Is Any Website Safe from an ADA Compliant Lawsuit?

Courtesy of Creative Commons Images
By Hector Cisneros

There is a famous line in Shakespeare’s play Henry the VI, that says “Kill all the Lawyers”. This is what half the business owners say when I tell them that businesses are being sued for ADA website compliance issues. The other half try and stick their head in the sand and say, that’s impossible, or I’m too small for them to come after me. When I first read about these ADA compliance lawsuits, I was shocked. As I dug deeper, I found the growing number of lawsuits troubling and very scary as I pictured the tremendous cost that businesses worldwide would incur. Because this issue is complex, I will break this subject down into two articles. This is the first installment which will address the problem. The second will address methods and tools to achieve compliance. In this episode of Working the Web to Win, we will provide the truth about this impending legal epidemic and provide much-needed clarity as to where the tsunami of lawsuits is headed. So, break out your digital Clarence Darrow and get ready to learn how this legal quagmire is already taking its toll.
  

Several years ago, businesses online faced a sea change when web traffic moved primarily from desktop computers to mobile devices. At that time, most businesses ignored these changes. However, the businesses that embraced change quickly garnered the traffic and loyalty of the ever-growing multitude of online mobile users. Even today, a large majority of websites are still not fully mobile-friendly. Of course, there was not any direct, immediate need to change because the loss of business was gradual. Also, there wasn’t any law (other than the law of the fittest) forcing a business to evolve and become mobile friendly. In our article called “Are You Prepared for Mobilgeddon?” we discussed this issue in detail. Over the last eight years, we have written more than a dozen articles about the importance of SEO factors and staying on top of what Google and other Search Engines are doing to rank businesses. One such article called “Is Your Website a Serial Killer?” discussed how even creating clone websites could negatively affect your organic ranking.

Now, ambitious law firms have taken up the mantle of a few ADA plaintiffs to go after websites that do not provide equal accessibility for blind and deaf individuals. The Department of Justice (DOJ) was trying to come up with a set of standards over the last several years, but it wasn’t until June 13, 2017, when the first lawsuit was actually won by a plaintiff. That’s when things started to get really scary.


Watch this short video on ADA compliance

In a Forbes.com article called; “First-Of-Its-Kind Trial Goes Plaintiff's Way; Winn-Dixie Must Update Website For The Blind.” It states: In what is believed to be the first lawsuit of its kind to go to trial, a Florida federal judge has ruled for a blind man who has filed nearly 70 lawsuits alleging that various companies’ websites violate the Americans with Disabilities Act.     On June 12, Judge Robert Scola, of the Southern District of Florida, decided that Winn-Dixie’s website is heavily integrated with the company’s physical store locations, making it subject to the ADA. His decision will require the company to update its site.     Plaintiff Juan Carlos Gil is not entitled to damages, but his attorneys will soon submit a request for fees. The company has set aside $250,000 to update the site, though testimony during the trial indicated it will not cost nearly that much.”

What bothers me the most about these lawsuits is that the plaintiff is not entitled to damages (because they haven’t been damaged)! Yet, this one particular plaintiff filed 70 lawsuits! The sheer number of lawsuits makes me think he may have been encouraged to do so by his attorneys. I have no evidence of this; it’s just how I feel. The lawyers on the other hand, who are representing this plaintiff, are entitled to their legal fees if they win any of these cases (in other words, instead of Shakespeare’s “kill all the lawyers,” the lawyers are the ones making a killing).

Courtesy of The Blue Diamond Gallery
Last year was a tough year for businesses being sued for ADA compliance. In an article called “2017 Website Accessibility Lawsuit Recap: A Tough Year for Businesses”, it states that there were 814 lawsuits filed in the US with Florida and New York leading the way. Here’s just a snippet of what that article says.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.”

It appears that most of these lawsuits are trying to make a direct connection between the physical location of the businesses and the company's website. Many are targeting eCommerce websites as well.  However, not all courts have agreed that this connection is required to take place.  

In an article in litigation trends in Thomson Reuters called; “Litigation trend: Website accessibility under the ADA”, states that the Department of Justice maintains that all Government, Education, and Businesses that are providers of the public must make their websites accessible. Here is a direct quote. “The DOJ’s position is that all public accommodations must make their websites accessible under current law, even in the absence of a nexus to a physical location and even in the absence of specific regulations. See Letter from Deval L. Patrick, Assistant Attorney General to Senator Tom Harkin (Sept. 9, 1996) (“Covered entities that use the Internet for communications regarding their programs, goods, or services must be prepared to offer those communications through accessible means as well.”). The DOJ takes the view that “[T]itle III reaches the Web sites of entities that provide goods or services that fall within the 12 categories of ‘public accommodations’ as defined by the statute and regulations.” Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations, 75 Fed. Reg. 43460-01 (July 26, 2010).”
Courtesy of Wikimedia Commons

The 12 categories the DOJ is referring to include a wide list of business and government entities. I found a comprehensive listing in an article entitled “Getting Ahead of ADA Website Accessibility Lawsuits.” Here are the categories as listed in that article.

A.      “an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor;
B.      a restaurant, bar, or other establishment serving food or drink;
C.      a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;
D.     an auditorium, convention center, lecture hall, or other place of public gathering;
E.      a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;
F.      a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;
G.     a terminal, depot, or other station used for specified public transportation;
H.     a museum, library, gallery, or other place of public display or collection;
I.        a park, zoo, amusement park, or other place of recreation;
J.       a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;
K.      a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and
L.      a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.”

Courtesy of Wikimedia Commons
The WC3 has created a set of guidelines as to what ADA website accessibility should include. In the WC3 checklist, (aka Web Content Accessibility Guidelines 2.0); they provide 64 guidelines for webmasters to follow when creating a website. However, these regulations are still up in the air. No court has ruled that these are the only rules and that they must be followed in all cases. There have been lawsuits that have been dismissed because no “Nexus” has been established”. In some of these cases, technical errors were made during the filing. Other cases have contended that “no official web regulations or standards have been established” even though the DOJ was just about to adopt WCAG 2.0 guidelines. 

The 2016 election changes the rules for the worse and has made things even more muddled. When Donald Trump took office, he instituted an executive order that essentially froze any new regulations imposed on businesses and other entities in the US. You would think this would make things better for businesses with regard to these ADA lawsuits, but the opposite is true.

Courtesy of Wikipedia
In an article called; “Web Accessibility Lawsuits Set to Increase Under Trump”, it states that; “As a prerequisite for introducing any new regulation, or the amendment of an existing one, President Trump’s executive order requires that all branches to identify at least two existing regulations that are to be eliminated or “replaced” by the new. While there is provision for cases where it is not legally possible to do so, it is to be expected that for any regulation to be passed at least two will have to fall away.   Furthermore, the cost of newly implemented or amended regulations is expected to remain “no greater than zero” for the fiscal year 2017. This is once again to be attained by eliminating (and therefore redirecting) the funds for two previous regulations. For example, in order to impose a $1 Billion expenditure regulation, the federal branch wishing to implement the regulation must be able to replace two existing regulations that have a combined cost of no less than $1 Billion so as to cover the new regulation’s costs.”

This action has actually left us in a situation where no definitive rules have been put in place. This has increased the number of lawsuits because the courts don’t have a clear sense of what should be dismissed and what should move forward. 
  
Courtesy of WC3.org Website
To date, there are still no fully automated comprehensive tools to help webmasters implement the WCAG 2.0 guideline. So far, the best way is to achieve compliance is a combination of automated tools and to go line by line and look for problems and try to meet the guidelines (this assumes you understand what the guidelines mean). Remember that the DOJ hasn’t set a definitive policy yet because of the new executive order punt put in place by President Trump. However, they have stated that the ADA laws do apply to all websites. In my next article called “Methods and Tools to Help you Achieve an ADA Compliant Websites,” I will cover some of the methods and tools available to help webmasters and website owners achieve a higher level of ADA compliance. This is important because if you have a fairly high level of compliance, you're less likely to become a target of an ADA lawsuit.

From a business perspective, it’s bad enough when you lose a patron because of a disability access issue, but to then be sued by them, just adds insult to injury. On top of that, to be sued for unknown, unclarified laws, which have never been applied to the web, flies in the face of common sense, bad taste and a really bad trend for business.

Courtesy of Obama White House
The whole idea of businesses being sued over unclear regulations is abhorrent to me. I have nothing against people with special needs. I am the proud father of a special needs son, and I look out for his needs and make sure others are not stepping on his rights. However, I am appalled at how some people (mostly lawyers) have used the ADA laws to go after educational institutions, large corporations, and businesses as a way to get rich.  I feel that some legal establishments are acting even more egregiously by advising plaintiffs to file dozens of lawsuits where the plaintiff is not entitled to any damages, but the lawyers get to cleanup on legal fees. This, in my opinion, is a travesty of justice and a distortion of what the ADA law was meant to provide. I have included links to several important articles in this blogpost. I have also included a list of articles that I recommend you read below. There are even more articles on our notes page so that you can further educate yourself on this troubling subject. Here is my article list.

It is my recommendation that every business have their website evaluated to determine what level of ADA compliance their website has and needs. While at it, you should also determine if your website is also mobile-friendly per Google standards. Being forewarned with this knowledge, a business can budget for updates and prepare for the changes that are coming including those soon to be implemented by law. Today, there are hundreds of millions of websites that don’t meet either of these standards. It would be much easier to have your webmaster implement these guidelines in phases that to try and make all the changes at once (especially since the definitive guidelines have not yet been established).

That’s my opinion; I look forward to reading yours.

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This article provides an overview of the growing problem of ADA Website lawsuits occurring in the US. It lists many examples of lawsuits that have been won and lost by the plaintiffs and provide links to WC3 Web Content Accessibility Guidelines 2.0 and links to more than a dozen other articles addressing this subject. It also precedes another article that provides information on Methods and Tools to Help you Achieve an ADA Compliant Websites.

If you feel your business could use some help with its marketing, contact us at 904-410-2091. You can also fill out the form in the sidebar of this blog where we will provide a free marketing analysis to help you get better results.  Our claimed to fame is that we are one of a few companies who actually provide real guarantees.

If you found this article useful, please share it with friends, family, and co-workers. I recommend checking out the links on the blog, along with checking out other related articles on our Show Notes Page.  Also, don’t forget to listen to the BlogTalkRadio show on this subject.  If you have a related useful comment or opinion about this article, leave it in the comment section of this blog. Also, don’t forget to plus us, on Google+ and share us on Facebook, Twitter, and LinkedIn as well.



Hector Cisneros is COO and Director of Social Media Marketing at Working the Web to Win, an award-winning Internet marketing company based in Jacksonville, Florida.  He is also co-host of the weekly Internet radio show, "Working the Web to Win" on BlogTalkRadio.com, which airs every Tuesday at 4 p.m. Eastern. Hector is a syndicated writer and published author of “60 Seconds to Success.” 

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