Although “drive-by” ADA Title III lawsuits alleging physically inaccessible public accommodations facilities will continue to be a mainstay for the plaintiff’s bar, a new type of lawsuit has recently emerged:  The “surf-by” lawsuit.  In the past month, we have seen an onslaught of case filings and demand letters threatening lawsuits from private plaintiffs alleging that retailers, colleges, and other businesses denied blind individuals access to the businesses’ goods and services by having inaccessible websites or mobile applications.  These plaintiffs generally claim this denial of access violates Title III of the Americans with Disabilities Act (ADA) and California’s Unruh Act.  They are threatening to take action and filing their suits in California because, while the ADA authorizes only injunctive relief and attorneys’ fees, California law imposes up to $4,000 statutory damages per violation of the law.

We had predicted this flurry of lawsuits would come.  Plaintiffs are taking advantage of the uncertainty surrounding this issue created by the Department of Justice’s (DOJ) four-year delay in issuing regulations on this subject, and encouraged by the DOJ’s aggressive enforcement posture on this issue despite its failure to issue regulations adopting a clear standard for accessible websites and mobile applications.  Below is some background on this quickly evolving area of the law and a look at why some businesses are choosing to make their websites and mobile applications accessible now.

What is an “accessible” website?  At this time, there is no law or regulation that sets the technical requirements for an “accessible” website  or mobile application for public accommodations.  Conceptually, an accessible website is one that can be used by people with various sight, hearing, and mobility disabilities.  For example, blind people use screen readers and other assistive technologies to convey to them what is on a webpage.  People with low vision need to be able to resize text and need a certain level of contrast.  People who are deaf need captioning to access the audio in videos shown on websites.  People with limited dexterity need to be able to navigate through a webpage using a keyboard instead of a mouse.

For many years, the so-called Section 508 website accessibility standards applicable to federal government websites was used to define accessibility.  In recent years, however, a new and more robust set of guidelines developed by a private industry group has emerged called the Web Content Accessibility Guidelines (WCAG) (see http://www.w3.org) 2.0.    Last year, the Department of Transportation adopted WCAG 2.0 Level AA as the legal standard that governs the websites of airline carriers under the Air Carrier Access Act.  The DOJ signaled in 2010 that it would likely adopt these guidelines as the standard for public accommodations’ websites, but has still not issued a proposed rule.  As discussed below, the WCAG 2.0 AA is the accessibility standard cited in virtually all settlements involving website accessibility and most recently in DOJ’s consent decree with H&R Block.

Is My Business Required To Have An Accessible Website?  If you want to avoid litigation, yes.  But as a matter of established law, the answer is less clear and may also depend on whether the goods and services available on the website are available in some equivalent alternative manner.  Title III of the ADA requires businesses provide equal access to their goods and services to individuals with disabilities.  This obligation includes providing auxiliary aids and services necessary to effective communicate with individuals with hearing, vision, or cognitive disabilities.  Accessible electronic information technology is considered an auxiliary aid or service.  Based on these regulations, plaintiffs and DOJ are taking the position that making websites accessible is required under Title III of the ADA.

Because litigating these cases is expensive and complicated, most businesses confronted with a demand or lawsuit are likely make a commitment to make their websites comply with the WCAG 2.0 Level AA in some reasonable timeframe.  In 2013 and 2014, a large grocery chain, a weight loss company, an healthcare insurance provider, and a national drug store agreed to make their websites accessible after being approached by advocates for the blind.  Just this year, H&R Block also agreed to make its online tax preparation tool, website, and mobile application comply with the WCAG 2.0 Level AA after being sued by advocates and the DOJ.  In short, despite the lack of website accessibility regulations, more businesses are realizing the importance of making their websites and mobile applications accessible now given the very active enforcement environment.