Lawsuits by professional plaintiffs for non-compliant ADA websites drive me crazy. Fair treatment for the visually impaired and the wheelchair disabled does, too.
Note: I am not a lawyer nor am I providing legal counsel or advice. I’m a tourism marketer … and a proponent of being inclusive.
The American Disabilities Act1 (ADA) specifies how everything from restrooms and parking to hotel rooms and swimming pool modifications need to be met. The ADA also addresses website compliance. However, it does not provide a mechanism for notice, remedy or fines for noncompliance.
On the flip side, frivolous lawsuits by professional plaintiffs against businesses for their websites failing to meet ADA accessibility standards when the U.S. Department of Justice’s (DOJ’s) position is that noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA drives me even crazier. However, the ADA does provide best practices for state and local government websites, detailing how the nondiscrimination requirements of Title II of the ADA apply.
How Did We Get Here?
For non-governmental agencies, what lies between website noncompliance and federal lawsuits is a large void. You can’t even describe it as nebulous because nothing exists.
Prior to the Florida Ninth Circuit Court case brought forth by plaintiff Juan Carlos Gil against Winn-Dixie grocery chain in 2015, few were aware.2 The Palm Beach Post, a southeast Florida newspaper, reported Gil, a wheelchair athlete, was born with cerebral palsy; is legally blind, and travels the world to compete in marathons.
In finding for the plaintiff in this case, Judge Robert Scola’s decision was that the store’s website was heavily integrated with the stores’ physical place and therefore subject to ADA compliance3. The court awarded $105,000 to Gil. His lawyers submitted the following legal fees: Richard Della Fera, then, of Entin & Della Fera in Fort Lauderdale, FL, ($45,855) and Scott Dinin ($54,024) in Miami and $5,392.06 in costs for transportation and software testing. Tally the numbers; Gil’s win wasn’t monetary but in access to an ADA-friendly Winn-Dixie website. The grocer also had to foot the bill to bring its website into compliance.
California’s Eleventh and Florida’s Ninth circuit courts are holding that “Plaintiffs seeking to bring ADA claims about inaccessible websites must show that a barrier on the website prevented them from enjoying the goods and services of that physical place.”4 For the moment, it appears non-place-based (online only or service not requiring a customer to visit a place) websites fall outside this arena.
As of November 2018, Gil has filed 175 lawsuits in South Florida.2 As of September 2018, cases have occurred predominantly in Florida, as well as in Michigan, New York, Ohio, Pennsylvania and Arizona. No industry, organization or government has been immune from lawsuits.
Action was taken by the DOJ
- It clearly defined how federal and local government websites should become compliant.
- It developed in 2007 – most recent available – a fairly basic explanation of why compliance is needed; and explained standard terms and common problems to those unfamiliar – images without text equivalents, text-based format, ability to adjust colors and fonts, and audio descriptions and captions.
- It created a highly detailed explanation of how the federal government must comply with any and everything that will be impacted by ADA. Hidden in Appendix A to Part 1194 – Section 508 of the Rehabilitation Act: Application and Scoping Requirements; E205 Electronic Content resides: 4 Accessibility Standard. Electronic content shall conform to Level A and Level AA Success Criteria and Conformance Requirements in WCAG 2.05 (incorporated by reference, see 702.10.1).Note: It does not mandate how anything outside of government should comply.
Website Content Accessibility Guidelines (WCAG 2.0) – Level A and Level AA is typically the standard being used by federal judges when requiring businesses to bring their websites into compliance. It is an expanded version of the first and second bullets above but moves from plain-speak to web developer-speak in explaining “how to” comply.
Where’s the Calvary?
The Republican Party that has always maintained a pro-business stance – less government regulation – has remained silent.
However, it appears that because of the volume of lawsuits filed, involving large companies with deep pockets as well as small business owners, Congress finally got involved in 2018. I repeat: no business, organization, government or even university appears to be immune. As it relates to the hospitality industry that includes hotels, motels, inns, restaurants, golf courses, wineries, etc.
Sitting squarely between the court cases is both action and in-action is the DOJ which has been weathering a sea of other battles of its own since 2016. Former U.S. Attorney General Jeff Sessions did not respond to a request by Congress:
On June 20, 2018, a letter signed by more than 100 bi-partisan members of the U.S. House of Representatives asked the “Department of Justice provide guidance and clarity with regard to website accessibility under the Americans with Disabilities Act or ADA.”
On September 20, 2018, U.S. Senators Chuck Grassley, Mike Rounds, Joni Ernst, Thom Tillis, Mike Crapo and John Cornyn sent a letter with a deadline stating:
“Plaintiffs’ lawyers are exploiting this opportunity for personal gain and sending threatening demand letters and filing hundreds of lawsuits against small and medium-sized businesses across the country- from banks and credit unions to retailers and restaurants.” “ … to promptly take all necessary and appropriate actions within its authority … to resolve the current uncertainty …briefing to our staff with respect to its intentions … no later than September 28, 2018.”
Continue reading, a response was received by the Senate from the DOJ.
The ADA Mediation Program
The DOJ website states that it encourages voluntary mediation when ADA noncompliance is believed to exist but both parties need to agree. Unfortunately, federal judges are not forcing these lawsuits into the mediation process (with DOJ lawyers with expertise in this special form of Civil Rights) for resolution.
Lacking rules and penalties from the DOJ for something as simple as “a business is given notice and has X days to bring their website in compliance and then given an extension and assessing a fine if they fail to comply,” website owners currently have two choices when served: 1) negotiate payment by plaintiff’s lawyers or 2) find a (Civil Rights) lawyer and head into court.
From the DOJ website:
In enacting the ADA, Congress specifically encouraged the use of alternative means of dispute resolution, including mediation, to resolve ADA disputes. Through its ADA Mediation Program, the Department refers appropriate ADA disputes to mediators at no cost to the parties. The mediators in the Department of Justice program are professional mediators who have been trained in the unique Civil Rights legal requirements of the ADA. The Department’s program has already resolved many ADA disputes quickly and effectively.
To work to resolve an ADA dispute through the Department’s program, simply follow the usual procedure for filing a complaint with the Department and note on the complaint that you want to take your dispute to mediation. While the Department cannot guarantee that everyone who wants mediation will be able to participate in the program, it will make every effort to comply with requests for mediation.
In the meantime, shouldn’t the federal courts be sending any website non-compliant lawsuit back to the DOJ’s ADA Mediation program?
Injustice on Both Sides
Within my circle of family and friends are a college student who is legally blind, a retired hobbyist who is dumb (cannot speak), relatives who can’t hear (require TTY technology (TTD to those of us who aren’t deaf), an individual who uses a motorized wheelchair and someone who is colorblind. I’ve seen the world from the other side of the fence if only in a very limited way.
At the moment, though, what I see as a bigger injustice is the threat by what I’ll call ambulance-chasing attorneys threatening to file non-compliant ADA website lawsuits against small businesses from wineries in the state of New York to small hotels in Florida.
You know the types – small family-owned businesses with friendly helpful staffs that if contacted would do everything they can to make sure that their customer experience is a “10.” Small business owners who work 60 hours a week to keep their business open; worrying how to continue to keep their employees on during slow season; and each year grappling with another round of ever-increasing healthcare costs. These are the very people whose websites play a significant role in generating visitors and income for their business.
I remember my reaction to a hospitality industry group that supports small hoteliers when they first put out a warning about website accessibility and compliance. They brought in a subject matter expert to talk to the organization’s members. I thought to myself, you’ve got to be kidding. Sadly, they weren’t kidding as a few of their members had already been slapped with lawsuits. Small businesses are squeezed between doing the right thing when given the opportunity, maneuvering through an ever-changing maze of healthcare, employment regulations, tax laws and then this.
Just last week an elderly lady had pulled into a handicap spot at the grocery store, opened her door and asked if I could have one of the baggers bring her out an electric buggy. I said yes and did. To me this is the compassionate way we help people. Slapping lawsuits on business owners is not.
I am aware of someone in the hotel business who received a call from someone touting his website compliance services. She, like me, wondered if this guy was tied to a law firm and that a lawsuit was forthcoming. Within a few weeks, the hotel was served as a lawsuit had been filed. Coincidence? My gut says when you’re being shopped, screenshots have already been made of your website. The phone call is the last step before the templated lawsuit is updated with your company’s name and address. Two calls most likely mean two lawsuits will land at your door – one from a visually impaired professional plaintiff and another from a wheelchair disabled professional plaintiff.
Eighty percent of businesses are small businesses. These lawsuits can land on your door without warning. Suddenly your entire world is turned upside down. Someone who may or may not ever be a potential customer threatens to take your income and livelihood away.
I also know that in response to this possibility of a lawsuit and rather than losing their business, their land, their buildings and letting go of their employees, some hospitality industry businesses have opted to turn off their website – the hub of all their marketing efforts.
The Starter Website Fix
I’ll state again that I’m not a lawyer so what I’m sharing below is not legal advice or counsel. I’m also not an ADA website accessibility expert. It’s how I would personally address things.
My websites have all had a Website Content Accessibility page added that can be linked from the footer. The copy on that page is as follows:
Web Content Accessibility
The [insert company name] is committed to ensuring that individuals with disabilities enjoy full access to our website. In recognition of this commitment, the [insert company name] is in the process of making modifications to increase the accessibility and usability of this website using the relevant portions of the Web Content Accessibility Guidelines 2.0 (WCAG 2.0) as our standard. Please be aware that our efforts are ongoing. If at any time, you have difficulty using our website or a particular web page or function on this site, please contact us by XXX-XXX-XXXX or via email and we will make all reasonable efforts to assist you.
Immediately add this website a FREE UserWay widget. It adds a snippet of code to my website to help in addressing the various needs of the visually impaired.
You can choose from the icons you’d like to add to your website. And a pop-up box allows users needing ADA assistance to select from a menu of options to aid them in using your website, such as keyboard navigation, a larger cursor, adjusting the contrast, text and fonts, highlighting links or reading the page.
At the very top of your website add invisible text identifying the website as being inclusive, include your phone numbers and hours of operation, and indicate, where the UserWay widget is located.
With the above fixes in place, you’ll now have a bit more time to begin the process of making sure your website is in WCAG 2.0 compliance.
For websites we build in WordPress, we’ve discovered a large number of page builders (it’s like a foundation for your house) claim to be ADA compliant. However, not all page builders are alike; some are better than others. We’ve also found that to be true of WordPress plug-ins.
Before and after bringing a website into compliance, we run tests to see if we’ve caught everything. The Web Content Accessibility statement should be maintained on your website. Content changes and unless you routinely check or run a test, you may accidentally be out of compliance.
For those familiar with Google and SEO, hidden text is considered deceptive and is a violation of Google’s Webmaster Guidelines.
Chances are, if you’re optimizing for accessibility, you’re probably covering your bases for those technical optimizations where accessibility and SEO overlap. BUT, this doesn’t always work the other way around, depending on the SEO tactics you take.6
Currently, federal lawsuits are primarily driven by those who are visually impaired and those with wheelchair disabilities. Each requires a unique approach to bring your website into compliance. Wheelchair accessibility requires much more information than space allows here. As an example of the level of detail needed to consider, “Is your vending machine listed as being handicap accessible?”
If your hotel website uses a booking engine or you work with an Online Travel Agency (OTA) you’ll need to ask questions of them about website compliance, too. Their websites are driving business to you, a place-based business.
Why Wouldn’t You Want Your Website to be Accessible?
In late September 2018, the DOJ responded to the Senate’s request.7 In effect, they punted:
Absent the adoption of specific technical requirements for websites through rulemaking, public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication. Accordingly, noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.
In December 2018, the state of Ohio took matters into its own hands and enacted legislation.8 Other states could do the same.
A bill introduced by U.S. Representative Ted Poe, a Texas Republican, in 2017 – the ADA Education and Reform of 2017 – passed the House on February 15, 2018, and moved to the Senate.9 It appears to be the answer businesses have been waiting for, especially one the tourism industry needs.
I close with more questions than answers:
- How long will it take before Congress takes action – or more state legislators enact statutes – to protect business owners against professional plaintiffs serving lawsuits without notice or an opportunity to remedy non-compliant websites?
- How many more businesses will be squeezed by lawyers? … even though the DOJ does not consider a non-compliant website to be in noncompliance with the ADA.
- Did it really need to come to this for businesses to bring their websites into compliance?
Even when the dust settles, whether you were or were not “served” for having a non-compliant website for your place-based business, consider making your website compliant. Being inclusive will make your tourism business or organization much more accessible to those with disabilities. Creating awareness in your industry and community is a good first start. It shows that you are welcoming and inviting and accommodating of the unique needs of a particular market segment – think LGBT and pets.
So we ask, is your website accessible?
If you’re looking to develop a website that is accessible, reach out to us at Flying Compass.
1 Signed into law in 1990 by President George H.W. Bush, ADA is one of America’s most comprehensive pieces of civil rights legislation. It prohibits discrimination and guarantees that people with disabilities have the same opportunities as everyone else to participate in the mainstream of American life — to enjoy employment opportunities, to purchase goods and services, and to participate in state and local government programs and services.
2 As an example when the DOJ filed suit against government agencies, such as Wilson County (2010), Robeson County (2015) and the city of Wilmington (2009), all in North Carolina, explaining what physical changes needed to be made, each was advised to bring their government website into compliance, too.
3 Forbes Magazine, John O’Brien, First-Of-Its-Kind Trial Goes Plaintiff’s Way; Winn-Dixie Must Update Website For The Blind
5 The World Wide Web Consortium (W3C) is an international community where Member organizations, a full-time staff, and the public work together to develop Web standards. Led by Web inventor and Director Tim Berners-Lee and CEO Jeffrey Jaffe, W3C’s mission is to lead the Web to its full potential.
6 What You Should Know About Accessibility + SEO, Part 1: An Intro by Laura Lippay
8 Ohio Act