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Limits to online accessibility could run afoul of disabilities law

Joe Slaninka, a teacher's assistant at the Viscardi

Joe Slaninka, a teacher's assistant at the Viscardi Center in Albertson, which provides services to children and adults with disabilities, works at an adaptive keyboard.   Credit: The Viscardi Center

Businesses should pay heed to whether their goods and services are accessible to those with disabilities from their websites to physical locations to stay on the right side of federal law and their potential customers.

This year is on pace to be a record year for lawsuits filed under Title III of the Americans with Disabilities Act with federal filings on track to top 12,000, according to law firm Seyfarth Shaw LLP. Title III prohibits discrimination "on the basis of disability in the activities of places of public accommodations."

Among hot areas is website accessibility claims alleging that websites have obstacles preventing persons with disabilities from accessing them.

"Businesses need to consider how people with disabilities can access their goods and services not only to avoid being named in the next lawsuit or Justice Department investigation, but also because it’s good business," says Minh Vu, a partner in Seyfarth Shaw’s Washington, D.C. office and head of the firm’s ADA Title III Specialty Practice Team.

The DOJ hasn’t issued specific regulations to address mobile app/website accessibility, but has taken the position that websites and mobile apps are covered by Title III, Vu says.

Without formal regulations, lawsuits continue to be filed.

Lawsuit filings rise

ADA Title III website accessibility lawsuit filings in 2020 jumped 12% over 2019, despite a midyear pandemic dip in filings, according to Seyfarth Shaw. In general, these cases rarely ever get litigated to a court judgment as they resolved early, Vu says.

"The plaintiff’s bar knows that most websites out there aren’t accessible and they are difficult to make accessible," she says. "Thus defendants will have a difficult time defending these lawsuits."

Further, "even businesses that have accessible websites may choose to settle these suits for nuisance value because defending them and winning will cost way more than settling them," Vu says.

Suits over online access aren’t the only growing category.

Seyfarth anticipates a record 12,000-plus ADA Title III federal lawsuit filings this year, fueled partly because each year "there's some … new type of claim under the ADA plaintiffs come up with," Vu says. For example, in New York in 2019, over 200 lawsuits were filed claiming gift cards weren't offered with Braille, she says.

No Braille on gift cards?

Plaintiffs lost most of these cases on motions to dismiss, but a few are on appeal in the Second Circuit, says Vu, observing, "I think it’s very unlikely that the Second Circuit will find that Braille gift cards are required."

Website/mobile app accessibility cases are a dominant trend, says Doug Rowe, a partner at East Meadow-based Certilman Balin Adler & Hyman.

Among the complaints are that the sites at issue may not be accessible to someone who, for example, is vision impaired because they lack compatibility with assistive technology such as software that reads text aloud, he says. With no official web accessibility criteria listed in ADA laws, he advised businesses follow the Web Content Accessibility Guidelines put out by the World Wide Web Consortium. See https://bit.ly/3lFRaYa

The Viscardi Center in Albertson, a network of nonprofits that provides services to children and adults with disabilities, also assists businesses, government agencies and school districts with making their websites, documents and videos accessible, says Chief Information Officer Mike Caprara.

In recent years, they’ve seen a 50% increase annually in new clients seeking services, he says.

Beyond online

Path Audio Visual in Seaford, which provides luxury home automation systems, was one such recent client. Path CEO Michael Russo decided to have Viscardi add accessibility features to his website when he finished a project at Viscardi putting an automation system in a newly renovated independent living house the Center will soon unveil for students and adults with disabilities.

If any of these students want to add these features to their own homes, Russo wanted them to be able to access and navigate his site.

Beyond online matters, companies should assess their accessibility on all levels, says Jennifer Sherven, a partner at Kaufman Dolowich & Voluck, LLP in Woodbury.

At a physical premise, it’s a good idea to have an architect evaluate it and what remediation may be necessary. especially at older facilities, she says. For instance, look at a facility’s bathrooms and make sure for example grab bars are installed, Sherven says.

She’s seen a steady increase in Title III lawsuits, including a few mask-related disability claims. So far these anti-mask lawsuits aren’t doing that well, but usually it’s because the plaintiffs don’t have a legitimate disability and don’t qualify for ADA protection, Vu says. But there other COVID issues.

Some public accommodations like hotels/casinos, when creating systems for COVID safety, may have not taken all disability considerations into account, says Jeff Agranoff, HR Consulting Principal at Jericho-based Grassi Advisors & Accountants. Example: a casino client that put partitions on some gaming tables, but not enough on handicap-accessible tables.

"Businesses need to remember they need to meet ADA requirements even with being COVID-compliant," he says.

Number of ADA Title III Federal Lawsuits Filed Each Year

2021 (as 6/30): 6,304

2020: 10,982

2019: 11,053

2018: 10,163

2017: 7,663

2016: 6,601

2015: 4,789

2014: 4,436

2013: 2,722

Source: Seyfarth Shaw LLP

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