Businesses across the United States increasingly are facing lawsuits under the Americans with Disabilities Act. It is not due to a failure build ramps or elevators at their stores, but over allegations of a different kind of inaccessibility — their websites.
No one keeps statistics on cases involving noncompliant websites, and such lawsuits still make up a relatively small share of the overall number of disabilities actions. But advocates on both sides say such legal actions are exploding as the Internet becomes more embedded in daily life.
The civil complaints accuse some of America’s most recognizable companies of failing to provide equal web access to people with disabilities ranging from blindness to deafness. They can cost big bucks — both in defending against the allegations in court and in paying settlements and redesigning websites.
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Cory Andrews, senior litigation counsel for the Washington Legal Foundation, called the lawsuits the “modern equivalent of the hot coffee at McDonald’s.”
Some people are virtually making a living through lawsuits. The Sun-Sentinel newspaper in South Florida reported that the same 10 plaintiffs had filed two-thirds of the 2,300 disabled-access lawsuits in the Southern District of Florida since 2013. One man, Howard Cohan, has filed 606.
“It may not be a scam, but it is a racket,” Andrews said, adding that rather than inspecting physical locations, plaintiffs in website cases “can just sit in bed in your pajamas and file lawsuits.”
Target set a precedent in 2008 when it agreed to settle a lawsuit alleging that its website was not accessible to the blind, agreeing to improve the website and pay $6 million into a “Damages Fund” for members of the class-action lawsuit. The court also awarded about $3.7 million in attorney fees.
For the first time, a court ruled that the law applies even to businesses that exist only in cyberspace.
In September, a federal judge refused to dismiss a lawsuit against Scribd, a subscription service allowing customers to read an unlimited number of e-books. The company had argued that the ADA did not apply because it has no physical location. For the first time, a court ruled that the law applies even to businesses that exist only in cyberspace.
Recent settlements involve the Wal-Mart entertainment subsidiary VUDU, the online grocery retailer Peapod, and even a federal agency — the General Services Administration. They have agreed to rewrite code so their sites interact with reading devices and add subtitles to videos.
A pair of lawsuits filed earlier this year in Boston against Harvard University and the Massachusetts Institute of Technology demand that the schools add subtitles to every one of the thousands of videos they have online.
Minh Vu, an attorney with Chicago-based law firm Seyfarth Shaw LLP, which tracks such litigation, said businesses are frustrated because the government has offered no clear guidance about what they must to do comply with the law. The Justice Department has been promising since 2010 to write regulations, but repeatedly has delayed that timeline.
This month, the government announced it was pushing the date back again. It now plans to publish regulations for private companies in 2018.
Even as the Justice Department drags its feet, Vu said, lawyers from the department have gone to court dozens of times to argue that companies have violated the ADA.
“There’s been a lot of confusion about what the law requires,” she said. “There are so many problems coming out of the DOJ’s lack of action … Why are we having to read the tea leaves?”
Disabilities rights advocates contend that even without regulations, the law is clear. Lainey Feingold, a lawyer in Berkeley, California, said the World Wide Web Consortium has guidelines for website accessibility for more than a decade.
“I’m frustrated that there’s frustration,” she said. “I feel like companies that are frustrated should get over it and start implementing a plan … The web needs to be accessible to everyone.”
Andrews said the law is unsettled because most business find it cheaper to settle than fight. He said the failure of the Justice Department provide guidance has hurt.
“That’s allowed the plaintiffs’ lawyers to have a field day,” he said. “Without a rule in place, there’s no guidance to businesses … It’s just the Wild West.”