The number of lawsuits challenging various websites and apps for their accessibility to people with disabilities continues to grow, with no end in sight. While 2018 set a record for the number of website accessibility cases filed in federal courts across the United States, 2019 is on track to break last year’s record and continue the streak of ever increasing numbers of lawsuits year after year.
Why are web accessibility court cases increasing?
The website accessibility litigation onslaught continues for several reasons. Many businesses, organizations, and local/state governments still use websites that are legally inaccessible. These same organizations are not up to speed about website accessibility requirements under the Americans with Disabilities Act (ADA). Finding website accessibility issues is not difficult if you know what to look for – such as videos without closed captioning and images without proper descriptive alt tags. Finally, the U.S. Department of Justice (DOJ) has declined to promulgate clarifying regulations and standards to provide one-stop guidance about what must be done under federal law to make websites ADA-accessible.
Without DOJ regulations, the courts are left with adjudicating accessibility claims. Although there are a materials and information available to guide organizations through the accessibility maze, they also often do not know where exactly to look or to whom to turn for expertise and assistance.
Noteworthy Accessibility Court Cases in 2019
In 2019, several noteworthy court decisions fill the website accessibility docket. I have chosen the following three cases to highlight recent developments:
In June 2019, the U.S. Ninth Circuit Court of Appeals reinstated a website accessibility case against Domino’s Pizza (Robles v. Domino’s Pizza). The appeals court decided that websites and apps are both covered by the ADA and must be accessible to people with disabilities.
“The ADA “as a whole is intended ‘to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.’” Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 589 (1999) (quoting 42 U.S.C. § 12101(b)(1)). Title III of the ADA advances that goal by providing that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). We agree with the district court that the ADA applies to Domino’s website and app.
The ADA expressly provides that a place of public accommodation, like Domino’s, engages in unlawful discrimination if it fails to “take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services.”5 Id. § 12182(b)(2)(A)(iii).
DOJ regulations require that a public accommodation “furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.” 28 C.F.R. § 36.303(c)(1)
DOJ defines “auxiliary aids and services” to include “accessible electronic and information technology” or “other effective methods of making visually delivered materials available to individuals who are blind or have low vision.” 28 C.F.R. § 36.303(b)(2). Therefore, the ADA mandates that places of public accommodation, like Domino’s, provide auxiliary aids and services to make visual materials available to individuals who are blind. See id. § 36.303. This requirement applies to Domino’s website and app…”
On June 13, 2019, Domino’s Pizza filed a petition with the U.S. Supreme Court, asking the Court to reverse the appeals court decision and decide this question – Does the ADA require a website or mobile phone application that offers goods or services to the public to satisfy discrete accessibility requirements with respect to individuals with disabilities?” The Supreme Court has never weighed in on this issue. The Court will likely decide before the end of 2019 whether it will accept the Domino’s case for review.
Kroger: Becoming and Staying in Compliance
Also in June 2019, a federal district court in New York threw out a website accessibility case against the Kroger Company. The court held there was essentially nothing for the court to decide. In reaching this conclusion, the court relied upon statements and affidavits from Kroger’s, which included the following:
- Kroger took steps to comply with voluntary WCAG 2.0 accessibility standards and guidelines before the lawsuit was filed;
- The Kroger.com website currently complies with WCAG 2.0;
- Kroger testified that the company confirmed that the accessibility barriers alleged by the plaintiff in the lawsuit had all been fixed; and
- Kroger will remain in compliance with WCAG 2.0
Other courts have reached similar decisions when the organization or company that was sued claimed that the accessibility problems complained about had all been fixed.
Discouraging “Drive- by” Accessibility Lawsuit Trends
In July 2019, another court took a swipe at so-called drive-by accessibility lawsuits. Such cases are filed not by customers with disabilities who were unable to access particular website. They are filed by people alleging an inability to access a website without actually trying to buy or access the organizations’ goods or services. Instead, the “drive-by” plaintiffs surf the Internet, find potentially non-compliant websites and sue without ever intending to do business with the websites.
In the July case, a blind plaintiff sued a credit union, claiming his screen reader device could not access the credit union’s website. The U.S. Fourth Circuit Court of Appeals agreed with a lower court’s dismissal of this case.
The appeals court determined that the blind person who filed the lawsuit had not been hurt or discriminated against by the credit union’s website because he was neither a credit union member nor was he eligible for membership. The credit union’s membership was limited to current and former employees of the U.S. Department of Labor and their immediate families.
Most courts have agreed with the Fourth Circuit’s position although some have gone in a different direction by not using organizational membership eligibility as necessary for claiming that the organization’s website violates the ADA.
As the year continues, ADA website accessibility lawsuits will undoubtedly continue as well. Proactive website assessments, reliance upon bona fide experts who know what the courts are deciding, and preparation of compliant website accessibility plans and timetables are the fundamentally necessary steps organizations must take to avoid liability in the ever growing field of website accessibility discrimination.
Check out some of Bruce Adelson’s other blog posts to learn about more developments in language access law, and be sure to contact us if you’re interested in a consultation about your own organization’s compliance with federal language access law.
© Bruce L. Adelson 2019, special for Bromberg, All Rights Reserved The material herein is educational and informational only. No legal advice is intended or conveyed.
Bruce L. Adelson, Esq, CEO of Federal Compliance Consulting LLC is nationally recognized for his compliance expertise concerning many federal laws. Mr. Adelson is a former U.S Department of Justice Civil Rights Division Senior Trial Attorney.
Mr. Adelson is a Department of Family Medicine faculty member at Georgetown University School of Medicine where he teaches implicit bias, cultural and civil rights awareness.