ANALYSIS: Lawsuits increase, alleging websites are not compliant with ADA
A new wave of lawsuits is being filed across the country under the Americans with Disabilities Act (ADA). The ADA is a federal law passed in 1990 requiring “reasonable accommodations” in “any place of public accommodation” to make them accessible to people with disabilities. Examples of ADA reasonable accommodations are wheelchair ramps and handrails.
The new lawsuits allege that the Internet is a place of public accommodation. Accordingly, companies like auto dealers that use websites in connection with their physical stores must provide reasonable modifications in their website technology for people who are blind, deaf, or suffering from another disability that precludes them from being able to use the websites.
In general, for a website to be reasonably accessible to disabled people, the hardware and content must be coded so that screen-reading software can convert the words to an audio translation. Video that appears on a website should include descriptions for the deaf. Also, all interactive functions must be operable through keyboard commands for people who can’t use a mouse.
While there is no formal regulation on what these standards should consist of, there is a generally accepted industry standard series of guidelines developed by the World Wide Web Consortium. These are known as the Web Content Accessibility Guidelines version 2.1 (WCAG), to make websites more accessible to disabled people, and they are fairly complicated. Government websites already follow the WCAG, but private business websites are typically loaded with images and video making them more difficult to restructure to meet these guidelines, according to industry experts.
The cost of making sites accessible ranges from several thousand dollars to a few million dollars, depending on the complexity of the site, according to trade groups and experts. The costs of defending the lawsuits and paying the plaintiffs’ attorneys fees (the real reason for the lawsuits) are also expensive.
These lawsuits started over a decade ago but were temporarily stalled by the Obama administration’s Department of Justice, which was in the process of developing precise standards for making websites ADA-compliant. Four Advanced Notices of Proposed Rulemaking were issued on July 26, 2010. Presumably, these standards would have been less costly and complex than the WCAG and would have set a standard for legal compliance.
On Dec. 10, 2017, the Trump administration withdrew all four Advanced Notices of Proposed Rulemaking stating “The Department (of Justice) is evaluating whether promulgating regulations about the accessibility of Web information and services is necessary and appropriate. Such an evaluation will be informed by additional review of data and further analysis. The Department will continue to assess whether specific technical standards are necessary and appropriate to assist covered entities with complying with the ADA.”
Since then, numerous new lawsuits have been filed against many major retailers, especially in California. That may be because a California law sets a minimum dollar amount for damages of $4,000 plus attorney’s fees for each ADA violation, a minimum not imposed in most other states. In many states and under the ADA, only equitable relief may be sought. The minimum damages, according to lawyers who defend such lawsuits, makes suing in California more lucrative.
More lawsuits were filed in federal court in the first six months of 2018 than in all of 2017. With legal action skyrocketing, the number of cases filed in 2017 was more than four times the 262 filed in 2016 and nearly 20 times the 57 seen in 2015. Moreover, businesses located in all but 12 states have fallen victim to website-related lawsuits and threats of suits, paying anywhere from $10,000 to over $90,000 to resolve the claims. One plaintiff recently sued 50 colleges claiming he uses a screen reader and experienced barriers when trying to access the colleges’ websites.
Many lawyers specialize in bringing these suits against one specific industry like auto dealers. Filing large numbers of similarly worded ADA lawsuits against one type of business is sometimes referred to as “drive-by” litigation. This activity is widely seen as a means to get a quick settlement, rather than improve accessibility.
The political world has taken notice as well. By a 225-195 vote, the U.S. House of Representatives passed legislation in February 2018 that would have substantially amended the ADA to force prospective plaintiffs to first provide written notice of noncompliance to public accommodations before filing suit. The proposed amendments to the ADA would then provide the company 60 days to come up with a plan to address the plaintiff’s concerns. Disability advocates are worried that the ADA Education and Reform Act would essentially gut the public accommodation provisions of the ADA; they would prefer to see frivolous “surf-by” lawsuits handled by local bar associations or judges. The legislation died in the U.S. Senate last term but is likely to be reintroduced.
What’s a dealer to do?
Unfortunately, there is no magic solution, and most fixes can be costly. The WCAG is not legislation, and it isn’t even a regulation issued by a government agency. It does seem to be the industry standard however, and most settlements of these cases have involved the defendant agreeing to reconfigure its website to comply with the WCAG.
WCAG’s underlying goal is to establish websites that “POUR” — that is, sites that are perceivable, operable, understandable, and robust. A company’s IT department or contractor can run basic applications like the Web Accessibility Evaluation Tool, but these online apps are not foolproof. Moreover, some web designers have suggested that the WCAG standards are too difficult and expensive to implement.
Many smaller website owners will prefer to try to fly under the radar until the federal government provides better guidance which may not be until the next administration. But more conservative businesses may find that retaining a reputable web designer to ensure full compliance with WCAG is the better way to go.
Ultimately, everyone agrees that making the Internet more accessible to persons with disabilities is a worthy goal. Most dealers would prefer to accomplish this goal by involving fewer lawyers however.
Randy Henrick is an auto dealer compliance expert who offers compliance consulting services to dealers at www.AutoDealerCompliance.net and can be reached at AutoDealerCompliance@gmail.com. He served for 12 years as Dealertrack’s lead regulatory and compliance attorney and wrote all of Dealertrack’s Compliance Guides. He has presented workshops at four NADA national conventions and speaks to dealer associations, 20 groups, and prepares training and other compliance materials for dealers. Because of the general nature of this article, it is not intended as legal or compliance advice to any person but raises issues you may want to discuss with your attorney or compliance professional. Contact him directly for advice on this or any other sales or F&I issue affecting your business.