Commercial Websites Targeted For ADA Non-Compliance

By: Kelly H. Kolb, Buchanan Ingersoll Pooney PC

Title III of the Americans with Disabilities Act (“ADA”) requires that “places of public accommodation” be readily accessible to the disabled.  Title III covers, among other entities, “place[s] of lodging,” “establishment[s] serving food or drink,” and “other sales or rental establishment[s].”  Any retail or lodging establishment with a physical (i.e., brick and mortar) presence open to the public must be accessible to the disabled.

Websites Must Be ADA Compliant

While websites are not specifically mentioned in the ADA, the courts have determined that Title III’s accessibility requirements apply to commercial websites of places of public accommodation.  For example, Target’s website was recently found to have a sufficient connection with its stores to be subject to Title III.  Most courts have reasoned that website inaccessibility is the functional equivalent of inaccessibility to the physical store.  The Department of Justice (“DOJ”) has recently extended this reasoning to mobile apps, filing lawsuits against retailers with non-compliant mobile apps.

Why The Fuss?

Two years ago, as the first website ADA lawsuits surfaced in the Northeast, we began urging our clients with an online presence to audit their websites for ADA compliance.  Website ADA lawsuits have now reached South Florida.  Urban Outfitters was sued Monday in a class action alleging that its website is inaccessible to blind customers.  Other retailers sued recently include H&M, Tory Burch, Swatch, and Hugo Boss.

While the DOJ is empowered to seek civil penalties of up to $55,000 for the first violation and $110,000 for subsequent violations, the DOJ rarely pursues such relief.  Most ADA lawsuits are filed by “testers” – private citizens who seek out potential violators and who have a relationship with an attorney willing to file suit on their behalf.  Most ADA lawsuits seek only injunctive relief (requiring future ADA compliance) and legal fees.  These lawsuits are filed with no prior notice  – since the end game is the generation of recoverable legal fees, not compliance.

Compliance Details

In the abstract, a website’s software code must be written so that (for example) an epileptic can safely navigate the website without risk of seizure, or a blind person can use screen-reader software to submit online orders for goods and services.  Specifically, the DOJ requires compliance with a standard known as WCAG 2.0 Level AA – accessible at w3.org/TR/WCAG20.

While the details of WCAG 2.0 are beyond the scope of this article, there are several steps hotels, retailers and others should take:

Test your website for compliance by entering its url at wave.webaim.org.

• Engage a third party vendor to independently audit your website and identify any deficiencies and/or provide written confirmation of compliance.
• Invest in website archiving software which captures and stores your webpages in case you need to rebut a later allegation of past non-compliance.
• Repeat website audits every year to insure continued compliance as changes to your website are implemented.

Consider auditing your websites for ADA compliance now. Even if your website is not fully compliant before you are targeted, the existence of a written plan for compliance could be a complete defense to a lawsuit filed before full compliance is achieved.

Kolb is a shareholder with Buchanan Ingersoll Pooney PC and is a frequent author, contributor and lecturer on employment issues for publications and audiences across the country. kelly.kolb@bipc.com