Website Accessibility Lawsuits and Legal Practices

WEBSITE ACCESSIBILITY LAWS U I T S A N D L EGAL P R ACT ICES Accessibility Compliance: Lawsuits and Legal Practices

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Summary Our newest eBook offers business owners and marketing executives helpful summaries of fundamental lawsuits and legal practices that’ll help you gain a better understanding of how being ADA compliant impacts your business.

By the end of this eBook, you’ll understand why every business, including eCommerce businesses, would benefit from being proactive in updating their websites and mobile applications to be ADA compliant.

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Accessibility Compliance: Lawsuits and Legal Practices Since the pandemic began, there has been a 50% increase in accessibility compliance lawsuits. The main issue that has quickly jumped out amidst COVID-19 is businesses not being prepared to meet the accessibility and inclusion needs of their employees and customers. For example, event planners and meeting organizers are well-versed in how to set up their in-person meetings and events to meet accessibility and inclusion standards. However, today, following the recent pivot to the majority of the general population communicating, working, and shopping remotely, maximizing accessibility and participation opportunities has reached an alltime high, especially in terms of legal repercussions.

During an event in January of 2021, we discussed with Shep Davidson, a Law Partner at Burns Levinson, important legal cases about accessibility, both in physical and remote environments, that have shaped today’s current accessibility standards. The following content is a consolidation of that discussion, including excerpts of the original event, Access for All: ADA-Compliant Virtual Meetings & Events on January 12, 2021.

Important Court Rulings in the Accessibility space National Federation of the Blind v. Target (2006) In 2006, the National Federation of the Blind sued Target in the Northern District of California because their website was not compliant with ADA standards. The main issue was that blind site users were not getting the same experience as sighted users. Target argued that their website isn’t a physical place so it can’t be considered a place of public accommodation and, therefore, does not have to comply with ADA standards.

The court, however, ruled that if you’re a place like Target with a brick-and-mortar store and a website that functions to sell the products in your store, you are considered a place of public accommodation.

Thus, you need to comply with ADA website standards, as well as, physical accommodations.

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National Association of the Deaf v. Netflix (2012) The quickly developing digital world has sparked controversy about what is considered a place of public accommodation. In 2012, the second big case came about in the First Circuit and this one was against Netflix.

In essence, the National Association of the Deaf complained that not all Netflix shows are captioned properly, making it discriminatory against deaf viewers. The court used the Americans with Disability Act to determine that a place of public accommodation is any place of exhibition and entertainment, where sales are made, or if you’re a rental establishment. This includes Netflix, making the National Association of the Deaf successful in their lawsuit.

This case established that any kind of website that’s a commercial website is going to be a place of public accommodation.

California Unruh Act In addition to the ADA, there are some states, New York and California most prominently, that have their statutes that track the ADA. It provides state law relief and has statutory damages as part of those. California’s act is called the Unruh Act that allows for up to $4,000 per violation of that statute.

Development of WCAG (2017) To help organizations comply with the Department of Justice expectations for online accessibility, stemming from the previous major lawsuits, the World Wide Web Consortium developed a user-friendly set of standards, known as WCAG. Over the years, they have revisited and updated these standards, currently WCAG 2.1, but three levels of accessibility conformance remain, namely Level A, AA, and AAA. However, courts recognize WCAG 2.1 level AA as the legal standard that you must meet to have a website compliant with the ADA. Daryn Harpaz, from the Zenyth, states:

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On the horizon, we’re already seeing the development of the 2.2 standards.

They’re not out yet and they won’t be out for a while, but there is, of course, an evolution towards expanding these guidelines over time.”

As more content moves to mobile, that’s where 2.1 becomes important. Mobile accessibility is especially important for those with low motor skills and low vision, largely because of the reduced screen size.

When working with a smaller device, touchpoint areas are smaller. This means mobile-specific interactions have to be taken into account.

Overall, when looking at WCAG requirements, not only are screen reader and keyboard technologies important, but also ALT tags for images, color contrast ratios, screen magnifiers, and the ability to zoom your screen to 200% without content breaking.

The Future of Accessibility Law Accessibility lawsuits aren’t going away. Interestingly, the next evolution of accessibility lawsuits started about a year ago with many plaintiffs lawyers, and plaintiffs themselves, suing about 500 big-box retailers. They argued that physical gift cards discriminated against blind people because they didn’t have Braille on the gift cards.

While many of these lawsuits have been dismissed, it speaks to the importance of complying with accessibility practices for all organizations. Moving forward, if you want to avoid lawsuits against you make sure you’re complying with WCAG 2.1 AA.

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If you do receive a demand letter for a lack of compliance, Shep Davidson, Law Partner at Burns Levinson, strongly advises the following course of action:

Address it right away. Because unless you’re dealing with one of these states like New York or California, your only concern after getting the website up to speed is avoiding the legal fees. So as soon as you can get your website up to speed, you’ve got to do it.”

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More on the Experts Daryn Harpaz Daryn Harpaz is the Founder and CEO of Zenyth, an accessibility-focused software development company. As an end-to-end accessibility solutions provider, Daryn and his team focus on manually auditing websites and mobile apps, providing full code remediation, and ongoing compliance to make sure organizations maintain their digital compliance for their applications.

Shep Davidson Shep Davidson, a Law Partner at Burns Levinson, concentrates in the areas of complex business torts, contract claims, non-compete litigation, and disputes involving closely-held businesses. He has extensive experience advising clients on claims related to ADA and state law accessibility compliance in both the brick and mortar and digital environments.

Burns Business Media Group Burns Business Media Group provides lifecycle legal services for innovative B2B and B2C companies in print and digital publishing, trade shows and events, and fully integrated business media services. Helping our clients work to connect buyers and sellers in diverse and creative ways.

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