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:
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:
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.