Any business that has a website is a target for a new form of lawsuit that alleges websites fail to accommodate the blind. The problem with these lawsuits, however, is there are no regulations detailing what is (or is not) required in order to sufficiently accommodate those with visual impairments. Within the last two years, there were hundreds of these lawsuits – most of which result in quick settlements without motion practice. This article details the relevant law (or lack thereof) and provides recommendations to avoid being named in a lawsuit in the first place.
1. The Law Relating to Website Accessibility
In website accessibility cases, a Plaintiff must establish, among other things, that he or she was denied the opportunity to participate in or benefit from a Defendant’s services or was otherwise discriminated against by a Defendant, by reason of a Plaintiff’s disabilities.[i] Businesses subject to the ADA may be liable if they fail “to take steps as may be necessary to ensure that no individual [is otherwise discriminated against] because of the absence of auxiliary aids and services unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.”[ii]
The problem with website accessibility cases is that there are no regulations specifying what is and what is not required in order to accommodate those with visual impairments. Specifically, Congress vested the Department of Justice (“DOJ”) with the duty to promulgate regulations concerning public accommodations, but the DOJ has failed to issue any regulations on this issue.[iii] The absence of regulations created an ambiguous legal atmosphere that enables plaintiff firms to extract nuisance-value settlements sufficient to allow these website accessibility lawsuits to thrive.
2. Recommendations for Website Owners
While there is no silver bullet that can prevent a company from being named in an ADA website accessibility lawsuit, there are some steps companies can take that may help defend these lawsuits. The first step is to ensure your website is compliant with the Web Content Accessibility Guidelines 2.0 (“WCAG 2.0”). WCAG 2.0 are industry idealized guidelines that set forth various recommendations and techniques that can be implemented to assist the visually impaired. The problem with WCAG 2.0 is that it is expensive to implement, as it may require an overhaul of your website, and there is no guarantee that compliance with WCAG 2.0 will be a successful defense to a website accessibility lawsuit. The second step, which should be used in all instances, is to include text at the top of the website stating effectively: “If you are using a screen reader and are having difficulty using this website, please call [insert #] for assistance.” This option provides the Company with the argument that making an individual available to receive a call is the “auxiliary aids and service” that accommodates the visually impaired. In fact, Stevenson Marino LLP recently moved to dismiss a website accessibility lawsuit, in part, on the basis that the presence of the phone number constituted an auxiliary aid and service.[iv] During oral argument, District Judge Amon appeared to agree and reserved a decision until the parties presented additional evidence on this issue.
In conclusion, until there is guidance from the government in the form of new laws or regulations specifying what is and what is not required, or case law rejecting these lawsuits, every business must take the foregoing steps to limit their exposure to these lawsuits.
 Individuals who are visually impaired can access websites using screen readers, which read text on websites aloud to the user. Often, however, websites may have text loaded as images, which cannot be read by screen readers, or provide other functionality (e.g., buying gift cards, making reservations) that is not compatible with screen readers.
[i] See 42 U.S.C. §12182(a).
[ii] 42 U.S.C. § 12182(b)(2)(A) (emphasis added).
[iii] See 42 U.S.C. § 12186(b); See Department of Justice – Fall 2015, Statement of Regulatory Priorities, 80 Fed. Reg. 77709, 77807 (Dec. 15, 2015) (DOJ announcing that it “expects to publish the Title III web site accessibility NPRM during fiscal year 2018”).
[iv] See Anderson v. Sela Group Hotel LLC, 17-cv-02133 (CBA) (ST) (E.D.N.Y. Oct. 6, 2017) (dkt. 16).
Stevenson Marino LLP is a boutique employment law and commercial litigation firm, with a particular focus on litigating both i) wage and hour class and collective actions and ii) insurance coverage cases on behalf of the insured. The firm maintains offices in Melville and Manhattan.