In February 2017, we reported on a surge in website accessibility lawsuits brought under the Americans with Disabilities Act (“ADA”). This litigation trend has accelerated over the past year and shows no signs of slowing down.

Title III of the ADA prohibits discrimination against disabled persons in places of “public accommodation.” Generally, businesses that provide goods or services to the public must provide disabled individuals with the same type of access to those goods and services as they provide to individuals who are not disabled, and must remove certain existing barriers to access. Although the ADA was enacted long before the ubiquity of websites and e-commerce, retail and hospitality businesses are targeted frequently with claims that their websites (and mobile applications) are inaccessible to blind and visually-impaired individuals.

These website accessibility claims present a challenge for businesses because, despite earlier efforts, the Department of Justice has not issued guidelines or promulgated regulations for website accessibility. In this void, plaintiffs and courts have increasingly looked to Web Content Accessibility Guidelines (“WCAG”) developed by a private standards setting organization. The WCAG, however, has not been adopted in an administrative rulemaking process and does not establish legal requirements for ADA compliance.

Typical defenses to website accessibility claims include arguments that websites are not public accommodations and that the WCAG cannot be used in place of regulatory rulemaking. A few court decisions appeared to support these defenses, with rulings that the ADA did not apply to websites or that only minimal accessibility features were necessary for compliance. Currently, there is a case pending in the Ninth Circuit Court of Appeals, which has jurisdiction over Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon, and Washington, challenging the applicability of the ADA to websites and use of the WCAG on constitutional due process grounds.

Those court decisions are outliers. Many courts have allowed website accessibility claims to proceed under the ADA where a “nexus” exists between the physical place of public accommodation and the particular website or mobile application. As a result, websites or mobile applications which enable the public to purchase, view, or reserve goods and services should be considered as within the ADA’s scope. In addition, courts increasingly have incorporated or approved the WCAG as a website accessibility standard. For example, in June 2017, the first trial concerning website accessibility concluded in a Florida federal court. The defendant, Winn-Dixie grocery stores, was ordered to comply with the WCAG. More recently, in August and December 2017, a New York federal court held that the ADA and state civil rights laws applied to Blick Art Materials’ website and approved a class settlement agreement requiring Blick to implement the WCAG. In this decision, the court explained that the specific WCAG 2.0 Level AA standards provide “adequate controls to allow visually impaired individuals to access the Internet …. In the absence of competing standards, and through demonstrating that the standards are nearly universally accepted as providing adequate access to the visually impaired, the court can appropriately accept the present guidelines as presently adequate.”  Andrews v. Blick Art Materials, LLC, Case No. 1:17-cv-00767, Doc. #42 at 33 (S.D.N.Y. Dec. 12, 2017).

Businesses should take notice of the growing number of website accessibility lawsuits and majority view that the ADA applies broadly to websites and the WCAG provides accessibility standards. Although the lack of clear regulations raises multiple questions about the scope of required website accessibility measures, a proactive approach to accessibility should help businesses reduce the risk of being targeted by a lawsuit.