The Online World at Risk of ADA Lawsuits

[author: Kent Bernhard*, Freelance Writer]

Lawsuits and enforcement actions over websites’ accessibility to disabled people have swamped businesses, as well as colleges and universities over the past several years. 

“We’ve seen such a spike in the last few years in threatened litigation and enforcement actions,” says Susan Deniker, an attorney with the law firm Steptoe & Johnson PLLC who focuses on labor and employment law, litigation, and education law. “We’ve seen this hit many different industries. Any business that has a public website faces these issues.”

According to CBS News, hundreds of companies, including such major corporations as Nike and Burger King, face class-action lawsuits under the Americans with Disabilities Act over the accessibility of their websites. Deniker says that colleges and universities have also become targets as the internet has become more important to their missions.

"While retail establishments have had the most filings, those in the health care industry, education, restaurant and nonprofit sectors, in addition to others, have had to defend these lawsuits," Kristen Perkins, an attorney with Hinshaw & Culbertson in Florida, told CBS.

Title III of the ADA makes it illegal to discriminate against a disabled person, “in full and equal enjoyment of accommodations.” That provision initially applied to accommodations in the physical world such as wheelchair ramps. But much of the world has moved online since the ADA was passed in 1990.

As the internet has become more central to everything from how we gather information to how we purchase goods the law hasn’t kept up. Though the Obama Justice Department promised new rules applying to the internet, those rules were delayed in 2016. The department has since issued a withdrawal of its intent to make new rules, according to Lexology.

“For years, the Department of Justice has talked about rule making,” Deniker says. “We still don’t have any regulations.”

In the absence of set rules from regulators, World Wide Web Consortium (W3C), an international consortium that develops web standards, has issued voluntary guidelines for accessibility. The guidelines include such elements as providing text alternatives to non-text content, including content that can be presented in multiple formats, and providing keyboard navigation in addition to navigation by cursor.

Judges have ruled both for and against plaintiffs claiming the ADA applies to websites. “It’s been a little bit of a guessing game,” says Deniker. “This has been a situation where we see the law lags a little bit behind technology.”

Last year, a federal district judge in Florida ruled that supermarket chain Winn-Dixie violated the ADA by failing to make its website accessible to blind people. Earlier this year, a federal district court in Virginia dismissed a suit against Northwest Federal Credit Union, indicating that a website is not a place of public accommodation. “Courts have been split,” Deniker says.

Businesses haven’t been the only ones to face suits. Colleges and universities including Harvard, MIT and the University of California at Berkeley have also been targeted, the New York Times reports.

The internet has become increasingly important in higher education, from marketing to admissions to billing and online classes. That importance has opened colleges and universities up to potential liability when it comes to making their websites accessible.

“As more and more students are aware of their rights, and as websites have become so much of what universities now focus on, in their marketing materials for example, it’s not surprising to me that there will be an increase in these types of lawsuits,” Arlene Kanter, director of the Disability Law and Policy Program at Syracuse University’s law school, told the New York Times.

For universities and others, the best defense against the possibility of a lawsuit is to include accessibility in a website to begin with. That, though, isn’t always simple.

“As websites become more complex … it becomes more difficult,” Deniker says. “Depending upon the complexity of a website, it can be a lot of work to bring that website into compliance.”