Academic journal article Case Western Reserve Law Review

No Regulations and Inconsistent Standards: How Website Accessibility Lawsuits under Title III Unduly Burden Private Businesses

Academic journal article Case Western Reserve Law Review

No Regulations and Inconsistent Standards: How Website Accessibility Lawsuits under Title III Unduly Burden Private Businesses

Article excerpt

CONTENTS  INTRODUCTION I. TITLE III OF THE ADA AND WEBSITE ACCESSIBILITY       A. ADA Background       B. Businesses Victim to "Surf-By" Lawsuits Under Title III       of the ADA II. CIRCUIT SPLIT ON WHETHER A BUSINESS'S WEBSITE REQUIRES A    PHYSICAL LOCATION TO BE A PLACE OF PUBLIC ACCOMMODATION    UNDER THE ADA    A. The Independent Perspective: First, Second, and Seventh Circuits    B. The Nexus Perspective: Third, Sixth, Ninth, and Eleventh Circuits III. THE ABSENCE OF WEBSITE ACCESSIBILITY STANDARDS    A. DOJ's Failure to Address Website Accessibility Standards    B. Website Accessibility Standards Issued by Courts IV. BUSINESSES FACE UNFAIR BURDEN TO COMPLY WITH UNKNOWN       Website Accessibility Standards    A. Unknown Financial Costs to Implement Accessibility Features    B. Businesses Open to Liability Even if Currently Trying to      Remediate CONCLUSION 

Introduction

We live in a world of constant tweeting, social media posting, email checking, fact Googling, Netflix hinging, swiping right, and online shopping. In fact, most Americans spend as much time online as a fulltime job; over forty hours are spent per week on their smartphones, desktops, laptops, and other streaming devices. (1) And while many people take the Internet for granted, as many as 26.5 million Americans with visual or auditory disabilities face difficulties accessing the websites of private businesses. (2) Website accessibility for disabled persons has recently become a hotbed for litigation under the Americans with Disabilities Act (ADA), which requires certain businesses to comply with standards that allow disabled persons equal access to products and services. While businesses have clear guidance as to what those standards mean in the physical world, the ADA is silent on how, exactly, those standards translate to the digital world. In the absence of such clear standards, businesses are exposed to continuous liability for failure to comply with website accessibility. For businesses, those 26.5 million Americans with visual and auditory disabilities translates to 26.5 million potential plaintiffs who could bring a website accessibility action against them.

For a website to be accessible to an individual with a visual impairment, the website must be coded to integrate with the individual's screen reader. (3) Deaf or hard-of-hearing individuals rely on closed captioning coding for audio files. (4) In theory, this seems like a simple enough task. But the implementation of the ADA into the digital world has been fraught with confusion. The practical reality of making websites accessible to those with visual and auditory impairments is a legal minefield with unarticulated accessibility standards, a circuit court split, and significant financial costs for businesses.

When the ADA was passed in 1990, the Internet was in its infancy; Congress did not include regulatory guidance for websites as it did for physical structures. (5) Websites are not mentioned anywhere in the ADA regulations and the Department of Justice (DOJ) has provided little guidance in this area of law. Now, plaintiff firms are storming the courtrooms in ever-increasing numbers to take advantage of the opportunity this gap in the current law presents. (6) The number of website accessibility lawsuits hit at least 2,258 in 2018, a 177% increase from 814 such lawsuits in 2017. (7) Without clear website accessibility standards in effect, this trend is unlikely to stop any time soon. (8)

As the website accessibility debacle has landed in the laps of federal judges, courts are tasked with two main questions. First, does a website of an ADA-covered business qualify as a "place of public accommodation" within Title III of the ADA? Answering this question is tricky, especially when addressing web-only businesses without a traditional storefront or physical location. Circuit courts are split over whether a website needs a nexus to a physical structure to qualify as a place of public accommodation under Title III of the ADA. …

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