The proliferation of accessibility lawsuits under Title III of the Americans with Disabilities Act (ADA) has not abated. It is well-documented that ADA-related litigation increased by 37% from 2015 to 2016, which is symptomatic of long-term trends. Growth is fueled in part by litigants’ increased focus on internet-based technologies, including websites and mobile applications. This trend is unlikely to wane in the near future, especially given the continued expansion in e-commerce and internet-enabled applications that retailers, hospitality providers, and other commercial enterprises rely on for advertising, customer engagement, and sales growth.

Title III of the ADA prohibits discrimination against disabled persons in places of “public accommodation.” As a result, businesses that provide goods or services to the public must provide disabled persons with the same type of access to those goods and services, and must remove certain existing barriers to access. Although individuals may have legitimate claims under Title III, the majority of these lawsuits are filed by a small cadre of plaintiffs’ attorneys and advocacy groups. These attorneys and groups specialize in identifying potential ADA violations, locating suitable plaintiffs, and then filing numerous lawsuits that typically settle quickly for nuisance amounts. The incentive for these serial litigants is the ADA’s private enforcement incentive: plaintiffs who prevail on their claims generally recover attorneys’ fees, expert witness costs, and other legal expenses.

With few exceptions, courts interpret Title III as applying to websites and mobile applications. In particular, courts have viewed websites and mobile applications as “public accommodations” where they enable the public to purchase, view, or reserve goods and services. This implicates most websites and mobile applications offered by retailers, restaurants, and hospitality and other service providers.

Title III’s specific technical requirements are complicated and often misunderstood.  In addition, there are currently no specific ADA standards for websites or other internet-enabled technologies. To address this void, the Department of Justice is working on regulations. The Department of Justice began that process in back in 2010, with the anticipated publication date sometime in 2018. However, the current political climate and associated regulatory uncertainty may further delay these regulations.

This lack of regulations creates challenges for businesses—whether designing or modifying their websites or responding to a demand from a plaintiff’s attorney. As we mentioned in an earlier post, the Department of Justice has used the Web Content Accessibility Guidelines 2.0 when entering into settlement agreements with businesses. We suspect that the Department of Justice’s internet accessibility regulations, whenever they are issued, will be based on these or similar guidelines. For that reason, until the issuance of definitive regulations, some businesses have decided to look to these guidelines when designing or modifying their websites and mobile applications. The guidelines include detailed technology and design recommendations, including:

• Providing alternative text for screen reader technology (converting text to audio);
• Providing captions for video, and providing transcripts for audio;
• Making file downloads accessible;
• Not relying on color alone to convey meaning; and
• Making sure content is structured, clearly written and easy to read.

The lack of Title III website accessibility guidelines creates uncertainty for businesses. Until definite regulations are promulgated, many business owners have concluded that incorporating principles and recommendations from the Web Content Accessibility Guidelines 2.0 is the best approach. That also may help persuade potential litigants trolling for their next lawsuit to look elsewhere. Businesses are well-advised to be proactive, remain vigilant with their website and mobile application design and maintenance, and seek legal counsel to address any questions or concerns.