In today's technology-driven society, retailers are increasingly using the Internet to provide information, goods, and services to the public. While having a website is almost a mandatory aspect of operating a retail business, it's important to ensure that the website does not also market the business to potential lawsuits. Websites have become the new hotbed of litigation brought under the Americans with Disabilities Act (ADA) and retailers who are increasingly relying on their Web presence need to take note.
What Does the ADA Require?
Title III of the ADA prohibits disability discrimination by places of public accommodation, including retail stores and shopping centers.
When Congress enacted the ADA in 1990, the existence of the Internet and the pervasiveness it holds in today's society was all but unfathomable. As such, the ADA does not specifically address website accessibility. However, as Congress expressly stated when passing the ADA, "the types of accommodation and services provided to individuals with disabilities, under all of the titles of this bill, should keep pace with the rapidly changing technology of the times" and technological advances "may require public accommodations to provide auxiliary aids and services in the future which today would not be required."
Increasingly, plaintiffs' lawyers are claiming that publicly available websites are inaccessible to users with disabilities, thereby disadvantaging individuals with disabilities in a modern society that is largely driven by an electronic marketplace. How can websites be inaccessible? Many people with disabilities use "assistive technology" to enable them to use computers and access the Internet.
For example, individuals who are blind or have low vision may use screen readers – devices that speak the text on a monitor – to assist them in accessing a website's content. However, such users cannot fully access a site unless it is designed to work with the screen-reading software. Another example of an accessibility barrier that needs to be addressed is ensuring your individual website pages are coded so that users can navigate by means of a keyboard or single-switch access device alone, without need of a mouse. Users who cannot use a mouse with precision could find your website unnavigable without this design. Websites that do not accommodate assistive technology can create unnecessary barriers for users with disabilities, and help fuel website accessibility claims.
Recent Legal Ruling Provides Warning
Recently, a California superior court judge ruled in favor of a blind plaintiff who sued luggage retailer Colorado Bag'n Baggage, claiming that he was unable to shop online for the retailer's products because its website lacked screen-reading software to assist customers with disabilities.
In its March 2016 ruling for the plaintiff, the court noted that the customer had "presented sufficient evidence and legal argument to conclude Title III of the ADA applies to plaintiff's use of a website." The court noted that he properly demonstrated he "sought goods and services from a place of public accommodation" because he demonstrated a sufficient connection exists between the retail store and its website that directly affects a customer's ability to access goods and services.
The court ordered the retailer to pay the plaintiff $4,000 as a judgment for the ADA violation, in addition to paying for the plaintiff's attorney fees and costs. Further, the court ordered the retailer to take the necessary steps to make its website "readily accessible to and usable by visually impaired individuals." If it is unable or unwilling to do so, the court said that the company would need to terminate its website, which would be a death knell to most businesses.
As a result of this recent decision, coupled with the remaining uncertainty in the law, many plaintiffs' lawyers are seizing on the opportunity by sending demand letters and filing lawsuits.
Department of Justice Takes Strong Stance
The U.S. Department of Justice (DOJ), the agency responsible for implementing the ADA, has also taken the position that "the statute's broad and expansive nondiscrimination mandate reaches goods and services provided by covered entities on websites over the Internet." In 2010, the DOJ issued an Advance Notice of Proposed Rulemaking, reaffirming its longstanding position that the ADA applies to websites of public accommodations, and reiterating that the ADA should be interpreted to keep pace with the developing technologies.
The DOJ also set forth its position in two statements of interest that it filed in June 2015 in a federal lawsuit against two prominent academic institutions that failed to provide comprehensive captioning for online course materials. In its statements, the DOJ argues that existing case law and the proposed rulemaking commentary that supplements the ADA are sufficient justifications to require the universities to make their websites more accessible by captioning their online videos.
Thus, although it is currently anticipated that formal guidance from the DOJ on website accessibility will not be provided until at least 2018, the ADA still applies without such pending regulations.
How Can You Make Your Website More Accessible?
In preparation for the DOJ's new regulations, all website owners and operators should begin making their websites accessible to individuals with disabilities through features that facilitate easier navigation and are compatible with assistive technologies.
The DOJ has emphasized its interest in adopting the Web Content Accessibility Guidelines (WCAG) 2.0, a set of international standards outlining methods to make websites more accessible for individuals with disabilities, which many plaintiffs' lawyers also rely on in their settlements. You should therefore review WCAG 2.0 for guidance on making your website accessible for a variety of ADA-covered disabilities.
Conclusion
The bottom line is that businesses should anticipate receiving increased ADA scrutiny and challenge to their online activities. Taking the time to ensure that your website is accessible to individuals with disabilities will not only protect your business against the rising potential of lawsuits, but also open your doors to new customers and clients.
Previously published in Retailing Today - June 2016
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
