Last month, a federal district court in Manhattan refused to dismiss a putative class action lawsuit filed by a legally blind woman under the Americans with Disabilities Act (“ADA”) against Five Guys Enterprises LLC (“Five Guys”) concerning the fast casual restaurant chain’s website accessibility.

What should you do if you’ve been sued for website accessibility-related claims?

Hey, I Wanted Pickles with That!

The website allows patrons to place online food orders for delivery or pickup. In February 2017, a legally blind woman sued Five Guys in the U.S. District Court for the Southern District of New York (Case No. 17-cv-788) on behalf of herself and all blind individuals who attempted to access the Five Guys website during the statutory period but encountered website accessibility issues.

According to the complaint, the named plaintiff attempted to buy a cheeseburger on the Five Guys website using a screen reader but was prevented from adding pickles, ketchup and onions to her burger due to software limitations. The plaintiff alleges that by messing up her order, Five Guys violated Title III of the ADA and New York State and New York City civil rights laws.

Website Accessibility Lawsuit Survives Dismissal Attempt

On July 21, 2017, the Court denied Five Guys’ motion to dismiss, finding that the plaintiff has stated a claim for relief that is not moot.

The Court was unpersuaded by Five Guys’ arguments, stating that “the text and purposes of the ADA, as well as the breadth of federal appellate decisions, suggest that defendant’s website is covered under the ADA.” The Court further opined that “accepting plaintiff’s factual allegations as true, defendant has denied plaintiff a full and equal opportunity to enjoy the services it provides through its website.”

While the parties trudge forward into the case’s discovery phase, Five Guys has voluntarily chosen to overhaul aspects of its website to fix the alleged website accessibility glitch.

Protect Yourself

Despite the fact that the Department of Justice recently labeled its repeatedly delayed ADA website accessibility rulemaking as “inactive,” professional plaintiffs’ attorneys are filing (and threatening to file) an increasing number of class action lawsuits against the operators of websites that supposedly fail to meet certain accessibility standards. With the prospect of significant regulatory and legal liability at stake, it is more important than ever to consult with experienced Internet counsel before responding to website accessibility-related legal threats.