For the past several years, plaintiffs’ lawyers have been targeting businesses’ ecommerce websites with claims that they deny individuals with disabilities equal access to goods and services, in violation of Title III of the Americans with Disabilities Act (ADA). We have closely followed developments in the law regarding those claims, especially in light of the failure of the Department of Justice to promulgate regulations providing clear guidance on the applicability of the ADA to ecommerce websites and requirements for compliance. Please see our earlier alerts on "drive-by lawsuits," the Winn-Dixie case, DOJ rules, and more. Appeals currently before the Ninth and Eleventh US Circuit Courts of Appeal, in cases in which lower courts imposed liability under the ADA, could soon provide some needed clarity on what is required of an ecommerce website to avoid liability.

In the meantime, it looks like creative plaintiffs’ lawyers have shifted to a new target – online job application portals and processes. The US Department of Justice has issued informal guidance suggesting that employers who do not configure their online job postings to be readable with screen reading software – and to meet the success criteria set forth in the WCAG 2.0 standards promulgated by the international website standards organization W3C -- may violate Title I of the ADA, which prohibits covered entities from discriminating against an individual with a disability with respect to job application procedures. See 42 U.S.C. § 12112(a). Similarly, California’s Fair Employment and Housing Act prohibits employers from discriminating against potential applicants on the grounds of a physical or mental disability. See California Govt. Code § 12940. A violation of these statutes exposes employers to claims for injunctive relief, damages, and attorneys’ fees.

Attorneys representing potential plaintiffs who are blind and/or visually impaired have begun using this Guidance to argue that failure to comply with the WCAG 2.0 standards in relation to the online job application process is discriminatory because disabled individuals are denied the equal opportunity to search or apply for open positions. At least one suit asserting these claims has been recently filed (by a plaintiff and law firm who previously had filed numerous cases regarding retailer websites), in the Superior Court for the County of Los Angeles; the case asserts violation of California law, but not the ADA. If past is prologue, employers could see a rapid proliferation of demand letters threatening ADA and/or state law claims and seeking settlements which include injunctive relief and monetary payments. We will be following developments in this area of the law closely, but in the meantime, employers would be wise to proactively determine whether their online job application process is compatible with the major screen-reader software programs available for use by visually-disabled individuals and to implement reasonable remedial measures to correct potential barriers to access.