Lawsuit Shakedowns Begin on Webpage Accessibility

July 2, 2016 | from AdminBerenson No Comments

The Americans with Disabilities Act of 1990 (“ADA”) broadly prohibits discrimination on the basis of disability. The ADA is supposed to make sure that someone with a disability is allowed the same rights and access to places and services that everyone else has.

But because we didn’t really have any websites back in 1990, the law doesn’t address if a website needs to be ADA-compliant, and exactly what that would require. What is clear is that we are seeing an increase in high-profile ADA-complaint website litigation, and a surge in ethically-questionable threats by 1-800-sue-you law firms against small businesses on this issue. (Home Depot was sued a few months ago on a class action where a blind consumer alleged the Home Depot web page was inaccessible and illegal.) The shakedown normally starts with a threatening letter from a law firm, suggesting that they either (i) represent a disabled person who intends to sue the business because of a non-compliant web page; or (ii) that the business needs to sign a settlement agreement to avoid a lawsuit, and then hire the law firm to “fix” a non-compliant web page.

This trend is only going to increase, and likely very quickly. Why? Because this is a perfect buffet for a plaintiff’s injury lawyer – you can sit in your backyard, open your laptop and pick web sites at random if you know what you are looking for.

The problem, as noted above, is that no one is sure exactly how compliant a website needs to be. However, we can see what the Department of Justice (DOJ) is using as a measuring stick in the settlements it has entered into, and what the courts are requiring, and that gives us a very good barometer as to what to do from a “best practices” standpoint until the DOJ gives us better guidelines on what constitutes an “accessible” website.

This is an important distinction, because if a contractor were to bring his web page into pure technical ADA-compliance, that means the web page will work for just about everybody, but the design, performance and look and feel will be severely impacted and this will come at a significant cost. What we recommend is bringing a web page into conformity with the ADA such that the web site is not going to leave a large number of folks with disabilities behind, but it is not so restrictive as to greatly affect the site’s look, feel and functionality. That level of coding to a web page is very possible with little or no impact to usability or design.

If you do wish to reduce your exposure in this regard, and possibly head off any future litigation, we can examine your page and work with your current web site designer (or a designer we utilize for this purpose) on enabling increased accessibility based on best practices and litigation exposure, and then have them create an estimate of the time and cost for that work for you to consider. For more information, feel free to contact us at (703) 759-1055.