“Error: Website Inaccessible.”
Adrianne C. Blake*
When President George H. W. Bush signed the Americans with Disabilities Act (ADA) into law in 1990, its purpose was to ban employment discrimination and to “eliminate unnecessary physical barriers to commercial and government buildings.” Mark Pulliam, Is Your Company’s Website Accessible to the Disabled? You’d Better Hope So, L.A. Times (June 11, 2017, 4:00 AM), http://www.latimes.com/opinion/op-ed/la-oe-pulliam-ada-websites-20170611-story.html. The ADA was “the nation’s first comprehensive civil rights law addressing the needs of people with disabilities, prohibiting discrimination in employment, public services, public accommodations, and telecommunications.” The Americans with Disabilities Act of 1990, EEOC, https://www.eeoc.gov/eeoc/history/35th/1990s/ada.html (last visited on Jan. 3, 2018); see also Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101–12213 (2012 & Supp. III 2016); 47 U.S.C. §§ 225, 611.
Subchapter III of the ADA, commonly referred to as “Title III,” addresses legal requirements for public accommodations and services operated by private entities. See 42 U.S.C. §§ 12181–12189. Title III of the Act requires that disabled people have access to public accommodations, commercial facilities, and certain private entities, such as those facilitating educational courses or certification training. Id. Private clubs and places of worship are exempted from the ADA under this Title, but those facilities may still be required to meet state or local access requirements. See Using the ADA Standards, U.S. Access Board 1 (Feb. 2014), https://www.access-board.gov/attachments/article/997/using-ADAstandards.pdf.
“[M]any courts have interpreted the term ‘public accommodation’ in the act’s Title III to encompass Internet companies.” Pulliam, supra. Under the Obama administration, the United States Department of Justice (DOJ), which promulgates rules and enforces the ADA, took the position that Title III applied to website accessibility and issued guidelines, but never implemented regulations. See Vivian Wang, College Websites Must Accommodate Disabled Students, Lawsuits Say, N.Y. Times (Oct. 11, 2017), https://www.nytimes.com/2017/10/11/nyregion/college-websites-disabled.html; see also David O. Klein, Have You Been Threatened with an ADA Website Accessibility Lawsuit?, LEXOLOGY (July 28, 2017), https://www.lexology.com/library/detail.aspx?g=8103d40e-44af-40a3-9a8c-a55a14a2c110 (explaining that it is a lesser known fact that the DOJ has “interpreted the ADA to apply to website accessibility”). Furthermore, under the Trump administration, the DOJ has placed website accessibility rulemaking on its “inactive” agenda list. Klein, supra; Wang, supra. This means that businesses with e-commerce websites that do not “present text in a format that is compatible with text-reading software and employ design that allows for easy navigation” become easy targets for disability suits because courts have no strict federal guidance to follow. Pulliam, supra; see also Wang, supra (“The question has largely been left to judges, who have ruled both for and against disabled plaintiffs.”).
As a result, there has been an increase in litigation involving private citizens along with other associations bringing ADA claims against retailers, restaurants, and schools whose “websites lack assistive technologies for the blind or hearing-impaired.” Pulliam, supra; Wang, supra. For instance, from January 2015 to June 2017, lawsuits were filed in federal court against “[m]ore than 240 businesses . . . over website accessibility.” Pulliam, supra. In fact, over the past few years, non-employment ADA suits, including website accessibility suits, have well outpaced ADA employment suits, and it appears that the trend will continue. See Americans with Disabilities Act Lawsuits Up 28 Percent in FY 2016, TRAC (Oct. 27, 2016), http://trac.syr.edu/tracreports/civil/444/.
“The legal floodgates were opened” on June 12, 2017, when Judge Robert Scola of the United States District Court for the Southern District of Florida ruled in favor of plaintiff Juan Carlos Gil, who is blind, holding that retailer Winn-Dixie’s website violated the ADA. Lisa Fickenscher, Lawyers Cash in on Suits Demanding ADA-Compliant Web Sites, N.Y. Post (July 11, 2017, 4:50 AM), http://nypost.com/2017/07/11/lawyers-cash-in-on-suits-demanding-ada-compliant-web-sites/; John O’Brien, First-of-Its-Kind Trial Goes Plaintiff’s Way; Winn-Dixie Must Update Website for the Blind, Forbes (June 13, 2017, 2:22 PM), https://www.forbes.com/sites/legalnewsline/2017/06/13/first-of-its-kind-trial-goes-plaintiffs-way-winn-dixie-must-update-website-for-the-blind/#7b5ebf551b38. This is believed to be the first time that an ADA website accessibility suit has gone to trial. Fickenscher, supra; O’Brien, supra. Within less than a month after Judge Scola’s decision, more than a dozen retailers were sued just within the state of New York. Fickenscher, supra. Since that time, at least one attorney has filed twenty-six cases within a two-month period on behalf of just two plaintiffs. Id. In late September and early October 2017, lawsuits were filed against eight New York colleges and universities for their failure to make their websites navigable for the visually-impaired, adding to a list of more than three dozen United States schools previously cited for noncompliance. Wang, supra.
Just what makes website accessibility issues so complicated? To start, online digital accessibility includes utilizing captioned videos (providing access to the hearing impaired), ensuring keyboard-only navigation (for those who cannot physically control a cursor or mouse), eliminating color as the means of conveying information (for the sight-impaired or colorblind), and avoiding blinking and flashing content (for those with cognitive disabilities or epilepsy). Lainey Feingold, Digital Accessibility and the Quest for Online Equality, 21 J. Internet L. 3, 3 (2017). Because so many accommodations must be provided before a website is considered accessible, the needs of visually or hearing impaired customers often conflict with the goals or security needs of retailers. Pulliam, supra. Practical challenges include hiring high-demand, expertly skilled website designers and software engineers. Kimberly Reindl & Amisha Manek, DOJ Creates Web Accessibility Minefield, A.B.A. (Mar. 2016), https://www.americanbar.org/publications/blt/2016/03/08_reindl.html. Additionally, even before recent developments, interpretations of the ADA’s Title III application to websites have varied from courtroom to courtroom. See Klein, supra. Issues including whether websites, web content (including third-party sites such as advertisers), and mobile apps should all be held to the same standard as brick-and-mortar businesses have yet to be resolved. See Pulliam, supra.
Costs pose another issue, particularly for small businesses. See Fickenscher, supra. As evidenced by the Winn-Dixie case, estimates show the price of bringing a website into compliance with the ADA can exceed upwards of $37,000. Gil v. Winn-Dixie Stores, Inc., 257 F. Supp. 3d 1340, 1347 (S.D. Fla. 2017), appeal docketed, No. 17-13467 (11th Cir. Aug. 1, 2017). Although no monetary damages are available in such suits, attorneys are still permitted to collect legal fees from their clients. 42 U.S.C. § 12188 (2012); Fickenscher, supra. Lastly, Congress has yet to revise the dated 1990 Act. Fickenscher, supra. The Act was signed prior to full United States commercialization of the Internet and did not mention the Internet or take into consideration the constant churn of online retailers’ merchandise and web design. See Wang, supra.
The uncertainty in this area of the law can be seen as an opportunity for “significant civil rights advances or exploitation by lawyers looking to make a quick buck through settlements.” Id. Moreover, not all disability rights advocates support “filing a blizzard of lawsuits in order to get settlements” because it does not resolve the underlying problems with currently unclear guidance from the government. Id. Other advocates believe that it is up to attorneys to ensure valid cases are brought forward by monitoring and assessing the complaints of potential clients. See id.
With no end in sight to the current uptick in non-employment ADA litigation, some steps can be taken well in advance of any legal action. These steps include: training employees about website accessibility, designating one individual in the business to be the point person for website accessibility issues, hiring consultants to assist when there is no in-house digital compliance expertise, and incorporating knowledge and use of accessibility standards into job descriptions and annual employee evaluations. Feingold, supra, at 9–10. Until updated guidance or regulations are issued by Congress or the DOJ, businesses, retailers, and educational institutions should heed experts’ advice to “be proactive” in their approaches to digital accessibility. Id. at 9. After all, waiting for federal guidance may prove to be more costly than preemptively taking steps to make a website accessible in advance of a lawsuit. See Reindl & Manek, supra.
*Adrianne C. Blake is a second-year law student at the University of Baltimore School of Law. She currently serves as a staff editor for Law Review and Secretary of the Student Bar Association. After completing a Spring 2018 legal externship in the Anne Arundel County State’s Attorney’s Office, she will serve at U.S. Coast Guard Headquarters in Washington, D.C. as a Summer 2018 CGJAG intern.