According to some estimates, the number of website accessibility lawsuits filed in federal court nearly tripled from 2017 to 2018, with no indication of slowing down in 2019. We have personally seen a growing number of lawsuits and demand letters threatening lawsuits over accessibility for persons with disabilities over the past few months. Businesses from a wide variety of industries have been affected, and as the number of plaintiff-friendly opinions stack up, many businesses are asking: Does our company website comply with the Americans With Disabilities Act?
A website accessibility claim typically alleges that a company's website contains content that is inaccessible to consumers with visual, auditory, or other types of impairments. Most of these suits have been filed by those representing visually impaired customers who rely on screen-reader software, such as JAWS or NVDA, to interact with and access website or mobile application content. Plaintiffs have brought, or threatened to bring, these types of claims under both Title III of the Americans With Disabilities Act (ADA) and applicable state law, such as California's Unruh Civil Rights Act.
Under Title III of the ADA, the company website must be considered a "place of public accommodation," or otherwise considered a service, privilege, or benefit of such a public accommodation. Title III lists twelve categories1 of covered public accommodations, including "sales" and "service" establishments that offer goods and services to the public. Websites of retailers, restaurants, banks, hotels, universities, and various other service providers have been found to be places of public accommodation (or a service or advantage of such establishments) under Title III. However, depending on the jurisdiction in which the claim is brought, some courts have required that the website have a connection to a physical location to trigger Title III obligations. As a result, companies that only sell products online or through third-party retailers may have a defense against these types of claims if they are brought in certain jurisdictions.
In addition to the ADA, many websites are also subject to state accessibility laws. Most states have their own public accommodation statutes and accessibility obligations. Many mirror the ADA, but some provide additional protections and obligations beyond Title III. For example, although California courts interpret Title III to apply only to those websites with a nexus to a physical location, they interpret California's Unruh Act more broadly, as applying to "all business establishments of every kind whatsoever." State statutes may also provide for additional remedies not available under Title III, including statutory damages.
While recent website accessibility claims brought under the ADA have predominantly resulted in plaintiff-friendly decisions, some companies have successfully obtained dismissals of website accessibility claims by asserting standing, personal jurisdiction, mootness, and other, similar defenses. For example, the Fourth Circuit recently affirmed the dismissal of a website accessibility suit brought by a visually impaired plaintiff against a credit union, which successfully argued that the plaintiff did not allege a concrete injury. The credit union argued that because the plaintiff was ineligible for membership, he could not take advantage of the credit union's online services, regardless of the website's accessibility. Similarly, a recent opinion out of the Southern District of New York dismissed a website accessibility claim for mootness and lack of personal jurisdiction. The defendant company successfully argued that it had already remediated all accessibility barriers on its website, and that it did not offer goods or services in the plaintiff's immediate location.
Companies with websites subject to ADA or state law accessibility obligations (and even those with no such obligations) should consider exploring potential options for making their websites more accessible. In the absence of federal regulations, courts and businesses have turned to the Web Content Accessibility Guidelines (WCAG), a widely accepted industry standard for website accessibility. Depending on the circumstances, companies may want to retain an accessibility consultant who is familiar with the WCAG 2.0 AA guidelines, to help identify and remediate accessibility barriers and other areas of non-compliance. Companies should also consider engaging legal counsel familiar with website accessibility issues to help maximize business opportunities while minimizing the risk of legal liability.
 The twelve categories of public accommodations listed by Title III are: (1) places of lodging; (2) establishments serving food or drink; (3) places of exhibition or entertainment; (4) places of public gathering; (5) sales or rental establishments; (6) service establishments; (7) public transportation; (8) places of display or collection; (9) parks and places of recreation; (10) places of education; (11) social service establishments; and (12) places of exercise or recreation.