Website Accessibility & ADA Lawsuit Update for Small Business Owners
Problems (most notably lawsuits) arising from the interplay between website accessibility for the disabled and the Americans with Disabilities Act (“ADA”) continue to threaten small business websites in 2018 as in years past. As we near the halfway point of 2018, there have been several recent developments on this issue worth noting.
Bipartisan Congressional Backlash to Website Accessibility Lawsuits Reaches DOJ
On June 20th, a bipartisan contingent of 103 members of the House of Representatives sent a letter to Attorney General Jeff Sessions calling on the Department of Justice to “state publicly that private legal action under the ADA with respect to websites is unfair and violates basic due process principles in the absence of clear statutory authority and issuance by the department of a final rule establishing website accessibility standards.”
Congress is undoubtedly feeling the heat from businesses to counter the burgeoning number of website accessibility lawsuits. The letter noted that “businesses of every shape and size throughout the country are being threatened with legal action by private plaintiffs for unsubstantiated violations of the ADA” and that “in most cases these suits are filed for the purpose of reaching a financial settlement and little or nothing to improve website accessibility.”
The DOJ has not issued regulations concerning website accessibility, and while for many years it contemplated weighing in on the topic, the issue has since been removed from consideration. Thus, the Congressmen signing on to the letter urged the Department to “provide guidance and clarity with regard to website accessibility under the…ADA.”
Updated Web Content Accessibility Guidelines (“WCAG”) Released
The accessibility standards relied on by courts in the absence of guidance from the DOJ received a long-overdue update this month. On June 5th, an industry group of website accessibility experts called the World Wide Web Consortium (W3C) released WCAG 2.1, which augments the prior 2.0 standards issued in 2008. The new standards add 17 additional criteria addressing accessibility issues; all criteria from WCAG 2.0 remain in 2.1.
Noteworthy among these additions are standards related to mobile apps, which at the time of the 2.0 guidelines in 2008 were not nearly as ubiquitous as they are now. Highlights of the new criteria on mobile apps include:
- Guidance on user interactions based on touch;
- The need for apps to handle more complex gestures; and
- The need to avoid unintentional activation of interfaces
Other additions in WCAG 2.1 focus on helping low vision users, and specifically extend graphics content and text/layout customization requirements. Users with cognitive and learning disabilities are helped as well. For example, more information about the specific use of input controls is required, as well as more support for timeouts due to inactivity.
Recent California Court Ruling Negates Alternatives to Website ADA Compliance
A visually impaired plaintiff recently won a summary judgment ruling in Los Angeles Superior Court against the owners of the Whisper Lounge for failing to comply with the ADA’s requirement of providing “full and equal enjoyment of … any place of public accommodation.”
The defendants argued that in lieu of obtaining information through its website, the plaintiff could have called or emailed the business. However, the court rejected this argument, ruling that email and telephone options do not provide the immediate, “equal enjoyment of the website” required by the ADA, and instead limit the impaired to access during business hours only.
This case highlights the danger posed by such lawsuits to small business websites because it shows that plaintiffs are successfully targeting smaller internet “fish” as well as bigger companies with an online presence. The only silver lining in this case may be that the plaintiff was limited by the court to just $4000 in damages, but the small business in the case was still forced to incur legal fees to defend against the suit.
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