Is Your Website Accessible to the Disabled?

In the past three weeks, Pittsburgh-based law firm, Carlson Lynch, which was responsible for filing hundreds of Americans with Disabilities Act (ADA) ATM class action lawsuits nationwide, has filed four ADA website lawsuits in federal district court in Pittsburgh. One of the lawsuits was filed against a bank, while the three other lawsuits were filed against national retailers. Since May 2014, there has been a significant increase in the number of lawsuits and demand letters alleging that businesses have denied access to visually impaired customers by operating websites that are inaccessible to them in some manner. However, given the history of the Carlson Lynch firm with the ADA ATM lawsuits, a new wave of ADA website lawsuits is anticipated to be filed in federal district courts around the United States against retailers, banks, hospitals, universities and all other places of public accommodation that operate websites. This is likely to be only the beginning, and businesses that maintain a website should be aware of the latest developments.

The lawsuits filed in federal district court in Pittsburgh all contend that “[b]lind and visually impaired consumers must use screen reading software or other assistive technologies in order to access website content” and that the defendants’ websites contain “digital barriers which limit the ability of blind and visually impaired consumers to access the site.” Each lawsuit then describes the specific access barriers that the visually impaired plaintiffs allegedly encountered.

It is possible that, prior to the filing of a lawsuit, a business may first receive a demand letter from the plaintiff’s lawyer, contending the firm will pursue a lawsuit unless the business enters into a “structured negotiations agreement,” a draft of which is usually included with the letter. Typically, these demand letters also include a report prepared by a third-party “expert” vendor, which provides specific, technical examples of the alleged inaccessible areas of the business’ website.

Currently, there are no specific ADA website standards, and the U.S. Department of Justice (DOJ) has delayed issuing regulations on website accessibility for several years. Despite the absence of standards, however, the DOJ has emphasized that businesses should make websites accessible to the disabled, and it has been aggressive in enforcing website accessibility. While no specific ADA guidelines exist yet, the DOJ has relied on a set of guidelines known as the Web Content Accessibility Guidelines (WCAG), which were developed by a private industry group.

At this point, businesses that wish to protect themselves from complicated and costly litigation should consider taking the necessary steps to ensure they have an accessible website. It may be prudent to start this process before a lawsuit is filed. Given the unknowns in this area of law and the fact that website content can change on a daily, and even an hourly, basis—especially for retailers—this may be much easier said than done.