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Can the Visually Impaired “See” Your Website? If Not – You May be Sued!

It seems odd that a company or business could be sued over its website not being able to be read by the visually-impaired, but more and more companies are facing lawsuits brought by the visually-impaired (and their lawyers of course)over such claims. Claims have also been brought by the hearing-impaired against companies with websites that make no accommodation for them.
Back in 2012, I wrote an article on this blog about lawyers using the Americans with Disabilities Act (ADA) to bring lawsuits against restaurants for not being wheelchair accessible. I pointed out that while the ADA is an important statute that has been tremendously successful in increasing access for the disabled to places of public accommodation, lawyers have taken the law and started a cottage industry of trolling businesses for failing to comply.

The trend has now moved on to include claims against websites. In 2016 over 250 lawsuits, most of them class actions, have been filed against companies alleging violations of the ADA for failure to maintain websites that are accessible to the blind, visually impaired, deaf and hearing-impaired. The trend is continuing into 2017 with over a dozen such lawsuit filed just yesterday. The steady shift in our economy from traditional brick-and-mortar stores to online commerce has brought increased attention to website accessibility. Companies must now ensure their websites are ADA compliant or expect to be hauled into Federal court by the handful of plaintiff’s law firms that are bringing these claims.

Title III of the ADA, passed in 1990, prohibits discrimination against the disabled, including the blind, vision impaired, deaf and hearing-impaired in places of public accommodation:

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.

While the law does not provide civil penalties for violations of the act, Congress thought it would be a good idea to let citizens act as “private attorneys general” authorizing the disabled to bring lawsuits when they were denied access to places of public accommodation due to their disabilities. The citizens would get no monetary award, but if they were successful, the business would have to change to make themselves ADA compliant. And to make sure that the disabled could get legal help for these lawsuits brought on behalf of the public good, Congress added a clause that would allow for recovery of legal fees for successful lawsuits! And that is why there has been such a proliferation of suits.

Courts have ruled that websites are places of accommodation and the vast majority of these cases settle quickly with a nice fee going to plaintiff’s counsel and the businesses making changes to their websites. However, a few companies have fought back and two recent court decisions may show that there is route to winning these lawsuits. In March of this year, Federal District Judge James Otero of the Central District of California dismissed a lawsuit by a blind plaintiff who claimed that he could not order pizza from the Domino’s website because it could not be accessed using his screen reader. Judge Otero held that the ADA does websites as places of public accommodations. However, he agreed with the defense counsel that Dominos had met its obligations under the law by providing 24/7 telephone access to blind customers. The court also held that requiring Dominos to have an accessible website would violate its constitutional right to due process since the Department of Justice has not issued any guidelines on compliance in this area. Judge Otero also pointed out that neither the law nor the regulations issued under the law currently require websites to be accessible, and that the DOJ had failed to issue any regulations on this topic. DOJ’s official statements state that (1) it was considering what legal standard of accessibility to adopt, and (2) telephonic access could be a lawful alternative to having an accessible website. Based on these two statements and the lack of clear guidance, the court held that due process concerns invoked the “primary jurisdiction” doctrine which “allows courts to stay proceedings or dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency.” This is a strong argument which should be raised by any company defending these claims although the ruling has no binding effect out of the Central District Court of California (and even there it is only of limited value since any judge hearing a case would be of the same level of court). However, as the first case of its kind to address the argument and rule on it, I think most Federal judges would give it weight and take a good long look at its reasoning.

In February of this 2017, Florida District Judge Joan Lenard dismissed plaintiff Andres Gomez’s ADA Title III website lawsuit claim with leave to amend because he had failed to allege that his ability to use the defendant retailer’s website prevented him from accessing its stores. Gomez and his attorneys had filed a series of similar lawsuits against a variety of retailers.Judge Lenard held that “[a]ll the ADA requires is that, if a retailer chooses to have a website, the website cannot impede a disabled person’s full use and enjoyment of the brick-and-mortar store. To survive a motion to dismiss, Plaintiff must claim an actual (not hypothetical) impediment to the use of Defendant’s retail location.” Gomez had alleged that he could not purchase products online, but did not claim that the website’s inaccessibility impeded his ability to go to a store.

Business facing these lawsuits should take note of these two decisions and be guided accordingly. They should set up 24/7 phone service to accommodate the visually-impaired. They should make sure their physical locations are accessible to the disabled and if sued they should make sure their lawyers are familiar with this area of law and raise the issues used successfully in the above two cases prior to paying over a large amount of money to plaintiff’s counsel. Its a brave new world out there and companies must make sure they and their counsel are properly prepared to face it.

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