ADA Web Suits Nearly Tripled Last YearBy Brian Seligman | May 3, 2019
The number of website accessibility lawsuits alleging failure to comply with the federal Americans with Disabilities Act (ADA) nearly tripled in 2018, to at least 2,258. In the first quarter of 2019, such suits rose 31 percent from the comparable period last year.
These kinds of lawsuits began to gain attention with the filing of 814 actions in 2017. They allege that the businesses’ sites aren’t sufficiently accessible to vision- or hearing-impaired users and fail to provide assistive technologies, in violation of ADA Title III. Title III provides that “no 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.”
As we reported in October, members of Congress and state attorneys general last year all wrote to then Attorney General Jeff Sessions seeking guidance regarding such suits. The Department of Justice (DOJ) responded by saying it was “evaluating whether promulgating specific web accessibility standards through regulations is necessary and appropriate to ensure compliance with the ADA.”
Most suits filed in New York
According to Seyfarth Shaw, a law firm that follows and reports on ADA issues, the greatest amount of activity last year was in New York, where more than 69% (1,564) of the suits were filed. Most of these were brought by only 15 individual lawyers or firms. Florida was a distant number two, with 576 suits.
California leads the nation, with 4,249 ADA Title III lawsuits filed in 2018; only 10, however, were website accessibility suits.
Some suggest that there may be an uptick in web accessibility suits as a result of the Ninth Circuit Court of Appeals decision in Robles v. Domino's Pizza. In this case, the Court reaffirmed Domino's obligation to have its website ADA complaint, overturning the district court that dismissed the case. The Ninth Circuit ruled that websites of retailers that provide goods and services though place of public accommodation must comply with Title III of the ADA. The ruling also made clear that Title III applies to both websites and mobile applications.
These types of suits appeal to plaintiffs and attorneys because they simply need to sit down at a computer to review companies’ sites for how they accommodate disabled persons. No physical inspection of a property is needed.
Rising claims against municipalities and schools
Local governments now provide many functions and services online that were once handled in person. These sites must be accessible to the disabled and comply with both the ADA and Sections 504 and 508 of the Rehabilitation Act, which requires federal agencies' electronic and information technology to be accessible to people with disabilities, including employees and members of the public. It also requires compliance with WCAG version 2.0 level AA as the web accessibility standard.
Lack of compliance also may result in loss of federal funding and intervention from the Department of Justice.
Since 2011, more than 142 municipalities were sued alleging that their websites were not accessibly to the disabled.
In Florida, Flagler County recently settled a lawsuit for $15,000 which alleged that its website violated the ADA because it was not accessibly to the visually impaired. In addition, one Florida resident has filed nearly 200 lawsuits against government and private entities resulting in settlements with Orange County, Palm Beach County Clerk and Comptrollers Office, Martin County and St. Lucie County. At least three Florida cities – Lake Mary, Longwood, and Oviedo – have temporarily removed public documents from their websites to protect themselves from such suits.
Universities are also subject to website accessibility lawsuits. Nationwide, hundreds of colleges and universities are being investigated by the Education Department’s Office for Civil Rights for having websites that may not be accessible to the disabled. In November 2018, 50 universities were sued by one person, who alleged that the schools’ sites aren’t accessible.
These developments, the uncertainty they reflect, and the costly exposures businesses could face underscore the importance of employment practices liability (EPL) insurance coverage. Because website accessibility claims fall under coverages that may be provided by EPL insurance, insurers that don’t offer this coverage to businesses should consider doing so. All organizations should discuss this exposure with their insurance agents. ISO’s specialty commercial lines programs can help with your management liability and EPL requirements.