Opinion: ADA website accessibility lawsuits on the rise

It is no secret that our daily lives have become increasingly digitized over the past few decades. In today’s world, we interact and communicate with one another instantly through the click of a button. Customers and clients are increasingly finding service providers through searches on the web, reviewing multiple websites until they find the best fit for their specific needs.

One result of this digital environment has been the dramatic rise in lawsuits against businesses alleging that their websites are not accessible to the visually or audibly impaired in violation of the Americans with Disabilities Act. In 2016, 262 of these cases were filed nationwide. In 2019, that number rose to 2,235, nearly nine times as many from three years prior.

These suits are usually filed by out-of-state firms focusing exclusively on this issue, and the evidence indicates that these claims will only increase into the future. Retail is the industry most often targeted by these claims, followed closely by food service, entertainment and hospitality.

Specifically, the ADA requires “places of public accommodation” to make their goods and services readily available to people with disabilities. This might require reasonable modifications in policies, practices or procedures, providing access to auxiliary aids and services to ensure effective communication with the disabled or removing communication barriers to disabled individuals. Discrimination occurs under the ADA when a disabled individual is denied the opportunity to participate in programs or services or when they are provided with separate, but unequal, goods or services.

The question becomes: Is a website a place of public accommodation subject to the ADA? At first glance, the ADA does not appear to apply to websites and other electronic applications. After all, the internet as we know it today did not exist when the ADA was passed in 1990. As a result, none of the accessibility guidelines of the ADA explicitly mention websites operated by public accommodations. However, the broad language of the ADA and multiple indications from the U.S. Department of Justice, Congress and the courts over the past several years have brought such websites into the discussion.

Unfortunately, while this issue has gained greater attention in recent years, Congress and the courts have failed to adequately clarify the scope of the ADA in terms of website accessibility compliance for companies. Last year, a bill was finally introduced in the House of Representatives that might have given clarity to this issue. While the Online Accessibility Act did not progress past its introduction, it is likely to be addressed again soon.

Additionally, since the mid-1990s, courts across the nation have grappled with the issue of whether the ADA is limited solely to physical spaces and whether a company’s website requires a connection to a physical location to be subject to the ADA’s protections.

Unfortunately, courts have reached widely varying conclusions in different parts of the country, leaving uncertainty as to the universal answer to the question. It seems improbable that the U.S. Supreme Court will resolve the split in the existing court decisions anytime soon, but clarity is badly needed to ensure businesses know how to react.

So, how can businesses avoid becoming the next target of these lawsuits without solid guidance from the legal system? Be proactive. Create and implement a website accessibility policy for your business. Such a policy should provide guidelines for training employees in the ADA’s requirements, soliciting feedback from website users, providing a platform for complaints and requests for accommodations, outlining procedures for quickly responding to accessibility issues, and providing alternative ways to access the information on your website, such as video subtitles. It also is highly prudent to hire a web designer or digital marketing team to perform a periodic review and audit of your website and perform updates to ensure it is compatible with existing accessibility laws. Remember: The cost of ensuring, in advance, that your website is ADA accessible is cheaper than a lawsuit.

Andy Peebles is an estate planning and business attorney with the law firm of Carnahan, Evans, Cantwell & Brown PC. He can be reached at apeebles@cecb.com.