The website for Blick Art Materials ()
As courts remain divided over whether or not websites should be held to the same standard under the Americans with Disabilities Act as brick-and-mortar locations, companies across the country continue to get hit with lawsuits for lack of online accommodations for the disabled.
In a recent ruling, U.S. District Judge Jack Weinstein of the Eastern District of New York found that the website for Blick Art Materials, where customers can purchase products, is a place of public accommodation and thus subject to the ADA.
Weinstein said in his Aug. 1 ruling it would be a “cruel irony” to accept Blick’s argument that a website is not a “place” as described by the ADA and that doing so “would render the legislation intended to emancipate the disabled from the bonds of isolation and segregation obsolete when its objective is increasingly within reach.”
“A rigid adherence to a physical nexus requirement leaves potholes of discrimination in what would otherwise be a smooth road to integration,” the judge wrote, denying Blick’s motion to dismiss the suit, which was filed on behalf of Victor Andrews, a legally blind man who failed to buy art supplies through Blick’s website.
Weinstein also ordered a two-day “science day” hearing to be held in Andrews v. Blick Art Materials, 17-cv-767, in October to determine how the plaintiff can be accommodated.
Andrews is represented by C.K. Lee and Anne Seelig of the Lee Litigation Group. Blick is represented by David Korzenik and Terence Keegan of Miller Korzenik Sommers and Steven Mandell and Steve Baron of Mandell Menkes.
Andrews’ suit is one of a flood of new suits filed this year in federal courts—and one of 14 that Andrews filed himself—which has raised concerns for businesses who do a significant amount of their business online, as well as their attorneys.
Over a period of about two weeks in June and July, Steven Matzura, who is legally blind, filed suit in U.S. District Court for the Southern District of New York against 18 companies for lack of accommodation on their websites, including Shake Shack, Nordstrom Inc. and Katz’s Delicatessen.
Another legally blind man, Lawrence Young, filed suit in the Southern District against more than 20 companies over several weeks this summer. His targets include Sotheby’s, Sbarro and Ethan Allen.
“Everyone is getting hit with these,” said Mark Sidoti, director of the business and commercial litigation practice at Gibbons.
According to a post by Seyfarth Shaw, there were at least 432 website accessibility suits filed this year as of Aug. 15, up from more than 260 in 2016.
The ADA was signed into law in 1990, a time when few people used the internet. The U.S. Department of Justice, which enforces the ADA, announced in 2010 that it would promulgate new rules for website accessibility, but it is not expected to do so until next year at the earliest. In lieu of rules, the DOJ has said that the Web Content Accessibility Guidelines developed by the World Wide Web Consortium provides a minimum standard.
Meantime, the circuits are split on whether or not websites are considered public accommodations under Title III of the ADA.
Weinstein and other judges in the Second Circuit, as well as judges in the First and Seventh Circuits have found that website should make accommodations for the disabled, according to a post by Fisher & Phillips.
But judges in the Third, Sixth and Ninth Circuits have found, however, that places of accommodation must be physical, brick-and-mortar sites.
Of the hundreds of suits filed, so far one has gone to trial, and it didn’t bode well for the defense bar.
In June, U.S. District Judge Robert Scola of the Southern District of Florida found that supermarket chain Winn-Dixie violated the rights of a blind customer by not making its website usable through screen reader software.
Sidoti said that he advises clients facing website accessibility suits that showing judges that the defendants have undertaken steps to make their websites accessible, such as paying for an audit, could potentially “stop the clock” on the accumulation of attorney fees that would be awarded to plaintiffs’ lawyers.
“You really want to take some pre-emptive steps,” Sidoti said. “Look at the guidelines, see how far away you are and get an assessment.”