Over the past decades, there has been a notable surge in lawsuits filed by individuals with disabilities, asserting that businesses’ websites or services fail to accommodate their accessibility requirements. Predominantly, these cases are brought forward by individuals with disabilities, alleging violations of a range of local, state, and federal anti-discrimination laws.
For instance, at the federal level, the Americans with Disabilities Act (ADA) Title III prohibits discrimination against people with disabilities in places of public accommodations. Certain types of public-facing businesses need to provide “equal access” to their goods, services and facilities to individuals with disabilities. Similar laws, such as the New York State and City Human Rights Laws, hold sway at the state and local level.
Notably, the laws and regulations are not clear about their application to website accessibility or other ancillary services. Courts across the nation have had to grapple with the application of more general non-discrimination principles in handling such lawsuits, which has led to a complex and sometimes conflicting web of decisions.
For instance, in New York, there had been a surge in lawsuits alleging ADA violations due to the absence of Braille on gift cards. From fall 2019 onwards, numerous lawsuits were filed against retailers and restaurants in federal courts for violating the ADA and New York State and City Human Rights Law regarding gift cards. Plaintiffs argued that gift cards are places of public accommodation, and that the retailer’s failure to provide gift cards containing Braille prevented individuals with visual impairments from purchasing cards, identifying denominations, or accessing the printed information.
A majority of the district courts currently hold the view that businesses are not obligated to offer Braille gift cards. In 2020, the Southern District of New York ruled against the plaintiff in Dominguez v. Banana Republic LLC, stating that the ADA doesn’t require businesses to provide specialty goods like Braille gift cards. Similar decisions followed suit, with more courts rejecting claims of ADA violation. These rulings align with past court decisions, indicating that not all goods and services offered by a business need to be identified in Braille if alternative means of access are available. For example, price tags and menus do not have to be in Braille if alternative means can enable access by individuals with visual impairments.
In addition to gift cards, another area that has experienced a recent increase in lawsuits is website accessibility. Study shows that federal courts across the country have been flooded with well over 8,000 digital accessibility lawsuits filed or removed between 2017 and 2020. Even more so, in 2022, there was a 12% increase in website accessibility lawsuits compared to 2021.
Not all cases have been litigated to judgment, and the results have been mixed and highly fact specific. Currently, the federal courts are split about whether the ADA applies to a business’s website. Most of this disagreement centers around whether a website is a place of public accommodation and/or whether a nexus between a website and a place of public accommodation is required. So far, the general consensus is that a website belonging to a business with a public-facing brick-and-mortar presence is likely covered by the ADA. The debate rages on, however, about whether web-only businesses are also covered.
Given the surging lawsuits, before the government authority provides further guidance, businesses open to the public are encouraged to take appropriate steps to ensure that services offered on websites are accessible to individuals with disabilities. While there’s no uniform standard for ADA compliance yet, many websites have been following the Web Content Accessibility Guidelines 2.0 and 2.1. For example, businesses may consider the following guidelines to increase website accessibility:
The laws related to ADA compliance will continue to evolve. Plaintiffs will likely continue to bring lawsuits and even broaden their legal actions to encompass additional digital assets, including mobile apps and games. Businesses should take a proactive approach in the development and maintenance of all digital assets to ensure digital accessibility. Any potential defendant facing a claim should consult with a litigation attorney to explore avenues of defense.