Given the growth trends in eCommerce, it is not surprising that plaintiffs’ lawyers have changed their litigation targets from brick and mortar retailers to retailers operating online. Specifically, there has been a marked increase in lawsuits stemming from alleged violations of the Americans with Disabilities Act (“ADA”) in connection with retailers’ DTC websites. In order to comply with the ADA, a website must be accessible to individuals with disabilities. Commonly, claims arise from websites that are incompatible with assistive technology or lack certain features to make the websites accessible to consumers with visual impairments. Although compensatory damages are not available in these “surf-by” suits, the ADA allows prevailing plaintiffs to recover attorneys’ fees. Additionally, a settlement with one plaintiff does not preclude copycat litigation if the retailer fails to remediate the website. These factors have combined to generate a flurry of cookie cutter litigations, often against many unrelated retailers but which involve the same plaintiff. Due to the prevalence of violations and the lack of government guidance, noncompliant websites present a particularly pesky source of liability for retailers.
The number of lawsuits resulting from allegedly inaccessible websites has exploded, rising from 814 filed suits in 2017 to 2,258 suits the next year. That number leveled off in 2019 and slightly decreased in 2020, likely due to disruption caused by the COVID-19 pandemic. However, data from early 2021 indicates that as courts open again, the number of suits will once again be on the rise. Unsurprisingly, California, New York, and Florida are the three jurisdictions with the most lawsuits, with California seeing ballooning numbers in the past few years.
The Judicial Approach
A plaintiff alleging a violation of the ADA must show that (1) he or she has a disability; (2) the defendant owns or operates a place of public accommodation; and (3) the defendant discriminated against the plaintiff by denying him or her the full and equal opportunity to its enjoy the services.
Courts are currently split on whether a website is a “place of public accommodation” under the ADA. The First, Second, and Seventh Circuits have found websites to be places of public accommodation covered by the ADA, while the Third, Sixth, Ninth, and Eleventh require a place of public accommodation to be a physical space. But even those courts view an inaccessible website as a violation of the ADA if the inaccessibility denies access to goods, services, or other benefits that are sufficiently connected to the physical location. For example, a retailer’s website would be subject to the ADA if it allows consumers to place a pizza delivery online or offers in-store pickup of online orders. What’s more, the Ninth Circuit has held that the ADA applies not only to a brand’s website, but to its mobile app as well.
Lack of Government Guidance
Unfortunately for retailers, there is very little guidance on website ADA compliance. The ADA was enacted in 1990, did not contemplate ecommerce at all, and has not been updated to account for changes in technology. And while the Department of Justice recently affirmed its stance that the ADA applies to websites, it has declined to provide regulatory standards for website access. Without legislative or regulatory standards, the Web Content Accessibility Guidelines (WCAG), a set of private guidelines, has emerged as the de facto standard for website accessibility. Courts frequently reference the WCAG in website ADA decisions and retailers will often agree to WCAG compliance to resolve litigation.
Vorys’ eCommerce Litigation team has defended companies in more than 100 threatened or filed ADA website litigations. We understand the nuance of these matters, know the most prolific plaintiffs’ counsel, and understand certain settlement traps that plaintiffs’ counsel typically seek to include. We can recommend third-party consultants to assist in evaluating a website’s accessibility, correct any issues, and can educate the brand on maintaining accessibility. Vorys can also assist in preparing an Accessibility Statement for the website to mitigate the likelihood of being sued.