February 15, 2019
What do Beyonce’s Company, Playboy, Tesla, and Williams-Sonoma have in common? They have all been recently sued by visually impaired plaintiffs in New York federal court for websites that allegedly violate the American Disabilities Act (ADA) and similar state statutes. The allegations focus on features, which are allegedly missing from the defendants’ websites, that assist visually impaired individuals with viewing and interacting with the sites. These cases are less about the facts and the law and more about the quick settlements that can be extracted from allegedly non-compliant defendants. In fact, two separate plaintiffs have filed over 50 of these cases in the last year alone. It’s a race to the courthouse.
To summarize the allegations, visually impaired users utilize screen-reading software that transforms written text and commands into audible information that can be used to view and interact with websites. But for this screen-reading software to operate properly, the information must be capable of being rendered into text. Even non-text elements such as pictures, videos, title frames, and forms can be processed by this screen-reading software if the proper software code is embedded in the website. The corresponding guidelines that plaintiffs rely upon in these lawsuits are found in version 2.0 of the Web Content Accessibility Guidelines (“WCAG 2.0”).
The reason that these cases are being filed in New York is that prior rulings there suggest that a business website may be a “public accommodation” under the ADA, and therefore, blind or visually impaired users have a right to enjoy the facilities, goods, and services of the site. A recent Ninth Circuit Court of Appeals decision that came to the same conclusion may lead to a flood of these cases in California as well. However, these lawsuits are less about forcing the defendants to provide these accommodations and more about collecting settlement dollars. These cases generally settle quickly for minimal amounts and the defendant is allowed a time period to comply with the WCAG 2.0 guidelines.
So if you get sued because your website allegedly violates the ADA, don’t fret. The lawsuit will likely be over soon. And here are a few tips for avoiding these lawsuits or at least making them less painful to your business.
- Avoid a Lawsuit – Ensure that your website is compliant with WCAG 2.0, which can be done in-house or with a third-party website design company. The plaintiffs and attorneys that are filing these cases are searching for non-compliance with this guideline, so you may be able to avoid a lawsuit if you are compliant.
- Blame the Website Designer – If your website designer promised that your website would be ADA compliant or WCAG 2.0 compliant, then you may be able to shift the liability. Review your existing contract and see if you are indemnified for non-compliance. If you are entering into a new contract, you may want to add an indemnification provision to cover this contingency.
- File an Insurance Claim – Because insurance companies have insured for this type of loss in the past, review your insurance policy to see if you are covered. It can be difficult to determine coverage from a business insurance policy, but it would be best if your carrier picks up the tab.
Dustin Mauck is a partner at RegitzMauck that focuses his practice on intellectual property, technology, cybersecurity, and data privacy matters.
RegitzMauck PLLC is an intellectual property boutique based in Dallas, Texas. The firm focuses on providing value-based legal services to cost-conscious clients seeking high-quality legal representation in intellectual property, cybersecurity, and data privacy matters and disputes.