WILL YOU GET SUED BECAUSE OF YOUR WEBSITE? – ADA COMPLIANCE RISKS –
WILL YOU GET SUED BECAUSE OF YOUR WEBSITE?
– ADA COMPLIANCE RISKS –
Today, we are answering the question that some individuals and business owners may not even realize they need to ask: “Can I get sued if my website does not comply with the Web Content Accessibility Guidelines?” The answer is a resounding YES, but the risk of that happening is not equal for everyone, so what to do about it can be a tricky decision. We lay out some of the risks below and, as always, invite you to consult with one of our attorneys or other experienced legal counsel if needed.
First, a little background. Most people have heard of the Americans with Disabilities Act (“ADA”), the federal law that increased access and opportunities for people with disabilities. Most people also know that the ADA applies to businesses with physical locations, such as your local retail stores and shops, and know that those businesses must comply with the ADA by making sure that disabled individuals can access the business (and for example, restrooms inside). What is less obvious to most people is whether the ADA should also be applied to websites. The answer is ‘yes.’
The ADA came into being three (3) years before the public even got their first taste of the world wide web. Not surprisingly, the ADA was not equipped to deal with the implications of this technology and all the websites that have since been created. Websites now allow people to shop, make restaurant reservations, schedule chiropractic appointments, etc. all from the comfort of their homes. During this last year when many people were unable to go outside to shop, online options became even more popular and, arguably, more important. So, it is not surprising that opportunistic plaintiff’s lawyers are looking at the increasing expansion of the web and seeing dollar signs.
Where certain plaintiff’s lawyers historically directed their disabled clients to various businesses, looking for violations of the ADA (i.e. curbs and sinks that are too high, etc.), and then sent out demand letters threatening litigation if the business owner did not agree to pay up and settle out of court or risk paying not just for the ADA violations, but also for the disabled clients’ attorneys fees, those attorneys now are seeing a similar golden goose in the business web pages. All across the country, plaintiff’s lawyers are sending out demand letters alleging that business owners are violating the ADA (and sometimes other state laws) and hurting their disabled clients because the website that offers x, y, z is, for example, not compatible with screen reading software that would allow a disabled individual to read the website’s content. Chances are, if you have a business, you have a website, and if you have a website, you could soon have a demand letter.
What is your risk of getting a demand letter? Well, if your website is a tiny little operation where you sell knitted hats for cats at $5 each and you do not make much money doing it, then your risk is probably low. Anything more lucrative-looking is at risk.
While historically, courts could not agree on whether the ADA applied to websites the issue is resolved in California. Currently, there is a three-way split, with the Ninth (which includes California), Sixth, and Eleventh Circuits holding that the ADA applies to websites that have a connection or “nexus” to a physical place of public accommodation; the First, Second, and Seventh Circuits holding that websites are places of public accommodation under the ADA; and the Third Circuit holding that the ADA does not apply to websites because it applies only to physical spaces. Plaintiff’s attorneys are aware of which circuits are more favorable to these types of lawsuits and will look for potential claims. Additionally, plaintiff’s lawyers are aware that business owners may not be in the position to pay an attorney to litigate and they are counting on a quick settlement instead. Unfortunately, this is not a one and done scenario – you could get demand letters from multiple potential plaintiffs, even after you pay that first settlement. So, having a compliant website is ideal.
The first, best choice is to seek legal counsel and get professional help to assess your risk. If that is not an option, consider doing these things yourself:
- Assess your risk level. Are you a business in California with a website that is tied to a physical location? If you answered yes, you may want to strongly consider consulting legal counsel and/or getting quotes for making your website compliant with the Web Content Accessibility Guidelines (WCAG) 2.0 – a set of commonly used, privately developed standards. Note that WCAG is not a mandatory level you must meet for your website, but the courts seem to agree that if your website meets WCAG, it is “accessible”.
- Assess your ability to pay. While we do not like a shakedown, even when there are good intentions behind the ADA and making places and even websites accessible for all, making an early settlement may be desirable. If you already got a quote for how much it will cost to make your website compliant, think about using that “fix” as part of the resolution.
- Do some additional research. There are some online guides and extensive articles that discuss the technical aspects of reviewing whether your website is “accessible” and tell you how to fix it.
In the end, we recommend consulting an attorney if you get a demand letter as your individual circumstances and risks may warrant a different strategy than what we discussed above and you will want to ensure that the same plaintiff does not sue a second time for a technical web glitch. Our experienced attorneys are happy to help you if you have concerns with this or any other area related to your business.
For more information feel free to contact Dawn: dcoulson@eppscoulson.com.
EPPS & COULSON, LLP
Attorneys admitted to practice in
California, New York, Colorado, Texas, Oregon and Hawaii
Information contained in this Memo is intended for informational and educational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney. It is considered advertising under laws of some states. Epps & Coulson, LLP encourages you to call us to discuss these matters as they apply to you or your business.