ADA Website Compliance – A Snapshot of the Legal Landscape
ADA website compliance has become a serious issue for employers across the US.
Every day, businesses are sent demand letters or served lawsuits for lack of compliance.
How prevalent is this?
The proliferation of website accessibility lawsuits dramatically increased between 2017 (814) and 2018 (2,258) with no sign of slow down for 2019. That is an increase of 177%.
Graph: ADA Title III Website Accessibility Lawsuits in Federal Court.
In California, cases are being brought forward under both Title III of the Americans with Disability Act, 42 U.S.C. § 12101 and the Unruh Civil Rights Act (UCRA), California Civil Code § 51, creating more financial penalties for lack of compliance.
In a case heading to the US Supreme Court, Domino’s Pizza is being sued by a visually-impaired customer for not being able to place an order on the website. The panel in the Robles vs. Domino’s case stated that ADA applies to services of public accommodation, not services in a place of public accommodation. The panel further held that the 14th Amendment to due process was not violated and required compliance to WCAG 2.0 (Web Content Accessibility Guidelines) for remedy.
For the period from January 1, 2019, through June 30, 2019, there was a total of 5,592 ADA Title III lawsuits (not just web compliance issues) filed in federal court, versus 4,965 filed in first six months of 2018. That’s a 12% increase.
If the lawsuits continue at the current rate, the number of federal ADA Title III lawsuits filed in 2019 will top 11,000, another record-breaking year.
California continues to lead the country with 2,444 federal ADA Title III lawsuits in the first six months of 2019, with New York trailing far behind with 1,212 such suits. Florida is a close third with 1,074 federal suits. The 2,444 California federal ADA Title III lawsuit number does not capture the complete picture of disability access suits filed in California because many more access suits are landing in state court.
This general trend should be a wake-up call for employers who want to avoid litigation.
What are the penalties for non-compliance?
Demand letters for ADA website compliance violations can be as high as $50,000 for the first instance and over $100,000 for subsequent violations.
California continues to be a very popular jurisdiction because plaintiffs can add on a state law Unruh Act claim, which provides for $4,000 in statutory damages for each incident of discrimination. This statutory damages provision gives prevailing plaintiffs an automatic payment, so they do not even need to prove that they incurred any actual damages, unless they want to recover more. When factoring attorney fees on top of the Unruh Act claim, fees can easily exceed $15,000 per incident.
The ADA “as a whole is intended ‘to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.’” Title III of the ADA advances that goal by providing that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a)
A company engages in unlawful discrimination if it fails to “take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services.” Id. § 12182(b)(2)(A)(iii). DOJ regulations require that a public accommodation “furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.” 28 C.F.R. § 36.303(c)(1) (emphasis added);
How can I become ADA compliant?
The process of becoming ADA compliant can be long and expensive. It is also an ongoing process as, not only do the laws change, but so does a website.
Depending on the size of the website, some remediation projects can cost over $100,000, not to mention the potential liability a company faces while performing the remediation.
With our solution you can achieve compliance within 72 hours and we can help you implement a more permanent solution if desired.