ALERT: Website and App Accessibility Lawsuits

Posted on Saturday, February 15th, 2020

My last post on web/app accessibility issues was in 2014. Since then, the issue has surfaced for clients very infrequently. However, the recent holding from the U.S. Court of Appeals for the Ninth Circuit, that Title III of the Americans with Disabilities Act required Domino’s Pizza to make its websites and mobile applications accessible to the visually impaired (and the U.S. Supreme Court’s decision to not review that case), means that more accessibility lawsuits are coming. Our clients have experienced website accessibility lawsuits. These cases are usually brought by serial plaintiffs. Our firm just helped a client settle one of these lawsuits a week prior to the date of this article.

What is website accessibility/application accessibility? It depends. But as one example, many visually impaired individuals use screen reading software to read and “speak” the information on a website. If a particular website is not set-up/coded properly to allow for reading of the site’s information – that website is not “accessible” to the visually impaired user. Want to know if your website is accessible? There are several free website accessibility tools online, including WAVE.

Like most areas of law, there is some grey area when it comes to accessibility compliance. For example, at the time of this article, nobody can definitively tell you how to measure compliance with website or app accessibility requirements. Most commentators point to the World Wide Web Consortium guidelines. The WWWC has issued several versions of its Web Content Accessibility Guidelines which is currently in its WCAG 2.0 and 2.1 versions. One challenge for business owners is that the technology and guidelines will continue to change.

For another example, there is a range of accessibility. If your business offers several different ways to accomplish a task and only one is broken, you may be less likely to be sued. However, if you mostly sell goods/products through the telephone info on your website and the phone is not linked properly to be work with screen reading software – you may be more of a target.

The ambiguity and lack of legal guidance in this area is one of the reasons why most of these cases will likely settle. For another reason, the ADA does not have great avenues for damages to the individual, and a business can sometimes make the case “moot” by immediately fixing the accessibility issues with their website(s). A plaintiff needs to have suffered an injury-in-fact, meaning an injury that is: (i) concrete and particularized and actual or imminent, (ii) fairly traceable to the defendant’s conduct, and (iii) likely to be redressed by a favorable decision. And some courts in the ADA context require that there be a “real and immediate threat” that the plaintiff will be injured again.

With the rise of IoT (the internet of things) and other advances in technology, rest assured that this issue will become more complex over time. At a minimum, your business should work with a web or app developer that creates an end product that is as accessible as it can be.