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Contributors: Drew Rawl, Haynsworth Sinkler Boyd, PA Minh Vu, Seyfarth Shaw LLP
There has been a “tsunami” of lawsuits against companies in which plaintiff attorneys claim websites do not accommodate people with disabilities. But are the rules requiring compliance clear? After eight years of rulemaking initiated by the Obama administration, are we about to see clarifying regulations under the Trump administration? Is this something companies should take seriously?
Attorney Drew Raul of Haynsworth Sinkler Boyd P.A. says typical lawsuits under Title III of the ADA—governing commercial entities—against companies whose websites and mobile apps are not accessible by the blind and visually impaired, seek to require a company to embed their sites with invisible text readable by screen reader software. But, he said, ADA governance over websites and apps is a “transient area of the law.”
“Courts are currently split on the issue,” Raul writes, “but the law is trending toward requiring compliance. Indeed, the Department of Justice (the agency charged with promulgating rules and regulations under the ADA) has opined the ADA covers websites, and that it intends to engage in future rulemaking on this topic. A minority of jurisdictions (First and Seventh Circuits) have found that a place of public accommodation need not be a physical place. However, a majority of jurisdictions (Third, Sixth, Ninth and likely the Eleventh Circuits) have found that a place of public accommodation must be a physical place. In those jurisdictions where a public accommodation does not have to be a physical location, a website is found to be a public accommodation, and consequently absolutely subject to Title III of the ADA.”
Raul said that even in jurisdictions requiring accommodation be in a physical space, a website could still be deemed to be violating the ADA if there is a “nexus . . . between the challenged services and goods offered through a website and the physical place of the public accommodation.”
Raul noted that the DOJ has favored Web Content Accessibility Guidelines (“WCAG”) 2.0 Level AA standards, which were created by the Web Accessibility Initiative of the World Wide Web Consortium, but has since requested additional information.
Will the DOJ adopt the WCAG 2.0 AA standards? Prior to President Trump taking office, it would have seemed the answer was yes and, according to Raul, something recent settlement agreements would have suggested as well.
“With this in mind,” Raul writes, “best practices would recommend a proactive approach toward adopting the WCAG 2.0 AA standards. It appears a website embedded with alternative text to allow a blind individual to navigate the website would satisfy most claimants. At the very least a public accommodation must show it can effectively communicate with a disabled individual.”
With the new administration’s efforts to cut back on regulation, Minh Vu of Seyfarth Shaw LLP says the likelihood of proposed regulation being issued now is “virtually non-existent.” She cites President Trump’s executive order (EO) titled “Reducing Regulation and Controlling Regulatory Costs,” which requires that two regulations be erased for every new one enacted, and that any costs associated with new regs must be offset by the costs saved from the eliminated ones. “This EO virtually obliterates any chance that the DOJ will issue any website regulations for public accommodations websites during Trump’s Administration,” Vu writes.
Vu explains that the stated purpose of the EO is to “manage the costs associated with the governmental imposition of private expenditures required to comply with Federal regulations.” Based on this, Vu says she assumes the EO would not apply to regulations relating to state and local governments that the DOJ has been working under ADA Title II, which regulates government agencies. She says it’s unclear what impact the EO will have on this process.
“While our prediction may seem dire,” Vu writes, “we cannot fathom what two regulations the DOJ would repeal to make way for new public accommodations website regulations and offset their associated cost. Though some may think that businesses are better off with no regulations on this subject, we disagree. The current tsunami of lawsuits and demand letters about allegedly inaccessible websites is the result of uncertainty and absence of regulations that impose reasonable rules that provide adequate time for businesses to comply. This is one issue upon which virtually all who practice in this space—on the legal, technological or advocacy side—agree.”
Jeffer Mangels Butler & Mitchell LLP attorneys Jim Butler and Marty Orlick also cite the “dramatic rise” of website accommodation lawsuits and litigation threats. “While the hotbed of ADA website litigation has been the Western District of Pennsylvania, where several dozen lawsuits were filed against some of the nation’s top retailers, website litigation is occurring nationwide,” they write. They also cite a case where a blind plaintiff won summary judgment based on Title III because a defendant’s website was not accessible to him.
“Addressing the complexities of website accessibility regulations before becoming a target for ADA litigation is prudent,” Butler and Orlick write.
Links to original posts by: Drew Raul of Haynsworth Sinkler Boyd P.A. http://www.scemployersblog.com/2017/01/is-your-website-ada-compliant/ Minh Vu of Seyfarth Shaw LLP http://www.laborandemploymentlawcounsel.com/2017/02/executive-order-likely-dooms-website-regulations-for-public-accommodations/ Jim Butler and Marty Orlick of Jeffer Mangles Butler & Mitchell LLP http://hotellaw.jmbm.com/ada-website-accessibility-lawsuits.html
This article was edited for LexisNexis by Tom Hagy, managing director of HB Litigation Conferences and former publisher of Mealey’s® Litigation Reports.