Web Accessibility: Why Many Entities Are Only a Click Away From Litigation
By John Bosco and Tiffany Anderson — León Cosgrove, LLC, Dallas, Texas and Miami, Florida | Submitted by the Labor & Employment PAC
2015 is the 25th anniversary of the Americans with Disabilities Act (“ADA”). When the ADA was enacted on July 26, 1990, the internet was in its nascent stage, and e-commerce, online banking, and mobile applications were unheard of. Unsurprisingly, the ADA and its original implementing regulations lacked specific guidance regarding accessibility for websites and mobile applications. While guidelines have been proposed, technical accessibility standards have not yet been adopted. Nevertheless, because the internet is the primary point of access to goods and services for many people with disabilities—specifically, the blind, deaf, and mobility impaired—online accessibility has already become a major focus for the Department of Justice (“DOJ”), advocacy groups, and individual litigants. Hundreds of entities have recently been confronted with the expense and disruption of enforcement agency investigations and/or litigation regarding the failure to provide accessible websites and mobile applications. For both private and public entities doing business in the United States, the time to address digital accessibility is now.
Recent Enforcement and Litigation Trends
Despite the lack of published regulations, the DOJ has emphasized the immediate need for accessible electronic and information technology—including websites—for the blind and visually impaired. As early as July 2010, the DOJ announced in an Advance Notice of Proposed Rulemaking (“ANPRM”) that it would issue new regulations under Title III of the ADA to address the accessibility of websites. On June 25, 2015, the DOJ filed Statements of Interest in two lawsuits brought by deaf advocacy organizations alleging two universities failed to caption videos posted to their websites. Notably, the DOJ posited that the obligation to make websites accessible exists right now, even in the absence of any new regulations. Indeed, the DOJ explained that when it issued the ANPRM, it was seeking “to explore whether rulemaking would be helpful in providing guidance as to how covered entities could meet preexisting obligations to make their websites accessible.”
This pronouncement follows a myriad of settlement agreements and consent decrees where the DOJ has required businesses and government entities to make their websites and mobile applications conform to a developed accessibility standard—the Web Content Accessibility Guidelines (WCAG) version 2.0, level AA. In addition, many of the agreements require the entity to appoint an ADA coordinator, implement complaint procedures, and train staff members in accessible features.
Federal courts have further endorsed the DOJ’s interpretation of the ADA in the context of web accessibility. See, e.g., Nat’l Fed’n of the Blind v. Scribd Inc., 97 F. Supp. 3d 565 (D. Vt. 2015) (denying defendant’s motion to dismiss and finding the digital library’s website and mobile applications were places of public accommodation); Nat’l Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196, 202 (D. Mass. 2012) (finding a “web site is a place of public accommodation”); Nat’l Fed. of the Blind v. Target Corp., 452 F. Supp. 2d 946, 956 (N.D. Cal 2006) (holding “to the extent that plaintiffs allege that the inaccessibility of Target.com impedes the full and equal enjoyment of goods and services offered in Target stores, the plaintiffs state a claim, and the motion to dismiss is denied”). This endorsement has led to a spike in lawsuits alleging barriers to access brought on behalf of both private litigants and associational plaintiffs which can expose a business to penalties, damages, and substantial legal fees. Indeed, plaintiffs have already filed more than 30 lawsuits within the past two months in Federal Courts across the Country.
Best Practices for Enhancing Accessibility and Avoiding Litigation
For companies looking to explore this emerging issue, assess their exposure, and minimize the risk of expensive DOJ investigations and burdensome litigation there are concrete steps to take. First, websites should be audited—under the protection of privilege—for compliance with WCAG 2.0 Level AA standards. The retention of outside legal counsel at the outset of this process will help protect the reports and findings generated as privileged. Second, website accessibility policies, and procedures to assist in their implementation, should be drafted and adopted. Third, necessary staff should be trained on these policies, practices, and procedures and how to respond to customers’ accessibility concerns. One of the most effective ways to reduce the risk of an ADA lawsuit is to ensure that customer service outlets are available—and able—to assist customers who encounter difficulty utilizing your website and to respond to customers’ accessibility concerns. Finally, accessibility should be integrated into a company’s infrastructure and decision-making processes. Vendors should be selected with an eye towards their ability to provide support for accessibility issues and legal compliance. Being proactive will not only minimize your litigation risk, but will widen your customer base to include the substantial number of disabled individuals who rely on websites and digital applications to purchase goods and services.
John Bosco is a partner in the Dallas, Texas office of León Cosgrove, LLC who focuses his practice on the defense and trial of complex labor and employment and accessibility matters. He has advised on ADA Title II, Title III, Rehabilitation Act and state accessibility laws; prevailed in defending numerous accessibility cases; provided compliance counseling; and negotiated favorable settlements in accessibility matters involving technology companies, healthcare providers, financial institutions, retailers, and hospitality clients. He co-authored Public Accommodations Under the Americans With Disabilities Act, Compliance and Litigation Manual, published by Thomson West.
Tiffany L. Anderson is an associate in the Miami, Florida office of León Cosgrove, LLC who focuses her practice on all aspects of employment litigation, including lawsuits alleging discrimination on the basis of race, national origin, age, disability, pregnancy, or religion, as well as harassment and retaliation claims. Tiffany also represents clients in litigation involving accessibility and accommodation claims under Title II and Title III of the ADA and state accessibility laws.
 The standards are expected to be adopted in April 2016. See http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201504&RIN=1190-AA61.
 See, e.g., New v. Lucky Brand Dungarees Stores, Inc., Statement of Interest of the United States, Case No. 14-CV-20574 (S.D. Fla.) (“[T]he Department has long considered websites to be covered by title III despite the fact that there are no specific technical requirements for websites currently in the regulation or ADA Standards.”).
 See Nat’l Ass’n of the Deaf v. M.I.T., Statement of Interest of the United States, Case No. 3:15-cv-300024 (D. Mass.).
 See, e.g., Settlement Agreement between the U.S. and edX Inc., available at http://www.ada.gov/edx_sa.htm; Settlement Agreement between the U.S. and Ahold U.S.A., Inc. and Peapod, LLC, available at http://www.justice.gov/file/163956/download; Settlement Agreement between the U.S. and the National Museum of Crime and Punishment, available at http://www.justice.gov/file/317596/download; Settlement Agreement between the U.S. and Carnival Corporation, available at http://www.ada.gov/carnival/carnival_sa.html.
 See, e.g., Guimaraes v. Nat’l Collegiate Athletic Ass’n, Case No. 15-CV-13378 (D. Mass.); Gross et al. v. Ascena Retail Grp., Case No. 15-CV-01214 (W.D. Penn.); Parrish v. Sears Holdings Corp., Case No. 15-CV-05622 (W.D. Wash.); Sipe v. Huntington Nat’l Bank, Case No. 15-CV-01083 (W.D. Penn.); Sipe v. Toys R Us, Inc., Case No. 15-CV-01037 (W.D. Penn.); Jahoda v. Foot Locker, Inc., Case No. 15-CV-1000 (W.D. Penn.); Jahoda v. Brooks Brothers, Inc., Case No. 15-CV-1050 (W.D. Penn.); Jahoda v. The Pep Boys, Case No. 15-CV-1124 (W.D. Penn.); Jahoda v. Hard Rock Café Int’l, Inc., Case No. 15-CV-1123 (W.D. Penn.); Nguyen v. RedBox Automated Retail, LLC, Case No. 15-CV-03100 (E.D. Penn.).