The Rise of Website Accessibility Lawsuits under the American with Disabilities Act (ADA)
This post was authored by Kaitlyn B. Rowe, J.D., AIC, Senior Claims Litigation Specialist at Rose and Kiernan, Inc.
There has been a recent uptick in lawsuits filed under the Americans with Disabilities Act (ADA) alleging websites are not accessible to those individuals with disabilities. The ADA became law in 1990, at time before the internet was ingrained in our everyday life. Title III of the ADA prohibits discrimination on the basis of disability in the activities of public accommodations, which are enumerated businesses open to the public, and Title II of the ADA applies to state and local governments. Therefore, both the public and private entities must be aware of the potential litigation brought by individuals with disabilities who are unable to access the websites of those entities.
Many of the lawsuits are filed by those with visual or/and hearing impairments claiming that the websites are not compatible with the assistive technology relied on by those individuals. New York, Florida and California have seen the most lawsuits, however suits have been filed in many other states, in both state and federal courts. The ADA does not provide for monetary damages as relief, only injunctive relief, however attorneys’ fees can be sought and sometimes become exorbitant. Additionally, several states, including New York, do allow for monetary damages in addition to injunctive relief under their local and state laws.
Some of these lawsuits have been class action and others have been pursued by individuals. There have also been serial plaintiffs who have filed dozens of lawsuits against different entities. A visually-impaired woman recently sued a dozen wineries in New York for their website not being appropriately accessible. And in December 2018, a blind man from Brooklyn sued 50 colleges throughout the country at once alleging their websites were not compatible with his screen reader.
Municipalities may be at risk of litigation due to the accessibility of their town board or city council meetings on their website. Under Title II, public entities are required to “furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity.” Therefore, if a municipality is livestreaming these meetings on their website, closed captioning or other assistive technology may be necessary.
In the private sector, banks, credit unions, grocery stores, fast food restaurants, country clubs and retailers have all been subject to such litigation claiming their websites are not compatible with assistive technology. Hotels and other venues can be at risk for ADA website litigation if they fail to clearly identify and describe whether the guest rooms and bathrooms are accessible to potential patrons who are physically disabled. While some claim these lawsuits are frivolous and opportunistic attempts for plaintiff attorneys to make money, disability advocates believe the litigation is an effective tool to force companies and municipalities to comply with the almost 30-year-old law.
Whether public or private, entities throughout the U.S. are at risk of ADA website litigation. From an insurance perspective, there can be coverage for these claims under an Employment Practices Liability (EPL) policy if there is third-party coverage under the policy. The third-party coverage applies to discrimination claims brought by a customer, client, vendor or supplier. Generally, there is a requirement of monetary damages being sought to trigger coverage under the policy, therefore claims seeking only injunctive relief are often not covered. However, each claim should submitted to your insurance agent or broker for individual review by the insurance company.
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