Over the last few years, there has been a huge increase in the number of lawsuits and claims by disabled individuals asserting that businesses’ websites—and, increasingly, their mobile apps as well—violate Title III of the Americans with Disabilities Act (“ADA”), which prohibits discrimination on the basis of disabilities in “places of public accommodation.” The vast majority of these claims are asserted by visually impaired individuals who use a “screen reader” that reads the content on a website aloud to them. If the business’s website or app has not been coded properly, it will not be compatible with the screen reader, and the visually impaired visitor will not be able to access certain information. For example, unless images on the website or app have what is referred to as “alt text” behind them, when a screen reader tries to “read” them, it will just say “image” or some gibberish, rather than stating what the image actually shows.
Quick-serve restaurants are clearly places of public accommodation, but are their websites and apps? The courts that have considered that question have held have either held that websites and apps are places of public accommodation and are therefore governed by Title III of the ADA, or if the difficulties a disabled individual encounters when trying to access a website or app also impede his or her ability to access the business’s physical location, the individual can assert a claim under the ADA.
It is therefore recommended that restaurant operators make their websites and apps accessible to disabled individuals. This includes not only visually impaired individuals, but individuals with other disabilities as well. For example, if a website or app has videos on it, the videos should have closed captioning or some other text alternative so that hearing impaired individuals can access the information in them. And website content that flickers, flashes or blinks could trigger seizures in individuals that have photosensitive epilepsy. If the restaurant is a franchise, it is normally the franchisor that owns and operates the website and app, therefore the franchisor would be the party that would take steps to make the website and app accessible.
But it is hard for a business to determine what specific steps it should take to make its website or app accessible, because neither the Department of Justice, which is tasked with implementing rules and regulations to enforce the ADA, nor Congress has provided any rules, laws, or guidance on how to make a website or app accessible to disabled individuals. The courts have been left to try to figure out what the requirements are, but they have not always reached the same conclusion. Many hoped the Supreme Court would accept a recent appeal by Domino’s Pizza of a decision in a California lawsuit requiring Domino’s to make its website and app accessible to disabled individuals, and issue a decision clarifying the law in this area. However, the Supreme Court declined to hear Domino’s appeal, leaving the California decision in place and encouraging plaintiff’s lawyers to continue suing restaurants and other businesses on the grounds that their websites and apps violate the ADA.
An industry group, the Worldwide Web Consortium, has developed Web Content Accessibility Guidelines (or “WCAG”), which provide a detailed list of steps website owners and operators can take to make their websites accessible to individuals with disabilities. The most widely applied and utilized version of the WCAG can be found at http://www.w3.org/TR/WCAG20/. At this point in time, the best way for a business to avoid being sued for violating the ADA with respect to its website or app is to bring the website and app into compliance with the WCAG. However, if the business does not have employees who can do this, it will need to hire an accessibility consultant (several of which have emerged in response to the surge of lawsuits and claims in this area) to make the necessary changes and updates to the website and app.
If a business is sued, it should be noted that, under Title III of the ADA, the plaintiff can only recover injunctive relief—i.e., requiring the business to take steps to bring its website or app into compliance with the ADA—and not any monetary damages. However, if the plaintiff prevails, the court will require the defendant to reimburse the plaintiff for his or her attorney’s fees. Certain states also have laws which provide for statutory damages for these types of claims (for example, under California’s Unruh Civil Rights Act, a successful plaintiff can be awarded $4,000 per violation). Most of these cases are settled in the early stages, with the defendant agreeing to pay some amount to settle and make its website and/or app accessible within a certain time period (usually one to two years).
Some courts have implied that it could be sufficient to post on the website or app a “hotline” phone number the website visitor can call (an email address should also be provided) if he or she is having difficulty accessing certain information on the website or app. However, this would only present a good defense to an ADA claim if the hotline and email address are staffed 24 hours a day, seven days a week. Otherwise, if the disabled person having trouble has to wait for a call or email back until the next day or after the weekend, he or she is not being treated the same way as non-disabled website visitors who can access the content in question immediately. Of course, having employees available around the clock to answer such calls and emails (which would likely be rare) may not be something the business can afford.
Unfortunately, until the Justice Department, Congress or the courts clarify the law and requirements in this area, this will continue to be an issue for businesses. While there is no easy solution and there are costs involved, businesses should consider taking steps to remediate their websites and apps so that they comply with the WCAG.
Charles S. Marion is a partner with Blank Rome LLP in Philadelphia, where he focuses his practice on franchise litigation, complex business litigation, intellectual property litigation and representing and counseling clients with respect to website accessibility and other claims brought under the Americans with Disabilities Act.