During the COVID-19 pandemic, lawsuits alleging website noncompliance with the Americans with Disabilities Act (ADA) have been on the rise, due in part to more people spending time online, more attorneys seeking out plaintiffs, and garnering attention from Congress members who have reintroduced reform legislation.
ADA website compliance is the law, and businesses need to take it upon themselves to make sure they are compliant, and to protect themselves from expensive litigation, Maryann Marino, Southern California regional director of California Citizens Against Lawsuit Abuse (CALA), told the Northern California Record by email.
“Although the pandemic slowed down many industries and forced many small businesses to close, some attorneys found that working from home in front of their computer that they could continue scouring the internet looking for business websites that were not in compliance with the ADA,” Marino said.
Citing data from David LoPresti of ADA Compliance Professionals, who joined CALA for a podcast earlier this year, Marino pointed to a 23% increase in ADA-related digital lawsuits in 2020 over 2019.
“Many of the technical violations found in ADA website lawsuits really do not hinder the access but still qualify under the Unruh Act as a civil rights violation, meaning that attorneys could claim statutory damages for up to $4,000 per technical violation on top of attorney’s fees,” Marino said.
The cases are difficult to defend.
“Because there are no federal guidelines that have been agreed to or passed, leaving businesses vulnerable to a shakedown ADA website lawsuit where the amounts that they sue for are far less than the money it costs to litigate and defend themselves,” Marino said.
Recent federal appeals court decisions – in the Ninth and 11th circuits – have resulted in differing opinions with regard to whether websites fall under Title III of the ADA, and prompting calls for further direction from the Department of Justice, which enforces the law.
In the meantime, as LoPresti has noted, business owners are expected to follow Web Content Accessibility Guidelines (WCAG) and Section 508 Guidelines, which the federal government requires for its own digital products.
It’s not uncommon for serial litigants to demand outlandish amounts to settle a case as a way of intimidating an uninformed business owner into avoiding a costly court battle, Marino said.
“Many of the technical violations do not impair access but still fall within the guidelines of compliance, meaning that it may be easy for someone trolling a website to find a minor violation, but it is still a violation,” Marino said. “Their goal is to ‘stack’ these minor violations to force the defendant to pay a larger settlement.”
Earlier California legislation to rein in ADA lawsuits has been geared toward brick-and-mortar retailers.
“CASPs (Certified Access Specialists) can verify the public accommodation conditions of a commercial property,” Marino said. “Nothing in their training or certification correlates to websites and digital accessibility.”
With mandated restaurant closures and other restrictions amid the pandemic, many had to shift to operating online, leading to more ADA website lawsuits.
“Many California restaurants and businesses are struggling to stay alive,” Marino said. “The additional cost of a shakedown lawsuit could wipe them out, force them to close and cost jobs.”
Lawsuit proliferation also amounts to a “tax” on the economy, Marino said.
“Here in California, the lawsuit tax leads to an annual estimated $15.1 billion lost in direct costs and 242,761 jobs according to The Perryman Group. This amounts to each Californian paying a $594.74 ‘tort tax,’” Marino said.
Legislation is needed that would call for a real plaintiff to have actually experienced harm by being unable to access a business website, and it needs to provide for the right to cure, Marino said.
“It would also be a huge assistance for the Department of Justice to further elaborate the definition of what is sufficiently accessible for a website or other digital product, such as an app or PDF or online curriculum,” Marino said. “Such clarification would minimize the gray areas that serial litigants can leverage for lawsuits.”
A variety of professional consultants can help companies and small businesses access their potential website vulnerabilities, Marino said.
“It is more advantageous for a business to make an investment to protect themselves from a shakedown lawsuit, instead of having money taken out of their business to pay for technical violations of up to $4,000 per violation – an amount that could pay for a monthly salary, rent, or piece of new equipment,” Marino said.
With more of our daily lives being conducted online, the need for digital accessibility will continue to grow, Marino said.
“Beyond the risks of a lawsuit, CDC data shows that 61 million American adults live with a disability, and one in four (26 percent) have some type of disability,” Marino said. “It is in the interest of all businesses to do all they can to make sure their websites can easily reach as many people as possible.”