Over the past few years, a handful of law firms have filed hundreds of lawsuits – and sent many hundreds of letters threatening lawsuits – over website accessibility issues. This has been a lucrative business for these firms. Many of these suits and letters are essentially cut-and-paste jobs, and the recipients often decide to quickly settle, rather than face the uncertainties and costs of litigation. But a new decision in California may give defendants something to think about.
Last year, a plaintiff filed a lawsuit against Domino’s complaining that he could not order pizza from the company’s website using his screen reader. Domino’s argued that websites are not places of public accommodation under the ADA, but the court didn’t agree. Nevertheless, Domino’s argued that the court should dismiss or stay the action because the Department of Justice has not promulgated concrete guidance regarding the accessibility standards.
As we’ve noted before, the DOJ issued a Notice of Proposed Rulemaking in 2010 regarding regulations on website accessibility. In the Notice, the DOJ acknowledged that “clear guidance on what is required under the ADA does not exist.” Dominos argued that, in the absence of clear guidance, the plaintiff’s “request to impose liability under the ADA for Defendant’s alleged failure to abide by certain accessibility standards would violate Defendant’s constitutional right to due process.” The court agreed, and dismissed the action without prejudice.
Although the DOJ has issued several “Statements of Interest” and has entered into settlements obligating companies to abide by certain standards, the court held that those statements and settlements still do not provide companies with concrete guidance regarding their requirements. Moreover, the Statements of Interest “even suggest that Domino’s provision of a telephone number for disabled customers satisfies its obligations under the ADA.”
It’s too early to predict how this decision will affect the wave of lawsuits in this area, but the decision does suggest at least two things. First, if your company’s site isn’t fully compatible with a screen reader, you should at least consider an alternate method – such as a toll-free telephone number – through which you can enable people with visual impairments to enjoy the benefits of what is on your website. Second, if you are considering fighting a threatened lawsuit, you may want to consider a due process argument.