Trends in Digital Accessibility Litigation
Businesses are increasingly reliant on digital means of communicating with their customers. It is no surprise, then, that websites have taken center stage. With the greater emphasis on websites to conduct business, it is more important than ever to ensure that your business’s website(s) and mobile application(s) are accessible to all consumers, including those with disabilities.
Over the past several years, there has been a significant rise in the number of digital accessibility lawsuits brought against businesses with consumer-facing websites and applications. These lawsuits allege that the websites and/or mobile apps fail to provide access to people with visual, auditory or other disabilities in violation of Title III of the Americans with Disabilities Act (“ADA”). Oftentimes, these lawsuits are brought as proposed class actions, which can be costly to defend. The plaintiffs may also allege state law claims under parallel state human rights laws. Additionally, there is reason to believe that the Department of Justice (“DOJ”) may ramp up its digital accessibility investigations and enforcement actions, as President Joe Biden has vowed to aggressively enforce the ADA.
Fortunately, with proper digital maintenance and consultation with knowledgeable attorneys, litigation may be avoidable. Now more than ever, it is important for every business to take proactive measures to ensure that its website(s) and mobile app(s) are accessible to patrons with visual, auditory or other disabilities. Hinckley Allen’s employment law and litigation groups are experienced in helping businesses determine what they need to do to build and maintain an accessible online presence, and to defend such ADA lawsuits when they arise.
The Legal Framework
The ADA prohibits discrimination against individuals with disabilities in all areas of public life. Title III of the ADA applies to barriers of entry, and requires reasonable access to places of public accommodation to ensure full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations by persons with disabilities.[1] While ADA accessibility lawsuits are nothing new, more recently, courts have held that websites are places of public accommodation, making ADA compliance imperative for businesses with a web presence. However, both Congress and the DOJ have failed to articulate any set of standards that businesses must comply with to make their website(s) and mobile app(s) accessible, leaving courts to set the standard.[2] Without guidelines in place, courts tend to expect businesses to comply with the World Wide Web Consortium’s (“W3C”) WCAG, which are standards for web content accessibility promulgated by the international online community.
Title III applies to all businesses with a web presence, because websites and mobile apps are regarded as places of public accommodations. This is true even where a business operates exclusively on the web, with no brick and mortar presence. Businesses that fail to provide digital access to the disabled population can be seen as discriminatory and thus in violation of the ADA. However, there are defenses available to businesses who are sued. As in other types of ADA disability accommodation cases, businesses may be able to raise an undue hardship defense if the plaintiff’s proposed accommodation is too costly or cannot reasonably be implemented. While the ADA does not require perfection or even optimal accommodations, it requires access to promote effective communication.
The remedy available to a plaintiff suing under the ADA is injunctive relief. Although the ADA does not allow for money damages for the plaintiff for lack of accessibility, it does allow the prevailing party to collect attorneys’ fees, which can make resolution of such cases costly.[3] Additionally, businesses that violate Title III may face civil statutory penalties of up to $75,000 for the first violation, and up to $150,000 for any subsequent violations.
Digital Accessibility Features
There are steps you can take to make your website(s) and mobile app(s) accessible, and Hinckley Allen can help. Our lawyers are experienced in analyzing website(s) and mobile app(s) for compliance, drafting accessibility policies, interpreting the WCAG, and guiding clients through the process. Your website(s) and mobile app(s) need to be written with certain codes that will enable it to function with a screen reader or other assistive reading device. Compliance with the WCAG 2.1, the guidelines that are considered to be the gold standard for digital accessibility, is always best. Consider offering video and audio alternatives to meet the needs of visitors with visual, auditory and other physical challenges. Draft an accessibility policy, publish a copy on your business’s website, and ensure that user support is available to consumers with disabilities. This includes creating a way for site users to contact you to report any accessibility barriers they come across. Finally, commit to continued accessibility by conducting periodic effectiveness audits and staying on top of trends and new technologies to optimize the user experience.
Some businesses prefer to engage third party “accessibility” applications that operate on top of the website to help it to function with screen readers. Many of these applications also monitor the website to ensure continued compliance, which is typically a requirement of resolving such cases. A word of caution about such third-party applications. In addition to not offering any guarantees of ADA compliance, these vendors can be costly. Moreover, these third-party applications do not necessarily protect businesses from accessibility lawsuits. There is at least one pending case questioning whether such “quick fix” accessibility applications actually eliminate barriers of entry, and ensure reasonable access to your online spaces. Hinckley Allen attorneys can help you navigate the third-party applications, and work with you to determine whether utilizing such a service is right for your business.
Risks and Rewards
Ensuring that your business is accessible promotes inclusion, avoids running afoul of the ADA, and opens your business up to a wider audience. Additionally, some of the steps to make a company’s website(s) and mobile app(s) more accessible, like including captions on images or alt tags, adding meta tags, and simplifying navigation, will have the added benefit of improving rankings on search engines.
If the benefits are not enough, consider the risks. Plaintiffs’ lawyers are targeting websites with accessibility barriers, bringing single-plaintiff cases and class actions against businesses who have not ensured digital accessibility. Negative publicity can damage the company’s reputation and the goodwill it has engendered through years of effort. Defending a lawsuit can be costly, particularly when expert consultants are involved to analyze a website’s accessibility. Finally, an inaccessible website or mobile app may expose your business to a federal enforcement action. President Joe Biden has promised that his administration will aggressively enforce existing civil rights laws for people with disabilities, including the Americans with Disabilities Act.
How We Can Help
Compliance is the best course of action and risk avoidance is certainly the best strategy. So be proactive, not reactive. If you have concerns about your website’s compliance, or are faced with one of these lawsuits, contact our team. Hinckley Allen lawyers clearly understand the WCAG 2.1 standards and can help you identify and overcome any hurdles to accessibility.
However, if your company is sued by a plaintiff alleging an inaccessible website or mobile app, our litigation team can help. Hinckley Allen lawyers have successfully defended a number of these cases brought by individual and class action plaintiffs. We are familiar with the defenses available to defendants, and can help bring your business’s online presence into compliance with the ADA’s requirements.
Ensuring that your website(s) and mobile app(s) are accessible is a win-win for all. Not only will it benefit your business by promoting inclusivity and enhancing the online experience for your consumers, it will also lessen your risk of being the target of a civil litigation or government enforcement action. If you have questions about ADA compliance, or are facing a threat of litigation in this area, give us a call. We can guide you on risk avoidance, craft digital accessibility standards, protocols and best practices, offer training and help resolve cases quickly and cost effectively, if and when they arise.
For additional information related to anything contained in this Client Alert, please contact one of the authors listed above, or any member of our Labor & Employment Law Practice Group.
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[1] See 42 U.S.C.A. § 12182.
[2] In fact, a bipartisan bill that was introduced in October 2020 would have required substantial compliance with Web Content Accessibility Guidelines (“WCAG”) 2.0 A, AA, failed to pass during the 116th Congress. The bill, which would have required plaintiffs to exhaust administrative remedies with the DOJ before commencing a lawsuit and plead “with particularity each element of the plaintiff’s claim, including the specific barriers to access,” faced opposition from disability rights advocates who argued that standards already exist and the bill would have limited plaintiffs’ rights.
[3] See 42 U.S.C. § 12205.