March 24, 2018 | Tips and Tools
ADA-Compliant Websites: Why are Franchisors Being Sued?
In recent years, hundreds of lawsuits have been filed against companies, including franchisors, alleging that their websites do not comply with the Americans with Disabilities Act (“ADA”). In this post, we provide short answers to common questions these lawsuits raise.
1) Does the ADA apply to websites?
The ADA was enacted before websites existed and does not expressly apply to online activity, but rather to any “place of public accommodation.” The Department of Justice (“DOJ”)—the government agency tasked with enforcing the ADA—has taken the position for many years that websites are places of public accommodation. And it has brought numerous enforcement actions against organizations with inaccessible websites. Courts, on the other hand, are divided. Some apply the ADA to online activity. Others do not. Others still apply the ADA to websites where a “nexus” exists between online activity and a physical location (for example, the ADA applies to a website for Target, which has brick and mortar locations, but not Netflix, which does not).
2) Who is bringing these lawsuits?
Plaintiffs’ firms are largely responsible for the current wave of litigation. Under the ADA, private citizens can seek a court order requiring the offending company to take corrective action. Although they typically can’t seek damages, plaintiffs are entitled to their attorneys’ fees and costs—which probably explains what is driving these lawsuits.
3) What constitutes “inaccessibility”?
Websites may be inaccessible to individuals with varying degrees of hearing, physical, neurological, and cognitive impairments. The most common complaints are raised by blind and visually-impaired individuals, who use assisted-viewing technologies such as screen readers, special browsers, and other software that adjust the website’s layout, size, and color for better accessibility. Lawsuits are brought when websites (or mobile web applications) are not compatible with these types of technologies.
4) How do franchisors ensure that their websites are compliant?
Currently, there are no regulations governing website accessibility for private websites, although the DOJ plans to release some in 2018. Until then, companies must look to other sources for guidance. For example, in its enforcement actions, the DOJ often requires companies to revise their websites to comply with the Web Content Accessibility Guidelines (“WCAG”) 2.0 Level AA Success Criteria, which were developed by the World Wide Web Consortium, an international organization that includes technology giants like Google and Facebook. The WCAG success criteria are highly technical, but click here for a quick reference. Franchisors should use web developers or other vendors who can ensure compliance with these standards at a minimum.
5) Shouldn’t franchisors wait for the DOJ regulations before taking corrective action?
The DOJ has been tinkering with regulations since 2010, and it’s unclear whether issuing them will be a priority under the new administration. Meanwhile, lawsuits persist, and the cost of defending against these actions may exceed the cost of updating a website, even if subsequent DOJ regulations require further updates. Moreover, tens of millions of consumers in the United States are affected by varying degrees of visual and hearing impairments, and ensuring that this segment of the purchasing population is able to use your company’s website makes good business sense.