ADA accessibility litigation: Audit yourself!

This is a public service announcement.

The wave of accessibility litigation under Title III of the Americans with Disabilities Act is coming to you, assuming it hasn’t already.

Before I go on, I want it to be clear that I favor accessibility for individuals with disabilities. However, much of the accessibility litigation has become a racket, and it targets even businesses that try to do the right thing and comply with the law.

What follows is an oversimplification of the legal stuff.

There are two basic types of ADA accessibility lawsuits. The first and more common involves physical accessibility to a “brick and mortar” place of business. Normally, a law firm sends a tester using a wheelchair to a business – typically, a retail store, hotel, or restaurant -- to see whether individuals with disabilities have access in accordance with regulations that can be arcane and very specific. Sometimes there are technical violations. Other times, there are genuine barriers to access. The tester reports back to the law firm, which then may send a demand letter to the business or file a lawsuit. The law firm offers to settle quickly if the business agrees to certain modifications and, of course, pays the law firm some money. These cases usually allege some sort of violation, and the amount of money involved isn’t enough to justify the cost of defense.

The second type involves accessibility to a website. A tester, usually with a visual impairment, tries to use the website, reports back to the law firm, and similar demands and settlements ensue. Or a freelance “surf-by” tester does it on his or her own. Website accessibility cases involve more complex legal questions and more expensive modifications, and, of course, the tester’s physical presence is not required.

Website accessibility litigation is spreading fast, but many businesses never even think about accessibility for their websites. The U.S. Department of Justice just issued a “guidance,” a form of government interpretation of the law, that really has no binding legal effect. This particular guidance isn’t very helpful because it doesn’t take a position on the controversial questions, mainly “what type of website is a place of public accommodation” such that accessibility is required.

Accessibility lawsuits have been rampant in California, New York, and Florida for years because it is easy money for the lawyers. But there is reason to believe that the litigation is spreading to other states, as well. Businesses should consider auditing themselves by using their own testers for physical facilities that are open to the public and and asking their website maintenance vendors to evaluate their websites.

Now you know.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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