Having a website has become a necessity for most businesses. It also may be a potential source of litigation. For instance, in the past several years there have been more than 750 lawsuits initiated by individuals who have visual impairments concerning their inability to access or use a company’s website. These claims are raised primarily under a federal law intended to protect individuals with disabilities, a law with that most businesses with “brick-and-mortar” locations are undoubtedly familiar because it requires certain adaptations be made in physical locations. Judges throughout the nation have applied this law to websites even though there is no regulatory guidance … yet. Nonetheless, there are steps a company may want to consider for purposes of avoiding a lawsuit in the first place—and making their websites (and ultimately their products or services) more available to more potential customers.
The ADA and Website Accessibility
The predominant law cited in these cases is Title III of the American Disabilities Act (ADA), 42 U.S.C. § 12182(a). The ADA, in its rawest form, prohibits discrimination on the basis of disability at “places of public accommodation.” Generally, businesses that are open to the public are subject to the ADA. The recent growth of claims dealing with websites in particular can be tied to the growth in virtual marketplaces, e.g., sales on the internet. As a result, some courts have held that websites are places of accommodation subject to the ADA. What that means is a bit less clear.
The claim by plaintiffs initiating these lawsuits is that a business is selling a product or providing a service on its website and fails to provide an accommodation to enable a visually impaired person who visits the website to use and/or access the information on the site. No specific type of business is immune from potential liability—plaintiffs have sued manufacturers, restaurants, independent retailers and supermarkets, among others.
Many of those cases settle early, and the legal opinions resulting from those that do not are not entirely consistent. For instance, courts in some parts of the country have concluded that unless the business has not just a website but also a physical (brick-and-mortar) location, its website is not subject to the ADA. Further, there are decisions on both sides of the country (including in California) holding that companies operating with only a website may have a basis for avoiding potential liability in those states. However, the law in some states has not yet been decided by the highest courts, and an assumption of protection based on the location of a business is not really something on which to rely because a website visitor can be located anywhere in the country. Thus, ignoring this issue is risky.
The Trend Favors Accessibility
As noted, some courts have held that where a business does not have such a physical location where it sells products or services to the public, its website is not subject to the ADA. Some have held that if a company has a physical location, its website must be accessible regardless of whether the court finds the website a “place of accommodation.” These nuances offer little confidence for websites because they essentially are in all states. Also, the more prevalent trend appears to be that all website sellers (regardless of whether they have non-virtual stores) are subject to the ADA or need to address accessibility even if found to be not literally subject to the ADA.
Some courts have required website owners to do more than just address their own websites. By way of example, the Southern District of Florida in 2017 ordered Winn Dixie Stores, Inc. to not only address its own website but also find a solution for the accessibility of the third-party websites its customers could access through the Winn Dixie website by links. That court also ordered the company to pay plaintiff’s attorneys fees. [See Gil v. Winn Dixie Stores, Inc., 242 F.Supp.3d 1340 (S.D. Fla. 2017)]. That court did not find the website “a place of accommodation” under the ADA, but rather, it found that the company’s physical locations are places of accommodation, and therefore, that there is a sufficient nexus between its physical locations and its website.
That same year in the Eastern District of New York, the court entered a consent judgment against an art supply retailer, requiring it to make its website accessible within a finite period of time or abandon using a website altogether. The record sets forth a two-year timeline for the company to implement a series of required changes to maintain its website. [See Andrews v. Blick Art Materials, LLC, 286 F.Supp.3d 365 (E.D.N.Y. 2017)].
Lack of Regulatory Guidance Creates Confusion
Because there are no regulations or statutes governing how a commercial website can obtain sufficient accessibility, once a lawsuit is filed, the question of how to comply is largely left open to negotiation between the parties. Thus, it is difficult to ascertain how one would to guarantee no risk of liability. However, it helps that the court cases largely look at what is “reasonable” for the specific company being challenged. Also, there is some guidance on how to figure that out for an individual company.
For instance, according to the U.S. Access Board, a federal agency that works to promote accessibility for persons with disabilities in federally funded agencies, there are standards for companies doing business with the federal government. They can be reviewed at: www.access-board.gov/guidelines-and-standards/communications-and-it/about-the-section-508-standards/section-508-standards. Among the requirements there is making sure there is a “text equivalent for every non-text element” on a website and design web pages so that all information in color is also available without color, and for the web pages to avoid causing the “screen to flicker with a frequency greater than 2 Hz and lower than 55 Hz.” [See also federal codes of regulations for federal agencies: 14 C.F.R. § 382.43; 36 C.F.R. §1194, App. 1, pt. 205.4].
Also, some courts have specifically referenced Web Content Accessibility Guidelines (“WCAG”). Those guidelines are available at: www.w3.org/WAI/standards-guidelines/wcag/glance/. There are three standard levels of accessibility possible with WCAG: “A, AA and AAA.” The Eastern District of New York in Blick Art remarked that WCAG 2.0 Level AA, “appear to be nearly universally accepted,” and noted that Level AA seems to address major barriers faced by visually impaired website viewers.
It is worth noting that the lack of regulations has not been a successful argument. For instance, in a case in the Central District of California earlier this year, the plaintiff contended that the website of the defendant, Yum! Brands, Inc. d/b/a Pizza Hut, did not comply with WCAG 2.0 but recognized that there is no specific requirement to be met. That plaintiff, a blind person who uses screen-reading software to access websites, alleged that when he visited PizzaHut.com to order a pizza, he found it “cluttered and difficult” to “understand using his screen-reader,” that a “slide show” on the website was “inaccessible,” he could not register to place an order “because various edit fields were not labeled,” and when he called a customer service telephone number on the website, no one answered.
Pizza Hut sought to have the complaint dismissed, in part, because there are no clear standards for a company to ensure that its website does not violate the ADA. Pizza Hut asserted that no one disputed there are no regulations (on summary judgment). The court denied the motion, and as to that issue, it held that “the lack of specific regulations cannot eliminate a statutory obligation” to comply with the ADA. [See Robles v. Yum! Brands, Inc. d/b/a Pizza Hut, 2018 WL 566781 (January 24, 2018)].
Conclusion
Understanding the issue is a first start for any problem-solving effort. Determining what to do to ensure a website is compliant is a bit tougher because there are no regulations—and, well, for each company, it depends, as the courts look to “reasonable” efforts. Obviously, a proactive approach is likely beneficial, and how that could work depends on a company’s resources, whether its website is about the launch or in the preparation stage, has already launched, and/or the company already is facing a lawsuit.
Reviewing WCAG 2.0 guidelines (or some other industry self-regulating standard regarding website accessibility) with an IT person and your attorney is critical to determining how much effort could implement meaningfully useful changes to a company’s website. WCAG guidelines address website text sizes, contrast, color, audio vs. text, labels, flashing, use of closed captions, compatibility with speech recognition software, and the ability of a viewer to use standard screen reader software for instance when viewing the website.
It also may be helpful to review your website “terms of use” and/or other notices provided to viewers on the website to determine whether they account for changes made to the website, and include appropriate alternatives to aid visitors to the site. A proactive effort to let viewers know the business is diligently working to “create a better experience for low-vision or blind users,” was something the court looked for in the Winn-Dixie case. Also critical is to ensure that what the website says it provides, it does provide. In the Pizza Hut case, for example, the parties appear to agree that the website included an “accessibility banner” with a toll-free number to aid viewers having difficulty using a screen reader with a promise that a live, customer service representative would be available. The plaintiff claimed when he called that number, he waited 45 minutes on hold before ending the call. Whether accurate or not, it was a factor that convinced the court to let the case proceed to trial.
As a final note, it also may be useful to have an internal business discussion not just about litigation avoidance, but also about how website accessibility may help broaden the customer base. NIE
Nancy A. Del Pizzo is a partner at Rivkin Radler LLP. Her practice focuses on intellectual property, and cyber, data and privacy law. She is a seasoned litigator and provides counseling on websites among other issues. In her former career, she was a writer and editor who focused on B-to-B publications, and specifically, marketing in wellness industries.
