As the wave of Americans with Disabilities Act (ADA) litigation against online retailers continues, a handful of companies have settled lawsuits for failing to make their websites accessible to those with visual impairments.
In a microcosm of federal court cases across the country, three different actions were brought in Illinois federal court earlier this year against Empire Today, Grubhub and Kmart. Each of the complaints alleged that the defendants failed to accommodate the visually impaired plaintiffs and sought changes to defendants’ online and mobile technology so that screen reader software could function on the sites and apps.
All three cases settled in late October or early November without the terms of the deals being disclosed. But dozens of suits remain pending against other companies nationwide, with uncertainty high after the Department of Justice halted plans to provide compliance guidance.
In July 2010, the DOJ issued an advance notice of proposed rulemaking to promulgate regulations under Title III of the ADA. A Notice of Proposed Rulemaking in June 2015 promised “to address the obligations of public accommodations to make goods, services, facilities, privileges, accommodations, or advantages they offer via the Internet, specifically at sites on the World Wide Web, accessible to individuals with disabilities” and to “make clear to entities covered by the ADA their obligations to make their websites accessible.”
However, the agency moved the regulations to the “inactive” list of its regulatory agenda in August, signaling that no further action will be taken in the near future.
This is the first time a federal agency has used the inactive list, which includes regulations that have not been formally withdrawn but aren’t included in the plans for rulemaking. Whether the regulations will move back to the regulatory plan or remain inactive is unclear.
In the interim, retailers like Empire Today, Grubhub and Kmart are left without a clear online accessibility standard and with the risk of federal litigation.
Why it matters: The same law firm represented all the plaintiffs in the Illinois actions. “Our clients bring these cases when they encounter significant barriers to access which can be readily eliminated,” one of the plaintiffs’ attorneys told the Cook County Record. “While I cannot comment on the resolution of these particular cases, I can tell you that our primary goal in bringing suit is to work with defendants to bring their websites and any apps into compliance with the [ADA] through an agreed upon plan.” Since guidance from the government on the scope of such compliance is lacking, companies continue to face the threat of litigation under the ADA.