In 2017, on the day after Christmas, the Department of Justice officially withdrew pending rulemakings on ADA Accessibility and websites. While that would seem to most people like website ADA conformance was no longer something to worry about from a legal standpoint, what has happened in the one year since it is still vital for businesses to incorporate into their digital plans.
The Department of Justice (DOJ) had already set the ball in motion - stepping into existing legal cases, setting legal precedent everywhere and even going so far as inserting a statement of interest in Gil vs. Winn-Dixie Stores that effectively redefined ‘place of public accommodation’ to include websites. It should therefore come as no surprise that website ADA lawsuits in 2018 continue to swiftly increase, on target to nearly double 2017’s tally. Let’s explore three 2018 lawsuits that are relevant to the changing legal climate.
Maintaining Website Accessibility: Dennis Haynes v. Hooters of America, LLC (U.S. Court of Appeals, 11th Circuit)
Previously, a lower court decision had rendered Dennis Haynes’ lawsuit against Hooters of America ‘moot’ because Hooters had already been sued for website accessibility (Gomez v Hooters of America) and agreed to address the issues. In this lawsuit, the 11th circuit reversed this decision on some interesting grounds.
The Gomez agreement did not require Hooters to maintain website accessibility.
The original deal was set to expire in 3 months (September 2018).
They argued since the first case (Gomez v. Hooters) didn’t involve Haynes it didn’t moot Hayne’s complaint.
The first and third points are probably the most pertinent. The first point drives home that courts are beginning to understand that websites are living, breathing things that require not just remediation to WCAG 2.0 (now 2.1), but ADA conformance maintenance plans as well. As accessibility lawyer Richard M. Hunt put it:
“The earlier settlement mentioned in the Haynes case required the website to be brought into compliance with WCAG 2.0, but did not require that it remain in compliance… (M)odern websites, unlike accessible parking spaces and grab bars in a restroom, are frequently changed and include web applications that interact in complicated ways with the user.”1
The third point makes it clear that privately settling with one plaintiff will not protect you against the exact same lawsuit being brought about by another plaintiff. That’s big. In this case, remediation was defined by the plaintiff (Gomez), and that seemed to be the issue. When Haynes separately sued Outback Steakhouse, who had an existing settlement remediated by the court, Haynes had it dismissed.
Of course, the easiest solution to this is to just make your website conformant. Not only does it provide some cover against lawsuits once the conformant website is up and running, bu just engaging in the effort to make the site conformant can often provide cover. We will see this in Carroll v. New People’s Bank, described below.
Remediating Issues Immediately: Carroll v. New People's Bank, Inc.
New People’s Bank was hit with a demand letter from Keith Carroll, who is permanently blind. He argued that their site was inaccessible for him. New People’s Bank voluntarily retained a third-party company to identify the issues and the Bank subsequently improved the website’s accessibility. The Bank informed the plaintiff before he filed suit that they had remedied the issues he presented. The plaintiff nevertheless filed a lawsuit.
New People’s Bank filed a motion to dismiss the lawsuit, partially on the claim that there was no longer any website accessibility issues and that they had plans in place to ensure it remained accessible. The judge agreed and dismissed the claim.
This case shows there is some precedent for dismissal if the company that receives a demand letter acts in good faith to remedy the issues in a timely fashion.
Setting a limit on compensation: Thurston v. Midvale Corp
Of note, the Thurston v Midvale Corp case was based on California state law and the violation was around California’s Unruh act - a state law similar to the ADA but much older (enacted 1959) and not exactly the same. In this case, Cheryl Thurston, who is blind, argued that the website for the Whisper Lounge restaurant violated the Unruh act due to its inaccessibility. Thurston won. Two interesting points came out of the decision, but hey should be taken with a grain of salt since they are specific California law only:
Telephone and email did not meet sufficient standards for auxiliary aids. Sighted individuals could get questions answered about things like hours of operation and weekly specials without having to call during business hours or wait for emails. This meant Thurston could not enjoy ‘full and equal enjoyment’.
The settlement was capped at $4,000 in punitive damages. This matters because the judge denied the view that multiple attempts to access the same inaccessible website represented separate offenses (and thus would have been entitled to $4,000 dollars for each offense).
These cases are just three of the well over 1,000 website accessibility cases in 2018 alone. The pace of this legislation is not slowing down. If anything, the rulings are getting more complex and covering more details. The one thing these three cases have in common, however, is that none of them would happen if the defendants had committed to building a website that was accessible to all potential customers, and keeping that site conformant.
In 2019, the legal climate will likely remain similar, supporting the belief that companies or institutions should proactively remediate any website ADA issues, build sites against current (WCAG 2.1) conformance standards, and ensure an ongoing ADA plan is in place to address new issues created by the changing nature of websites. Of course, the legal climate aside, making your website conformant to all visitors – no matter their disability – is also the right thing to do to ensure that you maximize the usability of your site.