Would you believe lawsuits related to companies’ websites are a big deal? They are, specifically when it comes to “website accessibility.” In fact, the lawsuits show no signs of slowing down.

What does this “website accessibility” actually mean? Well, stated simply, in the cases I’m referring to, an individual alleges that because of a physical disability (more often than not that of blindness or hearing), they’re unable to access information on the organization’s website and, therefore, the organization is in violation of the Americans with Disabilities Act (ADA).

According to an article I read that specifically tracks these types of cases, the number of website accessibility lawsuits filed in federal court since the beginning of 2015 has surged to at least 751 as of August 15, 2017, with at least 432 of those filed in just the first eight and a half months of 2017.

To break it down even further, the following is a sample relating to the number of federal website lawsuits by industry from January 2015 to August 15, 2017:

The question remains whether an individual will actually prevail on their alleged website disability claims. Complicating the matter is plaintiffs’ claims that rest on the application of a law Congress passed well before the Internet rose to prominence and daily use in society. Specifically, Congress passed the ADA in 1990, a time well before individuals used the Internet in their daily lives, and as such, the legislation makes no mention of the terms “Internet” or “website.”

The Department of Justice (DOJ), the agency tasked with enforcing the ADA, previously issued some guidelines surrounding this topic, but they have yet to pass any concrete regulations. Without DOJ guidance, state courts have created a hodgepodge of caselaw on the issue. In other words, there’s no real clear answer. Makes things difficult, right?

More and more business operators are turning to their insurance policies for potential coverage of website disability claims — specifically their Employment Practices Liability Insurance Policy. Unfortunately, no one policy is the same and all tend to answer differently. This is particularly true given most of the plaintiffs who allege a website disability claim under the ADA also allege violations of local and state laws.

To combat these claims, businesses with a Web presence should take steps to ensure their websites are accessible to those with disabilities, including blindness and deafness, particularly if a service is being offered through the website or the customer is able to purchase an item on the site. Most parties who are involved in website accessibility matters rely upon the Web Content Accessibility Guidelines (WCAG) 2.0 as a solid starting point to ensure a website’s content is more accessible in general. Following these guidelines will make content accessible to a wider range of people with disabilities, including blindness and low vision, deafness and hearing loss, learning disabilities, cognitive limitations, limited movement, speech disabilities, photosensitivity, and combinations of these. A complete list of guidelines within the WCAG 2.0 can be found by clicking here.

In some cases, organizations ultimately choose to remove content from their websites due to the large costs associated with bringing the website into compliance. For example: A large college institution in California offered all of its lectures for free on its website. A deaf plaintiff brought a website accessibility suit against the college alleging he wasn’t able to access the information because the videos lacked subtitles. The court sided with the plaintiff, and due to costs, the college removed all of the streaming lectures rather than providing subtitles for the same. As such, compliance with website accessibility seems to involve both a give and take to ensure the business’s or organization’s website complies with the ADA.

The problem with this all is that the law is as clear as mud when it comes to websites and ADA compliance. Until that’s resolved, it’s best to really review your website with all end-users in mind. Also, if you have questions, don’t hesitate to reach out. This subject certainly isn’t going anywhere, and our team is constantly reviewing, analyzing, and building our knowledge and expertise. We’d be happy to talk with you about any questions you may have.