9/17/2019

Addressing Website Accessibility Claims

Shakedown settlements in an unsettled legal landscape

By Steven C. Stern , Brittany A. Tarazona

Website accessibility lawsuits are the latest in Americans with Disabilities Act (ADA) “drive-by” litigation, largely because the law on ADA website accessibility is developing, but unsettled. According to a report from Seyfarth Shaw, entitled, “Number of Federal Website Accessibility Lawsuits Nearly Triple,” more than 2,250 website accessibility cases were filed in federal courts in 2018. In 2019’s first quarter, the report says over 396 were filed, a 31 percent increase over the same period in 2018. While most claims involve retailers, both private and public entities are at risk. Since 2011, more than 142 municipalities were sued for website accessibility non-compliance, according to Governing Magazine.

Current Legal Landscape

In these lawsuits, plaintiffs typically assert that websites are inaccessible to disabled users, usually because they are incompatible with screen-reader software for visually impaired visitors, or do not include closed captioning for videos for the hearing impaired.

ADA Title II, 42 U.S.C. § 12132, prohibits disability-based discrimination by state and local governments. To establish a claim, qualified individuals with disabilities must show, by reason of such disabilities, that they were excluded from participation in or denied the benefits of “services, programs, or activities of a public entity.” Although the ADA does not explicitly mention the internet, the Department of Justice’s (DOJ) position is that Title II applies to internet website access. Specifically, “Public entities that choose to provide services through web-based applications…or that communicate with their constituents or provide information through the internet must ensure that individuals with disabilities have equal access to such services,” unless doing so would result in undue burden. (28 C.F.R. Pt. 35, App. A.)

Comparatively, Title III, 42 U.S.C. § 12182, prohibits disability-based discrimination for “places of public accommodations,” such as restaurants and retail stores. The DOJ posits that “Title III covers access to websites of public accommodation.” (28 C.F.R. § Pt. 36, App. A.) But courts are split regarding whether websites are “places of public accommodation” for purposes of Title III. Some hold that Title III does not apply to websites because the statute requires a “physical” structure; others find Title III applies to websites if the website has a “nexus” to a physical place of public accommodation. Some even say that Title III applies even if the website has no nexus to a physical place.

Website Content Accessibility Guidelines

Entities seeking to avoid risk should promptly revise their websites to follow the Website Content Accessibility Guidelines (WCAG) 2.0, a series of internationally recognized guidelines produced by World Wide Web Consortium (W3C), with varying levels of compliance.

Despite prior plans to do so, the DOJ has yet to promulgate regulations specifying the features that websites must have to comply with the ADA, but points to the WCAG as guidance. At this point, the DOJ appears to be focused less on specific regulations, and more on the broader issue of whether—even without technical requirements—a disabled individual has access to an entity’s “services, programs, or activities,” through its website.

Courts also utilize the WCAG in assessing these cases, and often turn to them for both compliance mandates and as a remedy for alleged violations.

For example, the Southern District of New York recently dismissed a complaint in which the defendant took steps to comply with the WCAG. In Diaz v. Kroger Co., the plaintiff alleged that the defendant failed to make its website fully accessible to visually impaired people. The defendant moved to dismiss, and submitted an employee affidavit declaring that it had remedied the alleged violations, that no additional access barriers to the website existed, and that the defendant was committed to ensuring access going forward. It was important that the defendant undertook compliance with WCAG standards before the lawsuit was filed, remained compliant with those standards, and had no intention of regressing to non-compliance. The court found that, because website modifications were “not merely proposed, but completed,” the plaintiff’s claims were moot.

Additional examples include Andrews v. Blick Art Materials, in which Judge Weinstein in the Eastern District of New York approved a settlement of a website accessibility claim in which the defendant had “already begun working to bring its website into compliance with the WCAG 2.0 Level AA guidelines,” and Gil v. Winn-Dixie Stores Inc., in which the Southern District of Florida issued an injunction and recognized “[r]emediation measures in conformity with the WCAG 2.0 will provide the plaintiff and other visually impaired consumers with the ability to access the defendant’s website.”

Proposed Notice Requirement

Many website accessibility litigants are serial plaintiffs, swapping out defendants’ names and addresses, or other minor information, and filing hundreds of lawsuits at a time utilizing the same or similar complaints. Defendants must choose between paying an early settlement or spending considerably more money and time to defend themselves in court and bring themselves into compliance.

Many claims settle out of court for this reason. In our experience, defendants consider the early settlement a shakedown that costs them thousands in damages and attorneys’ fees, but view them as necessary to avoid the cost, burden, and risk of litigation.

Even municipalities often pay significant settlements instead of facing litigation. For example, earlier this year, Florida’s Flagler County settled a claim for $15,700 (the plaintiff received $1,200, and his attorneys received $14,500). In June 2019, another Florida county, Charlotte, agreed to a $10,500 settlement for a web accessibility claim.

Some lawmakers have begun to consider controlling the growing number of ADA problem lawsuits. In New York, state legislators have formed a committee to establish regulations for website compliance, which may include a “notice-and-cure” approach.

Although not specific to website accessibility cases, in February 2018, the U.S. House of Representatives passed the ADA Education and Reform Act (H.R. 620). The proposed law requires plaintiffs with claims alleging architectural barriers to public accommodations to first provide defendants with written notice, 60 days to respond, and then 60 days to make substantial progress toward remedying violations. Proponents of the bill say the notice-and-cure provision would eliminate drive-by lawsuits and provide businesses an opportunity to remedy deficiencies, which would increase ADA compliance. Because the bill applies to “architectural” barriers, it is not clear if the notice requirements would affect website accessibility claims. But the public policy behind providing notice and a chance to cure seem equally applicable.

Implementing a notice requirement for website accessibility claims is a good idea. Notice would not only require plaintiffs to actually identify the alleged violations of a defendant’s website before filing a cookie-cutter complaint, but would also slow the number of claims and give defendants an opportunity to investigate and correct alleged violations before facing shakedown settlements.



Steven C. Stern is founding partner of Sokoloff Stern LLP. sstern@sokoloffstern.com

Brittany A. Tarazona is an associate at Sokoloff Stern LLP. btarazona@sokoloffstern.com

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