After an 18 month hiatus, ADA accessibility lawsuits are once again being filed in Arizona’s federal courts. Unlike previous ADA lawsuits (which focused on physical barriers to accessibility), this new wave of lawsuits alleges that business websites and mobile apps are not accessible to those with hearing and/or visual impairments.
Here are five things that every business owner should know.
1. What is the ADA and who does it apply to?
The ADA is a federal law that was enacted in 1990. It requires all places of “public accommodation” to be accessible to individuals with disabilities. Public accommodations are businesses that are generally open to the public and include places like restaurants, movie theaters, schools, office buildings, recreation facilities, etc.
2. Is a business’s website required to comply with the ADA?
It depends. Because the ADA was drafted (and enacted) before the internet was prevalent, federal courts across the U.S. have inconsistently applied the ADA to business websites and mobile apps. The Ninth Circuit (which covers Arizona) recently ruled, however, that to be covered by the ADA, a website or mobile app must have a “nexus to a physical place of public accommodation.” For example, Netflix’s website is arguably not required to comply with the ADA because it is entirely an online business while Target’s website may be subject to ADA accessibility requirements because it has a nexus to Target’s physical store locations.
3. What about Arizona’s recent law that forces a disabled plaintiff to give notice before filing an ADA lawsuit?
That law only applies to claims that are brought under the Arizonans with Disabilities Act (i.e., not the ADA, a federal law). An Arizona legislature cannot enact a law that restricts a federal law.
4. How do you know if your website is ADA compliant?
This is a frustrating question. In 2010 the Department of Justice (DOJ) announced that they would be establishing standards for website compliance. Nine years later and the DOJ still has not provided any guidance. This means that courts, businesses, and plaintiffs are left to determine whether a website or mobile app is accessible to a person with disabilities. Many courts are holding that a website or mobile app is accessible if it complies with the Web Content Accessibility Guidelines (WCAG 2.0). The WCAG 2.0 are accessibility standards developed by an international organization called the World Wide Web Consortium (W3C).
5. What remedies may ADA plaintiffs seek?
A prevailing ADA plaintiff is entitled to injunctive relief (which is an order from the court instructing a business to make its website and/or mobile app ADA compliant) and may be awarded his/her reasonable attorneys’ fees and costs. ADA plaintiffs are not entitled to private monetary damages.
For more information on this topic or other litigation law matters, please contact Mr. Leavitt.