Attack of the ADA Trolls!

WHAT’S UP WITH THE ADA?

Many influencers and content publishers, particularly in the DIY video space and lifestyle bloggers, are being threatened with expensive lawsuits over the Americans With Disabilities Act (“ADA”). I’ve been contacted recently by a number of clients who are increasingly concerned about their potential liability.

In this post, I’ll provide some basic information about the current trends in ADA compliance for websites that may help you understand what’s going on and how you can prevent or minimize the potential damage if you become a target. This is a bit longer than most of my posts and the information is rapidly changing so stay tuned for updates.

ADA BACKGROUND

Title III of the ADA is the most relevant section of the law and it discusses places of “places of public accommodations.” Most of the ADA lawsuits have been filed by attorneys representing visually impaired customers who claim that the ADA and comparable state law requires that websites be compatible with screen-reader software, such as JAWS or NVDA.

However, the ADA does not directly address whether “places of public accommodation” includes websites, mobile applications, or other web-based technologies. This is part of the problem and where at least some of the confusion and uncertainty comes from.

To further complicate things, different courts in different parts of the country have come to completely different conclusions.

For example, the Third, Sixth, Ninth and Eleventh Circuits have stated that “the inaccessible website of a brick-and-mortar retailer store could run afoul of the ADA if the website’s inaccessibility interferes with the ‘full and equal enjoyment’ of the goods and services offered at the physical store, but a business that operates solely through the Internet and has no customer-facing location is under no obligation to make their website accessible.”

On the other hand, some courts in the First, Second and Seventh Circuits have held that a website, by itself, can be a place of public accommodation subject to the ADA.

It’s also important to note the some states and other countries are increasingly focused on providing access to digital content for disabled persons. For example, the Accessible Canada Act is gradually being implemented to increase access for disabled persons.

SO WHAT’S HAPPENING?

Because of the confusion about the applicability of the ADA to websites and related content, as well as the potential for large payouts for violations of the law, ADA lawsuits are growing almost as fast as COVID-19. Some lawyers view public accommodation litigation as a quick and east way to generate fees and are now “trolling” prospective victims in search of some fast money. They threaten litigation unless the target agrees to make ADA complaint changes and pay a “settlement fee,” typically in the $3,000 – $10,000 range.

WHAT DOES IT MEAN TO ME?

While the standards for ADA compliance are not crystal clear, there are some obvious directions that can be gleaned from recent litigation and industry trade groups.

For example, the U.S. Department of Justice frequently cites the Web Content Accessibility Guidelines (WCAG) 2.0 and 2.1 created by the World Wide Web Consortium (W3C), an international group that helps create and promote web standards.

The WCAG highlight different criteria for making websites more accessible to people with disabilities, such as including captions for audio content and using high-contrast color schemes.

In addition, the W3C has a list of web accessibility evaluation tools that may prove useful in evaluating your website for compliance.

At the very least, you may want to consider the accessibility of your website, including audio-visual content to evaluate your potential liability. Here is an incomplete list of accessibility issues that may create liability under the ADA in at least some situations.

• Ensure that users can access and navigate your website using a keyboard and not just a mouse.
• Text size and colors can be an important part of readability, both for humans and screen reader software. Current web design guidelines can be useful to ensure more legible text on your website.
• Alternative text (Alt Text) should be implemented for all images on your website. Alt Text is the metadata assigned to each image explaining what the image is.
• Forms at your website should be accessible for those with disabilities so they can easily be read and completed by a user. This includes clear error messaging and labels. This will allow screen readers refer to the right label to get the right information in the right field.
• In order to be ADA compliant, the HTML coding for your website should conform to coding standards for nesting headings and subheadings.

Finally, the ADA requires you to provide “auxiliary aids” for anyone with a disability. In the case of the deaf and hard of hearing, that probably means providing closed captioning for videos.

BOTTOM LINE

ADA compliance is a thing. You may never face a lawsuit, but you should evaluate your potential risk and make a conscious decision about what steps you should take (or not take) with regards to ADA compliance for your online presence.

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Disclaimer – Yes, I’m a lawyer, but I’m not your lawyer. All information in this post is provided for educational purposes only and should not be considered legal advice for any specific person or specific situation.