Drive-By ADA Lawsuits Are On All-Time High

Is your website inaccessible to the visually impaired?

Every week business owners across the country receive notice that their company is being sued for allegedly violating Title III of the Americans with Disabilities Act (ADA). Much to their surprise, however, these owners quickly learn their company is being sued – not because it’s missing a wheelchair ramp or lacks a sufficient number of accessible parking spaces – but rather because the company’s website is inaccessible to the visually impaired. Title III of the ADA is designed to eliminate discrimination against individuals with disabilities by removing barriers that deny these individuals access to the equal enjoyment of the goods and services offered by places of public accommodation. To date, the ADA has certainly made strides in fulfilling its purpose. However, since its enactment, some say the ADA has been abused by a handful of opportunistic plaintiff’s attorneys filing “drive-by” lawsuits against companies for technical violations of the ADA.

A typical “drive-by” ADA lawsuit involves a plaintiff with a disability who – despite never actually visiting a company’s premises or physical building – sues a company on a highly technical basis, claiming the company’s premises or building is inaccessible to the plaintiff due to physical barriers, such as sidewalk entrances that lack ramps. These drive-by lawsuits have predominately taken aim at brick-and-mortar locations, but several years ago these suits found a new target; company websites.

The new wave of drive-by ADA lawsuits allege company websites are discriminatory towards individuals who are visually impaired because the websites are inaccessible to these individuals. More specifically, these visually impaired plaintiffs use screen reader software, such as Job Access With Speech (JAWS), NonVisual Desktop Access (NAVD), and Apple’s Voiceover, to frequent and navigate company websites. Sometimes when their screen reader software is incompatible with a company’s website, they sue. These ADA website accessibility lawsuits began to appear several years ago, but, because of a recent decision out of Florida, they have surged nationwide. Now, plaintiffs are filing this type of lawsuit against companies at a historically high rate, forcing some companies to defend multiple lawsuits, across various states, at the same time.    

In Gil v. Winn-Dixie, Juan Carlos Gil, a visually impaired individual (who has filed suit against more than 80 companies in Florida), sued Winn-Dixie alleging that its website was inaccessible to the visually impaired. Despite Winn-Dixie’s profound defense, Gil battled his way to a verdict in his favor. Specifically, the court found that because Winn-Dixie’s website was incompatible with Gil’s screen reader technology, JAWS, Winn-Dixie violated the ADA because the inaccessibility of its website denied Gil the full and equal enjoyment of the goods and services that Winn-Dixie offers to its “sighted customers.” Because Gil prevailed against Winn-Dixie, he was entitled to seek the recovery of his attorneys’ fees and costs. Additionally, Winn-Dixie was required to remediate its website to conform with the Web Content Accessibility Guidelines (WCAG), a series of principles and guidelines for improving website accessibility, which is produced by a consortium of private organizations whose goal is to make websites accessible for all individuals.

Since the Gil decision, ADA website accessibility lawsuits have soared to record numbers. In 2017, there were a total of 814 website accessibility lawsuits filed, compared to the first six months of 2018, where there were more than 1000. Remarkably, a great deal of these suits are filed by a handful of the same plaintiffs and attorneys. For instance, in Florida, which has the second highest number of website accessibility lawsuits, the same five plaintiffs filed a total of 219 website accessibility lawsuits in the first six months of 2018. However, unlike Gil, most of these website accessibility lawsuits never made it to trial.

Typically, perhaps because of the Gil decision, a company will quickly settle an ADA website accessibility lawsuit, provide a check to the plaintiff’s attorney for the attorneys’ fees incurred, and promise to remediate the website in the near future so that it is more accessible to disabled visitors. Once a company remediates its website to make it more accessible, one would reasonably assume that the website is now compliant with the ADA. However, that is not necessarily the case.

Currently, there are no defined standards for website accessibility under the ADA that put companies on notice of what is required to comply with the ADA. Neither the ADA nor its implementing regulations address the minimum requirements for accessibility to websites. The Department of Justice was supposed to address this issue at the beginning of 2018 by disseminating regulations that clarify the accessibility requirements under the ADA. Unfortunately, the DOJ officially withdrew its plans to issue much needed and clear regulations about accessibility requirements and, instead, is continuing to “assess whether specific technical standards are necessary and appropriate to assist covered entities with complying with the ADA.” 

Accordingly, while plaintiffs are filing ADA website accessibility lawsuits at historically high numbers, companies are being kept in the dark with how to comply with the ADA. Unfortunately, some companies who update their website following a suit find themselves back in the courtroom defending the same website accessibility allegations. Due to a lack of regulations, companies have no way of showing that its corrective action was enough to avoid future lawsuits.

Despite the lack of defined standards for website accessibility, there are proactive steps companies can take to minimize being a target of a drive-by ADA lawsuit. For one, companies should engage consultants to audit their websites and, if necessary, remediate their websites to conform as close as possible to the WCAG. While the WCAG do not have the force of law, courts still consider the WCAG the “industry standard for accessibility.”

Companies should also make sure all of the goods, services, and information available on their websites can be provided through alternative methods. Additionally, companies should post a website accessibility statement on their websites that informs visitors the company is taking steps to make sure its website is accessible to all its visitors. The accessibility statement should also provide a phone number or email address that visitors can contact if they are experiencing accessibility issues.

These are just a few examples that companies can take to minimize being a target of an ADA website accessibility lawsuit. Ultimately, due to a lack of regulations, there is no clear cut solution a company can implement to guarantee it is complaint with the ADA. Nonetheless, companies should assemble a team to address both the technical and legal issues regarding website accessibility so they have some leverage if they find themselves defending an accessibility suit. Simply waiting is not an option, especially when plaintiffs are actively searching for their next susceptible target.