Americans With Disabilities Act (ADA)-based discrimination claims alleging inaccessibility of business websites have exploded onto the scene over the last several years as one of the latest entrants into the so-called “drive by” (or, in this case, “surf by”) ADA litigation trend. Thousands of these claims, usually involving visually impaired persons, were filed nationwide in 2018, primarily in New York, Florida and Pennsylvania, with more than 1,500 cases clogging the dockets of the Southern and Eastern Districts of New York. Every business with a consumer-facing website is at risk. The claims reach far beyond retail businesses, hitting the food services, real estate, financial services, higher education and entertainment industries. Since 2016, a series of plaintiff-friendly federal district and circuit court decisions has presented even further challenges to the defense of these claims. Defense of ADA website claims calls for a very practical approach, undergirded by an in-depth knowledge of defenses that are likely to prevail and those that are no longer viable. This article will discuss the current state of the law and focus on practical strategies for resolving ADA website claims.
The Current State of the Law
The genesis of ADA website claims and how they have proliferated have been discussed in many prior articles and will not be repeated here. See, e.g., Mark S. Sidoti, et al., Navigating Website Accessibility Claim, NYLJ (March 20, 2017). In sum, Title III of the ADA states in pertinent part: “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.C. §12182(a). While the ADA’s statutory language does not address websites, the U.S. Department of Justice (DOJ), the agency responsible for regulating and enforcing the ADA, has long considered websites offering goods or services to consumers to be “places of public accommodation,” which must be accessible to the disabled. See 75 Fed. Reg. 43, 463. The DOJ, and now many courts, have accepted the Web Content Accessibility Guidelines (WCAG) 2.0, which were developed by the World Wide Web Consortium, as the applicable standard for website accessibility compliance, although many have rightly complained that guidelines provide insufficient clarity for remediation and ongoing compliance purposes. Regardless, over the past several years, an entire industry of website accessibility compliance professionals has developed to assist companies with meeting the WCAG guidelines.
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