What is a “drive by lawsuit.” This phrase refers to lawsuits filed by attorneys on behalf of disabled persons, in which the attorney or disabled person, sues a business for non-compliance under the Americans with Disabilities Act (ADA). Often, those who file these lawsuits don’t frequent the establishment that they are suing.
These lawsuits are filed because the building doesn’t have a wheelchair ramp, or maybe its disabled parking space isn’t to exact specifications. Whatever the reason, this type of lawsuit can result in expensive fines, and require costly building retrofitting.
But while these types of lawsuits have gained plenty of attention, news organizations are now waking up to a new type of disability lawsuit that’s occurring with increasing frequency.These lawsuits involve ADA accessibility issues relating to a company’s website. And if businesses don’t pay attention to these new lawsuits, they could find themselves caught up in expensive litigation, and hit with expensive fines.
Making things more difficult for business owners, the Federal Government has yet to release a long-anticipated list of guidelines for how business owners can make their websites ADA compliant, leaving companies scrambling to figure out the best way forward.
This article was written to briefly discuss the topic of ADA compliance as it relates to websites, as well as some of the guidelines that are available to help businesses become compliant. As always, if you have concerns that your company’s websites aren’t compliant, or you are facing legal action, seek the advice of a good lawyer.
ADA Challenges in the Era of the Website
According to a February 2018 article published by the website ClassAction.org, there are as many as three ADA lawsuits being filed daily relating to accessibility issues on company websites. In some of these cases, multiple businesses are being sued by the same plaintiffs.
In March, CBS Money Watch published an article explaining that corporate giants Nike, Burger King, Hershey, Lord & Taylor and Pandora were all being sued due to online accessibility issues. The article noted that back in 2010, the US Department of Justice, under the guidance of then President Barack Obama, announced it would soon release website accessibility guidelines so that companies could comply with ADA rules.
However, by 2016, near the completion of Obama’s second term, the updates still hadn’t arrived. Since President Donald Trump has taken over, there is no indication that these guidelines will be forth coming any time soon. And as attorney Minh Vu explained to CBS, figuring out how to become compliant can be a challenge for many companies.
“You cannot wave a magic wand to make your website accessible,” Vu said. “There aren’t a lot of people who know how to do it correctly.”
What the ADA says About Websites
The Americans with Disability Act states the Following:
“No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (leases to) or operates a place of public accommodation.”
It’s important to note that Federal Courts in the First, Second and Seventh Circuits have found that the ADA applies to Websites.
Los Angeles Superior Court Judge Fines Business Over Noncompliant Website
In May of 2018, a Los Angeles Superior Court judge ruled in favor of a plaintiff who sued a restaurant called the Whisper Lounge because of ADA accessibility issues on its website. In that case, the plaintiff alleged she was unable to read a menu on the restaurant’s website due to her vision impairment, adding that a link to a PDF version of the menu led to an error message. She further alleged that a graphic image of the menu was unreadable, and the website contained graphics that were not labeled with descriptive tags.
The court ordered the restaurant to pay the defendant statutory damages totaling $4,000, and comply with requirements of WCAG 2.0 AA, which is a series of guidelines developed by a working group of the Web Accessibility Initiative.
Web Accessibility Initiative
The Web Accessibility Initiative is an effort of the World Wide Web Consortium (W3C), which seeks to improve the accessibility of the internet for persons with disabilities. It is comprised of various stakeholders, including special interest and disability groups, as well as accessibility research organizations. Initiative workgroups and task forces research and develop guidelines in order to improve internet accessibility. They also develop support materials to help folks understand Web accessibility.
The fruits of these workgroup’s efforts include the guidelines for making websites more accessible to disabled people, the implementation of which could potentially limit a company’s exposure to ADA lawsuits.
While the defendant in the case mentioned in the previous section argued that the WCAG guidelines aren’t legally binding, the court noted that the complaint did not seek to hold the defendant liable for violating their provisions. Rather, the plaintiff referenced the guidelines and sought to compel defendant to “take the steps necessary to make whisperloungela.com readily accessible and usable by visually-impaired individuals.”
For more information on the Web Accessibility Initiative as well as WCAG guidelines, visit the group’s website.
What this Means for Companies Who Operate Websites
If you operate a website as part of your business, now might be a good time to consider your site’s accessibility issues. Guidelines included in WCAG 2.0 include a range of suggestions for making content more easily accessible to disabled persons. For instance, audio-only content can be enhanced by presenting the audio information along with a text document edited to match the dialogue.
Other guidelines discuss:
- The speed with which content is presented.
- How a user might adjust the speed with which content is presented
- Whether rapidly flashing content can cause seizures
- How the headings or labels on each page describe the intended topic or purpose
These are just a tiny sampling of the types of issues businesses might have to consider in order to limit their liability.
If You’re Unsure About Website Compliance Issues, Consult an Attorney
If you’re a business owner who’s unsure of how to make your website ADA compliant, this can be a confusing time. The federal government has been slow to develop guidelines for businesses to follow, leaving the information gap to be filled by other groups. Meanwhile, the onslaught of lawsuits continues.
If you have questions, a good attorney can help you understand the existing law, and develop best practices so that you can comply with the law. If you face legal challenges that threaten your business, a good lawyer will be vital to helping you navigate the legal system’s many challenges.