ADA Compliance and Defense Blog
See Part 2 – Rights to due process and standing requirements
See Part 3 – Website reservations: ADA litigation specific to hotels
This article was first published by Law360® Expert Analysis, © 2019 Portfolio Media Group Inc., and is reprinted with permission.
Part 1 – What you need to know about how we got here
When the Americans with Disabilities Act (ADA) was enacted by Congress in July 1990, the Internet was in its infancy and few, if any, considered its applicability to cyberspace. But in 2006, a California federal judge ruled that the ADA applied not just to brick and mortar establishments, but to websites: National Federation of the Blind v. Target Corp brought the ADA into the digital age. Application of the ADA to mobile apps would follow nearly a decade later.
In October of this year, thirteen years after Target, the U.S. Supreme Court’s declination to hear an appeal by Domino’s Pizza LLC to determine if it can be liable under the ADA for website accessibility, was a blow felt throughout the hospitality industry and others, which hoped to gain clarity on accessible website standards under the ADA. (See Robles v. Domino’s Pizza LLC.)
Following Ninth Circuit rulings, the decision reaffirms the principle that companies whose Internet activities are related to their brick and mortar stores may be held liable for violating the ADA even though the Department of Justice (DOJ) has yet to issue express website guidelines.
What’s going on?
Since Target, thousands of businesses – including hotels and restaurants – have been the subject of lawsuits claiming violations of Title III under the ADA because their websites and mobile applications are inaccessible to individuals who are blind and sight impaired and use screen reading software.
Screen reading software is an assistive technology that interacts with an application’s digital components – such as images, text, links and buttons – by converting these and other elements to audible synthesized speech outputs. For mobile apps, screen readers are integrated into both the iOS and Android operating systems. The screen reader integrated into iOS is “VoiceOver”; the screen reader integrated into Android is “TalkBack.” These screen readers allow mobile device users to interact with applications through gestures such as swipes and taps that do not depend on visual acuity.
Although these website accessibility lawsuits are filed nationwide, the plaintiffs’ bar is most active in California, New York, Florida and Illinois, as those states’ accessibility laws are more stringent than federal law. In California, New York, and Florida, to name a few, plaintiffs can obtain statutory damages without having to prove that they suffered actual damages.
For example, in California, under the Unruh Civil Rights Act, plaintiffs can claim a multiple of $4,000 minimum statutory damages, generally, per visit (or deterred visit) to a website, plus attorneys’ fees and litigation costs. However, one California court recently limited a plaintiff’s damages to one visit, though the plaintiff claimed to have visited the website nearly 50 times. It’s no surprise that an exploding cottage industry of ADA plaintiff law firms continues to thrive. More and more, those plaintiff firms are focusing on hotel website accessibility.
In addition, since Target, the DOJ and other agencies have imposed accessibility requirements for web content and services in Consent Decrees and Settlement Agreements, including with hospitality giant, Hilton International.
No government regulations
Almost everyone you talk to in the hospitality industry will agree that they want guests who are blind and have low vision to easily access their websites and mobile apps. But when they ask: “What should we do to achieve website compliance under the ADA?”, there are few definitive answers.
The business community, particularly those with establishments classified as “public accommodations” under Title III of the ADA, has long awaited for the DOJ to issue clearly defined regulations for website accessibility. They are still waiting.
The DOJ first announced plans to adopt web accessibility regulations in 2010 and, on November 25, 2014, during the Obama Administration, the DOJ Civil Rights Division issued an Advance Notice of Proposed Rule Making titled “Nondiscrimination on the Basis of Disability: Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations.” If such guidelines were adopted for state and local governmental entities, the DOJ proposed to adopt similar guidelines for the business sector.
While the DOJ subsequently withdrew its plan to issue website accessibility rules in December 2017, it clearly noted that public accommodations must effectively communicate with all customers including those who are blind, low visioned, or cognitively disabled and who use screen reading software to navigate the Internet.
It is widely believed that the DOJ’s intention was to follow the Web Accessibility Initiative of the World Wide Web Consortium (W3C), a non-government organization which has developed guidelines for voluntary website accessibility. The WCAG standards guide software developers to create web content and services which are more accessible to persons with vision-related disabilities. The current versions, WCAG 2.0 and 2.1, contain standards that each website should meet to conform to under one of three “success factors”: A, AA or AAA.
Currently, there are no explicit government published standards for website and mobile app compliance for the private sector, which has left courts around the nation to interpret how the ADA applies to commercial websites and mobile apps.
In part 2, we review significant website accessibility court decisions from 2019.
See all articles in this series:
Part 1 – What you need to know about how we got here
Part 2 – Rights to due process and standing requirements
Part 3 – Website reservations: ADA litigation specific to hotels
Martin H. Orlick is one of the top ADA defense lawyers in the country. He has helped hotels, restaurants, retailers, shopping centers, banks and other commercial property owners defend more than 600 ADA cases. In addition to defending lawsuits and governmental investigations, Marty’s team of ADA specialists focuses on enterprise-wide ADA compliance and litigation prevention, including facilities, website and operational compliance. Marty is the Chair of JMBM’s ADA Compliance & Defense Group, a Partner in JMBM’s Real Estate Group, and a member of the American College of Real Estate Lawyers (ACREL). For more information about ADA compliance and defense, contact Marty Orlick at 415.984.9667 or morlick@jmbm.com.