In a March 21, 2016 ruling (here), a California state court judge has held that a retailer violated the American s with Disabilities Act because its website was not accessible to a visually-impaired plaintiff. According to a March 29, 2016 post on the Seyfarth Shaw law firm’s ADA Title III blog (here), with this ruling, the California court became “the first in the nation” to rule that a website violated the ADA’s public accommodation accessibility requirements. As discussed below, the ruling could herald an increase of ADA litigation involving website accessibility.
Title III of the Americans with Disabilities Act prohibits “discrimination on the basis of disability by public accommodations and requires places of public accommodations and commercial facilities to be designed, constructed and altered in compliance with the accessibility standards established by law.” The question of whether or not these provisions apply is whether or not the facilities involved represent a place of public accommodation.
As discussed in March 31, 2016 memo from the Benesch, Friedlander, Coplan, and Aronoff law firm (here), courts have previously considered whether a company’s website represents a place of public accommodation. While several courts have indicated that a website may be a place of public accommodation, the courts stopped short of finding an ADA violation and imposing ADA liability, usually because the cases involved have settled before the cases reached that point.
The March 21 Ruling
Edward Davis, who is visually impaired, filed an action against luggage retailer BMI/BND Travelware alleging that the luggage retailer had violated the ADA and the corollary California law (the Unruh Act) because, he alleged, the company’s website was not accessible to individuals with vision-related disabilities.
In his March 21, 2016 ruling, Judge Bryan Foster agreed with Davis, ruling that the plaintiff was denied access to the defendant’s website because of his disability. The key to the decision is the Court’s finding that “a [sufficient] nexus exists between defendant’s retail store and its website that directly affects plaintiff’s ability to access [goods] and services.”
The Court ordered the retailer to pay $4,000 in statutory damages under the Unruh Act. The court also granted the plaintiff’s request for injunctive relief, directing the defendant to take the step necessary to make its website “readily accessible to and useable by individuals with visual impairment or to terminate the website.” In addition, the Court held that the plaintiff was entitled to recover his attorneys’ fees, which, as the Seyfarth Shaw blog post notes, “could be substantial given the discovery and briefing involved in the motion for summary judgment.”
Many businesses these days have a very substantial web presence. Many businesses conduct a substantial amount of business on their websites. The ruling in this case suggests that these businesses potentially could face accessibility claims in connection with their websites. As the Benesch law firm’s memo notes, the ruling in this case, taken in combination with the absence of any controlling accessibility guidance from regulators, “may lead to an increase in litigation regarding website accessibility.” In particular, the memo notes, in light of the key finding in this case that there was a “nexus” between the defendant’s retail story and its website, “any site associated with any retail or brick-and-mortar facility will be in the crosshairs.”
The possibility of this type of lawsuit includes not only the risk of damages awards of the type imposed here, but also includes the costs of defense, as well as the possibility of an award of the claimants’ attorneys’ fees (as was imposed in this case). In other words, these kinds of cases could represent a substantial litigation exposure for companies involved, as well as for their EPL insurers.
As the Benesch law firm memo notes, these issues are further complicated by the fact that there are no controlling accessibility guidelines. While the U.S. Department of Justice has been considering the issuance of applicable regulations for years, to date they have not yet issued any binding regulations. In certain enforcement actions, the DOJ has used compliance with the Web Content Accessibility Guidelines as measure of compliance. These industry guidelines may provide some guidance for companies seeking to avoid these kinds of accessibility claims, as well as for underwriters seeking to determine whether an applicant’s website might present the risk of an accessibility claim.