The number of U.S. lawsuits filed by visually impaired and other disabled people targeting business websites for violating the Americans with Disabilities Act (ADA) has reached fever pitch. Recent court rulings have emboldened plaintiffs’ attorneys and a significant uptick in litigation is expected in 2018. New York has proven particularly welcoming to these cases, with nearly 300 ADA website lawsuits filed in New York’s federal courts in the first quarter of 2018.  Fashion companies have been hit particularly hard.

Despite this explosion of activity, many businesses are still unaware of the legal risk and continue to operate websites that fall short of accepted accessibility standards, courting ADA claims. Although monetary damages are unavailable under the ADA, these cases are not easily dismissed and the defense costs can be significant. To help minimize the lawsuit risk, fashion companies should consider proactive measures to ensure their websites meet the current accessibility standard.

The Americans with Disabilities Act

The ADA is a 1990 federal law that prohibits discrimination against individuals with disabilities. Title III of the ADA concerns private sector businesses that serve as “places of public accommodations,” and requires them to remove “access barriers” that hinder a disabled person’s access to the business’s goods and services.

To promote compliance with its requirements, the ADA permits disabled persons to bring a lawsuit to remedy the violation. The ADA does not permit the recovery of monetary damages, but it does permit winning plaintiffs to recover reasonable attorneys’ fees and costs.

Traditionally, ADA lawsuits have addressed physical access barriers in physical “places of public accommodation” such as stores, restaurants, bars, and theaters.  Many fashion businesses have experience with these claims in lawsuits concerning wheelchair access to retail stores.

Over the past decade, thousands of lawsuits have been brought by visually impaired, hearing impaired, and other disabled individuals on the theory that (i) a website offering goods and services is also a public accommodation subject to the ADA’s accessibility mandate and (ii) deficiencies of the website serve as access barriers and prevent full use of the site. The typical claim is that the plaintiff tried to complete a transaction on the business’s website, but was prevented from doing so by some feature of the website that presents an access barrier. Examples of such access barriers include:

• Lack of Alt-Text on Graphics — Alt-text is the textual alternative to image content and is read by screen readers in place of images, allowing the content and function of the image to be accessible to those with visual or certain cognitive disabilities.
• Improper Labels on Form Controls — Proper labeling on form controls, such as text boxes, checkboxes, and radio buttons, makes forms readable by screen readers and used by those relying upon screen readers.
• Improper Table Markup — Proper table markup makes data provided in a tabular format comprehensible to those relying upon screen readers.
• Lack of Adequate Keyboard Accessibility — Many users with motor disabilities rely on a keyboard. Visually impaired users frequently use a keyboard for navigation.
• Inaccessible Image Maps — Special coding on image maps, i.e., images that provide different links to other web pages depending on where a user clicks the image, make image maps readable by screen readers.
• Lack of captions — Captions make spoken word content of audio and video accessible to those with hearing impairment.

The ADA’s Application to Websites

The ADA was written before the internet as it exists today and makes no mention of website accessibility. The U.S. Department of Justice, charged with implementing the ADA, has offered informal guidance that the ADA should extend to commercial websites, but no federal regulations specifically address the issue. Without official guidance, litigation has been rampant, and the question of whether a website is “a place of public accommodation” subject to the ADA has been thrown to the courts.

The answers have been inconsistent. Some courts have concluded that “public accommodations” are limited to “physical accommodations” and the ADA does not extend to websites. Other courts are less restrictive and have found that the ADA can apply to a website when it operates in close tandem with a conventional “place of public accommodation,” like a brick-and-mortar store, that access barriers to the website serve as access barriers to that place of public accommodation. And, finally, other courts have taken an expansive approach, concluding that the ADA extends to private commercial websites independent of any connection to a physical place.

Recently, New York federal courts have endorsed the expansive approach, stating even in one case that it would be “perverse” to require a business to operate a brick-and-mortar location for the ADA to apply to its website. These New York rulings, together with the fact the that New York State and New York City versions of the ADA allow a plaintiff to recover compensatory and punitive damages, have cemented the Eastern and Southern Districts of New York as the new preferred venues for ADA website litigation.

Website Accessibility Standards

There are no official measures businesses must take to ensure their websites meet any accessibility requirement. Yet ADA advocacy organizations, plaintiffs, and some courts take the position that to be accessible a website must comply with the Web Content Accessibility Guidelines 2.0 Level AA (WCAG 2.0 AA). Developed by World Wide Web Consortium’s Web Accessibility Initiative, WCAG 2.0 AA has become the de facto international standard for website accessibility among web developers, as well as the accessibility standard for federal agency websites.

These de facto standards for website accessibility focus on four categories:

• Is the content perceivable?
• Is the content operable?
• Is the content understandable?
• Is the content robust?

Online tools are available to screen compliance with WCAG 2.0, and many vendors offer auditing and web development services to help businesses comply with these standards.  One particularly useful and free screening tool is the WAVE web accessibility evaluation tool, found at https://wave.webaim.org/

Conclusion

Traditional ADA accessibility lawsuits required a visit to the business location to identify access barriers. By contrast, web accessibility lawsuits require only a visit to the business’s website and, since tools are available to check website compliance with WCAG 2.0 automatically, plaintiffs and their attorneys are able to spot problems with little effort.

While it is impossible to avoid getting targeted by a lawsuit, a business can minimize the risk and achieve the best possible position to defend itself against an ADA web accessibility claim by taking these steps:

• Conducting an ADA compliance audit of its website and digital content.
• Engaging a vendor to help bring its website into compliance with WCAG 2.0 AA.
• Posting an accessibility statement on its website advising customers i) the business is committed to accessibility, ii) the business is enhancing the accessibility of its website, and iii) if there is any difficulty accessing a feature or functionality of the website, customer service reps are available by phone, email or online chat to assist.
• Locating counsel to assist with any ADA demand letters or complaints.

Adam Michaels heads the litigation practice at Hand, Baldachin & Associates, a New York City law firm focused on fashion & lifestyle, media, and technology that also serves as counsel to the CFDA. amichaels@hballp.com