No business sets out to create inaccessible websites or sites that intentionally shut out people with disabilities. The problem is, when it comes to lawsuits related to ADA compliance for website accessibility, intent is not the issue. Access is the issue, and if your site isn’t up to code, you could be facing an expensive lawsuit.
As our legal and cultural ideas over what constitutes a public place have changed, lawsuits over accessibility have been on the rise. And while the future of the federal regulatory environment is in a state of uncertainty, it seems likely that confusion will lead to even more litigation as the system tries to figure out the new world.
The Rise of Accessibility Lawsuits
Late last year, the Department of Justice intervened on behalf of the plaintiffs in a lawsuit titled Gil v Winn-Dixie, the latter being the chain of grocery stores located primarily in Alabama, Florida, Louisiana, Mississippi, and Georgia. In the lawsuit, Juan Carlos Gil claimed that he was unable to access the goods and services of Winn-Dixie via their website through an on-screen reader.
Gil argued that was a violation of Title III of the Americans with Disabilities Act, the bipartisan landmark legislation signed in 1990. That section reads “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.”
Winn-Dixie, in their defense, argued that a website isn’t a “place of public accommodation,” and that since their actual physical stores comply with Title III, they were not discriminating against the disabled. That question of “public accommodation” is what these lawsuits hinge on—and, increasingly, it is being determined that websites are a public area.
That’s why the DoJ intervened in Gil v Winn-Dixie. They argued that a website which isn’t accessible to the disabled is in violation. And more and more court cases are arguing the same thing. Last year, there were more than 6,000 lawsuits against Title III entities (entities or businesses that are generally open to the public), which was a 37% increase over the previous year. This number doesn’t include the thousands of demand letters that were sent to businesses over website accessibility claims—3,340 in California alone. California is one of the states in which these lawsuits are primarily concentrated, with over 40% of ADA lawsuits filed there.
Legal Standards, Cultural Norms, and the Duty of Business Owners
The first big lawsuit in this field was in California, where the National Federation of the Blind sued retail giant Target for violating the California Unruh Civil Rights Act and the California Disabled Persons Act. After losing the lawsuit, Target went above and beyond the legal requirements and became a leader in the field of digital accessibility.
In 1999, the Worldwide Web Consortium (W3C) published a breakthrough set of guidelines for the disabled population: the Web Content Accessibility Guidelines. Although it’s only required that web content created, used, or maintained by the federal government conform, these guidelines are widely viewed as a best-practices standard for enterprises to hold themselves to: they set the cultural norms to which our laws and regulations will catch up.
Until recently, a new version of the guidelines was expected to be updated in 2018and signed into law. However, there is a different regulatory climate in Washington, and it is uncertain if the new Justice Department will pursue ADA complaints, including Title III, as one of its main priorities.
Earlier this week, a federal court dismissed a website accessibility lawsuit against Domino’s Pizza – in short because the DOJ has not published a refresh of the standards. But all that means is that there may not be clear guidelines. It won’t stop lawsuits or demand letters, nor will it stop cultural norms from impacting the way Title III is perceived. There is a bill working its way through Congress that would give businesses 120 days to respond to ADA lawsuits, but that would just change the timeline, and not the need to negotiate the laws. Getting ahead of litigation is a great way to protect your business, expand your consumer base, and make the web a better place for everyone.
No business sets out to exclude anyone. And you can make sure you don’t, by partnering with the right accessibility experts, who truly know what the problems are and how to make sure your website reaches all your customers.