Charles Marion, Blank Rome

During the last few years, there has been an explosion in the number of lawsuits being filed claiming that a business’ website violates the Americans with Disabilities Act (ADA). These cases typically involve a claim by a visually impaired individual stating that he cannot access and “read” certain portions of the defendant’s website because the website has not been coded or otherwise set up to work with the screen reader software and device used by the plaintiff.

It is difficult, however, for owners and operators of websites to determine what steps can be taken to reduce the likelihood that they will be named in one of these lawsuits, and if they are sued, whether and how to defend such lawsuits. This is due to a number of factors, including that a split has developed among the various circuits regarding whether and when one who has encountered an accessibility problem on a website can state a claim under Title III of the ADA, and the fact that no governmental rules or regulations exist detailing what a business must do in order to make its website accessible to visually impaired and other disabled individuals.

The ADA was enacted in 1990, before individuals were using the internet and businesses had websites. Title III prohibits discrimination on the basis of disability in the activities of “places of public accommodation.” It lists 12 categories or types of public accommodations that are governed by the law, including restaurants, schools and movie theaters. All are physical spaces, however; the law says nothing whatsoever about the internet or websites.

With the tremendous growth of the internet and e-commerce, there began to be some claims brought under the ADA asserting that businesses’ websites were not accessible to visually impaired users and therefore violated the act. The most notable of these was a lawsuit filed by the National Federation for the Blind against Target Stores in 2006 in the Northern District of California. The case survived motions to dismiss and for summary judgment and was eventually settled by Target, which agreed to pay a significant amount in damages to the class members and update its website so that it was accessible to visually impaired users.

Ever since the Target case, California courts have consistently held that there must be a “nexus” between the defendant’s website and its physical, or “brick and mortar,” location in order for a plaintiff who has experienced accessibility issues on the website to state a claim for violation of Title III of the ADA. In Target, a sufficient nexus was found to exist, as the plaintiffs argued, among other things, that the website allowed customers to purchase items that could then be picked up in Target’s stores and print coupons that could be then used in the stores, see National Federation of the Blind v. Target, 452 F. Supp. 2d 946 (N.D. Cal. 2006) (denying Target’s motion to dismiss). Courts in the Third, Sixth and Eleventh Circuits similarly require this nexus in order to state a claim under the ADA. In Florida, for example, the courts have generally held that encountering an accessibility issue on a website is not, by itself, sufficient to state a claim under the ADA. It is only where the accessibility problem impedes the plaintiff’s ability to access the defendant’s physical store or location that a claim can be stated, as in Gomez v. Bang & Olufsen America, No. 16-cv-23801 (S.D. Fla. Feb. 2, 2017).

In other circuits, however, district courts have held that encountering accessibility problems on a defendant’s website is, in and of itself, sufficient to give rise to a claim under the ADA. That is, these courts do not require any nexus between the defendant’s website and its physical location, as in Andrews v. Blick Art Materials, No. 17-cv-767 (E.D. N.Y. Aug. 1, 2017).

The U.S. Department of Justice (DOJ) initially showed great interest in these cases and, in some of the early ones, sided with the plaintiffs in arguing that websites must be made accessible to visually impaired and other disabled individuals in order to comply with the ADA. In 2010, the DOJ announced it was beginning the process of developing news rules and regulations for how businesses could make their websites accessible to disabled individuals and compliant with the ADA. However, the DOJ repeatedly postponed the deadline by which it would issue these guidelines, and in 2017, the Trump administration moved the project to the DOJ’s “inactive” list.

As a result, businesses, litigants and the courts have had no governmental rules or guidance to look to for what must be done to a website to make it compliant with the ADA. At least one California court dismissed a lawsuit filed under Title III on the grounds that, given the complete lack of any governmental rules or other authority for how to make a website accessible to the disabled, requiring the defendant to update its website to make it more accessible to disabled individuals would violate the defendant’s due process rights in Robles v. Domino’s Pizza, No. 2:16-cv-06599 (C.D. Cal. March 20, 2017).

Several courts have applied guidelines developed by an industry group, the World Wide Web Consortium. These are the Web Content Accessibility Guidelines (WCAG), version 2.0 AA (version 2.1 is expected to be issued this summer).

Thus, this is an area that really cries out for clarification and guidance, whether from Congress, the DOJ, or—eventually, in light of the split that has been developing—the U.S. Supreme Court.  The U.S. House of Representatives recently passed a bill targeting “drive-by” ADA lawsuits and requiring that plaintiffs give businesses notice and an opportunity to cure before filing a lawsuit. However, the law only deals with physical spaces, and does not address the many website claims and lawsuits being asserted. Certain states are considering similar legislation.

Often, it is the same plaintiff and the same plaintiff’s counsel who are filing multiple lawsuits against defendants in a wide array of industries, including banks, hotel companies, retailers, restaurant chains, and insurance companies. Certain courts now require a plaintiff who files one of these lawsuits to also submit a certification that the defendant has not been sued previously for this same claim in the same court. But that requirement is not widespread, and repeat lawsuits remain a concern of most businesses.

In addition, when these lawsuits began to be filed, nearly all of them were filed as individual, rather than class, actions. Accordingly, even if the defendant agreed to settle the case and update its website to bring it into compliance with WCAG 2.0, the business was still at risk of being sued again, by another disabled individual, for the very same claim. In some jurisdictions, businesses sued a second (or third) time for this claim have successfully moved to dismiss the lawsuits on mootness grounds, since, under their settlement agreements in the prior matter(s), they are already updating their websites and providing the plaintiff with the exact relief he is seeking, see, e.g., Haynes v. Hooters of America, No. 17-60663-Civ.-Scola (S.D. FL June 13, 2017) (this case is presently on appeal to the Eleventh Circuit).

More recently, many of these cases are being filed as class actions. While the settlement of a class action could bring closure for a defendant with respect to claims such as this, that would only be the case if a class was first certified and the settlement was approved by the court, steps that require a substantial amount of time and attorney fees. For that reason, many class actions are being settled in the early stages, before a class is certified.

Despite all of this uncertainty and the fact that this area of the law is still evolving, there are a number of things businesses that own and operate consumer-facing websites can—and should—do in order to limit their risk and exposure in this area. First, the business should assess or audit its website to see how compliant or noncompliant it is, and investigate options for bringing the website into compliance with the WCAG 2.0 AA guidelines. The same effort should be undertaken with respect to any mobile apps the businesses offer to their customers. Particular attention should also be paid to any online job application pages, forms and sites the company utilizes, as we are starting to see a new wave of claims relating to disabled individuals having difficulty accessing companies’ online job application site and forms.

Businesses that hire a third-party vendor to manage their websites should ensure that their agreements with such vendors contain helpful provisions on this issue, such as an agreement by the vendor that its work will comply with the WCAG 2.0 AA, certain other warranties, and a strong indemnification clause. Other good practices include posting an accessibility policy on the website’s home page (or including a link to such policy next to the links for the site’s terms and conditions and privacy policy) and providing a “hotline” telephone number for users to call if they encounter accessibility problems while on the site.

ADA lawsuits targeting businesses’ websites are not going away, nor is the law in this area going to become any clearer or more settled, any time soon. It is therefore important for businesses to do what they can to assess their potential liability and exposure for ADA claims relating to their websites and take whatever steps they can to eliminate or minimize such risk.

Charles S. Marion is a partner in Blank Rome’s Philadelphia office. He focuses his practice in the areas of complex business litigation, intellectual property litigation, franchise litigation, securities litigation, and product liability. He also advises and defends clients whose websites have been accused of violating the Americans with Disabilities Act, and frequently writes and presents webinars and other programs on that subject. He can be reached at cmarion@blankrome.com.