fight the lawsuits and pay to settle out.
Claims and Lawsuits against Bricks and Mortar Businesses
The Department of Justice has authored extensive and detailed regulations prescribing the exact physical form of new construction so as to be “accessible” and to “remove barriers” to the disabled. However, the first wave of gray-area lawsuit targets were businesses occupying structures built before the ADA was adopted, and whom were ostensibly exempt. However, the ADA contained a vague provision encouraging such businesses to take “readily achievable” steps, i.e. “without much difficulty or expense,” to remove barriers to access. Since “difficulty or expense” is a subjective standard – “in the eye of the beholder,” fertile grounds were created to litigate this non-nonsensical standard on a case-by-case standard.
Claims and Lawsuits against Owners and Developers of Websites and Apps
More recently, a second wave of mercenary cases have arisen in the vacuum of clarity: websites. Most at risk are websites belonging to public accommodations. Within the first eight months of 2017, litigants brought 432 ADA lawsuits based upon website accessibility. That number does not include the many pre-litigation demand letters sent which were settled before a lawsuit was filed, which may be an equal or larger number. Compare that number to the 250 combined lawsuits between 2015 and 2016. These lawsuits are having marked success early in their history, and it is yielding exponentially increasing amounts of website ADA lawsuits. However, there are strategies that online businesses and public accommodations can employ.
How to Know if a Website is Susceptible for an ADA Lawsuit
Some jurisdictions, like the 9th Circuit (pacific coastal states), require there to be a “nexus” between the website and a physical location (e.g. stores, restaurants, and other public spaces), meaning some form of direct connection from a website to a physical place. Others, like the 7th Circuit, have a looser standard, potentially permitting a website to be liable without a direct connection to a physical space.
One of the most important cases on the issue is National Federation for the Blind v. Target. The 2006 California case involved the national retail chain’s website allegedly being “inaccessible” to the blind. Specifically, there was no alternative text at key functions on the site. As a result, the plaintiff alleged that it was difficult for blind persons using screen readers to make purchases on the site. Additionally, the plaintiff’s alleged that purchases could not be made without the use of a mouse (persons using screen readers typically must access website functions via the keyboard), that store location maps were inaccessible, and that many pages had no headings. Target’s motion to dismiss failed. The Court considered it possible that the website was a “public place of accommodation” as defined by the ADA. Ultimately, Target settled the lawsuit for $6 million, but not before the court opened the door to the possibility that websites could be the target (no pun intended) of ADA litigation.
A pending case that may further define website liability is Roble v. Dominos Pizza. This case is still in its early stages. However, Dominos is arguing that by offering telephone ordering, it has provided a sufficient alternative, making their website accessible for the purposes of the ADA. Time will tell if this argument will prevail.
Strategies for Avoiding these Lawsuits
The main object is to render websites in a way that screen-reading software can communicate the site content to the user. Also, take into consideration sight and hearing disabled persons who don’t use special software, i.e., by using high contrast colors, easy to read fonts, alternatives to audio, or use software that transforms your site at the option of the user. The most widely accepted standards for website accessibility are the Web Content Accessibility Guidelines (WCAG), which arose from the Web Accessibility Initiative (WAI) of the World Wide Web Consortium (W3C). These guidelines are not law (except for government websites under “Section 508”) but at least one court has held that they are the “industry standard” for website accessibility. WebAim also publishes a checklist.
- Alt text for images – this is perhaps the most important yet most overlooked element. All images should be accompanied by an alt attribute which describes the image content, unless the image is purely decorative such that it is meaningless to a person using a screen reader. In that case, the image should be accompanied by null alternative text, i.e., alt=””.
- Proper use of headings: Use heading elements for headings, instead of bold and underline. Use proper headings hierarchy, i.e. h1, h2, etc. Separate large blocks of text with headings
- Make interactive parts, such as links, easily identifiable, e.g., underlining.
- Make the site navigable solely by the keyboard, i.e., without the mouse or touch screen.
- Don’t make links open in new windows, i.e., don’t use target=”_blank or use <opens in a new window> in the link html. Screen readers don’t normally convey to their users that a new window has opened.
- Provide descriptions of the information required next to form fields
- Provide clear and identifiable feedback for when form fields are incomplete or incorrectly filled out
- Use responsive design.
- Create viewable transcripts of audio files
- Create viewable transcripts and video descriptions for video files
- Use captions and descriptions of tables, graphs, charts, and other graphical information
- Provide controls of any media which operates automatically (slideshows, videos, audio files, etc.)
- Use themes, templates, and content management systems that feature accessibility (and retain accessibility when hacking same)
- Use accessibility testers like Webaim’s WAVE Evaluation Tool.
The applicability of the ADA is still a largely underdeveloped area within the law, but these guidelines should help you to avoid becoming a victim to changing times.
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