The Rise of ADA Website Accessibility Lawsuits: What Businesses Need to Know

By: Brett A. Hodges

In today’s digital age, we often take for granted how our everyday activities on the Internet can lead to legal liability in the real world. In recent years, more and more businesses have found themselves drug into courtrooms based solely on their activities in the digital world. That’s why now, more than ever, it is crucial for business owners to learn more about how to ensure their website is compliant with the Americans with Disabilities Act (ADA).

First enacted in 1990, the goal of the ADA was to provide federal protections against discrimination towards those with disabilities. More specifically, the ADA sought to protect disabled individuals from discrimination in employment, discrimination by public entities, and discrimination in places of public accommodation. The ADA defines the term “public accommodation” to include hotels, restaurants, theaters, places of public gathering, grocery stores, laundromats, offices offering professional services, schools, and gyms. Prior to the advent of the Internet, it was obvious that many of the places where people spend their time every day are considered public accommodations. However, in recent years there have been a number of lawsuits claiming that websites operated by the aforementioned entities are subject to the ADA’s broad and expansive anti-discrimination provisions.

While Congress may not have anticipated the rise of the Internet in 1990 when the ADA was passed, the U.S. Department of Justice has taken the position since at least 2004 that the ADA applies to websites operated by public accommodations.  While courts across the country may remain split on this issue, ADA compliance is essential for every business owner in order to avoid stiff penalties such as injunctive relief, attorneys’ fees and expenses, and expert witness fees.

So, what exactly does a disabled person have to prove to be successful on their ADA claim? At their core, every ADA claim based on discrimination in public accommodations requires a plaintiff to show that they are disabled, that the defendant owns, leases, or operates a place of public accommodation, and that the defendant discriminated against the plaintiff. According to the ADA, discrimination occurs when an individual with a disability is denied the opportunity to participate in programs or services or is provided with separate but unequal goods or services. This is quite obviously a very broad standard which allows plaintiffs’ attorneys a great deal of leeway in bringing claims. That’s why it is essential to ensure that any website owned or operated by a public accommodation is accessible to disabled individuals.

Although the Department of Justice does not have any regulations setting out detailed standards for ensuring that a website is accessible enough to avoid an ADA suit, they do provide helpful guidance for small business owners looking to protect themselves. For instance, the Department of Justice suggests that business owners look to the Web Content Accessibility Guidelines and the Section 508 Standards that are used by the federal government. While it would be far beyond the scope of this article to provide a comprehensive list of features that websites should implement to avoid a discrimination suit, the ADA website provides some helpful tips.

For example, website owners should ensure that the text displayed on their websites is of an appropriate size and color. A sufficient amount of color contrast allows people with poor vision or color blindness to read the text, while text of an appropriate size is useful for those who are visually impaired. However, website owners should be warned that simply color-coding their text is not necessarily enough, and additional text cues may be necessary for those individuals suffering from color blindness.

The ADA website also suggests that video captions be provided, and that text alternatives to images should be incorporated to allow blind individuals to be able to fully experience a given website. It is also advisable to use an automated accessibility checker tool, which will help detect areas where accessibility can be improved. Finally, and perhaps most importantly, every website should have a location where visitors can report accessibility issues. While it may not be enough to prevent liability, a good faith effort to make the website accessible may cause some plaintiffs to think twice before launching suit.

Although it may be incredibly difficult to entirely insulate your business from liability under the ADA based on website accessibility issues, a basic understanding of the ADA and the Department of Justice’s position with respect to website accessibility should at the very least give individuals an idea of what they are dealing with should they find a letter threatening a lawsuit in the mail.