Why are they being sued..?
People with disabilities have filed lawsuits against businesses both large and small when the websites were not coded property to work with the assistive technology they use, such as screen readers, keyboard only navigation, color contrast and others that are needed for them to use the website like others who are not disabled.
Title III of the ADA prohibits discrimination on the basis of disability in the activities of places of public accommodation. ADA.gov lists 12 categories found in the ADA such as restaurants, movie theaters, schools, day care facilities, recreation facilities and doctors’ offices.
There are six main industries who are being hit the hardest as noted by UsableNet: retail, food service, travel and hospitality, banking and financial, entertainment and leisure and self-service. However, we have spoke with many cities, e-commerce stores, car and tire dealers who have been served either demand letters or have been sued.
Who is being sued & losing..?
On July 26, 1990, President George H.W. Bush signed into law the American Disabilities Act (ADA). During the early 90s, the Internet was not such a large part of our lives. Today we can almost run our entire lives on the Internet.
~ In 2016, a landmark case Gil v. Winn-Dixie Stores was found to have violated the ADA because its website was not accessible to the blind plaintiff. Mr. Gil was wanting to use the website to fill prescriptions and to locate coupons. Winn-Dixie was ordered to update its website. The court held that only websites with “nexus” – a link to a physical location are subject to the ADA.
Although the Winn-Dixie case was tied to a physical location having a website, other cases have been decided for the plaintiff that only has an online presence. With no true written law in place for website accessibility, courts are deciding the cases most often, in favor of the plaintiff.
~ In April 2016, NetFlix agreed to add audio descriptions to the soundtrack of video that describes important visual details that cannot be understand by viewers who are blind.
The NetFlix judge made the statement below:
“[W]hile such web-based services [as Netflix streaming video[ did not exist when the ADA was passed in 1990 and, thus, could not have been explicitly included in the Act, the legislative history of the ADA makes clear that Congress intended the ADA to be adapt to changes in technology. See, e.g. H.R. Rep. 101-485 (II), at 108 (1990) (“[T[he Committee intends that the types of accommodation and services provided to individuals with disabilities, under all the titles of this bill, should keep pace with the rapidly changing technology of the times.”).”
~~ Judge Michael Ponsor, U.S. District Judge for the District of Massachusetts
Statement of Interest of the United States Department of Justice in NAD v. Netflix:
“Defendant Netflix is a public accommodation that offers its Watch Instantly and other services to the public. As such, Netflix is subject to Title III of the ADA, even it if has no physical structure.”
There are many notable cases for those who do not have physical structure. A few are below:
~ Bishop v. Amazon.com, Inc. was a class action lawsuit in 2018.
~ National Federation of the Blind, et al. v. Target Corporation set a precedent in 2008 when it agreed to settle a lawsuit alleging that its website was not accessible to the blind, agreeing to improve the website and pay $6 million into a “Damages Fund” for members of the class-action lawsuit. The court also awarded about $3.7 million in attorney fees.
~ National Federation of the Blind and HRB Digital LLC v. H & R Block. In a March 2014, subsidiaries of H & R Block agreed to pay $45,000 to two individual plaintiffs and a $55,000 civil penalty. The DOJ intervened on accessibility with regards to mobile apps and websites after several disabled persons filed a complaint for not being able to use H & R Block’s website.
~ Noel Nightingale, a blind parent Co-Plaintiff, the National Federation of the Blind sued Seattle Public Schools. Nightingale notified the school district in 2012 that its websites were not compatible with the screen reader which reads aloud website content and documents or displayed in braille on another device. The incompatibility was due to changes that had been made on the website in 2012. In 2014, Nightingale sued the district and a settlement was reached. The school board estimated it will cost them approximately $665,000-$815,000 to implement the needed changes, attorney fees, accessibility coordinator and training of staff. Source: SettleTimes.com.
~ Dudley v. Miami University – Ms. Dudley, of Miami University in Oxford, Ohio sued the University for discrimination stating the website did not work with her screen reader. In its separate agreement with Ms. Dudley, the university denied liability but agreed to pay Dudley $108,000 for expenses toward an undergraduate degree at another university. Miami University also agreed to pay Dudley $102,000 for pain and suffering and repay up to $50,000 for student loans. Source: Seattle Times.
~ Xandra Krane vs 15 Small Bike Shops on California. At least 15 bike shops in California have received emails and letters from a law firm threatening suits over their websites' compliance with the Americans with Disabilities Act and a California statute. They would seek statutory damages of $4,000 per violation, plus attorney fees and other costs.
Settlements & Penalties.
There are fines in place for Section 504/Section 508. But, for those who have received a demand letter for settlement or have been sued under the ADA Title III, the costs extend to court fees, attorney fees and settlements and the requirement of making their website accessible.
~ Fines up to $55,000 for the first violation and $110,000 for each subsequent violation.
~ Those who receive Federal funding could have those funds revoked for being in non-compliance. It’s not anything you want to ignore.