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Feb 2017
16
February 16, 2017

Is Your Website Putting Your Business at Risk?


Plaintiffs’ attorneys are trolling Michigan business websites for their next case – against you. Most of us know that Title III of the Americans with Disabilities Act (ADA) prohibits disability based discrimination in places of “public accommodation.” Businesses often consider ADA accessibility of their brick-and-mortar buildings and look at issues like floorplan layout, wheelchair access and physical barriers. But recently, plaintiffs’ attorneys have targeted business websites, claiming for ADA purposes that the sites are “public accommodations” and inaccessible to certain groups with disabilities.

The U.S. Department of Justice (DOJ), which enforces the ADA, supports these plaintiffs. The DOJ has made it clear that it believes the ADA applies to websites. In particular, the DOJ has said websites that allow customers to purchase goods, participate in services or interact in some way with the business are subject to enforcement for failing to offer accessible options to disabled persons. Generally, the DOJ believes that the websites must be designed and coded to allow access by blind and deaf consumers who use the sites with the assistance of electronic reader devices and software.  

To make things more difficult, there is no law or regulation in place setting forth mandatory website accessibility requirements. In 2010, the DOJ announced that it intended to adopt new regulations for website accessibility. But after numerous delays, those regulations still don’t exist. Thanks to a recent executive order from President Trump intended to reduce regulation and control regulatory costs, the likelihood of any regulations under the current Administration is remote. Without formal regulations, the DOJ has spent the last few years endorsing the Web Content Accessibility Guidelines (WCAG) 2.0 AA internet industry guidelines published by the World Wide Web Consortium (W3C). The DOJ (and plaintiffs’ attorneys) treat these guidelines as if they are mandatory:
 
  • In 2013, the National Federation of the Blind (NFB), two individual plaintiffs and the DOJ sued H&R Block, claiming its tax preparation website wasn’t accessible to blind customers. In March 2014, H&R Block entered into a consent decree requiring it to implement the WCAG 2.0 into its website, provide additional customer support for disabled patrons and submit to oversight by the NFB/DOJ including ongoing website testing. H&R Block was also required to pay $45,000 to the individual plaintiffs and $55,000 to the DOJ.
     
  • In April 2015, edX, Inc., an online college course provider, entered into a settlement agreement with the DOJ regarding its mobile app and website after the DOJ claimed that they failed to conform with WCAG standards. The settlement agreement required edX to comply with WCAG standards within eighteen months, hire website accessibility coordinators and consultants, provide additional accessibility training to its employees and to submit to regular audits of its web services.
     
  • Winn-Dixie, a large supermarket chain, was sued because its website allegedly failed to comply with WCAG and violated ADA. Winn-Dixie argued that the ADA only applies to its physical locations, not its website. In December 2016, the DOJ intervened on behalf of the plaintiffs and told the court that it believes the ADA applies to Winn-Dixie’s website.

Plaintiffs’ attorneys have latched onto the DOJ’s support for the WCAG guidelines and ramped up the number of ADA lawsuits and demands against businesses. Thousands of retail stores, hotels, universities, banks, restaurants and other businesses have received demand letters or have been sued. The letters and lawsuits typically demand monetary damages, stipulated injunctive relief, payment of attorneys’ fees and costs and a website overhaul and monitoring (by the plaintiffs’ attorneys) paid for by the business.

Plaintiffs’ firms are now targeting Michigan businesses and are not limiting themselves to large companies or specific industries. Response to these threats needs to be swift, tactical and carefully considered.

What you should do now:
 
  • Engage experienced outside legal counsel to guide an evaluation of your website and your risk. Doing so will help keep your internal communications about the website confidential and protected from disclosure to plaintiff attorneys.
  • With your legal counsel, evaluate the website for accessibility.
  • Through your investigation, consider potential website changes.

If you receive a demand letter or would like to discuss how to make your website less of a target, our team is ready to help. Members of Warner Norcross & Judd’s Regulatory & Compliance Group specialize in ADA website compliance and are currently advising clients on these issues.

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