Last September, we published an alert warning retailers of a looming expansion in the reach of Title III of the Americans with Disabilities Act that would impose requirements on e-commerce websites to make themselves more accessible to users with a wide variety of disabilities. While the US Department of Justice has yet to promulgate regulations specifying those requirements, enforcement actions by DOJ and threatened class action lawsuits by a number of plaintiffs’ law firms all point towards the likelihood that retailers' websites will have to meet Level AA of the Web Content Accessibility Guidelines v. 2.0.
The DOJ may be taking its sweet time communicating the new regulations, but courts are not idly standing by. On March 21, 2016, California’s San Bernadino County Superior Court became the first court in the nation to find that a retailer’s website violated Title III of the ADA. Judge Bryan Foster granted summary judgment to a blind plaintiff who sued luggage retailer Colorado Bag’n Baggage over its website, ruling that plaintiff “presented sufficient evidence that he was denied full and equal enjoyment of the goods, services, privileges, and accommodations offered by defendant [via its website] because of his disability.”
Judge Foster also found sufficient evidence that Title III of the ADA applied to the website because there was a nexus between defendant’s physical retail store and the website. The court awarded plaintiff $4,000 in damages under California’s Unruh Act, as well as injunctive relief under the ADA requiring modifications to the website. Significantly, plaintiff will also be entitled to recovery attorneys’ fees in the case, which will likely be significantly more than the damage award.
Plaintiff in the San Bernadino County case was represented by the Newport Trial Group, a firm aggressively targeting retailers with threatened class actions over website accessibility. A Pittsburgh-based firm, Carlson Lynch Sweet & Kilpea, also has been very aggressively targeting retailers. Both firms seek settlement agreements calling for WCAG 2.0, Level AA compliance by retailers’ websites, as well as payment of attorney fees and damages.
The March 21 ruling in San Bernadino County Superior Court will undoubtedly embolden these firms – and likely many others – to step up their campaigns. We have successfully negotiated favorable resolutions with both of the plaintiffs’ firms mentioned above on behalf of clients who have received letters threatening class action litigation. We have also provided guidance and assistance to clients proactively trying to bring their websites into compliance with the expected DOJ regulations.
Bob Dylan famously sang that “you don’t need a weatherman to know which way the wind blows.” At this point, retailers operating websites would be well advised to conduct audits to determine what modifications will be necessary to bring those sites into compliance with the WCAG v. 2.0, Level AA.
Some examples of what those guidelines call for include:
- Non-decorative images must contain alternative text so that screen readers can identify them.
- Embedded videos must have closed-captioning for the deaf, and audio descriptions of what is happening for the blind.
- The website must be navigable with a keyboard instead of just a mouse.
- There must be sufficient color contrast.
- Appropriate headers should be used in text sections, so that the content can be presented in logical fashion by a screen reader.
The full requirements for Level AA compliance can be found by clicking here.
Arent Fox will continue to track court cases involving the ADA and its applications to websites related to places of public accommodation. If you have any questions regarding the above, please contact Sarah Bruno, Anthony Lupo, or Dana Finberg.