ADA Plaintiffs Now Targeting Business Websites
After weathering a flurry of ADA (Americans with Disabilities Act) lawsuits—more than 2,000 in two years—no one would blame Arizona business owners if they felt like a boxer recovering in his corner after a particularly bruising round. Unfortunately, not even the best efforts of the state legislature and Arizona Attorney General’s Office will be able to permanently protect businesses from aggressive serial ADA plaintiffs—there will always be another round.
The next frontier of accessibility litigation? Business websites.
BUSINESS WEBSITES AND THE ADA
Under the ADA “public accommodations” must make their places of business accessible to individuals with disabilities. This has typically meant businesses needed to remove physical barriers to accessibility—whether it be in their parking lots, restrooms etc.,
The ADA was enacted in 1990 and did not contemplate a world where goods and services would be available online. Should a business’s website also be considered a place of public accommodation?
The Ninth Circuit has held that a public accommodation under Article III of the ADA must be an “actual, physical place.” Accessibility lawsuits brought against Netflix, Ebay, and Facebook were all dismissed by district courts within the Ninth Circuit because those businesses did not sell goods and services from brick-and-mortar locations.
What about a business that has a physical location and operates a website? Is the website also considered a public accommodation under Title III of the ADA? Well, it depends.
Some courts have held that a business website would be considered a public accommodation if that website has a sufficient “nexus” to the physical business location. For example, a Florida federal judge ruled that Winn-Dixie supermarket’s website (which identified store locations, offered downloadable coupons etc.,) was a place of public accommodation. The Winn-Dixie was ordered to make its website accessible to individuals with visual impairments.
WEBSITE ACCESSIBILITY STANDARDS
The Department of Justice publishes regulations that specify (often down to the inch) what a public accommodation needs to do to become compliant with the ADA. Unfortunately, the DOJ has dragged its feet when it comes to website accessibility standards—there are no official regulations and the current administration hasn’t given any indications that regulations are coming anytime soon.
That means business owners are left somewhat in the wilderness—they can be sued for website noncompliance but have no official guidance how to make their websites compliant.
Most experts assume that the DOJ will eventually adopt a set of website standards known as the Web Content Accessibility Guidelines (WCAG) 2.0. We recommend that business owners download a copy of the WCAG 2.0 and discuss them with their employee or outside vendor responsible for maintaining their website to determine whether changes need to be made.
STATE AND FEDERAL LEGISLATIVE EFFORTS
While the Arizona legislature recently enacted tough legislation—including an exemption for business websites—in an attempt to curb serial litigants, that legislation only affects lawsuits brought under the Arizonans with Disabilities Act (AzDA). This means that Arizona businesses can still be sued for non-compliant websites in federal court under the ADA.
We recommend that business owners be proactive—don’t wait until you get sued before worrying about your website’s accessibility issues. As a proud sustaining member of Local First Arizona, Jennings Strouss & Salmon has several attorneys who are available to discuss website accessibility compliance issues with LFA members.
Lindsay Leavitt is a business litigation attorney who has defended hundreds of businesses and commercial landlords in lawsuits arising under the ADA. He also regularly assists businesses with ADA compliance matters and provides advice on preventive measures.
Contact: [email protected], 602.262.5825.