There is an on-going ADA regulations battle being waged against commercial websites; including those operated by wineries and other alcoholic beverage industry members. The regulations were passed with good intentions but need to be administered with a lighter touch than is happening right now.
Most winery physical facilities and tasting rooms have made the alterations needed to become ADA compliant. The next Frontier is cyberspace: ADA Website Compliance.
As many recent blogs and commentaries have discussed, an explosion of demand letters threatening lawsuits (or actual lawsuits) have been lodged against all types and sizes of companies. The usual claim is the company’s website is not ADA compliant for the visually impaired.
Websites are an essential part of doing business in this digital-centric new world – you can’t operate without one. The ADA law as written: (1) provides no notice must be given before a lawsuit is filed, (2) provides no time to “cure” the violation before a lawsuit is filed, and (3) companies have no real defenses once a lawsuit is filed.
The goals and purpose of the Americans with Disabilities Act[i] are laudable:
”no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation”.[ii]
As is often the case with new compliance requirements plaintiff attorneys and plaintiffs use these requirements as an opportunity to seek their own financial gain in addition to pursuing the more altruistic goal of providing reasonable access to persons with disabilities. This is not unusual in legislation adopted for the public good. It is often the intention of Congress to place enforcement of mandates like this in private parties on the theory it will take less government resources to achieve the goal – access by the disabled.
What is the ADA and to Whom Does It Apply?
The American with Disabilities Act was enacted in 1990. There are four sections.
· Title I prohibits discrimination in employment.
· Title II prohibits discrimination by all government and public services and entities.
· Title III applies to all “public accommodations and services operated by private entities”. Title III is the section under which these lawsuits are filed.
· Title IV deals with miscellaneous provisions.
Title III defines “public accommodations” and provides a comprehensive list of 12 categories of business and commerce that must assure there is no discrimination in access for persons with disabilities to goods and services.[iii] Although the ADA is silent on any discussion of websites, and whether they are considered a “public accommodation”, the ADA does prohibit any “communication barriers” for persons with disabilities. When courts held that websites are “public accommodations” and must comply with the ADA (and provide equal access to all persons with disabilities), the plaintiff’s ADA bar geared up its enforcement engine.
The three main website lawsuit claims are failure to provide “reasonable access” for the visually impaired, hearing impaired, and physically impaired. Both large and small companies have been the targets of lawsuits. Wineries and alcoholic beverage industry members are the new targets.
The California Unruh Civil Rights Act – The California Double Whammy
California combines the federal ADA with the California Unruh Civil Rights Act.[iv] The Unruh Act was amended after the ADA was adopted to provide that any violation of the ADA is also a violation of the Unruh Act with associated fines and penalties. This means a federal violation is also a California violation.
The Burden of Proof shifts to the Winery under California law if there is a federal Violation
Under the Unruh Act, the plaintiff must show the violation was intentional, however, if a claim under the Unruh Act violates the ADA, the plaintiff no longer must show the violation was intentional - - this eliminates the burden of proof on the side of the plaintiff. Further, under the ADA, all the plaintiff can expect to recover are “reasonable attorney’s fees and costs” but under the California Unruh Act, a plaintiff may collect penalties with the minimum penalty set at $4,000 per violation.[v] Lawsuits under the ADA and Unruh Act are serious and understanding how to stay ahead of a lawsuit is imperative.
Standards for ADA Website Compliance
The ADA directed the Department of Justice (“DOJ”) to develop specific levels of operation that websites must meet to be considered compliant with the ADA. But, to date, the DOJ has failed to do so. The result is plaintiff lawsuits; and courts are developing their own standards and guidelines with inconsistent results.
While many of the newer lawsuits are focusing on the visually impaired, a business that is a “public accommodation” must assure its website complies with all disabilities: visual, hearing, physical, and neurological.
W3C and WCAG – the International Standard Setting Organizations
The W3C (World Wide Web Consortium) is an international alliance of businesses and governments with 448 members (including Apple, Google, IBM, AT&T, etc.). The consortium works on developing universal standards for web accessibility. The W3C output is called the WCAG (Web Content Accessibility Guidelines). There are several “levels” of compliance ranging from the most basic WCAG 2.0 level A, with the next level AA, and finally level AAA. The W3C released WCAG 2.1 in June 2018. Each level of guidelines requires coding in the website to make it more available to persons with disabilities. Each WCAG level includes “success criteria” that must be reached. The “success criteria” become harder to meet as the level increases. The newest version, WCAG 2.1 includes the success criteria in WCAG 2.0 plus 17 new success criteria (including mobile applications).
Because the DOJ has adopted no guidelines for website accessibility, the courts have generally relied upon WCAG guidelines. An overwhelming majority of the decisions and/or settlement agreements are now adopting either the WCAG 2.0 level A or level AA as the reasonable standard for compliance. However, there is no assurance which court will adopt which standard. The most prudent advice is to comply with the strictest standard.
What Does It Take to be Compliant?
Compliance is complicated, particularly with older established websites that didn’t contemplate required coding to make the website ADA compliant. Most companies do not have their own in-house IT departments to implement the necessary coding to make the website compliant. Further, even with in-house IT departments, revising an old website can simply overwhelm the IT department.
For example, the University of California, Berkeley was ordered to revise all its video content to contain written captions for the hearing disabled. It proved to be such an overwhelming task that in 2017, the University removed over 20,000 videos from its website rather than be in danger of violating the ADA requirements.
Compliance can be expensive. The basic business case for modifying the website to become ADA compliant is that eventually lawsuits are more expensive than the cost of compliance because a settlement with one plaintiff will not protect you from a lawsuit from a different plaintiff. At recent rates, garden variety settlements are averaging around $15,000. However, if the plaintiff discovers that the defendant company settled a prior case but did not try to become compliant, the price of settlement will be significantly higher. There is little sympathy from the affected class. Organizations representing disabled persons will simply tell you that it’s the right thing to do.
Steps to Compliance – the First Step
Testing is the first step. A competent IT person must test the website for ADA compliance. There are some “free” internet testing tools but these tests are fairly limited in scope and it may be risky to rely on only those tests to assure compliance. Regardless, they are an option.
We recommend that every company:
· Draft an “accessibility statement” for the website to demonstrate its commitment to accessibility and its work toward becoming fully ADA compliant,
· Ensure that all new or modified content added to the website is ADA compliant,
· Provide a way for visitors to request accessible information or services by posting a telephone number or email address on the home page and establish procedures that ensure a quick response to users with disabilities.
All website and social media managers should understand the basic tasks required for compliance. These issues also need to be addressed to make the website ADA compliant:
· The “language” used to develop the website (for example, semantic HTML (“hypertext mark-up language”) must be readily accessible to screen readers for the visually impaired).
· Headers and titles must appear in a rational order (screen readers will read the headers to help the visually impaired skip through sections easily until they find the information they are seeking).
· Text alternatives describing pictures on the page must be included.
· Captions on videos must be included for the hearing impaired.
· The ability to navigate using only the keyboard is the goal for both the visually and physically or neurologically impaired person using screen reading technology.
· Color and contrast need to be designed for visually impaired.
· Ability to make the font size 200% without distortion or loss of content.
Changing a website is difficult and the final product depends on what the website looked like initially but, as these factors illustrate, the task will be complex.
It’s not all rigid. The courts have recognized that a website won’t become compliant easily or quickly. Demonstrating that a defendant is trying to convert its website is an important factor in defending a case or mitigating a penalty.
Legislation on the Horizon – Will it Help?
The organizations representing various populations with different disabilities generally object to any modification to the ADA law that would require notice and an opportunity to “cure” before a lawsuit is filed; regardless, modification is imperative if the law is to be applied fairly going forward. The intent of the law was to increase equal access for disabled persons not to spawn a entire class of new lawsuits.
In the 2017-2018 Congress, H.R. 620 was introduced. The bill would have (1) required the DOJ to develop a program to educate both government and private entities on strategies to promote access to public accommodations, and (2) require notice and ability to cure before suing.
108 Congressional representatives on a bi-partisan basis signed to support this Bill. It was passed in the House but the Senate took no action. Although H.R. 620 only addressed architectural barriers, it was on the right track. Industry trade associations should be encouraged to bring this bill up again with modifications to address the upgrading of social media and websites.
In California a similar bill was introduced in the 2015-2016 session. SB-1142 proposed to amend the Unruh Act to allow remedial access corrections to be made without litigation “and without needless payments of overly burdensome attorney’s fees”. The New York legislature is also considering legislation to halt the ever-increasing number of ADA lawsuits.
Meanwhile, the “new Frontier” of ADA litigation mandates taking steps now to convert industry member websites so they will either be, or be on the way to being, ADA compliant.
And, as always, please consult with your counsel for advice about specific ADA situations.
[i] American with Disabilities Act of 1990, 42 U.S.C. ch.26, §§ 12101, et. seq.
[ii] 42 U.S.C.§12182.
[iii] The 12 categories in 42 U.S.C. §12181(7) are: 1-all lodging -hotels, motels, inns, bed and breakfast, etc., 2-all types of food services and bars, 3-movie theaters, concert halls, stadiums, entertainment areas, 4-auditoriums, convention centers, 5-bakery, convenience, groceries & hardware stores, shopping centers, 6-laundromats, cleaners, barber & hair salons, offices of accountant or lawyer, pharmacy, insurance offices, professional offices, all health care related offices, 7-all public transportation, 8-museums, libraries, galleries, 9-parks, zoos, recreation facilities, 10-all schools – private and public pre-K-college,11-day care, senior citizen centers, homeless shelters, adoption agencies, etc., 12-gyms, spas, bowling alley, golf course, or other place of exercise or recreation.
[iv] Unruh Civil Rights Act, CA Civil Code §§ 51, et. seq., CC §51(f).
[v] CA Civil Code §52(a).