The Americans With Disabilities Act (the “ADA”) became law in 1970 “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities,” 42 U.S.C. § 12101(b)(1), in employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services. Title III of the ADA requires that “places of public accommodation” be accessible to the disabled. The Act eventually engendered a cottage industry of litigation against businesses large and small regarding disabled individuals inability to access the physical location of the public accommodation or to utilize the offered services. Fact patterns run from the simple lack of wheelchair access to a restaurant or the lack of a wheelchair friendly rest room to the very complex. Because the Act mandated an award of attorney’s fees to a successful litigant and many business’s lack of knowledge concerning the ADA’s scope and mandate, accommodation demands were ignored and lawsuits were plentiful, with some plaintiff’s firms filing numerous lawsuits on behalf of the same disabled person against various establishments. There were numerous instances where the business offering the public accommodation was subject to potential adverse attorney’s fee awards that could easily exceed the cost of compliance unless cases were quickly settled. The magnitude of these suits appears to have abated over time, the reasons why will be left for a discussion another day.
With the continuing rise in the use of the internet and web based services available to consumers, such as on-line purchasing and reservations, it appears that a new area of ADA litigation is ready to take off and deal with the question — does the website provide sufficient accommodations so that a person with disabilities, such as vision or hearing impairment, can appropriately access or utilize the website? So far there is no uniformity among the courts as to whether and to what extent a business website may be a public accommodation covered by the ADA. While it may take years until there is some clarity, there are good reasons to be aware of this issue and to start thinking about potential compliance plans now, especially in view of the specter of the potential award of attorney’s fees.
To begin with, the U.S. Department of Justice (i) believes that websites are covered, (ii) has required websites to be accessible as part of settlement agreements with purported ADA violators and (iii) is developing rules to include and regulate websites under the ADA umbrella. In its settlements the DOJ references the voluntary guidelines developed by W3C, an international consortium that develops web standards. Its most recent version is the Web Content Accessibility Guidelines (WCAG) 2.0., which is very detailed and provides for various degrees of accessibility.
Secondly, e-commerce and internet marketing and transactions are continuing to expand. Having a website that more people can interact with more easily, could make good business sense, especially if the cost of compliance is manageable.
Perhaps, most importantly, in the short term, lawyers are being solicited by vendors who wish to sell lawyers lists of companies whose websites “violate” the ADA with all the necessary information to easily prepare demand letters. Once a demand is made by the attorney the clock on the potential attorney’s fees due him from the business will start to tick. One who receives such a demand should contact an attorney as soon as possible for an assessment of the potential exposure and a plan of action.
Weber, Crabb & Wein have experience in dealing with ADA claims and is available to assist businesses and individuals in navigating this area of the law.