Authors: Peyton B. Engel & John C. Mitby
Phone: 608-257-0945 & 608-575-4077
Email: pengel@hbslawfirm.com & jmitby@hbslawfirm.com

Businesses can expect a wave of lawsuits—and threats of lawsuits—concerning websites designed without proper consideration for users with disabilities. Most websites make at least some effort at accommodating users with disabilities, but it’s important to check up on your website’s accessibility now, before legal trouble arises.

Background
The Americans with Disabilities Act of 1990 (“the ADA”) was designed to prevent discrimination based on disability, much as the Civil Rights Act of 1964 prohibits discrimination based on characteristics such as race, sex, religion, or national origin. The ADA endeavors to ensure that persons with disabilities are not excluded from employment, public accommodations, or access to telecommunications.

ADA requirements apply to “covered entities” (employers with 15 or more employees, as well as employment agencies, labor organizations and joint labor-management committees, according to 42 U.S.C. §§ 12111(2) and (5)). For the purposes of this article, the specific requirements at issue pertain to “public accommodations,” which fall into twelve categories defined at 42 U.S.C. § 12181(7):

1. An inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of the establishment as the residence of the proprietor;
2. A restaurant, bar, or other establishment serving food or drink;
3. A motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;
4. An auditorium, convention center, lecture hall, or other place of public gathering;
5. A bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;
6. A laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;
7. A terminal, depot, or other station used for specified public transportation;
8. A museum, library, gallery, or other place of public display or collection;
9. A park, zoo, amusement park, or other place of recreation;
10. A nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;
11. A day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and
12. A gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.

The primary responsibility for developing standards and enforcing the ADA rests with the U.S. Department of Justice’s Civil Rights Division. The DOJ has limited resources, however, and the number of covered entities and public accommodations is astronomical. For this reason, private individuals who are wrongfully denied access to a public accommodation are able to file lawsuits of their own. See, e.g. Barnes v. Gorman, 536 U.S. 181, 122 S.Ct. 2097, 153 L.Ed.2d 230 (2002).

These lawsuits are for injunctive relief only, not for monetary damages: the idea is that the plaintiff seeks an order from the court that the inaccessible condition be corrected. So, for example, a store that lacks a ramp so that people in wheelchairs can enter the premises might be ordered to install one. But there’s a catch: defendants in these lawsuits can be held liable for the plaintiffs’ attorney fees, and these can be substantial.

The Pattern So Far
The fact that the losing side in an ADA lawsuit of this sort would have to bear the plaintiff’s attorney fees means that a plaintiff with a solid case has nothing to lose by filing suit. More importantly, attorneys have an economic incentive to identify open-and-shut cases and litigate them. Some firms, in fact, have specialized in this. For example, in 2010, new ADA design guidelines required the owners and operators of Automated Teller Machines to provide access for the disabled (e.g., audio jacks for the hearing-impaired, or keyboard designs with tactile cues for the vision-impaired). Large financial institutions were able to stay ahead of the requirements, but community banks and credit unions were hit with a wave of lawsuits.

The Department of Justice Civil Rights Division is poised to promulgate a rule that web sites for public accommodations must adhere to accessibility guidelines. The guidelines themselves are nothing new—the two standards of most interest, the World Wide Web Consortium’s Web Content Accessibility Guidelines (or WCAG) and the federal government’s Section 508 Standards have been around for some time, and are already familiar to web designers.

Nevertheless, an actual requirement that web sites abide by a standard will mean trouble for those that do not comply. In fact, even though no accessibility standard has been formally adopted, the lawsuits have already begun, the DOJ has indicated that it considers the ADA applicable to websites.

What We Are Seeing
People are already suing over web site accessibility. Recent suits against Foot Locker and Red Roof Inns are prominent examples. On a more local level, businesses are receiving demand letters, threatening the possibility of a lawsuit, and seeking a settlement in advance.

The letters are largely boilerplate, and consist of three main parts:

1. An explanation of the ADA lawsuit process and the prior success record of the firm sending the letter;
2. An enumeration of conditions on the recipient’s website that do not conform to web accessibility guidelines; and
3. A form settlement agreement which would bind the recipient to conform the website to accessibility guidelines, engage an outside consultant to review the website, and pay unspecified attorney fees.

The law may not yet be fully settled as to how closely a website must comply with any specific guideline (it is unlikely that 100% adherence will be practical, at least for some types of websites), but this is not merely a bluff. It’s important to take this issue seriously.

What Should You Do To Protect Yourself
Don’t have your head in the sand. In particular, some businesses think that because they don’t do e-commerce, they’re off the hook. It’s important to remember that even if your website is just informational, it is still a service you provide to the public.

Review your website for accessibility issues. Web developers have tools that help validate website accessibility. There are free online tools available for this purpose, but they tend to be clumsy, especially for large websites. As a general rule, it will be much cheaper and easier to fix a website accessibility problem up front than under time pressure or the threat of a lawsuit.

If you receive a letter such as the one described above, or are contacted via other means about web site accessibility problems, talk to your attorney, and notify your insurance carrier of the potential claim.