Web Accessibility Lawsuits – How to Prevent and How to React

By | March 31, 2021
web accessibility lawsuit

ADA Accessibility Kiosk Series 2021 – Website Lawsuits Title III

Craig Keefner, editor

April UpdateCourt rules grocery store’s inaccessible website isn’t an ADA violation — The Winn-Dixie website isn’t accessible for blind users with screen readers. The two-judge majority placed a lot of weight on the fact that the ADA only applies to physical spaces. In their view, a website is not a public accommodation as the ADA defines the concept.

Another Winn-Dixie Analysis by JDSUPRA — The Court acknowledged that Gil could state a claim for a violation of the ADA if he could show that the website constituted an “intangible barrier” to his access to the goods, services, privilege’s, or advantages of Winn Dixie’s physical stores, but found that Winn Dixie’s website did not present such a barrier.

  • Picking up prescriptions is still physical — In the Eleventh Circuit, to establish a violation of the ADA based on an inaccessible website, a plaintiff must show that the inaccessibility of the website prevented him or her from accessing the goods, services, privileges, or advantages of a physical place of public accommodation. 
  • You can file in different court — thus we do not believe this decision will have much impact on the number of website accessibility lawsuits filed.
  • the likelihood of the U.S. Supreme Court taking up this issue has certainly increased now that there is a conflict between the Eleventh Circuit and the Ninth Circuit
  • Editors Note:  The Winn-Dixie website offers delivery and pickup services and takes the order online.  How does the court rebut that?

We’ve always known that unattended self-service kiosks and Point-Of-Sale are subject to ADA accessibility lawsuits.  Walmart in California learned that the hard way a few years back. California and Unruh Act are particularly profitable for lawyers.

Along with self-service, websites themselves have drawn their fair share of attention for accessibility as well. The pandemic though has served to amplify that segment as restaurants quickly erect their mobile and online ordering systems, sometimes too quickly.

Proliferation of Desktop and Mobile Ordering

It used to be you would walk in or drive up and order via the speaker and the underpaid employee (most likely) at the window. You assumed you would drop some change at the pay window accidentally and that half the time they will get any type of multi-item order incorrect.

Now you order pizza online and go to the restaurant to the digital order pickup window (or even a heated locker). See Digital Pickup Window Coming To Pizza Hut – Drive Thru Restaurants Snowballing — Three Lanes Now with Burger Lockers March 31, 2021 — From NRN March 2021 — Pizza Hut is launching a digital pickup window at 1,500 restaurants — The Hut Lane is a dedicated pickup lane that will allow customers to …

Lawyers targeting those websites for accessibility are naturally increasing. In 2020 the cases in NY increased by 49%  (1756 sites). There were more than 3,000 ADA digital accessibility lawsuits filed last year.  Too bad there isn’t some sort of ETF for lawsuits you could own.

From the California Dental Association March 2021:

There’s a rising wave of litigation based on violations of the Americans with Disability Act (AwDA). In addition to “drive by” lawsuits grounded in physical barriers to access, “click by” lawsuits are being filed in increasing numbers. Plaintiffs target office websites that are not accessible to those with hearing, vision or learning impairments.  

Most dentists and other small business owners earnestly want to comply with well-intentioned AwDA legislation; however, it continues to be exploited for financial gain by predatory plaintiffs.

Digital Accessibility — Who gets hit the most?

  • E-commerce or Hospitality (including food service) received the majority of claims
  • New York, California and Florida make up over 90% of cases – when you combine federal and state lawsuits

From Usablenet – the most common types of web accessibility lawsuits

ADA Lawsuit Example

ADA Lawsuit Example

One checkout option displays a pop-up window that prompts users to either login or checkout as a guest. This digital platform’s checkout popup was not registered by screen readers. This lawsuit alleges that blind users are unable to complete the checkout process.

It should be noted that historically and in 2020, website desktop lawsuits make up the majority of digital accessibility lawsuits filed in federal court.

What About the Pandemic?

It has made it worse sorry to say.

COVID Accessibility Lawsuits

COVID Accessibility Lawsuits Usablenet.com

 


What to do before you are sued

  • Have a blind user complete your top tasks on your website
  • Take inventory and collect data
    • identify all public facing content
    • do your videos use closed caption
    • run automation tests
    • look at a remediation plan
    • Document your completed accessibility testing results

What To Do If You Get Sued?

  • Accessibility widgets are not going to protect you and your site from a lawsuit. Most companies have not made accessibility a priority so they are vulnerable.
  • The usual course of action is to check with your legal team and they will generally recommend settlement which only encourages “click by” artists.
  • Is it digital accessibility or is it physical accessibility?
  • If it is a recurring plaintiff, check with lawyers who defended prior

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