When the Americans with Disabilities Act (“ADA”) was enacted into law in 1990, it preceded the Internet which first became publicly available in 1991. Thus the ADA’s enactment preceded the explosion of electronic commerce since conducting commerce over the Internet has become commonplace.
The ADA requires businesses operating places of public accommodation to be accessible to people with disabilities. For many years, ADA plaintiffs focused their lawsuits on those businesses whose properties had architectural barriers that impaired physical access and made it difficult to enter, navigate and avail him or herself of the goods and services offered. Over the years, Florida has been a hotbed for these lawsuits.
In 2017, courts in Florida and New York ruled that business websites that fail to meet certain accessibility requirements can violate Title III of the ADA, and thus open them to legal exposure to an ADA lawsuit for a non-compliant, discriminatory website. To date, ADA website lawsuits have targeted a wide array of retailers, grocery store chains, restaurants, hotels, universities, drug stores and pharmacies, physicians medical offices, hospitals, nursing homes, rehabilitation centers, home health care agencies, among others who offer places of public accommodation and accompanying websites for their businesses.
Because the Department of Justice has not clarified the technical requirements for website compliance, courts facing these website compliance lawsuits have turned to the World Wide Web Consortium Web Content Accessibility Guidelines Series 2 (“WCAG 2.0”) for clarification of the technical standards websites must meet to be compliant. These guidelines include the following principles:
Perceivable: information and user interface components must be presentable to users in ways they can perceive;
Operable: User interface components and navigation must be operable;
Understandable: Information and operation of the user interface must be understandable; and
Robust: Content must be robust enough that it can be interpreted by a wide variety of user agents, including assistive technologies.
In other words, for a website to be accessible to disabled people, the content must be coded so that screen-reading software can convert words to an audio translation. Video that appears on a website must include descriptions for the deaf. All interactive functions must be operable through keyboard commands for people who cannot operate a mouse.
Website compliance can be costly, but it may well save a business from being sued for non-compliance with the law. The ADA was drafted so as to encourage compliance with its legal requirements and the changes it required, particularly since it meant modifying structures never built with the ADA in mind.
Among these incentives were the ADA attorneys’ fees provisions. The statutory fee provisions permitted a plaintiff whose attorney successfully secured legal relief from the courts under the law to recoup the attorneys’ fees incurred.
These fee provisions have motivated non-profit advocacy groups, some private attorneys, and their clients to champion the causes of the disabled by pursuit of this litigation. While bringing about needed change and compliance with the requirements of the ADA, the opportunity for fee recovery has also given rise to a cottage industry of ADA lawsuits in which business owners must defend the litigation, bring their business premises and websites into compliance, and most likely pay the plaintiff’s attorneys fees as part of the settlement and resolution of the lawsuit.
Mary LeVine has extensive experience in ADA compliance. If you would like to learn more, please contact Mary at 941.748.0100 or firstname.lastname@example.org.