2014

“Does my company really have to worry about the ADA?” Whether you are a brick-and-mortar store, exclusively online retailer or any other business with a website or mobile app, the answer appears to be “yes.”

Many businesses are surprised to learn that they may be in violation of federal and state anti-discrimination laws by using a website or mobile application that are not accessible to those with disabilities. As a recent series of threatened lawsuits and Department of Justice press release indicate, all companies that have a web and mobile presence may be targets for claims that they fail to comply with Title III of the Americans with Disabilities Act (ADA)and analogous state statutes (such as California’s Unruh Civil Rights Act). Although trial and district courts in the Ninth Circuit have so far rejected some claims, potential consequences for violations of such laws may be time-consuming and expensive. Moreover, the Department of Justice is actively enforcing website accessibility as demonstrated by last month’s settlement with the owners and operators of the nation’s leading online grocery store, peapod.com

Companies around the country are often first learning about these compliance issues when they receive a letter from a plaintiffs’ ADA advocacy law firm demanding compliance and, in many cases, statutory damages. Many of these claims assert that a company’s website or mobile application lacks certain functionalities that are necessary for disabled persons to access and use such website or mobile application. These functionalities include, for example, the ability of a user to access all website features using a keyboard rather than a mouse, and including alternative text captions for website and mobile application audio and features that work with “text-to-speech” screen reader technology.

It is important for companies to be proactive and at the very least, evaluate their website and mobile applications to exhaustively determine and remedy any accessibility issues. Companies should maintain a constant dialogue with their in-house and third-party web and mobile application designers and programmers to remedy any current and future accessibility issues.

Being proactive will help a company avoid potential consequences for statutory violations. In addition to time and goodwill factors, California’s Unruh Civil Rights Act imposes a $4,000.00 statutory penalty for every violation, whereas the ADA presently permits injunctive relief and the recovery of attorneys’ fees.

Although the Department of Justice is not expected to release compliance standards until 2015, settlement agreements and consent decrees hint that the Department of Justice may require websites and mobile applications to comply with the Web Content Accessibility Guidelines 2.0, Level AA (WCAG 2.0 AA), developed by a private industry group. The Department of Justice has required compliance with the WCAG 2.0 AA in the past, including in the DOJ’s consent decree with H&R Block in 2013 and, more recently, in the Department of Justice’s November 2014 settlement with owners and operators of peapod.com. Under the settlement agreement with peapod.com, America’s leading online grocer is required to adopt measures to ensure that users with disabilities are able to fully and equally enjoy the various goods, services, facilities and accommodations provided through www.peapod.com including: (1) designating an employee as web accessibility coordinator for www.peapod.com, who will report directly to a Peapod, LLC executive; (2) retaining an independent website accessibility consultant, who will annually evaluate the accessibility of the website and its mobile applications; (3) adopting a formal web accessibility policy; (4) providing a notice on www.peapod.com soliciting feedback from visitors on how website accessibility can be improved; (5) providing automated accessibility testing and accessibility testing by individuals with a variety of disabilities of www.peapod.com and its mobile applications; and (6) providing mandatory annual training on website accessibility for Peapod’s website content personnel.

Don’t wait until you get a complaint from the Department of Justice (the entity tasked with enforcing the ADA) or a demand letter from a plaintiffs’ ADA advocacy law firm. If you own or operate a website or mobile application, be proactive.

For more information contact:

Christopher E. Ng, Esq.
Gibbs Giden Locher Turner Senet & Wittbrodt LLP
1880 Century Park East, 12th Floor
Los Angeles, California 90067
Phone: (310) 552-3400
email: cng@gibbsgiden.com

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