Web Site Accessibility & ADA Title III Compliance

Sep 25, 2020 | ADA, Cybersecurity, WCAG, Website Compliance | 0 comments

It is estimated approximately fifteen percent of the American population is legally disabled, a staggering 61 million people.[1] This number swells to forty percent for individuals over the age of 65 years old.[2] For these individuals, Web site accessibility is a primary concern, particularly for those who use assistive technologies, such as screen readers for the visually impaired. Accessibility issues affect Web site owners and users in unique ways, reaching much further than traditional handicapped accessibility of brick and motar locations. For disabled individuals, accessibility may involve visual, physical, speech, language, learning, auditory, cognitive, or neurological disabilities.

The last several years have seen a dramatic rise in Web site accessibility related lawsuits filed under Title III of the Americans with Disabilities Act of 1990 (the “ADA”). The volume of suits has created a niche legal practice area wherein disabled plaintiffs file by the dozen. In Suffolk, Virginia, for example, federal court records show eleven “cut and paste” suits filed by a single visually impaired individual over a one-month span in 2019, prompting the local Chamber of Commerce to urge businesses to check their Web sites carefully so as to ensure ADA compliance out of fears that “businesses are being unfairly targeted not realizing they are non-compliant.”[3] The Suffolk suits allege business from hotels to game farms failed to “design, construct, maintain, and operate, their Web sites to be fully accessible to disabled individuals.[4]

The Suffolk cases are in no way unique. Businesses from wineries to Beyoncé’s personal Web site have been named as defendants in everything from single-plaintiff to class action suits.[5] Seyfarth Shaw, LLP, a leading international law firm, projected that ADA Title III lawsuits filed in 2019 would top 11,000, compared to just 4,436 suits filed in 2014 with the increase largely attributable to accessibility suits.[6] These projections were not far off, with an average of seven federal court suits filed per day in 2019.[7] Of these, businesses located in California are the most targeted for suit followed by New York and Florida. Hotels are particularly vulnerable due to additional ADA regulations requiring hotels to publish information regarding accessible facilities.

Jacob Riff, COO of Monsido, Inc., a software product that aids both public and private entities with working towards Title III compliance, has noticed his customer numbers doubling each year for the past three years as companies become more “aware that accessibility in all areas of business is something that can’t and shouldn’t be seen as a lower priority. That obviously affects their most important marketing- and information asset – their website.”[8]

Although efforts are being made on both the national and state levels to curb this onslaught of litigation, for the moment, every entity, both public and private, should consider Title III Web site compliance a top priority for 2020. For that reason, this Brief will provide its readers with an overview of the law applicable law, compliance tips, and outlook for the future.

Topics included:
Applicable regulations
WCAG 2.0/2.1 Compliance Standards
WCAG Principles
WCAG Guidelines
Conformance & Conformance Claims
The Future of Title III Web Site Compliance
Special Note For Employers
Compliance Tips & Strategies for Mitigating Risk        

[1] Ronit Molko, The Current State of Website Accessibility for Disabled Individuals, Forbes, Jan. 30, 2020.
[2] Id.
[3] Tara Smith, Forbes, Lawsuits target local businesses with websites deemed inaccessible to the visually impaired, Feb. 25, 2020.
[4] Id.
[5] Id. See also, Conner v. Parkwood Entertainment, LLC, S.D. N.Y., Jan. 3, 2019, Case No. 19-cv-53, available at https://www.scribd.com/document/396757637/Conner-v-Parkwood.
[6] Minh Vu et al., Seyfarth Shaw, LLP, Federal ADA Title III Lawsuit Numbers Continue to Climb in 2019, July 26, 2019.
[7] Kristian Launey et al., J.D. Supra, Federal Website Access Lawsuit Numbers Increase 7 Percent in 2019, With Possible Bump from Supreme Court Denial of Cert in Domino’s, Nov. 4, 2019.
[8] Interview by author, Feb. 24, 2020.

Jessica M. Merlet is the founding and principal attorney of the Firm and has more than 15 years of experience in the law. Jessica concentrates her practice on start-ups and SMBs in the technology, software/SaaS, product development, eCommerce, and staffing sectors. Her work as general counsel includes transactional (inc. gov’t contracts,) corporate, data protection, compliance, and labor and employment concerns. She is admitted to practice in the states of Illinois (’08), Georgia (’09), Washington, D.C. (’10), and New York (’20). 

Jessica M. Merlet

Founder and attorney of Octans Legal


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