Articles Posted in Websites

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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. Continue ›

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When will businesses get clear direction on ADA website compliance?

On October 7, 2019, the U.S. Supreme Court declined to hear an appeal by Domino’s Pizza LLC, sending Domino’s back to the trial court to determine if it can be sued under the Americans with Disabilities Act (ADA) by a blind customer who alleged Domino’s website and mobile application were not accessible to people who are blind or sight impaired and use the website and mobile app with standard screen reading capabilities.

The high court’s refusal to accept certiorari in this case was a blow felt not only by Domino’s – but throughout the business community, which hoped to gain clarity on accessible website standards under the ADA.

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In September 2016, we published an alert that a group of plaintiff’s ADA lawyers had threatened a number of businesses – including hotels – with litigation claiming their websites failed to comply with “ADA Guidelines.”  (Read ADA Compliance & Defense Lawyer: ADA Website Accessibility Lawsuits Escalate.) These lawsuits have since been filed with greater frequency.

Since then, a number of threats have turned into lawsuits seeking injunctive relief (website accessibility), a multiple of $4,000 minimum statutory damages under California’s Unruh Civil Rights Act (per visit to the website or from being deterred from visiting the website), attorneys’ fees and litigation costs.

Years ago, the Department of Justice (“DOJ”) adopted rules requiring all federal agency websites to conform to the WCAG 2.0 A and AA Success Criteria as a means of providing accessible websites to persons who are blind, low vision, color blind or who suffer cognitive disabilities. In 2010, the DOJ issued a Notice Of Proposed Rulemaking (NOPR) stating that it intended to adopt formal ADA Guidelines for state and local government agencies to meet when designing websites. The DOJ intended to adopt the WCAG 2.0 A and AA Success Criteria for state and local government websites.  Justice then announced that it intended to adopt these same basic standards for private businesses’ websites.  But the DOJ withdrew its NOPR and has yet to issue final rules regarding web access standards for state and local agencies or private businesses.

ADA website lawsuit violates due process

Last week, in what is a ground breaking decision of particular importance to the hospitality industry, the U.S. District Court for the Central District of California threw out a serial plaintiff’s lawsuit which alleged that Domino’s Pizza’s website violated the Americans with Disabilities Act (ADA) and related California anti-discrimination laws by not conforming to the WCAG 2.0 A and AA Success Criteria. Continue ›

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Is your website accessible to the blind and vision impaired?

A version of this article was published by the California Bankers Association.

How would you react if you received a letter from a law firm alleging that your company’s website is in violation of the Americans with Disabilities Act (ADA) because it discriminates against persons who are visually disabled?

If your reaction is to take it seriously, you would be correct.

How would you react if you discovered a near-identical letter was sent to hundreds of other hotels, restaurants and other businesses – by the same law firm?

If your reaction is that you received a cookie-cutter letter by a plaintiff firm that is using a dragnet to identify possible defendants for lawsuits, you would also be correct.

How would you respond to the demand that you bring your website into compliance with international standards for web accessibility?

If you respond by picking up the phone to call experienced ADA legal counsel, you will be saving time and money.

What it’s all about

In January 2016, the law firm Carlson Lynch Sweet & Kilpela (CLSK) sent hundreds of near-identical form letters to national hotels, restaurants, financial institutions and other businesses, contending that the Department of Justice (DOJ) – the federal agency responsible for adopting ADA Standards – requires businesses to make their websites compliant with the ADA. (Note here that the DOJ has not formally adopted any specific website accessibility guidelines.)

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Soon businesses with an online presence will be required to make their websites accessible to persons with disabilities or face litigation in state and federal court. The Americans with Disabilities Act (ADA) already requires businesses with a physical presence to comply with exacting and numerous standards (e.g., door width, counter height, sidewalk slope, etc.)  The Department of Justice will soon expand these standards to include strict requirements for website accessibility. Here are five essential facts for any business with a website:

  • Some courts have interpreted the ADA as requiring web accessibility today. (g. National Federation of the Blind v. Target Corp., (ND CA 2006) 452 F. Supp. 2d 946).  Courts are divided on whether companies with an exclusively online presence must make their websites accessible.  Earlier this year, a Vermont District Court ruled that Scribd, a California-based digital library that operates reading subscriptions on its website and mobile apps, was required to comply with Title III of the ADA by making its website and mobile apps accessible to blind subscribers.  National Federation for the Blind v. Scribd, 2015 WL 1263336 (D. Vt. March 19, 2015).  More recently, the 9th Circuit Court of Appeals in Cullen v. Netflix, Inc., Case No. 5:11-cv-01199-EJD (2015) affirmed its prior ruling that online-based retailers without retail facilities do not have to make their websites accessible to blind customers under the current standards of the ADA. Courts are currently resolving differences while awaiting further DOJ action. 
  • Plaintiff-side law firms are sending complaint letters to businesses complaining of online discrimination and demanding payments of approximately $25,000. 
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Since at least 2000, the U.S. Department of Justice (DOJ) has been advocating standardized website development and content to promote access to blind and low vision internet users.  In 2013, the DOJ withdrew its proposed Advanced Notice of Proposed Rule Making (ANPRM) which would have established standardized internet protocols by adopting the Web Content Accessibility Guidelines (WCAG) 2.0.

In 2006, we reported on the landmark case National Federation of the Blind v. Target Corporation, regarding “cyber accessibility” (a term we coined). Target was the first case in which any court ruled that the ADA applied to a retail website. With limited exception, the few courts that had addressed the subject uniformly held that the ADA only applied to brick and mortar architectural barriers, not to internet retail channels (Access Now, Inc. v. Southwest Airlines.)

Target argued that it complied with the ADA because its retail stores were fully compliant and that its website channel was not covered by the ADA standards.  The Court disagreed.  Plaintiffs’ class certification motion was granted.  Target paid a hefty sum and implemented WCAG standards to make its website accessible to blind and low vision customers.  The Target decision was followed with Rendon v. Valleycrest Productions Ltd.  Since Target, the DOJ and other agencies have imposed accessibility requirements for web content and services in Consent Decrees and Settlement Agreements with such industry leaders as Amazon.com, Netflix, H&R Block, Hilton International and others.

Website standards are imminent

The DOJ’s issuance of website standards is not a matter of “if”, but “when.” The regulations will “establish requirements for making goods, services, facilities, privileges, accommodations, or advantages” offered by state and local government agencies and businesses via the Internet, “specifically at sites on the World Wide Web,” accessible to persons with disabilities.
On November 25, 2014, the DOJ Civil Rights Division issued its Advance Notice of Proposed Rule Making entitled “Nondiscrimination on the Basis of Disability: Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations.”  These revised regulations, when adopted, will implement web site development standards which the DOJ has been working on for nearly a decade.

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On May 2, 2012, Charles Schwab & Co. announced an initiative to make its website more accessible for all customers, particularly those who are blind or have sight disabilities. This high-profile development was part of the settlement of a claim by Kit Lau, a Charles Schwab customer for more than 25 years.

While many have focused on the Americans with Disabilities Act’s (ADA’s) ever-changing pool lift requirements, we continue to see the DOJ and private advocacy groups driving to enforce the original regulations promulgated 20 years ago under the ADA. As of December 31, 2011, more than 13,130 lawsuits had been filed under the ADA, and the trend continues to grow.

Charles Schwab settlement is one of 15 prominent web site settlements

Charles Schwab, one of the nation’s leading securities broker-dealers, and a disability rights advocacy attorney, announced last week that they settled a year-long claim by a blind customer that its website was inaccessible to blind, low vision and cognitively challenged customers. The structured negotiations concluded this dispute short of trial.

With this settlement, Charles Schwab joins a list of 15 prominent companies which have settled website accessibility complaints. Charles Schwab agreed that it will make its website more accessible and inclusive for all customers, and agreed to implement the Web Content Accessibility Guidelines (WCAG) Version 2.0 Level AA which will make its website navigable by disabled customers.

An informal complaint backed by the threat of litigation and administrative investigations was lodged with Charles Schwab by the lawyer for a blind day trader. The claimant was a long-time Schwab customer and herself a computer programmer. One morning, she found that she could no longer navigate the Schwab website using JAWS software and was prevented from making trades on-line. The JAWs software reads aloud the text of the page so blind and low vision customers can access the website.

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ADA Defense & Compliance Lawyer: ADA reservation system requirements

The US Department of Justice has revised the regulations implementing the Americans with Disabilities Act (ADA) for the first time in nearly 20 years. While the revisions to the ADA Regulations include broad changes in many areas, today’s blog focuses on the changes to Reservation Policies.

JMBM hotel and timeshare lawyer, David Sudeck informs us that the Department of Justice has received so many complaints concerning failed reservations, that the DOJ felt it necessary to include the changes to the law. Most of the complaints involve individuals who have reserved an accessible hotel room only to find upon check-in that the room they reserved was either not available or not accessible.

The changes to the reservation policies will go into effect on March 15, 2012 to allow properties time to comply with the new requirements. To understand the requirements, read on.
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Target Corporation was sued under the ADA for inaccessibility of its website

We gave you an early heads up about how lawsuits brought under the Americans With Disabilities Act (ADA) can target your website or online reservation system . . . and what you should do about it now. (See “How your company’s website can make you a target for ADA lawsuits”.)

Now there is much more.

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How can the ADA apply to web sites?

While most hoteliers are aware of how the ADA affects architectural barriers, paths of travel, parking spaces, swimming pools and even guests’ service animals, a recent court ruling has opened up an entirely new area to litigation: websites.

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 a San Francisco Federal judge’s recent decision not to dismiss a discrimination case against retailer Target Corporation has brought the issue to the forefront. Believed to be the first court ruling determining that the ADA’s architectural barrier requirements can apply to the Website of a private business, the stage is now set for increased ADA litigation involving Web accessibility.

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