If you own a business and a website you need to be aware of a substantial increase in claims by disabled plaintiffs and their attorneys regarding website accessibility. The plaintiffs argue that businesses which offer goods and services to the public through websites are public accommodations that must comply with the general accessibility mandate of the Americans with Disabilities Act (“ADA”).
Unfortunately for businesses seeking guidance in what constitutes a legal technical standard for an “accessible” website, the Department of Justice (“DOJ”) has announced that it will not issue any regulations for public accommodations of websites until fiscal year 2018. As a result, businesses will now struggle to walk through a difficult minefield of issues such as:
- What constitutes an “accessible” website?
- Is third party software and content on the site required to be accessible?
- What happens if an upgrade to a site causes an occasional or unintended barrier to accessibility?
These are just a few of the major questions businesses will face.
However, despite these lingering questions, plaintiff attorneys are now flooding business owners with demand letters and lawsuits alleging that their websites are not accessible to plaintiffs with disabilities. We’ve had clients receive these demand letters and I know several other business law firms have reported their clients received such claims too. My best guess is that plaintiff attorneys will look at businesses with sales in excess of $10-15 million first and then work their way down.
So, what do you do if you receive a demand letter or lawsuit claiming your website is not accessible to those with disabilities? First and foremost, do not delay in contacting your legal counsel. Make sure your lawyer is familiar with the claims and understands the issues. You then will need to decide whether to fight the claims or to settle. In a very complex (and uncertain) area of the law, many businesses appear to be considering settlement because it is less expensive and brings greater certainty to the situation. There is another cost to consider and that is the potential black eye your business could receive if it is identified as a business that does not support access to disabled persons. Businesses such as Target and others were hit by substantial lawsuits. Target set up a $6 million settlement fund after initially litigating the case. The case, filed by the National Federation of the Blind, was a public relations nightmare for the company. And I guarantee you plaintiff attorneys understand this. It will be very interesting to see how these cases shake out as it appears numerous cases are being filed each month.
But even if you are going to settle a case, there will be a price to pay to bring your website into compliance. You should work with website experts that understand website accessibility for disabled persons. In our experience, most website developers and designers do not understand these issues, or at the very least, pay very little attention to these issues. Consequently, this is not something you want to leave to your typical website developer.