Under Title III, no individual may be discriminated against on the basis of disability with regards to the full and equal enjoyment of the goods, services, facilities, or accommodations of any place of public accommodation by any person who owns, leases, or operates a place of public accommodation. Public accommodations include most places of lodging (such as inns and hotels), recreation, transportation, education, and dining, along with stores, care providers, and places of public displays.
Since March 15, 2012, ADA compliance with the 2010 Standards will be required for new construction and alterations. In the period between September 15, 2010 and March 15, 2012, covered entities may choose between the 1991 Standards ADA Compliance (without the elevator exemption for Title II facilities), the Uniform Federal Accessibility Standards (Title II facilities only), and the 2010 Standards ADA Compliance.
On September 25, 2018, Assistant Attorney General Stephen E. Boyd, sent a letter in response to a June 20, 2018 letter from a bi-partisan group of 103 members of the U.S. House of Representatives, requesting clarity on “unresolved questions about the applicability of the ADA to websites” which have “created a liability hazard that directly affects businesses in our states….” The DoJ responded:
While an ADA retaliation claim does not warrant compensatory and punitive damages, lawyers are able to pursue compensation for their client’s legal fees, which may range from such amounts as $25,000 to astonishing digits. The court may also issue an injunction for the defendant to make their website accessible to people with disabilities by a specified date. In other cases, the defendant may be forced to pay a civil penalty.
Seyfarth’s ADA Title III team consists of attorneys with extensive experience in ADA Title III litigation located in many offices across the United States, including California where plaintiffs are most active. With additional litigators admitted to practice in virtually every jurisdiction in the country, we have the resources to defend our clients against lawsuits and investigations on a nationwide basis and provide consistent and efficient service in national engagements. We have successfully defended against or resolved hundreds of lawsuits brought under Title III of the ADA and applicable state laws.
In 1986, the National Council on Disability had recommended the enactment of an Americans with Disabilities Act (ADA) and drafted the first version of the bill which was introduced in the House and Senate in 1988. The final version of the bill was signed into law on July 26, 1990, by President George H. W. Bush. It was later amended in 2008 and signed by President George W. Bush with changes effective as of January 1, 2009.
You may have noticed a common theme among these cases. Most of these cases’ plaintiffs were visually impaired individuals that couldn’t use their screen reading software with a website. It’s vital to note that disabilities extend well beyond blind individuals and all companies should adhere to all-encompassing best practices as it relates to ADA website compliance.
Of the 814 federal cases, New York and Florida led the way with more than 335 and 325 cases, respectively. Surprisingly, California only had nine new website accessibility lawsuits in 2017, most likely because plaintiffs filed in state court. Federal courts in Arizona (6), Georgia (9), Illinois (10), Massachusetts (15), New Hampshire (2), Michigan (1), New Jersey (4), Ohio (8), Pennsylvania (58), Puerto Rico (1), Texas (7), and Virginia (24) also had their share of website accessibility lawsuits.
Develop a plan for making your existing web content accessible. Describe your plan on an accessible webpage, and encourage input on how accessibility can be improved. Let visitors to your website know about the standards or guidelines that you are using to make your website accessible. When setting timeframes for accessibility modifications to your website, make more popular webpages a priority.
Web designers often design in such a way that does not allow the user to adjust font size or color. While they may be protecting their brand, they are also inhibiting some users. Many visually impaired need to use high contrast color settings or very large fonts to read a website. Don't design your website in a way that makes it impossible for them to do this.
Resolution: Claimant called for a permanent injunction against Fox News, requiring them to take all steps necessary to make its website fully accessible and conform to accessibility standards. Burbon also sought for compensatory, statutory and punitive damages for violations of New York State Human Rights Law and Civil Rights Law, court costs and attorneys’ fees, all with pre- and post-judgment interest. The parties reached a website ADA settlement agreement and the case was dismissed.
Navigable: Content that’s repeated on multiple pages can be easily skipped. All pages have informative titles, headings, and labels that describe the page’s content and hierarchy. Navigating the page must take place sequentially, in a meaningful order that preserves relationships on the page. All link text is descriptive in order to make clear where the link will take users. If users are navigating via a keyboard, the current focus of the keyboard is always highlighted and visible.
Because web designers tend to work as freelancers on a project basis, they must be excellent communicators, willing to manage their own work, and available on your schedule. Some critical skills, such as working collaboratively and responding enthusiastically to feedback, aren’t core to good web design, but make working with a web designer much easier. Finally, look for a web designer who has cross-functional knowledge, such as understanding marketing and conversion rate optimization in addition to web design.
Many people with disabilities use “assistive technology” to enable them to use computers and access the Internet. Blind people who cannot see computer monitors may use screen readers – devices that speak the text that would normally appear on a monitor. People who have difficulty using a computer mouse can use voice recognition software to control their computers with verbal commands. People with other types of disabilities may use still other kinds of assistive technology. New and innovative assistive technologies are being introduced every day.
The General Services Administration hosts an online course for web developers interested in accessible web design. This program was developed in conjunction with the Access Board, the Department of Justice, and the Department of Education and provides an interactive demonstration of how to build accessible web pages. This course is available at www.section508.gov, which also provides information about the Federal government’s initiative to make its electronic and information technology accessible to people with disabilities.
The attorneys' fees provision of Title III does provide incentive for lawyers to specialize and engage in serial ADA litigation, but a disabled plaintiff does not obtain financial reward from attorneys' fees unless they act as their own attorney, or as mentioned above, a disabled plaintiff resides in a state that provides for minimum compensation and court fees in lawsuits. Moreover, there may be a benefit to these "private attorneys general" who identify and compel the correction of illegal conditions: they may increase the number of public accommodations accessible to persons with disabilities. "Civil rights law depends heavily on private enforcement. Moreover, the inclusion of penalties and damages is the driving force that facilitates voluntary compliance with the ADA." Courts have noted:
1:15 PM, Nov. 12, 2018: This story incorrectly says that nearly 5,000 ADA lawsuits were filed in federal court for alleged website violations in the first six months of 2018 and that 10,000 were projected to be filed by year’s end, up 30% from 2017. Those numbers actually refer to all ADA lawsuits for disability discrimination involving public accommodation filed in that period. Of those suits, lawsuits alleging website accessibility violations totaled 1,053 in the first six months, a number that is projected to rise to 2,000 by year’s end, up 90% from 2017.
“I would really like to fight it, but it just comes down to finances,” he said, estimating that he could be forced to pay up to $25,000 in damages, plus lawyer fees, if he fights the suit and loses. In the meantime, several pages of the hotel’s website have been replaced with plain type because “no access is equal access for everyone, per the ADA requirements,” the site notes.
How much their services cost. One of the most important things to determine is how much you’re willing to spend on a website, and then take note of how much each agency charges. The sentiment holds true that you typically get what you pay for — if a web design agency is charging dirt cheap for a design, you probably won’t be happy with the results. There is definitely room to have a budget, but keep in mind what you’ll generally need to pay for a high-quality website.
I recently finished a training in ADA compliance for websites. It was illuminating and daunting, as I realizated that there’s a lot of work to be done. It also reiterated—in no uncertain terms—a gospel I’ve been preaching for several years now. Sites need to be accessible for everyone on every platform. Previously I was just focusing on responsive sites (sites that reformat for the device used, such as a phone or tablet.) Since responsive sites are de rigueur these days, I’d like to focus on your site’s accessibility…can it be accessed by people with disabilities? This includes screen readers and other technology. It’s not just a nice thing, it’s a civil law.
Peter is Founder and CEO of Blue Interactive Agency, a full service digital marketing agency. With a passion for online marketing, Peter enjoys analyzing digital strategies and offering his unique view on how effective they are. Having a track record of successfully commercializing digital properties, Peter is always looking for the next challenge to help a company succeed online. In his spare time, Peter maintains a personal blog which focuses on his gastronome adventures.
The courts are split regarding whether Title III’s definition of “public accommodations” is limited to physical spaces. Courts within the First, Second, and Seventh Circuit Courts of Appeals have found that a website can be a place of public accommodation independent of any connection to a physical space. Carparts Distrib. Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, Inc., 37 F.3d 12, 19 (1st Cir. 1994); Nat’l Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196, 200 (D. Mass. 2012); Nat’l Fed’n of the Blind v. Scribd Inc., 97 F. Supp. 3d 565, 576 (D. Vt. 2015); Andrews v. Blick Art Materials, LLC, 268 F. Supp. 3d 381, 393 (E.D.N.Y. 2017); Morgan v. Joint Admin. Bd., Ret. Plan of Pillsbury Co. & Am. Fed’n of Grain Millers, AFL-CIO-CLC, 268 F.3d 456, 459 (7th Cir. 2001); Doe v. Mut. of Omaha Ins. Co., 179 F.3d 557, 558 (7th Cir. 1999). The Third, Sixth, Ninth, and Eleventh Circuit Courts of Appeals have held that places of public accommodation must be physical places, but that goods and services provided by a public accommodation (which may include through websites) may fall within the ADA if they have a sufficient nexus to a physical location. Gil v. Winn-Dixie Stores, Inc., 257 F. Supp. 3d 1340, 1349 (S.D. Fla. 2017); Haynes v. Dunkin’ Donuts LLC, 2018 WL 3634720, at *2 (11th Cir. July 31, 2018); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000); Earll v. eBay, Inc., 599 F. App’x 695, 696 (9th Cir. 2015); Ford v. Schering-Plough Corp., 145 F.3d 601, 614 (3d Cir. 1998); Peoples v. Discover Fin. Servs., Inc., 387 F. App’x 179, 183 (3d Cir. 2010); Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1010 (6th Cir. 1997)).
The landscape of disabled access litigation related to online services has significantly changed and expanded over the past decade. Initially, the internet was an area of little concern as courts uniformly held that the ADA applied to "brick and mortar" facilities, not to cyberspace. This has changed and online accessibility is presently, and will continue to be, an area of significant investigation and litigation.
Title II prohibits disability discrimination by all public entities at the local level, e.g., school district, municipal, city, or county, and at state level. Public entities must comply with Title II regulations by the U.S. Department of Justice. These regulations cover access to all programs and services offered by the entity. Access includes physical access described in the ADA Standards for Accessible Design and programmatic access that might be obstructed by discriminatory policies or procedures of the entity.
If you do get sued, if you immediately remediate your website, you may be able to get the lawsuit dismissed on mootness (there’s no longer anything in dispute, i.e. plaintiffs are arguing your website is inaccessible but you’ve already made it accessible). This definitely does not mean you should wait to fix your website but it does mean you may have an out.