New Justice Department guidance explains businesses' role in making sure websites can be used by everyone.
Last year saw an upswing in people filing lawsuits under Title III of the Americans with Disabilities Act (ADA), which prohibits businesses open to the public from discriminating against people with disabilities—whether in their brick-and-mortar buildings or their online sites.
Since 2013, law firm Seyfarth Shaw has tracked the number of lawsuits filed under the ADA each year. Their data shows that more than 11,400 people filed an ADA Title III lawsuit in 2021—a 4 percent increase from 2020 and a 320 percent increase since 2013.
"We have seen the number of lawsuits filed in federal courts alleging violations of Title III increase almost every year since we started tracking in 2013," said Kristina Launey, a litigator with Seyfarth Shaw. "There are thousands of lawsuits filed each year alleging websites and mobile applications are not coded so that they are accessible to individuals who are blind."
California's 5,930 filings accounted for over half of the total nationwide and more than the other 49 states combined. New York was second with 2,774 lawsuits, and Florida was third with just over 1,050 cases.
Seyfarth Shaw surmises that California's Unruh Civil Rights Act contributed to the high number of filings in the state. This law provides protection from discrimination by all business establishments in California, including housing and public accommodations.
Plaintiffs can add a state law discrimination claim under the Unruh Act and receive $4,000 in statutory damages for every incident, Launey said.
"While the Unruh Act makes a violation of Title III also a violation of the Unruh Act, a claim for violation of the Unruh Act can be made independent of any underlying ADA violation, provided intentional discrimination is also shown," she explained.
Website Inaccessibility Issues
In 2020, more than 2,500 lawsuits were filed in federal court claiming websites were not designed to be accessible to people with disabilities, in violation of Title III. While Seyfarth Shaw has yet to finalize the 2021 figures, Launey said many law firms filed dozens, if not hundreds, of website accessibility lawsuits.
She also explained that plaintiffs' lawyers filed hundreds of lawsuits on a new theory that hotels violated the ADA by failing to disclose sufficient information about their accessible rooms on reservations websites.
"This sort of lawsuit was virtually nonexistent in 2013," she said. "But it has grown in numbers year after year since we started tracking website accessibility lawsuit filing numbers in 2017."
For years, the ADA did not explicitly address online compliance, even after undergoing several amendments in a more Web-oriented era. The courts have been responsible for determining how ADA standards apply to websites.
Presently, the 9th and 11th Circuits require a website to be connected to a physical place of business. In the 1st Circuit, businesses are not mandated to have a physical location serving customers to be covered; district courts have applied this precedent to cover Web-only businesses, Launey said.
ADA Updates Web Accessibility Guidance
On March 18, the Department of Justice released guidance on Web accessibility in which the agency stated that the ADA's requirements apply to all the goods, services, privileges or activities offered by public accommodations, including those offered on websites.
The agency listed characteristics of websites inaccessible to people with disabilities, including:
- Poor color contrast.
- Reliance on color to provide information.
- Lack of text alternatives, or alt-text, on images.
- No captions on videos.
- Inaccessible online forms.
- Mouse-only navigation rather than keyboard navigation.
The guidance said that businesses open to the public must take steps to provide appropriate communication aids and services, often called "auxiliary aids and services," where necessary to make sure they effectively communicate with individuals with disabilities.
"Even though businesses and state and local governments have flexibility in how they comply with the ADA's general requirements of nondiscrimination and effective communication, they still must ensure that the programs, services, and goods that they provide to the public—including those provided online—are accessible to people with disabilities," the guidance stated.
The Need for Accessible Websites
People who are visually impaired rely on websites that are coded to meet their needs. They often use a screen-reading tool that translates the material audibly. Inaccessible websites largely prevent people who are blind or have low vision from accessing goods and services.
"This isn't a trivial matter when you think about how many services and products for both consumers and employees operate partly or primarily online or through apps," said Sarah Malaier, senior advisor for public policy and research at the American Foundation for the Blind (AFB). "It's everything from shopping online to communications, to applying for jobs, filling out timesheets, accessing health benefits, searching databases, and so on."
A 2019 report by accessibility software company Deque Systems and Nucleus Research showed that about 70 percent of businesses in e-commerce, news and information, and government categories had significant accessibility issues for people who are visually impaired.
Internet users who are blind abandoned two Internet transactions per month because of website inaccessibility and called a company's customer service department once a week to navigate around the accessibilities, the report found.
ADA Requires Help for Employees, Too
While Title III of the ADA covers public businesses, Title I applies to employers with at least 15 employees. And statistics show that workplaces remain inaccessible to people who are blind.
For example, AFB recently released its workplace technology study that explored the experiences of over 300 people who were blind, had low vision or were deafblind in the workplace. Among respondents:
- 48 percent experienced accessibility challenges when filling out onboarding paperwork electronically.
- 50 percent reported that their employer adopted new hardware or software that was not accessible.
- 25 percent disagreed that most online training they are required to complete is accessible.
- 18 percent of the 58 self-employed participants reported they had been passed up for a contract or had their contract terminated because they were unable to use inaccessible software.
Respondents reported feeling stress and frustration. They also experienced diminished productivity, a loss of privacy and dismissive attitudes from colleagues relating to technology-related inaccessibility in the workplace, Malaier said.
"Employers can and should make their digital spaces—websites, applications, and other software—accessible," she said. "The best place to start is often with their own websites, but they should also demand accessibility from their vendors."
The Society for Human Resource Management has provided tips for making websites more accessible for people with disabilities as well as resources that educate employers on ADA laws, including Q&A's and informational guides.
Our firm is committed to delivering efficient and cost-effective legal services focusing on communication, responsiveness, and attention to detail, but we are not experts in website law or ADA issues. We are presenting this article as a public service for our clients. For more information about our services, contact us today!
This article was written by Matt Gonzalez, and brought to you by the Ronald J. Fichera Law Firm, where our mission is to provide trusted, professional legal services and strategic advice to assist our clients in their personal and business matters.
If you are sued for a violation of the ADA or The Unruh Act, immediately contact an attorney with experience defending these cases to help you develop the right strategy for your situation—whether that is fighting the case or an early settlement, which can almost often be accomplished. Our Law Firm can assist you in finding the right attorney for your situation and can help you navigate this complex landscape.
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