How to Manage & Defend Website Accessibility Claims Presenter: - PowerPoint PPT Presentation

How to Manage & Defend Website Accessibility Claims Presenter: Mark S. Sidoti, Esq., Gibbons PC March 26, 2019

Agenda • The nature of ADA website accessibility claims, including their statutory and regulatory basis • How ADA website accessibility claims are being used by the plaintiffs’ bar • How the courts are dealing with website accessibility claims • Practical strategies for defending against website accessibility claims

The Nature of ADA Website Accessibility Claims

Statutory and Regulatory Framework • Title III of the Americans with Disabilities Act (ADA) requires places of public accommodation, such as hotels, shopping centers, retailers, health care providers, restaurants, and private educational institutions, to maintain facilities accessible to the disabled. • To be covered by the ADA, an entity must simply fit the description above without regard to the number of employees, annual revenue, type of goods or services sold, etc. • Title III of the ADA states in pertinent part: "No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to) or operates a place of public accommodation." 42 U.S.C. §12182(a).

Statutory and Regulatory Framework (cont.) • Under Title III, discrimination includes “a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden .” 42 U.S.C. §12182(b)(2)(A)(iii). • Similarly, §508 of the Workforce Rehabilitation Act requires that all federal agencies and federally funded programs reasonably accommodate people with disabilities in both internal and external communications. 29 U.S.C. § 794d.

Statutory and Regulatory Framework (cont.) • Though the ADA's statutory language does not address websites, the U.S. Department of Justice (DOJ), the agency responsible for regulating and enforcing the ADA, considers websites offering goods or services to consumers to be "places of public accommodation,” which must be accessible to the disabled. See 75 Fed. Reg. 43, 463. • The DOJ regulations implementing the ADA list examples of auxiliary aids and services, including Braille materials and displays, screen reader software, and other means of making electronic information available to hearing and visually impaired individuals. See 28 C.F.R. 36.303(b)(2).

Statutory and Regulatory Framework (cont.) • The ADA and its implementing regulations can be enforced through private lawsuits and separately by the DOJ. 42 U.S.C. §12188; 28 C.F.R. § 36.501. The DOJ may also intervene in private lawsuits. • Private litigants may seek injunctive relief only, but a successful plaintiff can seek recovery of attorney’s fees and costs. 42 U.S.C. §12205. • Remedies sought by the DOJ are broader and may include injunctive relief, attorneys’ fees and costs, and civil money penalties. 42 U.S.C. § 12188(b)(2)(A), (B); 28 C.F.R. § 36.504(a)(1), (2). For violations that occur on or after April 28, 2014, civil money penalties may be as much as $75,000 for the first violation or $150,000 for any subsequent violation. See 28 C.F.R. § 36.504(a)(3).

Statutory and Regulatory Framework (cont.) • In 2010, the DOJ issued an Advance Notice of Proposed Rulemaking (ANPRM) to consider whether to revise its ADA Title III regulations to establish requirements for website accessibility. 75 Fed. Reg. 43460. The notice sought input on, among other things, whether the DOJ should adopt the Web Content Accessibility Guidelines (WCAG) 2.0’s ‘Level AA Success Criteria’ for entities covered by Titles II and III of the ADA. • The WCAG 2.0 are the most recent and updated version of a set of international voluntary guidelines for web accessibility created by the Web Accessibility Initiative of the World Wide Web Consortium. • The DOJ announced in the fall of 2015 that it planned to delay the issuance of final regulations for public accomodation websites until 2018, but on Dec 26, 2017 withdraw its ANPRM and stated that it will NOT be issuing final regulations, leaving courts (and companies) in limbo.

How ADA Website Accessibility Claims Are Being Used By The Plaintiffs’ Bar

How ADA Website Accessibility Claims Are Being Used By The Plaintiffs’ Bar • Website accessibility lawsuits and threatened claims have become big business for the plaintiffs’ bar. • In 2018, well over 2000 ADA website accessibility lawsuits were filed in the U.S. • Mostly in NY, FL, PA and CA. 1500 cases filed in the New York in 2018. • Many of the complaints are generated by a handful of plaintiffs and law firms, sometimes labeled “ADA trolls.” • In 2016, a single law firm filed almost 50 percent of the website accessibility lawsuits. Recently many more firms have joined the fray. • No industry is immune – schools, banks, retailers, etc.

How ADA Website Accessibility Claims Are Being Used By The Plaintiffs’ Bar • Federal website accessibility lawsuits assert fairly standard allegations. Hearing or visually impaired plaintiffs allege they use screen reading software or other assistive technologies to access website content, yet digital barriers on the defendants’ websites limit their access. • The complaints usually itemize the specific barriers encountered on the websites, oftentimes supported by analyses of deficiencies by purported website accessibility and compliance experts. Therefore, website accessibility claims often involve significant expert consultation and analysis. • Sometimes, a website accessibility lawsuit is preceded by a detailed letter to the target entity, which outlines the alleged website accessibility violations, summarizes the law, details the expert's assessment of the purported violations, and demands pre-suit settlement in the form of injunctive relief and attorney fees.

The Current Practice • In recent years, plaintiffs have moved away from the demand letter approach. • In 2017 and 2018, most claims have been initiated by the filing of a lawsuit seeking injunctive relief (i.e. remediation of the website) and counsel fees. • Many recent claims, particularly in 2018, have been styled as class actions, seeking relief on behalf of a putative class of vision impaired individuals.

The Current Practice • While the claims generally have some degree of merit, deficiencies are typically magnified towards the end of extracting pre-suit settlements from companies reluctant to incur the burden of litigation and legal fees over what is considered a "fixable" issue. • In order to defend the claim, a website accessibility expert often is required, the cost of which is an additional incentive to settle pre-litigation.

Why these claims work for the Plaintiffs Bar • They assert boilerplate claims that are sympathetic, inexpensive to pursue and difficult to defend. • The claims are often “back burnered” by companies with more pressing legal and business challenges. • Claims not worth the investment of significant defense costs. • Plaintiffs’ counsel know that most websites are not compliant with WCAG 2.0, something easily determined by remote website evaluation.

The Growing Trend of Follow-On Claims • Companies are being sued multiple times for the same website. • Plaintiffs counsel claim to monitor dockets to avoid this, but it is increasing because: • More counsel are filing these claims and losing track of who has been sued • Companies cannot remediate fast enough to prevent follow on claims during the initial remediation period • Plaintiffs counsel are intentionally seeking to hit companies more than once on related or linked sites

How The Courts Are Dealing With Website Accessibility Claims

How the Courts Are Dealing With Website Accessibility Claims • In the absence of formal DOJ regulations, the courts have been left to decide whether the ADA applies to website accessibility. • The federal courts are split on the issue of whether only a physical structure may be a place of public accommodation. • Case law is continuing to develop in this area.