For over 25 years, the Americans with Disabilities Act (ADA) has required business owners offering public accommodations reassess accessibility to the disabled. Usually, being named as a defendant in a federal lawsuit challenging parking spaces, restroom sizes and furnishings, counter heights and other similar structural barriers forces business owners to comply with the ADA. The fact is that most businesses are susceptible to these lawsuits given the rise of the so-called “drive by” phenomenon, where the same plaintiff, with the assistance of the same attorney, files multiple lawsuits against all businesses in the same shopping center, same geographic care or same industry.
Enter the 21st century, and we are seeing a new frontier for legal challenges under the ADA: websites. Many business owners fail to realize that specific accessibility standards apply to websites as well, which is why attorneys representing sight and hearing-impaired and other physically disabled users are suing businesses whose websites fail to comply with the current web content accessibility guidelines (WCAG). Consequently, businesses whose websites may not be accessible to the disabled would be smart to consider remediation before getting sued.
According to Jeremy Horelick, Vice President of ADA Site Compliance:
The cost of proper remediation can range from tens of thousands of dollars to the high-six-figures. Big companies like Target, which spent nearly $10 million in restitution and legal fees in a landmark case brought by the National Federation of the Blind, can bear that financial hit. But small and mid-market businesses often cannot. For them, getting ahead of the compliance curve is a must, especially now that the DOJ has withdrawn its long-awaited regulations on the matter. The lack of clarity means a near-certain uptick in the pace of forthcoming cases.
One recent decision in the Southern District of Florida is Gil v. Winn-Dixie Stores, Inc. In that case, the plaintiff argued that defendant’s website was inaccessible to the visually impaired. Title III of the ADA prohibits the owner of a place of public accommodation from discriminating “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 . . . .” 42 U.S.C. § 12182(a). The court stated that when a website is heavily integrated with physical store locations, the website is a service of a public accommodation and covered by the ADA. As a result, the court found that the defendant’s website was not accessible to visually impaired individuals who must use screen readers to view the website and granted an injunction to ensure the website was in compliance with the ADA.
Federal lawsuits are costly and time-consuming, which is why smart business owners should act proactively: remediation before litigation. Horelick suggests hiring a qualified third-party auditor to scan your site and determine the scope of work to be done as this will establish an objective baseline. Also, avoid free online diagnostic tools, which only catch 20-30% of known failures at best. Businesses that rely solely on free tools may get a false sense of compliance with the WCAG.
For any questions about the ADA and this new frontier of ADA compliance, please contact Board Certified Labor and Employment Partner Ellen Leibovitch.
ASSOULINE & BERLOWE, P.A.
1801 N. Military Trail, Suite 160
Boca Raton, Florida 33431
Main: (561) 361-6566
Fax: (561) 361-6466
Email: EML@assoulineberlowe.com
http://www.assoulineberlowe.com/
Intellectual Property, Labor & Employment Law, International Dispute Resolution, Bankruptcy, Commercial Litigation, Real Estate, and Corporate Law
Miami • Ft. Lauderdale • Boca Raton
Assouline & Berlowe, P.A. Blog 