What They Can’t See Might Hurt You

Is your company's website covered by Title III of the Americans With Disabilities Act? If so, is it accessible to persons with visual disabilities? Have you ever even thought about it? Take a lesson from Hooters and give your website a checkup.

This week, the U.S. Court of Appeals for the Eleventh Circuit revived a lawsuit filed by a vision-impaired individual under the Americans with Disabilities Act demanding that the Hooters restaurant chain make its website accessible for those with vision impairment. Hooters had urged dismissal of the case on the ground that it had already prepared and implemented a remediation plan to come into ADA compliance in response to a different lawsuit. While the district court below agreed with Hooters, the 11^th Circuit Court of Appeals held that the remediation plan does not render the second lawsuit moot.

Website accessibility lawsuits are on the rise and need to be on your company's radar. More companies are receiving demand letters and/or lawsuits alleging that a business denied a usually blind or vision-impaired individual access to its goods and services because the business' website was not accessible, in violation of Title III of the Americans with Disabilities Act (ADA) and state laws. In 2017, plaintiffs filed at least 814 federal lawsuits about allegedly inaccessible websites, including a number of putative class actions. The majority were filed in New York and Florida (the Hooters cases, discussed above, were filed in Florida, as was a major case against Winn-Dixie).

The basic questions that you need to ask to determine if your website is covered by Title III of the ADA are:

1. Does your website engage in commercial activity for the benefit of the general public; and if so


2. Will the law treat your website as a public accommodation, or as the service of a public accommodation?

At present, the parameters of what constitutes "commercial activity" are unclear. On one end of the spectrum is the company website that is purely informational or educational in nature; that website is not likely to be covered by Title III's accessibility requirements. However, a website that sells goods or services directly to the public may be regarded either as a sales or service establishment in its own right, or as a service of such an establishment, and may be covered by the ADA or comparable state laws. Furthermore, a website that does not actually sell any goods or services but engages in some form of commercial activity may still be subject to the ADA or a comparable state law if it facilitates sales.

In addition to the public accommodation issues, companies also need to be aware of lawsuits filed by applicants challenging online applications as being inaccessible to vision impaired persons. Most of those suits are being filed in California, and we will see how the courts handle them. Keep in mind that the legal standard that applies to employment disability discrimination claims is different from the standard applied to disability discrimination claims brought against public accommodations. Title III, the public accommodation standard, generally requires (with exceptions) that businesses take affirmative, proactive measures to ensure individuals with disabilities are afforded equal access to their goods and services. In contrast, the prohibition against discrimination on the basis of disability in employment requires employers, upon notice that an employee or applicant for employment requires a reasonable accommodation to perform the essential functions of his or her job, or to apply for employment, to engage in the interactive process to devise such a reasonable accommodation. The employer does not need to provide the employee or applicant's requested accommodation as long as the accommodation provided is effective.

Because there is a lack of clear regulations on the issue of website accessibility, and with no regulations coming from the Department of Justice in the near future, website accessibility lawsuits are likely to increase, and it's going to be like the "wild, wild west" until courts can sort out some of the legal issues. In the meantime, it would be a good idea to consult with counsel about your company's potential exposure to these types of lawsuits.