The percentage of commerce that is transacted online, as opposed to in "brick and mortar" stores, has skyrocketed in recent years. And just as stores in a shopping plaza need to be accessible to someone with difficulty walking, businesses are discovering that their websites also need to be accessible to clients with disabilities—specifically, those with visual difficulties.
It's not simply a matter of losing a little business if a potential customer is unable to navigate a website. Visually-impaired website users have been suing retailers under the Americans with Disabilities Act (ADA), alleging violations of their civil rights. Targets of these lawsuits have included the Home Depot, J.C. Penney, and the National Basketball Association.
Naturally, it would be helpful for retailers and other businesses to consult and comply with existing regulations on this issue. Unfortunately, the U.S. Department of Justice (DOJ) doesn't expect to publish website accessibility regulations until 2018. For the moment, disability law experts looking to mitigate their clients' risk are in a situation something akin to laying train track ahead of an oncoming train.
Title III of the ADA, 42 U.S.C. §12182(a), prohibits discrimination in the full and equal enjoyment of public accommodations on the basis of disability. This is a fairly broad mandate, and it is unclear whether websites are considered "public accommodations" that fall within the purview of Title III.
The current uncertainty in the legal landscape places businesses in an awkward position. Lawsuits and demand letters continue to mount. But without guidance as to what measures will be required for accessibility, retailers may resist making changes to enhance accessibility, lest more costly modifications be required once regulations are published.
While the DOJ's initial position appeared to be that website accessibility wasn't critical so long as alternate means of accessing a retailer existed, more recent indications have appeared to support the position of individuals with disabilities suing for website accessibility. With the somewhat nebulous requirement of the ADA, which arguably creates a cause of action for visually-impaired website users, and the lack of regulatory guidance and case law, businesses can incur significant legal costs to defend themselves in these matters. Technology has quite simply outstripped legislation in this area.
The World Wide Web Consortium (W3C) has provided a modicum of guidance for businesses. Their recommendations include:
Larger companies should include accessibility in their website policies and develop procedures for complying with these policies. Smaller companies with fewer resources and less complex sites should consider setting them up with a tool that offers prompts and recommendations regarding accessibility. WordPress is one such option.
As commerce is increasingly conducted online, it's reasonable to conclude that accessibility lawsuits will be more and more common. Insurers should be alert to the possibility that business clients who are sued regarding website accessibility are likely to present claims to their insurers, on the theory that the requirement of accessibility to the blind is an unforeseen event. Companies being pressured to update their websites for accessibility may in turn pressure their insurers to defend them in lawsuits and indemnify them for the cost of website revision.
Some good news: a bit of encouraging case law has begun to emerge. In an Arkansas federal case regarding website accessibility, a retailer of consumer products with more than two dozen stores throughout the country filed a declaratory judgment action against a disabled person whose lawyers had sent a letter to the retailer alleging that its website had numerous "accessibility failures." The retailer maintained that its website was not in violation of the ADA because it could not be considered a "place of public accommodation" under the Act, a term the Act intended to refer only to a physical location sited on real property and not websites or other forms of electronic media.
In an effort to halt the litigation of this issue, the disabled person's counsel twice filed motions to dismiss the declaratory judgment complaint on the basis that the law was contrary to the retailer's position. Both motions to dismiss were denied. In her third attempt to have the lawsuit dismissed, the disabled person included a release of all of her current and future claims against the retailer. The federal district court concluded that the disabled person had, in fact, waived all of her rights to sue the retailer thereby making any ruling on the declaratory judgment action an advisory opinion. Despite the court agreeing with the retailer that it would be helpful for the retailer to have a ruling on whether its website violated the ADA, it granted the disabled person's third motion to dismiss ending the case. Companies who find themselves in a similar position to this retailer may want to consider adopting a similar strategy to slow down the onslaught of claims coming from very aggressive plaintiff-oriented law firms.