INSIGHT: A Mid-Year Review of the Current State of ADA Website Accessibility Lawsuits

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By Joshua Briones and Nicole Ozeran

In 2017, 814 federal lawsuits alleging website inaccessibility were filed pursuant to the Americans with Disabilities Act (“ADA”). We are only mid-way through 2018 and nearly 685 federal ADA website accessibility lawsuits have already been filed. Most of these cases are being brought in the Second and Eleventh Circuits—approximately 68% of all cases filed in 2018 are venued in the Second Circuit and 27% are venued in the Eleventh Circuit.

The Department of Justice (“DOJ”) has provided little guidance in this area of law, having placed ADA website compliance guidelines on its “inactive list.” Therefore, this area of law has been left up to the courts to develop, and Plaintiffs’ counsel is seizing this opportunity.

It Started at Target

Website accessibility litigation began in 2006 with a lawsuit against the Target Corporation, filed in the Northern District of California (National Federation of the Blind v. Target Corporation). Plaintiffs alleged that Target’s website was inaccessible to blind users and sought redress. The Target Court found that a claim arises where a website is inaccessible to blind individuals and impedes the individuals’ full and equal enjoyment of goods and services offered in a physical store—i.e. a “nexus” between the website and brick-and-mortar storefront must exist for liability to arise.

Following Target, California courts have consistently held that there must be a “nexus” between the defendant’s website and its physical location for a plaintiff to state a claim. This has surprisingly caused minimal ADA suits to be filed in the Ninth Circuit. However, recently other circuits have begun to depart from the “nexus” requirement, leaving nearly every website owner susceptible to suit.

The Second Circuit Is a Plaintiff’s Haven

In July 2017, within two weeks of one another, Five Guys and Blick were decided, making the Second Circuit the most ADA-plaintiff-friendly Circuit in America. In Five Guys and Blick, the defendants brought motions to dismiss plaintiffs’ complaints on the basis that plaintiffs failed to allege a “nexus” between defendants’ website and their physical locations.

The Third, Sixth, and Eleventh Circuits allow claims only where there is a “nexus” to a physical location, so the Courts’ rulings in both Five Guys and Blick were unprecedented. The Courts in Five Guys and Blick found that websites are places of public accommodation under the ADA and that a nexus to a physical establishment is not required to give rise to an ADA claim. (In Five Guys, the court also distinguished between being in the process of working to improve website accessibility and having completed that process, stating that the former does not safeguard against legal action.) The Blick Court specifically noted that a business that operates online-only is still under an obligation to make its website accessible.

The Eleventh Circuit Is a Plaintiff’s Second-Favorite Venue

While the Eleventh Circuit requires that a sufficient nexus exist between a defendant’s website and its physical location for the ADA to apply (Gomez v. Bang & Olufsen Am., Inc.), the Circuit is still plaintiffs’ second-favorite venue (after the Second Circuit) in which to file ADA suits. This is largely due to Gil v. Winn-Dixie Stores, which is the first and only ADA lawsuit to have gone to trial.

The bench verdict found that Winn-Dixie’s website was inaccessible to plaintiff and inhibited plaintiff’s “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations” offered by Winn-Dixie’s physical store locations because plaintiff was unable to access online coupons and promotions. Finding that such access barriers violate the ADA, the Court ordered injunctive relief, requiring Winn-Dixie to make its website accessible to blind individuals, and permitted plaintiff to seek his attorneys’ fees by motion. The case validated plaintiffs’ previously untested theories and has spurred hundreds of new ADA filings by emboldened plaintiffs’ counsel.

The Takeaway

These rulings are particularly concerning to online businesses, who target consumers across the country, making jurisdiction proper in the Second Circuit, even when the business is not incorporated there. Therefore, it is important for all businesses to consider how to reduce their potential liability.

On June 5th, the World Wide Web Consortium published an updated Web Content Accessibility Guidelines (“WCAG 2.1”). While complying with the WCAG 2.1 is not a complete shield against ADA lawsuits, it should be every business’s first step in reducing its liability exposure. Specifically, businesses should consider taking the following steps to reduce the risk of suit:

  • Conduct an internal or external audit of websites and mobile applications to assess compliance with the WCAG 2.1 guidelines, taking care to especially scrutinize job application pages. If the audit shows that the business’s website or mobile application is non-compliant in any way, investigate options for bringing the website into compliance.
  • Review agreements with the developer, agency, or vendors who design and/or manage the websites and applications. In examining these agreements, note whether the third party states that its work will comply with the WCAG guidelines and whether there is any indemnification for non-compliance.
  • Consider enlisting a developer, agency, or vendor who has experience with producing accessible websites that are compatible with the various accessibility technologies in use.
  • Provide the business’s accessibility policy and a method of contact for users who may experience accessibility difficulties on the website.
  • Consider reasonable alternatives to accessing the information available on the business’s website.

Simply undertaking the process to comply with the WCAG 2.1 is often not a defense to these lawsuits, so it is prudent to achieve compliance early. As circuits are also split on the issue of what level of compliance is required, businesses should adhere to the strictest level of compliance with the WCAG 2.1.

This relatively new body of law is expanding. While several circuits have attempted to restrict the ability of plaintiffs to sue without some nexus between the website and a physical space, the Second Circuit has opened the door to litigation against internet-based businesses. With websites’ national (and even international) presence and the resulting business presence in each state, nearly all companies are likely subject to jurisdiction in the Second Circuit. Therefore, businesses should beware and implement measures to comply with the WCAG 2.1 as quickly as possible.

Author Information

Joshua Briones is the managing Member of Mintz Levin’s Los Angeles office. He is a highly experienced trial lawyer with a national practice and has represented clients in such industries as financial services, building products, retail, pharmaceuticals, automotive, professional sports, food and beverage, petroleum, chemical manufacturing, health care, high technology, and higher education.

Nicole Ozeran is a litigator in Mintz Levin’s complex corporate litigation group. Her practice concentrates primarily on consumer fraud, online and telephone marketing, false advertising, and regulatory and statutory compliance issues. Nicole is a member of the consumer privacy and TCPA class action defense group, which handles privacy-related class actions involving autodialing, telemarketing, call recording, data sharing, and other consumer privacy matters.

The authors want to acknowledge Mintz Levin summer associates Kyle Hess and Cameron Hagen for their contributions.

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