By Jeffrey J. Wedel*
Consider this scenario – a retail company has brick and mortar stores in which customers may view, try on, and purchase products. The company also maintains websites on which customers can locate stores, view and purchase products, review product descriptions and prices, and sign up for email lists. Over a recent three-year span, the company’s internet sales increased nearly 40 percent annually. Sounds great, right? Yes, but there’s a catch – that company (Foot Locker) now faces a lawsuit based on its website. A legally blind consumer sued Foot Locker alleging the company’s websites are not accessible to blind and visually impaired consumers in violation of the Americans with Disabilities Act (“ADA”). Jahoda v. Foot Locker, Inc., No. 2:15-cv-01000-AJS (W.D. Pa. filed Jul. 31, 2015).
Title III of the ADA prohibits discrimination against individuals on the basis of disability in the full and equal enjoyment of “public accommodations.” The statute defines “public accommodations” as facilities whose operations affect commerce and fall within one of 12 different types of establishments. Those include hotels, restaurants, bars, theaters, and sales, rental, or service establishments. There is no clear indication in the statute that websites fall within its scope.
The Foot Locker lawsuit represents a growing trend of Title III public accommodation lawsuits based on website accessibility. In 2015 alone, plaintiffs filed over 40 cases against well-known companies including the National Basketball Association, J.C. Penny Co., and Home Depot Inc. Since March 2012, the Foot Locker plaintiff has filed 68 lawsuits against companies such as Brooks Brothers Inc. and Hard Rock Café Int’l, Inc.
The plaintiffs in these lawsuits may seek a range of costly remedies and typically demand website monitoring by plaintiffs at the company’s expense. For example, one common demand of remediation may include having the company embed Alternative Text, or a text equivalent, beneath images on its website. Blind and visually impaired individuals frequently use screen reader software, which converts text to audio, to access the information available on website. In the Foot Locker case, the plaintiff sought to require the company to: retain a consultant (agreeable to the plaintiff) to improve the website’s accessibility; have the consultant conduct periodic trainings; have the consultant perform ongoing accessibility audits and tests; and create accessibility policies and hotlines, all paid for by the company. Including monitoring efforts, plaintiff attorneys’ fees and costs typically exceed tens of thousands of dollars.
These lawsuits are largely the byproduct of an uncertain legal landscape. Title III does not specifically address website access and courts have provided little, if any guidance. Typically, federal agencies would provide direction. Here, however, the Department of Justice (“DOJ”) has delayed issuing regulations. In 2010, the DOJ suggested it would issue proposed regulations in 2016 and sought public comment on topics including: the appropriate website accessibility standards; the costs of making websites accessible; and whether reasonable and effective alternatives exist. The DOJ also suggested businesses could comply with the ADA by providing accessible alternatives, such as a staffed telephone line. However, in December 2015, the DOJ announced it will not issue proposed regulations until 2018. Furthermore, the DOJ seemingly changed its approach. In 2015, it filed briefs in support of the plaintiffs in website accessibility lawsuits against two major private universities. In its briefs, the DOJ suggested businesses have preexisting obligations under a general provision of the statute to make websites accessible (as opposed to allowing for reasonable alternatives). Thus, even in the absence of proposed regulations, the DOJ has begun pressuring businesses into making their websites accessible. Uncertainty will reign until the DOJ issues concrete guidance.
In addition, website accessibility issues raise internal website operation and maintenance concerns. Businesses that contract with third party vendors for website operation should review those contracts to determine who holds responsibility for compliance with the law.
Ultimately, the legal landscape regarding Title III public accommodation website accessibility lawsuits remains very uncertain, with no clear guidance in the foreseeable future. As such, any businesses engaging in e-commerce should contact counsel familiar with Title III to assess potential liability.
*Jeffrey J. Wedel is a member of the firm’s Employment & Labor Group whose practice focuses on litigation. Jeff has extensive experience defending against Title III public accommodation claims. If you have questions about the ADA, Title III, or the accessibility of your website, please contact Jeff (jjw@zrlaw.com) at 216.696.4441.
