by Peter Turner and David V. Croft
The COVID-19 pandemic, coupled with government quarantine mandates, has forced most Americans to work, shop, interact, learn, and, ultimately, live more so in an online world than ever before.
Regarding websites of companies doing business on the internet, individual and class action complaints are being filed in large numbers against all types of businesses in federal courts across the country under the Americans with Disabilities Act (the “ADA”). More specifically, plaintiff’s attorneys representing visually impaired/blind individuals are filing these ADA lawsuits in large numbers alleging that websites qualify as “public accommodations” under the ADA. These plaintiffs are alleging that the defendant business’ website does not support “screen reader” software used by visually impaired individuals to navigate the internet and that the failure to do so violates the ADA.
To provide a little more background, the international website standards organization, the World Wide Web Consortium (“W3C”) has published Web Content Accessibility Guidelines (“WCAG”). The most recent version — WCAG 2.1, sets forth guidelines for making websites accessible to blind and visually impaired people. Plaintiff’s attorneys are arguing that business’ websites that are not WCAG 2.1 compliant violate the ADA.
In general, these cases have merit. One area where the federal circuits are split is whether a fully virtual company with no physical location is subject to the ADA. However, the Second Circuit has found that a website can be a “place of public accommodation independent of any connection to a physical space.” Andrews v. Blick Art Materials, LLC, 268 F. Supp. 3d 381, 393 (E.D.N.Y. 2017). Last October, the U.S. Supreme Court rejected an appeal by Domino’s Pizza in Robles v. Domino’s Pizza to hear whether a blind man’s failure to be able to order a pizza from its website violated the ADA. The Supreme Court’s rejection left in place a ruling against Domino’s Pizza.
These rulings mean ADA website accessibility lawsuits are becoming increasingly difficult to defeat at the pleading stage. Visually impaired individuals and possibly law firms representing them are trolling the internet looking for non-compliant websites.
Because of the cost of the defense and potential damages, it is recommended that you immediately contact your website administrator/designer and inquire whether your website is WCAG 2.1 compliant. If not, we recommend that you have the website modified to be ADA compliant.
This is also a good time to review your cybersecurity policies, technology and, insurance. We are seeing an increase in breaches into systems, wire fraud, and phishing emails. We can assist you in a cybersecurity review. If you have any questions regarding any of the foregoing, please contact your Meyers Roman attorney.
This Client Alert is a summary prepared for general informational purposes and is not intended or meant to constitute a legal opinion or legal advice from Meyers Roman Friedberg & Lewis or any of its attorneys.