Employment Law Update

Class Action Lawyers are Targeting the "Accessibility" of Web Sites Under the Americans with Disabilities Act – What Action Can Your Company Take Right Now?

The New Year has brought with it a rash of letters to local companies from class action counsel, threatening to take legal action on behalf of un-named and un-specified "disabled individuals throughout the United States who use the Internet." The gist of these demand letters, most sent by lawyers from California to concerns throughout the nation, is that your company should immediately undertake extensive and detailed changes to your business web site, freeze those changes in a consent decree entered by a court (so that any further modification or failure to meet its terms results in contempt of court, a fine, and possible jail time) – and, of course, to agree to pay the class-action lawyers their "attorney's fees and expenses," as embodied in a separate, "confidential" agreement. What's the deal?

The Americans with Disabilities Act (ADA) prohibits discrimination against individuals with disabilities. Title I of the Act prohibits discrimination in employment and is probably familiar to most businesses. Title II imposes obligations on state and local governments. Title III bars discrimination against individuals with disabilities in places of "public accommodation." For traditional brick-and-mortar places of business, Title III imposes some familiar requirements: set-aside parking spaces for handicapped plates; at least one wheelchair-accessible entrance; detailed bathroom construction specifications, and the like. How do web sites fit into the picture? It is surely true, as the renowned Judge Richard Posner from the federal appellate court in Chicago once noted, that a web site cannot refuse to sell products to a disabled customer.

But the larger question of what affirmative steps a business needs to take, to ensure that its web site is accessible to an individual with disabilities, has posed a more complex conceptual problem. The U.S. Department of Justice (DOJ), the agency charged with enforcing the law in this area, has promised to issue uniform federal regulations, so companies can know they are in compliance. But the ADA was passed in 1990; we do not have the DOJ regulations yet, and DOJ recently told us not to expect them this year (or, most probably, next year either). Courts across the nation are split as to whether a web site is a place of public accommodation: courts in Pennsylvania, California, Florida, and Ohio have held that Title III of the ADA is limited to "physical structures," while courts in Chicago and Vermont have held that web sites are places of "public accommodation" and must be accessible. Some courts look to the extent to which a customer is required to use the web site to access the products of the company; some courts ignore that factor. In Virginia, the one court to consider the issue in detail held that web sites are not covered by Title III – but that ruling was more than a decade ago. In other areas of the nation – New York, Maryland, D.C., North Carolina – we have vanishingly-little to no guidance from the courts. Given that the federal courts of appeals are split, this issue may well eventually be headed for the U.S. Supreme Court.

But that doesn't help us today. What are some practical steps a business can take today to minimize risk and maximize accessibility to its clients, members, and the public?

Consider a technical audit of your web site to determine whether it presents any particular accessibility problems. A number of third-party vendors offer these services.
Consider making sure your site complies with the Web Content Accessibility Guidelines ("WCAG"), version 2.0, to at least the AA level of accessibility. These guidelines do not set technical standards; rather, they evaluate whether the web site is compatible with assistive technology owned by the individual with disabilities. For example, is there code that prevents a client's software from reading the title of photographs? Or that requires the use of a mouse rather than a keyboard? (One court held that a web site could violate Title III if it was incompatible with screen reader software used by the blind.) Although there are no federal regulations yet, the Department of Justice has entered into several consent decrees which require the use of WCAG 2.0 AA Compliant software.
Don't panic. In many states, you may have a defense to a charge of inaccessibility, based on court decisions holding that Title III does not cover web sites. In addition, Congress intended Title III to be enforced primarily by the government, not by private suits. While a successful private plaintiff can get an injunction – an order requiring compliance – and attorney's fees, Title III does not let a private individual recover damages based on an inaccessible web site.

The goals of the ADA are of crucial importance, and we should all take material steps to ensure full access to cyberspace by all persons, including persons with disabilities. Taking some positive action now can help prevent your company from becoming a poster child for the issue – while the U.S. Supreme Court will eventually resolve the question, you don't want that to happen in your case, on your dime!