Recent legal developments provide businesses facing claims under the Americans with Disabilities Act (ADA) with new defenses, both in court and in settlement negotiations.  These defenses hinge on the specifics of each case, especially regarding the plaintiff’s purpose for visiting the website and their intentions to revisit.

Legal guidance is crucial when responding to allegations of ADA accessibility violations.  Lawsuits and demand letters claiming that websites fail to accommodate individuals with visual impairments have continued to surge.  Although many of these cases settle quickly, defenses are available and can be effective.

ADA’s Title III and Public Accommodation: Diverse Court Interpretations Affecting Websites

Title III of the ADA prohibits discrimination based on disability in accessing goods, services, and facilities of public accommodations.  Courts have interpreted the term “public accommodation” differently in the context of websites.  

• Some courts rule that all websites fall under the ADA.
• Others find the ADA applicable only to websites with a connection to a physical location, the “brick and mortar” nexus.

The Web Content Accessibility Guidelines (WCAG) level AA is the recognized standard for compliance.

If a company is sued in a jurisdiction where the ADA’s applicability to websites is limited, it might argue that its website does not fall under ADA regulation.

Regardless of location, the validity of an ADA website claim may be challenged if the plaintiff lacks “standing.”  For standing, a plaintiff must show an “injury in fact” – they must have visited the website intending to make a purchase and plan to return to the website in the future.

Strategies for Handling ADA Website Accessibility Claims

1. Legal Consultation: It’s crucial for companies to seek legal advice when facing an ADA website accessibility claim.  Experienced legal counsel can provide guidance on the specific jurisdiction’s interpretation of the ADA in relation to websites.
2. Investigating the Claim: Companies should review the claim to understand the specifics.  This includes examining the plaintiff’s interaction with the website and their purported intentions to use the website in the future.
3. Evaluating Website Compliance: Assess the website’s current level of accessibility against the WCAG Guidelines.  This assessment can identify areas for improvement and strengthen the company’s position in court or provide leverage for settlement discussions.
4. Considering Jurisdictional Variances: The applicability of the ADA to websites can vary by jurisdiction.  Understanding the legal interpretation of the jurisdiction where the claim is brought is essential for developing an appropriate response strategy.
5. Addressing Standing: A key defense strategy is to challenge the plaintiff’s standing.  The plaintiff must demonstrate an actual injury, such as the inability to access specific website features, and a likelihood of encountering this issue again in the future.
6. Exploring Settlement Options: Some companies make the business decision to try and settle these cases.  Settlement can be a cost-effective, and less adversarial, approach to resolving the claim while committing to making the website more accessible.  However, many companies are subjected to multiple “copycat” cases after settlement.
7. Proactive Compliance Measures: Beyond addressing the immediate claim, businesses should proactively work towards making their websites accessible.  This includes regular audits, adopting an effective compliance policy, and training staff on accessibility issues.
8. Documenting Efforts: Document all efforts taken to improve website accessibility.  This documentation is very valuable in demonstrating the company’s commitment to ADA compliance in any legal proceedings or negotiations.
9. Communication with Plaintiffs: Engage in communication with the plaintiff and opposing counsel to understand their concerns and proposed terms of a potential resolution that addresses these issues.
10. Monitoring Legal Developments: Digital accessibility and ADA compliance is an evolving area of law.  Companies should stay informed about legal developments, as changes can impact how they manage their websites and future claims.

By considering these strategies, businesses can more effectively mitigate against the risk of ADA accessibility claims and work towards ensuring their websites are accessible to all users, including those with disabilities.